Marked Agenda
Commissioners' Work Session (Open Meeting)
Friday, March 10, 2000
9:30 a.m.
Room 201S, Building E, Park 35, Austin

New Business

1. Discussion of the Proposed New Format for the Monthly Enforcement Reports and Presentation of the Monthly Enforcement Reports for October, November, and December of 1999 and January of 2000. Anne Dobbs, Compliance and Enforcement, presented this issue. The new format depicting graphic trends in orders issued from FY1998 through FY 2000 disclosed increases in orders issued in PST, Public Drinking Water, and Water Quality areas. The basis for the larger numbers are believed to be the result of the fiscal year 1999 PST Initiative and changes to procedures for handling EPA significant violators in the drinking water and TPDES programs. The number of orders issued in the other program areas depicted predictably similar total numbers from year to year. The Report also included data, for the first time, on the Environmental Audit Program. No action on this issue.

2. Discussion of Enforcement Penalty Policy and other agency enforcement issues. Paul Sarahan, Litigation Division, Ann McGinley and Lemarcus Johnson, Compliance and Enforcement, and Tamra-Shae Oatman, Small Business and Local Government Assistance, presented this issue. Ann briefly described some of the Commissioners' comments made during Agendas while considering issuance of specific administrative enforcement orders. Ann presented a draft of proposed changes to the Penalty Policy which stem from the Commissioners' comments. Staff asked the following questions concerning the penalty policy and problems the Commissioners see and/or changes they would like made.
   • Does the commission want to change the Criteria for use of Findings Orders so that impact of the violation (action) is addressed rather than the degree of the violation (action)? The Commissioners' liked the proposed changes embodied in the draft.

   • Does the commission want to change the Penalty Policy? The Commissioners' liked the proposed changes outlined in the draft.

   • Does the commission want to continue offering penalty deferrals related to early settlements? The Commissioners' liked the idea of continuing to offer penalty deferrals and asked that we continue to look at what savings might be generated in staff time and effort in cases that settle with deferrals included.

   • Paul suggested publication of a notice of the commission's intentions to make these changes and suggested a 30 day comment period in order to assess the public's reaction to the proposed changes. The commission liked the proposed changes and the idea of public notice, but would like to see the public comments before making a final decision. The penalty policy and findings criteria issues would be revisited at a later work session to discuss any substantive comments. At that time the Commissioners would formally make a decision on the proposed changes.

     As part of ongoing analysis of the affects on small businesses of the new (1997 version) Enforcement Policy, Tamra-Shae, presented a Review and Analysis of FY99 enforcement statistics pertaining to small businesses. The findings are:

   • The percent of total orders with default for small businesses decreased from 13% (68 total default orders) in FY98 to 8% (56 total default orders) in FY99. Staff believes this decrease is due to a change in the Enforcement SOP which enables SBLGA staff to contact non-responsive entities by telephone to encourage them to contact our staff attorney to settle the enforcement case. During FY99, SBLGA staff contacted a total of 42 entities in this effort.

   • The number of Supplemental Environmental Projects (SEPs) conducted by small businesses increased from eight for $256,437 in FY98 to nine for $194,471 in FY99. The SEP coordinator worked with local governments resulting in 22 local governments participating in SEPs with a dollar amount of $335,434. SBLGA staff has also promoted the use of SEPs during the course of their routine business.

3. Consideration of activities associated with State Implementation Plans and update on the 8-hour ozone designation. No action taken on this issue.

4. Consideration of legislative implementation affecting the TNRCC and other issues related to actions taken by the 76th Texas Legislature. 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 taken on this issue.

Issue number 6 was taken out of sequence.

6. Update and discussion of issues regarding agency's response to the drought. This issue was presented by Herman Settlemeyer, Charles Maddox, and Nancy Baier, Water Permits. Staff provided the Commissioners with an update on recent water association meetings, systems in various stages of conservation, identification of at risk systems, a comparison of drought situations to previous years, current reservoir levels and an update on curtailment of junior water rights, and an update on suspension of temporary water rights. Nancy described various documents provided to the Commissioners such as our outreach plan, Drought Reference Manual, and the website plans. Charles described the "at risk" systems, mentioning 74 systems are currently on the drought watch list compared with nine at this time in 1996. Efforts to combine inspections of these at risk water systems with annual inspections by Field Operations is in progress. Herman talked about water storage comparisons and submission of drought contingency plans. Ninety-seven percent of the drought contingency plans have been received and 77% of the water conservation plans have been received. The Executive Director was particularly interested in the public water supply entities who have not responded to the agency's drought contingency plan submission requirement by the deadline. He asked staff to provide him with entities whose plans are not forthcoming real soon.

5. Planning for the next Commissioners' Work Session. The work session previously scheduled for March 24th is canceled. The next work session will be on April 7, when, in addition to the standing issues, the Emission Banking and Trading issue is tentatively identified for discussion. Work Sessions for the summer will probably be convened on a monthly basis. A revised Tentative Dates schedule will be promulgated when the dates are known.