1. (a) Classifications. Beginning September 1, 2002, the executive director shall evaluate the compliance history of each site and classify each site and person as needed for the actions listed in §60.1(a)(1) of this title (relating to Compliance History). On September 1, 2003, and annually thereafter, the executive director shall evaluate the compliance history of each site, and classify each site and person. For the purposes of classification in this chapter, and except with regard to portable units, "site" means all regulated units, facilities, equipment, structures, or sources at one street address or location that are owned or operated by the same person. Site includes any property identified in the permit or used in connection with the regulated activity at the same street address or location. A "site" for a portable regulated unit or facility is any location where the unit or facility is or has operated. Each site and person shall be classified as:

   1. (1) a high performer, which has an above-average compliance record;
   2. (2) an average performer, which generally complies with environmental regulations; or
   3. (3) a poor performer, which performs below average.
2. (b) Inadequate information. For purposes of this rule, "inadequate information" shall be defined as no compliance information. If there is no compliance information about the site at the time the executive director develops the compliance history classification, then the classification shall be designated as "average performer by default." The executive director may conduct an investigation to develop a compliance history.

3. (c) Major, moderate, and minor violations. In classifying a site's compliance history, the executive director shall determine whether a documented violation of an applicable legal requirement is of major, moderate, or minor significance.

   1. (1) Major violations are:

      1. (A) a violation of a commission enforcement order, court order, or consent decree;
      2. (B) operating without required authorization or using a facility that does not possess required authorization;
      3. (C) an unauthorized release, emission, or discharge of pollutants that caused, or occurred at levels or volumes sufficient to cause, adverse effects on human health, safety, or the environment;
      4. (D) falsification of data, documents, or reports; and
      5. (E) any violation included in a criminal conviction, which required the prosecutor to prove a culpable mental state or a level of intent to secure the conviction.

   2. (2) Moderate violations are:

      1. (A) complete or substantial failure to monitor, analyze, or test a release, emission, or discharge, as required by a commission rule or permit;
      2. (B) complete or substantial failure to submit or maintain records, as required by a commission rule or permit;
      3. (C) not having an operator whose level of license, certification, or other authorization is adequate to meet applicable rule requirements;
      4. (D) any unauthorized release, emission, or discharge of pollutants that is not classified as a major violation;
      5. (E) complete or substantial failure to conduct a unit or facility inspection, as required by a commission rule or permit;
      6. (F) any violation included in a criminal conviction, for a strict liability offense, in which the statute plainly dispenses with any intent element needed to be proven to secure the conviction; and
      7. (G) maintaining or operating regulated units, facilities, equipment, structures, or sources in a manner that could cause an unauthorized or noncompliant release, emission, or discharge of pollutants.

   3. (3) Minor violations are:

      1. (A) performing most, but not all, of a monitoring or testing requirement, including required unit or facility inspections;
      2. (B) performing most, but not all, of an analysis or waste characterization requirement;
      3. (C) performing most, but not all, of a requirement addressing the submittal or maintenance of required data, documents, notifications, plans, or reports; and
      4. (D) maintaining or operating regulated units, facilities, equipment, structures, or sources in a manner not otherwise classified as moderate.

4. (d) Repeat violator.

   1. (1) Repeat violator criteria. A person may be classified as a repeat violator at a site when, on multiple, separate occasions, a major violation(s) occurs during the compliance period as provided in subparagraphs (A) - (C) of this paragraph. The total criteria points for a site equals the sum of points assigned to a specific site in paragraphs (2) - (5) of this subsection. A person is a repeat violator at a site when:

      1. (A) the site has had a major violation(s) documented on at least two occasions and has total criteria points ranging from 0 to 8;
      2. (B) the site has had a major violation(s) documented on at least three occasions and has total criteria points ranging from 9 to 24; or
      3. (C) the site has had a major violation(s) documented on at least four occasions and has total criteria points greater than 24.

