Non-Compliance History?

Early in the initial 2-hour work session in which the TCEQ Commissioners began to address the compliance history composings of the agency's enforcement proces review, Commissioner Larry Soward observ that what TCEQ ought to be focusing upon is compliance rather than non-compliance. Soward, noting that the enabling statute talks about compliance, nevertheless agreed with his colleagues that it would be too complicated at this time to refocus constituents of compliance history calculation upon compliance.

The Commissioners got [i]or[/i] part of to the other only a third of the compliance history items identified in last year's enforcement review, and opt not to finalize any of their decisions upon grounds that things could change upon a particular item as they evaluate policy options for the remaining items upon the list. This does not mean that significant decisions were not at least tentatively made.

To start with, the panel agreed that all notices of violation (except verbal NOV's) and notices of enforcement should be considered as composings of compliance history, a policy change that would require rulemaking if finalized. Self-reported violations should also be included as constituents but the Commissioners at first were not comfortable with counting discharge monitoring reports until TCEQ or EPA takes action upon the report. Commissioner Ralph Marquez, however, press outed concern that there might be unintended effects Larger entities might benefit, while smaller singles might be hurt, by counting DMR's beneath the current formula.

Marquez also questioned the wisdom of penalty reductions against entities with a immense accumulation of DMR's, and said TCEQ necessitys to find ways to streamline the proces of reviewing DMR's that eliminates inequities. He also said that TCEQ policy could rise in facilities having a better compliance history rating after being issued an enforcement order. single aspect of this issue that was resolv was that nonprofit entities should be treated the same as other entities with regard to the inclusion of self-reported violations.

The Commissioners then quickly agreed that there should not be a doorsill established for violations and NOV's before they are numbered in compliance history (such that minor violations are still counted); that fresh and one-time violations should be counted; that there is already a mechanism for removing invalid violations; and that alleged violations contained in NOV's, NOE's, and 1660-style orders should number So should site assessments, file and record reviews, and compliance investigations.

The nearest bombshell was an admission that investigations are not defined in a consistent manner because an "investigation" is used differently in the compliance history connection than under the regional office strategic protocol. Staff had insinuateed redefining the compliance history definition of "investigation" for a like reason that it mirrors the regional office definition. Commissioner Soward argued that TCEQ urgencys a definition of "investigation" that applies to compliance history in all programs - and that the not absent field office definition does not wholly fit the real-world scenario.

flat more interesting was the discussion of whether compliance history should be based upon a person and not the specific site and solitary on the current person or operator and not the previous individual or operator. The statute requires developing compliance history for the one and the other the person (owner or operator) and the site. on the other hand Commissioner Soward argued that it is far too easy to change ownership (for example, by dint of incorporating) and thus erase a poor compliance history rating with single of average by default. The site's rating would remain.

All agreed that plant managers would not be thinked to be operators, unlike those who operate gasoline dispensing facilities. TCEQ does have in place a provision for a "white knight," a fresh owner typically operating under a compliance agreement who has purchased a facility with a troubl past. White knights may be liable for ongoing violations if they fail to adapted milestones under such agreements, where they exist. This is similar to the case of temporary managers and flat receivers appointed to oversee abandoned or mismanaged water and wastewater facilities, leave out that temporary managers and receivers are not perceived by the agency of TCEQ as "operators" and no compliance history will be attached to them.

The panel quickly agreed that violations that proceed from "acts of God" should not number towards a compliance history, and that there is no ne for a brief narrative of a facility's violations in the compliance history summary. They also agreed to continue the practice of using a 5-year review period from the date TCEQ initiated a permitting or enforcement action (rather than the date of the alleged enforcement violation). Commissioner Soward remained belong toed however, that TCEQ should be able to consider novel violations after the initiation of enforcement. individual way this is sometimes done is through grouping new violations together with already identified violations in a combined enforcement action. Similarly, there are informal ways TCEQ addresses of recent origin violations while reviewing permitting applications. Staff explained, however, that these late-breaking violations are not added to the compliance history level though they may make a difference in the penalty calculation (for example, they could be overlayed under other factors as justice may require or smooth through negating good faith efforts).