October 16, 2021

Volume XI, Number 289

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The Texas Commission on Environmental Quality: What’s New and What to Expect [PODCAST]

On this episode of the Bracewell Environmental Law Monitor, host Daniel Pope is joined by Whit Swift for a discussion of developments at the Texas Commission on Environmental Quality (TCEQ).

What’s going on at the TCEQ with their rulemaking process?

We are seeing rule development at the TCEQ that has an environmental justice angle to it. It’s really based on the expansion of public notice requirements with regard to publishing notices in an alternative language. When you’re publishing a notice of a project — say authorizing a new greenfield site or making a change at an existing site, and this is under permitting for air, water or other media — there are public notices that are sent out. Back in 2019, this process actually started when the Sierra Club and an environmental justice advocacy group submitted a petition for rulemaking to the TCEQ about expanding the alternative language notice requirements. There have been some requirements to publish alternative language notices in certain circumstances when you’re getting permits from the TCEQ. What the TCEQ is doing right now is expanding the number of notices and the types of information that’ll have to be provided in an alternative language.

Do you think there’s going to be an issue down the road with project opponents looking at what’s described in this two-pager, plain-language summary and then taking a pretty thorough look at the project that’s been proposed in all of its detail and saying this is a really material part of your project you didn’t include it?

The rule language that governs that summary document is pretty general, so hopefully it won’t create a trap door or something that you’d likely stumble on. But it could be the case. Even though you’re not talking about the actual impact on the environment, procedural issues are very commonly used by project opponents.

In the expansion of public notice requirements, when an alternative language notice is triggered, is there a substantive outcome being mandated under environmental justice concepts?

There’s been real action by the TCEQ on the environmental justice front, but it is looking at it from a procedural side, working to enhance public participation particularly focused on environmental justice communities that may not be native or may have at least a significant portion that aren’t native English speakers. So, there’s certainly an environmental justice angle here, but it is a procedural one, looking at additional participation.

The agency has always taken the position that the way it processes permits and looks at protectiveness is by looking at the fence line or the mixing zone for a discharge. They run it through a process to ensure that it is protective at the fence line and that analysis is blind as to who is on the other side of the fence. That has kind of been the agency’s answer when environmental justice issues have been raised in permit proceedings.

And it’ll be interesting to see with the federal agencies’ focus on environmental justice issues, whether and how EPA might put pressure on TCEQ to either non-procedural permit review that would look at some kind of cumulative impact on environmental justice from the enforcement side.

 

 

© 2021 Bracewell LLPNational Law Review, Volume XI, Number 240
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About this Author

Daniel Pope Energy Environmental Attorney
Associate

Daniel Pope provides environmental permitting and regulatory assistance to industrial companies, particularly in the energy sector. He also helps in the defense of environmental enforcement actions and advises on the environmental aspects of transactional matters.

Prior to joining Bracewell, Daniel served in the Office of the Attorney General of Texas as an intern in the Civil Medicaid Fraud Division, and eventually as a law clerk in the Special Litigation Division. He also served as a judicial assistant for The Honorable Fred Biery, Judge to the US District Court for the Western...

512.494.3675
Whit Swift, Bracewell Law Firm, Environmental Strategies Attorney
Partner

Whit advises industrial companies on state and federal air quality permitting and regulations, such as Title V operating permit matters and state and federal new source review permitting. He represents clients in environmental litigation matters and has contested permit matters before the Texas State office of Administrative Hearings.

He has experience assisting major manufacturing, energy, chemical, and petrochemical companies to develop and implement state and federal preconstruction and operating strategies, and provided counsel on compliance...

512-494-3658
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