30 Tex. Admin. Code § 60.2 - Classification
(a) Classifications. Beginning September 1,
2002, the executive director shall evaluate the compliance history of each site
and classify each site and person as needed for the actions listed in §
60.1(a)(1) of
this title (relating to Compliance History). On September 1, 2003, and annually
thereafter, the executive director shall evaluate the compliance history of
each site, and classify each site and person. For the purposes of
classification in this chapter, and except with regard to portable units,
"site" means all regulated units, facilities, equipment, structures, or sources
at one street address or location that are owned or operated by the same
person. Site includes any property identified in the permit or used in
connection with the regulated activity at the same street address or location.
A "site" for a portable regulated unit or facility is any location where the
unit or facility is or has operated. Each site and person shall be classified
as:
(1) a high performer, which has an
above-satisfactory compliance record;
(2) a satisfactory performer, which generally
complies with environmental regulations; or
(3) an unsatisfactory performer, which
performs below minimal acceptable performance standards established by the
commission.
(b)
Inadequate information. For purposes of this rule, "inadequate information"
shall be defined as no compliance information. If there is no compliance
information about the site at the time the executive director develops the
compliance history classification, then the classification shall be designated
as "unclassified." The executive director may conduct an investigation to
develop a compliance history.
(c)
Groupings. Sites will be divided into groupings based on North American
Industry Classifications Systems (NAICS) codes or other information available
to the executive director.
(d)
Major, moderate, and minor violations. In classifying a site's compliance
history, the executive director shall determine whether a documented violation
of an applicable legal requirement is of major, moderate, or minor
significance.
(1) Major violations are:
(A) a violation of a commission enforcement
order, court order, or consent decree;
(B) operating without required authorization
or using a facility that does not possess required authorization;
(C) an unauthorized release, emission, or
discharge of pollutants that caused, or occurred at levels or volumes
sufficient to cause, adverse effects on human health, safety, or the
environment;
(D) falsification of
data, documents, or reports; and
(E) any violation included in a criminal
conviction, which required the prosecutor to prove a culpable mental state or a
level of intent to secure the conviction.
(2) Moderate violations are:
(A) complete or substantial failure to
monitor, analyze, or test a release, emission, or discharge, as required by a
commission rule or permit;
(B)
complete or substantial failure to submit or maintain records, as required by a
commission rule or permit;
(C) not
having an operator whose level of license, certification, or other
authorization is adequate to meet applicable rule requirements;
(D) any unauthorized release, emission, or
discharge of pollutants that is not classified as a major violation;
(E) complete or substantial failure to
conduct a unit or facility inspection, as required by a commission rule or
permit;
(F) any violation included
in a criminal conviction, for a strict liability offense, in which the statute
plainly dispenses with any intent element needed to be proven to secure the
conviction; and
(G) maintaining or
operating regulated units, facilities, equipment, structures, or sources in a
manner that could cause an unauthorized or noncompliant release, emission, or
discharge of pollutants.
(3) Minor violations are:
(A) performing most, but not all, of a
monitoring or testing requirement, including required unit or facility
inspections;
(B) performing most,
but not all, of an analysis or waste characterization requirement;
(C) performing most, but not all, of a
requirement addressing the submittal or maintenance of required data,
documents, notifications, plans, or reports; and
(D) maintaining or operating regulated units,
facilities, equipment, structures, or sources in a manner not otherwise
classified as moderate.
(e) Complexity Points. All sites classified
shall have complexity points as follows:
(1)
Program Participation Points. A site shall be assigned Program Participation
Points based upon its types of authorizations, as follows:
(A) four points for each permit type listed
in clauses (i) - (viii) of this subparagraph issued to a person at a site:
(i) Radioactive Waste Disposal;
(ii) Hazardous or Industrial Non-Hazardous
Storage Processing or Disposal;
(iii) Municipal Solid Waste Type I;
(iv) Prevention of Significant
Deterioration;
(v) Phase
I--Municipal Separate Storm Sewer System;
(vi) Texas Pollutant Discharge Elimination
System (TPDES) or National Pollutant Discharge Elimination System (NPDES)
Industrial or Municipal Major;
(vii) Nonattainment New Source Review;
and
(viii) Underground Injection
Control Class I/III;
(B)
three points for each type of authorization listed in clauses (i) - (iv) of
this subparagraph issued to a person at a site:
(i) Municipal Solid Waste Type I
AE;
(ii) Municipal Solid Waste Type
IV, V, or VI;
(iii) Municipal Solid
Waste Type IV AE; and
(iv) TPDES or
NPDES Industrial or Municipal Minor;
(C) two points for each permit type listed in
clauses (i) - (iii) of this subparagraph issued to a person at a site or
utilized by a person at a site:
(i) Title V
Federal Operating Permit;
(ii) New
Source Review individual permit; and
(iii) any other individual site-specific
water quality permit not referenced in subparagraph (A) or (B) of this
paragraph or any water quality general permit;
(D) one point for each type of authorization
listed in clauses (i) - (xiii) of this subparagraph issued to a person at a
site or utilized by a person at a site:
(i)
Edwards Aquifer authorization;
(ii)
Enclosed Structure permit or registration relating to the use of land over a
closed Municipal Solid Waste landfill;
(iii) Industrial Hazardous Waste
registration;
(iv) Municipal Solid
Waste Tire Registrations;
(v) Other
types of Municipal Solid Waste permits or registrations not listed in
subparagraphs (A) - (C) of this paragraph;
(vi) Petroleum Storage Tank
registration;
(vii) Radioactive
Waste Storage or Processing license;
(viii) Sludge registration or
permit;
(ix) Stage II Vapor
Recovery registration;
(x)
Municipal Solid Waste Type IX;
(xi)
Permit by Rule requiring submission of an application under Chapter 106 of this
title (relating to Permits by Rule);
(xii) Uranium license; and
(xiii) Air Quality Standard
Permits.
