OVERVIEW OF SUNSET ADVISORY COMMISSION STAFF REPORT ON THE TEXAS NATURAL RESOURCE CONSERVATION COMMISISON

The Public Interest Sunset Working Group appreciates the extensive effort made by the Sunset Commission staff in examining and evaluating an agency as complex as the Texas Natural Resource Conservation Commission (TNRCC).  Members of our group have reviewed the staff report on TNRCC and hereby submit the following comments on the findings and recommendations of the report.

We agree with many of the recommendations made in the report, and we believe that several of these recommendations would make important changes in the policies and activities of the agency.  We must note, however, that we are disappointed that the report and recommendations do not deal with a number of critical issues which we have identified in the past as obstacles to achieving a high level of environmental and public health protection for all Texans.

Texas’ dramatic rankings on pollution indicators (such as first among the states in toxic air emissions from manufacturing industries) and our abysmal rankings on pollution control spending (such as 47th among the states in per capita spending on water quality programs) cry out for major changes at TNRCC.  Adoption of the recommendations in the Sunset Commission staff report however are not likely to lead to significant alterations in those rankings.  Moreover, an expansion of the “regulatory flexibility” and “voluntary compliance” efforts of the agency as envisioned in the staff report might well negate some of the progress that could be made through adopting other recommendations in the report.

Our comments detail our agreement or disagreement with the specific recommendations of the report.  Where relevant and appropriate, we have made suggestions for revisions in those recommendations.  We have also included in our comments a separate section on those areas which we feel have not been addressed by the staff report but which deserve to be considered by the Sunset Advisory Commission members.

In general, we wish to emphasize that we believe major changes are needed to assure that TNRCC will be an agency whose sole mission is to protect the public health and the environment in our state, not to promote economic development.  While we believe that some of the recommendations made by the staff move us toward that goal, other recommendations such as those dealing with “regulatory flexibility” and “voluntary compliance” appear to be more directed at promoting business and industry and not at protecting the environment and public health.

The Sunset Commission needs to recognize clearly that important progress has been made in addressing many sources of air and water pollution over the last thirty years as a result of traditional regulatory programs.  A good example of that progress is the dramatic reduction in airborne lead levels since the 1970s as a result of regulatory requirements.  To take the focus away from such successful regulatory efforts and move toward concepts embodied by the popular buzzwords of “regulatory flexibility” and “voluntary compliance” is to threaten future progress in environmental improvements.

The problem with the traditional regulatory approach in Texas is not the approach itself.  Rather, the problems are more a result of inadequate implementation, including: the failure to provide adequate funding to implement core programs; the failure to be consistent and aggressive in enforcing regulatory requirements; the frequent undue influence of the regulated community on the development of agency policies and rules; and the questionable “flexibility” that already exists in pollution control programs at TNRCC.

Regulatory programs at TNRCC are already replete with flexibility, much of which can and has been used to avoid more stringent pollution control requirements. Most TNRCC permit programs allow for site- or facility-specific variances or waivers and many programs allow for “registrations” in lieu of permits or exempt certain types of sources from any permitting requirements at all.  We have the voluntary clean-up program; the environmental audit program; the pollution control tax exemptions; the regulatory flexibility program; flexible permits; emission trading and banking; supplemental environmental projects in lieu of penalties and many other “flexible” programs.

The focus should be on evaluating whether the current “flexible” programs are really providing any environmental or public health benefit, rather than on expanding such approaches at this time.

The Public Interest Sunset Working Group, in coordination with more than twenty community groups from across the state, developed a set of principles for reforming the TNRCC.  Some of these principles are addressed affirmatively in the staff report and recommendations; others are not.  We have appended our letter to the Sunset Commission staff that included the ten principles, and we respectfully ask that the Commission members evaluate the staff report in the context of those principles.

As always, we are available to clarify or expand our comments on the issues that we have raised during the sunset review of TNRCC.  We appreciate the time and attention given to our views by the Sunset Commission staff and individual Commission members and their staff.  We look forward to working with the Commission further to develop a final report and set of recommendations on TNRCC that will mark a major step forward in achieving a clean environment for our families and for our future.
 
 

Public Interest Sunset Working Group includes: * Consumers Union * Law Office of Henry, Lowerre & Frederick * League of Women  Voters of Texas * Environmental Defense * National Wildlife Federation * Sustainable Envrionmental and Economic Development Coalition * Sierra Club, Lone Star Chapter * Texas Center for Policy Studies * Texas Committe on Natural Resources * Texas Citizen Action * Texas Clean Water Action *Public Citizen * Public Employees for Environmental Responsibility * 4006 Speedway, Austin, TX 78751 * phone 512-454-3050 * fax 512-454-6231 * http://www.texascenter.org/sunset.index

Recommendation 1.1:

Require the Commission to distinguish regulatory tiers based upon levels of compliance with environmental regulations.

Recommendation 1.2:

Require the Commission to offer incentives within each regulatory tier that are proportional to the levels of compliance.

We disagree with these recommendations.

All entities regulated by TNRCC should be expected to comply with the laws, rules, and permit conditions that apply to them – without exception.  There is no justification for providing a regulated entity which rates consistently “high” in compliance with anything other than recognition for its good compliance record and favorable consideration of its applications for new permits or for permit renewals, modifications, and expansions or new permits.  Moreover, there is certainly no justification for regulated entities “who generally comply with regulations but may not have perfect records” to receive any rewards from the agency.

If any incentives are to be provided to regulated entities those incentives should go only to those entities who commit to go beyond the requirements of regulatory law and follow through on their commitments  -- for example, those wastewater dischargers who implement higher treatment standards for their discharges than those usually required or those industrial plants who reduce their emissions of air pollutants below the emission levels usually allowed for similar plants.  In other words, reward those who do more than what is required, not those who simply obey the law.

Texas faces enormous problems with air pollution in major metropolitan areas and water pollution in a number of streams and lakes throughout the state.  We need to provide incentives only to those sources of pollution willing to take bold and responsible action to reduce dramatically the emissions into our air and the pollution load on our waters.  We should not reward those who simply act to maintain the status quo.

Recommendation 1.3

Expand the scope of the Waste Reduction Advisory Committee to advise agency staff and the Commission on the implementation of a regulatory structure based on performance.

We generally agree with the concept of expanding the scope of the Waste Advisory Committee to apply to all media (not just waste) and to include consideration of possible performance-based measures.  We generally disagree, however, with the implication that the regulatory structure of the agency needs to be more “incentive- and performance-based in order to be effective in achieving environmental results” unless TNRCC makes a commitment that such incentives are tied only to performance “above and beyond the call of duty” that will lead to measurable improvements in air and water quality.

Suggested Modification:  The Waste Reduction Advisory Committee should be renamed the Pollution Prevention Advisory Committee.  The Committee should undertake an active outreach effort to gather public input from citizens around the state regarding measures that TNRCC should take to foster pollution prevention by regulated entities.

Recommendation 1.4

Require the agency to coordinate all regulatory innovation programs and projects through one office.

We generally agree with this recommendation in that higher levels of accountability and consistency in “regulatory innovation” are likely to be achieved if the agency has a coordinating office to oversee the implementation of such programs and projects. Our general agreement with this recommendation is contingent on a policy of the agency that promotes innovation only when it includes a commitment and follow-through to achieving dramatic reductions in pollution releases to the environment.

Suggested Modification: The coordinating office should be adequately funded (but not by raiding core programs) and be responsible for establishing criteria by which to evaluate the success of any “regulatory innovation” programs and projects in reducing pollution releases to the environment, using specific performance measures to demonstrate real progress.  The office should produce an annual report documenting actual reductions in pollution releases resulting from regulatory innovation programs and projects.

Recommendation 1.5

Encourage the use of environmental management systems and expand opportunities for public participation.

We generally support the use of environmental management systems as a complement to but not a substitute for an active agency enforcement effort to achieve compliance with all pollution control laws, rules, and permit conditions.  For example, adoption of such a management system should not exempt a permit holder from regular inspections by agency field staff.  We support any expansion of opportunities for public participation in agency programs, but these opportunities must be meaningful and significant rather than the mere “window dressing” that many TNRCC public participation efforts have been in the past.  The Sunset Commission should give TNRCC specific direction regarding public participation activities since previous broad directives to the agency have often resulted in no meaningful public participation.

