| (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
Cont'd... |