   2. (2) Complexity points. A site shall be assigned complexity points based upon its types of permits, as follows:

      1. (A) four points for each permit type listed in clauses (i) - (vi) of this subparagraph issued to a person at a site:

         1. (i) Radioactive Waste Disposal;
         2. (ii) Hazardous or Industrial Non-Hazardous Storage Processing or Disposal;
         3. (iii) Municipal Solid Waste Type I;
         4. (iv) Prevention of Significant Deterioration;
         5. (v) Phase I--Municipal Separate Storm Sewer System; and
         6. (vi) Texas Pollutant Discharge Elimination System (TPDES) or National Pollutant Discharge Elimination System (NPDES) Industrial or Municipal Major;

      2. (B) three points for each permit type listed in clauses (i) - (v) of this subparagraph issued to a person at a site:

         1. (i) Underground Injection Control Class I/III;
         2. (ii) Municipal Solid Waste Type I AE;
         3. (iii) Municipal Solid Waste Type IV, V, or VI;
         4. (iv) Municipal Solid Waste Tire Registration; and
         5. (v) TPDES or NPDES Industrial or Municipal Minor;

      3. (C) two points for each permit type listed in clauses (i) and (ii) of this subparagraph issued to a person at a site or utilized by a person at a site:

         1. (i) New Source Review individual permit or permit by rule requiring submission of a PI-7 under Chapter 106 of this title (relating to Permits by Rule); and
         2. (ii) any other individual site-specific water quality permit not referenced in subparagraph (A) or (B) of this paragraph or any water quality general permit.

   3. (3) Number of sites points. The following point values are assigned based on the number of sites in Texas owned or operated by a person:

      1. (A) 1 point when a person owns or operates one site only;
      2. (B) 2 points when a person owns or operates two sites only;
      3. (C) 3 points when a person owns or operates three sites only;
      4. (D) 4 points when a person owns or operates four sites only;
      5. (E) 5 points when a person owns or operates five sites only;
      6. (F) 6 points when a person owns or operates six to ten sites;
      7. (G) 7 points when a person owns or operates 11 to 100 sites; and
      8. (H) 8 points when a person owns or operates more than 100 sites.

   4. (4) Size. Every site shall be assigned points based upon size as determined by the following:

      1. (A) Facility Identification Numbers (FINs):

         1. (i) 4 points for sites with 600 or more FINs;
         2. (ii) 3 points for sites with at least 110, but fewer than 600, FINs;
         3. (iii) 2 points for sites with at least 44, but fewer than 110, FINs; and
         4. (iv) 1 point for sites with at least one but fewer than 44 FINs;

      2. (B) Water Quality external outfalls:

         1. (i) 4 points for a site with ten or more external outfalls;
         2. (ii) 3 points for a site with at least five, but fewer than ten, external outfalls;
         3. (iii) 2 points for sites with at least two, but fewer than five, external outfalls; and
         4. (iv) 1 point for sites with one external outfall;

      3. (C) Active Hazardous Waste Management Units (AHWMUs):

         1. (i) 4 points for sites with 50 or more AHWMUs;
         2. (ii) 3 points for sites with at least 20, but fewer than 50, AHWMUs;
         3. (iii) 2 points for sites with at least ten, but fewer than 20, AHWMUs; and
         4. (iv) 1 point for sites with at least one but fewer than ten AHWMUs.
   5. (5) Nonattainment area points. Every site located in a nonattainment area shall be assigned 1 point.
   6. (6) 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.

5. (e) Formula. The executive director shall determine a site rating based upon the following method.

   1. (1) Site rating. For the time period reviewed, the following calculations shall be performed based upon the compliance history at the site.

      1. (A) The number of major violations contained in:

         1. (i) any adjudicated final court judgments and default judgments, shall be multiplied by 160;
         2. (ii) any non-adjudicated final court judgments or consent decrees without a denial of liability shall be multiplied by 140;
         3. (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;
         4. (iv) any final prohibitory emergency orders issued by the commission shall be multiplied by 120;
         5. (v) any agreed final enforcement orders without a denial of liability shall be multiplied by 100; and
         6. (vi) any agreed final enforcement orders containing a denial of liability shall be multiplied by 80.

      2. (B) The number of moderate violations contained in:

         1. (i) any adjudicated final court judgments and default judgments shall be multiplied by 115;
         2. (ii) any non-adjudicated final court judgments or consent decrees without a denial of liability shall be multiplied by 95;
         3. (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;
         4. (iv) any agreed final enforcement orders without a denial of liability shall be multiplied by 60; and
         5. (v) any agreed final enforcement orders containing a denial of liability shall be multiplied by 45.

