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You are here: Home / Publications / State and Federal Reports / Biennial Report to the 83rd Legislature / Agency Activities: Enforcement (FY2011-2012)

Agency Activities: Enforcement (FY2011-2012)

The following summarizes the agency’s activities regarding compliance, supplemental environmental projects, compliance history, critical infrastructure, dam safety, emergency management, laboratory accreditation, and the Edwards Aquifer Program. (Part of Chapter 2—Biennial Report to the 83rd Legislature, FY2011-FY2012)

Environmental Compliance

The TCEQ enforcement process begins when a violation is discovered during an investigation at the regulated entity’s location, through a review of records at agency offices, or as a result of a complaint from the public that is subsequently verified as a violation. Enforcement actions may also be triggered after submission of citizen-collected evidence.

In a typical year, the agency will conduct almost 100,000 investigations statewide to assess compliance with environmental laws.

When environmental laws are violated, the agency has the authority in administrative cases to levy penalties up to the statutory maximum per day, per violation. The statutory maxima range as high as $25,000. Civil judicial cases carry penalties up to $25,000 per day, per violation, in some programs.

In fiscal 2011, the TCEQ issued 1,628 administrative orders, which required payments of $12.5 million in penalties and about $5 million for Supplemental Environmental Projects, or SEPs. The average number of days from initiation of an enforcement action to completion (with an effective order) was 241 days.

In fiscal 2012, the TCEQ issued 1,826 administrative orders, which required payments of $11.4 million in penalties and $2.5 million for SEPs. The average number of days from initiation of an enforcement action to completion (with an effective order) was 245 days.

The TCEQ can also refer cases to the state Attorney General. In fiscal 2011, the AG’s office obtain

ed 29 judicial orders in cases referred by the TCEQ or in which the TCEQ was a party. These orders resulted in more than $4.3 million in civil penalties and another $115,000 for SEPs.

TCEQ Enforcement Orders

Fiscal
Year
Number of Orders
Penalties
Paid
Orders
With SEPs
SEP
Funds
2011
1,628
$12.5 million
222
$5.0 million
2012
1,826
$11.4 million
146
$2.5 million

In fiscal 2012, the AG’s office obtained 48 judicial orders, which resulted in $57.4 million in civil penalties and $121,500 for SEPs.

Other enforcement statistics can be found in the agency’s annual enforcement report.

Also, orders that have been approved by the commission and have become effective are posted on the agency’s website, as are pending orders not yet presented to the commission.

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Supplemental Environmental Projects

When the TCEQ finds a violation of environmental laws, the agency and the regulated entity often enter into an administrative order, which regularly includes the assessment of a monetary penalty. The penalties collected do not stay at the agency, but instead go to general revenue.

One option under state law, however, gives regulated entities a chance to direct some of the penalty dollars to local improvement projects. By agreeing that penalty amounts can be used for a Supplemental Environmental Project, the violator can do something beneficial for the community in which the environmental offense occurred. Such a project must reduce or prevent pollution, enhance the environment, or raise public awareness of environmental concerns.

The agency has a list of preapproved SEPs, which consists of projects that have already received general approval from the commission. The list includes nonprofits and governmental agencies that sponsor activities such as cleaning up illegal dump sites, providing first-time adequate water or sewer service for low-income families, retrofitting or replacing school buses with cleaner emission technologies, removing hazards from bays and beaches, and improving nesting conditions for colonial water birds.

A regulated entity that meets program requirements may propose its own custom SEP if the proposed project is environmentally beneficial and the party performing the SEP was not already obligated or planning to perform the SEP activity before the violation occurred. Additionally, the activity covered by a SEP must be one that is above and beyond what is already required by state and federal environmental laws.

As of Sept. 1, 2011, the Texas Water Code gives the TCEQ the discretion to allow local governments cited in enforcement actions to use SEP money to achieve compliance with environmental laws or to remediate the harm caused by the violations in the case. This compliance SEP may be offered to governmental authorities such as school districts, counties, municipalities, junior-college districts, river authorities, or water districts.

