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Orientation to Local Environmental Enforcement Online Class TIDRC000 Companion website: http://www.tidrc.com/onlineorientation.html Approved by Department of State Health Services One Continuing Education Units Developed February, 2014 Last Updated on September 12, 2015 John H. Ockels, Ph.D.

Copyright (c) 2014 John H. Ockels No Claim to Original Texas State Government Works All rights reserved.


TIDRC000 Orientation Sept 2015

Orientation to Local Environmental Enforcement TIDRC000

Contact:

John Ockels, Director Texas Illegal Dumping Resource Center ockels@tidrc.com Last Update: September 13, 2015 Welcome to the class! Our purpose here is to provide a brief overview of the various ways local governments can respond to such things as illegal dumping, water pollution, illegal outdoor burning, oil and gas waste dumping and spilling, and public health nuisances. My name is John Ockels (ockels@tidrc.com), and I’m your instructor for this class. I'm the director of the Texas Illegal Dumping Resource Center, and I’ve been teaching illegal dumping enforcement and other anti-pollution classes for almost 20 years. My background in local government includes twelve years as a regional planner at Texoma Council of Governments. We live up north of Dallas in rural Grayson County, just south of the Oklahoma border. My experience is that most policy makers — and even many local enforcement officers — simply do not realize the different ways they can deal with illegal dumping and related problems. Consequently, far too many policy decisions are made without having all the possible responses on the table. Generally speaking, too many local governments simply don’t know the laws that the State Legislature and Governor have given them to deal with these issues. It’s important to emphasize at the beginning that keeping your community free of pollution is largely a local responsibility. The Texas Commission for Environmental Quality — TCEQ — provides administrative enforcement response to a wide range of problems, as well as resource-limited responses to major, complex criminal violations. But day-to-day control of illegal dumping, water pollution, illegal outdoor burning, oil and gas waste dumping and spilling, and public health nuisances are primarily a local responsibility. There’s simply not enough TCEQ administrative inspectors — and not nearly enough funds — for the TCEQ to tackle the job of keeping Texas’ 254 counties and 1,210 cities clean and healthy. Moreover, in January 1996, because of funding decisions made by the state legislature, responding to most illegal dumping became the

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responsibility of the city or county where the dumping happened. At least, that was the assertion of the letter the TNRCC (TCEQ’s predecessor agency) sent to every county judge in Texas. In part, that letter stated: “As a consequence (i.e., of the funding cuts described in the first paragraph), it is important that ____ County assume the responsibility of regulatory control of illegal dumping. Because of the loss of MSW field personnel in the _____ Regional Office, the TNRCC’s ability to investigate citizen’s complaints and illegal dumping will be significantly limited to situations of immediate endangerment to human health and/or the environment. The ______ Regional Office will request that citizens refer their complaints to the applicable city illegal dumping official. If there is no city official employed for this purpose or if the complaint is located within the county, the citizen will be requested to contact _____ County Health Department with their complaint.”

Most anti-pollution enforcement in Texas has to come from local government. That’s where the enforcement resources are (code officers, peace officers, prosecutors, judges, elected officials, local government managers), and, even more importantly, who else is there that cares enough about where you live to make sure it’s kept clean and healthy? The underlying problem with this, however, is that few local government staff are formally trained in using the enforcement options provided by the State. This material is simply not included in the professional training most local government staff take early in their careers. Learning to use these laws is a “new” area for everybody, even though some of them have been available for well over twenty years. However, the facts remain that: • Code enforcement officers do not study criminal environmental options in their four-day basic code enforcement certification school (so most code enforcement officers, while perhaps expert in their local municipal codes, often simply can’t recognize when they are dealing with an environmental crime and, therefore, do not know when to get law enforcement involved); • Peace officers — from city police to deputies to elected constables — do not study these criminal laws in the basic police academies, so these officers suffer the same problems in recognizing and knowing how to respond to various criminal violations involving pollution. Consequently, peace officers are missing a great opportunity to cite environmental criminal law violations as probable cause for search warrants to gain property entrance; • Prosecutors and city/county attorneys don’t learn this material in Texas law schools or in their professional training either. New prosecutors, unaware of

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these criminal laws, will occasionally actually refuse to recognize their existence, but most open their minds to incorporating them in their efforts to protect citizens. Local government attorneys working on civil matters, both staff and hired outside municipal attorneys — who are perfectly aware of other Texas laws and give competent advice to cities and counties on other matters — may easily find themselves providing inaccurate information when it comes to enforcement options available to local governments. Most are new to the concept of cities and counties using Texas Water Code Sec. 7.351 to sue environmental violators, including obtaining temporary restraining orders to immediately stop polluters with ongoing operations. • Judges — from JPs and Municipal Court judges to constitutional county court judges (i.e., the county judge) to county court at law judges to criminal district judges — don’t study these violations in their training either. Many JPs have been incorrectly presented with cases that were major misdemeanors or even felonies and were unable to recognize the error. Handling a major misdemeanor or a felony as a Class C violation is seldom an effective deterrent to repeated violations by the offender; • Other elected officials — mayors, city council members, commissioners — don’t study the material in their professional training. Consequently elected officials often just don’t have accurate information when developing effective local policies and political responses to voters. What this general lack of knowledge can result in is pretty obvious: poor enforcement policy decisions, most likely dirtier and less-healthy communities, and needlessly upset voters. Sometimes this local lack of knowledge congregates as “agreed ignorance.” This arises where literally all local government leaders in a city or county agree that “There is simply nothing we can do!” about a particular local mess. Usually, however, there is plenty that can be done, if local leaders are willing to learn and use their options. I’ve been looking at these local problems in Texas for a couple of decades now, and my conclusion is this: “There are NEARLY ALWAYS several untried approaches available to local governments to deal with dumping and other kinds of pollution.” The State Legislature and Governor are great respecters of private property, of course. That’s a large part of why we have given them their jobs. However, when crimes are being committed — or private actions are harming public health — the balance shifts.

