Web page Contents: Citizen Victories Other Good Recommendations Citizen Disappointments The Future

Monday, September 25, 2000

The Texas Sunset Advisory Commission met in Austin on September 20 and reviewed a wide range of recommendations for proposed changes in the operations and policies of the Texas Natural Resource Conservation Commission (TNRCC).  The suggested changes came from the Sunset Commission staff, the TNRCC itself, the regulated community, the public interest community, and individual citizens and community groups around the state.  When the dust settled after about four hours of deliberations, the Sunset Commission had produced a decidedly mixed bag of decisions on the agency.  The Sunset Commission actions could lead to some significant improvements in the agency's work but fall far short of the comprehensive changes that environmental and other citizen groups feel are necessary to make TNRCC a strong and effective pollution control agency.

Citizen Victories

The Sunset Commission adopted a number of recommendations put forward by the Commission's staff and/or by citizens that, if finally approved by the Legislature or (in the case of management recommendations to TNRCC) if pursued by the agency, will lead to a more citizen-friendly, less polluter-oriented environmental regulatory agency.  Among the recommendations made in this regard are the following:
 

• Requiring TNRCC to develop a common definition of “compliance history,” to track and report the compliance history of all regulated entities, and to develop a performance assessment for regulated entities to determine eligibility for innovative programs and to establish permit and enforcement guidelines.

Any company that produces pollution needs to be held accountable for violations of the law or the company's permit, not only through enforcement actions but also through a review of the company's compliance record when TNRCC is deciding whether to renew that company's permit or grant it a new permit for a different operation.  The ability to do this has been hampered by inconsistent definitions of compliance history from one pollution control program to another and by poor tracking of compliance history.  This Sunset recommendation aims to change that.  A further modification made by the Sunset Commission is to ensure that TNRCC has a means to consider changes in ownership when tracking the compliance history of regulated entities.
 

• Requiring TNRCC to use compliance performance when determining eligibility for participation in its “innovative” regulatory programs, prohibiting entities with unacceptable compliance history from participating in innovative regulatory programs, requiring entities participating in the regulatory flexibility program to demonstrate that they would exceed current environmental performance standards to participate, and prohibiting TNRCC from authorizing “supplemental environmental projects” (SEPs) by a polluter where the polluter has already agreed to do that SEP under a preexisting agreement with a governmental agency.

If adopted by the Legislature this new set of recommendations would prohibit the agency from providing such a program to a “bad actor” and would further require a participant in the regulatory flexibility program to exceed, not just match current environmental performance standards.  This is a major victory for environmental protection.  These recommendations would also properly restrict TNRCC from allowing a polluter to do a SEP (such as donating parkland to a county government) in lieu of paying a fine for a pollution violation if that polluter had already agreed with another government entity to do this SEP anyway for some other purpose.
 

• Requiring regulated entities to demonstrate a good compliance history before receiving announced inspections, requiring the agency to track whether inspections are announced or unannounced, requiring the agency to track and report the occurrences of all “upset emissions” (such as an “accidental release” of an air pollutant due to malfunctioning equipment or operator error), limiting exemptions from possible enforcement for entities with chronic numbers of upsets, and requiring the agency to consider volume and toxicity of upsets in addition to the number of upsets when contemplating possible enforcement.

TNRCC has come under a lot of deserved criticism over the past few years for following the approach of informing pollution control permit holders in advance when the agency is planning to inspect that polluter's facility.  This recommendation at the least requires that only permit holders with a good compliance history are eligible to receive announced inspections.  There was obvious sentiment on the part of several Sunset Commissioners, however, that announced inspections should be eliminated in most circumstances, and this issue is far from over.

Perhaps even more important in many respects are the recommendations attempting to put curbs on upset emissions of air pollution.  Upset emissions are especially problematic in areas of non-attainment for human health standards for air quality because all of the efforts to achieve improved air quality through limits on regular emissions may be useless if persistent and large upset emissions in the area place it in violation of the standard.  A large upset emission from an industrial plant in the Houston area in early October of 1999 is considered to have been a major factor in that area's having reached its worst ozone reading of the year on that date.  These recommendations are aimed at bringing those upset emissions under closer scrutiny and limiting their occurrence through enforcement activities.
 

• Authorizing the Public Interest Counsel (OPIC) at TNRCC 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.

These two recommendations were the only ones dealing with the Public Interest Counsel that won Sunset Commission approval, and even the first one was limited by restricting OPIC from spending more than $100,000 per year for such outside technical support.  Disappointment about the Sunset Commission's failure to act further on the Public Interest Counsel is discussed below.
 

• Requiring TNRCC to enhance coordination of complaint investigations with local officials, to implement policies to respond to complaints after normal business hours, to implement policies allowing a complainant to collect credible evidence for use by TNRCC in enforcement actions, and to establish a process for educating the public about the complaint process to enable the public to gather credible evidence of environmental problems.

These are important steps forward, although somewhat qualified.  One of the major concerns expressed by citizens about TNRCC is its failure to provide a system for responding to citizen complaints about pollution at night or on weekends.  The Sunset Commission is telling the agency that this failure must be addressed, perhaps in part through coordination with local officials where that possibility exists.  The Commission is also making it clear that credible evidence from the public about pollution violations must be considered by TNRCC and that the agency is to be proactive in educating citizens about how to gather such evidence.