Suggested Modification:  All major regulated entities should be required to implement an environmental management system as a condition of receiving a permit or permit renewal from TNRCC.

Recommendation 2.1:

Require the Commission to develop a common definition for compliance history.

We believe the recommendation should be modified

While we agree that there must be a common definition for compliance history, we disagree that this should be developed by the Commission via a rulemaking process.

Instead, a uniform statute applicable to all TNRCC programs should be enacted defining compliance history.  Existing statutes containing vague and unenforceable definitions of compliance history should be repealed. Otherwise the agency may craft a rule merely embodying present and, as made abundantly clear in the Report, ineffective agency policy concerning compliance history. A statute should spell out items to be included in the definition of compliance history – 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 for violation of any environmental statute, ordinance, regulation, court or agency order or license provision; and all actions resulting in agency orders, including consent orders, consent agreements and settlement agreements. The definition should be inclusive not limiting. Texas Water Code § 7.070(3), allowing some agreed orders to be exempt from consideration as part of an entity’s compliance history, should be repealed.

Recommendation 2.2:

Require TNRCC to track and report the compliance history of all regulated entities.

We agree with the recommendation.

Recommendation 2.3:

Require TNRCC to develop a performance assessment for regulated entities to determine eligibility for innovative programs and to establish permit and enforcement guidelines.

We disagree. The report should be modified to recommend the following:
 

• the enactment of uniform “bad actor” laws for permitting and enforcement for all TNRCC programs;
• mandatory enforcement for repeat violators and mandatory referral too the Attorney General’s office for some violations; and
• better performance indicators to track performance for the enforcement programs.

Issue 2 of the Sunset Staff Report on the TNRCC (the Report) correctly identifies the need for a common or consistent definition for compliance history and the need for the TNRCC to monitor and report the compliance history of all regulated entities. The Report veers off track, however, by recommending the development of a more coordinated compliance history program for purposes of determining the eligibility of regulated entities for innovative programs.  The Report states that its recommendation for innovative new performance-based programs “would not eliminate the traditional regulatory structure” and that “the traditional structure would serve as the foundation for a more innovative structure.”  Nevertheless, the Report only vaguely recommends that the agency should determine how compliance history is to be used in existing permitting and enforcement programs by developing guidelines. This recommendation is inadequate to address the problems identified in the Report.

The Report contains ample information documenting the failure of the TNRCC’s permitting and enforcement programs to address serious and repeat violators. For example, under Issue 2, the Report notes the agency has never once denied a permit based upon compliance history, despite statutory authority in some, though not all programs, to do so.  According to the Report, the TNRCC cannot centrally track compliance history on repeat violators or the percentage of all violations committed by repeat violators.  The Report cites the increasing percentage of enforcement actions against entities with prior orders, however, suggesting “that the agency’s enforcement actions are not successful in bringing the violators into compliance.”  The Report describes in the discussion of Issue 4 the TNRCC’s failure to distinguish between new and repeat violators for announced versus unannounced inspections and the agency’s failure to limit exceptions from enforcement for entities with chronic upsets.  According to the Report, Issue 9, the agency refuses to accept valid citizen information concerning violations and prohibits citizens from participating in enforcement actions while agency inspectors never work “after hours.”  As a result, significant violations have been completely ignored by the TNRCC.  A chart on p.155 of the Report illustrates that in 1999 only approximately 5% of Notices of Violation issued result in Administrative Enforcement Orders.  An additional 4% were resolved informally (thus presumably no compliance history was created for the entities involved according to agency policy).  Only about 24% of Notices of Violation issued resulted in any enforcement activity by the agency. Despite this stunning background information, the Report disappointingly fails to make meaningful recommendations for the use of compliance history to address serious or repeat violations.

We support the recommendation that compliance history be considered in determining an entity’s eligibility for such programs as SEP, regulatory flexibility and flexible permits.  But, that is only part of the remedy needed to address the problems identified by the staff report and in our comments to the Sunset Commission staff.

Need for Uniform “Bad Actor” laws
Clearly from the Report, the agency does not currently have comprehensive and consistent compliance history information on the entities that it regulates.  Not only must compliance history be defined, but the agency must also demonstrate resolve to apply the definition in its traditional regulatory programs.  Currently the agency in effect has no compliance history to apply to existing, much less innovative programs.  Before recommending the launching of innovative new programs using compliance history, the Report should have recommended basic statutory tools and programs needed to address serious and repeat violators that, clearly from the Report itself, continue to operate in the Texas without being held accountable for the repercussions from their actions.

The Report ignores serious inconsistencies and deficiencies in the agency’s existing statutes intended to authorize the agency to deny a permit based on the applicant’s compliance history.   Effective “bad actor” laws are needed that are consistent for all agency programs to authorize the agency to deny permits based upon compliance history.  The current statutes cited in the Report in footnote 1 to Issue 2 were enacted piecemeal when several environmental agencies still existed (before formation of the TNRCC).  Not all agency programs are covered by these statutes. Thus, for some programs, a permit may not be denied despite a long history of noncompliance.  Existing statutory standards for denial of some air, water and waste permits vary widely.  A uniform statute is needed for Chapter 5 of the Water Code that includes requirements for permit applicants to disclose their environmental compliance history, that clearly defines repeat violations and authorizes the TNRCC to deny permits based upon current or repeat violations of environmental laws, unless for a current violation, the violator submits proof that the violations have been substantially corrected.  Water Code Chapter 7, Subchapter G currently contains provisions for the revocation or suspension of a permit issued by the TNRCC. Grounds for these agency actions should be revised to be consistent with grounds for denial of a permit set forth in a uniform provision.

Mandatory Enforcement for Repeat Violators
Particularly against the Report’s backdrop of consistent TNRCC failure to address effectively repeat or chronic violations, agency enforcement against repeat violators should be made mandatory.  In certain egregious situations, depending on the seriousness of the violation, threats to the environment or human health, and/or a violator’s apparent ongoing disregard for the state’s laws, referral to the Attorney General’s Office for enforcement in court should be required.  The Report should have recommended mandatory enforcement against repeat violators and mandatory referral to the Attorney General’s Office for repeat violations.

Improved Performance Indicators
The Report failed to take advantage of the state’s strategic planning scheme to recommend specific and meaningful performance measures that could strengthen the agency’s existing enforcement programs and address some of the problems cited in the Report.  Certain of the agency’s current enforcement measures actually aid in the ineffectiveness of its enforcement programs and should be overhauled.  For example, one of the agency’s existing enforcement performance measures actually creates a disincentive to inspect facilities. The agency currently does not measure the concrete results of its inspection program.  No performance measure requires the reporting of numbers of NOVs issued (information like that reported in the table on page 155 of the Report should be included in the agency’s performance measures.)  The agency must be held accountable for the work it performs and the expenditures it makes and must have specific performance measures that reflect the effectiveness of its programs, including its enforcement programs.

One can conclude from the Report that the TNRCC’s approach to enforcement against repeat violators these past several years has been “see no evil, hear no evil, speak no evil.” The Report’s lopsided recommendation for the use of compliance history for purposes of launching innovative programs without addressing the basic changes needed in the enforcement statutes, programs and performance measures related to those enforcement programs fails to challenge the TNRCC’s unacceptable approach.  In the absence of strengthened basic enforcement and permitting tools and an agency willing to use those tools, repeat and serious violations of the state’s environmental laws will continue to go virtually unremedied.  Meanwhile the state’s air and water resources will continue to deteriorate despite expenditure of state funds meant to protect those resources.

Recommendation 3.1:

Require TNRCC to use compliance performance when determining eligibility for participation in its innovative regulatory programs, including the following performance standards:

• require entities participating in the regulatory flexibility program to demonstrate the highest level of environmental compliance performance to be eligible;
• prohibit participation in the SEP program by entities with the poorest level of environmental compliance performance;
• require entities participating in the flexible permit program to have a better-than-average environmental compliance performance, compared to those entities that receive a standard permit.

