(1) Permit actions subject to compliance history review.
For permit actions subject to compliance history review identified
in §60.1(a) of this title (relating to Compliance History), the
agency shall consider compliance history when preparing draft permits
and when deciding whether to issue, renew, amend, modify, deny, suspend,
or revoke a permit by evaluating the person's:
(A) site-specific compliance history and classification;
(B) aggregate compliance history and classification,
especially considering patterns of environmental compliance.
(2) Review of permit application. In the review of
any application for a new, amended, modified, or renewed permit, the
executive director or commission may require permit conditions or
provisions to address an applicant's compliance history. Unsatisfactory
performers are subject to any additional oversight necessary to improve
(3) Unsatisfactory performers and repeat violators.
(A) If a site is classified as an unsatisfactory performer,
the agency shall:
(i) deny or suspend a person's authority relating to
that site to discharge under a general permit issued under Chapter
205 of this title (relating to General Permits for Waste Discharges);
(ii) deny a permit relating to that site for, or renewal
of, a flexible permit under Chapter 116 of this title (relating to
Control of Air Pollution by Permits for New Construction or Modification).
(B) If a site is classified as an unsatisfactory performer,
upon application for a permit, permit renewal, modification, or amendment
relating to that site, the agency may take the following actions,
(i) deny or amend a solid waste management facility
(ii) deny an original or renewal solid waste management
facility permit; or
(iii) hold a hearing on an air permit amendment, modification,
or renewal, and, as a result of the hearing, deny, amend, or modify
(C) If a site is classified as an unsatisfactory performer
or repeat violator and the agency determines that a person's compliance
history raises an issue regarding the person's ability to comply with
a material term of its hazardous waste management facility permit,
then the agency shall provide an opportunity to request a contested
case hearing for applications meeting the criteria in §305.65(9)
of this title (relating to Renewal).
(D) Upon application for permit renewal or amendment,
the commission may deny, modify, or amend a permit of a repeat violator.
(E) The commission shall deny an application for permit
or permit amendment when the person has an unacceptable compliance
history based on violations constituting a recurring pattern of conduct
that demonstrates a consistent disregard for the regulatory process,
including a failure to make a timely and substantial attempt to correct
the violation(s). This includes violation of provisions in commission
orders or court injunctions, judgments, or decrees designed to protect
human health or the environment.
(4) Additional use of compliance history.
(A) The commission may consider compliance history
(i) evaluating an application to renew or amend a permit
under Texas Water Code (TWC), Chapter 26;
(ii) considering the issuance, amendment, or renewal
of a preconstruction permit, under Texas Health and Safety Code (THSC),
Chapter 382; and
(iii) making a determination whether to grant, deny,
revoke, suspend, or restrict a license or registration under THSC,
(B) The commission shall consider compliance history
(i) considering the issuance, amendment, or renewal
of a permit to discharge effluent comprised primarily of sewage or
(ii) considering if the use or installation of an injection
well for the disposal of hazardous waste is in the public interest
under TWC, Chapter 27;
(iii) determining whether and under which conditions
a preconstruction permit should be renewed; and
(iv) making a licensing decision on an application
to process or dispose of low-level radioactive waste from other persons.
(5) Revocation or suspension of a permit. Compliance
history classifications shall be used in commission decisions relating
to the revocation or suspension of a permit.
(6) Repeat violator permit revocation. In addition
to the grounds for revocation or suspension under TWC, §7.302
and §7.303, the commission may revoke a permit of a repeat violator
if classified as an unsatisfactory performer, or for cause, including:
(A) a criminal conviction classified as major under §60.2(d)(1)(E)
of this title (relating to Classification);
(B) an unauthorized release, emission, or discharge
of pollutants classified as major under §60.2(d)(1)(C) of this
(C) repeatedly operating without required authorization;
(D) documented falsification.
(b) Investigations. If a site is classified as an unsatisfactory
performer, then the agency:
(1) may provide technical assistance to the person
to improve the person's compliance with applicable legal requirements;
(2) may increase the number of investigations performed
at the site; and
(3) may perform any investigations unannounced.
