Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 90.
INNOVATIVE PROGRAMS
The Texas Commission on Environmental Quality (TCEQ or commission)
adopts amendments to §§90.2, 90.30, 90.36, 90.40, 90.42, and 90.44
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
House Bills (HB) 2912 and 2997, 77th Legislature, 2001, created Texas Water
Code (TWC), §5.131 and §5.127, respectively. These statutes require
the commission to adopt, by rule, a comprehensive program that uses incentives
to encourage entities to implement environmental management systems (EMSs).
The statutes were passed in response to recommendations made by the Sunset
Commission, as well as the Comptroller's
e-Texas
initiative. The intent of the legislation was to encourage regulated
entities to use EMSs to help ensure compliance with applicable laws and regulations.
In return, regulated entities could earn incentives, such as reduced inspection
frequency and special consideration in their compliance history. The TCEQ
adopted rules that took effect on December 16, 2001. The rules are codified
in 30 TAC Chapter 90, Subchapter A §90.1 and §90.2 and Subchapter
C, §§90.30, 90.32, 90.34, 90.36, 90.38, 90.40, 90.42 and 90.44.
The TCEQ implemented the rules through the Lone Star and National Leader
(i.e., the two highest) levels of the
Clean Texas,
Cleaner World
(CTCW) program, TCEQ's voluntary recognition and incentive
program. Entities that wished to join at those levels were required to implement
an EMS that met a TCEQ EMS standard. Further, entities were required to make
environmental improvements that went beyond or outside regulatory requirements
to receive the incentives authorized by the statute.
A review of the CTCW program in the fall of 2005 concluded that changes
to how the EMS statute was being implemented could improve and increase participation
in CTCW. In February 2006, executive management recommended that entities
no longer be required to implement an EMS that met a TCEQ EMS standard. Instead,
the TCEQ would recognize any established EMS framework that meets the statutory
provisions of the Texas Water Code. Further, it was recommended that TCEQ
staff no longer conduct EMS audits for approval into the program. Finally,
the name of the CTCW was changed to Clean Texas. The purpose of this rulemaking
is to incorporate these changes.
SECTION BY SECTION DISCUSSION
The commission adopts administrative changes throughout these sections
to be consistent with Texas Register requirements and other agency rules and
guidelines and to conform to the drafting standard in the
Texas Legislative Council Drafting Manual
, November 2004.
Section 90.2. Applicability and Eligibility.
The adopted amendment to subsections (e) and (f) would reflect the different
compliance periods for each level of the Clean Texas program. Specifically,
subsection (e) would state that an entity could not have any state or federal
court orders for either two years or three years, depending on the level of
the program for which they are applying. The adopted amendment to subsection
(f) would extend the compliance period for criminal convictions regarding
a site from three years to five years for all levels that require an EMS.
Section 90.30. Definitions.
The adopted amendment to §90.30 would add definitions for assessment,
certified, and independent assessor, as well as renumber existing definitions
accordingly. These definitions are necessary to reflect that the TCEQ will
no longer conduct EMS audits, and that certified EMSs are necessary to receive
regulatory incentives. Specific definitions would facilitate implementation,
both for the agency and stakeholders.
Section 90.36. Evaluation of an Environmental
Management System by the Executive Director.
The adopted amendment to §90.36 would provide a more streamlined assessment
process. The adopted rules would specify that an EMS must be certified by
an independent assessor, and would note the documentation necessary for eligibility
review. The adopted amendments would also provide for verification visits
for certain applications. The verification visits would not constitute EMS
audits but would ensure that all entry requirements for participation in the
Clean Texas program are satisfied.
Specifically, the adopted amendment to §90.36(a) would change eligibility
requirements for regulatory incentives based on an EMS, including removing
the option of the executive director performing the on-site audit. Also, the
adopted amendment would alter terms according to changes in §90.30 and
renumber existing paragraphs accordingly.
The adopted amendment to §90.36(b) would replace the existing subsection
with a provision stating the executive director may conduct an on-site verification
visit as necessary to assure compliance with the program. The adopted amendment
to subsection (c)(3) would change "attainment of environmental-performance
improvement goals or targets" to "reasonable progress toward attainment" of
those goals or targets. The adopted amendment to subsection (e) would delete
the existing subsection and re-letter the rest of the section accordingly.
