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Agency Activities: Enforcement (FY2013-2014)

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 84th Legislature, FY2013-FY2014)

Enforcement

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 about 105,000 routine investigations and investigate about 4,000 complaints 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 maximum range is as high as $25,000. Civil judicial cases carry penalties up to $25,000 per day, per violation, in some programs.

In fiscal 2013, the TCEQ issued 2,182 administrative orders, which required payments of $12.7 million in penalties and about $2.7 million for Supplemental Environmental Projects, or SEPs. The average number of days from initiation of an enforcement action to completion (order approved by the commission) was 235.

In fiscal 2014, the TCEQ issued 1,708 administrative orders, which required payments of $10.1 million in penalties and $2.6 million for SEPs. The average number of days from initiation of an enforcement action to completion (order approved by the commission) was 235 days.

The TCEQ can also refer cases to the state attorney general. In fiscal 2013, the AG’s office obtained 43 judicial orders in cases referred by the TCEQ or in which the TCEQ was a party. These orders resulted in more than $10.8 million in civil penalties and another $138,750 for SEPs. In fiscal 2014, the AG’s office obtained 23 judicial orders, which resulted in $6.1 million in civil penalties. Since the beginning of fiscal 2014, the AG’s office no longer approves SEPs.

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

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 agreed administrative order, which regularly includes the assessment of a monetary penalty. The penalties collected do not stay at the agency, but instead go to state 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 go beyond what is already required by state and federal environmental laws.

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 entities such as school districts, counties, municipalities, junior-college districts, river authorities, or water districts.

Other than compliance SEPs, an 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.

TCEQ Enforcement Orders

Number of Orders
Penalties Paid
Orders with SEPs
SEP Funds
FY2013
2,182
$12.7 million
153
$2.7 million
FY2014
1,708
$10.1 million
135
$2.6 million

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 more than 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.

Each September, regulated entities are classified or reclassified to reflect the previous five years. Ratings below 0.10 receive a classification of “high,” which means 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.”

Compliance History Designations

 
September 2013
September 2014
Classifications
Number of Entities Subject to
Compliance Rules
Percent
Number of Entities Subject to
Compliance Rules
Percent
High
37,429
12.46
40,974
11.02
Satisfactory
9,794
3.26
10,552
2.84
Unsatisfactory
1,558
0.52
1,394
0.37
Unclassified
251,693
83.76
318,827
85.77
Total
300,474
100
371,747
100

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Critical Infrastructure

In 2011, the TCEQ created the Critical Infrastructure Division within the Office of Compliance and Enforcement. This 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 duty includes not only responding to disasters but also aiding in recovery from them.

The division’s programs are Homeland Security, Dam Safety, and Emergency Management Support.

Homeland Security

The Homeland Security Section coordinates communications during disaster response with federal, state, and local partners; conducts threat assessments to the state’s critical infrastructure; participates in the state’s counterterrorism task forces; and coordinates the BioWatch program in Texas. The latter is a federally funded initiative aimed at early detection of bioterrorism agents.

The Homeland Security Section is also responsible for compliance at the disposal site for low-level radioactive waste in Andrews County. The operator of the disposal site is Waste Control Specialists, Inc. (radioactive-material license R04100). The site’s compact waste facility was authorized to accept waste in April 2012.

The Homeland Security Section maintains two full-time resident inspectors at the low-level radioactive waste site to accept, survey, and approve the disposal of each shipment. Each disposal is documented in an investigation report. The following shipments of low-level radioactive waste were inspected and successfully disposed in the compact waste facility:

  • fiscal 2012: 35 shipments
  • fiscal 2013: 121 shipments
  • fiscal 2014: 124 shipments

Dam Safety

The Dam Safety Program monitors and regulates 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, or removed safely.

High- or significant-hazard dams are those at which loss of life could occur if the dam should fail.

On September 1, 2013, a new state law exempted a large number of dams from the Dam Safety Program. These dams had to meet all of the following criteria:

  • be privately owned;
  • be classified either low or significant hazard;
  • have a maximum capacity less than 500 acre-feet;
  • be located within a county with a population of less than 350,000; and
  • be located outside city limits.

As a result, the law permanently exempted 3,198 dams.

In 2014, Texas had 3,989 state-regulated dams; of those 1,097 were high-hazard dams and 470 were significant-hazard dams. The remaining dams were classified as low hazard.

As of August 2014, 95.8 percent of all high- and significant-hazard dams had been inspected during the past five years. About half of the inspected dams are in either “fair” or “poor” condition. The majority of owners have begun making repairs, as funds are available.

In addition to inspections, the Dam Safety Program conducts workshops—primarily for dam owners and engineers—on emergency action plans and dam maintenance. Emergency management personnel also attend. Three workshops were conducted in fiscal 2013, followed by three more in fiscal 2014.

Emergency Management Support

In a state the size of Texas with its geographic and economic diversity, natural disasters or emergencies caused by human activities occur almost daily. Disasters, by nature, can have a widespread impact, while significant emergencies might occur at the same time but 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’s 16 regional offices form the basis of the agency’s support for local jurisdictions addressing emergency and disaster situations. For that reason, disaster-response Strike Teams, organized in each regional office, serve as the TCEQ’s initial and primary responding entity during a disaster within the respective regions. Team members come from various disciplines and have been trained in the National Incident Management System, Incident Command System, and TCEQ disaster-response protocols.

The agency’s Emergency Management Support Team, based in Austin, was created to build greater disaster-response capabilities within each TCEQ region and to support the regions when necessary. The EMST will join the regional strike teams during a disaster response.

The EMST is also responsible for maintaining preparedness, assisting with the development of the strike teams in each region by providing enhanced disaster preparedness training, and maintaining sufficiently trained personnel so that response staff can rotate during long-term emergency events.

In addition, the EMST 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 hampered by a disaster.

For non-disaster emergencies, each region has an established rotation of personnel to respond to emergencies or, in some cases, dedicated emergency response teams.

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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 laboratories accredited by the TCEQ are held to the same quality-control and quality-assurance standards. The analytical data produced by these laboratories are 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 August 2014, the number of laboratories accredited by the TCEQ was 281.

Houston Laboratory

The TCEQ Houston Laboratory, which is NELAP-accredited, 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, sludge samples, and airborne particulate matter for 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 team of analytical chemists, laboratory technicians, and technical support personnel.

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

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

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 2 million people in the San Antonio area. 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 protection 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 year, the TCEQ receives hundreds of plans to be reviewed by the Austin and San Antonio regional offices. Since 2012, the agency has experienced a dramatic increase in the number of plans submitted for review as a result of increased development in both regions. The TCEQ reviewed an estimated 630 plans in fiscal 2013 and 750 plans in fiscal 2014.

In addition to reviewing plans for development within the regulated areas, agency personnel conduct compliance investigations to ensure that best management practices are appropriately used and maintained. The staff also performs site assessments before the start of regulated activities to ensure that aquifer-recharge features are adequately identified for protection.

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