Section 60.3 - Use of Compliance History(a) Permitting. (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; and(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 environmental compliance.(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); and(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, including: (i) deny or amend a solid waste management facility permit;(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 the permit.(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 when: (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, Chapter 401.(B) The commission shall consider compliance history when:(i) considering the issuance, amendment, or renewal of a permit to discharge effluent comprised primarily of sewage or municipal waste;(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 title;(C) repeatedly operating without required authorization; or(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 382;(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 errors.(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.30 Tex. Admin. Code § 60.3
The provisions of this §60.3 adopted to be effective August 29, 2002, 27 TexReg 7824; amended to be effective July 19, 2012, 37 TexReg 5283