Annual Enforcement Report - Fiscal Year 2021

 Texas Commission on Environmental Quality  is the State’s primary and comprehensive environmental regulatory agency. Its mission is to protect our State’s precious human and natural resources consistent with sustainable economic development. The agency regulates over 742,000 public and private facilities and/or individuals in Texas that affect, or have the potential to significantly affect, the environment.

Pursuant to Texas Water Code (TWC) Section 5.1261, the Texas Commission on Environmental Quality (TCEQ or Commission) is required to prepare, by December 1 each year, a report of enforcement actions for each type of regulatory program. The report includes statistical indicators including the number of investigations, number of Notices of Violation (NOVs) issued, number of enforcement actions, type of enforcement actions, amount of penalties assessed, deferred, or collected; and any other information the Commission determines is relevant. The report also includes a comparison of the TCEQ’s enforcement actions for each of the preceding five fiscal years. Additionally, the Commission is required to conduct a comparative analysis of data evaluating the performance, over time, of the Commission and of entities regulated by the Commission, and conduct an assessment of Emissions Events (EEs) and actions taken by the Commission in response to the EEs, the registration and investigation activities of certain Aggregate Production Operations (APOs), and the Texas Tier II Chemical Reporting Program.

This report, the 25th of its kind, includes information from fiscal years 2016-2021. The TCEQ's fiscal year begins on September 1 and ends on August 31 of the following year.

The TCEQ approaches enforcement as a tool among many available to protect the environment and people while addressing key environmental issues. The agency pursues swift, fair, sensible, and responsive enforcement, used within an overall strategy for achieving timely compliance. The TCEQ uses a broad range of tools to enable and require businesses and governments, large and small, to comply with environmental rules. These tools include on-site and off-site facility assistance, small business and local government assistance, general education events, regulatory workshops, publications and guidance documents, telephone hotlines, and the agency’s expansive internet site, as well as on-site, virtual, and desktop investigations and enforcement.

Table 1 depicts assistance that focused on small businesses and local governments. Figure 1 graphically represents Site Visits over the past six years.

The 2016 and 2017 Site Visits were PST EACT focused site visits. The 2018 Site Visits were Hurricane Harvey Damage Assessments and PST pilot project site visits. The 2019 Site Visits were Hurricane Harvey Damage Assessments and PST EACT focused site visits. The 2020 and 2021 Site Visits were PST EACT Abandoned site visits.

The TCEQ’s enforcement efforts have been enhanced by voluntary environmental self-audits conducted at facilities under the Texas Environmental, Health, and Safety Audit Privilege Act (Audit Act). This law encourages businesses and governments subject to environmental regulation to perform comprehensive assessments of compliance with environmental laws, regulations, and permits for their own facilities. Organizations who participate in the Audit Act are required to notify the TCEQ of their intent to self-audit and then fully disclose and resolve violations resulting from the audit. The TCEQ ensures that all violations disclosed under this program are corrected, and, provided that certain conditions of the Audit Act are complied with, the participants in this program may not be subject to civil and administrative penalties. Figure 5 depicts a summary of the Notices of Audit and Disclosures of Violation that have been received by the TCEQ from FY 2016 through FY 2021.

The success of TCEQ’s regulatory assistance and investigation/enforcement programs is revealed in the high percentages of compliance documented following investigations conducted by the TCEQ. Table 2 depicts the compliance rates of facilities inspected from FY 2016 through FY 2021.

The 1,006 administrative orders issued in FY 2021 required payments of $7,511,772 in penalties and an additional $2,383,549 was required to be paid for Supplemental Environmental Projects (SEPs) as discussed below.

SEPs are projects approved by the Commission to fund projects that benefit the local Texas communities where environmental laws and regulations have been violated. Violators are allowed to put a portion of their penalty dollars to work to benefit the environment in the community affected by the violations, rather than paying the entire penalty to the State’s General Revenue Fund. In addition, TWC Section 7.067 allows certain local governments in an enforcement action to perform a SEP to come into compliance with environmental laws or to remediate the harm caused by those violations. 

SEPs that have been approved include the following:

• Repair on structures or equipment that may be the cause of the violation;

• Cleanups of abandoned illegal dump sites;

• Community household hazardous waste and tire collections;

• Air and water quality monitoring networks;

• Wetlands and habitat restoration;

• Establishment of nature preserves;

• Erosion control;

• Placement of ozone air monitoring equipment in schools and local communities; 

• Installing and/or repairing on-site sewage facilities, municipal sewer lines, and potable water service for low-income households;

• Retrofitting of diesel buses to “clean-technology” for school districts;

• Energy efficient upgrades and retrofits for public buildings or low-income homeowners;

• Purchasing alternative fueled equipment to replace diesel and gasoline powered equipment; and

• Cleanups of bays and watersheds.

