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On January 14, 2026, the Texas Commission on Environmental Quality (TCEQ) adopted revisions to its compliance history rating scheme. Prompted by the Texas Sunset Advisory Commission's 2022 10-year review of TCEQ, the adopted rule aims to satisfy recommendations to update the compliance rating formula to more accurately reflect a site's level of compliance. Instead of three categories and an annual update to ratings, the rule adds five new "complexity" levels for triggering classification as a repeat violator and requires semiannual updates to a site's compliance rating.
TCEQ expects to publish the adopted rule in the January 30, 2026 edition of the Texas Register and for it to become effective February 5, 2026. Under the new rule, TCEQ will update compliance history ratings at the first mass classification run in 2026 or September 1, 2026, whichever occurs first. The version of Chapter 60 in effect at the time a permit application is received will be the version TCEQ uses for compliance history purposes. TCEQ expects the Executive Director to develop a policy that addresses updates to the second mass compliance history classification, the repeat violator exemption process, the application of mitigating factors, and the inclusion of repeat violator classifications in compliance history.
Snapshot of Key Changes and Impacts
- TCEQ will now evaluate and classify a site's compliance history twice a year: on March 1 and September 1.
- The initial enforcement screening date—rather than the date of an enforcement settlement offer or petition—marks the start of the five-year compliance review period for an enforcement action.
- TCEQ's new formula includes all moderate and minor violations and repeat similar violations, meaning sites are more likely to accumulate points that hit repeat violator thresholds.
- The more complex the site, the higher the repeat violation
point threshold.
- Each regulated entity will fall into one of five "complexity point categories."
- Total "repeat violation points" determine whether a regulated entity is under or over repeat violator classification thresholds assigned to the entity's complexity point category.
- If the Executive Director grants a mitigation factor, she will adjust a site's compliance rating from unsatisfactory to satisfactory, but the point total will be marginally below the unsatisfactory threshold.
- Sites that appeal compliance history determinations will use a new form, the Advanced Review of Compliance History.
- Although this rulemaking did not change existing Sections 60.3 or 60.4, the new repeat violator points, thresholds, and complexity levels place new focus on how the Commission uses a site's compliance history rating. We expect TCEQ will continue to use a site's compliance history in permitting actions, conduct more inspections, and impose higher administrative penalties.
Recommended Best Practices for Regulated Entities
Compliance is Your Best Defense
A new year is a fresh opportunity to get the house in order and take actions to enhance performance. Pay attention to quickly and comprehensively addressing root causes for all violations. In addition to major violations, repeat minor or moderate violations will now impact a site's repeat violator threshold. Documentation to support compliance determinations, efforts to reduce all violations, especially repeat violations, and ensuring complete task coverage across facility operations can serve to rebut or mitigate alleged violations.
Determine Your Site's Complexity Threshold
Based on your site's complexity point assessment, determine the relevant complexity point thresholds for high performer, satisfactory performer, and unsatisfactory performer, found in Section 60.2(g)(2) of the adopted rule. Determine the site's applicable point value under which it would avoid repeat violator status under Section 60(f)(3) of the adopted rule.
Conduct an Audit
Whenever feasible, take advantage of the Texas Environmental, Health, and Safety Audit Privilege Act and our audit tips to maximize the value of a properly conducted audit and assess and identify potential areas of noncompliance. Disclosing violations and completing corrective actions helps avoid exposure to agency and citizen enforcement and mitigates the impact on a site's compliance history rating.
Prepare for Advanced Review
Ensure that the site registers for Advanced Review if portions of the assessment warrant disputing and re-review. Once TCEQ assigns a site a compliance history rating, the company has 30 days before TCEQ posts the classification online to request the Agency to review a repeat violator classification, reclassification, exemptions, and/or mitigating factors.
Background
The Texas Sunset Advisory Commission (Sunset Commission) evaluates state agencies and issues recommendations for legislative consideration. In its 2022 report, the Sunset Commission identified certain issues with TCEQ's compliance history rule. The Sunset Commission recommended TCEQ update its compliance history program by requiring the agency to (1) consider "major, moderate, and repeat occurrences of the same minor violations;" overall site complexity; and "cumulative violations of multiple violations of the same type;" and (2) "regularly update an entity's compliance history rating throughout the year as the agency receives additional information that could alter the rating." The Commission also instructed TCEQ to analyze whether its current formula allows for comparing of similarly complex facilities and to consider all violations at a site when determining a repeat violator classification.
