TCEQ Considers Changes to Penalty Policy
While administrative penalty maximums are set by statute, in practice the TCEQ uses its Penalty Policy to determine recommended penalties for specific alleged violations. Under the Penalty Policy, alleged violations are assessed at a percentage of the statutory maximum. The Penalty Policy was last revised in 2014. TCEQ is considering changes to the Penalty Policy that, if adopted, will increase the recommended penalty amounts for many alleged violations. Highlights:
Increases for alleged violations with actual releases.
For major sources, the penalty percentage for alleged violations with actual releases would be increased from 15% to 30% for those resulting in “minor harm” (where human health or the environment has been exposed to insignificant amount of pollutants that do not exceed protective levels) and from 30% to 50% for those resulting in “moderate harm” (where human health or the environment has been exposed to significant amounts of pollutants which do not exceed protective levels). The penalty percentage for alleged violations with actual releases resulting in “major harm” (where human health or the environment has been exposed to significant amounts of pollutants which do exceed protective levels) are currently assessed at 100% of the statutory maximum, so cannot be increased.
For minor sources, the penalty percentage for alleged violations with actual releases would be increased from 5% to 15% for those resulting in “minor harm,” from 15% to 25% for those resulting in “moderate harm,” and from 30% to 50% for those resulting in “major harm.”
Increases for alleged programmatic violations. These include things like failing to submit reports, a failure to maintain records, or a failure to obtain a permit or other authorization. Programmatic violations are classified as “major” (greater than 70% of a requirement is not met), “moderate” (30% to 70% of a requirement not met), and “minor” (less than 30% of requirement not met). TCEQ is considering increasing the percentage assessment for major sources with major programmatic violations from 15% to 20% and for minor sources with major programmatic violations from 5% to 10%.
Increase the number of violation events for alleged continuing violations. Statutorily, TCEQ may assess penalties for alleged continuing violations on a per violation per day basis. In practice, TCEQ counts the number of violation events differently depending on the severity. Consider a continuous violation that lasts for 100 days. This could be a single violation event, two “quarterly” events, four “monthly” events, 15 “weekly” events, or 100 “daily” events. The number of events can drive the final penalty amount. TCEQ is proposing to increase the number of potential events for continuous violations, which may significantly increase final penalty calculations.
Eliminating penalty deferral for repeat certain violations. In many instances TCEQ offers a 20% penalty deferral as an incentive to settle without litigation. TCEQ is considering eliminating this incentive where there are two or more final administrative orders involving the same media (air, water, land) at the same facility.
20% penalty enhancement when a reportable emission event occurs in a county with a population of 75,000 or more. About 50 counties containing over 85% of the state’s population fall within this threshold.
TCEQ is accepting comments on these changes to the Penalty Policy until October 30, 2020. Information on how to submit comments is available here.