If administrative orders and penalties issued by the TCEQ do not achieve environmental compliance, or in instances where more immediate action is required, such as an emergency event, the agency may refer the matter to the Texas Office of the Attorney General (OAG) for civil enforcement. Under Section 7.105 of TWC, the TCEQ has discretion to refer any matter to the OAG for civil enforcement. During FY 2021, the OAG obtained 24 judgments in cases referred from the TCEQ and for which the TCEQ was a necessary and indispensable party to enforcement initiated by another entity. These civil judgments resulted in $16,555,128 required to be paid in penalties, including the judgment against KMCO, LLC with $10 million in civil penalties. Table 4 is a summary of the judgments that have been issued for the past six years.

A successful enforcement program, combined with a strong regulatory assistance program, ensures that the public and the environment receive the benefits of the protections embodied in environmental statutes, regulations, and permits.

Texas is a leader and national model in the investigation and prosecution of environmental crime. Created in 1991, the Task Force has included participants from more than 25 local, state, and federal agencies. The TCEQ, and particularly the Environmental Crimes Unit (ECU), play a key investigative role and head the task force. Members of the Task Force include the TCEQ, the Governor’s Office, the Texas Parks and Wildlife Department, the OAG, the Railroad Commission of Texas, and the General Land Office. These agencies coordinate activities with the EPA’s Criminal Investigation Division, the U.S. Attorney’s Office, the Federal Bureau of Investigations, and local district and county attorneys. Numerous other federal, state, and local agencies also participate in Task Force investigations. The TCEQ ECU, with assistance from other members of the Task Force, also conducts environmental crimes enforcement training for local law enforcement officers.

The agency participated in seven search warrants and finalized seven cases with convictions against six individuals and two corporations during FY 2021 (see Table 5). The finalized cases included one felony count and seven misdemeanor counts. These cases consist of three unauthorized discharges, two criminal violations related to the handling of solid waste, and two criminal violations for tampering with governmental records. The case resolutions resulted in a total of $26,500 in criminal fines, five years of deferred adjudication/disposition, and 120 days of probation.

The TCEQ ECU continued working as safely as possible, conducting surveillance, interviewing witnesses, participating in search warrants, and filing cases with state prosecutors during COVID-19 pandemic. Cases previously filed with state prosecutors were often continued during this fiscal year, which resulted in a crowded docket for many courts. 

The  FY 2021 Criminal Conviction Chart  lists the details of the cases that the ECU worked on this year.

Texas Water Code Section 5.756 requires that TCEQ evaluate the performance, over time, of the Commission and of entities regulated by the Commission. This section of the report addresses the comparison of entities regulated by the Commission. An analysis has been performed on the types of businesses for all of the orders issued, orders issued to regulated entities with prior orders, orders issued to regulated entities with the same or similar violations, the violations included in the orders (including classification of the severity of the violations), and the size of businesses or municipalities that had orders issued during the fiscal year.

In FY 2021, the TCEQ issued 1,006 administrative orders and assisted the OAG in obtaining 24 civil judgments. Figure 9 displays the number and percentage of orders issued during FY 2021 by media type (air, waste, water, and multi-media).

Figure 10 depicts the percent of regulated entities with orders issued for FY 2021 based upon the North American Industrial Classification System (NAICS). The industry types with the highest percentage of administrative orders and civil judgments issued in FY 2021 were Gasoline Stations with Convenience Stores, Water Supply and Irrigation Systems, and Sewage Treatment Facilities (see Figure 10 for the entire summary). Thirty-eight percent of the regulated entities with orders issued represented NAICS categories of less than one percent.

Of the 1,053 regulated entities that were issued civil judicial and administrative orders, 249 regulated entities (24%) had previous enforcement orders and 294 regulated entities (28%) were issued orders addressing violations that were the same or similar to violations included in prior orders issued to those regulated entities over the past five years. The highest percentage of industry types with previous orders issued included: Water Supply and Irrigation Systems; Sewage Treatment Facilities; Gasoline Stations with Convenience Stores; Basic Organic Chemical Manufacturing; Plastics Material and Resin Manufacturing; Petrochemical Manufacturing; Petroleum Refineries; Natural Gas Liquid Extraction; and Petroleum Bulk Stations and Terminals. Summary provided in Figure 11.

The highest percentage of industry types for regulated entities with same or similar violations included in prior enforcement orders were as follows: Water Supply and Irrigation Systems; Sewage Treatment Facilities; Basic Organic Chemical Manufacturing; Gasoline Stations with Convenience Stores; Petroleum Refineries, Plastics Material and Resin Manufacturing; Natural Gas Liquid Extraction; Crude Petroleum and Natural Gas Extractions; Petrochemical Manufacturing; Lessors of Other Real Estate Property; and Pipeline Transportation of Refined Petroleum Products. Summary provided in Figure 12.

