Understanding the Enforcement Process. 2018 Environmental Trade Fair Katy Montgomery Drinking Water Enforcement Section Work Leader. Title Page

General Overview. From Investigation to Enforcement.. Enforcement Process Enforcement documents Post Settlement Actions. Litigation/SOAH/OAG Other Enforcement Division Duties Compliance Assistance

Investigation Types. Scheduled. Complaint. Record Review. University of Texas at Arlington Energy Act Investigations Petroleum Storage Tanks Program Area Record Reviews Focused Investigations Active/Inactive Scheduled. Complaint. Record Review.

Prior Notice Media Specific Exit interview Scheduled Prior Notice Media Specific Exit interview Checklists which are media specific CCI Site tour and record review

Record Review Investigation Unannounced Review of specific documents Conducted at TCEQ offices Can be conducted by Program Area TCEQ staff review applicable files that should be submitted to the TCEQ. Examples include Financial Assurance for PST, License Irrigators, and Dry Cleaner Registration. Unannounced Can still result in alleged violations

Violations Cited? If not, the process ends. If so: Notice of Enforcement (NOE). Notice of Violation (NOV). Field Citation Area of Concern (AOC). Enforcement Initiation Criteria (EIC) After investigation, investigator will issues an exit interview documenting any alleged violations. Alleged violations will result in a NOV, NOE, or area of concern (aoc). Different compliance options.

NOE vs NOV NOV (Categories B-C): Allows for a chance to come into compliance without being sent to the Enforcement Division Failure to comply with the violation can result in enforcement Timeframe for compliance is generally 180 days and is specified in the NOV NOE (Categories A and repeat B): Automatically sent to the Enforcement Division. NOVs usually have a 180 day compliance period and if corrected don’t require any formal enforcement action (penalty and TRs) NOVs can be settled in the regional offices A and B violations are determined by the EIC NOE will be settled formally with the Enforcement Division. Receive letters after formal investigation

Category A Require automatic initiation of enforcement action Operating with an expired permit Unauthorized disposal of solid waste Discharges resulting in a fish kill Documented falsification of data Failure to issue boil water notice within 24 hours For more threatening violations to hh and the environment

Category B Given an opportunity to return to compliance Failure to conduct required monitoring Failure to conduct waste determinations Inadequate level of occupational license Failure to maintain the required minimum disinfectant residual (24 hours) Chance to come into compliance with the regional office. Explain violations

Repeat B Two B violations during two consecutive investigations within the most recent 5-year period Results in automatic enforcement Compliance does not prevent enforcement action Normally these types of violations result in a NOV and a chance to come into compliance prior to being sent to enforcement, however if it is a situation where the violation has occurred more than once in the previous 5 years at the same site it will be considered a repeat B and therefore sent to the Enforcement Division. Coming into compliance will not erase the violation

Category C Not otherwise designated as a Category A or Category B. Same violation three times within the most recent 5-year period Failure to control windblown waste Failure to have sanitary control easements on drinking water wells

Field Citations Informal Process. Certain Customers/Violations. Financial Penalty. Corrective Action. Compliance Dates. If respondent does not comply with a CA the formal enforcement action is required.

Sent to Enforcement. Now What?

Enforcement Process Overview

Enforcement Coordinator Actions Contact Respondent within 10 days of assignment General enforcement process Violations Compliance actions Settlement options Has 60 days to mail the proposed agreed order packet Cover letter Proposed agreed order Penalty Calculation Worksheet (PCW) Compliance History

Screening Process Within 10 days of assignment to Enforcement Coordinator Enforcement Coordinator establishes communication Verify owner/operator Ensure EIC is met Ensure violations are valid Determine order type Civil vs Administrative Civil vs administrative

Civil Actions Referred to the Office of the Attorney General (OAG) 30 Texas Administrative Code § 70.6 Texas Water Code § 7.105(b) 30 Texas Administrative Code § 70.6-allowed to refer to the OAG if: need for immediate action to protect human health, safety, or the environment need for a judgment to enforce compliance with an existing administrative enforcement order where there is a significant impact to the environment or to agency policy egregious violations where the availability of civil penalties is necessary to adequately address the violations when required by law under Texas Water Code § 7.105 when the TCEQ has been named as a necessary and indispensable party in an action bought by a local government under Texas Water Code § 7.351 and § 7.353 Texas Water Code § 7.105(b)-At the request of the Commission, the OAG shall institute a suit in the name of the state for injunctive relief under § 7.032, to recover a civil penalty, or for both. The Commission, through the Executive Director, shall refer a matter to the Attorney General’s office for enforcement through civil suit if a person: is alleged to be making or to have made an unauthorized discharge of waste into or adjacent to the waters in the state at a new wastewater management system or other point of discharge without a permit in violation of state law has been the subject of two or more finally issued administrative penalty orders for violations of Chapter 26 occurring at the same wastewater management system or other point of discharge within two years immediately preceding the date of the first alleged violation currently under investigation at that site is alleged to be operating a new solid waste facility as defined in Section 361.003 of the Texas Health & Safety Code without a permit in violation of state law has been the subject of two or more finally issued administrative penalty orders for violations of Chapter 361 of the Texas Health & Safety Code, occurring at the same facility within the two years immediately preceding the date of the first alleged violation currently under investigation at that site is alleged to be constructing or operating a facility at a new plant site without a permit required by Chapter 382 of the Texas Health & Safety Code, in violation of state law has been the subject of two or more finally issued administrative penalty orders for violation of Chapter 382 o f the Texas Health & Safety Code, for violations occurring at the same plant site within th e two years immediately preceding the date of the first alleged violations currently under investigation.