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It’s seldom a defense to any criminal act that the violator did the crime on his own property, and it’s certainly not a defense in environmental crimes either. A person simply can’t commit crimes on private property — including the crimes of illegal dumping and allowing public health nuisances to exist on property he or she possesses. In fact, most crimes in Texas are actually done on private property — murders, thefts, assaults, burglaries, and so on. So are many criminal acts of polluting, such as illegal dumping, fouling water, illegal outdoor burning, oil and gas waste dumping and spilling (and then abandoning the spill), and maintaining properties having public health nuisances. These are just more crimes, even if many local officers don’t yet know how identify and correctly respond to them. You can’t illegally dump, water pollute, illegally burn or commit other environmental crimes in parks, streets, highways, government parking lots or other public property either. In fact, there’s pretty much no place that it’s ok to commit a crime. The purpose of this class is to provide an overview of the options available. There are many Texas cities and counties currently using some of these options to respond to local pollution, but there are very few jurisdictions successfully using all the approaches the State Legislature and Governor have made available to them. Where local elected officials and enforcement officers do know the options, there is less second-guessing their policy decisions by voters and other officials. This is literally an area where “knowledge is power.” At TIDRC our mission is to help Texas cities and counties get better at responding to illegal dumping and other kinds of local pollution, including using these laws to deal more effectively with all sorts of environmental violations. We’ve presented hundreds of day-long classes around Texas over the past six years; please take a look at the locations we’ve provided classes at http://www.tidrc.com/oldclasses.php . We may have even visited your own city or county. In addition to the in-person classes, we also provide several online classes for local officers, elected officials, and other interested parties. These are all approved for ongoing DSHS continuing education credits, and most police, sheriff, and firefighter agencies also approve these classes as part of their own formal continuing education programs for their officers. The online programs we currently provide are: TIDRC000 Orientation to Local Environmental Enforcement (1 CEU hour) TIDRC001 Legal / Legislative Update Related to the Profession of Code Enforcement (1)

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TIDRC002 Local Control of Oil and Gas Waste (6) TIDRC003 Illegal Dumping Enforcement (6) TIDRC004 Illegal Outdoor Burning (6) TIDRC006 Ethics of Local Enforcement (3) TIDRC007 Enforcing Public Health Nuisance Laws (6) TIDRC008 Local Control of Scrap Tires (6)

Each of these, and several others, are also provided in our in-person classes. You may want to take some of these yourself, or you may want some of the officers and managers at your city or county to do so. Current class offerings — in-person and online — are always listed on the TIDRC.com home page. We also are working closer with the Texas oil and gas industry to teach these laws to operators, well servicers, their employees, and local police working in oil and gas producing areas. What’s very clear is that the Texas oil and gas industry — our most important state industry — absolutely receives inadequate police support from local governments across the state. In place after place, local oil and gas operators are victims of environmental and other crimes committed on their properties, and local peace officers often simply don’t know how to respond. Moreover, the entire industry gets a black eye from the few undercapitalized and outlaw oil and gas waste haulers that are violating state administrative regulations and criminal laws — without being stopped by local peace officers and penalized in local courts. Where an outlaw waste hauler dumps oil and gas waste illegally or spills-andabandons these wastes, local citizens often think the entire industry is fouling their community. In too many places, local law enforcement simply doesn’t know the state criminal laws that are currently available — and have been for twenty years — to protect Texas citizens and industry from these outlaw waste haulers. This is totally unacceptable. Local government simply has to do a better job of supporting this critically important industry. [Note: If you need a quick reference document on local oil and gas waste enforcement by local government, or a more detailed summary document of available criminal laws to police these violations, you can download a free document called “Ten Questions and Answers About Local Enforcement of Oil and Gas Waste Dumping”.] If one of our most important industries receives inadequate police protection from polluters, so do hundreds of other businesses — and citizens — in far too many places in our state. That this situation of generally lax use of Texas criminal laws to stop pollution of all kinds is allowed to continue in light of the oath of office that Texas elected officials take is also puzzling: I do solemnly swear (or affirm), that I will faithfully execute the duties of the office of _______of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this

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State, so help me God. Somehow in my mind, “preserving, protecting and defending” the laws of Texas strongly implies at least knowing what those are and seeing to it that the criminal laws are enforced in one’s jurisdiction. I can’t imagine that hundreds of public officials in Texas swear to do something, and then immediately refuse to do so. The folks we elected are better than that, so the reality must be lack of knowledge. That can be fixed. Hopefully this class will help get you pointed in the right direction toward making better-informed policy decisions. At TIDRC we want your community to be clean and healthy, but if the elected officials and citizens living there don’t, then there’s not much we can do. Given the staffing, budgets, and enforcement policies of various state agencies, you’ll probably be left pretty much alone to simmer in your own waste. The rest of us can just eat and sleep somewhere else when we travel. But be assured that the principal “Filth Seldom Prospers” is probably at work in these situations. However, we very much care about one thing: we want you and other local leaders to make the best-informed policy decisions possible. When someone assures you that “There is nothing we can do!” about a particular mess, they are probably incorrect. Moreover, repeating such assertions can often become embarrassing. So if you have anything to do with environmental enforcement at the local government level, we encourage you to take the time to learn these laws thoroughly. Expected Learning Outcomes When you are finished with this reading, you should know that: • Municipal code enforcement can do a lot, but not everything. It is no good against criminals, for instance, nor for helping victims of dumping to get their lots cleaned; • There are criminal laws — misdemeanors and felonies — in Texas that the State Legislature and Governor have specifically provided to help local communities fight pollution of their air, land, and water; • Cities and counties can also sue polluters for violating an anti-pollution statute, state rule, permit, or state order — just as can the state Attorney General; • Taken together, these approaches can empower local officers and elected officials to stop pollution in your community; • There is formal training available in the details of these laws and approaches that will quickly help build the knowledge base upon which better local decisions depend. You may find yourself becoming more interested in this field than you anticipated.

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When the primary reason these laws are not being used by local peace officers and prosecutors is simply lack of knowledge, that’s pretty easy to fix. However, the more interesting questions revolve around what causes these laws to not be enforced in places where the leaders know all about them. This is curious from a policy perspective, and usually frustrating for knowledgeable staff and citizens. The next section looks at the ways that local governments can impose the health laws, other criminal laws, and their environmental civil suit powers to control polluters. But before we do that, let’s consider the question, “Shouldn’t the TCEQ keep the environment of our community clean? Isn’t all this their job?” About the TCEQ The answer to that last question is, “No. Not really.” Most local government leaders are aware that the Texas Commission on Environmental Quality is the state agency responsible for protecting the environment. Its mission is: “To strive to protect our state's public health and natural resources consistent with sustainable economic development. Our goal is clean air, clean water, and the safe management of waste.” In reality, most agency staff work hard to enforce state environmental regulations within the financial and political constraints imposed by the State Legislature and the Governor’s Office. There are a great many newspaper articles and other publications available that are critical of the job that the agency is doing; articles taking the opposite view are hard to find (of course it’s always easier to criticize than praise). No matter what agency of government an investigative reporter is studying, he or she seldom concludes, “Wow! This is an absolutely fabulous government agency!” No Pulitzer prizes are found in that direction. But the truth of the matter is that the agency works very hard to protect the air, land, and water in our state, consistent with the constraining economic realities and opportunities. I like these folks and appreciate their efforts, and I’m pretty sure that criticism directed their way is often a cover for someone ignoring local responsibilities. The next time someone in local government criticizes the agency for failing to cleanup a mess, consider asking the critic, “Please describe how you have used the enforcement options the state has given your community to help yourself.” Sorry that you’ll probably be stricken from the critic’s Christmas card list, but injecting reality into politics often has that effect.

