| (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.
Cont'd... |
