Summer Checklist for TCEQ Compliance/Protection
by Nathan Vassar
As the calendar has now moved to summer, there are several tools utilities and other regulated entities should consider for their own enforcement protection, particularly as some options only become available in the late summer months. Among other things, the ability to review one’s compliance history in the Texas Commission on Environmental Quality’s (“TCEQ’s”) records is a useful endeavor that can help address potential errors and ensure one’s penalty calculations are not higher than they should be on any future enforcement cases. In addition, considering potential first-time applications or renewal applications for TCEQ’s Sanitary Sewer Overflow Initiative (“SSOI”) as well as conducting an environmental compliance audit can position a utility to anticipate and pre-empt regulatory enforcement and penalties that otherwise might arise.
The context for these tools is against a backdrop of continued, but seemingly increasing trends of noncompliance enforcement, and at a time when TCEQ is being evaluated by EPA on a Petition to revoke Texas’s National Pollutant Discharge Elimination System (“NPDES”) Permit Program delegation. Although compliance history reviews, the SSOI program, and compliance audits have been available for years, now could be an opportune time to utilize them in light of enhanced scrutiny.
A compliance history review is fairly straightforward, but it involves a notice to TCEQ in August that an entity wishes to review compliance history materials when the “vault” is opened for examination. The exercise includes the opportunity to inspect the TCEQ’s list of a regulated entity’s assets, plants, sites, and past noncompliance. If everything checks out, then there is nothing further needed; however, it is not uncommon to find occasional mistakes meriting correction. These can include double-counting of enforcement orders, erroneous information on the regulated entity and/or its associated permit/authorization (one recent permit identified a Texas Land Application Permit for a non-existing site), or mistakes on known agreed orders. When such errors are identified and flagged, TCEQ can make the requested updates, which has the effect of preventing any future noncompliance actions from seeing an artificial increase in penalty amounts, driven by underlying compliance history errors. The review can be conducted cost effectively and keeps a regulated entity’s proverbial “report card” accurate.
Beyond compliance history updates, publicly owned treatment works, or POTWs, concerned about enforcement for collection system sanitary sewer overflows (“SSOs”) can seek inclusion or renewal in the SSOI program. Many SSOI agreements are coming to expiration, as they were entered into a decade or more ago. For those unfamiliar with the SSOI program, it affords certain state enforcement protection on SSOs if the utility identifies and outlines various maintenance and infrastructure plans over a length of time agreed to by TCEQ. The policy and theory behind the approach is that if a utility is making investments in its sewer collection system and in its cleaning/inspection practices, then during such time as the work is performed, TCEQ does not initiate SSO-driven enforcement (and most utilities tend to see a decline in SSO trends during the SSOI period). As utilities are in the midst of budget season and planning for the next fiscal year, it can be a logical time to consider packaging certain improvements already planned into an SSOI proposal to TCEQ.
Finally, environmental compliance audits afford entities the ability to investigate potential environmental violations that are unknown, and then identify the proposed solutions to return to compliance. Under the applicable state statute, an entity can take a six-month period of time (with extension availability) to explore potential noncompliance across relevant TCEQ statutes, then make a disclosure of the findings, and then report such findings to TCEQ with a schedule for remediation. The reward and benefit of such disclosures is that the entity is shielded from enforcement of those violations identified and corrected.
All three of the above-referenced tools can be useful for utilities considering how to best position themselves against the always-present potential for regulatory enforcement. Although agreed orders can be addressed and complied with when issued, thinking through some of the front-end opportunities for protections can provide both a legal buffer to enforcement as well as peace of mind on certain state enforcement actions.
Nathan Vassar is a Principal in the Firm’s Water, Compliance and Enforcement, Litigation, and Appellate Practice Groups. If you have any questions or would like additional information related to this article or other matters, please contact Nathan at 512.322.5867 or firstname.lastname@example.org.