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The agency does a lot more than enforce state regulations, of course. Their Small Business and Local Government Assistance program (1-800-447-2827) “provides confidential technical assistance without the threat of enforcement.” If you are operating a small business or local government, you simply must know the Compliance Assistance Specialist assigned to your TCEQ region. They are the place to begin in getting your questions answered. These folks will save you an enormous amount of time, and unless you are intentionally committing a crime or endangering life, they will handle your questions confidentially. Learn more about these folks at https:// www.tceq.texas.gov/assistance. There is an outstanding discussion of the enforcement process itself on the TCEQ website, the supporting statute for which can be found in Texas Water Code Chapter 7 (the process described there is not limited to water issues, but covers all media). A good place to start reading is at http://www.tceq.state.tx.us/enforcement/process.html. Click here to access the FY2014 Annual Enforcement Report. This is an 755 page document that details the TCEQ administrative, civil, and criminal enforcement record for the last six years (FY 2009 through FY 2014). The 2,800 staff members at the agency, housed in its Austin headquarters and in the sixteen regional offices that the agency maintains around the state, do a lot of work. What might jump out at you, as you look at the following chart, is that the overwhelming number of investigations are done in support of administrative orders, with civil judicial orders and criminal cases being far behind. The TCEQ conducts administrative investigations — 103,006 in FY 2014 — both physically at the site of the alleged violation (68,978 on-site that year) and also through the headquarters review of reports and required filings from the regulated community. The summary below was created from the data in that publication and may support taking a more objective view of the TCEQ. You can see that these are busy folks. Most of those 103,006 investigations in FY 2014 were undertaken at the decision of the agency; only 4,273 of the 103,006 — just 4.1% — were undertaken based on complaints from the public and other persons outside the agency.

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TCEQ Enforcement Summary FY 2011 through FY 2014 Total Investigations Conducted - Of which were on-site - Of which were from complaints NOV Mailed from Regional Offices NOV Mailed form Central Office - From PWS Self-Reported Data Total NOVs Mailed As a % of Total Investigations

Administrative Orders Issued $ Assessed Penalties $ Deferred Penalties $ Payable Penalties $ Supplemental Environ Projects

Civil Judicial Orders Issued $ Assessed Penalties $ Deferred Penalties $ Payable Penalties $ Supplemental Environ Projects Total Admin & Judicial Orders Issued As a % of Total Investigations

FY 2011 105,483 64,566 4,662

FY 2012 99,760 61,750 4,004

FY 2013 105,781 68,978 3,611

FY 2014

5,922 7,905 7,514 13,827 13.1%

5,501 8,973 8,743 14,474 14.5%

5,437 7,431 7,280 12,868 12.2%

5,806 10,059 9,940 15,865 15.4%

103,006 61,776 4,273

FY 2011 FY 2012 FY 2013 FY 2014 1,628 1,826 2,182 1,708 20,108,493 16,309,869 18,824,805 16,309,869 2,497,949 2,038,255 3,420,408 2,038,255 12,582,418 11,560,506 12,670,409 11,560,506 5,028,126 2,711,108 2,733,988 2,711,108 FY 2011 FY 2012 FY 2013 29 48 43 4,585,971 57,584,392 12,621,251 208,307 85,250 1,651,221 4,262,664 57,499,142 10,831,280 115,000 121,500 138,750

FY 2014

23 6,184,020 5,250 6,178,770 0

1,657 1.6%

1,874 1.9%

2,225 2.1%

1,731 1.7%

FY 2011

FY 2012

FY 2013

FY 2014

8 22 18 9 27 115 11

8 16 19 5 24 17 12

2 12 13 9 22 19 12

7 27 21 12 33 18 43

Number of Search Warrants Number of Cases Resulting in Conv Convictions Against Individuals Convictions Against Corporations Total Number of Convictions Felony Misdemeanor

Source: TCEQ FY2014 Annual Enforcement Report Tables

Of course, that wasn’t all the complaints they received, but when multiple calls on the same incident were consolidated, 4,273 investigations were undertaken.

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If you are an individual, company, or association that was the subject of a TCEQ investigation during the last five years, the chances that you would be issued a Notice of Violation and subsequently receive an administrative order or a judicial civil order are shown by these statistics calculated from the larger chart: Total Investigations Conducted - Resulting in a NOV being issued - Resulting in an admin/civil order

FY 2010 111,780 11.9% 1.5%

FY 2011 105,483 13.1% 1.6%

FY 2012 99,760 14.5% 1.9%

FY 2013 105,781 12.2% 2.1%

FY 2014 103,006 15.4% 1.7%

So, of the 103,006 TCEQ investigations conducted in FY 2013, 15.4% resulted in a Notice of Violation being issued and 1.7% of the original investigations eventually resulting in an administrative or judicial civil order being issued, generally because the subject of enforcement efforts was uncooperative at earlier stages. The administrative process can take some time too if an order is required. The TCEQ reported that “the average number of days from initiation of an enforcement action to completion (with an effective order) was 235 days in both FY 2013 and FY 2014. Maybe another way of saying this is that regardless of the reason for making an inspection, in FY 2014 in 84.6% of inspections everything was either fine or immediately corrected (and resulted in no Notice of Violation). Texas businesses, local governments, and other members of the regulated community are overwhelmingly following state regulations. Most inspections result in no needed corrective action at all. And even when things were a problem to the point that a NOV had to be issued, when all was said and done and the process finished, only 1.7% of the inspections resulted in further administrative or judicial enforcement beyond voluntary response. When problems are brought to the attention of the regulated community, they quickly get fixed. From the TCEQ website: “The TCEQ’s enforcement process begins when a violation is discovered during an inspection conducted either at the regulated entity’s location or through a review of records at TCEQ offices. Most violations are quickly corrected in response to notices of violation.” And from a little further along: “If you receive an NOV, that means we have observed one or more violations, and you will have a prescribed time period to return to compliance and provide documentation that all violations have been corrected. We may elect to visit the site and verify that the violations have been corrected, or it may be enough for

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you to submit documentation to us.” The size of Texas does, however, compel me to ask one question. I wonder what “documentation” might serve the purpose of showing a violation has been corrected, given the fact that the inspector may easily be located in some other city, is always busy with the next site, and has a limited travel budget? I hope that violators providing the documentation that the problem has been fixed are all familiar with Penal Code Sec. 37.09 Tampering With or Fabricating Physical Evidence (a third degree felony in Texas, punishable by a fine to $10,000 and/or 2 to 10 years confinement). “Fabricated evidence” would include Photoshopped “proof” that a violation had been corrected as well as other phony documents that are so easy to prepare these days. Compare this “mailed-in proof of compliance” with the “daily drive-by” verification that comes with local enforcement. If a local officer wonders if a mess has been abated, he or she can just go look. This is simply not an option for most state inspectors. About the Railroad Commission of Texas What about another key Texas regulatory agency? The Railroad Commission of Texas — with responsibility for over 315,000 active oil and gas wells, almost 380,000 miles of regulated pipelines, and a bunch of other things — conducted 130,812 oil and gas administrative inspections in FY 2014. These resulted in 62,385 suspected violations being identified, primarily by the agency’s field inspectors. Of these 62,385 suspected violations, a total of 2,178 resulted in some type of administrative penalty being imposed by the commission. Doing the math on these numbers yields: 48% of all investigations resulted in a suspected violation being identified (a total of 62,385 suspected violations), yet only 3.5% of these suspected violations resulted in some sort of administrative penalty being assessed by the RRC in Austin. Another way to describe this is by saying that only 1.7% of the 130,812 administrative inspections conducted in FY 2014 resulted in some sort of penalty being assessed, even though inspectors identified suspected violations in almost 44% of their inspections. The 60,207 suspected violations NOT sent to Austin for further handling interests me. Or perhaps they were sent to Austin for enforcement but failed to pass an initial screening there. At any rate, in FY 2014 the RRC reports that 2,178 of the suspected violations required the agency to become actively involved in fixing the problem. There’s only a few possibilities as to how these 60,207 suspected violations were

