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EHS Compliance in Texas: Preparing for a TCEQ Investigation

As any business owner operating in Texas knows, Texas is one of the most strictly regulated states in terms of a facility’s environmental, health, and safety performance. This regulatory environment has produced some of the most innovative manufacturing technologies and protected the environment and the health of the public.

It also means that anyone managing a facility in Texas should also make themselves familiar with the Texas Commission on Environmental Quality (TCEQ) and their investigative process. That’s exactly what this article will give you: an overview of the TCEQ’s auditing process and how you should prepare and respond.

Any regulated business can be audited, and it doesn’t imply that your business is in violation of any rules or codes if you receive a visit from a TCEQ official. But no matter how closely you apply to EHS regulations, it never hurts to be as prepared as possible if your auditor schedules an investigation.

Before an Investigation

You can never be too organized when it comes to prepping for an audit. Before any regulators see your facility, you should strive to have all of your paperwork and records lined up and ready. These will be the main tool your auditor uses to assess your compliance, and the first impression about how seriously you take EHS management. Shoddy, disorganized, or missing records are a huge red flag for auditors and will only make them pry deeper into your operations.

First, you should ensure that all the information about your facility (like any ID codes assigned by the TCEQ or registered owner name) are consistent across all the Texas government’s online databases. Check the Central Registry, Online Databases, Secretary of State, Texas Comptroller and County Appraisal records should all have the same information - this will not only help your audit go smoothly, but will also help minimize any red tape your business might face going forward with other projects. Online databases suchs as the Water Utility Database (WUD) can also help obtain additional entity information. The Central Registry and online databases can be accessed through www.tceq.texas.gov.

The bulk of your time, however, should be dedicated to ensuring your internal recordkeeping is up to snuff. Review all of your all relevant checklists, permits, guidance documents, and other publications to determine which paperwork you need to have on hand to prove compliance with your regulations. Make sure none of your regulations have been updated without you knowing.

Look specifically for requirements about how you document sampling (how often, which sources, which locations, etc.), how you track equipment performance and maintenance (how often must they be checked and how should this be tracked), how you track all types of regulated emissions (monitoring methods, reporting periods, limits, etc.), and how you demonstrate compliance (which reports must be submitted and deadlines).

For every regulation and permit condition, you should have paperwork outlining how you comply with it, records showing your methods for compliance, and records that show that you have complied in a timely manner. You will want all of these to show to your TCEQ regulator. On top of all that, you should be able to trace back exactly when each of your records was produced and who was responsible. Clear audit trails will become very important if any issues arise internally or if your auditor has questions.

The best practice for this type of preparation is to have a system in place that already centralizes and creates audit trails for your recordkeeping. A digital filing system storing everything in one location is far preferable to having to scramble and dig through piles of paperwork and filing cabinets across multiple offices - and is far more impressive to auditors.

Once you have your papers in order, ERA Environmental also recommends that you take the time to conduct a mock internal audit with personnel who are responsible for EHS compliance. This is one of the best way to identify gaps in your compliance records before your auditor does. For more tips specifically on how and why to conduct an internal audit, check out our bite-sized guide here.

It’s also important to review and reiterate your internal safety procedures with all staff, and ensure all of your equipment and sources are functioning properly (nothing is as disastrous as leaking chemicals during an audit).

If you are in doubt about some aspect of your upcoming audit, don’t hesitate to contact your regulators and ask for advice or input. They are there to help.

After The Investigation

An investigation from the TCEQ can take several days, weeks, and sometimes months, depending on the complexity and scope your of permit and regulatory requirements. We can say with certainty though that the more organized your records are for the audit, the more efficiently your auditor can do their work.  During that time it would be best if you keep an open communication line with your investigator just in case more information or clarifications may be needed. Even once the auditor has left your facility and is compiling his or her reports, don’t assume the investigation is over or that your job in assisting them is done.

