During 2004, the TCEQ underwent an extensive self-review of its
enforcement functions. The review resulted in a number of
recommended changes to our process.
Below is the list of implemented recommendations. Commission
consideration of enforcement issues continues to occur at Agenda
and Work Session meetings. For information on continuing
discussions of enforcement issues, see Agendas
and Work Sessions.
For more information about the review itself, see TCEQ
Enforcement Process Review.
Enforcement Initiation Criteria (EIC)/Investigation
Prioritization/Notices of Violation (NOVs)/Notices of Enforcement
(NOEs)
EIC-1A, 1B and 3: Prioritize investigations
based on risk to human health and the environment.
Action: Field Operations Division developed a
risk-based investigation strategy that focuses resources on those
facilities that pose a significant risk to human health and the
environment. This strategy was presented before the commission on
Sept. 16, 2005 and has been incorporated into the foundation of
annual work plans of the Field Operations Support Division.
EIC-1C and 2: Seek input from across the agency
on investigation priorities and initiatives.
Action: The Compliance Planning Team was expanded
to include all parts of the agency to identify specific initiatives
and areas of concern for Fiscal Year 2006 that will require focused
investigations, monitoring, enforcement, and compliance
assistance.
EIC 4A and 4B: Revise and formalize the EIC as
an agency-wide document
Action: A cross-regional team was assembled and
EIC Revision 10 was drafted to include the identification of
additional violations. The EIC Revision 10 was reviewed by the
commission on Sept. 16, 2005 and approved by the executive director
on Dec. 8, 2005. On an annual basis, input on recommended
modifications will be solicited within the agency and the
commission will have an opportunity to review the proposed
revisions before final approval by the executive director. EIC
Revision 11 has been drafted and is currently pending executive
director final approval. Upon final approval, the EIC will be
distributed to affected staff and posted on the public Web
site.
EIC-6A and 6B: Provide an opportunity for
post-investigation/pre-enforcement fact-finding meetings in the
TCEQ regional offices.
Action: Staff have been trained to communicate
the opportunity for post-investigation/pre-enforcement meetings in
their exit interviews with regulated entities at the conclusion of
an investigation. This has been incorporated into the Field
Operations and Enforcement divisions' Standard Operating Procedure
(SOP) and posted on the employee Web site.
EIC-6C: Create a formal appeal process for
NOEs.
Action: The NOE currently can be appealed during
the enforcement process. Language describing the appeal process has
been incorporated into the NOE letter with an Enforcement Division
point-of-contact name and phone number. Modifications have been
communicated to Field Operations and Enforcement Division staff and
incorporated into the Enforcement Division's SOP.
EIC-7 and 8: Discontinue the use of verbal NOVs
and formally adopt the NOV policy.
Action: The verbal NOV policy was rescinded and is
no longer being used. The commissioners directed staff to begin
documenting areas of concern on their investigation reports. The
NOV policy and Areas of Concern were documented in the EIC Revision
10. These changes were communicated to staff.
EIC-9B: Improve communication with the
regulated entity, that a matter has been referred to the
Enforcement Division for enforcement.
Action: Modifications to the NOE letter describing
the appeal process and an Enforcement Division point-of-contact
have been incorporated into the NOE letter. Modifications have been
communicated to staff and incorporated into the Enforcement
Division SOP.
Complaint Procedures
Comp-1: Implement the Guidance Document for
Field Operations Investigation of Complaints.
Action: Guidance has been implemented and field
staff have been trained. Enhancements to the Guidance Document for
Field Operations Investigation of Complaints have been incorporated
and are published on the agency's employee Web site.
Comp-2: Implement the odor complaint
investigation procedures (nuisance odor protocol).
Action: These procedures have been implemented and
staff have been trained. The
procedures and FIDO chart are posted on the TCEQ Web site and
will be reviewed annually.
Comp-3: Improve the complaint receiving process
and 24-hour accessibility.
Action: Direct links on the agency Web site have
been created to file a complaint online, provide information on
Citizen Collected Evidence, obtain assistance for the water
utilities consumer, and to provide and explain the Nuisance Odor
Protocol. The Environmental Complaints Hot Line and 24-Hour Spill
Reporting numbers with explanation on how calls are handled after
hours have been also been posted on the TCEQ Web site.
Comp-5: Allow public access to track complaint
information online.
Action: A Complaints
information search has been posted on the public Web site.
Enforcement Process/Agency Coordination
EP-1: Streamline the existing enforcement
process.
Action: Enforcement Division has streamlined the
enforcement process time line from approximately 250 days to 185
days (with Settlement achieved).
EP-2: Develop a pilot field citation
program.