Other than compliance SEPs, a SEP cannot be used to remediate a violation or any environmental harm caused by a violation, or to correct any illegal activity that led to an enforcement action.

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Compliance History

Since 2002, the agency has rated the compliance history of every owner or operator of a facility that is regulated under certain state environmental laws.

An evaluation standard has been used to assign a rating to about 300,000 entities regulated by the TCEQ that are subject to the compliance-history rules. The ratings take into consideration prior enforcement orders, court judgments, consent decrees, criminal convictions, and notices of violation, as well as investigation reports, notices, and disclosures submitted in accordance with the Texas Environmental, Health, and Safety Audit Privilege Act. Agency-approved environmental management systems and participation in agency-approved voluntary pollution-reduction programs are also taken into account.

An entity’s classification comes into play when the TCEQ considers matters regarding not only enforcement but also permit actions, the use of unannounced investigations, and participation in innovative programs.

Compliance History Designations, September 2012

Classifications are updated each September to reflect the previous five years.

Classifications
Number of Entities Subject to Compliance Rules
Percent
High
37,405
12.48%
Satisfactory
9,619
3.21%
Unsatisfactory
1,643
.55%

Unclassified

251,111
83.76%
Total
299,778
100%

Each September, regulated entities are classified or reclassified (see ratings database).

Ratings below 0.10 receive a classification of “high,” which means that those entities have an “above-satisfactory compliance record” with environmental regulations. Ratings from 0.10 to 55.00 merit “satisfactory” for having “generally complied.” Ratings greater than 55.00 result in an “unsatisfactory” classification because these entities “performed below minimal acceptable performance standards.”

An entity with no compliance information for the last five years will not receive a classification and is therefore “unclassified.”

In 2011, House Bill 2694 called for changes to the compliance history rule. The commission responded in 2012 by adopting revisions to 30 Texas Administrative Code Chapter 60 (Compliance History). This allows the TCEQ to use new standards, instead of the existing uniform standard, for evaluating and using compliance history. In addition, the adopted rule modified the components and formula of compliance history to provide a more accurate measure of regulated entities’ performance and to make compliance history a more effective regulatory tool. These changes will be reflected in compliance history information for fiscal 2013.

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Critical Infrastructure

In November 2011, the TCEQ created the Critical Infrastructure Division within the Office of Compliance and Enforcement (OCE). This new division combines elements from the OCE that are critical to the agency’s responsibilities under the Texas Homeland Security Strategic Plan. The division seeks to ensure compliance with environmental regulations and, during disaster conditions, to support regulated critical infrastructures that are essential to the state and its residents. This includes not only responding to but also recovering from disasters.

The Critical Infrastructure Division programs are Dam Safety and Emergency Management Support, as well as Homeland Security, which includes compliance investigations involving radioactive materials and the federally funded BioWatch. The latter is a federally funded initiative aimed at early detection of bioterrorism agents.

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Dam Safety

The Dam Safety Program monitors and regulates both private and public dams in Texas. The program periodically inspects dams that pose a high or significant hazard and issues recommendations and reports to the dam owners to help them maintain safe facilities. The program ensures that these facilities are constructed, maintained, repaired, and removed safely. High- or significant-hazard dams are those at which loss of life could occur if the dam should fail.

In 2012, Texas had 7,126 state-regulated dams, with 1,046 high-hazard dams and 725 significant-hazard dams. The remaining dams were classified as low hazard.

As of August 2012, 96.2 percent of all high- and significant-hazard dams had been inspected during the past five years. Securing access to the few remaining dams became an issue that the program continues to address. About half of the dams inspected are in either “fair” or “poor” condition. The majority of owners have begun making repairs, as funds are available.

In addition to inspections, the program conducts workshops—primarily for dam owners and engineers—on emergency action plans and dam maintenance. Emergency management personnel also attend. In fiscal 2011, four workshops were conducted; in fiscal 2012, three were conducted.

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Emergency Management

In a state as large and geographically and economically diverse as Texas, natural disasters or emergencies caused by human activities occur almost daily. Disasters may have a widespread impact, or significant emergencies may occur at the same time in different areas.

