Non-Compliance History: Part II

TCEQ's Commissioners plowed end all remaining items on the compliance history constituents classification, and use sections of the Enforcement Proces Review upon September 16 (while Mexicans were celebrating their independence from of that kind bureaucratic nightmares?), resolving some issues and leaving others for further bickering. They also agreed to grasp public meetings with stakeholders to examine to iron out the sum of two units biggest issues on the table at the start of the day -

* what is a repeat violator.

* what is the right formula for calculating compliance history classification.

The forthcoming public meeting will NOT include the general discussions of the penalty policy dominations - but the Commission opt to begin a separate put of public meetings to bring stakeholders back to the table to take upon those weighty matters. Intertwined as the compliance history issues are with unravelling of a penalty policy by dint of rule, it will be interesting to diocese what comes of all these head scratchings. The idea is to earn moving rapidly so that the penalty policy controls can be formally proposed before all the rife Commissioners retire (and all the stakeholder negotiators).

Picking up where they had left not upon a month ago, the Commissioners did analyze some lesser issues before them, mainly using as a yardstick the general [i]or[/i] abstract notion that there should be maximum flexibility for them to make decisions - not hard, cooled formulas that would bind them and leave them without discretion.

The Commission agreed that owed process rights are not affected by means of the classification process, and that staff are not required to support any specific comments in addition to the compliance history rating that displays how they arrived at that rating. They also agreed that data access must be fast and accurate in order to maintain the confidence horizontals in the compliance history rating scheme. They also agreed that compliance history has a drift in both permitting actions that require notification and substantive review and decisions and in compliance and enforcement actions as well as for prioritizing inspections.

Staff admitted that there has been inconsistency in the use of compliance history among TCEQ programs and pledg to exhibit policy to resolve this riddle While TCEQ has no obligation to contact regulated entities when their compliance history score is nearing the lowest classification, the agency actually does call small businesses and small local regulations in the hope that alerting them to the situation may proceed in improved compliance performance.

upon a weighty matter, staff asked whether compliance history is being adequately used for imposing additional monitoring conditions, standardized permit conditions, or stronger compliance standards and whether compliance history should be used for reopening a permit for a repeat violator or poor performer. The Commissioners again indicateed that the former be utilized upon a case-by-case basis, in that a certain quantity of permits are amenable to additional conditions while others are not.

It was generally conced that ordering provisions in an enforcement case may bring quicker springs than requiring permit changes (which can be a actual lengthy process if the changes are contested)

upon the issue of whether repeat violators should be denied permits outright, rife rules (backed by the statute) require denial or suspension of general permits for waste discharges and flexible permits - or when the someone has an unacceptable compliance history based upon violations constituting a recurring pattern of direction that demonstrates a consistent disregard for the regulatory proces including a failure to make a timely and substantial attempt to correct the violations.

on the other hand what is the definition of "recurring pattern of conduct" or of "consistent disregard," or flat "unacceptable"? Staff wanted to interpret this terminology to include mandatory denials in at least the following scenarios:

* the applicant is fix to be a repeat violator and the repeated violations are major.

* the violations include emissions or discharges that artificial position an imminent threat to public health or welfare.

* the application is for facilities that would authorize emissions or discharge of specific contaminants in an area identified as an area of pertain to for those contaminants.

Chairman Kathleen Hartnett White was adamant that she could not accept the conception that TCEQ can clearly define the horizontal of compliance history that should trigger the possible denial of a permit or authorization to operate, and that like consideration should be triggered when the applicant's compliance history is rated "poor." She said she was "seriously opposed" to automatic triggers. Commissioner Ralph Marquez agreed, stating that those are matters for the Commission to decide. He deposit it bluntly, "we will know when we have individual of them in front of us."

upon the other hand, the Commissioners agreed that they could decide to close up down a facility or to annul its authorization to operate based partly or entirely upon its compliance history. More importantly, they agreed that compliance history should be considered early in the permitting proces on the other hand that there should be no automatic trigger to cease processing an application solely upon the grounds of compliance history.