The commission must create compliance-history standards and use them in permit and enforcement decisions; unsatisfactory histories trigger restrictions, and certain repeat violators can face enhanced penalties.
Sec. 5.754. CLASSIFICATION AND USE OF COMPLIANCE HISTORY. (a) The commission by rule shall establish a set of standards for the classification of a person's compliance history as a means of evaluating compliance history. The commission may consider the person's classification when using compliance history under Subsection (e). (b) Rules adopted under Subsection (a): (1) must, at a minimum, provide for three classifications of compliance history in a manner adequate to distinguish among: (A) unsatisfactory performers, or regulated entities that in the commission's judgment perform below minimal acceptable performance standards established by the commission; (B) satisfactory performers, or regulated entities that generally comply with environmental regulations; and (C) high performers, or regulated entities that have an above-satisfactory compliance record; (2) may establish a category of unclassified performers, or regulated entities for which the commission does not have adequate compliance information about the site; and (3) must take into account both positive and negative factors related to the operation, size, and complexity of the site, including whether the site is subject to Title V of the federal Clean Air Act (42 U.S.C. Section 7661 et seq.). (c) In classifying a person's compliance history, the commission shall: (1) determine whether a violation of an applicable legal requirement is of major, moderate, or minor significance; (2) establish criteria for classifying a repeat violator, including: (A) setting the number of major, moderate, and minor violations needed to be classified as a repeat violator; and (B) giving consideration to the size and complexity of the site at which the violations occurred, and limiting consideration to violations of the same nature and the same environmental media that occurred in the preceding five years; and (3) consider: (A) the significance of the violation and whether the person is a repeat violator; (B) the size and complexity of the site, including whether the site is subject to Title V of the federal Clean Air Act (42 U.S.C. Section 7661 et seq.); and (C) the potential for a violation at the site that is attributable to the nature and complexity of the site. (c-1) The executive director may review, suspend, or reclassify a person's compliance history in accordance with commission rules if the executive director determines that exigent circumstances exist. (d) The commission by rule may require a compliance inspection to determine an entity's eligibility for participation in a program that requires a high level of compliance. (e) The commission by rule shall provide for the use of compliance history in commission decisions regarding: (1) the issuance, renewal, amendment, modification, denial, suspension, or revocation of a permit; (2) enforcement; (3) the use of announced inspections; and (4) participation in innovative programs. (e-1) The amount of the penalty enhancement or escalation attributed to compliance history may not exceed 100 percent of the base penalty for an individual violation as determined by the commission's penalty policy. (f) The assessment methods shall specify the circumstances in which the commission may revoke the permit of a repeat violator and shall establish enhanced administrative penalties for repeat violators. (g) Rules adopted under Subsection (e) for the use of compliance history shall provide for additional oversight of, and review of applications regarding, facilities owned or operated by a person whose compliance performance is classified as unsatisfactory according to commission standards. (h) The commission by rule shall, at a minimum, prohibit a person whose compliance history is classified as unsatisfactory according to commission standards from obtaining or renewing a flexible permit under the program administered by the commission under Chapter 382, Health and Safety Code, or participating in the regulatory flexibility program administered by the commission under Section 5.758. (i) The commission shall consider the compliance history of a regulated entity when determining whether to grant the regulated entity's application for a permit or permit amendment for any activity under the commission's jurisdiction to which this subchapter applies. Notwithstanding any provision of this code or the Health and Safety Code relating to the granting of permits or permit amendments by the commission, the commission, after an opportunity for a hearing, shall deny a regulated entity's application for a permit or permit amendment if the regulated entity's compliance history is unacceptable based on violations constituting a recurring pattern of conduct that demonstrates a consistent disregard for the regulatory process, including a failure to make a timely and substantial attempt to correct the violations. Added by Acts 2001, 77th Leg., ch. 965, Sec. 4.01, eff. Sept. 1, 2001. Amended by: Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 4.05, eff. September 1, 2011. Acts 2023, 88th Leg., R.S., Ch. 1102 (S.B. 1397), Sec. 13, eff. September 1, 2023.