Understanding the Enforcement Process.

2015 Environmental Trade Fair

Colin Barth Region 11 Compliance Assistance Specialist.

Small Business Local Government Assistance.

General Overview.

• Investigations.• NOV/NOE.• Enforcement Actions• Agenda/SOAH.• Small Business & Local Government Assistance

Investigation Types.

• Scheduled.• Complaint.• Record Review.

Scheduled

• Prior Notice• Media Specific• Exit interview

Complaint Investigation

Record Review Investigation

• Unannounced• Review of specific documents• Conducted at TCEQ offices

What is a violation?

Stormwater Violations

Failing stormwater controls

Unauthorized discharge complaint

Unauthorized Emissions

Unauthorized Discharge

Outdoor Burning violations

Unauthorized burning

Scrap Tire Violations

Unauthorized disposal

Improper Recycling

Were violations cited during the investigation?

• If not, the process ends.• If so;

– Notice of Enforcement (NOE).– Notice of Violation (NOV).– Field Citation– Area of Concern (AOC).

• Enforcement Initiation Criteria (EIC)

NOE Vs NOV

• NOV (Categories B-C): Allows the customer a chance to come into compliance without being sent to the Enforcement Division.

• NOE (Categories A and repeat B’s): Results in the customer being sent to the Enforcement Division.

Category A

• Require automatic initiation of enforcement action when documented during an investigation– Operating with an expired permit– Unauthorized disposal of solid waste– Discharges resulting in a fish kill– Documented falsification of data

Category B

• A responsible party (RP) will first be given an opportunity to come into compliance via NOV. The NOV will specify a compliance due date, solicit a compliance schedule, and/or acknowledge violations have been resolved.– Failure to conduct the required monitoring where applicable.– Failure to conduct waste determinations.– Inadequate level of occupational license.

Repeat B

• Two B violations within the most recent 5-year period.– Results in automatic enforcement

Category C • A Category C violation is a noncompliance not

otherwise designated as a higher priority violation in Category A or Category B.

• Formal enforcement action may be initiated if the same Category C violation is documented three (3) times within the most recent 5-year period– Failure to control windblown waste

Field Citations• Informal Process.• Certain Customers/Violations.• Financial Penalty.• Corrective Action.• Compliance Dates.

Types of Enforcement Actions

• Agreed Orders.• Findings Orders.

Agreed Orders:• Are the most common type of

enforcement action.• 60 day settlement.• Contain a 20% deferral off the

penalty amount.

Findings Order

• Gross deviations.• Three repeated enforcement actions.• Human health and environment

adversely impacted.• No 20% deferral.

Enforcement Documents are Prepared

• Cover Letter.• Proposed Order.• Penalty Calculation Worksheet.• Compliance History.–60 day settlement period.

• Settlement Date.• Penalty Amount.• SEP Information.• Financial Inability to Pay.

Cover Letter

Proposed Order• Documented violations.• Recent compliance actions.• Penalty amount.• Ordering provisions.• Legalize.

Penalty Calculation Worksheet

• Penalty Policy (RG-253)• Comprehensive formula for

creating administrative penalty.• Room for adjustment.

Penalty Policy

• Statutory Authorizations• Violation Groupings– Major and Minor sources– Record keeping vs potential or actual releases

• Compliance History. • Good Faith Effort• Economic Benefit

Penalty Calculation Worksheet

Compliance History

• Snap shot of five year period.– High, Satisfactory, Unsatisfactory, Unclassified– Recalculated every year (9/1)

• Includes positive and negative compliance actions..

• Formula for calculation found within the rule.• Not all programs are included in the rule .

Options within Enforcement Process

• Pay Penalty in Full• Payment Plan.• Financial Inability to Pay Review• Supplemental Environmental Projects.

• Pre-approved SEPs.• Custom SEPs.• Compliance SEPs

• Litigation.

Does the entity agree to the terms of the administrative order, including the penalty and

corrective action?• If so, the case is set for approval by the TCEQ

commissioners at their Agenda meeting.• 30 day public comment period• Upon approval at Agenda, the case is set to

“effective”.– Executive Director Agenda vs Commissioners Agenda

Process Complete

• Once the respondent complies with the order, including payment of any penalty, the enforcement process ends.

• The Order is effective for 5 years.

Does the entity agree to the terms of the administrative order, including the penalty?

• If not, an agency attorney is assigned and an Executive Director’s Preliminary Report and Petition is drafted.

Did the entity Agree to the EDPRP?

• If not, the case could be referred to the State Office of Administrative Hearings (SOAH).

State Office of Administrative Hearings (SOAH)

•Third Party Judge.•After the hearing, the judge makes a recommendation to the TCEQ commissioners. •The orders are then presented to the commission for consideration and approval.

Default Orders

• Failing to respond to EDPRP within 20 days.

What is the role of SBLGA in the Enforcement

Process?

SBLGA Customers:

• Business & Industry • Local Governments• Associations• Other Agencies

Help For Smaller Entities

Getting HelpHotline

1-800-447-2827M-F 8:00am-5:00pm

www.TexasEnviroHelp.orgOffice & Site Visits

SBLGA: Local Staff Available

• Roles

How we can help

• NOV Assistance• Advocacy• NOE Assistance• Confidentiality Agreement

Confidentiality Agreement

• All assistance provided by SBLGA staff is considered confidential in nature and should not be disclosed to anyone outside SBLGA.

Confidentiality AgreementExceptions to this policy include:• imminent threat to human, animal or plant life. • immediate danger to the environment criminal

misconduct.• Enforcement and Litigation referrals.• Instances where an entity tries to use SBLGA

assistance as a defense in enforcement matter.

NOV Assistance

• Handled within the regional office.• Open Communication.• Technical Assistance.• Compliance Deadline.

NOE Assistance

• Assistance with settlement options and timelines.

• Assistance with ordering provisions.• Help navigating TCEQ web.

“Nip it in the bud”

• Site Visit Program (C2).• EnviroMentors.• Confidential.• Hotline.• Internal Audit Program

Self-Audit• Offers immunity from violations and

penalties discovered during the audit.

• Must submit a notification• Six month completion rate• RG-173

Publications

Resources.TCEQ Publications.http://www.tceq.state.tx.us/comm_exec/forms_pubs/search_pubs.html

.

Enforcement Standard Operating Procedures. http://home.tnrcc.state.tx.us/cgi-bin/internal/enforcement/listofapp.p

l.

Field Operations Standard Operating Procedures.http://mscfprd/fod/.

SBLGA Staff Handbook.http://home.tceq.state.tx.us/internal/exec/sbea/sblga/admin.html.

The Enforcement Process: From Violations to Actions.http://www.tceq.state.tx.us/compliance/enforcement/process.html.

Contact and Resources.

• texasenvirohelp.org.• Toll Free Confidential

Hotline:1-800-447-2827.

• Colin Barth.– (512) 239-7015.

• colin.barth@tceq.texas.gov.