Action: A one-year pilot program was developed to
cite certain clear-cut violations on-site regarding petroleum
storage tanks, Stage I and II vapor recovery, industrial storm
water, and occupation certification. The pilot program promotes
quick resolution of a violation and corrective action with a
specified, reduced penalty. The
Field Citation Pilot Program was implemented statewide on March
13, 2006.
EP-3: Streamline the financial inability to pay
process.
Action: Enforcement Division staff enforce a
30-day deadline, from the respondent's receipt of the proposed
draft order, to submit documentation supporting a financial
inability to pay. This has been communicated to staff, added as a
new discussion in the Enforcement Division SOP, and posted on the
agency's employee Web site.
EP-6: Achieve better trained investigative and
enforcement staff.
Action: Field Operations Division has utilized
distance learning methods by contracting with a community college
to fulfill some training needs for their staff. The agency's Human
Resources Division plans to align Enforcement Coordinator and
Natural Resource Specialist tracks with the Environmental
Investigator Career Ladder to encourage equitable and
cross-division staff development opportunities. The Office of
Compliance and Enforcement also recognizes senior agency staff
serving as mentors in their employees appraisals. All TCEQ
employees are able to remotely access their computer, the TCEQ
network, and connect to the TCEQ Consolidated Compliance and
Enforcement Database System (CCEDS).
Ordering Provisions
Ord-1A: Require additional information from
respondents to achieve compliance with orders prior to closing out
the orders.
Action: Enforcement Division staff will continue
to require the respondent to certify compliance on orders. Standard
technical ordering provisions (including documentation needed for
each type of certification) has been re-written. This has been
communicated to staff, added as a new discussion in the Enforcement
Division SOP, and posted on the agency's employee Web site.
Ord-1B: Allow different consideration for small
businesses and local governments from larger entities in the
documentation required to close out an order.
Action: Enforcement Division staff will allow
small entities a longer time frame to implement corrective action
on ordering provisions, depending on the violation. No special
consideration will be given to a small entity that is a repeat
violator or if there is an imminent threat to the environment. This
has been communicated to staff, added as a new discussion in the
Enforcement Division SOP, and posted on the agency's employee Web
site.
Ord-1C: Determine where appropriate monitoring
by the agency or the respondent is necessary to demonstrate
compliance prior to order close-out.
Action: Enforcement Division staff have reviewed
examples of past cases that required monitoring and have developed
criteria to determine the need for additional monitoring based on
compliance history, type of violations, environmental harm, etc.
Example base language has also been developed in requiring
additional monitoring requirements in the order.
Ord-1D: Address false compliance certification
on orders
Action: The commission directed Field Operations
Division staff to verify completion of corrective actions via
on-site inspections rather than through a paper audit, except when
paper certification/documentation is sufficient. Field Operations
Division obtained the equivalent of five full-time staff to fulfill
this function. Enforcement and Field Operations divisions will
refer false certifications to the special investigations unit
within the Litigation Division.
Ord-2A: Improve communication with respondents
of the consequences for failing to comply with the provisions of an
order.
Action: The shell orders have been revised to
incorporate specific language regarding failure to comply with the
provision of an order. Modifications have been communicated to
Enforcement Division staff and posted on the agency's employee Web
site.
Ord-2B: Do not provide different consideration
in establishing additional language changes in an order to small
businesses and small governments.
Action: The shell orders have been revised to
include a provision in orders to communicate to the respondent of
the consequences of failure to comply with the provisions of order
regardless of the business size. Modifications have been
communicated to Enforcement Division staff and posted on the
agency’s employee Web site.
Ord-3A: Improve the internal communication with
Enforcement Division and other areas of the agency during order
development.
Action: Enforcement and Litigation division
directors have established a forum after the monthly director's
meetings to discuss orders under development and evaluate standard
conditions and processing procedures, as well as conferring on
specific cases as needed to ensure comprehensive requirements that
do not conflict with permit requirements or time frames. Division
directors were notified on March 15, 2005.
Ord-3C: Include special provisions in the
permit for an entity with permit applications and enforcement
actions occurring at the same time.
Action: These situations are handled on a
case-by-case basis to accommodate Commission recommendation to use
the permit as a compliance tool and in some circumstances include
provisions addressing an enforcement issue.
Ord-4A: Improve communication to the respondent
and other interested parties in ordering provisions to state what
is necessary to achieve compliance.
Action: Added specific compliance criteria beyond
the certification of compliance in the ordering revisions and
simplified ordering provision language. Standard technical ordering
provisions (including documentation needed for each type of
certification) has been re-written. This has been communicated to
staff, added as a new discussion in the Enforcement Division SOP,
and posted on the agency's employee Web site.
Ord-4B: Identify appropriate additional
monitoring and/or other restrictions, other than to correct the
specific violation.
Action: Enforcement Division staff have reviewed
past cases for examples and have developed criteria to determine
the need for additional monitoring based on compliance history,
type of violations, environmental harm, etc. Example base language
has also been developed in requiring additional monitoring
requirements in the order.
