The Enforcement Process: From Violations to Actions
Below is a brief overview of the typical phases of action that can occur when environmental violations are found. For more details on the enforcement process, download a PDF of our publication The TCEQ Has Inspected Your Business. What Does This Mean to You?
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If you have further questions about the enforcement process, contact our Enforcement Division at 512-239-2545 or email@example.com.
- Documenting Violations and Determining Appropriate Action
- Initiating Enforcement Action
- Calculating the Penalty
- Reaching an Agreement
- Contesting an Enforcement Agreement
- Default Actions
- The End of the Process
Documenting Violations and Determining Appropriate Action
The TCEQ’s enforcement process begins when a violation is discovered during an inspection conducted either at the regulated entity’s location or through a review of records at TCEQ offices. Most violations are quickly corrected in response to notices of violation. A Notice of Violation documents the violations discovered during the inspection, specifies a time frame to respond, and requires documentation of compliance.
If serious or continuing violations are identified during an inspection, as defined by Enforcement Initiation Criteria, the TCEQ initiates enforcement and the business or individual inspected receives a Notice of Enforcement.
The Notice of Enforcement (NOE) documents the violations and puts the recipient, or “respondent,” on notice that the case has been referred for enforcement. This notice also lets respondents know that they can appeal the NOE by requesting an enforcement review meeting if they believe the violations were cited in error and they have new information that was not previously evaluated by the investigator.
When violations are serious enough to warrant an enforcement action, the TCEQ is authorized to enforce correction of the violations and to seek penalties to deter future noncompliance. The TCEQ is allowed to pursue penalties in two different types of enforcement actions:
- administrative orders that are issued by the TCEQ commissioners; or
- referral of the case to the Office of the Attorney General for enforcement through the courts, including potential civil penalties.
Initiating Enforcement Action
Most enforcement cases are handled through the administrative order process. The first step in this process is to “screen,” or verify, the information documented in the investigation report. The enforcement coordinator then contacts the respondent by phone and explains the enforcement process and what the respondent can expect next, and offers the respondent the opportunity to submit additional information or set up a meeting.
If the case is expected to settle quickly, the enforcement coordinator then drafts an agreed order, which describes the alleged violations and any actions that need to be taken to correct them. The agreed order will also normally include a calculated penalty.
Where possible, the TCEQ encourages expeditious settlement of enforcement actions by extending a settlement offer in the agreed order. If settlement does not occur within a short time, the agency will start the process that can lead to an administrative hearing, which is similar to the process used in a court of law for civil cases. The TCEQ commissioners have ultimate approval of all administrative enforcement orders.
Calculating the Penalty
The penalty included in an enforcement action is calculated by the enforcement coordinator according to the TCEQ's Penalty Policy. This document contains the elements of Texas Water Code, Section 7.053 , Factors to be Considered in Determination of Penalty Amount. Some of the factors are:
- compliance history
- a good-faith effort to comply
- economic benefit
- other factors as justice may require
In addition, the coordinator also considers the following:
- whether the site of the violation is considered a major or minor source of potential pollutants;
- whether the violation harmed the environment or human health, or has the potential to cause harm; or
- whether the violation was programmatic (usually stemming from errors in paperwork).
Reaching an Agreement
If the respondent agrees with the terms of the agreed order and the penalty amount, the case is set for approval by the TCEQ commissioners at their Agenda meeting.
During the time allowed for settlement, the respondent has the opportunity to discuss the violations with our enforcement coordinator and provide additional documentation that may influence the inspection findings, calculated penalty, or both.
Contesting an Enforcement Action
If the respondent contests the enforcement action, an agency attorney is assigned, who drafts an Executive Director’s Preliminary Report and Petition. This document notifies the respondent of the violations, the penalty assessed, and any corrective actions needed to bring the respondent back into compliance with the regulations.
The respondent may request an administrative hearing, which is held in front of an administrative law judge with the State Office of Administrative Hearings (SOAH) . However, a settlement could still occur at any time prior to a final decision on the order.
After the hearing, the judge makes a recommendation to the TCEQ commissioners about an enforcement order. The commissioners consider this recommendation and then make the final decision whether to issue, deny, or modify the judge's decision.
If the respondent does not file a timely answer to the executive director’s petition, the commissioners may issue a default order. If the respondent fails to comply with the default order, then the executive director may refer the case to the Office of the Attorney General for civil enforcement in a court of law.
The End of the Process
Once the respondent complies with the order, including payment of any penalty, the enforcement process ends.