Recommendation 3.2:

Require entities to show a clear environmental benefit to participate in the agency’s regulatory flexibility and SEP programs.

We agree with the basic emphasis of this recommendation, but it does not sufficiently address the problems with the regulatory flexibility and the SEP programs.

Suggested modifications:
 

• Regulatory flexibility program: the staff recommendation states that entities should be required to show a “clear environmental benefit” in order to participate in this program.  We believe that entities should have to demonstrate that they would exceed current environmental performance standards in order to participate in the regulatory flexibility program.  Administration of this program can take a significant amount of TNRCC resources—resources that could be instead used to meet the basic requirements of other TNRCC programs.  If resources are to be diverted away from basic permitting to deal with regulatory flexibility applications, then the state and the public should be assured there is some public value in that diversion.  Demonstrating that the “flexible” approach will result in greater environmental benefit than current standards would provide that assurance.

• SEP program: we agree with the staff’s recommendations that SEPs must have a clear environmental benefit and a direct correlation to the violation; we also agree with the recommendation that TNRCC should be prohibited from approving SEPs that have indirect environmental benefits or that solely or primarily benefit the entity that has violated the law.  However, we believe this recommendation should be expanded to include the following items:

• TNRCC should be prohibited from authorizing SEPs that the respondent has already agreed to perform under a pre-existing agreement with a governmental agency (i.e. prohibit “double-counting”);

• TNRCC should be prohibited from authorizing SEPs with private (e.g.  non-governmental) violators that result in more than a 50% deferral of penalties, and the penalty imposed must assure that the state recovers any economic benefit the violator may have gained by non-compliance;
• In order to aid in tracking the use of SEPs and in adequate follow-up, the administrative penalty orders in SEP cases should clearly and specifically describe the SEP, the environmental benefit expected and any economic benefit the violator may receive through the SEP; and
• TNRCC should be required to consult with local government enforcement personnel before negotiating any SEP in the local government’s jurisdiction.

Recommendation 3.3:

Expand marketing, public education, and technical assistance for TNRCC’s innovative regulatory programs.

We generally disagree with this recommendation.

As the Sunset staff report and other analyses have made abundantly clear, TNRCC resources for basic permitting and enforcement are already over-taxed.  Adding requirements for devoting staff to outreach and technical assistance for “innovative” programs cannot be a priority until the basic regulatory functions of permitting and enforcement can be fully met.  We do not, of course, object to TNRCC explaining program requirements in plain language or making information on the programs available on the website or in other existing publications.

Recommendation 3.4:

Improve accountability and controls for supplemental environmental projects and publish staff precedents and intepretations for innovative regulatory programs.

We agree, though we note that it may not always be appropriate to use third-party SEPs if the SEP is to relate more directly to the violation.  We strongly argue that more follow-up of SEPs is necessary.  (see comment on Recommendation 3.2, above, regarding content of SEP administrative orders).

Recommendation 3.5:

Expand opportunities for public participation with innovative regulatory programs.

We agree with the intent of this recommendation, but we believe the Sunset commission should provide specific recommendations on how the public can better participate in these programs, rather than just “encouraging” TNRCC to do so.  Options could include:

• requiring public notice of regulatory flexibility applications and proposed SEPs be posted on the agency's website in advance of the decisions;
• mail notice to appropriate local government and interested parties of regulatory flexibility applications and proposed SEPs;
• require TNRCC to report to the legislature in 2003 on how it has incorporated public participation into the innovative regulatory programs; and
• require State Auditor to audit TNRCC’s regulatory flexibility and SEP programs for a report to the 2003 legislature in order to determine the programs’ impact on state resources

Recommendation 4.1:

Require regulated entities to demonstrate a good compliance history before receiving announced inspections.

Recommendation 4.2:

Require the agency to track whether inspections are announced or unannounced.

We generally agree with these recommendations, but please refer to our comments on the definition of compliance history under Issue 2.

Recommendation 4.3:

Require the agency to track and report the occurrences of all upset emissions.

We generally agree with this recommendation.

An additional relevant consideration is that not all “accidental” releases are required to be reported to TNRCC, especially if they fall below the reporting thresholds for certain noxious and toxic compounds.  For example, hydrogen sulfide gas is a relatively common gaseous pollutant emitted routinely from several hundred oil and natural gas processing facilities in Texas and a substance that triggers hundreds of citizen complaints to the TNRCC each year. In the past, TNRCC had required the reporting of all upset emissions regardless of the volume.  However, the upset reporting rules were changed in 1997 and a trigger threshold was adopted. But a very small amount of hydrogen sulfide gas accidentally released (but calculated by a plant to be below the TNRCC reporting trigger threshold) can prompt citizen complaints alleging health and odor impacts even at low levels below which the release is a "non-reportable" upset event to the TNRCC.

Recommendation 4.4:

Limit exemptions from possible enforcement for entities with chronic number of upsets.

We agree. The volume and toxicity of upsets should also be considered, as should the volume and toxicity of releases during maintenance, start-ups and shut-downs.

The number of upsets is clearly a significant part of the problem with these emissions, but the volume plays a key role as well if there are large volume releases and particularly large-scale flaring occurring. Certain types of plants do experience high volume upsets and so the volumes need to be considered along with the number of upsets. For example, EPA Region 6 Dallas conducted a special database review of all Region 6 upsets from 1994-98 and calculated (using its ERNS database) that approximately 50% of all Region 6 accidental releases were from only eleven plants in Texas (six plants located in Texas) and Louisiana (had five of the plants). Now EPA Region 6 is working in a purely voluntary effort to encourage the eleven plants to find ways to address the number and volumes of upsets and other excess emissions events such as maintenance, startups, shutdowns.

Another example comes from Houston area residents in Channelview who have been participating, primarily at their request, in a community advisory panel with two large chemical complexes along the Houston Ship Channel to reduce both the numbers and volumes of upsets involving toxic chemicals (includes known human carcinogens like benzene and 1,3-butadiene).   The two companies are making a significant voluntary effort to find creative and reasonably cost-effective ways to reduce volumes and numbers of upsets by operating and maintaining their large facilities in a more efficient manner.

Recommendation 4.5

Companies with high numbers of upsets should automatically receive inspections.

We agree.

Targeting plants with chronic upset problems will significantly aide in addressing community concerns and complaints about these excess emissions. Applying these recommendations will greatly assist the agency's effort to respond to citizen complaints associated with upset events, since rarely are violations issued resulting from citizens complaining about upset emissions.
 
 

Recommendation 5.1:

Require TNRCC to adopt rules to implement a voluntary environmental laboratory accreditation program consistent with national standards.

We agree.

Recommendation 5.2:

Transfer the Safe Drinking Water Lab Assessment Program from the Texas Department of Health to consolidate it with the new accreditation program at TNRCC.

We agree.

Recommendation 5.3:

Require TNRCC to only accept data and analyses from accredited labs for all decisions affecting permitting, compliance, enforcement and corrective action.

We agree.  In support of this recommendation, we note that TNRCC has been requiring citizen data from voluntary programs, such as Texas Watch (citizen sampling of water quality) to be from an accredited lab.  Even then, TNRCC has been reluctant to use this data in water quality decisions, such as the Total Maximum Daily Load (TMDL) program.  Thus, industry data should be held to at least the same standard as citizen-generated data.

Recommendation 5.4:

Exempt on-site or in-house labs from the accreditation requirement.

We disagree.  Data from on-site or in-house labs is just as, if not more, essential to TNRCC decision-making than data from commercial labs, given that many permitting and enforcement decisions are based on “self-reporting” data.  An on-site or in-house lab should be exempted from accreditation requirements only if TNRCC can assure that the lab is inspected at least annually as part of the compliance inspection program.

Recommendation 5.5:

Authorize agency to assess laboratory accreditation fees sufficient to recover program administration costs.

We agree.
 

Recommendation 6.1

Require TNRCC to coordinate and facilitate agency research needs and efforts.

Recommendation 6.2

Require TNRCC to report to the Legislature on its ongoing research efforts and outcomes.

We agree in general with both recommendations.

There is a need for the agency to coordinate and facilitate comprehensive research on the long-term impacts of pollution and report its findings to the Legislature as part of its yearly report.

