Texas Register, Volume 37, Number 6, Pages 553-814, February 10, 2012 Page: 643
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together require the commission to promulgate rules that estab-
lish a regulatory process that encourages the use of a variety
of innovative and alternative programs, such as environmental
management systems; and includes regulatory flexibility orders
and other incentives for regulated entities. The proposed new
rules also relate to the incentives the commission will use to en-
courage the use of strategically directed regulatory structure to
provide incentives and regulatory flexibility to issue exemption
orders for those same regulated entities. TWC, 5.122, dele-
gates to the executive director the commission's authority to act
on an application or other request to issue, renew, reopen, trans-
fer, amend, extend, withdraw, revoke, terminate, or modify a per-
mit, license, certificate, registration or other authorization, or ap-
proval. Finally, these new rules are also proposed under Texas
Government Code, 2001.006, which provides state agencies
the authority to adopt rules or take other administrative action
that the agency deems necessary to implement legislation.
The proposed new rules are offered to implement House Bill
2694, 82nd Legislature, 2011, Article 4, 4.01, 4.06, and 4.08,
which created the revisions to compliance and enforcement
programs, including amendments to TWC, 5.751, 5.755, and
5.758.
90.1. Purpose.
The purpose of this chapter is to establish rules provided for in Texas
Water Code (TWC), 5.755, relating to incentives for enhanced en-
vironmental performance under a Strategically Directed Regulatory
Structure; TWC, 5.758, relating to commission issuance of Regula-
tory Flexibility Orders for an exemption for an applicant who proposes
an alternative method or alternative standard to control or abate pollu-
tion; and TWC, 5.127, relating to Environmental Management Sys-
tems.
90.2. Applicability.
(a) The provisions of this subchapter are applicable to all per-
sons subject to the requirements of Texas Water Code (TWC), Chapters
26, 27, and 32; and Texas Health and Safety Code (THSC), Chapters
361, 375, 382, and 401. The applicable regulatory activities include,
but are not limited to:
(1) discharges to surface water and groundwater regulated
under TWC, Chapter 26;
(2) petroleum storage tanks regulated under TWC, Chapter
26;
(3) disposal of waste by underground injection regulated
under TWC, Chapter 27;
(4) systems for subsurface area drip disposal regulated un-
der TWC, Chapter 32;
(5) management and disposal of industrial solid waste, haz-
ardous waste, or municipal solid waste (including composting, sewage
sludge, and water treatment sludge) regulated under THSC, Chapter
361;
(6) removal of convenience switches and the convenience
switch recovery program under THSC, Chapter 375;
(7) emission sources of air contaminants regulated under
THSC, Chapter 382; and
(8) management and disposal of radioactive material waste
regulated under THSC, Chapter 401.
(b) This subchapter does not apply to occupational licensing
programs or other programs specifically exempted by statute.(c) Regulatory Flexibility Orders shall not authorize exemp-
tions to statutes or regulations for storing, handling, processing, or dis-
posing of low-level radioactive materials.
90.3. Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise.
(1) Applicable legal requirement--A state or federal envi-
ronmental law, regulation, permit, order, consent decree, or other re-
quirement.
(2) Certified--For purposes of this chapter, a documented
third party decision that the environmental management system meets
the minimum standards of a recognized environmental management
system standard.
(3) Enhanced environmental performance--An activity by
a person, including any measurable voluntary action undertaken by a
person to improve environmental quality, which:
(A) reduces or eliminates discharges or emissions of
pollutants to an extent that is greater than required by applicable le-
gal requirements;
(B) provides an overall reduction of discharges or emis-
sions of pollutants from a site to an extent that is greater than required
by applicable legal requirements;
(C) reduces a negative impact on air, water, land, natu-
ral resources, or human health to an extent that is greater than required
by applicable legal requirements; or
(D) is otherwise determined by the executive director
to improve environmental quality to an extent greater than required by
applicable legal requirements.
(4) Environmental aspect--Element of a person's activities,
products, or services that can interact with the environment.
(5) Environmental impact--Any change to the environ-
ment, whether adverse or beneficial, wholly or partially resulting from
a person's activities, products, or services regarding a specific site.
(6) Environmental management system--A documented
management system to address applicable environmental regulatory
requirements that includes organizational structure, planning activi-
ties, responsibilities, practices, procedures, processes, and resources
for developing, implementing, achieving, reviewing, and maintaining
an environmental policy directed toward continuous improvement.
(7) Independent assessor--A person or team of people, at
least one of whom has appropriate professional credentials and experi-
ence to review an environmental management system. The assessor(s)
must not have contributed to the development of the system being as-
sessed.
(8) Innovative program--
(A) a program developed by the commission under
Texas Water Code (TWC), Chapter 5, Subchapter Q, Performance
Based Regulation; TWC, Chapter 26 or 27; or Texas Health and Safety
Code (THSC), Chapters 361, 382, or 401; that provides incentives to
a person in return for benefits to the environment that exceed benefits
that would result from compliance with applicable legal requirements;
(B) the flexible permit program administered by the
agency under THSC, Chapter 382, and defined in Chapter 116, Sub-
chapter G of this title (relating to Flexible Permits);
(C) the regulatory flexibility program described in
90.20 of this title (relating to Regulatory Flexibility);PROPOSED RULES February 10, 2012 37 TexReg 643
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Texas. Secretary of State. Texas Register, Volume 37, Number 6, Pages 553-814, February 10, 2012, periodical, February 10, 2012; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth215970/m1/91/?q=%222012~%22: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.