Types of Administrative Enforcement Actions 1660 Orders. Findings Orders Both are Agreed Orders Pursued by Commission

1660 Order Most common type. Contains a denial of liability. Contains a conditional 20% deferral of the penalty. Majority of enforcement cases will fall under this category. Case is prepared by the enf division Contains alleged violations and schedule for corrective action Must go to agenda Alleged violations

Findings Order Criteria: No 20% deferral. No denial of liability Absence of management practices designed to ensure compliance. Violation of prior order Human health and environment adversely impacted Three repeated enforcement actions NOVs and/or orders Demonstrated a pattern of non-compliance Indifference to legal duty No 20% deferral. No denial of liability Chapter § 70.11 For more serious violations. Findings Order contain an admission of guilt

Cover Letter Settlement Date. Penalty Amount. Supplemental Environmental Project (SEP) Information. Financial Inability to Pay Contact Information. Cover letter contains important dates and information.

Proposed Order Documented violations. Recent compliance actions. Penalty amount. Ordering provisions. . Standard enforcement action.

Penalty Calculation Worksheet Uses the Penalty Policy (RG-253) to assess a penalty for each violation Comprehensive formula for creating administrative penalty. Adjustments: Entity size Compliance history Compliance determination Economic Benefit Worksheet used in calculating the Respondent’s penalty. Penalty Policy was last revised and updated 4/1/14 Describes how the agency assesses and computes administrative penalties. Compliance history rule is 30 TAC 60

Summary Page of PCW

Penalty Policy Statutory Authorizations and Limits Violation Groupings Major and Minor sources Record keeping vs potential or actual releases Compliance History. Good Faith Effort Economic Benefit

Compliance History Snap shot of five-year period. High, Satisfactory, Unsatisfactory, Unclassified Recalculated every year (September 1st) Includes positive and negative compliance actions. Not all programs included Can result in adjustment in the penalty https://www.tceq.texas.gov/compliance/enforcement/compliance-history/about.html Mass Classification conducted every year on September 1st 30 Texas Administrative Code Chapter 60 Rating and Classification stay in effect for that year until the next mass classification. They will not be recalculated mid-year as components change Voluntary programs (self audit, C2, EMS) Adjustments in the penalty can be an increase or a decrease Increases for previous NOVs and orders and Unsatisfactory Classification Decreases for self-audits and High Performer Classification

Proposed Order Packet Enforcement Coordinator negotiates settlement 60 days to Settle Settlement Includes: Signed to agree to terms in order Penalty payment

Settlement Options Pay Penalty in Full Payment Plan. Financial Inability to Pay Review SEP Pre-approved SEP Custom SEP Compliance SEP (local governments only) Litigation. Options once you have entered the enforcement process. An additional option is litigation. SEPs allow Respondents to redirect some or all of a penalty to environmental projects in their area list of pre-approved SEPs custom SEPs require review and approval Compliance SEPs allow local governments to use SEP monies toward remediating the violations, does contain a financial review. Mention there is a website.

Post-Settlement 30 day public comment period on Texas Register Scheduled for approval at Agenda. Executive Director Agenda <$7,500 1660 Order Commissioners’ Agenda >$7,500 (1660 Order) All Findings Orders If settled within 60 days case is scheduled for agenda. Effective date is date the order is signed by the Commission.

Post Agenda Transfer to Compliance Monitoring Section Open technical requirements SEP Transferred to Financial Administration Division No technical requirements Payment Plan Closed No SEP Penalty paid in full

Effective Orders Order is effective the date it is signed by the Commission Technical Requirement timelines begin SEP timelines begin Payment plan payments begin

No Settlement Transfer to the Litigation Division No settlement within 60 days Respondent disputes violations or terms of agreed order

Litigation Division If disputed: Proposes an Executive Director’s Preliminary Report and Petition (EDPRP) If settled, scheduled and approved at Agenda If no settlement, Default Order issued If disputed: Option to go to State Office of Administrative Hearings (SOAH)

SOAH Formal Hearing Third Party Judge Post Hearing Judge makes proposal for decision to the TCEQ Commissioners Orders presented at Agenda for Commission consideration and approval

OAG Enforcement Division can make a referral directly to the OAG Pattern of non-compliance with TCEQ enforcement actions Pattern of no communication Bad actors

Other Teams in Enforcement Division Order Compliance Teams Track progress of compliance with effective orders Ability to refer cases back to enforcement for non-compliance Compliance Monitoring Team Technical specialists for Texas Pollutant Discharge Elimination System Receives and assesses compliance with Discharge Monitoring Reports

Other Teams in Enforcement Division Cont. Special Functions Team Data base QA Agenda preparation Document review Compliance History maintenance and annual classification Air Audit Coordinators Receive and review self-audits Four coordinators

Enforcement Division Organization Chart

Ultimate Goal is Compliance

Compliance Assistance Small Business & Local Government Assistance (SBLGA) Free and confidential EnviroMentors Financial, Managerial, & Technical (FMT) Assistance For drinking water and wastewater systems Free technical assistance

Getting Help SBLGA Hotline www.TexasEnviroHelp.org 1-800-447-2827 M-F 8:00am-5:00pm www.TexasEnviroHelp.org Office and Site Visits https://www.tceq.texas.gov/drinkingwater/fmt

Katy Montgomery (210) 403-4016 Katy.montgomery@tceq.texas.gov Contact Information Katy Montgomery (210) 403-4016 Katy.montgomery@tceq.texas.gov