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

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

3. 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.

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

5. 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

6. 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.

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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.

13. Sent to Enforcement. Now What?

14. Enforcement Process Overview

15. 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

16. 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

17. 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 § 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 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.

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

19. 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

20. 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

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

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

23. 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

24. Summary Page of PCW

25. 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

26. 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
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

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

28. 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.

29. 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.

30. 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

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

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

33. 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)

34. 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

35. 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

36. 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

37. 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

38. Enforcement Division Organization Chart

39. Ultimate Goal is Compliance

40. 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

41. Getting Help SBLGA Hotline www.TexasEnviroHelp.org
M-F 8:00am-5:00pm
Office and Site Visits

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