Enforcement orders are issued to legal entities of varying sizes. For civil judicial and administrative orders issued in FY 2021, 55% were issued to small businesses, 33% were issued to large businesses, 7% were issued to small governments, and 4% were issued to large governments. Figure 13 depicts the breakdown of the size of business and local government with orders issued during FY 2021.

A small business is defined as any person, firm, or business that employs fewer than 100 full-time employees. A small government is defined as a city with a population of less than 5,000 or a county with a population of less than 25,000. 

Of the 1,030 civil judgments and administrative orders issued in FY 2021, there were 3,110 violations alleged with 7,584 citations of rules, statutes, permits, or orders. Of all the citations documented, 83% were for violations of rules or statutes, 16% were for violations of permit provisions, and 1% was for violations of orders previously issued. Table 6 lists the highest percentage of common rule or statutory citations included in orders issued in FY 2021. Figure 14 depicts the most frequently cited rules or statutes by Media Type.

Emissions event investigations are on-demand activities. Staff review every reported incident; however, investigations are not conducted until after the final report for the emissions event is submitted, which in some instances may occur in the following fiscal year. Some investigations include multiple incidents. Those incidents where air emissions exceeded the regulatory reportable quantity are investigated further. Incidents that are determined not to have exceeded a regulatory reportable quantity are closed after review. 

The total number of EE investigations increased from 4,622 in FY 2020 to 5,362 in FY 2021. Since most EE investigations are conducted in-house as record reviews or conducted virtually, investigations could be completed even with COVID-19 restrictions. The FY 2021 total EE investigations also includes a continued effort to reduce the EE backlog events, primarily in Regions 7 and 12. Figure 20 and Table 12 represent the complete set of FY 2021 data related to EE investigations. 

Of these investigations, the number of NOVs increased from 242 in FY 2020 (305 total violations) to 323 in FY 2021 (456 total violations) and the number of Notices of Enforcement (NOEs) increased from 229 in FY 2020 (344 total violations) to 553 in FY 2021 (790 total violations). See Figure 21 below for the complete set of data related to investigations without violations, NOVs, and NOEs in response to Scheduled Maintenance, Scheduled Shutdown, Scheduled Startup, EEs, and Excess Opacity for FY 2021. 

The number of Excessive Emissions Event (EEE) determinations decreased from 28 in FY 2020 to 23 in FY 2021. The total number of EEE determinations continues to be higher than in years prior to FY 2021, reflecting a continued focus on ensuring consistent EEE reviews across all TCEQ regions. 

If an EE is determined to be excessive, the owner or operator must submit a Corrective Action Plans (CAP) within 60-days of receiving notification of the EEE determination. The CAP must identify the following: (1) the cause or causes of the excessive EE (including all contributing factors that led to the EE); (2) the control devices or other measures that are reasonably designed to prevent or minimize similar EEs in the future; (3) operational changes the owner or operator will take to prevent or minimize similar EEs in the future; and (4) time frames within which the owner or operator will implement the components of the CAP. The number of approved CAPs increased from 15 CAPs in FY 2020 to 19 CAPs in FY 2021 as represented in Table 14. Because owners and operators have 60 days to submit, some of the CAPs received by the TCEQ in FY 2021 were related to EEE determinations made in FY 2020. 

Texas Water Code Chapter 28A requires the Commission to conduct an annual survey to identify all active APOs in the state and to ensure each active APO is registered. The Commission is also required to report the results of the survey, the number and general location of the registered APOs, the number of investigators trained in multiple areas related to the investigations, the number of investigations conducted, and the results of the investigations. Additionally, the TCEQ is required to conduct on-site investigations on a routine basis.

The statute requires that APO investigations be conducted by investigators trained in all applicable regulatory requirements. The TCEQ has implemented a training curriculum specific to the performance of APO investigations which a total of 124 investigators have completed.

For FY 2021, 1,049 APOs have active registrations with the TCEQ. The number of registered APOs per region is provided in Table 15 below.

In FY 2021, agency staff completed a total of 1,221 APO surveys and 370 Comprehensive Compliance Investigations (CCIs) at APOs. Table 16 displays the breakdown of CCIs by TCEQ Regional Office.

