Faster Fixes, Fewer Questions are Part of TCEQ’s Proposed Expedited Enforcement Program
By Kathryn Guerra
The Texas Commission on Environmental Quality (TCEQ) is proposing a sweeping change to how it handles environmental violations, unveiling a fast-tracked enforcement program that could cut penalties in half for companies that fix problems quickly. At a series of early December information sessions, agency leaders outlined the new Expedited Compliance Order process, which would allow certain violators to resolve enforcement cases within 60 days. The move marks a significant shift in how Texas polices pollution, raising new questions about transparency and public oversight.
The agency said that 193 violations from its air, water and waste programs qualify for an Expedited Compliance Order, but did not make the list of violations available. TCEQ staff told attendees that the agency would make the list of qualifying violations public ahead of the January 28 Commissioners Agenda meeting, when they plan to seek approval of the program. Here is how the agency would divide the as-of-yet unspecified list of 193 violations:
- 102 are in the drinking water program
- 75 from the petroleum storage tank program
- 1 from the municipal solid waste program
- 11 from the water quality program
- 4 from the air quality program
In preparation for the proposed change, the TCEQ held informal briefings in Houston, Austin and Fort Worth. Fewer than 10 people attended the 30-minute meeting in Fort Worth. When asked whether the agency felt it had engaged enough to inform both communities and regulated entities of the change, staff answered that it believed it had. Unlike formal rulemakings, the agency won’t accept formal comments from the public before implementing the program. The agency cited its legal authority to change the enforcement program, subject to the approval of its commissioners.
Expedited Enforcement Process
The TCEQ’s current enforcement process takes an average of 351 days, according to the agency’s latest report to the Texas Legislature. The TCEQ recently ended a historical enforcement policy of sitting on cases for several years and grouping them into a single enforcement action, creating an extensive backlog of complex cases for agency staff to work through. According to the TCEQ, it has a current backlog of 1,400 enforcement cases.
Staff says the new expedited program would take 90 days. The agency would take 30 days to draft an agreed order once it finds a violation, and the regulated entity would have 60 days to remedy it. The TCEQ would post the proposed Agreed Order in the Texas Register for a 30-day comment period, as it does for regular enforcement cases, but would not appear on the Commissioners’ Agenda for approval and public comment. Instead, these cases would be sent to the Executive Director for approval, unless the agency received comments from the Texas Register 30-day comment period. The agency will also not provide a penalty calculation worksheet, a reduction in transparency about how it arrived at the fee amounts assessed.
If the regulated entity does not correct the violation within the 60 days, the case would be routed through the normal enforcement process, without the 50% penalty reduction. There are no caps on the number of violations that can be included in a single expedited order, so long as each violation is among the 193 qualifying violations. There are also no upper limits to the penalty value that the TCEQ could assess against a polluter, which could ultimately be reduced by 50%.
Participants in the program will still be eligible for the Supplemental Environmental Project (SEP) program. The facility cannot qualify for expedited enforcement if it currently has active or pending matters with the Office of the Attorney General, a pending or active default or shutdown order, or a revocation pending at any facility, or outstanding or delinquent fines. It cannot have been offered expedited enforcement for the same violation or be a repeat violator or unsatisfactory performer.
Ultimately, we welcome the agency’s efforts to implement a program that will achieve compliance with environmental laws sooner and reduce the significant backlog of enforcement cases caused by the agency’s outdated enforcement policies. We oppose reducing transparency or public participation in the enforcement process and strongly encourage the agency to maintain and enhance opportunities for public participation across all of its enforcement processes.