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handled, assuming the decision was made at the district level as to what suspected violations would be sent to Austin): (1) the field inspectors were wrong almost all the time (96.2% of the time) and upon closer consideration by their district management, what the field inspectors thought was a suspected violation actually wasn’t; or, (2) the suspected violator fixed the suspected violation without further prompting by the RRC or upon receipt of an inspection report and/or Notice of Violation issued by the district office; or, (3) nothing happened past the initial processing in the district office and the case just disappeared. Probably a little bit of all three actually happened — and I’m sure that I’m overlooking other obvious answers. But we’re not given sufficient data to understand this process. Two things that you might want to consider if you decide to dig further into the enforcement performance of the agency. First, why not read the Final Report on the Railroad Commission of Texas issued by the Sunset Advisory Commission in 2011 for yourself? That document is available at http://s.coop/1v0x8 . Second, notice that the report tried to work through what happened in the district offices too in their review period, especially regarding violation of Statewide Rule 8 Water Protection: While a large number of the total violations found by the Railroad Commission may be relatively minor, the Commission also finds violations that can pose a serious threat to public safety and the environment, like water pollution. In fiscal year 2009, the Commission found more than18,000 water protection violations but took enforcement action on less than 1 percent of these violations. Perhaps more importantly, the Commission is unable to say with certainty that there were no serious violations in the roughly 17,900 water pollution violations that did not go for enforcement, since the Commission relies on the discretion of each district office to determine which violations should be forwarded for enforcement action. [Final Report, p. 33].

In response to this report — and the desire of the State Legislature — the Railroad Commission about doubled the number of inspectors on staff and became much more transparent in reporting inspection results to the public on its web site. This reporting could be better, however. For instance, we still don’t have information on which rules the 62,385 suspected violations in FY 2014 involved. More importantly, we don’t have data on what happened in the 60,207 suspected violations that were not sent to Austin for further enforcement action … or were sent an immediately dropped from further enforcement. How many Notices of Violation were send from the district office with what results, and how many of the 60,207 were corrected on the spot by the operator, and — just like in the case of the TCEQ — what documentation was provided

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to the district offices to close the cases where NOVs were issued? It’s not plausible that the field investigators made 60,207 personal verification visits to make sure the problems had actually been fixed, so what did actually happen? The Final Report with Legislative Action on the Railroad Commission of Texas issued by the Sunset Advisory Commission was issued in 2013 (http://s.coop/1v0x7). There were two recommendations made to the State Legislature concerning what was then identified as “While Changes Have Begun, the Commission Continues to Need Statutory Direction to Improve Its Enforcement Processes”: •

Recommendation 4.1 — Require the Commission to develop an enforcement policy to guide staff in evaluating and ranking oil- and natural gas-related violations. Recommendation 4.2 — Require the Commission to formally adopt penalty guidelines.

A discussion of these two recommendations begins at page 31 of the 2013 document, including a discussion of how the practice of severing a lease can bring rule violators into conformance. Unfortunately, neither of these recommendations was adopted by the State Legislature. The RRC has done an excellent job of including more enforcement data on its Internet site, however (http://s.coop/1v0x9). Administrative enforcement of Statewide Rule 8 and other rules governing the activity of oil and gas operators still face the conflict of “too much activity” vs. “too few administrative regulators.” Local governments will simply have to step-up their criminal enforcement efforts to control those in the industry — and especially those handling and disposing oil and gas waste — who decide to take criminal shortcuts. The State Legislature and Governor have long provided criminal laws that local governments can use to respond to a wide range of oil and gas waste hauling violations, including stopping some waste hauler who has decided to avoid the line at the disposal well and hurry things along by dumping a load of salt water onto the road or into a convenient creek (Note: This bad choice is very likely a violation of TWC Sec. 7.145 and has a potential fine ranging from $1,000 to $100,000 and up to five years confinement for the driver; if his company is doing this as a matter of policy, their fine ranges from $1,000 to $250,000 per event). Smart local governments use all of these criminal laws, and also work closely with the administrative investigators from the RRC. The RRC does its thing administratively; local government does its thing criminally. Enforcement is a team sport. The citizens

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and legitimate oil and gas operators — the overwhelming majority of the industry — and honest suppliers of support services win when local government gets involved: 1 + 1 = 3. So, “Thanks, Railroad Commission and State Legislature, for the additional data on the inspection process, and could we please have some more?” But we take the strongest possible position on this: Whatever level of administrative enforcement the Railroad Commission is doing, it far surpasses the efforts of most local governments dealing with oil and gas waste. Doing nothing to help solve a problem when you have the ability and laws to do so, which is true in the case of far too many local governments in oil and gas production areas, is a poor basis for criticism of those who are working every day to make things better. Just as in the case of the TCEQ, the next time someone in local government criticizes the Railroad Commission for failing to clean-up a mess, consider asking the critic, “Please describe how you are using the enforcement options the state has given your community to help yourself.” Sorry that you’ll probably be stricken from the critic’s Christmas card list, but, as in the case of the TCEQ, injecting reality into politics often has that effect.

Municipal Code Enforcement Turning to the local level, about 900 of Texas 1,200 cities conduct some kind of ongoing municipal code enforcement. These efforts result in around 325,000 new municipal code cases being heard by a Municipal Court judge in Texas in calendar year 2014. Considered with the 543,271 active cases carried over from calendar year 2013 and the 127,627 old, inactive cases being reactivated, the municipal courts in Texas had almost a million code cases (994,731) on the docket in 2014. Many code enforcement officers are of the opinion that if a municipal code case actually comes before a judge, the enforcement process has gone very badly. Most municipal code violations are handled by the property possessor voluntarily bringing his property into compliance with the requirements of the ordinance. For a code case to appear before a Municipal Judge, it has traveled a long road in which the city has attempted to work with the violator in a non-confrontational way to resolve the issue. Although no statistics are kept statewide on this important pre-court problem resolution, for every code case that actually appears before a Municipal Court there may be ten or more that have been successfully resolved earlier in the code

