NEW BUSINESS

1. Discussion of agency reports on enforcement actions for various media including agriculture, air, industrial and hazardous waste, municipal solid waste, occupational certification, petroleum storage tanks, public water supply, water quality, and multi-media. Anne Dobbs (Enforcement Division) presented this item. No action taken.

2. Discussion of Enforcement Penalty Policy and other agency enforcement issues. Joe Vogel (OCE), Ann McGinley (OCE/ENF), Paul Sarahan (OLS), Vic Fair (Beaumont Regional Director), Leonard Spearman (Houston Regional Director), Carl Forrester (COMM/ADR), Ron Pedde (WASTE), Ramon Dasch (OLS), and Tamra-Shae Oatman (EXEC/SBA), participated in the presentation of these issues.
   • Staff was directed to continue to limit the use of Voluntary Cleanup Program by respondents who are under enforcement or where the intent may be to avoid a penalty. In addition, staff was directed to pursue the use of VCP where Superfund sites are involved and speed of cleanup can be accelerated.

   • Staff was directed to look at what constitutes a significant violation and rewrite the Criteria for Use of Findings Order to give enforcement staff flexibility in its application across all media. Staff will revise the policy and brief the Commissioners individually in the future.

   • Concerning the Supplemental Environmental Projects Policy, the Commissioners agreed that 100% remittance is a significant deterrence and are in favor of making the SEP policy less restrictive so more communities can benefit. Staff was directed to rewrite the policy to remove language which gives the appearance of SEPs being favorable treatment and more accurately reflects the relationship between SEPs and penalties. The penalty reduction ratio needs to be tied directly to the environmental benefit the SEP brings to a community. The greater the environmental benefit, the closer to a 1:1 or dollar for dollar reduction of the penalty. Commissioner Baker expressed a particular interest in developing some sort of mechanism to combine individual projects which promote habitat rehabilitation projects such as wetlands rehabilitation or sea grass rehabilitation and include this information with outreach activities. They also urged the development of third-party agreements with non-political organizations, but cautioned that the process needed to be “as simple as writing a check.” Commissioner Marquez directed staff to consider using the Public Interest Counsel as an advocate for such agreements. In addition, staff was directed to develop a more formal process for determining economic benefits derived from SEP projects.

   • Staff was directed to continue to scrutinize the facts behind permit amendments/modifications which are intended to correct a violation. Approval should not be automatic, and companies should be required to operate within existing limits unless specific reasons exist. Requiring the use of offsets to the excess emissions was also authorized in appropriate situations.

   • The Commissioners directed staff to look at additional ways to help small businesses comply by allowing an entity to first be given an opportunity to come into compliance. In addition, small businesses participating in the site visit program will be exempt from scheduled inspections for a year provided the noncompliance issues are satisfactorily corrected, documented, and maintained. Staff was directed to devise an informative pamphlet that, in simple terms, describes the enforcement process and the consequences of ignoring agency correspondence. It would be included with the enforcement documents sent to a respondent. While no data base projects were authorized, the commission recognized the need to track more specific information on the types of violations occurring and to distinguish between small and large businesses. The Information Strategic Plan will be examined for ways to improve this data.

   • In addition to drafting recommended changes to the Penalty Policy, staff was directed to make the executive summary document more explicit as to culpability and/or penalty enhancement.

3. Discussion of enforcement default orders and use of Alternative Dispute Resolution to address these and other enforcement actions. Due to insufficient time this issue was deferred to a future work session.

4. Discussion of enforcement orders issued to small businesses for fiscal years 96 through 98. The discussion of this issue was addressed in Item 2.

5. Consideration of activities associated with State Implementation Plans and the proposed Regional Clean Air Strategy. Herb Williams (OPRD/AIRPR) presented this item. The Commissioners identified the counties to be included in the Texas Clean Air Strategy Region and directed staff to proceed with rulemaking relating to clean fuels and Stage I Vapor Recovery in this area. Staff was also directed to examine the possibility of limiting further rules on small sources in the new area without an adequate, well-documented need.

6. Discussion of issues for the up-coming fall meeting of the Environmental Council of States. Trace Finley (OPRD) presented this item. No action was taken.

7. Consideration of the agency's legislative proposals and other related issues to be addressed during the 76th Texas legislative session. The commission may also meet in closed meeting to receive legal advice regarding these matters, or any of the above matters, as authorized by Section 551.071 of the Open Meetings Act, Chapter 551 of the Government Code. Any commission action, decision, or vote on these matters will be made in open meeting in accordance with Section 551.102 of the Open Meetings Act, Chapter 551 of the Government Code. No action was taken on this issue.

8. Planning for the next Commissioners’ Work Session. The next Commissioners’ Work Session will be on Thursday, November 5, 1998.