At the end of the TCEQ investigation it will conclude one of the following:

  • No additional issues, concerns or violations

  • Additional issues that should be addressed but are not considered violations

  • concerns or violations that will require additional corrective action

As the investigation concludes, the investigator will discuss the alleged violation(s) and additional issue(s). The investigator will also compile and provide your EHS manager with an exit interview form noting no concerns or the alleged violations and/or additional issues. Additionally, the investigator will discuss the time frame for which compliance documentation should be submitted to resolve any alleged violation(s). If you fail to complete these actions before the deadline, the TCEQ will issue you a written notice of violation (NOV) letter.

Once the investigation report has been approved the TCEQ will send a letter referencing the investigation any additional issues, concerns, or violations will be listed in the summary of investigation findings attached with the letter.

There are 3 types of letters as a result of compliance investigations.

  • General Compliance Letter

  • Notice of Violation (NOV) Letter

  • Notice of Enforcement (NOE) Letter.

A General Compliance Letter indicates your facility was found to be in compliance. This letter could contain an Additional Issue notice, which means an issue was noted during the investigation. This small issue should be addressed by communicating with your regulator and following their recommendations. In either case, you should file the letter with your compliance records.

A Notice of Violation (NOV) Letter means violations were documented during the investigation. Corrective action is required to address the listed violations.  For assistance addressing the violations, contact the Regional Office, the specific Central Office Program or Small Business and Local Government Assistance, for technical assistance.

A Notice of Enforcement (NOE) Letter means violations were documented during the investigation. Corrective action will be listed in the Summary of Investigation Findings. If formal enforcement is initiated against the entity order or agreements will be issued, fines will be levied, and compliance will still be required.

Take note that there are some violations where an enforcement action will be initiated due to the significance or repetition of violations. Enforcement Initiation Criteria (EIC) determines if a NOV or NOE letter is warranted. Violations in the EIC are categorized into three categories:

  • Category A - require automatic initiation of formal enforcement action when discovered.

  • Category B -  a responsible party will be given an opportunity to come into compliance. The NOV will specify a compliance due date, solicit a compliance schedule, and acknowledge violations that have been resolved and no further action is required. A formal enforcement action is initiated when a Category B violation is documented during two consecutive investigations within the most recent 5-year period (repeated) or when the respondent does not correct the B violation by the compliance due date noted on the Notice of Violation.

  • Category C - A noncompliance not otherwise designated as a higher priority violation in category a or category b. A formal enforcement action may be initiated when a Category C violation is documented three (3) times within the most recent 5-year period, including the current violation.

After You’ve Received a Letter

Once you’ve received a letter from the TCEQ, your first step should be to determine if the corrective compliance actions can reasonably be completed within the prescribed timelines. If not, you can contact your regional office and request an extension. Note however that these are provided on a case-by-case basis and are not guaranteed. Accordingly, you should start the corrective actions as soon as possible rather than relying on an extension.

You may also contest the violation if you believe there is a discrepancy or a mistake with the cited allegations. However, be advised that if you decide to contest the TCEQ’s findings you may still be required to adhere to the corrective action schedule until an official decision is made regarding your case.

The most important step in any case is to begin corrective actions immediately. This is the only way to mitigate the risks of further fines or violations - even if you plan on contesting the results or requesting an extension.

Here’s one last tip: see every audit and investigation as an opportunity for you to prove how well you are doing and as a learning experience. Putting data management systems in place that take the stress out of audits will let you experience these interactions with your regulators as a chance to improve your image, gain their trust, and grow your business.

Ask an ERA Expert:

Do you have any questions or concerns about the topic covered in this article? Want more insight? Now is your chance to ask one of ERA’s Environmental Specialists. Please leave your question or comment below and we’ll make sure one of our expert scientists responds.

 
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This post was written by Alex Chamberlain

Alex Chamberlain is a writer for ERA Environmental Management Solutions.

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