Part I.
Texas Natural Resource Conservation Commission
Chapter 70.
Enforcement
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to §§70.2, 70.5, 70.7-70.11, 70.51, 70.101, 70.102, and
70.104-70.106, concerning Enforcement. This action is necessary to make the
commission's rules more clearly consistent with applicable state statutes
and the Texas Rules of Civil Procedure. Sections 70.5, 70.10, and 70.105 are
adopted with changes to the proposed text as published in the January 29,
1999 issue of the
Texas Register
(24 TexReg
498). Sections 70.2, 70.7-70.9, 70.11, 70.51, 70.101, 70.102, 70.104, and
70.106 are adopted without changes and will not be republished.
The commission readopts the rules contained in Chapter 70. This action
is taken to comply with the General Appropriations Act, Article IX, §167.
The notice of readoption of the review is concurrently published in the Rules
Review section of this edition of the
Texas Register
.
EXPLANATION OF ADOPTED RULES
Senate Bill 1876, 75th Legislature, 1997, consolidated the commission's
enforcement authority under a new Chapter 7 of the Texas Water Code (TWC).
The adopted rule amendments would clarify the commission's rules to make them
more clearly consistent with the enforcement provisions of TWC Chapter 7 and
with the commission's general authority under TWC Chapter 5, the Texas Rules
of Civil Procedure, and the Texas Administrative Procedure Act (APA).
The adopted amendment to §70.2, concerning Definitions, changes the
definition of "Contested enforcement case" to make it consistent with the
APA definition of "Contested case."
The adopted amendment to §70.5, concerning Remedies, expands the language
regarding permit revocation or suspension to also include licenses, registrations,
and certificates. This change will affect entities which currently hold any
type of authorization from the commission. This amendment corresponds with
TWC, §7.004, which allows the commission remedies cumulative of all other
remedies.
The adopted amendment to §70.7, concerning Force Majeure, deletes
the requirement in subsection (d) that the executive director respond in writing
within 30 days from receipt of notification as to whether an event constitutes
force majeure. The amendment also clarifies the meaning of force majeure within
the framework provided by TWC, §7.251. TWC, §7.251, does not require
the executive director to respond within a 30-day time period. The change
would give the executive director discretion to respond fully and appropriately
in a timely manner, as is consistent with the statute.
The adopted amendment to §70.8, concerning Financial Inability to
Pay; Amount Necessary to Obtain Compliance, deletes the phrase "that is necessary
to deter future violations" in subsection (a) and makes the rule consistent
with current commission policy to make a determination of financial inability
to pay based on the entire penalty amount, not just the portion of the administrative
penalty assessed for deterrence. The commission will remove the limitation
that an assertion of an inability to pay or a challenge to the amount of a
penalty can only be made in response to an executive director's preliminary
report (EDPR) or petition. The commission will allow such action simply in
response to an enforcement action. This change allows the respondent an opportunity
to provide documentation of financial inability to pay during the expedited
enforcement process, as well as in response to an EDPR. Both changes are necessary
in order to make §70.8 more clearly consistent with how financial inability
to pay claims are handled by the commission.
The adopted amendments to §70.9, concerning Installment Payment of
Administrative Penalty, modify subsections (a) and (b) to provide for installment
payments for any kind of enforcement order. The rule originally applied only
to agreed orders. This change makes the rule more clearly consistent with
the legislative authority granted to the commission by TWC, §5.1175(a),
and allows qualifying entities to make installment payments for payment of
administrative penalties in response to all three types of enforcement orders:
agreed, default, and orders arising from a proposal for decision. It has been
the policy of the commission to allow such payment plans, and these revisions
will formalize that policy. The proposed preamble erroneously referenced a
conforming change to subsection (c); however, there is no subsection (c) in
§70.9.
The adopted amendment to §70.10, concerning Agreed Orders, modifies
subsection (c) to make it consistent with the 30-day publication requirement
imposed by TWC, §7.075.
The adopted amendments to §70.11, concerning Notice of Decisions and
Orders, prescribe the contents of a notice of a ruling, order, or decision
issued by the commission. This modification reflects that the legislature
has provided the public the right to comment on most proposed administrative
orders, and it ensures consistency with TWC, §7.059 and §7.075.
In addition, the commission is deleting the reference to Texas Health and
Safety Code (HSC), §382.096, which was repealed by the Texas Legislature
effective September 1, 1997.
