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RULE §60.1Compliance History

(a) Applicability. The provisions of this chapter are applicable to all persons subject to the requirements of Texas Water Code (TWC), Chapters 26, 27, and 32 and Texas Health and Safety Code (THSC), Chapters 361, 375, 382, and 401.

  (1) Specifically, the agency will utilize compliance history when making decisions regarding:

    (A) the issuance, renewal, amendment, modification, denial, suspension, or revocation of a permit;

    (B) enforcement;

    (C) the use of announced investigations; and

    (D) participation in innovative programs.

  (2) For purposes of this chapter, the term "permit" means licenses, certificates, registrations, approvals, permits by rule, standard permits, or other forms of authorization.

  (3) With respect to authorizations, this chapter only applies to forms of authorization, including temporary authorizations, that require some level of notification to the agency, and which, after receipt by the agency, requires the agency to make a substantive review of and approval or disapproval of the authorization required in the notification or submittal. For the purposes of this rule, "substantive review of and approval or disapproval" means action by the agency to determine, prior to issuance of the requested authorization, and based on the notification or other submittal, whether the person making the notification has satisfied statutory or regulatory criteria that are prerequisites to issuance of such authorization. The term "substantive review or response" does not include confirmation of receipt of a submittal.

  (4) Regardless of the applicability of paragraphs (2) and (3) of this subsection, this chapter does not apply to certain permit actions such as:

    (A) voluntary permit revocations;

    (B) minor amendments and nonsubstantive corrections to permits;

    (C) Texas pollutant discharge elimination system and underground injection control minor permit modifications;

    (D) Class 1 solid waste modifications, except for changes in ownership;

    (E) municipal solid waste Class I modifications, except for temporary authorizations and municipal solid waste Class I modifications requiring public notice;

    (F) permit alterations;

    (G) administrative revisions; and

    (H) air quality new source review permit amendments which meet the criteria of §39.402(a)(3)(A) - (C) and (5)(A) - (C) of this title (relating to Applicability to Air Quality Permits and Permit Amendments) and minor permit revisions under Chapter 122 of this title (relating to Federal Operating Permits Program).

  (5) Further, this chapter does not apply to occupational licensing programs under the jurisdiction of the commission.

  (6) Not later than September 1, 2012, the executive director shall develop compliance histories with the components specified in this chapter. Prior to September 1, 2012, the executive director shall continue in effect the standards and use of compliance history for any action (permitting, enforcement, or otherwise) that were in effect before September 1, 2012.

  (7) Beginning September 1, 2012, this chapter shall apply to the use of compliance history in agency decisions relating to:

    (A) applications submitted on or after this date for the issuance, amendment, modification, or renewal of permits;

    (B) inspections and flexible permitting;

    (C) a proceeding that is initiated or an action that is brought on or after this date for the suspension or revocation of a permit or the imposition of a penalty in a matter under the jurisdiction of the commission; and

    (D) applications submitted on or after this date for other forms of authorization, or participation in an innovative program, except for flexible permitting.

  (8) If a motion to overturn is filed under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) with respect to any of the actions listed in paragraph (4) of this subsection, and is set for commission agenda, a compliance history shall be prepared by the executive director and filed with the Office of the Chief Clerk no later than six days before the Motion is considered on the commission agenda.

(b) Compliance period. The compliance history period includes the five years prior to the date the permit application is received by the executive director; the five-year period preceding the date of initiating an enforcement action with an initial enforcement settlement offer or the filing date of an Executive Director's Preliminary Report, whichever occurs first; for purposes of determining whether an announced investigation is appropriate, the five-year period preceding an investigation; or the five years prior to the date the application for participation in an innovative program is received by the executive director. The compliance history period may be extended beyond the date the application for the permit or participation in an innovative program is received by the executive director, up through completion of review of the application. Except as used in §60.2(f) of this title (relating to Classification) for determination of repeat violator, notices of violation may only be used as a component of compliance history for a period not to exceed one year from the date of issuance.

(c) Components. The compliance history shall include multimedia compliance-related information about a person, specific to the site which is under review, as well as other sites which are owned or operated by the same person. The components are:

  (1) any final enforcement orders, court judgments, and criminal convictions of this state relating to compliance with applicable legal requirements under the jurisdiction of the commission. "Applicable legal requirement" means an environmental law, regulation, permit, order, consent decree, or other requirement;

  (2) regardless of any other provision of the TWC, orders developed under TWC, §7.070 and approved by the commission on or after February 1, 2002;

  (3) to the extent readily available to the executive director, final enforcement orders, court judgments, consent decrees, and criminal convictions relating to violations of environmental rules of the United States Environmental Protection Agency;

  (4) chronic excessive emissions events. For purposes of this chapter, the term "emissions event" is the same as defined in THSC, §382.0215(a);

  (5) any information required by law or any compliance-related requirement necessary to maintain federal program authorization;

  (6) the dates of investigations;

  (7) all written notices of violation for a period not to exceed one year from the date of issuance of each notice of violation, including written notification of a violation from a regulated person, issued on or after September 1, 1999, except for those administratively determined to be without merit;

  (8) the date of letters notifying the executive director of an intended audit conducted and any violations disclosed and having received immunity under the Texas Environmental, Health, and Safety Audit Privilege Act (Audit Act), 75th Legislature, 1997, TEX. REV. CIV. STAT. ANN. art. 4447cc (Vernon's);

  (9) an environmental management system approved under Chapter 90 of this title (relating to Innovative Programs), if any, used for environmental compliance;

  (10) any voluntary on-site compliance assessments conducted by the executive director under a special assistance program;

  (11) participation in a voluntary pollution reduction program; and

  (12) a description of early compliance with or offer of a product that meets future state or federal government environmental requirements.

(d) Change in ownership. In addition to the requirements in subsections (b) and (c) of this section, if ownership of the site changed during the five-year compliance period, a distinction of compliance history of the site under each owner during that five-year period shall be made. Specifically, for any part of the compliance period that involves a previous owner, the compliance history will include only the site under review. For the purposes of this rule, a change in operator shall be considered a change in ownership if the operator is a co-permittee.

Source Note: The provisions of this §60.1 adopted to be effective January 9, 2002, 27 TexReg 191; amended to be effective June 24, 2010, 35 TexReg 5277; amended to be effective July 19, 2012, 37 TexReg 5283; amended to be effective May 14, 2020, 45 TexReg 3082

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