However, the recommendation to foster efforts on additional research must not undermine the need to improve current research necessary to support TNRCC's core programs. Instead, a new division should focus on coordinating both present and long-term research needs

There are serious shortcomings today within present programs because of the failure to conduct adequate monitoring and research. This is especially apparent in the water quality program. Overall, the state monitors only  36% of the total miles of its perennial streams and rivers, and only  51% of acres of its reservoirs at its fixed monitoring stations. . In addition, at its surface water monitoring stations, monitoring for toxics such as pesticides in water, sediment and tissue is extremely limited. For example, in 1996, only two monitoring stations sampled for pesticides in water, as compared to 27 in 1985.   Inspections of wastewater treatment plants and public water utilities have declined over time, with only approximately 30 percent of wastewater treatment facilities being inspected in 1995.

In addition, while TNRCC must consider cumulative impacts of toxics when considering air permit applications or renewals, in practice, it lacks the research capability or knowledge to determine to what extent cumulative impacts of pollutants affect public health and the environment. Moreover, TNRCC currently bases many of its air permit and enforcement decisions on ESLs -- Effects Screening Levels -- even though the research does not exist to establish whether these are protective of public health. There is an immediate need to focus research and efforts on the areas of cumulative impacts and setting emission levels that are truly protective of public health.

Thus, any new "research" division must coordinate with the various core programs within TNRCC to focus attention upon these types of present needs and search for funding or earmark present funding.

In addition, the TNRCC could focus long-term research on areas that are likely to be the subject of future regulations. For example, TNRCC has not conducted an overall emissions inventory of carbon dioxide and other global warming gases, nor has it conducted or coordinated research on the likely impacts of global warming in Texas, despite international agreements obligating the U.S. to reduce its emissions of global warming gases. The creation of a separate research arm could point the agency toward such emerging issues and prepare them for regulatory programs.

We also agree that a particular focus must be upon coordinating with TDH in its mandate to conduct toxicological and epidemiological investigations of human illness resulting from environmental exposures. There are serious shortcomings in TDH programs, which have an impact on TNRCC's regulatory effectiveness. For example, TDH has the statutory obligation to determine whether or not to declare fish consumption advisories and bans, based upon fish tissue testing. However, there is presently a lack of coordinated planning and testing of fish between the two agencies, and an office of research might help focus efforts on those waterbodies where public health concerns necessitate further research.

Finally, while we obviously recognize the need to coordinate with university participation in any long-term research program, there is a need to involve the wider public in general. If an advisory board it to be created, it should include both representatives of the regulated community as well as at-large public representatives, in addition to academic representatives.

As mentioned elsewhere in these comments, however, we can not fully support earmarking funds for such a division through flexibility -- a 5 or 10% set-aside -- until the core programs are adequately funded (see comments on Issue # 10).
 

Recommendation 7.1:

Strengthen the Office of Public Interest Council:

• Require the Governor to appoint the Public Interest Counsel with the advice and consent of the Senate.
• Specify that the role of the Public Interest Counsel  includes representing the public’s interest in the development of agency rules and policies.
• Authorize the Public Interest Counsel to appeal a decision of the Commission in court.
• Authorize the Public Interest Counsel to use technical support outside of the agency where the potential for conflict exists between it and the Executive Director.

Recommendation 7.2:

Disqualify persons from being appointed to the Commission if they have received significant income from a regulated entity within two years before appointment.

We agree, but believe the recommendation should be modified.

We agree that the with the recommendation in issue 7.2 of the Sunset Staff Report on the TNRCC (the Report) to apply the same types of eligibility limitations on persons appointed to be TNRCC Commissioners that currently exist for appointees to the state’s Public Utility Commission and to codify and expand the existing provision applicable upon delegation of the Texas Pollutant Discharge Elimination System (TPDES) to persons with similar ties to an entity or entities regulated under the agency’s air and waste programs. As the Report recognizes, the current Legislative guidance for the TNRCC ”is incomplete.”

A revised statute, however, must also include eligibility restrictions on key agency employees (for example, the Executive Director), however, who make significant final decisions in some matters independent of the Commissioners or who advise the Commissioners (for example, the General Counsel.)   Also, a period of five or even ten years should be recommended for the TNRCC rather than just the two-year period recommended. Finally, Water Code § 5.059 should be revised in a manner similar to the Public Utility Regulatory Act § 12.151, and this revised statute should also be made applicable to key TNRCC employees.

Recommendation 7.3:

Require the agency to trace and report the composition and use of Commission-appointed and staff-level advisory committees, work groups and task forces.

Recommendation 7.4:

Require advisory committees, workgroups, and task forces to be composed of balanced representation of affected stakeholders.

We agree.  We believe, however, that rules developed with completely unbalanced advisory committees should be subject to possible challenge through a declaratory judgment action.  The whole point of the recommendation is to make sure the committees are balanced (something the legislature directed TNRCC to do several years ago).  Such a directive loses its effectiveness if there is no remedy for affected citizens when the directive is ignored.

Recommendation 7.5:

TNRCC should use the Internet to promote public participation and access to agency information.

We agree.  We suggest also that the Commission take and post minutes of all advisory committees, work groups, and task forces on the internet and that it post notices of pending permit actions and enforcement actions on its website, in a format searchable by county and facility name.  We also believe that the TNRCC home page should be re-designed to provide more user-friendly access to the information actually contained on the site.

Recommendation 8.1:

Remove the Executive Director as a party in contested permit hearings before the Commission, but allow the Executive Director to prepare and present evidence for the Commission or the Commission’s appointed examiner.

We agree, with one modification.

The recommendation should be clarified to state that the ED will provide technical or legal information in the context of a contested case hearing only upon request of the examiner, a party to the hearing, or the Commission itself, rather than the current recommendation language of “as needed to ensure that the record before the Commission is complete.”

This is one of the staff report’s most important recommendations.  If adopted, it will help address one of the key factors that undermines citizen trust in TNRCC.

Recommendation 8.2:

Consolidate permit notice requirements in one statute.

We agree, provided the consolidation does not reduce any current notice requirements.
 

Clarification on current status of TNRCC regulations on public participation in enforcement contested cases: The Sunset report sates that TNRCC currently only provides for public notice and an opportunity to comment on enforcement action.  While it is true that TNRCC uses this approach for many of its enforcement cases (an approach we believe is insufficient), the agency has—under threat of legal challenge—amended its rules to allow—under certain conditions and with the approval of the administrative law judge--an “affected person” to participate in a contested case enforcement hearing under the wastewater discharge (TPDES) and underground injection control (UIC) programs.  (See 30 Tex. Admin. Code Sec. 80.105).  The opportunity to participate in this type of hearing on an enforcement matter does, of course, depend on the alleged violator first asking for a contested case hearing.  An “affected person” cannot himself initiate the contested case process.

Comment:  The Sunset staff report does an admirable job of identifying and documenting some of the serious problems with TNRCC’s enforcement program, especially in light of the deficiencies in TNRCC’s complaint data base.  We urge the Commission, however, to pay particular attention to the table on page 80, regarding TNRCC Complaint Priorities.  This table shows that only complaints that pose an “imminent threat to public health and safety” or a “high level of political, media or public concern” are investigated immediately.  Others can languish anywhere from 10 to 30 days to “as schedules allow”.

The Sunset Commission’s Staff Report Table on page 80 outlines the criteria for prioritizing the complaints on a scale of one to five.  According to this table and the TNRCC Mini-manual on this topic, complaints which pose an imminent or potential threat to public health and safety should be coded as a “1” or “2.”  However a review by public interest groups of the complaint records from 1996 through 1999 has shown that the plurality of health complaints were coded as a “3” and many others were given a priority of “4” or “5.”
 
 

Priority Assigned	Complaints of Health Effects	Percentage
1	707	11.9
2	2048	34.7
3	2223	37.6
4	543	9.1
5	386	6.5
Total	5907

 *An additional 18 health complaints had no priority assigned.

The review also showed that many of the 3118 health complaints with a code of 3, 4 or 5 were later found to have some merit.  A total of 706 (22.6%) were coded as an Enforcement Action Referral, Regional Enforcement Action, Violation Issued & Resolved or Violation Issued.