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enforcement process. When you compare the code enforcement activity of the combined cities in Texas with the work done by the TCEQ, you will probably conclude that the bulk of environmental enforcement happens locally through code enforcement. Consequently, because of the volume of work involved, we urge municipal leaders to be sure to understand and support code enforcement activities in their communities. The inspectors working on these problems are your first line of defense against those conditions that reduce property values and impede healthy living. Code enforcement officers face difficult situations, and these inspectors deserve your support, especially given the findings on public mental illness by various agencies. The Substances Abuse and Mental Health Services Administration reports: “[I]n 2010, an estimated 45.9 million adults aged 18 or older in the United States had a mental illness in the past year. This represents 20 percent of all adults in this country” and “The rate of mental illness was more than twice as high among those aged 18 to 25 (29.9 percent) than among those aged 50 and older (14.3 percent).” The Fact Sheet Centers for Disease Control and Prevention Report: Mental Illness Surveillance Among Adults in the United States reads: “According to the World Health Organization, mental illness results in more disability in developed countries than any other group of illnesses, including cancer and heart disease. Other published studies report that about 25% of all U.S. adults have a mental illness and that nearly 50% of U.S. adults will develop at least one mental illness during their lifetime.” Mental illness can sometimes become noticeable when interior disarray spills over to show itself in the home and in the front yard, finally attracting community attention. Attracted by the disarray, municipal code enforcement staff may frequently find themselves dealing with mentally ill and substance abusing members of the public. Current Texas laws have no requirement that code officers receive specialized education in dealing with these citizens and in making sure that every interaction is a safe one for all parties. Why not create a local requirement for your city to assure staff members encountering the public are as well trained to deal with impaired citizens as possible? By comparison, Texas peace officers are required to complete Crisis Intervention Training (and regular updates) as a condition of maintaining their certification.

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If the local code enforcement process is working well to help bring properties into compliance, it will be a good base on which to build. And conversely, if the code enforcement process is working poorly, then that’s where efforts to improve local antipollution activities should go. Three common problems arise in code enforcement that can’t be tolerated in a fair and effective enforcement system. First, different areas of town often get different levels of enforcement. Unwritten policies that involve “looking the other way” in poor areas need to be openly discussed. Certainly, the absence of financial resources to fix properties in poor neighborhoods needs to be considered — along with the health impact on neighbors of taking a light-handed approach to enforcement in these poor areas. The second issue is that, strange to say, too many code enforcement officers simply don’t know the municipal codes outside of their areas of specialization. We regularly ask in our classes, “How many code officers here have read all of the municipal codes of your city, so that you can better spot violations falling outside your area of specialization for referral to your colleagues?” In city-after-city and class-after-class, only 2% of the code enforcement officers present raise their hands. We’d suggest that a program of reading all municipal codes and being tested on their content be implemented for the officers in your city. Administer the test first, since the officers in your particular community might well be among the 2%. If too many questions are being missed, that will tell you the additional areas on which to focus. And, for course, no fair penalizing or criticizing code enforcement staff who don’t do well in this initial knowledge testing; it’s not right to criticize employees for failing to demonstrate knowledge in areas that management has not asked them to learn. A third issue is that of official interference with code officers who are trying to fairly enforce city codes in an even-handed way. This interference seems to come primarily from two directions: (a) attempts by mayors and council members to protect a disadvantaged or elderly constituent; and, (b) attempts by mayors and council members to protect their own pocketbooks in situations where they, their family, or friends are slumlords and want to use their official position to reduce their personal cost of complying with municipal codes on rental properties they own. If it’s present in your community, interference by officials with code enforcement activities needs to be discussed openly and stopped; sometimes it can deteriorate to violations of the Penal Code by the official. Some common violations by elected officials acting illegally in these situations are:

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TIDRC000 Orientation Sept 2015

Penal Code Sec. 38.15. Interference With Public Duties — a Class B misdemeanor punishable by a fine to $2,000 and/or confinement to six months may apply; and,

Penal Code Sec. 36.03. Coercion of Public Servant or Voter — a Class A misdemeanor punishable by a fine to $4,000 and/or confinement to one year.

A growing emphasis in code enforcement is that of “Compassionate Compliance.” This involves the city working to match community volunteer resources with citizen needs, as identified by code enforcement activities. This may, for instance, be developing a program matching a church group with an elderly neighbor who needs help bringing her property into compliance with city codes. This may result in such activities as volunteers cutting grass, clearing trash, and other activities. Expect this approach to code enforcement to grow in Texas as we get better at linking resources with citizens that have limited ability to respond. Local Health Department Enforcement There are currently just 64 full-service Local Health Departments that Texas cities and counties have formally organized, as authorized in THSC Chapter 121 Local Public Health Reorganization Act. Most of these were authorized by the commissioners court or city council at the time of their creation to issue criminal citations for violations of state health laws, and most of them do to some degree. You may have to locate and read the original court or city order to see if that is allowable in any specific case. I did, however, recently run across one interesting political situation where the Local Health Department was being “prevented” by the county sheriff from issuing citations in the unincorporated parts of the county for health nuisance violations. In the sheriff’s incorrect view, only his deputies could — and should — issue citations, regardless of the opinion of the State Legislature on this question. Of course, his deputies weren’t enforcing these laws either, so nobody was using them. Citizens and businesses just had to live with the unhealthy messes made by their neighbors while the sheriff incorrectly guarded his prerogative — with the Local Health Department leaders and commissioners deferring to the sheriff’s wishes rather than assert the realities of state law. Not very impressive. State law allows every county and every city to create a formal Local Health Department — and the 64 agencies that have been formed represent under 5% of Texas 1,464 eligible Texas communities (some of the 64 are city/county consortiums or

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TIDRC000 Orientation Sept 2015

involve neighboring counties). That’s not very impressive either. THSC Sec. 121.003(c) also permits a commissioners court the power to “grant authority under this subsection to a county employee who is trained by a health authority appointed by the county under Section 121.021” to enforce “any law that is reasonably necessary to protect the public health” through issuing citations out in the unincorporated areas. A “health authority” is defined in THSC Sec. 121.021 as “a physician appointed under the provisions of this chapter to administer state and local laws relating to public health within the appointing body's jurisdiction.” Unfortunately, I can’t find any county that has actually caused one of it’s employees to be trained by the appointed health authority and who is then writing citations for health nuisance violations. At TIDRC we call these “Health Departments Lite,” and they are a good idea. However, we can’t find any operating in Texas. Thankfully, with or without a Local Health Department or Health Department Lite, local peace officers can also enforce the criminal provisions of THSC Chapters 341 and 343, the two most commonly used laws to deal with public health nuisances and other public nuisances. One provision — THSC Sec. 341.013(c) — is particularly useful for addressing mishandled waste materials throughout the state. It is certainly within the ability of local police to enforce this provision (first offense carries a fine of $10 to $200 and a trip to a JP or Municipal Court judge to discuss the matter): THSC Sec. 341.013(c) Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents. This is an easily provision for local peace officers to learn and apply. No Local Health Department or Health Department Lite representative has to be present — or even in existence in the county — for the officer to issue a citation for this violation. These are simply low-penalty criminal laws that local law enforcement can handle directly. Police and deputies can just give the violator a citation and let him go tell the JP or Municipal Court judge why having the nuisance condition on his property is a good idea. There is, however, one thing that only a Local Health Department or county employee trained by a health authority can do: enforce THSC Sec. 341.012(b)-(d).