The adopted amendment to §70.51, concerning Mandatory Enforcement
Hearings, deletes subsection (a)(2)-(4). Subsection (a)(4) references HSC,
§382.082, which was repealed by the Texas Legislature effective September
1, 1997. The language in subsection (a)(2) and (3) is not required by TWC,
§5.117, relating to Mandatory Enforcement Hearings, is inconsistent with
the current regulatory criteria for formal enforcement, and is, therefore,
being deleted. In addition, the last sentence of subsection (a), reading "a
certificate of convenience and necessity is not considered to be a permit
or license for purposes of this section" is deleted, because a certificate
of convenience and necessity is considered a "permit or license" for enforcement
purposes.
The adopted amendment to §70.101, concerning Executive Director's
Preliminary Report, deletes the provision that an EDPR can be superseded by
a petition. The commission believes that this language is repetitive, because
an EDPR is, in practice, also a petition. In addition, a provision is added
to reflect that the EDPR must include the corrective action requested by the
executive director as provided by TWC, §7.054.
The adopted amendment to §70.102, concerning Pleadings Other than
the Executive Director's Preliminary Report, modifies subsection (c) to provide
that a pleading should be allowed "within seven days of the date of the hearing,"
as opposed to "up to seven days prior to the hearing." Subsection (c) is also
modified to provide for pleadings filed after the seventh day. In addition,
subsection (d) is modified to include language concerning adding or non-suiting
additional parties in an amendment to an EDPR by the executive director. All
of these changes will provide consistency with the rules governing civil procedure
in Texas courts.
The adopted amendments to §70.104, concerning Notice of Executive
Director's Preliminary Report, provides additional methods of service consistent
with the Texas Rules of Civil Procedure, allows the EDPR to be served by facsimile,
and reflects the process for serving the respondent by certified mail and
first class mail simultaneously.
The adopted amendment to §70.105, concerning Answer, deletes unnecessary
language concerning irrigators and irrigator pump installers. The language
is no longer necessary given the repeal of TWC, §34.011, which contained
this requirement. This change consistently applies the rules regarding a request
for a hearing to all programs and requires all respondents to file an answer
within 20 days of the date the EDPR is received. In addition, the proposed
amendment modifies the text of the rule to improve readability.
The adopted amendment to §70.106, concerning Default Order, adds a
new subsection (d) to provide for the effective date of a default order. This
change is to ensure consistency with commission procedural rules and the APA.
FINAL REGULATORY IMPACT ANALYSIS
The commission has reviewed the adopted rulemaking in light of the regulatory
analysis requirements of Texas Government Code (the Code), §2001.0225,
and has determined that it is not subject to §2001.0225 because it does
not meet the definition of a "major environmental rule" as defined in that
statute, and it does not meet any of the four applicability requirements listed
in §2001.0225(a). The rules are not major environmental rules because
they prescribe procedural requirements for commission enforcement actions.
The adopted rule amendments do not prescribe any major new requirements on
any sector of the state. The intent of this action is to make the rules more
clearly consistent with TWC, Chapters 5 and 7, the APA, and the Texas Rules
of Civil Procedure. Furthermore, the rules are consistent with both state
and federal mandates, and they are adopted under authority granted by TWC,
Chapters 5 and 7. Additionally, the Code, §2001.004, requires state agencies
to adopt rules of practice. Finally, the adoption concerns procedural amendments
to existing rules and, thus, delegation agreements or contracts are not expressly
implicated.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment of these rules
under the Code, 2007.043. The following is a summary of that assessment. The
specific purpose of this action is to make these rules more clearly consistent
with TWC, Chapters 5 and 7. The rules also provide for greater consistency
with the Texas Rules of Civil Procedure and the APA. Adoption of these rules
will substantially advance these purposes by providing specific provisions
on these matters. Promulgation and enforcement of these rules will not burden
private real property which is the subject of these rules because they affect
only the commission's procedural requirements for enforcement actions and
clarify the rules for consistency purposes.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed the rule and found that the rulemaking is identified
in the Coastal Coordination Implementation Rules, 31 TAC §505.11, or
will affect an action/authorization identified in the Coastal Coordination
Act Implementation Rules, 31 TAC §505.11, and will, therefore, require
that applicable goals and policies of the Texas Coastal Management Program
(CMP) be considered during the rulemaking process.
