When it Rains, It Pours: Proposed Texas Commission on Environmental Quality Rule Could Make Compliance Harder After a Catastrophe


On December 15, 2021, the Texas Commission on Environmental Quality (TCEQ) proposed sweeping changes in response to several high profile emergency incidents that occurred at industrial facilities in the past few years.1  TCEQ has proposed adding a new section to Chapter 30 of the Texas Administrative Code (to be titled Section 30 TAC § 60.4), which would allow TCEQ to immediately re-designate a site’s compliance history classification as “under review,” and then to reclassify it to "suspended" 30 to 90 days later under certain circumstances.  To do this, TCEQ would need to determine that exigent circumstances exist.  This could include an incident like a major explosion or fire that significantly impacts the surrounding community and environment, triggers emergency response efforts by federal or state authorities to address materials regulated by the agency, and which ultimately results in certain urgent or grave consequences.

Dates to Know:

How the Changes Would Work:

  1. Under the proposed rule, TCEQ may immediately designate a site’s compliance status as “under review” if: (1) circumstances result in a significant disruption to one or more local communities; (2) the circumstances caused significant commitment of emergency response resources; and (3) the circumstances are “exigent”.

  2. After 91 days, the “under review” designation expires unless TCEQ initiates the process to reclassify.

  3. Once TCEQ starts the process to reclassify, TCEQ may change a facility’s compliance history classification to “suspended.” This decision must be made no sooner than 30 days and no later than 90 days after the site’s compliance history classification is designated as “under review.”

  4. TCEQ could then treat a “suspended” site consistent with a facility with an “unsatisfactory” 5 year compliance history.

  5. Once a site is classified as “suspended,” it must remain so for a year, and then until the earliest of when: (1) TCEQ provides a written determination that reclassification is no longer warranted; (2) an enforcement action arising from the event has been resolved; or (3) three years.

What These Changes Mean for the Industry:

What Can You Do?

Expect the Unexpected. If the rule passes as proposed, it will be more important than ever to be sure that your facility’s emergency plans account for any possible contingency.  This includes preparedness for the increasingly frequent extreme weather events that have been a trigger for some of the incidents giving rise to this proposed rule.

FOOTNOTE

1 https://www.tceq.texas.gov/rules/prop.html


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National Law Review, Volume XII, Number 7