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Understanding the Enforcement Process .

Understanding the Enforcement Process . 2014 Environmental Trade Fair Colin Barth; Region 11 Compliance Assistance Specialist . Small Business Local Government Assistance . . General Overview . Investigations . NOV/NOE . Enforcement Actions Agenda/SOAH .

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Understanding the Enforcement Process .

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  1. Understanding the Enforcement Process. 2014 Environmental Trade Fair Colin Barth; Region 11 Compliance Assistance Specialist. Small Business Local Government Assistance.

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

  3. Investigation Types. • Scheduled. • Complaint. • Record Review.

  4. Scheduled Prior Notice Media Specific Exit interview

  5. Complaint Investigation.

  6. Record Review Investigation • Unannounced • Review of specific documents • Conducted at TCEQ offices

  7. What is a violation?

  8. 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) • E

  9. 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.

  10. 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

  11. 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.

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

  13. 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

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

  15. Types of Enforcement Actions. . • Agreed Orders. • Findings Orders.

  16. Agreed Orders: • Are the most common type of enforcement action. • 60 day settlement. • Contain a 20% deferral off the penalty amount.

  17. Findings Order. • Gross deviations. • Three repeated enforcement actions. • Human health and environment adversely impacted. • No 20% deferral.

  18. Enforcement Documents are Prepared. • Cover Letter. • Proposed Order. • Penalty Calculation Worksheet. • Compliance History. • 60 day settlement period.

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

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

  21. Penalty Calculation Worksheet. • Penalty Policy (RG-253) • Comprehensive formula for creating administrative penalty. • Room for adjustment.

  22. Penalty Policy • Statutory Authorizations • Violation Groupings • Major and Minor sources • Record keeping vs potential or actual releases • Compliance History. • Good Faith Effort • Economic Benefit

  23. 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 .

  24. OptionswithinEnforcementProcess. • Pay Penalty in Full • Payment Plan. • Financial Inability to PayReview • Supplemental Environmental Projects. • Pre-approved SEPs. • Custom SEPs. • Compliance SEPs • Litigation.

  25. 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

  26. 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.

  27. 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.

  28. Did the entity Agree to the EDPRP? • If not, the case could be referred to the State Office of Administrative Hearings (SOAH).

  29. 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.

  30. Default Orders. • Failing to respond to EDPRP within 20 days.

  31. What is the role of SBLGA in the Enforcement Process?

  32. SBLGA Programs Offer: • TechnicalAssistance with understanding the rules and meeting requirements • One to One Help • Compliance Tools • Free & Confidential

  33. SBLGA Customers: • Business & Industry • Local Governments • Associations • Other Agencies HelpFor Smaller Entities

  34. Getting Help • Hotline • 1-800-447-2827 • M-F 8:00am-5:00pm • www.TexasEnviroHelp.org • Office & Site Visits

  35. SBLGA: Local Staff Available

  36. How we can help. • NOV Assistance. • Advocacy. • NOE Assistance. • Confidentiality Agreement. • Central vs. Region Office. • Roles

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

  38. Confidentiality Agreement. Exceptions 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.

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

  40. NOE Assistance. • Assistance with settlement options and timelines. • Assistance with ordering provisions. • Help navigating TCEQ web.

  41. What can we do to help? • Guide you through the process. • Help you come back into compliance. • Potential benefit - good faith effort to comply. • Settle according to timeline specified. • Potential benefit - partial penalty deferral for expedited settlement.

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