      3. (C) The number of minor violations contained in:

         1. (i) any adjudicated final court judgments and default judgments shall be multiplied by 45;
         2. (ii) any non-adjudicated final court judgments or consent decrees without a denial of liability shall be multiplied by 35;
         3. (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;
         4. (iv) any agreed final enforcement orders without a denial of liability shall be multiplied by 20; and
         5. (v) any agreed final enforcement orders containing a denial of liability shall be multiplied by 15.
      4. (D) The number of major violations contained in any notices of violation shall be multiplied by 5.
      5. (E) The number of moderate violations contained in any notices of violation shall be multiplied by 3.
      6. (F) The number of minor violations contained in any notices of violation shall be multiplied by 1.

      7. (G) The number of counts in all criminal convictions:

         1. (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
         2. (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.
      8. (H) The number of chronic excessive emissions events shall be multiplied by 100.
      9. (I) The subtotals from subparagraphs (A) - (H) of this paragraph shall be summed.
      10. (J) If the person is a repeat violator as determined under subsection (d) of this section, then 500 points shall be added to the total in subparagraph (I) of this paragraph. If the person is not a repeat violator as determined under subsection (d) of this section, then zero points shall be added to the total in subparagraph (I) of this paragraph.

      11. (K) If the total in subparagraph (J) of this paragraph is greater than zero, then:

          1. (i) subtract 1 point from the total in subparagraph (J) of this paragraph for each notice of an intended audit submitted to the agency during the compliance period; or

          2. (ii) if a violation(s) was disclosed as a result of an audit conducted under the Texas Environmental, Health, and Safety Audit Privilege Act, 74th Legislature, 1995, as amended, and the site was granted 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 (J) of this paragraph:

             1. (I) the number of major violations multiplied by 5;
             2. (II) the number of moderate violations multiplied by 3; and
             3. (III) the number of minor violations multiplied by 1.
      12. (L) The result of the calculations in subparagraphs (I) - (K) of this paragraph shall be divided by the number of investigations conducted during the compliance period plus one. 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. All sites with a classification of "average performer by default" are assigned 3.01 points.
      13. (M) If the person receives certification of an environmental management system (EMS) under Chapter 90 of this title (relating to Regulatory Flexibility and Environmental Management Systems) and has implemented the EMS at the site for more than one year, then multiply the result in subparagraph (L) of this paragraph by 0.9.

   2. (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:

      1. (A) fewer than 0.10 points--high performer;
      2. (B) 0.10 points to 45 points--average performer; and
      3. (C) more than 45 points--poor performer.

   3. (3) Mitigating factors. The executive director shall evaluate mitigating factors for a site classified as a poor performer.

      1. (A) The executive director may reclassify the site from poor performer to average performer with 45 points based upon the following mitigating factors:

         1. (i) other compliance history components included in §60.1(c)(10) - (12) of this title;
         2. (ii) implementation of an EMS not certified under Chapter 90 of this title at a site for more than one year;
         3. (iii) a person, all of whose other sites have a high or average performer classification, purchased a site with a poor performer classification or became permitted to operate a site with a poor 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
         4. (iv) voluntarily reporting a violation to the executive director that is not otherwise required to be reported and that is not reported under the Texas Environmental, Health, and Safety Audit Privilege Act, 74th Legislature, 1995, or that is reported under the Texas Environmental, Health, and Safety Audit Privilege Act, 74th Legislature, 1995 but is not granted immunity from an administrative or civil penalty for that violation(s) by the agency.

      2. (B) When a person, all of whose other sites have a high or average performer classification, purchased a site with a poor performer classification or became permitted to operate a site with a poor 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:

         1. (i) shall reclassify the site from poor performer to average performer with 45 points until such time as the next annual compliance history classification is performed; and
         2. (ii) may, at the time of subsequent compliance history classifications, reclassify the site from poor performer to average performer with 45 points based upon the executive director's evaluation of the person's compliance with the terms of the compliance agreement.
6. (f) Person classification. The executive director shall assign a classification to a person by averaging the site ratings of all the sites owned and/or operated by that person in the State of Texas.
7. (g) Notice of classifications. Notice of person and site classifications shall be posted on the commission's website within 30 days after the completion of the classification.

Source Note:The provisions of this §60.2 adopted to be effective August 29, 2002, 27 TexReg 7824.