(2)
Size. Every site shall be assigned points based upon size as determined by the
following:
(A) Facility Identification
Numbers (FINs): The total number of FINS at a site will be multiplied by 0.02
and rounded up to the nearest whole number.
(B) Water Quality external outfalls:
(i) 10 points for a site with ten or more
external outfalls;
(ii) 5 points
for a site with at least five, but fewer than ten, external outfalls;
(iii) 3 points for sites with at least two,
but fewer than five, external outfalls; and
(iv) 1 point for sites with one external
outfall;
(C) Active
Hazardous Waste Management Units (AHWMUs):
(i)
10 points for sites with 50 or more AHWMUs;
(ii) 5 points for sites with at least 20, but
fewer than 50, AHWMUs;
(iii) 3
points for sites with at least ten, but fewer than 20, AHWMUs; and
(iv) 1 point for sites with at least one but
fewer than ten AHWMUs.
(D) Small Entities shall receive 3 points. A
small entity is defined as: a city with a population of less than 5,000; a
county with a population of less than 25,000; or a small business. A small
business is defined as any person, firm, or business which employs, by direct
payroll and/or through contract, fewer than 100 full-time employees. A business
that is a wholly owned subsidiary of a corporation shall not qualify as a small
business if the parent organization does not qualify as a small
business.
(E) Underground Storage
Tanks (USTs) and Aboveground Storage Tanks (ASTs):
(i) 4 points for sites with 11 or more
USTs;
(ii) 3 points for sites with
five to ten USTs;
(iii) 3 points
for sites with more than 11 ASTs;
(iv) 2 points for sites with three to four
USTs;
(v) 2 points for sites with
three to ten, ASTs;
(vi) 1 point
for sites with one to two USTs; and
(vii) 1 point for sites with one to two
ASTs.
(3)
Nonattainment area points. Every site located in a nonattainment area shall be
assigned 1 point.
(4) The subtotals
from paragraphs (1) - (3) of this subsection shall be summed.
(f) Repeat violator.
(1) Repeat violator criteria. A person may be
classified as a repeat violator at a site when, on multiple, separate
occasions, major violations of the same nature and the same environmental media
occurs during the preceding five-year compliance period as provided in
subparagraphs (A) and (B) of this paragraph. Same nature is defined as
violations that have the same root citation at the subsection level. For
example, all rules under §
334.50 of this title (relating to
Release Detection) (e.g. §
334.50(a) or (b)(2)
of this title) would be considered same
nature. The total complexity points for a site equals the sum of points
assigned to a specific site in subsection (e) of this section. A person is a
repeat violator at a site when:
(A) the site
has had a major violation(s) documented on at least two occasions and has less
than a total of 15 complexity points; or
(B) the site has had a major violation(s)
documented on at least three occasions.
(2) Repeat violator exemption. The executive
director shall designate a person as a repeat violator as provided in this
subsection, unless the executive director determines the nature of the
violations and the conditions leading to the violations do not warrant the
designation.
(g)
Formula. The executive director shall determine a site rating based upon the
following method.
(1) Site rating. For the
time period reviewed, the following calculations shall be performed based upon
the compliance history at the site.
