New Business

1. Consideration of the Commissioners' priorities on rule and policy development. Trace Finley (Executive Director's Office) provided the Commissioners with a brief update on the recent meeting of the Environmental Councils of the States (ECOS). The Commissioners agreed to volunteer to host the Spring 1998 ECOS meeting in San Antonio.

2. Docket No. 97-0231-RUL. Consideration for publication of proposed new 30 TAC Chapter 7, Section 7.104, concerning Memorandum of Understanding (MOU) between the Texas Water Development Board and the Texas Natural Resource Conservation Commission; and for authorization of the Executive Director to enter into the MOU. This proposed MOU would set forth the respective duties and responsibilities of the two agencies related to the Drinking Water State Revolving Fund Loan Program. (Rule Log No. 97123-007-WT) Todd Chenoweth (Water Policy and Regulations) and Steve Walden (Public Drinking Water) presented this item. Commissioner Baker moved that the Commission approve the proposal for publication in the Texas Register and authorize the Executive Director to sign the MOU. The motion was seconded by Chairman McBee and approved unanimously.

3. Consideration of the Commission's enforcement policy including the use of deferrals and the culpability factor of the penalty policy finalized and approved by the Commission at its February 12, 1997 work session and related issues. Ann McGinley (Enforcement) and John Riley (Litigation Support) presented this item. The Commissioners provided staff with guidance on the following issues. All the changes approved at the work session will be incorporated into the penalty policy and become effective April 1, 1997. The Commissioners instructed staff to write letters to each person who commented on the draft penalty policies to inform them that the policies are final.

   • Utilization of the penalty policy Staff will utilize the new penalty policy for all cases screened on or after April 1, 1997.
   • "Other Factors as Justice May Require" The Commissioners chose to leave this section of the policy as is, but directed staff to provide a thorough explanation for any recommendation utilizing this factor in the agenda back-up material. A penalty calculation should be done and the calculation worksheet should be included in the back-up material for all cases beginning now.
   • Extension of the 60 day process for supplement environmental projects (SEPs) and financial ability-to-pay review A short extension of time may be given to negotiate a SEP and/or to receive financial information to evaluate the ability to pay the assessed penalty if the respondent has agreed to the assessed penalty amount within 60 days. Otherwise, the 60 day limit will be strictly observed.
   • Number and names of cases still on the way with issues of: a. deferral didn't consider previous NOVs; b. deferral is 30% rather than 20%; c. case screened prior to September 1, 1996 and doesn't utilize Findings Order Staff shared this information with the commissioners and will provide monthly updates to the General Counsel.
   • Revising agenda presentation based upon Expedited Process Orders and Formal Process Orders The Commissioners liked this idea. Cases should be listed by program and then subdivided by expedited process orders and formal process orders.
   • EPA's comment letter dated February 14, 1997 No detailed discussion on this item.
   • Culpability/economic benefit/good faith effort
     1. Culpability - Divided culpability into 2 parts. Tier I will be for violators who were familiar with the violation due to previous NOV, compliance plans or some other documentation. Tier II will be for violators who may have known about compliance requirement through technical assistance and/or agency outreach. The upward adjustment to the penalty amount will be 25% and 10%, respectively.
     2. Economic benefit - The percentage adjustment will be based upon the degree of culpability. The monetary cut-off will remain at $25,000.
     3. Good faith effort to comply - The percent adjustment for corrective action completed after the EDPR will be eliminated. If a violator is culpable, staff will not consider an adjustment for corrective action completed between the NOV and EDPR. All corrective action completed prior to an NOV will be considered; however, if the violator is culpable, then the percent reduction in the penalty will not be greater than the percent increase under culpability section.

4. The Commission will consider in open meeting legislative matters related to its jurisdiction, including proposed legislation and related position papers, briefing materials, and status reports. The Commission may also meet in closed meeting to receive legal advice regarding these 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. The Commission met in closed session from 3:36 until 4:25 to receive legal advice. In open session -

   • David Duncan (Intergovernmental Relations) provided the Commission with a brief update on the status of the legislative recommendations of the TNRCC.
   • John Hofmann (Commissioners' Office), Mark Jordan (Water Policy and Regulations), and James Kowis (Water Policy and Regulations) provided the Commissioners with an update on recent changes made to SB 1 (the omnibus water bill). A committee substitute was amended and passed unanimously out of committee last week. The bill is scheduled for consideration on the Senate floor on April 2nd.

5. Planning for the next Commissioners' Work Session. The next Commissioners' Work Session is scheduled to be held on Thursday, April 3rd, at 1:30 p.m. in E-201S. The Commissioners are tentatively scheduled to discuss Chapter 317 (Designs and Specs)/Chapter 309 (Effluent Limitations), the proposed rules for the Office of Public Assistance, and legislative issues.