The adopted amendment to subsections (h) and (i) deletes references to
an evaluation by the executive director or a third-party auditor and substitutes
requirements for the use of an independent assessor and requires that the
results of the independent assessment be provided to the executive director.
The adopted amendment to subsection (j) delineates criteria by which the
executive director will review the use of an independent assessor. Several
criteria would be deleted, including references to third-party auditors performing
and documenting work in a manner similar to that of the executive director.
The adopted amendment clarifies that the assessor is independent of the implementation
of the EMS. Credentials of the independent assessor remain a criterion, while
specific educational requirements are stricken. Certification of the assessor
is included in the meaning of "credentials" rather than being expressly stated
in the rule. The method of audit review is revised to include a requirement
to confirm performance of the EMS, while striking specific time requirements.
Section 90.40. Executive Director Action on Request
for Regulatory Incentives through the Use of an Environmental Management System.
The adopted amendment to §90.40 would change the executive director's
considerations when evaluating a request for regulatory incentives which modify
state or federal requirements. The adopted amendments to §90.40(c) clarify
that the executive director can consider the establishment of and progress
toward environmental performance improvement goals beyond or outside of regulatory
requirements.
Section 90.42. Termination of Regulatory Incentives
under an Environmental Management System.
The adopted amendment to §90.42(b) would make conforming changes to
reflect the addition of terms in §90.30 and to allow independent assessors
to conduct EMS audits in lieu of the executive director.
Section 90.44. Motion to Overturn.
The adopted amendment to §90.44 adds language whereby any person may
file with the chief clerk a motion to overturn, not just those persons whose
request for incentives has been denied or terminated. The adopted amendment
makes the rules consistent with TCEQ rules that allow members of the public
to file a motion to overturn.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
the rulemaking is not subject to §2001.0225 because it does not meet
the definition of a "major environmental rule" as defined in that statute.
Furthermore, it does not meet any of the four applicability requirements listed
in §2001.0225(a). Although this rule is adopted to protect the environment
and reduce the risk to human health from environmental exposure, it would
not be a major environmental rule because it would not adversely affect in
a material way the economy, a sector of the economy, productivity, competition,
jobs, the environment, or the public health and safety of the state or a sector
of the state.
Furthermore, the adopted rule does not meet any of the four applicability
requirements listed in §2001.0225(a). The rule would not exceed a standard
set by federal law because standards in the adopted rules are in accordance
with the corresponding federal regulations, and they do not exceed an express
requirement of state law. The adopted rule does not exceed a requirement of
a delegation agreement or contract between the state and an agency or representative
of the federal government to implement a state and federal program. The rulemaking
adopts a rule under specific state law (i.e., Texas Water Code, §5.131
and §5.127). Finally, this rulemaking is not being adopted on an emergency
basis either to protect the environment or to reduce risks to human health
from environmental exposure.
TAKINGS IMPACT ASSESSMENT
In accordance with Texas Government Code, §2007.043, the commission
has prepared a takings impact assessment for the adopted rule. The following
is a summary of that assessment. The specific purpose of the adopted rule
is to enhance the TCEQ's EMS program. Promulgation and enforcement of the
adopted rule would not affect private property mainly because it would not
require anyone to do anything; everything it proposes is strictly voluntary.
The adopted standards are not more stringent than existing standards. For
these reasons, the adopted rule would not be a burden to private real property
and would not constitute a taking under Texas Government Code, Chapter 2007.
The adopted rule would not affect a landowner's rights in private real property.
CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found that the rulemaking is
subject to the Texas Coastal Management Program (CMP) and must be consistent
with all applicable goals and policies of the CMP. In accordance with 31 TAC §505.22,
the commission has prepared a consistency determination for the adoption and
has found that it is consistent with the applicable CMP goals and policies.