(A) The
number of major violations contained in:
(i)
any adjudicated final court judgments and default judgments, shall be
multiplied by 160;
(ii) any
non-adjudicated final court judgments or consent decrees without a denial of
liability shall be multiplied by 140;
(iii) any non-adjudicated final court
judgments or consent decrees containing a denial of liability, adjudicated
final enforcement orders, and default orders, shall be multiplied by
120;
(iv) any final prohibitory
emergency orders issued by the commission shall be multiplied by 120;
(v) any agreed final enforcement orders
without a denial of liability shall be multiplied by 100; and
(vi) any agreed final enforcement orders
containing a denial of liability shall be multiplied by 80.
(B) The number of moderate
violations contained in:
(i) any adjudicated
final court judgments and default judgments shall be multiplied by
115;
(ii) any non-adjudicated final
court judgments or consent decrees without a denial of liability shall be
multiplied by 95;
(iii) any
non-adjudicated final court judgments or consent decrees containing a denial of
liability, adjudicated final enforcement orders, and default orders, shall be
multiplied by 75;
(iv) any agreed
final enforcement orders without a denial of liability shall be multiplied by
60; and
(v) any agreed final
enforcement orders containing a denial of liability shall be multiplied by
45.
(C) The number of
minor violations contained in:
(i) any
adjudicated final court judgments and default judgments shall be multiplied by
45;
(ii) any non-adjudicated final
court judgments or consent decrees without a denial of liability shall be
multiplied by 35;
(iii) any
non-adjudicated final court judgments or consent decrees containing a denial of
liability, adjudicated final enforcement orders, and default orders, shall be
multiplied by 25;
(iv) any agreed
final enforcement orders without a denial of liability shall be multiplied by
20; and
(v) any agreed final
enforcement orders containing a denial of liability shall be multiplied by
15.
(D) The total number
of points assigned for all resolved violations in subparagraphs (A) - (C) of
this paragraph will be reduced based on achievement of compliance with all
ordering provisions. For the first two years after the effective date of the
enforcement order(s), court judgment(s), consent decree(s), and criminal
conviction(s), the site will receive the total number of points assigned for
violations in subparagraphs (A) - (C) of this paragraph. If all violations in
subparagraphs (A) - (C) of this paragraph are resolved and compliance with all
ordering provisions is achieved, for each enforcement order(s), court
judgment(s), consent decree(s), and criminal conviction(s):
(i) under two years old, the points
associated with the violations in subparagraphs (A) - (C) of this paragraph
will be multiplied by 1.0;
(ii)
over two years old, the points associated with the violations in subparagraphs
(A) - (C) of this paragraph will be multiplied by 0.75;
(iii) over three years old, the points
associated with the violations in subparagraphs (A) - (C) of this paragraph
will be multiplied by 0.50; and
(iv) over four years old, the points
associated with the violations in subparagraphs (A) - (C) of this paragraph
will be multiplied by 0.25.
(E) The number of major violations contained
in any notices of violation shall be multiplied by 10.
(F) The number of moderate violations
contained in any notices of violation shall be multiplied by 4.
(G) The number of minor violations contained
in any notices of violation shall be multiplied by 1.
(H) The number of counts in all criminal
convictions:
(i) under Texas Water Code (TWC),
§§7.145, 7.152, 7.153, 7.162(a)(1) - (5), 7.163(a)(1) - (3), 7.164,
7.168 - 7.170, 7.176, 7.182, 7.183, and all felony convictions under the Texas
Penal Code, TWC, Texas Health and Safety Code (THSC), or the United States Code
(USC) shall be multiplied by 500; and
(ii) under TWC, §§7.147 - 7.151,
7.154, 7.157, 7.159, 7.160, 7.162(a)(6) - (8), 7.163(a)(4), 7.165 - 7.167,
7.171, 7.177 - 7.181, and all misdemeanor convictions under the Texas Penal
Code, TWC, THSC, or the USC shall be multiplied by 250.
(I) The number of chronic excessive emissions
events shall be multiplied by 100.
(J) The subtotals from subparagraphs (A) -
(I) of this paragraph shall be
summed.
(K) If the
person is a repeat violator as determined under subsection (f) of this section,
then 500 points shall be added to the total in subparagraph (J) of this
paragraph. If the person is not a repeat violator as determined under
subsection (f) of this section, then zero points shall be added to the total in
subparagraph (J) of this paragraph.
(L) If the total in subparagraph (K) of this
paragraph is greater than zero, then:
(i)
subtract 1 point from the total in subparagraph (K) of this paragraph for each
notice of an intended audit conducted under the Audit Act submitted to the
agency during the compliance period; or
(ii) if a violation(s) was disclosed as a
result of an audit conducted under the Texas Environmental, Health, and Safety
Audit Privilege Act, (Audit Act), 75th Legislature, 1997, TEX. REV. CIV. STAT.
