TCEQ Violation Defense Attorney in Houston, Texas

Representations before TCEQ

The Enforcement Process: Overview

This explains the various phases of action that can occur when the Texas Commission on Environmental Quality (TCEQ) finds environmental violations, such as notices of violation, notices of enforcement, agreed orders. By any state’s standards, the TCEQ is a large agency. It has a biennial budget of over one billion dollars, a large Austin headquarters and 16 regional offices. The TCEQ should not be taken lightly.

Assume that an investigator has just finished inspecting your place of business for the TCEQ. Under the federal and state law, the TCEQ must adopt and enforce rules that protect the people and environment of Texas. TCEQ has designed these rules to reduce and prevent pollution and to ensure that public health is protected. Part of TCEQ’s job is to find out whether the people TCEQ regulate are complying with these rules. They do this by inspecting facilities on a regular schedule. Also, the TCEQ may inspect a facility in response to a specific complaint or a spill. Remember that anyone can file a complaint; this means disgruntled employees or ex-employees, competitors, or neighbors can file a complaint. Complainants can choose to remain anonymous.

At the end of the inspection, TCEQ investigators should go over their findings with you in an exit interview. You should find out in this interview what violations, if any, the investigator found. If the investigator finds no problems, you should receive a letter called a “general compliance letter” within several weeks. If, after further review of agency regulations, additional violations appear to have occurred, the investigator should but do not always contact you by telephone to discuss them

The Violation Phase

If the investigator found a violation, TCEQ must respond to all the violations that TCEQ investigators find. This is called the TCEQ “enforcement process”, which consists of numerous steps. Step one is the inspection. Step two is the exit interview. If your facility:

1. cannot correct all alleged violation(s) within 14 calendar days, or

2. if the violation(s) involved an actual emission or discharge, or

3. if you have been cited for the same violation(s) within the past 12 months, the TCEQ will initiate the notice of violation phase.

In the third step, TCEQ will send you a letter called a Notice of Violation (NOV). The NOV is a formal statement of the specific violations the investigator found. An NOV is written notification that documents and communicates violations observed during an inspection to the business or individual inspected. Most NOVs are prepared and sent out by TCEQ regional offices, although other areas of the TCEQ also do this. If you receive an NOV, that means TCEQ have observed one or more violations, and you will have a prescribed time period to return to compliance and provide documentation that all violations have been corrected. TCEQ may elect to visit the site and verify that the violations have been corrected, or it may be enough for you to submit documentation to TCEQ that the violation has been corrected. If you have received an NOV and correct the violations within the time given, you will not be referred for enforcement, unless the TCEQ considers the violation “serious.” If you do not correct the violations in time, you may then be referred for enforcement action. For the serious violations, TCEQ begins a step called “formal enforcement”, which is described below. The Enforcement Initiation Criteria document is used by TCEQ inspectors for air, water, and waste violations. It is available at http://www.tceq.texas.gov/agency/eic.html.

At the end of the inspection, the investigator should advise you of your right to meet with the regional office to discuss the findings. This is where the process starts getting tricky. The TCEQ website implies that meeting with them is relatively easy; in actual practice, “not so much.” In addition, the enforcement clock continues to run. “Meetings” do not toll the running of the enforcement clock.

The violation should be responded to by writing TCEQ a letter. In this letter, let TCEQ know that you have received a TCEQ NOV letter. You should respond to each point the NOV raised. If you have already corrected the violations, indicate this in the letter. If you don’t respond to the NOV by the deadline or to any other letter TCEQ send you about an enforcement action, you could give up some of your rights under the law. Your best chance of avoiding enforcement action is early in the process. That means that “a stitch in time [might] save nine.” We could assist with the writing of the NOV response letter and potentially help you avoid the enforcement process altogether.

The Enforcement Phase

If serious or continuing violations are identified during an inspection, as defined by Enforcement Initiation Criteria, the TCEQ initiates enforcement and the business or individual inspected receives a Notice of Enforcement (NOE). The NOE documents the violations and puts the recipient (respondent), on notice that the case has been referred for enforcement. This notice also lets respondents know that they can appeal the NOE by requesting an enforcement review meeting if they believe the violations were cited in error and they have new information that was not previously evaluated by the investigator. When violations are serious enough to warrant an enforcement action, the TCEQ is authorized to enforce correction of the violations and to seek penalties to deter future noncompliance. The TCEQ is allowed to pursue penalties in two different types of enforcement actions: administrative orders that are issued by the TCEQ commissioners; or referral of the case to the Office of the Attorney General for enforcement through the courts, including potential civil penalties.

Most enforcement cases are handled through the administrative order process. Administrative orders are TCEQ orders enforcing or directing compliance with any provisions - - whether of statutes, rules, regulations, permits, licenses, or orders - - that TCEQ are entitled by law to enforce or with which TCEQ are entitled by law to compel compliance. The first step in this process is to verify the information documented in the investigation report. The enforcement coordinator then should contact the respondent by phone and explain the enforcement process and what the respondent can expect next. They may or may not offer the respondent the opportunity to submit additional information or set up a meeting. If the case is expected to settle quickly, the enforcement coordinator then drafts an agreed order, which describes the alleged violations and any actions that need to be taken to correct them. The agreed order will also normally include a calculated penalty. Where possible, the TCEQ attempts expeditious settlement of enforcement actions by extending a settlement offer in the agreed order.

