| (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.
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