compliance history karen berryman texas commission on environmental quality (tceq) austin, texas...

Compliance HistoryCompliance History

Karen Berryman

Texas Commission on Environmental Quality (TCEQ)

Austin, Texas

October 17, 2002

Compliance History:Compliance History:30 TAC Chapter 6030 TAC Chapter 60

A Brief HistoryA Brief History

House Bill (HB) 2912 (or the Sunset Bill)Two Phases of CH rulemaking

– Phase I: Components of CH, Effective 2/1/02– Phase II: Classification and Use of CH,

Effective 9/1/02


A Brief OverviewA Brief OverviewComponents Include:

– Positives: environmental Audits, EMSs, voluntary compliance assessments, voluntary pollution reduction programs, early compliance

– Negatives: NOVs, enforcement orders, court judgments, consent decrees, criminal convictions, environmental enforcement actions in other states


A Brief OverviewA Brief Overview

CH and Classifications of sites and persons– As needed for agency decisions beginning 9/01/02– Annually, for all sites and persons, beginning 9/01/03

Classifications include High, Average, and Poor Inadequate Information: Average by Default Violations Designated as Major, Moderate, or

Minor


A Brief OverviewA Brief OverviewRepeat Violator Designation (by site)

– Based on four criteria Complexity of site (types of permits) Number of sites in Texas Size of site (FINs, WQ Outfalls, AHWMUs) Location of site (in non-attainment area)

– Determined by number of: criteria points; and Major Violations during CH period



Repeat Violator:– Major Violation does not have to be the same

violation; rather, any violations designated Major

– There is an exemption provision

Compliance History:Compliance History:Site Rating Formula:

(Violation pts1) + (RV pts2) - (Env Audit pts3)

(No. of investigations4 + 1) X (0.9 if Cert. EMS5)

1Points for maj/mod/min violations in NOVs, orders, etc, as per §60.2(e)(1)(A) - (H), as totaled in §60.2(e)(1)(I).2500 points if the site is designated a repeat violator (RV) under §60.2(d); otherwise, 0 points, per §60.2(e)(1)(J)3If the total in §60.2(e)(1)(J) > 0, then subtract any applicable points for environmental audits, per §60.2(e)(1)(K)4Per §60.2(e)(1)(L), which provides def. of "investigation" (excludes those initiated through citizen complaints)5If the person receives certification of an EMS under Chapter 90 (relating to Reg. Flex. and EMSs) and has implemented the EMS at the site > one year, then multiply total by 0.9, per §60.2(e)(1)(M)



Point Ranges:– Fewer than 0.10 points – High Performer– 0.10 points to 45 points – Average Performer– More than 45 points – Poor Performer



Mitigating Factors:– Only considered for sites classified as “poor

performer” based on the formula The Executive Director shall consider The Executive Director may reclassify based upon



Mitigating Factors Include:– compliance history components in §60.1(c)(10) - (12)

Voluntary on-site compliance assessments conducted by the ED under a special assistance program

participation in a voluntary pollution reduction program a description of early compliance with or offer of a product that meets

future state or federal government environmental requirements

– EMSs not certified under Chapter 90



Mitigating Factors Include (cont.):– 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 ED regarding

actions to be taken to bring the site into compliance prior to 9/1/02



Mitigating Factors Include (cont.):– voluntarily reporting violations not otherwise required to be

reported (other than under the Environmental Audit Act), or reporting under the Environmental Audit Act but not being granted immunity from an administrative or civil penalty for that violation(s) by the agency.


A Brief OverviewA Brief Overview Mitigating Factors Include (cont.):

When a person– all of whose other sites are high or average– purchased a site with a poor classification– contemporaneously entered into CA with ED regarding actions to be taken to bring

the site into compliance, the ED: shall reclassify site from poor to average with 45 points until next annual CH classification

performed; and may, in subsequent CH classifications, reclassify the site from poor to average with 45 points

based upon evaluation of compliance with terms of CA.



Person Classification– Determined by averaging the site ratings for all sites

owned or operated by a person in Texas– Note: When a site is classified as Average Performer

by Default, the site rating assigned is 3.01 points.



Notice of Classification:– Shall be posted on TCEQ website within 30 days

after completion of the classification



Use of Compliance History:– Permitting Decisions– Enforcement (modifications to Penalty Policy, eff. 9/1/02)– Investigations (unannounced for poor performers)– Innovative Programs (poor performers cannot participate in

regulatory flexibility programs or receive EMS incentives)



Penalty Policy Revision Considers:– Compliance History components (for the site under

enforcement - positives and negatives)– Repeat Violator designation (for the site)– Person Classification (can get upward or downward

adjustment to base penalty amount)



Appeal of Classification:– A person or site classification may be appealed only if the

person or site is classified as either a poor performer or average performer with 30 points or more.

– The appeal process is outlined in the rule.– The ED’s decision constitutes final and appealable action.– Any appeal of the ED’s decision must go to district court.


A Brief OverviewA Brief Overview During the pendency of an appeal to the ED or judicial

review of the ED's decision under this subsection, the agency shall not, for the person or site for which the classification is under appeal or judicial review:– conduct an announced investigation;– grant or renew a flexible permit under THSC, Chapter 382;– allow participation in the regulatory flexibility program under

TWC, §5.758; or– grant authority to discharge under a general permit under

TWC, §26.040(h).



Corrections of Classifications:– The ED, on his own motion or the request of any

person, at any time may correct any clerical errors in person or site classifications.

– Clerical errors include typographical errors and mathematical errors.

Compliance History:Compliance History:TCEQ PerspectiveTCEQ Perspective

Developed Rule based upon:– Directives given (legislation)– Examples (other states - nothing similar)– Limited time frame in which to develop– Resources and information available

TCEQ will modify the rule, if/as needed.


Key Issues:– Implementation of the rule– “The Button” (automated system: CCEDS)– Correction of errors– Working with Poor Performers– Monitoring implementation of rule– Resources


Current Status of Developing CHs and Expected Progress– Database(s)– Who is developing CHs now?– Who will ultimately develop them?


QA/QC and Guidance Materials for TCEQ Staff In Classifying Violations as Major/Moderate/Minor And Applying Other Aspects of the Rule– Which Authorizations Require a CH– Major/Moderate/Minor - violation designation– Penalty Policy


QA/QC and Guidance Materials– Enforcement Initiation Criteria (EIC)– Major/Moderate/Minor Violations (Ch. 60)– Penalty Policy

All are distinct, stand-alone documents.


How Can Companies Challenge NOVs Issued in 1999-2001?– Procedure in Phase I Adoption Preamble– Field Operations Division standardization efforts:

FODSOP EIC Training on Major/Moderate/Minor re: Violations


How Can Companies Challenge Their Classification? Two Avenues:– Corrections (“informal” - TCEQ error/oversight)– Appeals (“formal”)


Corrections:

Send letter (with accompanying documentation) to:

Ann McGinley, Director

Enforcement Division

TCEQ


Appeals:Send letter to the Executive Director:

ATTN: Ann McGinley, DirectorEnforcement DivisionTCEQ


TCEQ Point of Contact:– Karen Berryman

(512) [email protected] OR

– See TCEQ CH web page:http://www.tnrcc.state.tx.us/enforcement/compl_histories.html

compliance history karen berryman texas commission on environmental quality (tceq) austin, texas...

Documents

compliance history components

2e1m compliance history

tac chapter

brief overview ch

points poor performer

early compliance negatives

brief overview components

2e1m slide