Agreed Orders are used when the respondent agrees to the terms and conditions of the administrative order, including the penalty. There are two kinds of agreed orders: 1660 Orders may include a reservation that: 1) the order is not an admission of a violation of a statute within TCEQ jurisdiction or of a rule adopted or an order or a permit issued under such a statute; 2) the occurrence of a violation is in dispute. These orders are named for Senate Bill 1660 (74th Legislature), now codified as Texas Water Code, Section 7.070. Findings orders are used if the Findings Criteria are met. Findings orders do not contain denial language and do contain findings of fact and conclusions of law.

If settlement does not occur within a specified time, the agency will start the process that can lead to an administrative hearing, which is similar to the process used in a court of law for civil cases. The TCEQ commissioners have ultimate approval of all administrative enforcement orders.

The penalty included in an enforcement action is calculated according to the TCEQ's Penalty Policy. This document contains the elements of Texas Water Code, Section 7.053, entitled Factors to be Considered in Determination of Penalty Amount. Some of the factors are:

• compliance history

• culpability

• a good-faith effort to comply

• economic benefit

• other factors as justice may require.

In addition, the following are considered:

• whether the site of the violation is considered a major or minor source of potential pollutants; whether

• the violation harmed the environment or human health, or has the potential to cause harm;

• whether the violation was clerical (usually stemming from errors in paperwork).

If the respondent agrees with the terms of the agreed order and the penalty amount, the case is set for approval by the TCEQ commissioners at a future TCEQ meeting. During the time allowed for settlement, the respondent may have the opportunity to discuss the violations with TCEQ enforcement coordinator and provide additional documentation that may influence the inspection findings, and/or calculated penalty.

Default Order

A Default Order is issued when the respondent fails to answer the EDPRP within the time frame allowed by the Administrative Procedures Act. If the respondent fails to comply with the default order, then the executive director may refer the case to the Office of the Attorney General for civil enforcement in a court of law.

Contesting an Enforcement Action

If the respondent contests the enforcement action, an agency attorney is assigned, who drafts an Executive Director’s Preliminary Report and Petition (EDPRP). The EDPRP notifies the respondent of the violations and the penalty assessed, and of any corrective actions needed to bring the respondent back into compliance with the regulations. This document is not an order, but a petition filed with TCEQ Chief Clerk's Office to start the administrative hearing process. The respondent may request an administrative hearing, which is held in front of an administrative law judge with the State Office of Administrative Hearings (SOAH). SOAH is a neutral party. It appoints an Administrative Law Judge (ALJ) to preside over the EDPRP. There are no juries in contested case hearings, and the TCEQ is the prosecutor. TCEQ attempts to persuade the ALJ that it should accept and approve the EDPRP. The respondent attempts to persuade the ALJ that it should reject the EDPRP. This respondent can usually propose an alternative solution.

At the end of the contested case hearing, the ALJ issues a Proposal for Decision (PFD). The PFD will be placed on an agenda of a future meeting of the TCEQ. At this meeting, the ALJ will explain the proposed PFD. The parties (TCEQ and respondent) make arguments for their respective positions. The commissioners then consider the PFD and make the final decision whether to issue, deny, or modify the ALJ decision.

To change the TCEQ’s decision, the respondent has to appeal the case to district court in Travis County. The State of Texas is the defendant. The burden of proof to overturn the agency’s decision is the “substantial evidence standard.” With this standard, the respondent is limited to arguments that the findings are not supported by the evidence in the record. This is a much more difficult standard to meet than the “more likely than not” standard. The trial then proceeds through the civil trial process like a normal civil case, and the court renders a final decision. If your case is referred to the Office of the Attorney General for enforcement through the courts, the case proceeds as a civil case. You are the defendant and the Attorney General’s office is the prosecutor.

If the TCEQ has initiated enforcement action on your facility, such as notices of violation, notices of enforcement, or agreed orders, call us as soon as possible to schedule an appointment. Bill Smalling has a Master of Laws (LL. M.) in Energy, Environment and Natural Resources Law. He has a Chemical Engineering degree and has over forty years of environmental experience. We operate all over Texas and will be glad to be of assistance.

We can represent you if you are threatened with enforcement action from a powerful agency such as the EPA. Many times such agencies issue actions under the guise of a “warning”. In reality, if not contested, such actions can lead to fines or penalties. If you receive an enforcement notice or violation from the EPA or any other state or local environmental agency, you should begin your legal defense early.  Many times these agencies use bureaucratic red tape, such as permit requirements, to establish a “record” early in the process. Later, this record is used against the individual or company in court proceedings.

We can assist you in this process by negotiating with and, if necessary, contesting the agencies early in the process. Thereby, the case likely can be resolved prior to having to go to court.