Below is a brief overview of the typical phases of action that
can occur when environmental violations are found. For more details
on the enforcement process, download a PDF of our publication
The TCEQ Has Inspected Your Business. What Does This Mean to
You?
(Help with PDF.)
If you have further questions about the enforcement process,
contact our Enforcement Division at 512-239-2545 or oce@tceq.state.tx.us.
Documenting Violations and Determining Appropriate Action
The TCEQ’s enforcement process begins when a violation is
discovered during an inspection conducted either at the regulated
entity’s location or through a review of records at TCEQ
offices. Most violations are quickly corrected in response to
notices of violation. A
Notice of Violation documents the violations discovered during
the inspection, specifies a time frame to respond, and requires
documentation of compliance.
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.
The Notice of Enforcement (NOE) documents the violations and
puts the recipient, or “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.
Initiating Enforcement Action
Most enforcement cases are handled through the
administrative order process. The first step in this process is
to “screen,” or verify, the information documented in the
investigation report. The enforcement coordinator then contacts the
respondent by phone and explains the enforcement process and what
the respondent can expect next, and offers 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 encourages expeditious settlement of
enforcement actions by extending a settlement offer in the agreed
order. If settlement does not occur within a short 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.
Calculating the Penalty
The penalty included in an enforcement action is calculated by
the enforcement coordinator according to the TCEQ's
Penalty Policy. This document contains the elements of Texas Water
Code, Section 7.053
, 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 coordinator also considers the following:
- 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; or
- whether the violation was programmatic (usually stemming from
errors in paperwork).
Reaching an Agreement
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 their Agenda meeting.
During the time allowed for settlement, the respondent has the
opportunity to discuss the violations with our enforcement
coordinator and provide additional documentation that may influence
the inspection findings, calculated penalty, or both.
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. This
document notifies the respondent of the violations, the penalty
assessed, and any corrective actions needed to bring the respondent
back into compliance with the regulations.
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)
. However,
a settlement could still occur at any time prior to a final
decision on the order.
After the hearing, the judge makes a recommendation to the TCEQ
commissioners about an enforcement order. The commissioners
consider this recommendation and then make the final decision
whether to issue, deny, or modify the judge's decision.
Default Actions
If the respondent does not file a timely answer to the
executive director’s petition, the commissioners may
issue a
default order. 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.
The End of the Process
Once the respondent complies with the order, including payment
of any penalty, the enforcement process ends.
