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 buildings on the North side of Austin. In addition to that, they have 16 regional offices all around the state.
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 agency interpretations can change 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 brings an enforcement action against you or your business, 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.
It is not the TCEQ’s job to tell you how to come into compliance with state environmental requirements. And it is not the TCEQ’s job to try to identify the least costly option for compliance. The agency just wants compliance.
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.
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). 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.
After the evidentiary hearing, the ALJ will make a decision, and that decision will be set on the agenda for an upcoming meeting of the TCEQ Commissioners. There are 3 commissioners. They vote on whether to accept or change the ALJ’s proposed decision. If at least 2 vote yes, the decision becomes final. If you are unhappy with that decision, you may appeal the decision to civil district court in Travis County. But you don’t get to start all over. To overturn the TCEQ’s decision, you are limited to addressing only certain alleged defects in the process, or that the decision lacks reasonable factual support in the record. This is very hard standard to meet. Basically, the courts will affirm the TCEQ decision if it finds any reasonable support in the record.
So it is critical to “win”, or lose the least, within the processes of the TCEQ. Always remember the state has considerable resources lined up in its corner. In fiscal 2013 the TCEQ had approximately 2,760 employees spread among its 16 regional offices, and a $342 million operating budget for the 2013 fiscal year (including both baseline and contingency appropriations). In my opinion the best way to defend an enforcement is to get professional help immediately, and tell your lawyer about the impending deadlines. Remember-use your own lawyer and environmental consultant to identify and select the lesser expensive way to comply.
I have created a diagram of the TCEQ enforcement process so it is easier to understand where you are in the enforcement process. This is intended as a management tool to help you make informed business decisions. To obtain a copy, please call me at (214) 722-7096.