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Did you know that new environmental compliance history ratings for Texas facilities are posted on the Internet each Friday? The Texas Commission on Environmental Quality (formerly the Texas Natural Resource Conservation Commission) assembles detailed compliance histories for regulated sites and operators and makes them available to the public upon request. When the commission completes a compliance history, it calculates a compliance history rating of high, average or poor performer for each site, and as an average for companies with more than one site. As the ratings are completed, TCEQ posts them on the Internet. Such information can significantly impact a company’s public relations and marketing. In addition, compliance histories will be factored into the commission’s decisions on permits and enforcement orders. The new compliance history program, required by Subchapter Q of Chapter 5 of the Texas Water Code, requires the commission to assemble site-by-site information for the past five years regarding inspections, violations, and state and federal orders. Using these data, the commission calculates the numerical compliance history rating scores using factors that include the following: � the seriousness and type of violation (whether major, moderate or minor); � whether the violator is a repeat violator (within the rolling five-year compliance history review period); � the complexity of the site (e.g., an industrial waste disposal site has a higher complexity rating than an air emissions source subject to a permit-by-rule); and � the size of the site and the number of sites owned by each operator. Posted scores range from 0 to 407. The TCEQ ranks scores below 0.1 as high and above 45 as poor. To date, about 30 percent of the assigned ratings are high performers; only 2 percent are poor performers. Within the rating process, which is found in Chapter 60 of Title 30 of the Texas Administrative Code, downward adjustments to the numerical score are applied for certain factors, e.g., for violations voluntarily disclosed under the Texas Environmental Health and Safety Audit Privilege Act and for implementing an environmental management system that has been certified under the commission’s rules. The list of completed compliance history ratings can be found at www.tnrcc.state.tx.us/enforcement/compl_histories.html. The TCEQ updates the list every Friday, and the commission plans to complete all compliance histories and ratings by Sept. 1, 2003. To obtain a detailed compliance history report for any company or site on the list, follow the e-mail instructions on the commission’s Web site. Because operators cannot participate in the rating process and will not be separately notified when their rating is published, they should check the listing weekly. Limited avenues are available for contesting or correcting a rating. A smart operator will evaluate and try to predict its ratings prospectively and may even be able to perform an audit or take other steps that will improve its rating before it is calculated and published by the commission. Susan Zachos is the head of the environmental and administrative law practice and a director in the Austin office of Kelly, Hart & Hallman.

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