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TIDRC000 Orientation Sept 2015

These are there sections under which these two agencies can work with a violator and local prosecutor to force the violator to abate a nuisance — or see the violator in county or district court to explain to a judge his failure to abate the mess. Even though only these two entities — Local Health Department and a county employee trained by the health authority — can enforce this section of law, I can find no one in Texas doing so. The mandatory order of the State Legislature calls for the following steps: (1) Sec. 341.012(b): Upon receipt of proof of the existence of a public health nuisance in its jurisdiction, the local health authority (i.e., Local Health department) shall notify the possessor of the property in writing of the existence of the health nuisance on the property and set a time period to abate the nuisance; (2) Sec. 341.012(b): The local health authority shall at the same time send a copy of the notice to the jurisdiction’s prosecuting attorney; (3) Sec. 341.012(c): The must specify the nature of the violation and designate a reasonable time — probably different in each situation — for the nuisance to be abated; (4) Sec. 341.012(d) If the health nuisance is not abated within the time period specified, the local health authority shall notify the prosecuting attorney who had received a copy of the original notice; and, (5) Sec. 341.012(d)The prosecuting attorney shall take the offender to court and seek a court order forcing abatement, or request the attorney general’s assistance in so doing. What actually happens throughout Texas is that Step (1) is faithfully followed: the health authority provides proper notice to the violator. But Steps (2) through (5) are totally ignored: •

At the time the original notice is issued to the violator in Step (1), the investigator routinely fails to notify the prosecutors as required in Step (2).

Consequently the rest of the steps cannot be followed either.

The investigator doing the follow-up with the violator upon expiration of the original time given to abate the nuisance instead, if the mess has not been cleaned, issues a citation for a criminal violation for having the nuisance in the first place. Abatement efforts have ended at this point, and the Local Health Department turns to criminal enforcement.

The criminal complaint works its way through the JP or Municipal Court system

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TIDRC000 Orientation Sept 2015

until the violator is before a judge. •

However, the violator is in court to answer the criminal complaint that he made the mess, not to answer for his failure to abate the problem.

Enforcement and abatement are two entirely different issues. The punchline is this: the JP or Municipal Judge has no statutory power under THSC Chapter 341 to order the abatement of a nuisance; all the judge can do is impose a fine for making the mess in the first place and tell the violator, “Well, I can’t order you to clean this up, so I guess I’ll see you soon on another criminal charge for the same mess. Don’t forget that each day of an ongoing health nuisance is a separate violation.” The only judge who has the power to actually order the clean-up — and hold the violator in civil contempt of court for ignoring the court order — is the judge in Step (5) above. That’s the judge who is hearing the case brought by the local prosecutor that is seeking a forced abatement. By failing to actually follow the process established by the State Legislature and Governor to force the abatement, the Local Health Department stops the “failure to abate” case and creates a new “criminal violation for having property with a health nuisance” case in another court — the court not having any authority in the original “failure to abate” case. By taking this approach, the Local Health Department actually assures the public health nuisance will last longer than it would have if the abatement process at THSC Sec. 341.012 was actually followed. Why does a Local Health Authority fail to follow the process at THSC Sec. 341.012? Maybe from lack of knowledge of its unique power to force abatement. But since they usually start the process but fail to get the prosecutor involved, I think it’s more likely that Local Health Department staff often is simply afraid to interact with the prosecutor. If Local Health Departments and prosecutors actually followed the provisions in state law to abate public health nuisances, Texas would be a cleaner and healthier state. Beyond Code and Health Department Enforcement But what should a local government do after assuring that its municipal code enforcement activities — and those of the Local Health Department or Health Department Lite — are working well? Our advice is to it should act aggressively to get criminal justice agencies involved in the enforcement process. The following chart briefly notes the ways that cities and counties can move past code and health enforcement and begin using additional tools to help make the community cleaner and healthier.

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TIDRC000 Orientation Sept 2015

All of tools in the chart can be used by local governments, beginning now, without any requirement to first “authorize” their use. Since these are mostly criminal laws and all are statutory, such authorization has already been taken care of by the State Legislature and the Governor. All of these tools are awaiting local peace officers, criminal prosecutors, city and county civil attorneys, judges, and government policy makers to discover, learn, and apply for the betterment of their communities. Since code enforcement officers are frequently the first to identify a particular problem, they should especially be trained to recognize environmental crimes. When activities have passed from being code violations to becoming crimes, they need to be the first to know.

Texas Local Environmental Enforcement Options 1. Municipal Code Enforcement (Applies only inside most cities) Local City Codes Fine to $500 / $4,000 (new ceiling on illegal dumping cases granted by HB 274) Enforced By: Municipal code enforcement officers About 900 of Texas’ 1,200 cities have city code enforcement; Great starting point to protecting land, water, air, and people; However, code enforcement doesn’t work against criminals, such as illegal dumpers; Cities without municipal court work through JP and use THSC Chapter 341.

2. Public Health Nuisance Violations (Applies everywhere in Texas) THSC Chap. 341. Minimum Standards of Sanitation and Health Protection Measures Fine of $10 to $200 Enforced By: Peace officers; Local Health Department; County employee trained by health authority Subsequent conviction within one year of first: $10 to $1,000 and/or 30 days jail Applies in cites and in all areas of county; Defines 12+ health nuisances; No warning time needed before officer issues a citation; Mandated abatement process in Sec. 341.012 widely ignored; Sec. 341.013(c) is particularly good for local peace officers’ independent use.

3. Public Nuisance in Unincorporated Areas (Not including “agricultural” land) THSC Chap. 343. Abatement of Public Nuisances Fine of $50 to $200 Enforced By: Peace officers; Local Health Department; County employee trained by health authority Subsequent conviction at any future date: $200 to $1,000 and/or 6 months jail Defines 13 common rural public nuisances; Applies mostly to rural, non-agricultural private property, but some provisions apply to public property also; 30-day notice from county required before citation can be issued; Optional provisions allowing counties to adopt rules to allow county abatement; Subchapter C contains requirements for county nuisance abatement rule.

4. Illegal Dumping onto Land and into Water (Applies everywhere in Texas) THSC Chap. 365. Litter Enforced By: Peace officers Sets a penalty of Class C, B, or A Misdemeanor or State Jail Felony based on weight or volume dumped; Applies to public and private property; Includes disposal, receiving, and hauling activities.