No wonder citizens throughout Texas are so frustrated with TNRCC enforcement.  To base response time on whether the matter is “political” or has “media” attention is bad enough, as most average citizens who call to complain about a pollution incident haven’t first organized a media or political campaign.  Moreover, the lengthy response times and the failure to even respond at all to some types of complaints clearly illustrate that TNRCC enforcement efforts are either: (1) under-funded or (2) overall, a very low priority for the agency.

Recommendation 9.1:

Require TNRCC to conduct an annual assessment of complaints filed with the agency.

We agree.  This type of assessment is vital to legislative and public oversight of whether TNRCC is effectively responding to citizen complaints.  Public interest groups are currently conducting a review of information in the TNRCC complaints data base.  Early problems identified include: a failure to clearly relate complaints to specific permit account numbers; inaccurate and inconsistent reporting of the number of complaints related to the same incident; and frequent failure to treat phone calls about incidents as formal complaints. We will provide the Sunset Commission with more detailed recommendations, based on this assessment, in the near future.

TNRCC could also facilitate the citizen complaint process by: (1) publicizing the new 1-800 hotline number that is has adopted under direction from the 1999 legislature and (2) providing clear direction on the home page of its web site for citizen e-mail inquires or complaints regarding pollution incidents.

Recommendation 9.2:

Require the agency to enhance coordination of complaint investigations with local officials.

We agree, and this coordination should extend to any enforcement action that may arise out of the incident.

Recommendation 9.3:

Require the agency to implement policies to respond to complaints after normal business hours.

We agree with the intent of this recommendation.  While we agree with the intent of this recommendation, we do not believe that TNRCC currently has sufficient enforcement resources to effectively comply with this mandate.  Just working “flex-time” is still unlikely to provide inspection coverage for incidents that occur late at night or on weekends.  Clearly, more inspectors are needed.

One way this issue could be addressed is through the staff’s recommendation that the agency accept citizen evidence regarding complaints (videos, affidavits, photos, samples etc.).  The agency could also work with non-governmental organizations and universities to offer some training for citizens as to how to properly document environmental pollution incidents.  This would extend the extremely limited staff resources currently available for enforcement.

We also believe that the Sunset Commission should direct TNRCC to provide it with information on the resources the Commission would need to respond promptly to all complaints that involve potential threats to the public health, safety or the environment.  Even if the Sunset Commission itself does not want to get into “appropriation” type recommendations on this issue, getting such information is an important opportunity to understand the TNRCC’s real needs and to inform the public and the legislature of these needs.  If TNRCC claims it has sufficient resources, then it should revise its response priority policy to guarantee swift response (i.e immediately to 2 to 3 days) response on all complaints involving potential threats to public health, safety or the environment.

Recommendation 9.4:

Require the Commission to implement policies allowing a complainant to collect credible evidence for use by the Commission in enforcement actions.

We agree.  We also think that in appropriate cases TNRCC should use citizen evidence that might not meet “judicial” standards, but that otherwise appears credible to conduct appropriate follow-up investigations of its own.  This is as much of an “attitude” problem toward citizen evidence and complaints as it is a matter of statutory authority or direction.  In any case, TNRCC needs to clearly communicate to citizens what type of evidence it will consider “credible”.

TNRCC could also facilitate collection of credible citizen evidence by providing citizens with free training (e.g. opacity observation) or sampling equipment (e.g. air sampling canisters, water testing equipment) in areas where there are recurring incidents.

Recommendation 9.5:

Require the Commission to use cumulative complaint information in the agency’s permitting process.

We agree.  This recommendation is closely tied to the recommendation that the Commission establish better methods for tracking complaints.

Recommendation 9.6:

Require the Commission to enhance public notice of agency enforcement actions.

We agree.  However, we believe that the Commission should recommend specific statutory language regarding public notice of agency enforcement action, including the appropriate methods of notice.  At a minimum, citizens who have filed a complaint against the company that results in an enforcement action should get mailed notice of the enforcement action (before it is finalized).  Also, citizens who make a complaint should be regularly provided with specific information on the stage of the Commission’s investigation of and/or action on the complaint (i.e. exactly what stage of the process the complaint is in).

The initial assessment of the complaint data base by public interest groups indicates that many complainants are never told what the Agency does after the complaint is made.  The TNRCC database revealed that from 1996 through 1999, most complainants never receive a letter from the Agency informing them of the result of the complaint.
 
 

Year	Total Complaints Recorded	Final Letter Sent	No Final Letter Sent	% No Final Letter Sent
1996	9322	2165	7157	76.8%
1997	9049	2150	6899	76.2%
1998	8691	1770	6921	79.6%
1999	8482	1643	6839	80.6%

Anecdotal evidence indicates that even citizens who have made complaints and specifically asked that they be informed of the progress of complaint or enforcement actions were not kept apprised as requested.

With good record-keeping, the Commission should also be able to know when citizens have had a recurring set of problems with a facility and notify those citizens by mail when there is a proposed enforcement action that might be related to their complaints.   Also, the Commission should be required to post all pending enforcement actions (before they are finalized) on the web, in a format searchable by zip code or county and facility name.

Recommendation 9.7:

Authorize affected persons to intervene in agency enforcement actions that impact their health or property.

We agree.  However, we believe that the Commission should be directed just to extend the current rules for participation in agency contested case hearings to all types of permits.  We believe such participation is legally required under federal law for hazardous waste and air permits (as well as wastewater discharge and UIC permits, for which such provisions are in place in TNRCC rules.)

Overall Comments:

The current fee structure fails to provide adequate funding for some key TNRCC programs, particularly for water quality and drinking water protection. As a result, Texas ranks 46th in the country in terms of per capita spending on the environment.   Funding core programs of TNRCC should be a top priority, an essential step before addressing funding flexibility.

Without adequate funding, core programs at TNRCC will continue to suffer and the agency will take more steps that reduce regulatory oversight and enforcement, reduce public participation in permitting and reduce efforts to monitor the quality of the Texas environment. In addition, most of the fees that TNRCC collects do not include sufficient incentives for pollution reduction, and several of the current fees impose higher proportional costs on smaller operators. Fee statues should be revised to (1) ensure adequate funding of all core programs, with a focus on “polluter pays” fees, and (2) incorporate sufficient incentives for pollution reduction.

Also, the use of “excess” revenue from various environmental fees—such as the TNRCC’s dedicated revenue sub accounts in the state’s general revenue fund—should be used to fund all core programs, not to certify that the state budget is balanced. Adjusting the fee structure of the air program (Recommendations 10.4 and 10.5) and water quality programs (not covered by the Recommendations) are important reforms that would significantly improve existing problems with TNRCC’s funding structure.

Recommendation 10.1:

Authorize TNRCC to reserve a percentage of fee revenues to provide for the expansion of compliance assistance, multi-media activities, research, and innovative regulatory programs.

We disagree.  We cannot support this recommendation until the serious funding problems plaguing TNRCC’s core permitting and enforcement functions are addressed.

While it may be appropriate in the longer term to give the TNRCC more flexibility in how funds are used, this flexibility would have to be accompanied by major revision of TNRCC’s performance indicators and budget/expenditure system in order to ensure accountability.

We encourage the Sunset Commission to consider improving the accountability in budgeting and reporting before allowing TNRCC increased flexibility to shift fee revenue among programs or to use fee revenue to expand “innovative” regulatory programs.  The recommendations under Issue Eleven, for example, begin to address these concerns.

Allowing the TNRCC flexibility in its funding structure does not mean the TNRCC should reduce oversight of regulated facilities. In the past, TNRCC has used euphemisms such as “streamlining,” “flexibility,” and “prioritizing” when dealing with funding constraints to mask changes that have had the effect of reducing regulatory oversight and enforcement.

Recommendation 10.2:

Reauthorize the continuation of the Petroleum Storage Tank Remediation fee, at a lower level, to pay for petroleum storage regulations.

We agree.

Recommendation 10.3:

Require Solid Waste Disposal fee payers to select no more than two reporting methods for calculating fee revenues paid to the State.

