Public Interest Recommendations for a
True Texas Environmental and Public Health Protection Agency

The following recommendations should be incorporated into the Texas Natural Resource Conservation Commission Sunset legislation:

1. Mission of the Agency.  Clearly define TNRCC’s mission to be one of only protecting public health and the environment, not also promoting of economic development. The TNRCC must be re-created and given a new name that reflects the mission of the agency.

2. Restrictions on Conflicts of Interest.  Persons must be disqualified from being appointed to the Commission or key decision-making roles within the agency if they have received significant income from a regulated entity within five years before appointment. The agency must be accountable to the people of Texas and unable to be influenced by polluter money.

3. Public Interest Counsel.  The Public Interest Counsel must be independent of TNRCC through direct gubernatorial appointment of the Counsel (currently hired and fired by the TNRCC Commissioners) and have the power to appeal TNRCC decisions to state courts. A budget sufficient for witnesses and appellate procedures would make OPIC the kind of effective advocate on behalf of the environment and public health that’s needed.

4. Executive Director as a Party in Contested Case Proceedings.  Remove the Executive Director as a party in contested case proceedings on pollution control permits. Allow SOAH to call TNRCC ED technical witnesses when needed.

5. Funding Issues. Achieve funding equity and much needed resources by eliminating fee caps or “volume discounts.” The funding structure for the agency must ensure adequate funding of core programs and incorporate sufficient incentives for pollution reduction.  The economic benefit of polluting must not outweigh penalties.

6. Environmental Justice.  The agency must protect civil rights and actively ensure that low income communities and communities of color do not bear a disproportionate share of pollution.

7.  Compliance History.  Compliance history must be broadly but specifically defined, including but not limited to items such as self?reported violations; violations revealed during agency inspections or inspections performed by local governmental entities; notices of violation and enforcement; all civil, administrative, or criminal actions brought by TNRCC or other state, federal, or local governments; all
actions resulting in agency orders, including consent orders, consent agreements, and settlement agreements.

8. Public Participation. No business has the right to pollute, but all citizens have the right to clean air and water.  The agency must enforce citizen rights such as the right to:
-participate in hearings on a level playing field with polluting industries
-know which pollutants citizens are being exposed to and when, where, and how they are being exposed
-access information on TNRCC’s website regarding citizen complaints and compliance history by facility

Endorsed By:

Name   _____________________________________________________________
Organization ________________________________________________________
City ____________________________________________   Date ______________

The following recommendations were approved by the Sunset Advisory Commission:
Requiring TNRCC to:

• develop a common definition of “compliance history”
• track and report the compliance history of all regulated entities
• develop a performance assessment for regulated entities to determine eligibility for innovative programs and to establish permit and enforcement guidelines
• ensure that TNRCC has a means to consider changes in ownership when tracking the compliance history of regulated entities
• use compliance performance when determining eligibility for participation in its “innovative” regulatory programs
• prohibit entities with unacceptable compliance histories from participating in innovative regulatory programs
• require entities participating in the regulatory flexibility program to demonstrate that they would exceed current environmental performance standards to participate
• prohibit authorization of “supplemental environmental projects” (SEPs) by a polluter where the polluter has already agreed to do that SEP under a pre-existing agreement with a governmental agency
• require regulated entities to demonstrate a good compliance history before receiving announced inspections
• track whether inspections are announced or unannounced
• track and report the occurrences of all “upset emissions”
• limit exemptions from possible enforcement for entities with chronic numbers of upsets
• consider volume and toxicity of upsets in addition to the number of upsets when contemplating possible enforcement
• enhance coordination of complaint investigations with local officials
• implement policies to respond to complaints after normal business hours
• implement policies allowing a complainant to collect credible evidence for use by TNRCC in enforcement actions
• establish a process for educating the public about the complaint process to enable the public to gather credible evidence of environmental problems
• bolster research into environmental problems and ways of addressing those problems
• improve the process of documenting communications with TNRCC commissioners
• increase TNRCC use of the Internet to communicate with and inform the public
• address water quality issues on the Rio Grande

• Authorizing the Public Interest Counsel (OPIC)  to use technical support outside of the agency where the potential for conflict exists between OPIC and the TNRCC staff and authorizing OPIC to recommend needed legislative and regulatory changes