The Nickel Report

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.