We agree.  We support this recommendation as it would simplify reporting and reduce incentives to circumvent reporting under the law.  The recommendations under Issue Eleven begin to address these concerns as well.

Recommendation 10.4:

Adjust the Air Inspection fee for inflation and modify the fee to provide a stable base of funding to supplement declining Air Emissions fees.

We agree.  In considering options or revising the TNRCC’s funding structure, we support pursuing all of the following options:

• Adjust the Air Inspection fee rate. As the report indicates, the Air Inspection fee has not been adjusted for inflation since fiscal year 1992.

• Expand the types of businesses covered under the fee to include approximately 20 new types of business. As the report indicates, no new businesses have been added to the base of Air Inspection fee payers since 1987.

• Require all regulated air accounts to pay the inspection fee.

• Authorize the fee to be used for Title V activities.  A more detailed examination of the Air Inspection fee and Air Emissions is needed before transferring fee revenue between programs.  The Air Emissions fee is designed to support the Title V program.  Directing Inspection fee revenue to this effort would be duplicative and would divert funds from an inspection program that already fails to meet its goals.

Adjust the Air Emissions fee for inflation and modify the fee to more equitably distribute costs between large and small payers.

We agree. The revenue losses and disincentives to pollution reduction due the cap on air emission fees are significant.  Several of the fee caps give large polluters an advantage over small polluters, because larger facilities with toxic air emissions over the cap pay a much lower fee per ton of pollutant emitted.  This discrepancy results in a “Volume Discount” that encourages pollution in terms of lowering the fee these facilities pay per ton.  The chart, Average Air Pollutant Emissions Fee Rates by Ton, in the Sunset Staff report shows the average cost per ton varies from $3 or less for 4 large emitters to $26 for 1,085 small businesses. Revenue losses from the cap are also significant. For example, TNRCC estimated in 1997 that the state was loosing about $27 million per year due to the 4000 tons/pollutant cap on air emissions fees.  Restructuring the cap would: (1) generate more revenue to fund under-funded regulatory programs, (2) provide strong incentives for pollution reduction, and (3) remove the disproportionate burden of the fees on smaller entities.

In considering options or revising the TNRCC’s funding structure, we support removing the cap and creating a progressive fee rate per ton of emissions:

• Remove the cap and create a progressive fee rate per ton of emissions.   The Texas Center for Policy Studies has examined this issue in the report, Improving Environmental Responsibility in Texas: Opportunities for Tax and Fee Reform.Other states have also examined this issue. Maine and Vermont, for example, have created a progressive fee rate per ton of emissions.

• Adjust the Air Emissions fee for inflation.  As the report indicates, Air Emissions fee has not been adjusted since 1990.

• Raise the 4,000 ton cap on the Air Emission fee.

• Add a surcharge to emissions above the current cap.

Modify the Wastewater Treatment Inspection and Public Water System fees to more equitably distribute costs between large and small payers.

We agree. This recommendation, however, does not go far enough in addressing the chronic lack of funding for the TNRCC’s water quality and drinking water programs.  To address this need, we present Additional Recommendations below.

Recommendation 10.7:

Eliminate the following fees—Air Permit Renewals, Toxic Release Inventory Reporting, Above Ground Petroleum Storage Tank, and Solid Waste Permitting.

We disagree.  This is a misguided solution because many programs of the TNRCC are underfunded.  Despite their small size, eliminating these fees would further reduce the funding available to TNRCC.  Without fee increases to match the loss of revenue, it does not make sense to eliminate these fees.

Additional Recommendations:

Adequately Fund the Wastewater Program by modifying the Wastewater Treatment Inspection fee.

The water quality program is one of the TNRCC core functions that has been most damaged by under-funding the last few years. The lack of funding has resulted in reduced inspection rates and greatly reduced monitoring of water quality, as well as an inability to fully implement important new programs—such as the total maximum daily load (TMDL) program.  While beyond the scope of the recommendations in the Sunset Staff Report, the under-funded water quality program is an important issue to address.  We urge the Sunset Commission to examine this issue.

The current fee structure is partly to blame for the problems in the TNRCC’s water quality program. Currently Texas ranks 47th among states for spending on water resources protection, devoting only about $3.00 per person each year to this effort.   Fee revenue for the permitting and enforcement activities of the water quality program comes primarily from the wastewater inspection fee.  However, this fee—like the cap on the Air Emission fee—was capped at $11,000 per facility for municipalities, and $25,000 for industrial sources. In essence there is a “volume discount” for discharge costs per 1,000 gallons that ranges from $1.65 for small treatment plants to $0.90 cents for large treatment plants, or 45 percent less. As the Sunset Staff Report points out, the Wastewater Discharge fee is not uniformly distributed among the regulated community.   The TNRCC fee structure should be revised to avoid imposition of disproportionate burdens on smaller entities.

Adequately Fund the Drinking Water Program by Modifying the Public Water System Fee.

The Sunset Staff report clearly illustrates the wide variations in the average cost per connection between large and small systems created by the Public Water System fee. This funding structure has led Texas to rank 46th in the nation on drinking water spending, on a per capita basis.    Nonetheless, the report fails to recommend adequate measures to address the equity issue.  We ask the Sunset Commission to examine this issue to help eliminate the disproportionate burdens the fee imposes on smaller entities.
 

Adjust the Hazardous and Non-Hazardous Waste Generation Fee (TX H&S Code 361.134) to Distribute Burden of Fee More Equitably and Eliminate “Volume Discount.”

In addition to examining the Wastewater Discharge fee in greater detail, we urge the Sunset Commission to examine the fee cap on hazardous waste generation. The fee cap on hazardous waste generation places the burden of supporting the waste program on the shoulders of small generators as well as provides large generators with a “volume discount.”

Under the statute, the Hazardous and Non-Hazardous Waste Generation fee is an annual fee of $0.50 per ton on Class I non-hazardous waste with a $10,000 maximum fee and $2.00 per ton on hazardous waste with a $50,000 maximum fee used to support the waste program. In effect, this lowers the cost per ton of hazardous waste generation for large facilities.  For example, a facility generating 100,000 tons per year would pay an average rate of only about $0.50 per ton while small time generators pay $2.00 per ton.  Based on 1995 data, about 106 facilities generate over 25,000 tons per year of hazardous waste. In total, these generators account for 99% of the state’s hazardous waste generation.
 

Recommendations 11.1 through 11.8

We agree with all of these recommendations.

The recommendations and text very nicely sum up a problem with accountability regarding the fees that TNRCC collects.  The report demonstrates the need to examine how TNRCC collects its fees in order to improve fee payer accountability, give payers better incentives to report data and fee calculations, and ensure TNRCC collects a greater percentage of fees on a more timely basis.  The TNRCC should act in a fair, timely, and impartial manner when collecting fees. It should also enforce the law.

We strongly recommend that the Sunset Commission examine this set of recommendations as a whole and take necessary steps to improve TNRCC fee collection procedures.
 

Recommendation 12.1:

Transfer all regulatory authority for radioactive waste disposal from TNRCC to the Texas Department of Health, Bureau of Radiation Control

We disagree.

Although it is true that the TNRCC has not developed “the expertise and infrastructure necessary to implement an effective program” for radioactive waste disposal, the solution to this problem is to support the development of expertise within the agency, not to transfer the regulatory responsibility to the Texas Department of Health.  The reasons for this are numerous:

• TNRCC, unlike Texas Department of Health (TDH), is charged with protection of the full gamut of the natural environment (not human health alone),
• TNRCC is charged with and has experience with evaluation of risks associated with the non-radioactive components of radioactive wastes,
• Since radioactive waste disposal or long-term storage facilities are likely to also have to secure Texas Pollutant Discharge Elimination System (TPDES) and air pollution permits, which TNRCC issues, there will be some opportunities for economies of scale associated with “one stop” permitting,
• TDH has been developing policy in a piecemeal fashion, and allowing disposal of “exempt” radioactive wastes at hazardous waste disposal sites.  TDH has failed to adequately regulate uranium mining sites and ensure proper clean up of the land and aquifers at several mine sites in Texas.  That TDH is responsible for licensing the disposal of uranium mill tailings (although open-pit uranium mining ceased years ago), and has unilaterally erased meaningful distinction between disposal and storage by recommending 120-year temporary storage licenses does not logically support the thesis that TDH has the expertise to oversee permanent disposal of long-lived radioactive isotopes from nuclear power plants and other commercial waste generators.
• TNRCC’s core purpose is protecting people and the environment from pollution such as radioactive and hazardous waste.