5. Water Pollution (Applies everywhere in Texas) TWC Sec. 7.145. Intentional or Knowing Unauthorized Discharge (Felony) Enforced By: Peace officers

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TIDRC000 Orientation Sept 2015

For individual: $1,000 to $100,000 and/or Prison to 5 years; Other than individual: $1,000 to $250,000 Enforced By: Peace officers Disposing waste into or adjacent to water that (1) pollutes or threatens to pollute without permit; or, (2) from a point source (i.e., pipe, container, tank, ditch or other discrete conveyance) with no permit to make the discharge (i.e., in violation of TWC 26.121[a]) “Each day a person engages in conduct proscribed by this subchapter constitutes a separate offense.” TWC Sec. 7.147. Unauthorized Discharge (Misdemeanor) For individual: $1,000 to $50,000 and/or Jail to 1 year Other than individual: $1,000 to $100,000 Enforced By: Peace officers Disposing waste or pollutant into water that pollutes or threatens to pollute without a permit; No culpable mental state required; Does not include very small amounts of waste oil runoff. “Each day a person engages in conduct proscribed by this subchapter constitutes a separate offense.”

6. Oil and Gas Waste (Applies everywhere in Texas) TWC Chap. 29. Oil and Gas Waste Haulers $100 to $1,000 fine and/or up to 10 days in jail Enforced By: Peace officers Basic violations of dumping, using unmarked vehicles, hauling without a permit; Also includes using unpermitted haulers; Local law enforcement and local courts NRC Sec. 91.003. Provisions Generally Applicable: Criminal Penalty Fine to $10,000 Enforced By: Peace officers Violating “Statewide Rule 8” willfully or with criminal negligence; This is the rule used by the RRC to permit and control oil and gas waste haulers. The RRC handles violations administratively and local government handles criminally. NRC Sec. 91.143. Provisions Generally Applicable: False Applications, Reports, and Documents and Tampering With Gauges Fine to $10,000 and/or Prison 2 to 5 years Enforced By: Peace officers Falsifying government applications and filings or causing required gauges to be inaccurate (i.e., from battery theft at remote locations)

7. Illegal Outdoor Burning (Applies everywhere in Texas) TWC Sec. 7.182. Reckless Emission of Air Contaminant and Endangerment (Felony) $1,000 to $250,000 and/or prison to 5 years Enforced By: Peace officers Recklessly emitting (without a permit) an air contaminant (including smoke) that puts another person in imminent danger of death or serious bodily injury TWC Sec. 7.183. Intentional or Knowing Emission of Air Contaminant and Knowing Endangerment (Felony) $2,000 to $500,000 and/or Prison to 5 years Enforced By: Peace officers Intentionally or knowingly emitting (without a permit) an air contaminant (including smoke) that knowingly puts another person in imminent danger of death or serious bodily injury TWC Sec. 7.177. Violations of Clean Air Act (Misdemeanor)

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TIDRC000 Orientation Sept 2015

Sec. 7.177(a)(5) $1,000 to $50,000 and/or jail to 6 months Enforced By: Peace officers Primarily used to respond to people Violating the Texas Outdoor Burning Rule (30 T.A.C. 111, Subchapter B); TCEQ enforces administratively; local police enforce criminally. TWC Sec. 7.177. Violations of Clean Air Act (Misdemeanor) Sec. 7.177(a)(1) $1,000 to $50,000 and/or jail to 6 months Enforced By: Peace officers Building or modifying a “facility� that may emit air contaminates with out first obtaining a preconstruction permit as required under THSC Sec. 382.0518. "Facility" means a discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source, including appurtenances other than emission control equipment. A mine, quarry, well test, or road is not considered to be a facility. [THSC Sec. 382.003. Definitions (6)

8. Hazardous Waste Violations (Applies everywhere in Texas) All of these violations are enforced by: Peace officers TWC Sec. 7.162(a)(1) $1,000 to $50,000 and/or Prison to 5 years; Greater penalty for subsequent conviction Transports, or causes or allows to be transported, for storage, processing, or disposal, any hazardous waste to any location that does not have all required permits; TWC Sec. 7.162(a)(2) $1,000 to $50,000 and/or Prison to 5 years: Greater penalty for subsequent conviction Stores, processes, exports, or disposes of, or causes to be stored, processed, exported, or disposed of, any hazardous waste without all permits required by the appropriate regulatory agency; TWC Sec. 7.162 (a)(3) $1,000 to $50,000 and/or Prison to 2 years: Greater penalty for subsequent conviction Omits or causes to be omitted material information or makes or causes to be made any false material statement or representation in any required application, label, manifest, record, report, permit, plan, or other document filed, maintained; TWC Sec. 7.162 (a)(5) $1,000 to $50,000 and/or Prison to 10 years: Greater penalty for subsequent conviction Transports without a manifest, or causes or allows to be transported without a manifest, any hazardous waste required by rules adopted under Chapter 361, Health and Safety Code, to be accompanied by a manifest TWC Sec. 7.162 (a)(6) $1,000 to $100,000 and/or Prison to 1 year: Greater penalty for subsequent conviction Tampers with, modifies, disables, or fails to use required pollution control or monitoring devices, systems, methods, or practices Hazardous Waste Violations with Endangerment Provisions TWC Sec. 7.163 (a)(1)-(4) Various hazardous waste violations with endangerment Fine of $1,000 to $1.5 Million with Prison to 30 years, depending on the violation and the nature of any injury; These are various hazardous waste storage and disposal violations where a person is injured or dies, intentionally or otherwise.

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TIDRC000 Orientation Sept 2015

9. Additional Specified Major Misdemeanors and Felonies (Applies everywhere in Texas) TWC Sec. 7.141 to TWC Sec. 7.185 All of these violations are enforced by: Peace officers These carry a wide range of penalties, including major fines and confinement time; Most carry significantly higher fines for violators other than individuals; Most allow a doubling of both the fine and confinement in the event of repeat convictions. Not Classified Sec. 7.142. Unlawful Use Of State Water Sec. 7.143. Violation Of Minimum State Standards Or Subdivision Rules Water Related: Sec. 7.148. Failure to Properly Use (Water) Pollution Control Measures; Sec. 7.149. False Statement  (Water Related); Sec. 7.150. Failure to Notify or Report Spill (TWC Chapter 26) Sec. 7.152. Intentional or Knowing Unauthorized Discharge and Knowing Endangerment Sec. 7.153. Intentional or Knowing Unauthorized Discharge and Endangerment Sec. 7.154. Reckless Unauthorized Discharge and Endangerment Sec. 7.155. Violation Relating to Discharge or Spill Miscellaneous Sub-Surface Violations: Sec. 7.156. Violation Relating to Underground Storage Tank Sec. 7.157. Violation Relating to Injection Wells Sec. 7.158. Violation Relating to Plugging Wells Sec. 7.157. Violation Relating to Injection Wells Sec. 7.158. Violation Relating to Plugging Wells Sec. 7.159. Violation Relating to Water Wells Or Drilled Or Mined Shafts Sec. 7.160. Violation Relating to Certain Subsurface Excavations Sec. 7.161. Violation Relating to Solid Waste In Enclosed Containers or Vehicles Medical Waste: Sec. 7.164. Violations Relating to Medical Waste: Large Generator Sec. 7.165. Violations Relating to Medical Waste: Small Generator Sec. 7.166. Violations Relating to Transportation of Medical Waste Sec. 7.167. False Statements Relating to Medical Waste Sec. 7.168. Intentional or Knowing Violation Relating to Medical Waste And Knowing Endangerment Sec. 7.169. Intentional or Knowing Violation Relating to Medical Waste and Endangerment Sec. 7.170. Intentional or Knowing Release of Medical Waste Into Environment and Endangerment Sec. 7.171. Reckless Release of Medical Waste Into Environment and Endangerment Sewage System Related: Sec. 7.172. Failure of Sewage System Installer to Register Sec. 7.173. Violation Relating to Sewage Disposal Sec. 7.1735. Violation Relating to Maintenance of Sewage Disposal System Sec. 7.174. Violation of Sewage Disposal System Permit Provision Used Oil: Sec. 7.176. Violations Relating to Handling of Used Oil [Note: Sets a penalty of $1,000 to $50,000 and/or 5 years confinement for common disposal of used oil, including using it for dust suppression, weed abatement, etc.] Additional Air Violations: Sec. 7.178. Failure to Pay Fees Under Clean Air Act

