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Steven A. Herman Letter
to Barry R. McBee

March 19, 1997

Herman letter

Above is a photo copy of Steven A. Herman's letter (EPA) to TNRCC Chairman Barry R. McBee. The text of the letter is detailed below.

Below are links to the scanned images of the original letter which are readable.

Page 1, Page 2

Page 1 gif file is 27kb and the page 2 gif file is 12kb.


MAR 19 1997


Barry R. McBee, Chairman
Texas Natural Resource Conservation
12100 Park 35 Circle, Building F
Austin, Texas 78711-3087

Dear Mr. McBee:

We appreciate the opportunity to work with you in developing possible technical amendments to the Texas audit privilege and immunity statue. We are particularly grateful for the hard work and cooperation of John Riley and VA Stephens in reaching agreement on some modest changes to ensure that Texas retains enforcement authority required for federally authorized or delegate programs. In brief, the amendments we have agreed to would:

  • Eliminate application of immunity and privilege provisions to criminal actions;

  • Eliminate application of immunity where a violation results in a serious threat to health or the environment, or where the violator has obtained a substantial economic benefit that gives it a competitive advantage;

  • Make clear that Texas law will not subject individuals to sanctions for reporting any violations of environmental law enforcement agency;

  • Clarify that the privilege does not impair access to information required to be made available under federal or state law.

In addition to the amendments noted above, we appreciate and are relying on your assurance that the statue does not impair the state's authority or ability to obtain injunctive relief or issue emergency orders, or taint its ability to independently obtain or use evidence of a violation. If all of these amendments are adopted as written and there are no further changes to the Texas law or to its interpretation, I would conclude that Texas retained adequate authority to enforce the requirements of any authorized or delegated programs, and that the audit law would present no further barrier to approval of federal programs. (These amendments are limited to the Texas statue only, which include other limits on privilege and immunity. The issue of whether similar amendments would satisfy the requirements for approval of federal programs in any other state would obviously depend on variations in individual state laws).

As we have discussed, both the Environmental Protection Agency and the Department of Justice remain deeply opposed to audit privileges in any form. The federal government is, of course, not bound by state audit privileges in any enforcement proceeding by a federal agency, nor can state law limit EPA's ability to obtain information or otherwise exercise its authority under federal law. Nor can state audit privileges be invoked to deny specific rights to citizens under federal environmental laws. Should a court find that federal rights are abridged by Texas law, EPA will work with Texas to eliminate any obstacles to the exercise of such rights. While not completely eliminating our concerns, we offer this letter as our commitment that enforcement issues are now resolved for delegation purposes, and do not expect to raise other issues related to the Texas law.

We hope you find our assistance useful, and thank you for the opportunity to provide our views.


Steven A. Herman
Assistant Administrator

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