The commission has prepared a consistency determination for the adopted
rules under 31 TAC §505.22 and found that the rules are consistent with
the applicable CMP goals and policies. The following is a summary of that
determination. The CMP goal applicable to the adopted rules is the goal to
protect, preserve, restore, and enhance the diversity, quality, quantity,
functions, and values of coastal natural resource areas. CMP policies applicable
to the adopted rules include the administrative policies and the policies
for specific activities related to construction and operation or solid waste
treatment, storage, and disposal facilities and discharge of municipal and
industrial wastewater to coastal areas. Promulgation and enforcement of these
rules is consistent with the applicable CMP goals and policies because the
rules are only procedural in nature and continue to ensure the effective enforcement
of commission rules and permits concerning these matters. Promulgation and
enforcement of these rules will not violate or exceed any standards identified
in the applicable CMP goals and policies because they will result in effective
enforcement and greater consistency with applicable state statutes, the APA,
and Texas Rules of Procedure.
HEARING AND COMMENTERS
A public hearing on this proposal was held March 1, 1999 and the comment
period closed on April 5, 1999. No oral comments were received at the public
hearing. Written comments were received from the Texas Center for Policy Studies
(TX Center); Henry, Lowerre, Johnson & Frederick (Lowerre); and an individual.
ANALYSIS OF TESTIMONY
The individual suggested that the proposed change to §70.10(c) should
more clearly reflect that notice of the proposed agreed order be published,
not the text of the complete proposed agreed order.
The commission agrees and proposes the following change to §70.10(c)
to clarify the rule: "When an agreement is reached, the executive director
shall
publish notice of the proposed agreed order
in the Texas Register, providing 30 days for public comment. Once the notice
of the proposed agreed order is published, the executive director shall ....
"
Lowerre contended that both the agency's current rules and the proposed
amendments are inconsistent with the United States Environmental Protection
Agency's (EPA) minimum standards for authorization of the National Pollutant
Discharge Elimination System (NPDES), Underground Injection Control (UIC),
and Resource Conservation and Recovery Act (RCRA) programs. Lowerre is primarily
concerned with amendments to §§70.7, 70.11, and 70.51.
Lowerre's first concern deals with the proposed amendment to §70.7(a).
The commenter stated that the agency's force majeure provision violates federal
law, which requires that all violations of the law be treated as violations.
Additionally, Lowrerre stated that the provision prevents EPA enforcement
actions and citizens' suits for violations when such situations arise, and
that the commission's rules declare certain violations of the federal law
to not be violations under state law.
The state legislature has recognized that acts of God, war, strike, riot,
or other catastrophes may exist which cause violations of the state's environmental
regulations and has provided a force majeure defense in the statutes in TWC,
§7.251. The commission is bound by the authority given to it by the legislature.
The force majeure provision was enacted during the 75th Legislature in order
to provide a more consistent enforcement process across all environmental
media regulated by the commission. The commission's proposed modification
to §70.7(a) mirrors that language of the statute and clearly reflects
legislative intent in the area of force majeure. In addition, staff believes
the force majeure is consistent with federal law that applies to authorized
programs or is otherwise applicable to state programs.
Lowerre also expressed concern that the proposed amendment to §70.11
highlights the fact that no guidance by the commission has been formulated
as to what should be included in the notice sent to the
Texas Register
of the opportunity to comment on a proposed agreed order.
The commenter stated that the commission's notice is not sufficient and that
is does not contain notice of the responsible party, location of the violations,
or types of acts which are subject to the order.
Apparently, the commenter has not challenged the correct proposed amendment.
Section 70.11 concerns notice to the "parties" of the commission's rulings,
orders, or decisions. Such notice is achieved by first class mail or personal
delivery to the respondent in enforcement matters of the findings of the commission
and is specifically provided for by statute in TWC, §7.059. Such notice
does not involve
Texas Register
publication,
nor is its perceived purpose to provide notice to the public at large. However,
the notices are published in a format prescribed by the
Texas Register
.
However, §70.10 does concern publication of notice in the
Texas Register
of proposed agreed orders for public comment. The commission's
publications include information regarding: (1) the name of the entity charged
with the alleged violations; (2) commission identification numbers; (3) the
physical location of the facility where the alleged violations occurred; (4)
the legal citations to which rules and/or statutes have been allegedly violated;
(5) the amount of the penalty assessed; and (6) a central office contact and
the address and telephone number of the region where the violations occurred.
