HBA-EVB S.C.R. 72 76(R)    BILL ANALYSIS


Office of House Bill AnalysisS.C.R. 72
By: Ratliff
Civil Practices
5/22/1999
Engrossed



BACKGROUND AND PURPOSE 

S.C.R. 72 grants permission to Dean Lumber Company, Inc. (the company), to
sue the State of Texas and the Texas Natural Resource Conservation
Commission (TNRCC), and makes certain allegations, as follows: 

The company alleges that TNRCC has engaged in predatory, malicious, and
unfair practices in the enforcement of TNRCC rules and regulations that
have resulted in economic damages to the company. 

The company alleges that it has always strived to maintain compliance with
the rules and regulations of TNRCC, devoting substantial time and expense
to that pursuit. 

The company specifically alleges that when it was notified by TNRCC of the
TNRCC's upcoming inspection of the the company's facilities, TNRCC refused
the company's request to schedule the inspection at a mutually convenient
date. 

The company alleges that the refusal to schedule the inspection as
requested resulted in the loss of 10 days of production. 

The company alleges that the loss of production resulted in the loss of
customers, who were frustrated by the company's lagging production. 

The company specifically alleges that TNRCC has enacted rules and
regulations with which it is technically and practically impossible to
comply and which TNRCC has arbitrarily and capriciously enforced against
the company.  

The company alleges that the arbitrary and capricious enforcement of the
rules and regulations has resulted in the company spending thousands of
dollars defending itself from the imposition of unfair and factually
unwarranted penalties by TNRCC. 

The company specifically alleges that TNRCC intentionally and knowingly
published or caused to be published false information regarding the
emission levels of arsenic and chromium from the company's facility, which
reflected a much higher emission level than was accurate. 

The company specifically alleges that as a result of the arbitrary and
capricious enforcement practices of TNRCC, as well as the publication of
false information regarding emission levels of arsenic and chromium, the
company has been targeted for potential toxic tort lawsuits, and this has
caused the company to spend thousands of dollars defending itself from
these frivolous lawsuits. 

The company specifically alleges that once it was notified of possible
noncompliance with the rules and regulations, it petitioned TNRCC to join
TNRCC's voluntary compliance program but was denied solely because it was
being targeted for possible sanctions by TNRCC. 

 The company alleges that the actions of TNRCC are in direct conflict with
TNRCC's stated mission that its "decisions must be based on common sense,
good science, and fiscal responsibility" and deprived the company of the
ability to meet financial commitments. 

The company alleges that it has sustained damages as a result of the
actions of TNRCC. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

S.C.R. 72 grants permission to Dean Lumber Company, Inc. (the company), to
sue the State of Texas and the Texas Natural Resource Conservation
Commission (TNRCC) subject to Chapter 107 (Permission to Sue the State),
Civil Practice and Remedies Code.  S.C.R. 72 also provides the following: 

Provides that the remedies available to the company in the suit authorized
by this resolution are limited to the remedies traditionally available for
the causes of action alleged in this resolution, but prohibits the company
from recovering punitive or exemplary damages resulting from the actions of
TNRCC. 

Authorizes the company and TNRCC to agree to submit the matter that is the
subject of this resolution to binding arbitration. 

Provides that the executive director of TNRCC be served process as provided
by Subdivision (3), Subsection (a), Section 107.002 (Effect of Grant of
Permission), Civil Practice and Remedies Code.