On September 24, TCEQ announced proposed significant increases to its penalty policy for environmental and hazardous waste violations in Texas. The TCEQ Penalty Policy provides a framework for the Agency to calculate fines and penalties for entities that violate State environmental and/or hazardous waste regulations.
The proposal would change the Penalty Policy in four major ways:
View proposed changes here.
- Increase base penalty amounts for certain categories of violations.
- Increase violation event categories for continuous violations
- Increase enhancements for penalties related to certain air emissions events
- Eliminate certain penalty reductions for early settlers
TCEQ is accepting public comments on the proposed changes from now through October 31st
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1. Increase Base Penalty Amounts for Certain Categories of Violations
If approved, the revisions would increase the base penalty for violations related to actual chemical releases that are classified as Moderate and Minor Harm from major and minor sources. Penalties related to Major Harm releases from minor sources would also be increased. Base penalty amounts from Major Harm releases from major sources are already set at the maximum stator amount.
Base penalties for Programmatic Major violations from major and minor sources would also be increased. Paperwork errors are one of the most common causes of Programmatic Major violations.
2. Increase Violation Event Categories for Continuous Violations
Under the new changes, TCEQ would revise the violation event categories into smaller units for characterizing continuous violations. For example, a moderate actual release may be counted up to weekly events (the current policy considers it up to monthly events). According to the Agency, this would provide a more accurate assessment of the violation’s duration.
Legal analysts say the changes would give TCEQ more discretion to increase penalties for long-running violations
, particularly for minor and moderate violations.
However, this would not affect Actual Major and Programmatic Major violations because TCEQ is already authorized to count these violations up to daily.
3. Penalty Enhancement for Certain Air Emissions Events
TCEQ seeks to add a 20% enhancement to base penalties for air emissions events in highly populated areas. This policy would affect air emissions events that take place in counties with 75,000 or more residents.
4. Elimination of Certain Penalty Reductions for Early Settlers
When a company has had two or more final agreed enforcement actions within the last two years before a new enforcement case, Texas Water Code requires TCEQ to refer the enforcement case to the Texas Office of Attorney General (OAG). OAG often declines these cases, which would lead TCEQ to offer the respondent a 20% penalty reduction for prompt settlement.
If enacted, the proposed changes would make companies with two or more recently agreed enforcement actions ineligible for the penalty reduction during TCEQ administrative action negotiations.
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