In addition, each notice states that a copy of each proposed agreed order
is available for public inspection should a citizen want more detailed information.
The commission believes that the information included in the notice is sufficiently
detailed to convey the nature of the violations and apprise the public of
who is responsible and where the alleged violations occurred. The purpose
of the notification is to apprise the public of the general circumstances
surrounding the violations, and the commission contends that the objective
is fully satisfied with the information currently published in the
Texas Register
for proposed agreed orders.
Lastly, Lowerre, along with the TX Center, expressed concern about the
deletion of language in §70.51(a), concerning the definition of substantial
noncompliance. Lowerre suggested that the commission should adopt the EPA's
definitions of noncompliance, including the substantial noncompliance definition
for the NPDES program. The TX Center expressed concern that without the substantial
noncompliance definition, the regulated community would be left without clear
rules on what constitutes substantial noncompliance, which the TX Center claims
could lead to inconsistent application of the mandatory enforcement provisions
and situations in which substantial noncompliance is not addressed through
the mandatory enforcement hearing process, thereby circumventing the statutory
intent.
The commission finds that §70.51(a)(4) refers to a Texas Health and
Safety Code provision relating to substantial noncompliance which has been
repealed. Texas Health and Safety Code, §382.082, which is incorporated
by reference in the current rules, was repealed by Acts 1997, 75th Legislature,
Chapter 1072, §60(b)(5), effective September 1, 1997. Thus, the reference
to a repealed statute is inappropriate.
Section 70.51(a)(2) also defines substantial noncompliance and the amendment
deletes that paragraph. The commission believes that the definition in the
current rules limits the discretion of the commission in mandatory enforcement
to only those situations defined by the rules. Currently, the commission uses
more stringent, all-encompassing criteria to initiate to formal enforcement,
which fully satisfies the governing statute. The commission has fully implemented
TWC, §5.117, and believes that the deletion of the substantial noncompliance
definition provides flexibility to pursue a more rigorous and systematic approach
to enforcement matters. In addition, deletion of the substantial noncompliance
definition provides flexibility across media, which is an important goal of
the commission. Chapter 361 and Chapter 382 of the Texas Health and Safety
Code have no comparable definition. Therefore, the TWC, Chapter 26 substantial
noncompliance definition creates a separate, less-stringent standard, which
is inconsistent with the goal of creating a uniform regulatory scheme across
all regulated media.
Subchapter A. Enforcement Generally
30 TAC §§70.2, 70.5, 70.7-70.11
STATUTORY AUTHORITY
The amendments are adopted under the following sections of the TWC: §5.103,
which establishes the commission's general authority to adopt rules; §5.105,
which establishes the commission's authority to set policy by rule; and §§7.001
§70.5.Remedies.
Remedies available to the commission in enforcement actions include
all those found in the Texas Water Code, the Texas Health and Safety Code,
and the APA. These include, but are not limited to, issuance of administrative
orders with or without penalties; referrals to the Texas Attorney General's
Office for civil judicial action; referrals to the Environmental Protection
Agency for civil judicial or administrative action; referrals for criminal
action; or permit, license, registration, or certificate revocation or suspension.
Nothing herein shall be construed to preclude the executive director from
seeking any remedy in law or equity not specifically mentioned in these rules.
In addition, an enforcement matter may be resolved informally without a contested
case proceeding in appropriate circumstances.
§70.10.Agreed Orders.
(a)-(b)
(No change.)
(c)
When an agreement is reached, the executive director shall
publish notice of the proposed agreed order in the
Texas Register
, providing 30 days for public comment. Once the notice
of proposed agreed order is published, the executive director shall file the
agreed order with the chief clerk. The chief clerk shall then schedule the
agreed order for consideration during a commission meeting under Chapter 10
of this title (relating to Commission Meetings). If the enforcement action
is under the jurisdiction of SOAH, the judge shall remand the action to the
executive director who will file the agreed order with the chief clerk for
commission consideration. The judge is not required to prepare a proposal
for decision or memorandum regarding the settlement.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June
17, 1999.
TRD-9903635
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: July 7, 1999
Proposal publication date: January 29, 1999
For further information, please call: (512) 239-1966
Subchapter B. Mandatory Enforcement Hearings