1. Understanding the Enforcement Process.
2017 Environmental Trade Fair
Colin Barth
Region 11 Compliance Assistance Specialist.
Small Business Local Government Assistance.
Title Page

2. General Overview. Investigations. NOV/NOE. Enforcement Actions
Agenda/SOAH.
Small Business & Local Government Assistance

3. Investigation Types.
Scheduled.
Complaint.
Record Review.

4. Prior Notice Media Specific Exit interview
Scheduled
Prior Notice
Media Specific
Exit interview
Checklist that are media specific
CCI
Annually or biannually
Site tour and record review

5. Complaint Investigation
Investigations that arise as a result of a compliant, respondent is not notified.
Usually driven by visual observations
Can come in a variety of forms (anonymous, phone call, internet etc…)
30 day response
Can become multi media
Greater impact on regulated community
Exit Interview
Complaint Investigation

6. Record Review Investigation
Unannounced
Review of specific documents
Conducted at TCEQ offices
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

7. Following slides are examples of various types of violations
Following slides are examples of various types of violations. Violations can be minor record keeping issues or more serious matters dealing with discharges and unauthorized emissions.
Must have a legible sign with contact information.
What is a violation?

8. Stormwater Violations
Easy to see easy to complain
Maintain controls
Don’t set it and forget it
Stormwater Violations

9. Failing stormwater controls

10. Unauthorized Emissions
Unauthorized PBR emissions/failing filter

11. Unauthorized Discharge

12. Outdoor Burning violations

13. Unauthorized burning
Unauthorized burning

14. Scrap Tire Violations
Example of a scrap tire violations, could be in compliance but need applicable permits (processor/cutting tires))

15. Were violations cited during the investigation?
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.

16. NOE Vs NOV
NOV (Categories B-C): Allows the customer a chance to come into compliance without being sent to the Enforcement Division.
NOE (Categories A and repeat B’s): Results in the customer being sent to the Enforcement Division.
NOVS usually have a 30 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

17. Category A
Require automatic initiation of enforcement action when documented during an investigation
Operating with an expired permit
Unauthorized disposal of solid waste
Discharges resulting in a fish kill
Documented falsification of data
For more threatening violations to hh and the environment

18. Category B
A responsible party (RP) will first be given an opportunity to come into compliance via NOV. The NOV will specify a compliance due date, solicit a compliance schedule, and/or acknowledge violations have been resolved.
Failure to conduct the required monitoring where applicable.
Failure to conduct waste determinations.
Inadequate level of occupational license.
Chance to come into compliance with the regional office.
Explain violations

19. Repeat B Two B violations within the most recent 5-year period.
Results in automatic enforcement
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

20. Category C
A Category C violation is a noncompliance not otherwise designated as a higher priority violation in Category A or Category B.
Formal enforcement action may be initiated if the same Category C violation is documented three (3) times within the most recent 5-year period
Failure to control windblown waste

21. 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.

22. Types of Enforcement Actions
Agreed Orders.
Findings Orders.
OCE screens case to ensure it meets the EIC
Then prepare documents for settlement

23. Agreed Orders: Are the most common type of enforcement action.
60 day settlement.
Contain a 20% deferral off the penalty amount.
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

24. Findings Order Gross deviations. Three repeated enforcement actions.
Human health and environment adversely impacted.
No 20% deferral.
For more serious violations. Findings Order contain an admission of guilt while Agreed Orders are morel liken to pleading no contest. Multiple findings Order will increase penalty amount.
Must go to agenda
Findings of fact

25. Enforcement Documents are Prepared
Cover Letter.
Proposed Order.
Penalty Calculation Worksheet.
Compliance History.
60 day settlement period.
Standard documents that the Enforcement Coordinator will send to the respondent.

26. Cover Letter Settlement Date. Penalty Amount. SEP Information.
Financial Inability to Pay.
Cover letter contains important dates and information.

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

28. Penalty Calculation Worksheet
Penalty Policy (RG-253)
Comprehensive formula for creating administrative penalty.
Room for adjustment.
Worksheet used in calculating the respondents 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

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

30. Penalty Calculation Worksheet

31. Compliance History Snap shot of five year period.
High, Satisfactory, Unsatisfactory, Unclassified
Recalculated every year (9/1)
Includes positive and negative compliance actions..
Formula for calculation found within the rule.
Not all programs are included in the rule .
-Voluntary programs (self audit, C2, EMS)
-Updated once per year

32. Options within Enforcement Process
Pay Penalty in Full
Payment Plan.
Financial Inability to Pay Review
Supplemental Environmental Projects.
Pre-approved SEPs.
Custom SEPs.
Compliance SEPs
Litigation.
Options once you have entered the enforcement process. An additional option is litigation.
Compliance seps = must be lcgv, financial inability to pay the fine,
a repair on structures or equipment that may be the cause of the violation.
remediation of environmental harm, such as a cleanup of a spill.
Allows local governments to use sep monies towards remediating their violation, does contain a financial review.