Other Good Recommendations

The Sunset Commission also adopted important recommendations to assure quality control at laboratories that do environmental testing, to bolster research into environmental problems and ways of addressing those problems, to improve the process of documenting communications with TNRCC commissioners, to increase TNRCC use of the Internet to communicate with and inform the public, and to address water quality issues on the Rio Grande.  The recommendations regarding water quality issues on the Rio Grande came from State Sen. Judith Zaffirini (D-Laredo), whose district borders the river.  All of these recommendations represent improvements in environmental protection.

Citizen Disappointments

The Sunset Commission missed several golden opportunities, however, to achieve major reforms of TNRCC, an agency which has been roundly and deservedly criticized by many members of the public for its close relationships with the industries the agency is directed to regulate and its failure to be truly responsive to the public.  Among the areas that the Sunset Commission did not address or addressed inadequately are the following:
 

• Public Interest Counsel.

The Commission failed to adopt several recommendations of its own staff that were supported strongly by citizens: for example, making the Public Interest Counsel independent of TNRCC through direct gubernatorial appointment of the Counsel (currently hired and fired by the TNRCC Commissioners) and authorizing OPIC to appeal TNRCC decisions to state courts.  Apparently there was support on the Sunset Commission for such recommendations but not enough to adopt the recommendation.  There are some alternative approaches apparently being discussed behind the scenes, such as housing OPIC within the Texas Attorney General's Office instead within TNRCC or creating a separate agency that would consolidate the Office of Public Utility Counsel, the Office of Public Insurance Counsel, and OPIC.  These approaches would probably have to be addressed through legislation separate from the TNRCC continuation bill in the Legislature since they deal with other agencies, and there are drawbacks (including political ones) to these alternative approaches.  Bottom line is that there was no consensus on the Sunset Commission at this time for what to do about OPIC.
 

• Restrictions on Conflicts of Interest.

The Sunset Commission failed to adopt its own staff's recommendation that persons be disqualified from being appointed to the Commission if they have received significant income from a regulated entity within two years before appointment.  In fact, no motion was even made on this recommendation, much less on the tougher citizen alternative that would have specified five instead of two years.  The failure of the Sunset Commission to adopt this very significant citizen concern about conflicts of interest is puzzling.  This should be a good government “no brainer.”
 

• Executive Director as a Party in Contested Case Proceedings.

One of the most important issues in TNRCC sunset review as far as the interested public has been concerned has been the Sunset Commission staff recommendation (strongly supported by citizens) to remove the Executive Director as a party in contested case proceedings on pollution control permits.  This situation refers really to the TNRCC technical and legal staff being represented (as agents of the Executive Director) in contested case proceedings where affected citizens are protesting a proposed permit to allow a polluter undertake some type of polluting operation.  Citizens view such a situation very harshly because the TNRCC staff basically because the agency staff essentially supports the permit applicant in such proceedings (the agency staff has already “signed off” on the draft permit, so they are obviously going to be defensive about anyone challenging the permit at that point).  This involvement by the agency staff is terribly unfair to those citizens protesting a permit.

The Sunset Commission adopted a “compromise” that eliminates the “requirement” currently in statute that the Executive Director (TNRCC staff) be a party to a contested case proceeding involving a proposed permit by the agency but leaves it to the discretion of the Executive Director as to whether or not he or she will be a party.  This compromise is hardly acceptable to citizens, and it's probably not favored by TNRCC either who would not be able to hide behind the cover of “well, we're required to be a party in a contested case proceeding.”  There are better alternatives that would allow the TNRCC staff to provide any needed information in a proceeding without being a party with a position on the outcome of the case and/or that would allow an objective entity such as the administrative law judge handling the case (who works for the State Office of Administrative Hearings, not TNRCC) to decide when the Executive Director ought to be a party in such a case.
 

• Mission of the Agency.

The Sunset Commission did not take action on suggestions by citizens that the mission of TNRCC be clearly defined only as protection of public health and the environment, not also promotion of economic development.
 

• Funding Issues.

Basically all funding issues were punted by the Sunset Commission to the House Appropriations Committee and the Senate Finance Committee and the substantive House and Senate committees that usually write legislation dealing with funding sources for TNRCC.  Although a number of good recommendations with regard to funding were advanced by the Sunset Commission staff and supported by a number of Sunset Commissioners, they will not automatically be part of the TNRCC continuation bill, although some might be added as amendments during the legislative process.

The Future

The focus now turns to TNRCC itself for implementation of management recommendations made by the Sunset Commission and to the upcoming state legislative session for pursuit of the statutory recommendations made by the Commission.  One thing needs to be stressed: the Sunset Commission adoption of its recommendations is only one step in the long process of deciding the future of a state agency.  In order for TNRCC to be continued, legislation affirmatively continuing the agency must be enacted by the Legislature next year.  All of the issues raised by citizens during the sunset review process this year can and will be raised during the legislative process this coming spring.

The Public Interest Sunset Working Group, an informal coalition of a number of statewide and regional organizations (including the Lone Star Chapter of the Sierra Club) working with community groups around the state, will continue to be active in fighting for necessary reforms of TNRCC.  Interested citizens will have plenty of opportunity during the next few months and the 2001 Legislative Session to continue to let their elected officials know what additional reforms are needed to  make TNRCC fully responsive to citizen concerns.

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