(c) Enforcement. For enforcement decisions, the commission
may address compliance history and repeat violator issues through
both penalty assessment and technical requirements.
(1) Unsatisfactory performers are subject to any additional
oversight necessary to improve environmental compliance.
(2) The commission shall consider compliance history
classification when assessing an administrative penalty.
(3) The commission shall enhance an administrative
penalty assessed on a repeat violator.
(d) Participation in innovative programs. If the site
is classified as an unsatisfactory performer, then the agency:
(1) may recommend technical assistance; or
(2) may provide assistance or oversight in development
of an environmental management system (EMS) and require specific environmental
reporting to the agency as part of the EMS; and
(3) shall prohibit that person from participating in
the regulatory flexibility program at that site. In addition, an unsatisfactory
performer is prohibited from receiving additional regulatory incentives
under its EMS until its compliance history classification has improved
to at least a satisfactory performer.
(e) Appeal of classification. A person or site classification
may be appealed only if the person or site is classified as either
an unsatisfactory performer, a repeat violator, or a satisfactory
performer with 45 points or more. An appeal under this subsection
shall be subject to the following procedures.
(1) An appeal shall be filed with the executive director
no later than 45 days after notice of the classification is posted
on the commission's website.
(2) An appeal shall state the grounds for the appeal
and the specific relief sought. The appeal must demonstrate that if
the specific relief sought is granted, a change in site or person
classification will result. The appeal must also include all documentation
and argument in support of the appeal.
(3) Upon filing, the appellant shall serve a copy of
the appeal including all supporting documentation by certified mail,
return receipt requested, as provided in subparagraphs (A) and (B)
of this paragraph.
(A) If an appeal of a person's classification is filed
by a person other than the person classified, a copy shall be served
on the person classified.
(B) If an appeal of a site classification is filed
by a person other than the permit holder(s) or the owner of the classified
site, a copy shall be served on the owner and permit holder (if different)
of the classified site.
(4) Any replies to an appeal must be filed no later
than 15 days after the filing of the appeal.
(5) In response to a timely filed appeal and any replies,
the executive director may affirm or modify the classification.
(6) The executive director shall mail notice of his
decision to affirm or modify the classification to the appellant,
any person filing a reply, and the persons identified in paragraph
(3)(A) and (B) of this subsection no later than 60 days after the
filing of the appeal. An appeal is automatically denied on the 61st
day after the filing of the appeal unless the executive director mails
notice of his decision before that day.
(7) The executive director's decision is effective
and for purposes of judicial review, constitutes final and appealable
commission action on the date the executive director mails notice
of his decision or the date the appeal is automatically denied.
(8) During the pendency of an appeal to the executive
director or judicial review of the executive director's decision under
this subsection, the agency shall not, for the person or site for
which the classification is under appeal or judicial review:
(A) conduct an announced investigation;
(B) grant or renew a flexible permit under THSC, Chapter
(C) allow participation in the regulatory flexibility
program under TWC, §5.758; or
(D) grant authority to discharge under a general permit
under TWC, §26.040(h).
(f) Corrections of classifications. The executive director,
on his own motion or the request of any person, at any time may correct
any clerical errors in person or site classifications. If a person
classification is corrected, the executive director shall notify the
person whose classification has been corrected. If a site classification
is corrected, the executive director shall notify the site owner and
permit holder (if different). If the correction results in a change
to a classification that is subject to appeal under subsection (e)
of this section, then an appeal may be filed no later than 45 days
after posting of the correction on the commission's website. Clerical
errors under this section include typographical errors and mathematical
(g) Compliance history evidence. Any party in a contested
case hearing may submit information pertaining to a person's compliance
history, including the underlying components of classifications, subject
to the requirements of §80.127 of this title (relating to Evidence).
A person or site classification itself shall not be a contested issue
in a permitting or enforcement hearing.