Current through Reg. 50, No. 13; March 28, 2025
(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;
(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;
(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.