33. Does the entity agree to the terms of the administrative order, including the penalty and corrective action?
If so, the case is set for approval by the TCEQ commissioners at their Agenda meeting.
30 day public comment period
Upon approval at Agenda, the case is set to “effective”.
Executive Director Agenda vs Commissioners Agenda
If settled within 60 days case is scheduled for agenda. Effective date is 3 days after TCEQ approval letter.

34. Process Complete
Once the respondent complies with the order, including payment of any penalty, the enforcement process ends.
The Order is effective for 5 years.

35. Does the entity agree to the terms of the administrative order, including the penalty?
If not, an agency attorney is assigned and an Executive Director’s Preliminary Report and Petition is drafted.
If not settled within 60 days case will be referred to the litigation division.
30 days for LD to send out EDPRP

36. Did the entity Agree to the EDPRP?
If not, the case could be referred to the State Office of Administrative Hearings (SOAH).
If not settled by the Litigation Division than the case will be referred to soah.

37. State Office of Administrative Hearings (SOAH)
Third Party Judge.
After the hearing, the judge makes a recommendation to the TCEQ commissioners.
The orders are then presented to the commission for consideration and approval.

38. Default Orders Failing to respond to EDPRP within 20 days.
Defaults orders for when a customers never responds to the agency.

39. What is the role of SBLGA in the Enforcement Process?
SBLGA role in the process

40. SBLGA Customers: Business & Industry Local Governments Associations
Other Agencies
SBLGA customers are business & industry and local governments. We know that environmental rules can be confusing and there may not be a dedicated environmental person on staff.
We also work with other parts of the agency and other agencies to look out for the interests of our customers.
For example, investigators reviewed the PST super guide for us.
We also participate on Rule Teams that may affect our customers.
Help For Smaller Entities

41. Getting Help Hotline www.TexasEnviroHelp.org Office & Site Visits
M-F 8:00am-5:00pm
Office & Site Visits
We have a toll free number you can call and talk to someone live, each day the agency is open. If you get the voic , leave a message and your call will be returned that day if possible, or the next business day.
We have a website that we believe is very easy to use. On the site you’ll see industry specific links that have all the information in one place.
You can also come visit our staff in their office or ask them to visit you. It’s best that you call ahead to set up an appointment to make certain that you both have the necessary time allotted.

42. SBLGA: Local Staff Available
We have people in almost every region. The San Angelo Region gets support from surrounding regions; and other regions have multiple people.

43. How we can help Roles NOV Assistance Advocacy NOE Assistance
Confidentiality Agreement
Assistance – helping to comply with current rules and policies
Advocacy – working to implement rule or policy changes and acting as an advocate in some enforcement actions
In general we can help the customer navigate through the TCEQ process and help them with advice and contacts and keep an open line of communication.

44. Confidentiality Agreement
All assistance provided by SBLGA staff is considered confidential in nature and should not be disclosed to anyone outside SBLGA.
Confidential assistance provided, good to contact us prior to being referred to enforcement. Once enforcement has been initiated confidentiality is not used.

45. Confidentiality Agreement
Exceptions to this policy include:
imminent threat to human, animal or plant life.
immediate danger to the environment criminal misconduct.
Enforcement and Litigation referrals.
Instances where an entity tries to use SBLGA assistance as a defense in enforcement matter.
Exceptions to the confidentiality agreement.

46. NOV Assistance Handled within the regional office. Open Communication.
Technical Assistance.
Compliance Deadline.
SBLGA can help you nip the problem in the bud, i.e. before enforcement actions.

47. NOE Assistance Assistance with settlement options and timelines.
Assistance with ordering provisions.
Help navigating TCEQ web.
Can help you understand the enforcement process and help you achieving compliance with the AO.

48. “Nip it in the bud” Site Visit Program (C2). EnviroMentors.
Confidential.
Hotline.
Internal Audit Program
Contact SBLGA before you are visited by a TCEQ inspector and your compliance options are more varied.

49. Self-Audit
Offers immunity from violations and penalties discovered during the audit.
Must submit a notification
Six month completion rate
RG-173
Offers immunity from penalties and violations for certain violations identified during the audit
Must correct violations
Must submit notification
Cant be longer then 6 months (extension on a case by case basis)

50. Picture of publications

51. Resources.
TCEQ Publications. Enforcement Standard Operating Procedures. Field Operations Standard Operating Procedures. SBLGA Staff Handbook. The Enforcement Process: From Violations to Actions.
Resources Page

52. Contact and Resources. Colin Barth. texasenvirohelp.org.
(512)
texasenvirohelp.org.
Toll Free Confidential Hotline:
Contacts and final slide.