Should TCEQ Be Fixed?

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. 

Dealing with TCEQ Can Be Frustrating

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.

What to Look for this Summer

Here are some of the highlights of what’s coming up and what to look out for: 
  • One of my favorite topics is properly doing a Phase I report. I have seen lots of bad Phase I reports lately, so I am pleased to see that the ASTM standard for doing a Phase I is being updated. Look for a revised Phase I standard to come out very soon.  I understand there are no major changes, but it does clarify several areas, where I have seen inconsistencies in Phase I reports, such as defining a historical recognized environmental condition.  And it is supposed to include a flow chart with examples to better instruct on how to identify a recognized environmental condition.   
  • Waters of the U.S. – On June 9, 2021 the Biden administration announced that it plans to rescind the Trump administration’s narrowing on the definition of Waters of the U.S.  Now, people in the midst of determining whether a property has wetlands are now left thinking “who’s on first?”  I’ll be following this topic to see how it shakes out.
  • Will enforcement increase with the new administration? For a good summary, see the recent Bloomberg Law article.   EPA has said that it would like to increase enforcement, but so far, EPA’s budget has not increased.

EPA Enforcement During COVID-19

On March 26, 2020, EPA announced that, retroactive to March 13, it will not seek penalties for violations of “routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.” Other environmental obligations are also relaxed.

Read the full document here.

So, for example, if your business cannot comply with federal requirements due to worker shortage, you should document the same and may be able to cite to this policy.  

If you need assistance, feel free to contact me at

Stay safe out there, and wash your hands!

Best Lawyers Selects Cindy Bishop as Lawyer of the Year for Environmental Litigation

Dallas attorney Cindy Bishop, founder of C Bishop Law, has been named to the 2021 list of The Best Lawyers in America for environmental law and environmental litigation. Further recognizing her accomplishments, the publication also recognized her with its “Lawyer of the Year” award for environmental litigation in Dallas-Fort Worth.

The Best Lawyers in America is an annual list that compiles the nation’s top attorneys based on a peer review process and independent research. Only a single lawyer in each practice area and community is honored with a “Lawyer of the Year” award; attorneys who are selected for the award receive particularly high feedback from their peers. Best Lawyers does not accept payment in exchange for inclusion on the list.  

For nearly three decades, Cindy has been assisting clients nationwide with resolving environmental problems through her experience as an attorney and chemical engineer. In one notable success, she saved her client more than $4 million in estimated cleanup costs. She has also reduced or eliminated state and federal penalties for other clients through the Texas Audit Privilege Act and EPA’s self-disclosure policy.

Throughout her career, Cindy has collected numerous accolades and certifications. She is a licensed professional engineer and has practiced before the U.S. Supreme Court, having litigated federal CERCLA contribution and cost recovery actions. She has appeared on the Super Lawyers list of the Top 50 Women Attorneys in Texas, has been ranked by Chambers USA for her work in environmental law, and has been included on D Magazine’s annual list of the Best Lawyers in Dallas.

What’s Hot at EPA and the Texas Railroad Commission

Typically, the dogs days of summer are a slow news time for environmental issues, but this summer has been an exception.

Dog Days of Summer

EPA Update

Hot on the heels (pun intended) of my last post on emerging claims to watch, EPA announced renewed interest in regulating per- and polyfluoroalkyl substances (PFAS).  EPA held a National Leadership Summit in May to discuss how to regulate and remove PFAS in the soil and groundwater from historical releases.

At that summit, EPA announced a 4-step action plan:

  1. Evaluate the need for a maximum contaminant level for various PFAS in drinking water;
  2. Propose designating PFAS as “hazardous substances” under CERCLA (also known as Superfund);
  3. Develop groundwater cleanup recommendations; and
  4. Work with state and federal agencies to develop toxicity values for specific PFAS.

These steps most likely will increase the list of contaminants identified at cleanup sites.  This means that investigation and cleanup costs could increase because additional chemicals will need to be addressed.  In addition, Superfund sites will have additional contaminants identified, leading to additional responsible parties identified as the sources of PFAS.

Texas Railroad Commission Initiative

In June, the Texas Railroad Commission (RRC) released its 2019 Oil & Gas Monitoring and Enforcement Plan.  As part of this plan, the RRC set a goal to maintain its 158 oil and gas field inspectors, and these inspectors have been tasked to meet new, increased inspection targets.  Specifically, all inland wells will be inspected at least once every five years, and wells in bays and offshore will be inspected at least once every two years.  To put this in perspective, in 2017, 155,880 wells were inspected, and the RRC projects 176,000 to be inspected in 2019 – a roughly 13 percent increase.

With this increased emphasis on inspections, I encourage well operators to take advantage of the Audit Privilege program (Tex. Health & Safety Code Ch. 1101) and conduct a self-audit to identify and correct violations before the RRC does.  Under the Audit Privilege program, operators who conduct self-audits can claim immunity from administrative penalties that are voluntarily discovered during the audit, reported to the RRC, and then promptly corrected.


Do you have questions or need assistance?  I am here to help.  I have a great deal of experience with self-audits in Texas and elsewhere and also can provide oversight of environmental consultants during site investigations and cleanups.  I also can guide you through the self-audit process, which includes specific notification requirements.  Contact me at

Stay cool and watch for those school zones as classes begin in August.