TCEQ Unveils Draft of Enforcement Review

0 Comments | Environmental Insider News, August 20, 2004

As promised, the Texas Commission on Environmental Quality has released a 312-page draft, for public comment through the end of September, that covers all aspects of its Enforcement Process Review effort. The report includes nearly 300 pages of analysis of key issues and a nine-page summary of public comments, plus 35 key recommendations at the end of the Executive Summary. These public comments will be incorporated into a set of comprehensive recommendations to be presented to the Commissioners at a work session in October.

The Steering Committee identified three broad categories of issues - compliance history, the enforcement process, and penalties and corrective action - plus seven criteria for evaluation of issues:

improvement of the enforcement process; clarity, transparency, and simplicity; consistency across regions and programs; impact on small business; maximizing compliance through deterrence and incentives; maximizing benefit to the environment in TCEQ's enforcement policies; and timeliness, efficiency, and effectiveness. One key need not addressed in the review is employee turnover and the delays and confusion added to the enforcement system when the agency changes horses in midstream.

Several recommendations would sharpen TCEQ's focus on preventing and reducing risk to human health and the environment by assigning additional inspection and enforcement resources to these cases and giving them a higher overall priority. Field resources would also be reserved each year to address sectors that have high levels of unauthorized operations. TCEQ would also implement a new complaints manual and a nuisance odor protocol to ensure proper enforcement against problems detected via citizen complaints. Base penalties for violations that cause actual harm would increase. Finally, TCEQ's compliance history score would be based more on the frequency of violations causing environmental harm, and penalties would be enhanced for violators who do not respond to notices.

Another recommendation is to eliminate individual assessments for minor violations and use standard penalties to shorten time lines and allow a shift of resources to serious violations. TCEQ may also eliminate deferrals and enhance penalty amounts for cases that do not settle quickly. Interest may be charged for penalties not paid promptly and on overdue penalties. These changes would be tied to new procedures for collection of delinquent fees and penalties, perhaps including use of collection agencies, additional referrals to the Office of the Attorney General, and the return of permit applications for applicants with past due fees and penalties. Applicants with poor compliance records might have their applications returned or else be subjected to additional permit conditions.

TCEQ says that creation of a fast-track process for certain enforcement cases could reduce the average length of the process by up to 125 days. Creating standard penalties and setting firm deadlines for submitting Supplemental Environmental Project (SEP) proposals and documentation of financial inability to pay are key tools in accomplishing this goal. TCEQ also says it needs to simply the calculation of compliance history ratings and penalty assessments through elimination of the penalty matrix in favor of new categories of violations. Potential harm and paperwork violations would be primarily addressed via standard penalties.

Given that two-thirds of all enforcement cases today involve either a small business or a small local government, TCEQ will be considering a 15% reduction in penalties for small entities as well as greater opportunities for small local governments to defer penalties. In cases without negative impacts on the environment, small entities might be given additional time to come into compliance.

The report also includes recommendations to provide better public access to enforcement information and a clearer understanding of enforcement goals and procedures. The TCEQ website can be augmented to include enforcement process information, including case status and TCEQ orders, and to add links to topics such as compliance history, a nuisance odor protocol, SEP's, and investigation and complaint information. Finally, the panel proposed a target campaign to encourage public awareness and reporting of violations that harm the environment.