Section 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.30 Tex. Admin. Code § 60.2
The provisions of this §60.2 adopted to be effective August 29, 2002, 27 TexReg 7824; amended to be effective July 19, 2012, 37 TexReg 5283