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Agency Activities: Enforcement (FY2017-2018)

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 86th Legislature, FY2017-FY2018)

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 by the agency 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 4,400 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—as high as $25,000 for some programs—per day, per violation. In some programs, civil judicial cases carry penalties of up to $25,000 per day, per violation.

In fiscal 2017, the TCEQ issued 1,496 administrative orders, which required payments of almost $11 million in penalties and nearly $5 million for SEPs (see “Supplemental Environmental Projects,” below). The average number of days from initiation of an enforcement action to completion (order approved by the commission) was 276 days.

In fiscal 2018, the TCEQ issued 1,370 administrative orders, which required payments of over $13 million in penalties and almost $4 million for SEPs. The average number of days from initiation of an enforcement action to completion was 363 days.

The TCEQ can also refer cases to the state attorney general. In fiscal 2017, the AG’s office obtained 46 judicial orders in cases referred by the TCEQ or in which the TCEQ was a party. These orders resulted in more than $16.1 million in civil penalties. In fiscal 2018, the AG’s office obtained 34 judicial orders, which resulted in approximately $3.8 million in civil penalties.

Additional enforcement statistics can be found in the agency’s annual enforcement report, available online at <www.tceq.texas.gov/goto/aer>.

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.

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 usually 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 environmental improvement projects. By allowing penalty amounts to go toward a Supplemental Environmental Project (SEP), 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 have already received general approval from the commission. The projects—which are sponsored by both nonprofit organizations and governmental agencies—represent a wide array of 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 as long as the proposed project is environmentally beneficial and the party that would be 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 is called a compliance SEP, which may be offered to governmental authorities such as school districts, counties, municipalities, junior-college districts, river authorities, and water districts.

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

Table 1. TCEQ Enforcement Orders

Fiscal Year Number of Orders Assessed Penalties Orders with SEPs SEP Funds
2017 1,496 $18.9 million 166 $4.9 million
2018 1,370 $13.3 million 169 $3.9 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 approximately 394,000 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 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.”

Table 2. Compliance-History Designations

  September 2017 September 2018
Classifications Number of Entities Subject to Compliance-History Rules Percent Number of Entities Subject to Compliance-History Rules Percent
High 36,097 9.75 36,540 9.26
Satisfactory 9,871 2.67 8,867 2.25
Unsatisfactory 904 0.24 932 0.24
Unclassified 323,360 87.34 348,334 88.25
Total 370,232 100 394,673 100

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 that regulated critical infrastructures, essential to the state and its residents, maintain compliance with environmental regulations; and to support these critical infrastructures during disasters. This latter 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.

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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 Sept. 1, 2013, a new state law exempted a large number of dams from Dam Safety Program regulation. Exempt dams must meet all of the following criteria:

  • Be privately owned.
  • Be classified either “low hazard” or “significant hazard.”
  • Have a maximum capacity of less than 500 acre-feet.
  • Be within a county with a population of less than 350,000.
  • Be outside city limits.

As a result, the law exempts 3,239 dams.

In 2018, Texas had 4,007 state-regulated dams; of those, 1,379 were high-hazard dams and 354 were significant-hazard dams. The remaining dams were classified as low hazard.

As of August 2018, 85 percent of all high- and significant-hazard dams had been inspected during the past five years. About 777 of the inspected dams are in either “fair” or “poor” condition. Most of the 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 2018.

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Homeland Security

The Homeland Security Section coordinates communications during disaster response with federal, state, and local partners; conducts threat assessments regarding 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.

Texas Compact Waste Facility

The Homeland Security Section is also responsible for compliance at the disposal site for low-level radioactive waste in Andrews County. The disposal site, the Texas Compact Waste Facility, is operated by Waste Control Specialists, Inc. (radioactive-material license R04100). The 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 of in the Texas Compact Waste Facility:

  • fiscal 2017: 118 shipments
  • fiscal 2018: 125 shipments
Tier II Chemical Reporting Program

Since Sept. 1, 2015, the Homeland Security Section also oversees the Tier II Chemical Reporting Program.

House Bill 942, 84th Legislature, which was signed into law by Gov. Abbott on June 16, 2015, transferred the Tier II Chemical Reporting Program from the Texas Department of State Health Services (DSHS) to the TCEQ. The transfer from the DSHS included 11 full-time-equivalent positions, equipment, and resources. Additionally, a new position was created to develop and administer a Tier II Grant Program.

The Texas Tier II Chemical Reporting Program is the state repository for annual hazardous-chemical inventories, called Texas Tier II Reports, which are required under the Emergency Planning and Community Right-to-Know Act.

Texas Tier II Reports contain detailed information on chemicals that meet or exceed specified reporting thresholds at any time during a calendar year. The Tier II reporting system identifies facilities and owner-operators, and collects detailed data on hazardous chemicals stored at reporting facilities within the state. There are over 77,000 facilities in the data system. A total of 74,588 Tier II reports were received for the reporting period of Jan. 1–March 1, 2018.

Emergency Management Support

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, during a disaster, Disaster-Response Strike Teams (DRSTs), organized in each regional office, serve as the TCEQ’s initial and primary responding entities within their 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 (EMST), based in Austin, was created to build greater disaster-response capabilities within each TCEQ region and to support the regions when necessary. The EMST joins the regional DRST during disaster responses.

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

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Accredited Laboratories

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

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.

All laboratories accredited by the TCEQ are held to the same quality-control and quality-assurance standards. 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 2018, there were 259 laboratories accredited by the TCEQ.

Sugar Land Laboratory

The TCEQ Sugar Land Laboratory, which is accredited by NELAP, serves the agency’s 16 regional field offices. The laboratory supports monitoring operations for the TCEQ’s air, water, and waste programs, as well as river authorities and other environmental partners, by analyzing surface water, wastewater, sediments, sludge samples, and airborne particulate matter for a variety of environmental contaminants. The 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 are produced using methods approved by the U.S. Environmental Protection Agency. The 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 near-instant transmission of electronic data, the TCEQ can now 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, mining, recreation, and the generation of electric power using steam.

The aquifer’s pure spring water also supports a unique ecosystem of aquatic life, including several 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. In regulated areas, best management practices for treating stormwater are mandatory during and after construction.

Each year, the TCEQ receives hundreds of plans to be reviewed by the Austin and San Antonio regional offices. Since 2012, due to increased development, the agency has experienced a dramatic increase in the number of plans submitted for review in both regions. The TCEQ reviewed 798 plans in fiscal 2017 and 890 plans in fiscal 2018.

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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