Enforcement Overview

Enforcement Overview

Enforcement Overview Melissa Cordell, P.G. Enforcement Division Office of Compliance and Enforcement Texas Commission on Environmental Quality Environmental Trade Fair 2016 OCE Mission Statement The Office of Compliance and Enforcement is dedicated to protecting human health and the environment by ensuring compliance with state and federal regulations. The office seeks to promote voluntary compliance through a comprehensive program of regional inspections, technical assistance, environmental monitoring,

training and outreach. When enforcement is necessary, however, the office will take swift action that is fair, sensible and responsive to the needs of the citizens of Texas. What does that mean? Swift Action Case assignment to mail out 60 days Achieve settlement or refer to the Litigation Division 60 days Fair, Sensible, and Responsive Use of the Commission-approved Penalty Policies Use the facts of the case and the applicable rules

Discuss the case with the Respondent Enforcement Process Referral to Litigation NO EAR Assigned To EC Screening Initial Draft Agreed Order

Mailed to Respondent Settlement Achieved? Yes ED Agenda Definitions/Notes: EC = Enforcement Coordinator EAR = Enforcement Action Referral ED = Executive Director Closure OR

Referral to Order Compliance Team or Financial Administration Division 30-Day Public Comment Period Agenda Path Determination Commission Agenda

Expedited Enforcement Process Overview Within 14 days of assignment, Enforcement Action Referrals (EARs) are screened Enforcement documents are drafted and mailed within 60 days of assignment There are 60 days from after the proposed order is mailed to the Respondent reach a settlement agreement If settlement is reached, the case is scheduled for Commission or Executive Director Agenda

If settlement is not reached, the case is referred to the Litigation Division (LD) Screening The Enforcement Coordinator (EC) will: Verify the correct Respondent name and Customer Reference Number/Regulated Entity Reference Number associations Contact the Respondent for information regarding the Notice of Enforcement Validate the violations contained in the referral Discuss specific corrective actions (what has and what needs to be completed) The Respondent will receive

Enforcement Documents: Cover letter with contact information and Financial Inability to Pay and Supplemental Environmental Project information (if applicable) Agreed Order (1660 or Findings) Penalty Calculation Worksheet (PCW) Compliance History report EC will discuss the enforcement documents with the Respondent Initial Proposed Agreed Order Most enforcement actions will follow the expedited enforcement process and result in an Agreed Order Agreed Orders

1. With a denial of liability Referred to as a 1660 - The 74th Texas Legislature passed SB 1660 regarding Agreed Orders in 1995. Includes a 20% deferral of the penalty 2. Without a denial of liability (Findings) As defined by 30 Tex. Admin. Code 70.11 Does not include a 20% deferral Penalty Calculation Worksheet Penalties are assessed in accordance with the Commissions Penalty Policy Revision 2 Effective on September 1, 2002 Revision 4 Effective on April 1, 2014 http://www.tceq.texas.gov/publications/rg/rg-253.html

Penalty Calculation Worksheet Factors that affect the penalty: Major or minor source Nature, gravity, and duration of violation Compliance history Culpability Compliance status Economic benefit Penalty Calculation Worksheet (PCW) reflection of the Commissions Penalty Policy Compliance History Report The report will include:

The Compliance History Person Classification Repeat Violator status Number of written notices of violation Number of final orders, court judgements, and consent decrees https://www.tceq.texas.gov/enforcement/history/about.html 60 Day Settlement Period Discussions between the TCEQ and the Respondent include:

Additional information that can impact the proposed order Penalty calculation Need for a settlement conference Ability or willingness to pay the penalty Interest in Supplemental Environmental Projects (SEPs) Ability to comply with the technical requirements/ corrective actions and the applicable deadlines as written in the order Desire to settle the case and avoid litigation 60 Day Settlement Period Respondents are strongly encouraged to read and re-read the entire order. If the Respondent signs the order and pays the

assessed penalty, then the Respondent is agreeing with the terms of the order. The Respondent is required to completely and timely fulfill the terms of the order. Additional enforcement actions including increased penalties may result if compliance is not achieved. If We Have Achieved Settlement Notice of the Agreed Order is published in the Texas Register for a 30 day public comment period Cases are scheduled for final approval Commission agenda Final Assessed Penalties greater than $7,500 Agreed Orders without a denial of liability

Special circumstances Executive Director (ED) agenda All other cases are delegated to the ED for adoption Commission Agenda The Respondent will be contacted before the scheduled Commission agenda: 19 days prior via letter By the EC to determine status of the technical requirements At Commission agenda, the orders will be presented in a group to the Commissioners. If the Respondent wishes to speak at Commission agenda, please arrive early at TCEQ and sign-in.

What happens after the order is approved? The effective date of an Order is the date it is signed by the Commission. Order Compliance Team will track open technical requirements (TRs) Financial Administration Division will monitor remaining payments If the penalty has been paid and TRs have been

completed, then the Respondent will receive a compliance letter The order is effective for five years If Settlement Has Not Been Reached Case is referred to LD within 70 days after the initial settlement offer was mailed Assigned LD attorney drafts an Executive Directors Preliminary Report and Petition

If the Respondent does not respond, a Default Order is issued The Respondent may request an administrative hearing After the hearing, the State Office of Administrative Hearing judge presents a Proposal for Decision at Commission Agenda 1,681

1,708 1,826 1,500 1,000 500 Fiscal Year 15 20 14 20

13 20 2 20 1 11 0 20 Total Orders Issued 2,000

1,628 2,500 2,182 Total Number of Administrative Orders Issued by Fiscal Year Percent of Orders Issued by Media Type 5.00% 16.00%

48.00% 31.00% Air Waste Water Multi-Media If compliance is still not achieved Referral to the Attorney General Referral to the EPA Criminal Prosecution

Emergency Orders Need Technical Assistance? TCEQs Small Business and Local Government Assistance Program (SBLGA) Provides Technical Assistance with understanding the rules and meeting requirements Can provide one-on-one help and resources SBLGA Contact Info Hotline 1-800-447-2827 Monday-Friday 8:00am-5:00pm www.TexasEnviroHelp.org

The Take Away Communicate with the assigned Enforcement Coordinator throughout the enforcement process and ask for help (512)239-2545 Questions? Melissa Cordell, P.G. (512)239-2483 [email protected]

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