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Understanding the Enforcement Process .

This guide provides a general overview of the enforcement process, investigations, NOV/NOE, enforcement actions, and agenda/SOAH. It also covers different types of investigations and violations, field citations, enforcement actions, and compliance options.

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Understanding the Enforcement Process .

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  1. Understanding the Enforcement Process. 2016 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. Stormwater Violations

  9. Failing stormwater controls

  10. Unauthorized Emissions

  11. Unauthorized Discharge

  12. Outdoor Burning violations

  13. Unauthorized burning

  14. Scrap Tire Violations

  15. 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)

  16. 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.

  17. 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

  18. 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.

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

  20. 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

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

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

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

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

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

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

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

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

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

  30. Penalty Calculation Worksheet

  31. 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 .

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

  33. 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

  34. 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.

  35. 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.

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

  37. 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.

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

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

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

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

  42. SBLGA: Local Staff Available

  43. How we can help • NOV Assistance • Advocacy • NOE Assistance • Confidentiality Agreement • Roles

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

  45. 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.

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

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

  48. “Nip it in the bud” • Site Visit Program (C2). • EnviroMentors. • Confidential. • Hotline. • Internal Audit Program

  49. Self-Audit • Offers immunity from violations and penalties discovered during the audit. • Must submit a notification • Six month completion rate • RG-173

  50. Publications

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