The TCEQ Comes Calling
Why Me? Environmental Enforcement
The Administrative Process
THE TCEQ COMES CALLING
When the Texas Commission on Environmental Quality (TCEQ) contacts you about a possible infraction that may lead to a Notice of Violation or Notice of Enforcement, it helps to realize what you are up against. The TCEQ can be a formidable opponent. Their headquarters isn't comprised of merely one, or just a part of one, office building. They have a compound of at least 6 different buidlings on the North side of Austin. In addition to that, they have 16 regional offices all around the state.
The TCEQ's budget for 2010-2011 is over one billion dollars ($1,074,503,889). About 89% of these funds come from "fee generating services", which includes enforcement fines and penalties collected by the TCEQ's Enforcement Division. Their 2010 budget request for field inspections and complaints is $8,132,952, more than their 2007 actual expenses (most current reported year), and another $1,521,766 more than their 2007 actual expenses for enforcement and compliance support. One could say the TCEQ is in the business of assessing and collecting enforcement fines and penalties, and business is looking up. And the TCEQ does not adjust their budgets to take a recession into account.
For fiscal year 2007, the TCEQ issued 1,383 administrative orders, the 2nd highest number of orders issued since the TCEQ received administrative penalty authority. And that's just the number of "completed" cases. Many more cases are begun every year. Some settle, while many more are still in process.
Designing and implementing responses to a Notice of Violation, Notice of Enforcement, remediation process, or any other agency communication, is a blend of art and science. The TCEQ is a political body, so science is affected by political concerns, and the meaning of facts changes with policy. What really matters to the agency isn't always obvious. The "wrong" thing can be unintentionally said, aggravating known problems and sometimes creating issues when there were none. To paraphrase Miranda rights, what you say can and often is used against you by the TCEQ. So every communication counts.
If the TCEQ thinks you have messed with Texas illegally, there are two general ways to respond. One, prove the TCEQ is wrong. Two, if the TCEQ is right, bring your operations into compliance with the state's rules and regulations, and negotiate the smallest fine possible. For more information about what you're in for either way, read the rest of this page.
Regardless of which option fits your circumstances, you need an advocate, someone who understands how the TCEQ works and operates. Someone who is committed to considering the remediation costs, as compared to those who just take what the TCEQ says is needed as non-negotiable (which often makes the lawyer and/or consultant(s) more money).
It doesn't take a big law firm to take on the TCEQ. It takes a shrewd lawyer. Sophisticated clients hire lawyers, not law firms. Read Why Choose This Firmand About Mark for more information about what makes the McPherson LawFirm different. If we're the kind of shop you're looking for, contact us as soon as possible to help you respond to the allegation that you may have messed with Texas illegally.
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WHY ME? ENVIRONMENTAL ENFORCEMENT
Kris Kristofferson once sang, "Why Me, Lord?" It's not unusual for individuals and businesses to feel that way when the TCEQ thinks they've messed with Texas illegally. Surprisingly, there's often an answer. All someone has to do is go online here
or contact one of the TCEQ regional offices to file a complaint and trigger a TCEQ investigation against you. And yes, complainants can do this anonymously. Competitors, neighbors who you may have offended, and disgruntled employees are common sources of complaints. Once the TCEQ gets involved, the dispute will take on a very different complexion. Among other things, the complainant is now playing with somebody else's money. The TCEQ's, and yours.
When the TCEQ comes calling, you need competent, deliberately aggressive counsel, and you need it fast. The administrative process (discussed below) has likely begun, triggering deadlines, and time in general usually becomes an issue. Whether you retain this lawfirm or another professional, you should quickly obtain legal help. What you don't know you don't know (read that again) can hurt you.
If somebody thinks you messed with Texas illegally, you need a blend of expertises for your defense. You need someone who has political acumen, an awareness of public relations, and is familiar with the proverbial ringer you are being put through, and the McPherson LawFirm has that mix of skills.
Mark McPherson has an undergraduate degree in Political Science, has worked in political campaigns, and has Chaired the Real Estate Legislative Affairs Committee (Real Estate, Probate and Trust Law Section, State Bar of Texas) for two legislative sessions, continuing to serve as its Legislative Affairs Advisor. He has experience representing parties before the TCEQ, and in contested case hearings before the State Office of Administrative Hearings.
