For Immediate Release (Wednesday, November 30, 2005):
Contact: Ken Kramer, 512-477-1729
Donna Hoffman, 512-477-1729 or 512-299-5776
The
Lone Star Chapter of the Sierra Club consists of over 25,000 members.
The Chapter spans the entire state of Texas, excepting El Paso, which
is part of the Rio Grande Chapter.
Located in Austin, the Lone Star Chapter's State Conservation Office
serves Sierrans as their grassroots communications center. We also provide
Sierrans with a full time professional activist staff employed to represent
Sierrans as we fight at the state level to protect and conserve Texas'
diverse and valuable natural heritage.
More Information on TCEQ Administrative Penalty Policy Reveiw
Looking for Answers
TCEQ has set out a specific set of issues in the form of questions on administrative penalty issues. The agency is asking parties to answer one or more of those questions in any comments submitted during the current policy review. Following are the general questions posed by the agency, along with the basic responses of the Lone Star Chapter of the Sierra Club to the questions.
Economic Benefit – What should TCEQ consider when calculating the penalty adjustment for economic benefit?
The Sierra Club believes that TCEQ should require that all of the realized economic benefit gained through the violation(s) should be recovered through the administrative penalty assessed against the violator. Where a significant economic benefit is evident, TCEQ should require the violator to undertake corrective actions that exceed the minimum required for compliance. Economic benefit is a critical issue in pursuing compliance. Administrative penalties should not be simply the “cost of doing business” – they need to negate whatever economic benefit a violator gained from a violation(s) or else the deterrent value of such penalties is practically nil.
Small Business/Small Local Governments – What should TCEQ consider when calculating the penalty for a small business or a small local government?
The Sierra Club believes that TCEQ should not provide for a standard downward adjustment of a penalty because the violator is a small business or a small local government. Nor does the Club believe that TCEQ should provide for any deferral of penalties in lieu of a standard downward adjustment for such small entities. Finally, in this regard, the Club does not believe that TCEQ should allow for longer compliance deadlines for small businesses or small governments. Everyone should be held to the same standard, and all violators need to face the consequences of their actions fully and expeditiously.
Good Faith Efforts to Comply – What should TCEQ consider when calculating the penalty adjustment related to good faith efforts to comply?
The Sierra Club believes that TCEQ should not provide for good faith reductions in an administrative penalty when some but not all violations have been corrected. Moreover, there should be no good faith reduction in a penalty for violators that are deemed “culpable” (see below).
Culpability – What should TCEQ consider when calculating the penalty adjustment related to cupability?
Culpability here refers to whether a violator could have reasonably anticipated and avoided the violation but did not do so. The Sierra Club believes that a violator should be considered culpable if that person or entity has a permit or registration issued by TCEQ and/or has been previously been issued a notice of violation, notice of enforcement, or
Commission Order for the same or a similar violation. Agency permittees or registrants are obligated to know and meet the terms of their permits or registrations; thus, they should be expected to take steps to avoid violations in the first place. If they do not, then they are culpable, and their fine should be adjusted upward to reflect that (current TCEQ policy says that where there culpability exists, 25% will be added to the penalty amount. The Sierra Club does not believe that TCEQ should provide for a penalty reduction in cases where the violation(s) were documented during a self-inspection and voluntarily self-reported. Violations are violations, regardless of how discovered.
Standard Penalties – What should TCEQ consider in using standard penalties for violations that the current penalty policy classifies as “potential” or “programmatic”?
The Sierra Club believes that all 12 of the proposed violation categories for standard penalties for so-called “paper” violations are significant and should be included in the rule that TCEQ is developing for calculating administrative penalties. (These categories include such items as falsification of data or other information; reporting, compliance certifications, and notification; records production and maintenance, financial assurance, etc.) Violations of these types of requirements may well be cover-ups of more extensive problems and should not be tolerated. Trying to rank the proposed violation categories for standard penalties by order of importance would insert a level of complexity that is unneeded.
These are the basic issues raised by TCEQ in the agency’s review of its policy on calculating administrative penalties. The Sierra Club urges Texans to submit comments to the agency that reflect our suggestions and positions above.
