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Texas SIP: 30 TAC 116.14. Compliance History Requirements; SIP effective 1997.10.20 TXc97

Regulatory Text: 
Section 116.14.  Compliance History Requirements
As adopted by TACB October 16, 1992, effective December 9, 1992 (6-30).
Approved by EPA 09/27/95 (60 FR 49788) at 52.2270(c)(97) effective 11/27/95. (TXd97)

  (a) Definitions. 

     Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Commission, the terms used by the Commission have the meanings commonly ascribed to them in the field of air pollution control.  In addition to the terms which are defined by the TCAA, the following terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. 

     Adjudicated decision - Any conviction, final order, judgment, or decree as follows:
        (1) a criminal conviction of the applicant in any court for violation of any law of this state, another state, or of the United States (U.S.) governing air contaminants; 
        (2) a final order, judgment, or decree of any court or administrative agency, or agreement entered into settlement of any legal or administrative action brought in a court or administrative agency, addressing:
           (A) the applicant's past performance or compliance with the laws and rules of this state, another state, or of the U.S. governing air contaminants; or 
           (B) the terms of any permit or order issued by the Commission; or
        (3) an order of any court or administrative agency, whether final or not, respecting air contaminants for the facility that is the subject of the permit application. 
 
     Compliance event - An adjudicated decision or compliance proceeding as defined in this subsection.
 
     Compliance history - The record of an applicant's observance of air pollution control laws and rules of the State of Texas, other states, and of the U.S.  Except as provided in subsection (e) of this section, the history shall be for the five-year period prior to the date on which the application for issuance, amendment, or renewal is filed.  The compliance history shall include all compliance events, as defined in this subsection. 
 
     Compliance proceeding - A notice of violation issued by TNRCC or other agency for which TNRCC has recommended formal enforcement action and has notified the applicant of such recommendation.
 
     Existing site - A plant property that is not a new site. 
 
     New site - A plant property having an operating history less than five years in length as of the date of application.
 
     Public notice - The public notice of application for a permit as required by §116.10(a) of this chapter.

 
  (b) Applicability of Compliance History Requirements. 
 
     (1) Except as provided in subsection (c) of this section, as part of its construction permit review, or the review of an amendment, or renewal of an existing permit, Texas Natural Resource Conservation Commission (TNRCC) shall compile the following information: 
 
        (A) for a new facility at an existing site or for an amendment or renewal of an existing permit, the compliance history for the existing site;
 
        (B) for a new facility at a new site, compliance history on similar facilities, if any, owned or operated by the applicant in Texas.  The TNRCC may require the applicant to indicate which facilities the applicant considers to be similar. 
 
     (2) For a facility at a new site, if the applicant does not own or operate a similar facility in Texas, the applicant shall provide the TNRCC with a compliance history for similar facilities owned or operated by the applicant in other states. 

 
  (c) Compliance History Exemptions. 

     The TNRCC shall not be required to compile a compliance history where the total increased actual emissions of any specific contaminant (specific substance, e.g., benzene, arsenic, etc.) from the facility or site will be accompanied by greater than a 1.1 to 1 reduction of the same specific air contaminant (specific substance, e.g., benzene, arsenic, etc.) from the facility or site. 

 
  (d) Contents of compliance history.
 
     (1) The compliance history shall include a listing of all adjudicated decisions and compliance proceedings, as defined in this section, involving the facility that is the subject of the permit application. 
 
     (2) If the applicant has no compliance history in the U.S., then the applicant shall provide TNRCC with a compliance history for any similar facilities owned or operated by: 
        (A) a person who is presently an officer, director, or agent of the applicant;
        (B) a parent corporation, subsidiary, or predecessor in interest of the applicant; 
        (C) one who owns 20 percent or more of the applicant, whether directly, as a shareholder, partner, beneficiary, or otherwise; or  
        (D) one who controls the applicant or has the ability to direct the conduct of the applicant. 
 
