The Texas Commission on Environmental Quality (TCEQ) is undergoing Sunset Review. As background, Sunset Review is conducted by the Texas Sunset Advisory Commission, which is a state agency composed of 10 members appointed by the Lieutenant Governor and the Speaker of the House. Sunset Review of a state agency occurs roughly every 10 years.
The staff report from the most recent TCEQ Sunset Review was published in November. Below are some highlights and my thoughts for other TCEQ changes:
- Proposed penalty increase – The staff report proposed increasing the administrative penalty from $25,000 to $40,000 per day (!). Such an increase makes the use of self-audits more important that ever. I am a big supporter of the Texas Audit Privilege Act that allows companies to conduct an audit and disclose discovered violations to TCEQ in exchange for immunity from enforcement (subject to a few exceptions, such as criminal violations). A voluntary self-audit is a great way to get ahead of the compliance curve and discover violations before the TCEQ does.
- “TCEQ’s Compliance Monitoring and Enforcement Processes Need Improvements to Consistently and Equitably Hold Regulated Entities Accountable” – Although I would agree that the enforcement process needs improvement, my opinion on the problems with TCEQ’s enforcement process is not what the staff report considered. TCEQ inspectors seem to follow a formulaic, “cookie cutter” approach to handling complaints without stepping back and considering the big picture. Many times, I have had clients entered into the enforcement process without an opportunity to first correct the problem. As long as there is no immediate threat to human health or the environment, why not work with the business to educate it on the law and help it get into compliance rather than immediately issuing a penalty? How does immediately sending an issue to enforcement (with a penalty) support businesses? All it does is coerce businesses into making a payment to TCEQ (to avoid litigation). I am working with TCEQ attorneys and others in the enforcement division to try to change their approach.
- My thoughts on TCEQ Improvement – The staff report does not address one of the biggest concerns I recently have seen with TCEQ. Staff turnover has resulted in young, inexperienced staff. These staff should be trained by senior team members on how to apply TCEQ regulations and policies to real life situations. Instead the consultants and I spend time explaining how their mandates are either not required by the regulations or not technically feasible.
The recommendations by the Texas Sunset Advisory Commission will be discussed and acted on in the upcoming legislative session.