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Recommendation |
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| Issue 2: Compliance history is inconsistently
defined and applied, limiting its use as a permitting and enforcement tool.
Key Recommendations: develop a common definition of compliance history, track all polluters’ compliance histories, and develop a performance assessment based on compliance history for eligibility in “flexible” programs. |
Sunset recommendations on defining compliance history are headed in
the right direction, but need to be modified. A statutory
and uniformly-applied definition of compliance history should be developed
that includes the following components (inclusive, not limiting):
· all self-reported violations; · all notices of violation and enforcement; · all civil, administrative or criminal actions brought by the TNRCC or other agency of federal, state or local government (in Texas and in other states) for violation of any environmental statute, ordinance, regulation, court or agency order or license provision; · all actions resulting in agency orders, including consent orders, consent agreements and settlement agreements. A complete list of complaints--investigated and not investigated--should also be considered part of the compliance history. “Bad actor” laws, mandatory enforcement for repeat violators, and better performance indicators for tracking the success of enforcement programs are also needed. |
| Issue 4: TNRCC policies on upsets and inspections are not
based on the performance of a regulated entity.
Key Recommendations: Require regulated entities to demonstrate a good compliance history before they may receive announced inspections. Require TNRCC to track whether inspections are announced or unannounced, and track all occurrences of upset emissions. Limit exemptions from enforcement for entities with chronic upsets. |
The coalition agrees with all of the Sunset recommendations
in Issue 4, but suggests some modifications:
1) Unannounced inspections should be standard and non- negotiable to assure that even the entities with the best compliance records STAY in compliance. 2) Require tracking, reporting on, and taking enforcement actions on all “accidental” releases, regardless of volume, and including releases during maintenance, start-ups, and shut-downs |
| Issue 7: The public’s interest is not adequately supported
in agency policymaking.
Key Recommendations: Strengthen the Public Interest Counsel and
give it the ability to appeal Commission decisions in court. Disqualify
persons from being appointed to the TNRCC Commission if they have received
significant income from a regulated entity within 2 years before an appointment.
Require balanced advisory groups and track the composition and use of advisory
groups.
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The Public Interest Sunset Working Group agrees with
all of the recommendations in Issue 7 and suggests some modifications:
1) Conflicts of interest prohibitions must apply not only to the Commissioners
but also to key agency employees. Eligibility restrictions must be
lengthened to a period of 5 to 10 years instead of 2.
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| Issue 8 Having the agency as an advocate for contested permits
contributes to a perception of unfairness in the decisionmaking process.
Key Recommendation: Remove the TNRCC Executive Director as a party in contested permit hearings but allow the Director to present evidence as needed. |
The Public Interest Sunset Working Group agrees with all of the recommendations in Issue 8. |
| Issue 9 TNRCC has not taken advantage of using the public
in its compliance efforts.
Key Recommendations: Require TNRCC to conduct an annual assessment of complaints and respond to complaints after normal business hours. Allow the use of citizen-collected evidence in enforcement and permitting cases. Use cumulative complaint information in the permitting process. Require public notice of enforcement actions. Authorize affected persons to intervene in agency enforcement actions that affect their health or property. |
The Public Interest Sunset Working Group agrees with all of the recommendations in Issue 9 and suggest one modification: More resources need to be devoted to providing after-hours responses to complaints. More inspectors are needed. |
| Issues 10.5 and 10.6 Remedies to Funding Deficiencies
Recommendations: Adjust the Air Emissions fee for inflation. Modify the Air fee, as well as the Wastewater Treatment Inspection and Public Water Systems fees to more equitably distribute costs between large and small payers. |
The Public Interest Sunset Working Group agrees with recommendations 10.5 and 10.6, and strongly urges removing the fee caps, or volume discounts, for large polluters and creating a progressive fee rate per ton of air emissions. |