     (3) The compliance history shall include the following compliance events and associated information:  
        (A) for Texas facilities:  
           (i) criminal convictions known to TNRCC and civil orders, judgments, and decrees identified by stating:  
              (I) the style of the case;  
              (II) the tribunal issuing the conviction or judgment;  
              (III) the docket number and the date of action; and 
              (IV) the general nature of the alleged violation;  
           (ii) administrative enforcement orders identified by stating:  
              (I) the name or style of action;  
              (II) the agency issuing the order;  
              (III) the docket number and the date of the order; and  
              (IV) the general nature of the alleged violation;  
           (iii) compliance proceedings identified by stating: 
              (I) the name or style of action; and  
              (II) the general nature of the alleged violation; 
        (B) for United States facilities outside Texas: 
           (i) criminal convictions and civil judgments identified by stating: 
              (I) the style of the case;  
              (II) the tribunal issuing the conviction or judgment,  
              (III) the docket number and date of action; and 
              (IV) the general nature of the alleged violation; 
           (ii) administrative enforcement orders identified by stating: 
              (I) the name or style of action; 
              (II) the agency issuing the order; 
              (III) the docket number and the date of the order; and 
              (IV) the general nature of the alleged violation; 
           (iii) for Notices of Violation issued by the U.S. Environmental Protection Agency (EPA):
              (I) the name of the action; 
              (II) the EPA identification number and date of notice; and  
              (III) the general nature of the alleged violation. 
 
     (4) In compiling the applicant's compliance history pursuant to subsection 116.14(b), the TNRCC shall not include the following:  
        (A) violations of fugitive emission monitoring and recordkeeping requirements imposed either by §101.20(1) and (2) of the general rules of the TNRCC, or  
        (B) State Implementation Plan requirements applicable to major sources in nonattainment areas where:  
           (i) violations occurring after the effective date of this rule have been the subject of a TNRCC administrative enforcement action and the Commission classified those violations as not being subject to compliance history review; or  
           (ii) violations occurring during five years preceding the effective date of this rule that have been the subject of TNRCC administrative enforcement action in which: 
              (I) the TNRCC did not classify those violations as either major seriousness or major impact for the purpose of administrative review; and 
              (II) the Commission assessed a total administrative penalty of less than twenty thousand dollars ($20,000) for any of those violations
 
     (5) The TNRCC may request an analysis of the significance of any of the compliance events identified in the compliance history and their relevance to the facility that is the subject of the application.  The TNRCC request shall list specific compliance events requiring such an analysis. 

 
  (e) Effective Dates. 

      The requirements of this section apply only to applications filed on or after the effective date of this section.  For applications filed before June 1, 1993, neither the TNRCC nor the applicant is required to include compliance events occurring before June 1, 1988.  For applications filed on or after June 1, 1993, neither the TNRCC nor the applicant is required to include compliance events occurring more than five years prior to the date on which the application is filed. 

 
  (f) Public notice of Existence of Compliance History. 

      When public notice is required pursuant to §116.10(a)of this chapter, the applicant shall include the following statement in the notice: "The facility's compliance file, if any exists, is available for public review in the regional office of the TNRCC." 


  (g) No Derogation of Existing Rights and Procedures.

      Nothing in this subsection shall diminish the rights of any party in a contested case hearing to raise any issue authorized by §382.0518(c) of the Texas Health and Safety Code, nor diminish the rights of any person to request and obtain compliance history information from TNRCC.  Nothing in this subsection shall limit the authority of the Commission to request and consider any other information that is relevant to the application under the law.  Nothing in this subsection shall create any right in third parties which did not exist before the effective date of this subsection.
 

  (h) Voidance of Permit Applications. 

      If an applicant does not submit data within 180 days, as requested, the TNRCC will void the permit application.  The applicant will also forfeit the fees associated with the permit application.  A new permit application shall be required for further consideration by the TNRCC. 
 
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