A public entity, such as a “Texas Radioactive Waste Management Commission” should be created.  The board and staff of this entity must be a balanced group of individuals knowledgeable in the areas of: environmental protection, public health and radiation health effects, geology, hydrology, engineering, public policy, and other appropriate areas.  TNRCC should license this public entity to either operate a state-owned management facility or contract operations to a private company. Ratification by local communities of the site selection for the state facility is a requisite and should be based on a regional (multi-county) referendum.

We agree with the statement that low level waste disposal license applications should be subject to the same contested case hearing process as solid and hazardous waste permits.  These contested case hearing procedures should also apply to assured isolation license applications.

TNRCC should retain authority over permitting and enforcement activities for all wells in the Underground Injection Control program, as well as responsibility for regulating groundwater monitoring, excursion detection and response, and groundwater restoration.  However, TNRCC needs to make major improvements in enforcing existing regulations regarding mining wells and restoration.  (See “Issues Not Covered by Sunset Staff Report for specific recommendations for better uranium mining regulation.)

Recommendation 12.2:

Create a new Division in TNRCC charged with the siting and operation of a low-level radioactive waste disposal facility.

We disagree.

TNRCC should license a yet-to-be created public entity to make long-term radioactive waste management decisions.
 

Recommendation 13.1:

Continue the Texas Natural Resource Conservation Commission for 12 years.

We agree that the agency should be continued.  The name, however, should be changed to something like the Texas Department of Environmental Quality.  This would more clearly convey and reinforce the Commission’s purpose: protection of public health and the environment. (Please refer also to our comments in the Overview regarding the agency’s mission).

With respect to transferring “programs unrelated to its [TNRCC’s] core mission”, we think the Commission should also examine whether some of those programs should, in fact, be continued before transferring them to another agency.
 

 Issues Not Covered in Sunset Staff Report on TNRCC

There are several important issues that we believe should have been, but were not, addressed in the Sunset staff report.  A brief description of these issues and our recommendations follows:

Water Quality/Quantity

Environmental Justice

Vertical Expansion of Solid Waste Landfills

Global Warming

Effective Regulation of Uranium Mines

The Report fails to make recommendations concerning significant issues with regard to deficiencies in the water quality programs administered by the TNRCC. Although the Report explains on p.156 that the TNRCC has a water quality monitoring program and has “700 monitoring sites, located throughout the state” the Report does not address the failure of the TNRCC to adequately monitor the state’s rivers and streams to detect harmful bacteria, toxics, metals and pesticides.  For example, the number of TNRCC water quality sampling sites has decreased approximately 25% since 1994.  As of 1996, the agency was monitoring only about 1/3 of the total 40,000 miles of continually-flowing streams and rivers.  Approximately 145,000 miles of intermittent streams in the state are, with only a few exceptions, unmonitored. The Report should recommend that the TNRCC address these water quality monitoring inadequacies.

The Report should also be modified to address the TNRCC policy of limiting the use of water monitoring data collected by volunteers.  For example, data from only 4 volunteer water quality monitoring groups out of a total of about 320 such groups were used in the agency’s 1996 Water Quality Inventory.   With support and training for these volunteer groups, the data they collect can directly supplement data collected by the TNRCC.  No clear mechanism exists for making effective use of volunteer- collected data.  This not only wastes volunteer monitoring information but also actually discourages the public from participating in such volunteer programs. Moreover, the Report fails to recommend that the Texas Parks and Wildlife Department’s existing program of sampling of aquatic fish and wildlife resources, particularly in coastal waters be expanded to supplement the TNRCC’s water quality monitoring programs. Like information from volunteer monitoring efforts, expanded TPWD efforts can be used to supplement TNRCC monitoring activities.

The Report failed to make recommendations requiring the TNRCC work with the Texas Parks and Wildlife Department and Texas Water Development Board to ensure the development of a comprehensive approach to protecting flows of freshwater adequate to support a healthy environment and associated recreational activities in the state’s rivers and streams and in its bays and estuaries.  The TNRCC has an important role to play in the process of turning studies that are being completed concerning bay and estuary inflow and water modeling information into meaningful programs for protecting instream uses.  The Report should have recommended that the agency be directed to work with the other agencies and the public to develop recommendations for the Legislature on meeting instream flow needs.

Finally, the Report needs to be modified to address the failure of the TNRCC to meet its statutory obligations to develop water quality standards for groundwater.  Section 26.023 of the Texas Water Code directs TNRCC to develop water quality standards for “water in the state.”  “Water in the state” is defined in the Water Code to mean groundwater and surface water.  TEX. WATER CODE ANN. § 26.001 (5).  TNRCC has developed water quality standards for surface water in the state.  30 TAC Chapter 307.  Although those surface water quality standards have significant inadequacies, at least they address protection of the surface water subset of “water in the state.”  However, TNRCC has failed to take any action to develop water quality standards applicable to groundwater.   Section 26.023 also establishes TNRCC as the sole entity authorized to establish water quality standards for “water in the state.”  As a result, TNRCC’s failure to fulfill its statutory obligation results in a complete absence of water quality standards for groundwater in Texas. The Report should recommend that the TNRCC be required to meet its statutory obligation.

Environmental Justice

Problem:
Environmental justice has proven to be a problem in Texas with regard to both permitting of industrial facilities and the enforcement of environmental regulations.  As of January 2000, more civil rights complaints had been filed in the State of Texas than in any other state in the country.

Recommendations:

• Because environmental justice has proven to be a problem in the areas of air pollution and solid waste disposal, the TNRCC should put these types of applications through an equity screening process to determine whether the operations covered by the permit would disproportionately affect a minority or low-income group.
• TNRCC has the legal authority for considering land use issues when siting municipal solid waste facilities, however there are few parameters in the rules for making land use compatibility determinations.  TNRCC must address this deficiency in the rules.
• The authority to consider land use compatibility should naturally be extended to industrial solid waste facilities, which facilities would have similar land use impacts as municipal solid waste facilities.
• Because a proposed facility’s air emissions could be detrimental to people and property in close proximity to the facility (as in the case of municipal and industrial solid waste facilities), TNRCC should be given the statutory authority to consider issues pertaining to land use compatibility when making air permitting decisions.  Rules for implementing such a statute should also be promulgated.
• If a residential area is found to lie within a one-mile radius of a proposed facility or a facility proposed for expansion, then the TNRCC or the applicant should be required to identify all facilities holding authorizations from TNRCC that are located within a three-mile radius of the site in question.
• As recommended in the 1993 Report of the Texas Environmental Equity and Justice Task Force, TNRCC must develop a comprehensive database of information on facilities, permits, enforcement actions, demographic and socioeconomic information, health data, complaints, etc., with a geographical component.
• For applications involving air permits, if a proposed facility or a facility proposed for expansion emits Hazardous Air Pollutants (HAPs as defined in Title III of the Clean Air Act) and if a residential area is found to lie within a one-mile radius of the site in question, then the applicant must be required to take background air samples and conduct a health effects review.  If other air pollution sources were identified, then the health effects review will include the impact of all facilities identified in the plant and within the three-mile radius.

Problem:
Vertical expansions are an undefined creature in Texas’s regulations, and there are no regulations at all governing them. Vertical expansions of landfill capacity over an unlined portion of a municipal waste landfill defeat the objective of safeguarding groundwater from landfill leachate.  Additional waste is added to that portion of the landfill from which groundwater receives no liner protection.  If the operator of an existing landfill elects to expand vertically over an existing unlined landfill, existing regulations do not impose any requirements regarding liners.

TNRCC does not require restoration of admitted groundwater contamination from unlined (pre-Subtitle D) portions of landfills as a requisite to vertical expansions over those portions.  The agency does not even require an approved groundwater restoration plan or landfill design retrofit as a requisite to permitting the vertical expansion.

