Posts Tagged ‘Rulemaking’

The comment period for the proposed new TCEQ Compliance History rules was extended in large part due to Public Citizen making the public aware that the TCEQ had run test scores on their data from the previous year’s posting but were not willing to release that information to us, the Austin American Statesman or the public.  When they did release the data and then subsequently extend the comment period, the data was not in a format that was useful to most folks.

After much wrangling with the agency, they finally released the test scores this afternoon and they can be accessed below:

Proposed Chapter 60 Compliance History Test Scores

The test Compliance History scores for proposed revision to 30 TAC Chapter 60 (Compliance History) rule are available here.

The test Compliance History scores available below are intended to provide approximations of what scores might look like under the Commission’s proposed Chapter 60 (Compliance History) rule.  These scores were generated as part of the agency’s proposed rulemaking process.

These are not official Compliance History scores and therefore, are not subject to the Chapter 60 appeal process. Due to computer programming limitations during rule development , individual scores do not reflect all aspects of the formula as proposed. Rather, the scores represent approximate numbers using a simplified model, as explained below. Limitations include the following:

  • The scores were generated using applicable compliance-history data from September 1, 2006–August 31, 2011, made public on October 1, 2011 and thus to regulated entities so they can make corrections, as necessary, since that date.  Upon rule adoption, new compliance-history scores will be generated using data from September 1, 2007–August 31, 2012.
  • The scores do not accurately reduce points for compliance with administrative orders. Under the proposed rule, two years after the effective date of an order, if an entity is compliant with all ordering provisions and has resolved all violations, the points attributable to that order will be reduced.  The reduction will be 25 percent for year three, 50 percent for year four, and 75 percent for year five.  The simplified model does not take into consideration compliance with the order. Therefore, under the simplified model, all orders receive the total reductions allowed each year under the proposed rule.  Entities that have not yet achieved compliance with an order receive a reduction under the simplified model that is not warranted.
  • Points awarded for “small entities” are not completely reflective of the proposed rule.  Under the proposed rule, points are allocated to small entities.  The simplified model allocates points for small businesses but does not allocate points for small cities and counties.
  • Reductions for voluntary programs are not completely reflective of the proposed rule.  The proposed rule allows for a maximum 25% reduction of compliance history points for implementing voluntary programs, such as an environmental management system.  If an entity has multiple voluntary programs, the simplified model does not accurately apply reductions for all programs.
  • Changes to the proposed formula and associated compliance-history components may be made as part of the rule adoption process.  Any changes to the proposed formula or components as a result of the rulemaking process would change scores that will be calculated on September 1, 2012.

To download test Compliance History scores click the link below:


Please note that these reports are large files and, depending on your connection speed, may take several minutes to download.

These scores will only be available to download for the duration of the Chapter 60 public-comment period, which has been extended and will close on March 23, 2012.

You may comment on this rule via eComments.

We have provided sample comments for you to use in submitting your own.  We have also provided information on where and how to submit your comments below.

Comments of _Your name here_ on 2011-032-060-CE: HB 2694 (4.01 and Article 4): Compliance History Draft Rules.

Polluter-friendly amendments, proposed in the Texas Commission for Environmental Quality’s new regulatory rules, serve to increase the degree of noncompliance a company is permitted with no consequence. More noncompliance means more unauthorized toxins in the air, water, and ground in communities across Texas.

We are unsatisfied with the compliance history proposals because:

  • The TCEQ has jurisdiction over 250,000 entities all around the state. Holding one public hearing at 10 a.m. in Austin does not give citizens enough of an opportunity to give feedback. I would like to have a meeting hosted at the TCEQ office in my region so that I can participate in this process.
  • Increased compliance history leniency will cut the percentage of companies considered unsatisfactory from 5% to a mere 3% without reducing an ounce of pollution.  Compliance standards should be raised the longer a regulation has been in place, not made less effective by changing the unsatisfactory rating cutoff from 45 to 55 noncompliance points.
  • The executive director will be able to pardon polluters at his discretion—instead of adhering to a standard protocol. Why have formal classifications if the director can reclassify an entity or decide that a repeat violator charge should not apply? This is a nontransparent, unstipulated and unacceptable loophole.
  • Polluters will improve their compliance history score by signing up for supplemental environmental programs, regardless of effectiveness. Mere participation in a voluntary pollution reduction points does not warrant a 5% reward. The formula should call for measured returns for measured results.
  • The TCEQ has not presented information that calculates how the new formula will affect entities. Given the denseness of the proposal’s language, I would like to have a way to interpret the new compliance history ratings.
  • The proposed language for repeat violations would make it very difficult for any facility with many “complexity points” to ever be considered a repeat violator. Because so many points are given for different kinds of permits, authorizations and even hazardous waste units, getting to “25” complexity points will be easy for any large industrial facility or major entity, meaning that the only way they would be penalized for being a repeat violator would be to have four or more violations over the last five years.

I urge you to utilize TCEQ’s rulemaking process to implement changes that will benefit the health, communities, and resources of Texas citizens and not the pocketbook interests of businesses.

Comments due by 5pm on March 23, 2012.

