Texas environmental law, McPherson & Associates, PC

The TCEQ Comes Calling

Why Me? Environmental Enforcement

The Administrative Process

THE TCEQ COMES CALLING

We represent clients before the Texas Commission on Environmental Quality (“TCEQ”) in defending TCEQ enforcement cases, specifically including but not limited to the following:

Air Quality Construction and Demolition Waste Disposal
Dry Cleaner Discharges and Waste Disposal
Industrial Waste Discharges and Disposal
Municipal Solid Waste (MSW) Disposal
Petroleum Storage Tanks
Recycling Operations
Solid Waste Disposal

WHY ME? ENVIRONMENTAL ENFORCEMENT

Often, enforcement cases are begun by a complainant, who will file a complaint with the Texas Commission on Environmental Quality (TCEQ). All they have to do is go online here

http://www.tceq.state.tx.us/compliance/complaints/index.html

or contact one of its regional offices. Competitors, neighbors who you may have offended, and disgruntled employees are common sources of complainants. Once the TCEQ gets involved, this dispute will take on a very different complexion.

Furthermore, when the TCEQ comes calling, you need competent, 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 us or another professional, you should quickly obtain legal help.

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 this Firm 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. He has experience representing parties before the TCEQ, in contested case hearings before the State Office of Administrative Hearings (in opposition to the TCEQ), and in appeals of Administrative Law Judge decisions in civil court.

THE ADMINISTRATIVE PROCESS

One of the first documents issued by the TCEQ if it finds a violation is known as 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 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.

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 imitative of a snail. 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. Ouch.

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 20 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). 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 the prosecutor. 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 commissioners can 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 in 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.

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 look forward to helping you.

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