Ord-4C: Allow different consideration for small
businesses or small local governments from larger entities in
development of ordering provisions.
Action: Enforcement Division staff will contact
the respondent to discuss achievable time frames associated with
any technical requirements for cases that involves a small business
or local government. This has been communicated to staff, added as
a new discussion in the Enforcement Division SOP, and posted on the
agency's employee Web site.
Collections/Financial Inability to Pay
Coll-1A: Do not allow an entity to acquire,
amend, or renew a permit, registration, certification, or a license
while in default of a penalty or fee.
Action: Effective September 1, 2006, the TCEQ will
no longer issue, amend, or renew permits, registrations,
certifications, or licenses to an entity or person who is
delinquent on penalties or fees. The
Protocol for Delinquent Fees and Penalties was approved by
management on Feb. 17, 2006. Staff will conduct the delinquent
penalty/fee reviews according to the protocol.
Coll-2: Identify sufficient resources to
aggressively collect delinquent fees and penalties.
Action: A contractor assists in the collections of
delinquent accounts. Reports on collections recovered by the
contractor have been added to the monthly delinquent report and
presented to the commission at work session.
Coll-3B: Address inability to pay issues of
small local governments.
Action: The Financial Administration Division is
utilizing the EPA's MUNIPAY system to determine whether governments
are financially able to pay a penalty. The use of this system has
been communicated to staff and incorporated into Financial
Administration Division's SOP and is currently in use.
Coll-4: Establish criteria for payment
plans.
Action: Criteria include a maximum payment term of
36 months and a minimum payment of $100. The criteria has been
conveyed to staff, incorporated into the enforcement and Financial
Assurance Division's SOP, and posted on the agency's employee Web
site.
Coll-5: Assess an interest charge for
delinquent penalties on payment plans.
Action: The Financial Administration Division
began assessing an interest charge for delinquent penalties on
payment plans. This has been communicated to staff.
Added Item: Amend Texas Water Code
§7.052(d) that eliminated the restriction prohibiting payment
plans following a contested case hearing.
Action: S.B.739 passed during the regular session
and was signed by the governor.
Communication
Comm-1: Enhance TCEQ enforcement information on
the public Web site.
Action:
Pending enforcement action information is posted on the public
site. An overview of the agency's
enforcement process is also posted and enforcement portion of
site reorganized.
The brochure is updated, posted, and also printed.
Comm-3: Revise the TCEQ public Web site to
provide easier access to information on agency complaint
procedures.
Action: Information on how to
make an environmental complaint and how the agency handles
complaints is reworked and posted.
The brochure has been updated, posted, and also printed. See
also Comp-3 above.
Supplemental Environmental Projects (SEPs)
EP-4: Streamline the existing Supplemental
Environmental Project (SEP) process.
Action: The extension letter has been modified to
include two time frame options (i.e., 30-days for pre-approved SEP
and 90-days for an original "off-the-list" SEP). Modifications have
been communicated to staff and incorporated into the Enforcement
Division's SOP.
SEP-1: Continue the SEP program.
Action: The commission agreed to continue the SEP
program at the December 2, 2005 work session. In addition, the SEP
Guidance was re-developed with changes specified by the commission.
The
SEP guidance and
pre-approved list have been posted on the agency's Web site.
The SEP guidance was also published for distribution by regional
investigators.
SEP-2 and 3: Streamline and/or simplify SEP
process.
Action: The SEP process was streamlined by
expanding the pre-approved SEP list and providing SEP information
(i.e. SEP publication) to the respondent during investigation exit
briefing. Also, the extension letter to the respondent was modified
to include two time frame options (i.e., 30-days for pre-approved
SEP and 90-days for an original "off-the-list" SEP). The
SEP guidance and
pre-approved list have also been posted on the agency's Web
site.
SEP-4A: SEPs should benefit the environmental
media (air quality, water quality, etc.) affected by the
violation.
Action: The commission preferred that SEPs benefit
the same media at a one to one penalty offset. However, SEPs
relating to a different media should also be considered and may
also deserve a one to one penalty offset. The
SEP guidance was revised and posted on the agency's Web
site.
SEP-4B: SEPs should be exclusive to the
community where violation occurred.
Action: The commission directed staff to revise
the SEP guidance on December 2, 2005 to reconsider "county" as the
definition of a "community" and define "community" more broadly
(i.e. regionally, watershed, non-attainment area, etc.). The
SEP guidance has been posted on the agency's Web site.
SEP 5A: Provide the public with a better
understanding on how SEPs are used in TCEQ enforcement.
Action: The
SEP guidance was revised. Staff will develop an annual SEP
report to better publicize information on SEPs (i.e. results,
benefits, and costs). The annual report will be posted on the
agency's Web site.
