Clean Air In the News

Environmentalists say it still has no bite

By Asher Price AMERICAN-STATESMAN STAFF

Trying to respond to years-old criticism that it is soft on enforcement, the Texas Commission on Environmental Quality announced this week that it had decided to crack down on unpaid fees and penalties.

The commission said that effective Sept. 1, the agency will no longer issue or renew permits, certifications or licenses to individuals or companies that owe the agency money. If the fees or penalties go unpaid, violators risk operating without a permit and could be subject to further enforcement violations.

"We make it very clear regarding what financial obligations are involved in conducting business with the TCEQ," said Commissioner Larry Soward in a statement. "And now we are making the consequences of not taking responsibility for those obligations equally as clear."

Since Sept. 1, 3,162 accounts with a cumulative outstanding balance of $3.2 million have been placed with a collection agency. The state is actually owed about $17 million in fees and penalties dating to 1988, according to Lisa Wheeler, a commission spokeswoman.

Much of it has been written off as uncollectible because the state cannot find the violators or they have died. Another $1 million is out of reach because of bankruptcy proceedings. Litigation has bogged down $3 million more. (The agency does not break down how much of the owed money is from fees and how much is from penalties.)

Officials at the environmental commission said the policy change could shake up how quickly companies turn in their paperwork or pay what they owe — if they opt not to fight a violation notice in court. "This could have a major effect on industries," said Earl Lott, the assistant to the deputy director of the office of permitting, remediation and registration.

About two out of three enforcement cases that come before the agency, however, involve a small business or small local government. The violations that are being referred to a collection agency average only $1,010 each. Environmental groups said the change in penalty policy was common sense and does not yet mark real reform in the agency.

"It's a no-brainer that you wouldn't let someone that owes you money to continue to operate when they have broken the law, they haven't cleaned up or they haven't paid a fine," said Luke Metzger, who has pressed the agency to beef up its enforcement procedures.

The penalty decision came out of a two-year review of enforcement procedures that was prompted by a critical state auditor's report in 2003. The report found that the commission's penalty policies reduced its effectiveness as a deterrent to polluters. The auditor also found that the commission did not consistently settle enforcement cases quickly, calculate penalties accurately or fully collect delinquent penalties. "If unaddressed, these inconsistencies could limit the Commission's ability to collect penalties on a timely basis, hold environmental violators accountable, and deter future instances of noncompliance," the auditor's office concluded.

The department has steadily increased funding and staff for its enforcement division: In fiscal year 2002, its budget was $4.2 million and it had 102 full-time employees; this fiscal year, its budget is $5.1 million and it has 119 full-time employees. Assessed penalties went from $8.7 million in 2002 to $13.7 million last year. And last year, agency staff put together a 312-page report on the agency's enforcement procedures with recommendations to the commission.

Environmental groups regarded the report as a mixed bag: While it suggested some penalties be stiffened, it stopped short of making it more expensive for industries to pollute than to clean themselves up. The in-house report recommended that the commission take into account the cost of compliance; the auditor's office said compliance costs should not be considered when assembling penalties.

"The TCEQ's change in not authorizing ongoing permits for unsettled fines would tend to increase penalties, so this should be good for the environment," said Victor Flatt, a professor of environmental law at the University of Houston who writes about enforcement, in an e-mail. "But if the penalties themselves are not high enough for deterrence, then it won't make as big a difference as it should."

asherprice@statesman.com; 445-3643