The Texas Legislature implemented the Sunset Commission recommendations through Senate Bill (SB) 1397, which amended Texas Water Code Section 5.574 and became effective on September 1, 2023. The amendments require TCEQ to establish criteria for classifying repeat violators by "setting the number of major, moderate, and minor violations needed to be classified as a repeat violator." The amendments also authorized the TCEQ Executive Director to "review, suspend, or reclassify a person's compliance history in accordance with commission rules if the executive director determines that exigent circumstances exist."
On June 20, 2025, TCEQ proposed amendments to Sections 60.1 and 60.2 of Title 30 of the Texas Administrative Code to implement statutory changes. The proposed rule also incorporated non-statutory managerial recommendations regarding the new compliance history rule scheme. The adopted rule is largely the same as the proposed rule, except for an increased number of categories used to determine a regulated entity's repeat violator status. The adopted rule's effective date will be either at the first mass compliance history classification run in 2026 or September 1, 2026, whichever occurs first.
Key Rule Changes
More Frequent Compliance History Updates
The adopted rule changes the frequency of compliance history evaluations in Section 60.2(a) from annually to semi-annually. Going forward, TCEQ will evaluate and classify a site's compliance history on March 1 and September 1 of each year.
More Repeat Violations Considered
In its new formula, TCEQ will evaluate all major, moderate, and minor violations of the same nature and environmental media that occur during the five-year compliance period. Previously, TCEQ only evaluated major violations of the same nature and environmental media that occurred during the compliance period. Additionally, TCEQ will no longer consolidate all repeat instances of similar violations as one violation in a final enforcement order. Now, TCEQ will consider each repeat violation in calculating repeat violator status.
New Repeat Violator Points, Thresholds, and Complexity Levels
During the five-year compliance history period, TCEQ's new formula assesses "repeat violation points" for each violation of the same nature and same environmental media included in any final enforcement order, court judgment, or criminal conviction at least three times. The number of points assessed depends on the violation's classification. Minor violations receive 2 points, moderate violations receive 10 points, and major violations receive 50 points. The points assessed to a site during the five-year period are totaled to determine whether the site exceeds the repeat violator threshold for the complexity point category applicable to the site.
The adopted rule creates five complexity point categories for reaching repeat violator designation:
| Complexity Points | Repeat Violator Threshold |
|---|---|
| 0–14 | ≥ 150 |
| 15–29 | ≥ 250 |
| 30–44 | ≥ 350 |
| 45–59 | ≥ 450 |
| ≥ 60 | ≥ 550 |
Advanced Review Period
The new amendments remove the requirement to submit a Compliance History Review Form and replace it with registration for the Advanced Review of Compliance History. Advanced Review will allow sites to review the pending components of their compliance history rating before publication of the scores and classifications to TCEQ's website. During this review period, a site may contest portions of its classification by requesting reclassification of violations and review of repeat violator designation. Sites may also request application of exemptions or mitigating factors during the Advanced Review period.
Enforcement "Lookback" Date Changed
The adopted rule changes the compliance period "lookback date" for enforcement screenings. The five-year period now begins on the date of an initial enforcement screening, rather than the date TCEQ sends an enforcement settlement offer or petition. TCEQ made this change to more closely reflect a site's performance at the time violations were documented, as opposed to several months later when TCEQ may mail a proposed settlement offer or petition. This change means that a site's compliance history will remain the same during negotiation of any proposed agreed orders or a petition.
Expected/Potential Impacts
TCEQ's new complexity point categories aim to apply a more proportionate compliance history assessment. The revised rating scheme aims to more accurately assess compliance history and better reflect the diverse types of entities statewide. While the adopted rule requires TCEQ to begin applying the new complexity point classifications and related repeat violator point thresholds no later than September 1, 2026, how the calculations will compute with various changed inputs remains uncertain.
Building a compliance culture, heightened attention to noncompliance, and timely implementation of corrective actions help protect against the potential for recurring violations. We routinely assist clients with Texas Audit Act audits and disclosures, and compliance and enforcement counseling. Please feel free to reach out to us with questions or to discuss how we can support your compliance strategy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
