Texas Environmental Rule Could Have Nationwide Impact

While most state enforcement actions have little effect on the administrative actions of other states, in Texas now they may. On January 9, 2002, the Texas Natural Resources Conservation Commission (TNRCC) compliance history rules went into effect. At their core, beginning September 1, 2002, the agency will evaluate the past 5 years of compliance history of a person (specific to the "site" which is under review and other "sites" owned or operated by the same person) when making decisions on permits, inspections, enforcement actions and participation in TNRCC alternative programs.

The meaning of compliance history is extremely broad and can include final enforcement orders, court judgments, consent decrees and criminal convictions relating to violations of the TNRCC, the EPA and other states' environmental laws. The term also includes "chronic excessive emissions events," notices of violations that are not determined to be without merit, agreed enforcement orders, and violations disclosed from an audit under the Audit Privilege Act. TNRCC will begin developing multimedia compliance histories for persons beginning February 1, 2002.

Notably, Warren Chisum, Chair of the Texas House Committee on Environmental Regulation, sent a request to the Texas Attorney General to determine whether TNRCC can define compliance history retroactively to five years as a matter of statutory construction. The Attorney General Opinion is due out in June.

For a copy of the rules, click here.

Additional rules that are intended to flesh out additional details regarding of the compliance history rules ("Phase II" of the Rulemaking) will be proposed in March 2002 and should be made final in June 2002.

For more information, contact Robert Brager at (410) 230-3855 or Madeleine Kadas at (512) 391-8010.

Copyright (January 2002) Beveridge & Diamond, P.C.