In addition, there were 40 complaint investigations, 8 follow-up investigations, and 171 file reviews, for a total of 589 APO investigations. These investigations resulted in issuance of 106 NOVs and 20 NOEs. This includes investigations at APO facilities that resulted in either an NOV or NOE with one or more violations of a rule under TCEQ jurisdiction. However, violations cited may not be directly related to 30 TAC Chapter 342. In addition, 14 administrative orders were issued in FY 2021, including five administrative orders with violations for failure to register or renew an existing registration. There was a total of $220,339 in payable penalties. Table 17 lists surveys, investigations, and enforcement history for APOs from previous years.

On September 1, 2015, the Texas Tier II Chemical Reporting Program (Tier II Program) was transferred from the Texas Department of State Health Services to the TCEQ pursuant to House Bill 942, enacted by the 84th Texas Legislature and signed into law by the Governor on June 16, 2015. 

The Tier II rules, 30 TAC Chapter 325, Hazardous Chemical Right-To-Know, were repealed and new rules were effective on November 26, 2020. The purpose of the rulemaking was to remove obsolete references, provide consistency with federal rules, provide clarity to definitions, provide consistency with the federal Emergency Planning and Community Right-to-Know Act (EPCRA), add requirements for the new online reporting system, develop clear guidance pertaining to submitting hazardous substances inventories, known as Tier II Reports, and reduce the number of reports that can be consolidated within a submission.

On April 1, 2021, the Tier II Program finished its sixth annual reporting period at the TCEQ with 83,592 chemical inventory reports received from the regulated community and over $1.7 million in fees collected. 

The Tier II Reporting online application was released in 2019 and was used for the third time in 2021 by the regulated community to submit Tier II Chemical Reports. To further assist the regulated community, the Tier II Team implemented multiple improvements in the online reporting system, updated all guidance documents and videos, and conducted webinar trainings including developing a new training refresher course for the regulated community to facilitate reporting. There has been a significant decline in customers needing assistance to complete reporting. In FY 2021, there were approximately 5,100 incoming and outgoing online help forms, calls, and emails, 6,600 in FY 2020, and 10,000 in FY 2019, respectively.

The Tier II Program has reviewed over 45,479 facilities and has initiated compliance actions to correct report deficiencies for 690 reports with 1,542 facilities that either submitted partial or incorrect information. By August 2021, 452 reports had been resubmitted along with 406 reports for the previous year. During FY 2021, the TCEQ conducted 165 on-site Tier II investigations, 16 on-site ammonium nitrate storage facility Tier II investigations, and completed 207 record reviews.

The TCEQ also created the Texas Local Emergency Planning Committee (LEPC) Grant Program to assist LEPCs. The grant program awarded $4.13 million to 56 Texas LEPCs during its first round in FY 2017 and awarded $128,768 to 27 Texas LEPCs in its second round in FY 2019. The next grant round will be opened when funds are available in FY 2021 or later.

Figure 24 depicts the number of enforcement orders with compliance actions that resulted in pollution reduction in FY 2021. The types of pollution reduction are categorized as follows: emissions or discharge reduction; storage or disposal changes; removal of regulated activity or regulated facility; remediation of a regulated site or facility; industrial process changes; and use reductions.

Figure 25 depicts the number of enforcement orders with compliance actions that resulted in pollution prevention in FY 2021. The types of pollution prevention are categorized as follows: permit application; labeling and manifesting; and public health care.

Figure 26 depicts the number of enforcement orders with compliance actions related to work practices. The types of work practices are categorized as follows: recordkeeping; monitoring and sampling; reporting; testing; training; site assessment; restoration; increased public awareness; emergency planning and preparation; environmental compliance promotion; and auditing.

Table 18 depicts the number of enforcement orders that resulted in P2 activities that are above and beyond the regulatory requirements and the number of P2 Projects that are part of a SEP.

Table 19 depicts an estimation of the largest amount of pollutant reductions through enforcement actions finalized in FY 2021. Overall, it is estimated that TCEQ final enforcement actions resulted in, or will result in, over 400 million lbs of pollutants eliminated or reduced, or the routes of exposure reduced, in the environment.

Note for Table 19: Estimations were based upon best educated predictions by TCEQ technical staff. In those cases where remediation was not yet completed, estimates of the amount of contaminants to be removed were used. In those cases where emissions and discharges were reduced or eliminated by the enforcement action, the estimation was based upon an assumption that the violations would have continued for at least one year if the TCEQ had not acted.

*Entire pollutant total is attributed to only one or two orders.

 Glossary of Abbreviations 

 Total Investigations 

 On-Site Investigations 

 Complaint Investigations 

 Notices of Violation Issued (Mailed) Central Office 

 Notices of Violation Issued (Mailed) Regional 

 Summary of Administrative Orders Issued 

 Summary of Civil Judicial Orders Issued 

 Administrative Orders Issued 

 Civil Judgments 

 Supplemental Environmental Projects