Now that you’ve read our article on how to get your permit faster, and hired us to help your follow-through on that, let’s talk compliance!
After all, once you get that permit (or other authorization) from the Texas Commission on Environmental Quality (TCEQ), you then, of course, must comply with it. And that is where the rubber meets the road. To carry that expression a step further, obtaining the permit is just like climbing into the car you’ve worked hard for—now you must drive and maintain it.
As with permitting, when it comes to ongoing compliance, we’ve also encountered some of the same reluctance on the part of the regulated community to engage with the TCEQ. Some fret about being “turned in.” Others feel they were ill-treated sometime in the past and are distrustful. We say, regardless of those fears or what might have happened before, trust and then wipe the slate clean.
What follows is based on our own personal experience helping regulated entities navigate the agency, as well as conversations over the years with TCEQ folks who range from front-line investigators and compliance assistance specialists to the highest leadership positions in the agency. A vein that runs through those discussions is an absolute commitment to achieving and maintaining compliance, by whatever means are appropriate and dictated by the best possible outcomes.
TCEQ’s Goal is Compliance.
Each year, the agency issues a significant number of enforcement orders, frequently more than the year before. TCEQ has been asked many times, “What’s your goal for next year?” The answer is always the same–zero orders. Bottom line: the agency wants regulated entities to comply. With that in mind, its compliance and enforcement systems are set up to achieve compliance as expeditiously as possible. If you find yourself out of compliance, then the best way to minimize potential penalties and associated orders is to get back into compliance as soon as possible. We can assure you that what the agency wants most of all is that the environmental impact be eliminated, and the most efficient means to that end is to get back into compliance.
Get to Know Your Regional Director.
TCEQ is divided into 16 wildly diverse regions, some of which are the size of several states combined (and not just New England). The Regional Directors all have a lot to say grace over. Nonetheless, they’ll make time for you. In fact, they would likely prefer that the first time they meet you is not in a conference on your Notice of Violation. We would suggest an annual face-to-face. Tell them what’s going on at the site. Tell them about your long-range permitting plans. Find out what their priorities are and what keeps them up at night. Find out if they need anything from you. What you’re doing is establishing a rapport, and they’re putting a human face on the Regulated Entity Number. It’s not going to get you out of what you’re obligated to do (of course not), but it opens a line of communication and provides a mutual understanding of what you, and they, are dealing with.
Communicate, communicate, communicate.
Sometimes cases have gone to the highest levels of the TCEQ, only to find out that a communication breakdown somewhere along the line could have avoided it. If you have a question, ask! If you receive an NOV (it’ll happen), over-communicate with your investigator and make sure you’re getting them what they need. And, advancing to enforcement does not mean communication stops. Be responsive–stay in touch the enforcement coordinator. And, yes, the agency gets stuff wrong. But they want to get it right, and something might get off-track because they don’t have all the information. They will consider all the facts and the ground conditions you’re dealing with, so make sure they know them. Positive communication is vital, with the best outcomes being a quick return to compliance. Also, don’t miss deadlines—meet or beat them. Read every agency correspondence sent to you and make sure that if deadlines are established in writing that you do not exceed the time allotted. If you need an extension, ask for one well in advance of the deadline. These small things matter a great deal and very well could be the difference in how your violations are resolved.
Stay organized and be prepared.
The agency routinely gets blasted from some quarters for announcing its routine investigations. Whatever. It makes perfect sense—it’s efficient and gives everyone time to get prepared. To that end, make sure you can look up from your desk and see your TCEQ permits on your bookshelf. Permits should not be stored in attics, and your compliance records should not be in shoe boxes in the beer cooler. A few years ago, the Small Business and Local Government Assistance program (SBLGA) provided organized binders to gas stations so they could organize all the things they have to keep up with—the TCEQ investigators loved it because everything was right there. When we finish an Audit Act project, the customer has everything at their fingertips. Like anything in life, a little organization goes a long way and provides peace of mind.
Stay up to date.
Things change, people move on. Make sure your core data with the agency is correct. Make sure the right person is getting the mail. You don’t want to miss that permit renewal reminder because it goes to the wrong person and finds its way to the circular file. That won’t shield you if it becomes a violation, so make sure the agency has the latest contact information for your company.
Stay on top of your ordering provisions…and your consultant.
Let’s say you’ve signed an Agreed Order with the agency. If that order contains provisions necessary to come into compliance (e.g. obtain a permit), follow-through. Remember, the agency tracks order compliance. More importantly, you need to get back into compliance with your protective permit. If you’ve hired a consultant to help you get there, make sure they’re getting the job done. Require them to sit down with you before, during, and after the projects have been approved to go over the documents. Have them explain how you will be required to comply with the representations that have been made on your behalf. Once those documents are approved by the agency, that becomes your compliance road map. If you don’t know what was represented, it makes the job that much harder. If you need any help, reach out to the agency and communicate (see above). If you’re in a jam, the agency has tools to help (see below). You’ll wind up back in enforcement otherwise, so it’s in your absolute best interest to stay on top of your ordering provisions and seek help if you need it.
Use the agency’s compliance tools.
More than any other state or federal agency, the TCEQ has the widest array of tools to help you stay in compliance. Most regulated entities in Texas are small businesses. The good news is that TCEQ has a program dedicated to helping them navigate the maze that is the agency. Indeed, the program is the largest of its kind in the country! If you’re small and trying to comply generally or meet the conditions of an NOV or Agreed Order, SBLGA can help you. And the regional and order tracking folks know that—they support compliance and want the help, too. The agency also provides a wide variety of guidance and compliance tools (e.g. comprehensive checklists and checklists covering routine investigations) that can help you. These can help you understand the breadth of requirements to which you may be subject and help you understand an investigator’s perspective. Finally, while the agency’s website is complex, a good resource for anyone (large, medium, or small) is SBLGA’s website, www.texasenvirohelp.org.
We hope you’ve found these tips helpful. What we’ve found over our combined 50 years of experience is that simple communication and a shared interest in achieving compliance go a long way to making the compliance process easier to navigate. And that is a result that benefits everyone in our fair state.
