Small Business Compliance Advisory Panel

Environmental Insider News, Dec 8, 2003

Small business representatives came to the Commissioner's work session on December 5 to express their concerns over agency practices. First off was a report from Executive Director Margaret Hoffman, who announced a major new project for the Office of Compliance and Enforcement that will - she promised - include a review of how enforcement activities are affecting small businesses and small local governments in the Lone Star State. That was followed by a report on fiscal 2003 impacts on small business and local governments provided by Tamra-Shae Oatman, manager of TCEQ's Small Business and Local Government Assistance Section. Finally, Ken Legler, who chairs the state's Compliance Advisory Panel, addressed the Commission regarding key policy changes the panel has recommended in the areas of compliance history and the dry cleaner fund program.

Hoffman's report was a stunner, as she noted that in the decade since the consolidation of Texas' environmental regulatory authority into the Texas Natural Resource Conservation Commission (now known as TCEQ), there has been some fine tuning of the agency's penalty policy but never a thorough review of the compliance and enforcement program. One aim of the coming review is to refocus the OCE staff toward ensuring that the top priority is human health and the environment - not just writing and enforcing rules. Hoffman promised to take into consideration various negative (and positive) comments on various aspects of the penalty policy and on the newly installed compliance history rating system.

Commissioner Larry Soward, a former Executive Director at the old Water Commission, applauded Hoffman for her leadership and called the planned review very timely. He encouraged her to involve all stakeholders and to proactively address all compliance and enforcement issues via an extensive and intensive review process. The result, he said, should be a higher degree of confidence by all parties in the TCEQ program. Presiding Officer Kathleen White agreed that a broad, deep review is much needed, and said she had some specific policy questions to pose to OCE staff. She added that there is some new technology and monitoring capacity that should help TCEQ determine its compliance and enforcement priorities. The recent EPA report on the state of the environment, she and Commissioner Ralph Marquez agreed, provides much food for thought about how to ensure that the agency's focus is on prevention of environmental harm or the threat thereof. Details of the new initiative are forthcoming.

Oatman explained that her SBLGA staff had analyzed five years of penalty data and found that small businesses and small governments were paying much higher penalties than just a year ago - at $5,157 and $7,568, respectively. That's up 21% and 28%, respectively. Moreover, small businesses accounted for 58.6% of all orders issued in fiscal 2003, up from 54.6% in fiscal 2002, while small governments accounted for 5.4% in 2003, up slightly from 4.7% in 2002.

Petroleum storage tank enforcement cases accounted for 36% of the total caseload in fiscal 2003, and small businesses were involved in 79% of those cases. Many of these involved default orders. Oatman noted that her staff had conducted a self-certification initiative in 2001 and is seeking to inform station owners and operators about financial assurance requirements this year. One problem is the lack of formal associations for PST operators; another is that any education outreach to this industry will have to be very labor intensive, given the 20,000-plus operators statewide.

Commissioner Larry Soward suggested that TCEQ partner with the Texas Department of Agriculture (which inspects tanks for readout accuracy) in an education program. Staff noted that there is an existing Memorandum of Agreement with the TDA, which was used to assist in the self-certification program, but TDA is not a regulatory agency and should not be expected to assist TCEQ in regulatory activities. Oatman acknowledged that, a few years back, her staff had called every small local government and small business in Texas which had wastewater permits expiring that year to remind them to renew their permits. That program was very successful, but it would be hard to replicate it for the PST program.

Legler heads up the 7-member panel (two appointees of the Governor, Lieutenant Governor, and House Speaker plus the TCEQ member), which is charged with ensuring the interests of small businesses in TCEQ policy and rule development, evaluating the effectiveness of TCEQ technical assistance to small businesses, and ensuring that materials distributed to small businesses are clear, concise, and understandable. CAP recommendations to TCEQ and the Legislature have included -

* providing written notification to "poor performers" for compliance history.

* evaluating if registration is needed to ensure that small businesses meet air permits by rule.

* creating de minimis criteria for air authorizations for sites with negligible air impacts.