August 12, 2022

Volume XII, Number 224

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TCEQ Approves Changes to Compliance History Rules Focused on Industrial Incidents

Prompted by several emergency events, as previously reported, on June 1, 2022, the Texas Commission on Environmental Quality (TCEQ) adopted revisions to the compliance history rules to authorize the executive director to reclassify a site’s compliance history if an “exigent circumstance” exists. An exigent circumstance is defined as: i) a significant disruption to one or more local communities; ii) a significant commitment of emergency response resources by a federal or state authority to address an actual unauthorized release of pollutants, contamination, or other materials regulated by the agency; and iii) a significant event the commission determined must be urgently accounted for in the site’s compliance history.

New 30 TAC 60.4 adds a process for the executive director to reclassify a site’s compliance history. If all three elements exist, the executive director has no sooner than 30 days and no later than 90 days to designate a site’s classification as “under review”, effective immediately. The executive director then has 90 days to initiate reclassification, beginning with a Notice of Designation provided to the owner and operator of record in the agency files which can conclude with reclassification as “suspended.” During this time the site’s owner or operator will have the opportunity to demonstrate to the executive director that reclassification to suspend is not warranted. In addition, an appeal process is provided through a Motion for Commission Review of the Executive Director’s Decision. The decision of the TCEQ then becomes a final agency action appealable in a court of law. The reclassification is effective for at least one year and will impact permitting and enforcement decisions.

The agency intends for the reclassification to be instituted in response to extraordinary circumstances. Minor modifications were made in response to comments including notice requirements and clarification of triggering scenarios. The final rules will be republished in the Texas Register and will become effective June 23, 2022. 

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XII, Number 165
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About this Author

Partner

Lisa's practice focuses on environmental, health and safety counseling, compliance and liability. She has extensive experience analyzing environmental, health and safety issues associated with corporate and securities matters as well as transactions involving contaminated properties including Brownfield redevelopment. Lisa works with a broad array of industries from chemical and semiconductor companies to the full spectrum of energy companies from coal and oil and gas to renewables and clean fuels such as solar, wind and bio mass projects. She has worked with industry associations and...

512-320-9222
Lydia González Gromatzky, Andrews Kurth Law Firm, Environmental Attorney "
Of Counsel

Lydia has a broad-based regulatory, transactional and litigation practice involving domestic and Latin American environmental law. She has extensive experience advising clients on permitting, compliance, enforcement and remediation matters.

She has represented national and international clients in a wide range of industry sectors, including energy, chemical manufacturing and electronics companies, on waste, water and air regulatory issues. She has also counseled multi-national companies and trade associations on compliance and regulatory issues arising under Latin American domestic...

512-320-9231
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