Texas Register Team – MC 205 General Law Division Office of Legal Services TCEQ P.O. Box 13087 Austin, TX 78711-3087

Tips on Commenting Effectively

You will be providing comments for the rulemaking – 2011-032-060-CE: HB 2694 (4.01 and Article 4): Compliance History

  • Identify who you are and why the regulation affects you;
  • Explain why you agree or disagree with the proposed rulemaking;
  • Be direct in your comment; and
  • Offer alternatives, compromise solutions, and specific language for your suggested changes.

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In a state where regulatory issues are driven by “crony capitalism” a  has proposed federal bill could give industry a blank check here in Texas.

The Regulatory Accountability Act (RAA) (S. 1606/H.R. 3010) is a radical measure that would severely weaken laws that protect our health, safety and the environment. A new paper from the Coalition for Sensible Safeguards, Impacts of the Regulatory Accountability Act: Overturning 65 Years of Law and Leaving Americans Less Protected, reveals how the proposed bill would cripple the federal regulatory process, placing the public in harm’s way.

“The striking examples in this paper show that the Regulatory Accountability Act is designed to undermine our regulatory system, not improve it,” said Katherine McFate, president of OMB Watch. “For decades, agencies have been working to make our air and water cleaner, to improve the safety of the products we buy for our homes and families, and to reduce our children’s exposure to highly toxic lead. This legislation would make their work harder, and everyday Americans would feel the consequences.”

The RAA not only would change procedural and evidentiary requirements, but also would add more delays and set an even higher bar than currently exists for issuing needed protections. In effect, the bill would hamstring all rulemaking agencies and squander their resources, hurting the American people in the process.

The RAA would negatively impact rulemaking in several key ways:

  • Making the “least costly” rule the default choice, instead of promoting the public good
  • Super-mandating cost-benefit analysis even when it would be misapplied
  • Shifting to formal rulemaking processes that thwart appropriate give and take
  • Eliminating hybrid rulemaking that is often the best approach
  • Allowing judicial review of all agency judgments, undermining scientific findings

Agencies have already had unconstructive experiences with similar formal rulemaking procedures and a “least costly” rule provision; industry has used them to interfere with and delay commonsense standards and safeguards.

A classic example of this is the Food and Drug Administration’s “peanut butter” rule, which was developed several decades ago. After a July 1959 press release revealed that the largest brands of peanut butter contained only 20 percent peanuts, the FDA began the rulemaking process according to the formal rulemaking procedures provided in the Food, Drug, and Cosmetic Act (FDCA). The FDA’s proposed rule provided that peanut butter must contain at least 95 percent peanuts; however, after recognizing that consumers preferred peanut butter that spread more easily, the FDA reduced the standard to 90 percent in 1961. The industry petitioned the FDA for a formal hearing (in accordance with the formal rulemaking provisions in the FDCA) to argue for the standard to be set at 87 percent. The formal hearing alone added almost five months to the rulemaking process and resulted in a transcript of approximately 8,000 pages primarily discussing whether peanut butter should contain 87 percent or 90 percent peanuts.

Nine years later, in July 1968, the FDA finalized the standard at 90 percent. Yet, the battle continued for another two years as a result of the industry’s challenge of the rule in the Third U.S. Circuit Court of Appeals. Ultimately, the court affirmed the agency’s finding, noting that, based on the formal record, even if 87 percent was a reasonable alternative, the FDA’s 90 percent standard was equally reasonable and thus should not be overturned.

The paper highlights many other examples of how the Regulatory Accountability Act would severely impede the federal government’s ability to protect its citizens.

Robert Weissman, president of Public Citizen added, “The RAA aims to hamstring consumer, environmental and other regulating agencies and empower Big Business to stop agencies from issuing new rules. The bill delivers a clear message: Giant corporations should not be subject to law and order.”

Click here to read the full white paper – Impacts of the Regulatory Accountability Act: Overturning 65 Years of Law and Leaving Americans Less Protected – by the Coalition for Sensible Safeguards.

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As the Texas Sunset Advisory Committee takes a look at our environmental regulatory agencies this interim, perhaps they should consider Texas’ grade in a new report released by the Institute for Policy Integrity – a “D minus” the lowest possible grade of all the states reviewed because of  inadequacies in  how our regulatory decisions are made. The results of that report point to billions of dollars wasted and inadequate protections for Texans.

Institute for Policy IntegrityThe Institute for Policy Integrity, a non-partisan advocacy organization and think-tank dedicated to improving the quality of governmental decisionmaking and sponsored by the New York University School of Law developed fifteen points of evaluation for an ideal regulatory process.  Among them: regulatory review that properly calibrates rules; review that is consistent and buffered from political influence; and review that provides a balanced treatment of costs and benefits.  The Institute took a look at how states routinely regulate industries whose economic footprints climb into the hundreds of millions.

Nearly twenty percent of the American economy is regulated by state governments. But there are major concerns about how regulatory decisions are made. The results of “52 Experiments with Regulatory Review” point to rules that are often made ad hoc and in too many cases yield inefficient results that limit public benefit, wasting billions of dollars and providing inadequate protections for Americans—earning states an average grade of “D+” with the lowest possible grade being a “D-.”  Seven jurisdictions scored a D-, having met none of the guiding principles: Alaska, Delaware, the District of Columbia, Georgia, Louisiana, New Mexico, and Texas. (more…)

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