As Texas environmental commissioners near the end of a yearlong project to fix flaws in programs to police pollution, they are scheduled today to debate one of their staff's most contentious proposals: making major polluters forfeit the millions they save each year by breaking the law.

Today's meeting will be one of the final opportunities for the public, advocacy groups and industry lobbyists to weigh in on dozens of policy changes before the three commissioners decide which to adopt.

After a possible vote Dec. 17, it will probably take months to turn some of the new policies into formal rules, said Kathleen Hartnett White, chairman of the Texas Commission on Environmental Quality.

The commission, White said, has implemented more than half of the recommendations the state auditor made in a report in December 2003 that concluded that the commission's enforcement programs failed to effectively deter polluters.

Among those changes, it has hired a collection agency to recover what the auditor said was an excessive amount of delinquent fines.

In line with another key recommendation, commissioners will consider requiring violators to pay the state all the money they saved by not installing pollution control systems or by not fixing malfunctioning equipment, plus fines, as is the law in other states including Florida, Illinois, New York and Oklahoma.

Industry groups want limits on the state's recovery of economic benefits, suggesting that the penalties be reduced at least by the amount a company spends to fix the problem or that the added penalties apply only if there's harm to public health or the environment.

"I can't predict what will happen," White said.
The stakes are significant, based on the auditor's report.

In 80 environmental enforcement cases that the auditors examined, polluters gained economic benefits of about $8.6 million while violating the law, but the commission fined them $1.68 million.

There are several other high-dollar and high-stakes issues in play, including how much of a break, if any, small businesses and governments might get on fines.

But some of the reforms the commission staff proposed in a 312-page report issued in late August appear guaranteed, including a plan to streamline the enforcement process by allowing state inspectors to issue citations for relatively minor violations.

Such an option might resolve citizen concerns that fines weren't imposed in some high-profile cases in Travis County.

Local violations

Last April, inspectors arrived at a western Travis subdivision to check out residents' complaints that an illegal dam was polluting Lick Creek.

Besides confirming water pollution violations, an inspector reported that a contractor building the West Cypress Hills' wastewater treatment plant was using a highly toxic solvent, methyl ethyl ketone, in violation of his state permit.

"The 5-gallon container was removed from the site at this time, and it was discussed that it would not be brought back," state documents say.
But a month later, in response to another complaint, commission inspectors found an open 5-gallon container of the solvent "hidden in a clump of trees" adjacent to a tributary of Lick Creek, records say. This time, inspectors issued a written violation. But the matter was resolved in early June, with no fine proposed.

"It only made sense to us that, when there was evidence someone intentionally disregarded the law about a really toxic chemical that could have spilled into the creek, and they obviously tried to conceal it, that the TCEQ would at least fine them a couple hundred dollars," said Pepper Morris of Guardians of Lick Creek, a neighborhood group.

"I thought that fines were used to deter bad behavior, but not fining someone in a case like this just encourages it."

Under the field citation proposal, and a related plan to establish mandatory minimum fines, the outcome of the Lick Creek case might have been different, officials said.

For the first time, commission inspectors would be able to immediately issue citations for violations that, because no obvious harm occurred, often have been dropped to save time and expense. Instead of each case triggering a complex process in which penalties are calculated and settlements negotiated by lawyers, citation-level violations would be like traffic tickets, with set fines for various infractions.

"We think that's one of the positive proposals," said Luke Metzger, one of the coordinators for the Alliance for a Clean Texas, a coalition of 21 consumer and environmental groups.

But the alliance also has told commissioners that it is troubled that the pending plan for setting minimum fines could, according to the commission staff's own analysis, result in "significantly lower penalties in 60 to 70 percent of all cases."

Another major concern, Metzger said, is that the commissioners have said they do not plan to increase the number of field inspectors, despite a projected rise in violation cases they will need to handle.

A team approach

Commissioner Larry Soward is advocating an alternative program that would team the commission with other agencies, including river authorities, and give them the power to enforce certain state pollution laws and collect the penalties.

Although the alliance doesn't see that as a substitute for more commission inspectors, Metzger and some law enforcement officials say they like Soward's idea of training more inspectors from other state and local agencies to identify violators.

"With more eyes, you'll obviously be able to identify more problems," said Kevin Morse, chief of the Travis County attorney's environmental crimes unit, which typically has about 100 criminal cases pending.

"A majority of our major cases are (already) reported by local code enforcement personnel or citizens."