In an emergency or disaster, the TCEQ is the lead state agency for hazardous materials and oil-spill response. As such, it supports several other state emergency-management functions.

The TCEQ’s responsibilities in a disaster align with the agency’s mission—to protect human health and the environment. Those responsibilities also apply to the critical infrastructure facilities regulated by the agency, such as public water systems, wastewater-treatment plants, dams, and chemical and refining facilities.

The TCEQ regional offices form the basis of the agency’s support for local jurisdictions addressing emergency and disaster situations. For that reason, the Emergency Management Support Team was created to implement a strategy of building greater disaster-response capabilities in each TCEQ region.

The Emergency Management Support Team is charged with maintaining preparedness, assisting with the development of the Disaster Response Strike Team in each region by providing enhanced disaster preparedness training to staff, and maintaining sufficient trained personnel so that response staff can rotate during long-term emergency events.

In addition, the Emergency Management Support Team maintains enhanced disaster-response equipment that can be deployed to any of the regions. This enables responders to conduct environmental monitoring, communicate with other responding jurisdictions or disciplines, and restore continuity of operations at any regional office affected by a disaster.

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Accredited Laboratories

The TCEQ only accepts regulatory data from laboratories accredited according to standards set by the National Environmental Laboratory Accreditation Program (NELAP) or from laboratories that are exempt from accreditation, such as a facility’s in-house laboratory.

All labs accredited by the TCEQ are held to the same quality-control and quality-assurance standards. The analytical data produced by these laboratories is used in TCEQ decisions relating to permits, authorizations, compliance actions, enforcement actions, and corrective actions, as well as in characterizations and assessments of environmental processes or conditions.

TCEQ laboratory accreditations are recognized by other states using NELAP standards and by some states that do not operate accreditation programs of their own.

In fiscal 2012, the number of laboratories accredited by the TCEQ was 281.

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Houston Laboratory

The TCEQ Houston Laboratory is accredited through the National Environmental Laboratory Accreditation Program (NELAP), and serves the agency’s 16 regional field offices. The laboratory performs routine analyses that support the environmental monitoring programs of the TCEQ, river authorities, and other environmental partners.

The Houston Laboratory supports monitoring operations for the TCEQ’s air, water, and waste programs through laboratory analysis of surface water, wastewater, sediments, and sludge samples, airborne particulate matter, and a variety of environmental contaminants. The Houston Laboratory also analyzes samples collected as part of investigations conducted by the agency’s Office of Compliance and Enforcement. The laboratory develops analytical procedures and performance measures for accuracy and precision, and maintains a highly qualified staff of analytical chemists and biologists.

The laboratory generates scientifically valid and legally defensible test results under its NELAP-accredited quality system. Analytical data are traceable to national standards, such as the National Institute of Standards and Technology and the American Type Culture Collection, and are produced using EPA-approved methods.

With the rapid transmission of electronic data, the TCEQ can upload results directly to program databases.

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Edwards Aquifer Protection Program

As a karst aquifer, the Edwards Aquifer is one of the most permeable and productive groundwater systems in the United States. The regulated portion of the aquifer crosses eight counties in south central Texas, serving as the primary source of drinking water for more than 1.7 million people. This replenishable system also supplies water for farming and ranching, manufacturing, generation of electric power using steam, mining, and recreation.

The aquifer’s pure spring water also supports a unique ecosystem of aquatic life, including a number of threatened and endangered species.

Because of the unusual nature of the aquifer’s geology and biology—and its role as a primary water source—the TCEQ requires an Edwards Aquifer pollution abatement plan for any regulated activity proposed within the recharge, contributing, or transition zones. Regulated activities include construction, clearing, excavation, or anything that alters the surface or possibly contaminates the aquifer and its surface streams. Best management practices must be used during and after construction to treat stormwater in the regulated areas.

Each fiscal year, the TCEQ receives about 550 plans to be reviewed by the Austin and San Antonio regional offices. In addition to reviewing plans for development within the regulated areas, personnel conduct compliance investigations to ensure that best management practices are appropriately used and maintained. In addition, personnel conduct site assessments to ensure that aquifer-recharge features are adequately identified for protection prior to the start of construction.

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