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TIDRC000 Orientation Sept 2015

Sec. 7.179. False Representations Under Clean Air Act Sec. 7.180. Failure to Notify Under Clean Air Act Sec. 7.181. Improper Use of Monitoring Device Sec. 7.1831. Violation of Locally Enforced Motor Vehicle Idling Limitations Sec. 7.184. Violations Relating to Low-Level Radioactive Waste Lead-Acid Batteries Sec. 7.185. Knowing or Intentional Unauthorized Disposal of Lead-Acid Batteries

10. Civil Suits by Cities and Counties TWC Sec. 7.351. Civil Suits Civil penalties to $25,000 per day; divided equally between state and local government bringing suit; Cities and counties have specific suit powers to respond to environmental statute, rule, permit, or order violations. Highly specialized attorneys required; Agreed abatements common in settlements and frequently occur early in the negotiation as a negotiation tool by the defendants.

Local Criminal Enforcement Most officers and elected officials, when they first see the criminal laws that can be used in anti-pollution cases, are a little astonished. Since no formal basic training in this subject is included in police academies and law schools, many officers and prosecutors have long held two wrong ideas about this area of enforcement: (1) anti-pollution enforcement is a TCEQ or RRC responsibility; and, (2) there are no laws available to communities to be used to deal with these violations beyond municipal codes. Hence, if a knowledgeable code enforcement officer — one with a good understanding of local codes and state criminal law — finds a situation where a crime is taking place and calls the police, he or she may get the response, “We don’t do code enforcement!” If the code officer then responds with the question, “Well, who do you suggest I call too get somebody to enforce the felony I’m looking at? Aren’t y’all responsible for felony enforcement?” a useful dialog may have begun. In cities and counties where the unofficial position is not to enforce state antipollution misdemeanors and felony law, this decision needs open discussion. We strongly suggest getting elected officials (including prosecutors), the code enforcement and police chief, the city manager, and the city attorney in the same room to have a candid discussion about (1) what changes would have too happen to begin to enforce these (mostly) criminal laws in their jurisdiction; and, (2) what liability might accrue to a city or county who takes a unilateral decision not to enforce an entire class of state criminal law. It’s hard to see how this is ever a good policy decision. The political consequences of failing to use all the tools provided local elected official to protect the property values and health of voters will take care of itself as public knowledge of these laws increase.

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TIDRC000 Orientation Sept 2015

And there have been successes in local criminal environmental enforcement that provide good models for cities and counties wanting to include this approach in their toolkit. •

In 1991 Governor Richards created the state/federal Texas Environmental Enforcement Task Force and the Texas Water Commission (one of today’s TCEQ predecessor agencies) created its Special Investigations Unit to enforce Texas criminal laws protecting our land, water, and air resources.

The first Director of the Special Investigations Unit — now called the TCEQ Environmental Crimes Unit under the outstanding direction of Dan McReynolds — was Dale Burnett, a truly visionary leader. Under Dale’s management, Special Investigations began providing training to local peace officers in implementing Texas criminal environmental protection laws at the local level. The concept of enforcement being a partnership was born, and hundreds of local peace officers have been trained over the years by the ECU.

Along about the same time, the Texas Parks and Wildlife Department Environmental Crime Unit was formed. These six sergeant-level specialized game wardens with their own Captain pursue environmental criminals across the state.

As the number of trained local environmental enforcement officers continued to grow, in 1997 investigators from TNRCC (TCEQ) Special Investigations, the very sophisticated Houston Police Department Environmental Investigations Unit, under the expert direction of Officer Stephen Dicker, and others from around the state formed the Texas Environmental Law Enforcement Association, which continues to function today as the only association of such officers in the state (www.telea.us).

Regional enforcement task forces have begun to emerge, most of which are modeled on the outstanding Capital Area Regional Environmental Task Force, which is “a multijurisdictional law enforcement effort of 12 government agencies in Central Texas.”

Expert specialized prosecutors have developed over the years too.

All of these folks, and more, are very willing to provide advice and the benefit of their experience to help your local police, deputies, and prosecutors become expert at using these criminal laws. If you need to contact any of these folks, just drop me an email (ockels@tidrc.com). How to Learn More We think good policies begin with complete knowledge of all of your possibilities. To that end, we suggest everyone involved in local enforcement hit the books. Since not all of us particularly enjoy reading, local communities may have to impose their own “performance enhancement” program of (1) coordinated reading; (2) officer, staff, and

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TIDRC000 Orientation Sept 2015

official training; (3) discussion of applying enforcement to specific local cases; (4) actual application of one or more alternative to those cases; and (5) review of the results. To that end, we suggest local officers and officials take some of our online classes, attend an in-person class, attend training sessions provided by others, buy a book or two on the subject, or simply read the materials without registering as a formal student. Many places in Texas seem to be making a transition from electing politicians who are not interested in regulation to those that are — especially when the “regulation” simply involves applying Texas criminal laws. We predict that it’s going to be increasingly difficult to maintain the fiction that “There is nothing we can do!” to keep the community clean and free from public health nuisances, living as we do in the times of Internet shared information. Citizens are learning these laws and options fast and expect them to be enforced in their communities. That’s about it for an overview of the subject. If you’d like to receive a Certificate of Completion for reading and understanding this material, just register through TIDRC.com and pass the simple 10-question online class accessed from the Class Home Page. There’s no class fee for doing this, and you’ll receive one hour of continuing education credit with the Department of State Health Services for passing the test. All the best, and good luck with the project of becoming better able to use state laws to protect your local resources and the health of your people. Yours is a noble undertaking.

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Tidrc000 orientation sept 2015  

Reading for TIDRC000 Orientation to Local Environmental Enforcement

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