The following is a summary of that determination. The CMP goals applicable
to the rulemaking are to protect, preserve, restore, and enhance the diversity,
quality, quantity, functions, and values of coastal natural resource areas
(CNRAs). CMP policies focus on construction and operation of solid waste treatment,
storage, and disposal facilities, such that new solid waste facilities and
areal expansions of existing solid waste facilities shall be sited, designed,
constructed, and operated to prevent releases of pollutants that may adversely
affect CNRAs and, at a minimum, comply with standards established under the
Solid Waste Disposal Act, 42 United States Code, §§6901
et seq
. Promulgation and enforcement of this rule would be consistent
with the applicable CMP goals and policies because it would provide a framework
that landfills could voluntarily use to help ensure and go beyond compliance
with applicable laws. Thus, the rule would serve to protect, preserve, restore,
and enhance the diversity, quality, quantity, functions, and values of CNRAs.
Changing the rules on environmental management systems will not impact new
solid waste facilities and areal expansions of existing solid waste facilities.
The commission has determined that the specific actions detailed in this section
and earlier in this preamble under the sections explaining the adopted rule,
concerning explanation of the adopted rule, final regulatory impact assessment,
and takings impact assessment will comply with the goals and policies of the
CMP. In addition, the adopted rule does not violate any applicable provisions
of the CMP's stated goals and policies.
PUBLIC COMMENTS
The public comment period closed at 5:00 p.m. on October 9, 2006. The commission
received comments from Baker Botts on behalf of the Texas Industry Project
(TIP).
TIP suggested modifications to the proposed rules as stated in the RESPONSE
TO COMMENTS section of this preamble.
RESPONSE TO COMMENTS
Section 90.44. Motion to Overturn.
TIP comments that the change to §90.44 which would allow any person
to file a motion to overturn the executive director's decision on EMS and
incentive approval is unnecessary and would, in all likelihood, result in
significantly fewer companies deciding to participate in the program. First,
TIP describes a motion to overturn filed by the public as analogous to public
comment on a general permit, which TIP advocates should only be allowed during
the development stage of EMS incentives applicable to all approved EMSs, not
after a decision has been made on an individual EMS or EMS-related incentive
request. Second, TIP states that companies would be less inclined to pursue
TCEQ approval of their EMS if the public could request a motion to overturn
the approval decision, thus undermining the reason for the proposed rule,
to increase program participation.
Commission powers under Texas Water Code, §5.012 are broad enough
". . . to perform any acts whether specifically authorized or implied by code
or law, necessary . . . the exercise of its jurisdiction. . .." It is within
the breadth of commission powers to include a condition allowing the public
to request a motion to overturn (MTO) under EMS programs. The permitting procedures
for several media already afford the public the option of requesting an MTO
(30 TAC Chapter 55).
The commission currently has the right to request an MTO on an EMS-approved
entity; the public would only serve as an additional input to the ongoing
monitoring of EMS-approved entities. Allowing the public to request an MTO
on an EMS-approved entity therefore would not affect the EMS approval or constitute
a disincentive to participate in the EMS program.
The commission responds to the second point raised by TIP, that companies
would be less inclined to seek TCEQ approval for their EMS with a public right
to file a motion to overturn the approval. If a company in the United States
seeks the internationally-recognized ISO14001 EMS approval, it must use a
registration body certified by ANSI-ASQ National Accreditation Board (ANAB).
ANAB requires registration bodies to address complaints from any individual
or company in a way analogous to a motion to overturn the executive director's
decision. Since companies continue to pursue other EMS approvals with "motions
to overturn", the TCEQ does not believe that including a right for the public
to file a motion to overturn an EMS approval decision will negatively impact
a company's desire to pursue EMS approval from the TCEQ.
TIP comments that the approval period for an EMS should be extended from
three years to five so that incentives granted would be more valuable and
fewer agency and participant resources would need to be expended to maintain
EMS approval.
Industry standard third-party EMS certifications, such as ISO 14001, are
on a three-year renewal cycle. The TCEQ is implementing EMS approval through
the Clean Texas program, the top level of which is implemented in conjunction
with the United States Environmental Protection Agency's (EPA's) National
Environmental Performance Track, which has a three-year membership period.
A five-year approval period would not coincide with the three-year audit cycle
needed to maintain certification to many industry-recognized management system
standards, resulting in additional expenses for additional independent assessments.
The TCEQ has chosen to follow timing precedent set by recognized environmental
management system certifying bodies and by the EPA.
Subchapter A. PURPOSE, APPLICABILITY, AND ELIGIBILITY