SEP 5B: Inform public and regulated entities of
SEP outcomes.
Action: The
SEP guidance was revised. Staff will develop an annual SEP
report to better publicize information on SEPs (i.e. results,
benefits, and costs). The annual report will be posted on the
agency's Web site.
SEP 5C: Consider citizen, community, agency,
regulated entity priorities on selecting a SEP.
Action: Seek regional and management input on SEPs
and priorities will be institutionalized. Opportunities for local
input will take place when the commission considers proposed SEPs.
A SEP Review Panel has also been implemented to seek input in
SEPs.
SEP 6A: Quantify the environmental benefit from
a SEP.
Action: At proposal of each SEP, the respondent
will be required to estimate the environmental benefit expected
from the project (not applicable to SEPs listed on the pre-approved
list). SEP staff will consider information to determine whether the
benefit is sufficient to merit inclusion of the SEP in an
enforcement order. This has been communicated to SEP staff and
incorporated into Litigation Division's SOP.
SEP 6B: Quantify benefit as a reporting
requirement for SEPs and verify the benefit.
Action: As a part of each SEP completion report,
the respondent will be required to quantify the environmental
benefit actually achieved, and provide the documentation to support
these facts. To verify the benefit claimed, the SEP should include
a verification checklist in its risk assessment procedures. This
has been communicated to SEP staff and incorporated into Litigation
Division's SOP.
SEP 6C: Achieve desired results with current
TCEQ oversight on SEPs.
Action: The SEP process has been improved by
providing a mechanism for quantifying and verifying the
environmental benefits obtained from SEPs. Process also allows for
input from regions, management, and the public. This has been
communicated to SEP staff and incorporated into Litigation
Division's SOP.
SEP 7A and 7B: Establish a classification
system for non-direct or mixed benefit SEPs with appropriate
ratios.
Action: Ratios of three direct benefit project
types remain unchanged and projects consistent with the Proposition
2 pre-approved list that reduce/prevent pollution were added.
Standard ratios were established for certain types of indirect
benefit. Some indirect project types will be modified to ensure
that results can be quantified. This has been communicated to SEP
staff and incorporated into Litigation Division's SOP.
Penalty Policy
Pen-9: Offer deferrals for expedited
settlements but not for culpable respondents.
Action: Enforcement Division continues to
prohibit deferrals for culpable respondents, offering a 20 percent
deferral in all eligible cases as an incentive to settle, and only
giving the deferral when agreement is reached within a specific
time frame. This has been communicated to staff, incorporated into
the Enforcement Division SOP, and posted on the agency's employee
Web site.
Update: The commission directed staff to
proceed with the Penalty Policy stakeholder meetings during the
Sept. 16, 2005 Commission Work Session. Stakeholder meetings
were held in Nov. and Dec. 2005; comments received were posted on
the web. For updates, see our stakeholder page on
Penalty Policy rulemaking.
The commission considered penalty policy issues at the
March 29, 2006 Commission Agenda;
June 14, 2006 Commission Agenda (Edwards Aquifer penalties);
and on the
October 10, 2006 Commission Work Session. (Note: links are to
PDFs.)
The Penalty Policy rulemaking project is currently on hold until
further notice from the commission. No date for future
consideration by the commission has been established.
Compliance History
Update: Staff provided the commission an update
on the status on Compliance History issues at the
March 10, 2006 Commission Work Session and the
October 10, 2006 Commission Work Session. (Note: links are to
PDFs.)
For updates to the Compliance History
rulemaking(2006-001-060-CE), see
TCEQ Rule Projects.
The Compliance History rulemaking project is currently on hold
until further notice from the commission. No date for future
consideration by the commission has been established.
No Action Required
The commissioners directed staff that no action was required on
the following list of items:
EIC-5: Do not develop separate EIC for small
businesses and small local governments.
EIC-9A: Do not eliminate the (category) of
NOE.
Comp-4: Do not change rule or current protocol
for citizen collected evidence.
Comm-4: Do not develop proposals for statewide
public awareness campaign.
Ord-3B: Do not modify the role of Small
Business and Local Government Assistance Section during the
development of an order with a respondent and Enforcement
Division.
Coll-1: Do not establish revocation of a
current permit if the entity owes fees or penalties to the
agency.
Coll-5: Do not assess interest charges on
payment plans to encourage payment.
Coll-6: Do not develop bank account levies or
wage garnishment to collect delinquent accounts.
Pen-6: Do not change current consideration for
investment in pollution prevention technology as a factor in
calculating penalties for violations or economic benefit.
Pen-7B: Maintain current statutory
administrative penalties as they apply to programs administered
within the agency.
Pen-12: Do not develop special provisions for
petroleum storage tank (PST) certification and fuel distribution
violations within the Penalty Policy.