Additionally, there is no effective system for preventing the construction of more solid waste landfill capacity than identified needs justify.

Recommendations:
 

• § 361.089(a), Tex. Health and Safety Code, should be amended by the addition of the language below.  This would prohibit vertical expansions over pre-Subtitle D portions of municipal solid waste landfills.  This prohibition would lessen groundwater risks associated with landfill leachate, as was the intention of Subtitle D, in the first instance.  The recommended language is:

“The commission may not permit a vertical expansion of over that part of a facility for the disposal of municipal solid waste that does not meet the design criteria of Subtitle D of RCRA.”
 
• If vertical expansions over pre-Subtitle D landfills are to be allowed, then the Solid Waste Act should be amended to state clearly that no such expansion may be permitted, until the applicant has demonstrated an absence of groundwater contamination or has presented a plan for correcting the cause of the contamination and for remediating that contamination.

• TNRCC should be charged to evaluate independently the reasonableness of permit applicant’s representations regarding the “need” for the landfill capacity that would be permitted.  If the present system of cursory COG review of the “need” for new capacity is to be continued, the legislature or TNRCC should establish minimum standards for objectively making that determination; furthermore, in this latter circumstance, conflict of interest standards should be established, so that COG decision makers have no financial interests in the landfills on which they pass “need” judgment.  Finally, the legislature should enunciate a policy on the desirability or otherwise of Texas landfills marketing capacity to out-of-state waste generators.

Texas continues to lead the nation in the emission of global warming gases. Texas’ water supply, low lying coastline, and  arid farming regions are considered especially susceptible to any long term climate change. Although the TNRCC was given specific authority by the Legislature to control air pollutants, as necessary, to protect against climatic change including global warming contaminants (Health and Safety Code Chapter 382.0205), the agency has yet to undertake studies and/or action on the effects and solutions to climate change that are appropriate for Texas.

SUGGESTION 1. The TNRCC should be required to develop and implement a climate change action plan using guidance from the EPA’s State and Local Climate Change Program. The TNRCC should require the reporting of CO2 and methane emissions. The plan should also include 7% reductions in methane and CO2 by 2010.

SUGGESTION 2. TNRCC should be directed, in conjunction with the Texas Water Development Board, the Soil and Water Conservation Service, the Texas Parks and Wildlife Department, and the General Land Office, to study the effects of global warming on Texas and recommend actions to combat the problem. Requiring these agencies to work together will allow for planning concerning air pollution, water supplies, soils, fisheries, and coastal erosion as they relate to global warming.

Effective Regulation of Uranium Mines

Problem:  Companies have been mining uranium in Texas for decades, producing vast amounts of radioactive waste and leaving Texas aquifers contaminated not only with radioactive materials, but also with many toxic chemicals.  The Texas Natural Resource Conservation Commission (TNRCC) is allowing soil and groundwater to remain contaminated after the mining companies pack up and leave.  TNRCC has not required adequate performance bonds to ensure proper clean-up, including plugging and capping of wells used for uranium mining.  Thus, when uranium companies threaten to go bankrupt, TNRCC is forced to relax the clean up standards.

Moreover, in the 25 years of regulating injection wells at uranium mines, TNRCC has never brought an enforcement action that resulted in a penalty, even when flagrant violations have occurred. TNRCC has not used its broad authority under several laws to regulate toxic chemical contamination in the soils and water that results from mining.  In brief, TNRCC has failed and continues to fail to protect those living around the mines or to protect the ground and surface waters affected by the mining operations.

Recommendations:

• TNRCC should be required to initiate appropriate enforcement to establish incentives for compliance with the law;
• Require the dedication of sufficient resources over the next three years to do a thorough audit of restoration activities and bonds at all currently permitted and closed in-situ uranium mines in Texas;
• TNRCC should be required to use its complementary authority over water pollution and industrial waste to regulate the toxic components of the radioactive wastes at uranium mines;
• Require periodic expiration and renewal of permits for injection wells at uranium mines.
• TNRCC should encourage public participation in uranium mining issues and meet with landowners in the areas of mines to gather information on the mining and the impacts;
• TNRCC should seek advice from independent experts from at EPA and universities and provide adequate training for permitting and enforcement staff responsible for uranium mining issues;
• The fees for regulation of uranium mining and other radioactive materials should be increased to provide TNRCC with sufficient resources for this program;
• TNRCC should be required to audit its files on uranium mines to assure that all information on any one mine is complete and filed in one location for easy access by the public;
• Require, as part of any permit revision or any final closure decision, all data that a mining company has for all wells at the mine site and for groundwater conditions.
• TNRCC should perform a joint survey with the Department of Health and Railroad Commission to identify unplugged wells, including exploratory wells, starting by requiring all mining companies to identify all such wells near their mines and the condition of those wells.  TNRCC should spot check mines after discussing well location with local landowners.

PUBLIC INTEREST SUNSET WORKING GROUP LETTER TO SUNSET COMMISISON STAFF

April 25, 2000

Dear Joey Longley and Jay Schmidt,

The Public Interest Sunset Working Group, in coordination with more than 20 community groups from across the state, has developed a set of principles for reforming the TNRCC that we think are essential in order to adequately protect the public health and environment in Texas.  The list of ten key principles follows, and we sincerely hope that you will consider these as you finish up the process of writing your recommendations on TNRCC.

1. Create a Texas agency whose sole mission is to protect the public health and environment in Texas.  The mission of the agency is NOT to promote economic development.

2.  The agency must be accountable to the people of Texas and unable to be influenced by polluter money.  In order for citizens to trust in the integrity of agency policies, money politics in agency decisions must be neutralized.  There must be strict prohibitions in the law preventing conflicts of interest. The agency must not serve as a consultant to any regulated business in permitting or enforcement activities. The agency must not spend time “perfecting” polluters’ permits at tax-payer expense.

3.  No business has the right to pollute, but all Texas residents have the right to clean air and water.   The agency must enforce crucial citizen rights such as the right to:

• participate in hearings on a level playing field with polluting industries
• enforcement of environmental laws by citizens and local governments
• have complaints investigated quickly and remedied in a short time-frame
• easily access data from the agency
• know which pollutants citizens are being exposed to and when, where, and how they are being exposed

5.  The agency must adequately review but not support polluters’ permits in hearings.  The agency is accountable ONLY to the citizens. It must only present evidence in a hearing when there is no other party to do so.

6.  The Office of Public Interest Counsel must be independent, adequately funded and have the ability to appeal agency decisions in court.  Independence and the authority to appeal, combined with a budget sufficient for witnesses and appellate procedures would make OPIC the type of effective advocate on behalf of the environment and public health that’s needed.

7.  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.  The agency must consider environmental justice, cumulative effects, and land use compatibility in all permitting decisions.

8.  The funding structure for the agency must ensure adequate funding of core programs and incorporate sufficient incentives for pollution reduction.

9. The agency must have the funding and the legislative directive to PREVENT pollution problems by inspecting and monitoring polluting facilities and enforcing environmental laws.  The agency must conduct periodic surprise inspections.  All major facilities must be inspected annually.  Permits must be permanently revoked after three significant violations.  The new agency must make violators pay fines that offset the economic advantage gained by the violations.

10.  The agency must seek input and advice from a broad range of perspectives (ie: include the public and not just industries) Advisory or working groups for rules and policies must be balanced.

Sincerely,

Ken Kramer
Director, Lone Start Sierra Club and Public Interest Sunset Working Group Spokesperson
 

Public Interest Sunset Working Group includes: * Consumers Union * Law Office of Henry, Lowerre & Frederick * League of Women  Voters of Texas * Environmental Defense * National Wildlife Federation * Sustainable Envrionmental and Economic Development Coalition * Sierra Club, Lone Star Chapter * Texas Center for Policy Studies * Texas Committe on Natural Resources * Texas Citizen Action * Texas Clean Water Action *Public Citizen * Public Employees for Environmental Responsibility * 4006 Speedway, Austin, TX 78751 * phone 512-454-3050 * fax 512-454-6231 * http://www.texascenter.org/sunset.index