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Implementation of 2004 Enforcement Process Review Recommendations

Status of implementing the recommendations approved by the commissioners from the Enforcement Process Review conducted in 2004.

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.