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THE ADMINISTRATIVE PROCESS
The TCEQ is like a prosecutor with super powers, and they can operate with remarkable speed when they want to, while at other times they are more like a snail. If you want to read the TCEQ's version of this story, click here for their "official" publication on what to do when the TCEQ comes calling. But if you want the "rest of the story"....you should consult someone who doesn't have the TCEQ's best interests at heart. Their interests are not your interests. You need not just independent advice and counsel, but advice and counsel that will critically and skeptically evaluate the TCEQ's allegations. And challenge them when appropriate.
One of the first documents issued by the TCEQ if it even thinks it has found a violation is a “Notice of Violation” (NOV) letter. This letter provides notice of the statute or regulation allegedly violated. You should respond to an NOV letter in writing, and by a certain deadline. The NOV letter will include your deadline and provide other contact information.
The TCEQ first attempts to resolve cases by agreement. If an agreement with the TCEQ cannot be reached in the NOV stage, your case will proceed to formal enforcement. After the NOV stage, the TCEQ will send you a “notice of enforcement” (“NOE”) letter. Again, you should respond, your response should be in writing, and it should be made by the deadline in the NOE letter.
In the NOV and NOE stages of the process, the TCEQ basically sits as prosecutor, alleging that you messed with Texas, and also as judge to determine whether or not you DID illegally mess with Texas, at least initially. The jeopardy you are in should be obvious. If it decides you messed up, it can fine you. The TCEQ releases on a regular basis the number of businesses it fines and the amount of those fines. On the TCEQ’s home page it usually has a headline like “TCEQ Approves Fines Totaling...” and these can run around $1 million every 2 weeks. Click here to scan their news releases page where you can see some of these announcements. Ouch. But their budget depends on these fines, so as said previously, the TCEQ appears to be in the business of assessing and collecting fines.
If you are still unable to resolve your case in the NOE process, the TCEQ will file a petition entitled an “Executive Director’s Preliminary Report and Petition” (EDPRP). If you are served with an EDPRP, you have a certain number of days to file a response or risk having the TCEQ issue a default order against you. If you file an answer, the TCEQ again attempts to reach an agreement on the proposed order.
If you cannot reach an agreement, the case will likely become a “contested case” and be referred to the State Office of Administrative Hearings (SOAH). You may want to request a contested case hearing. SOAH is a neutral party, and it will appoint an Administrative Law Judge (ALJ) to preside over the EDPRP. There are no juries in contested case hearings, and the TCEQ is not the judge; it is "only" the prosecutor, as if that weren't enough. It puts on its case and attempts to persuade the ALJ that it should accept and approve the EDPRP. The alleged violator attempts to persuade the ALJ that it should not accept or approve the EDPRP, and this can involve proposing a specific alternative solution.
At the end of the contested case hearing process, the ALJ will issue a Proposal for Decision (PFD). The PFD will be set on the agenda for a meeting of the TCEQ commissioners, at which the ALJ will explain its proposed PFD, and the parties can argue for or against the PFD. At the conclusion, the TCEQ's commissioners vote to adopt the PFD as proposed, or make any changes they desire. There are three commissioners, and it takes a vote of 2 for a majority.
It is critical to win or contain your losses at the TCEQ level, though, because in order to change the agency’s decision, the loser has to appeal the case to district court in Travis County-with the State of Texas as the defendant. The burden of proof to overturn the agency’s decision is not “more likely than not.” The burden of proof is generally known as the “substantial evidence standard,” where one is limited to arguments that the findings and conclusions are not supported by the evidence in the record. This is a much more difficult standard to meet.
Once the case is in the civil trial courts, it proceeds through the civil trial appeals process much like a “normal” civil case, until a court order becomes final. The key change to remember is that those challenging an agency determination must prove it more likely than not that the TCEQ made an incorrect decision. This is a much higher burden of proof than the civil trial burden of proof known as "preponderance of the evidence."
This administrative process can take a long time, in some cases years. It generally gets progressively more difficult to "win" as your case moves through the different levels. In other words, usually an NOV is easier to resolve than an NOE. A Preliminary Report and Petition is even more difficult and expensive to "win," and successfully challenging the TCEQ's decision in court is very difficult and more costly. The uncertainty created for your business by this process can be an intangible killer. This means professional help is most valuable to you in the early stages if cost containment is important to you. It's like an ounce of prevention compared to the pounds of cure it will take in later stages like a contested case hearing. Get help, and get it now.
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Whether the evidence shows that you didn’t, or did, illegally mess with Texas, if somebody thinks you messed with Texas illegally and the TCEQ has contacted you, call us at 972-381-9800 as soon as possible to schedule an appointment. We operate state-wide, and we look forward to helping you.
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