ANN. art.4447cc (Vernon's); as amended, and the site received immunity from an
administrative or civil penalty for that violation(s) by the agency, then the
following number(s) shall be subtracted from the total in subparagraph (K) of
this paragraph:
(I) the number of major
violations multiplied by 10;
(II)
the number of moderate violations multiplied by 4; and
(III) the number of minor violations
multiplied by 1.
(M) The result of the calculations in
subparagraphs (J) - (L) of this paragraph shall be divided by the number of
investigations conducted during the compliance period multiplied by 0.1 plus
the number of complexity points in subsection (e) of this section. If a site
does not have any investigation points and the subtotal from subsection (e)(1)
- (3) of this section equals zero, then one default point shall be used.
Investigations that do not document any violations will be the only ones
counted in the compliance history formula. The number of investigations
multiplied by 0.1 shall be rounded up to the nearest whole number. If the value
is less than zero, then the site rating shall be assigned a value of zero. For
the purposes of this chapter, an investigation is a review or evaluation of
information by the executive director or executive director's staff or agent
regarding the compliance status of a site, excluding those investigations
initiated by citizen complaints. An investigation, for the purposes of this
chapter, may take the form of a site assessment, file or record review,
compliance investigation, or other review or evaluation of
information.
(N) If the person
receives certification of an environmental management system (EMS) under
Chapter 90 of this title (relating to Innovative Programs) and has implemented
the EMS at the site for more than one year, then multiply the result in
subparagraph (M) of this paragraph by 0.90, which is (1 - 0.10) and this is the
maximum reduction that can be received for an EMS. If the person receives
credit for a voluntary pollution reduction program or for early compliance,
then multiply the result in subparagraph (M) of this paragraph by 0.95, which
is (1 - 0.05). The maximum reduction that a site's compliance history may be
reduced through voluntary pollution reduction programs in this subparagraph is
0.85, which is (1 - 0.15). If site participates in both EMS and voluntary
pollution reduction programs then the maximum reduction that a site's
compliance history may be reduced through EMS and voluntary programs in this
subparagraph is 0.75, which is (1 - 0.10 - 0.15).
(2) Point ranges. The executive director
shall assign the site a classification based upon the compliance history and
application of the formula in paragraph (1) of this subsection to determine a
site rating, utilizing the following site rating ranges for each
classification:
(A) fewer than 0.10
points--high performer;
(B) 0.10
points to 55 points--satisfactory performer; and
(C) more than 55 points--unsatisfactory
performer.
(3)
Mitigating factors. The executive director shall evaluate mitigating factors
for a site classified as an unsatisfactory performer.
(A) The executive director may reclassify the
site from unsatisfactory to satisfactory performer with 55 points based upon
the following mitigating factors:
(i) other
compliance history components included in §
60.1(c)(10) -
(12) of this title;
(ii) implementation of an EMS not certified
under Chapter 90 of this title at a site for more than one year;
(iii) a person, all of whose other sites have
a high or satisfactory performer classification, purchased a site with an
unsatisfactory performer classification or became permitted to operate a site
with an unsatisfactory performer classification if the person entered into a
compliance agreement with the executive director regarding actions to be taken
to bring the site into compliance prior to the effective date of this rule;
and
(iv) voluntarily reporting a
violation to the executive director that is not otherwise required to be
reported and that is not reported under the Audit Act, or that is reported
under the Audit Act but is not granted immunity from an administrative or civil
penalty for that violation(s) by the agency.
(B) When a person, all of whose other sites
have a high or satisfactory performer classification, purchased a site with an
unsatisfactory performer classification or became permitted to operate a site
with an unsatisfactory performer classification and the person
contemporaneously entered into a compliance agreement with the executive
director regarding actions to be taken to bring the site into compliance, the
executive director:
(i) shall reclassify the
site from unsatisfactory performer to satisfactory performer with 55 points
until such time as the next annual compliance history classification is
performed; and
(ii) may, at the
time of subsequent compliance history classifications, reclassify the site from
unsatisfactory performer to satisfactory performer with 55 points based upon
the executive director's evaluation of the person's compliance with the terms
of the compliance agreement.
(h) Person classification. The executive
director shall assign a classification to a person by adding the complexity
weighted site ratings of all the sites owned and/or operated by that person in
the State of Texas. Each site that a person is affiliated to will receive a
point value based on the compliance history rating at the site multiplied by
the percentage of complexity points that site represents of the person's total
complexity points for all sites. Each of these calculated amounts will be added
together to determine the person's compliance history rating.
(i) Notice of classifications. Notice of
person and site classifications shall be posted on the commission's website
after 30 days from the completion of the classification. The notice of
classification shall undergo a quality assurance, quality control review
period. An owner or operator of a site may review the pending compliance
history rating upon request by submitting a Compliance History Review Form to
the commission by August 15 each year.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.