Compliance - TCEQ posts Facility Ratings under Compliance History Rules - 10/22/2002

10/22/2002

The Texas Commission for Environmental Quality (“TCEQ”) is in the process of evaluating regulated facilities under its new Compliance History rules.  30 TAC Chapter 60.  The rating the TCEQ assigns your facility is important because it will be considered in permitting, enforcement, and inspection decisions. The adverse consequences of a "poor" classification are many and may include unannounced TCEQ inspections, additional and more burdensome permit conditions, denial of permits (reserved for extreme situations), inability to use flexible permits or other innovative regulatory flexibility programs, enforcement for violations that ordinarily would not have warranted enforcement, and more severe penalties for non-compliance.

The TCEQ rules specify both the various events (such as notices of violation, agreed orders, and court judgments) that will be used to develop the compliance history classification and a complicated formula that generates a number that is your compliance history rating.  Based upon that rating, you are classified as high, average, or poor performer.  Lower numbers are what you want to achieve.  Classifications are done both for each site where there is a regulated activity and company-wide.

TCEQ is now posting facility ratings, and deadlines for appeals already have started running.  New ratings and classifications are added to the TCEQ website every Friday.  The updating of the website is the only "notice" that is being provided.  It is important to regularly check the TCEQ website to find your facility’s evaluation.

If you disagree with a rating, you have two options under the rules.  If there is a "clerical" error (typographic, math), you may seek to have it corrected at anytime.  Otherwise, the only option is to appeal the classification.  The rules allow appeals only if you are classified as a poor performer or an average performer with a rating of 30 points or more.  The appeal must be filed within 45 days of the website posting of your rating.

We have attached below a link to the TCEQ web page for compliance history.  You can link from there to see the actual ratings/classifications.  We expect that there will be a lot of mistakes given the magnitude of this new program, so it is advisable to obtain the detailed calculations for each of your rated sites and determine whether an appeal or clerical correction is warranted.

The TCEQ link is at: http://www.tnrcc.state.tx.us/enforcement/person.pdf

If you have questions, please contact your Haynes and Boone environmental lawyer.

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