Compliance History Proposed Rule – Texas Edition

The Texas Commission on Environmental Quality (TCEQ) published a proposed rulemaking for consideration on July 23, 2021 regarding the ability to make immediate adjustments to a site’s compliance history classification. The proposed rule will be published under 30 TAC Chapter 60: Compliance History and added as a new section of §60.4. Read on for more information or jump to the docket containing the proposed rulemaking.

Sites are rated using a compliance history score that evaluates the previous five years and classifies them as one of the following:

• High performers
• Satisfactory
• Unsatisfactory
• Unclassified

These classifications are evaluated annually, but with the proposed rule under 30 TAC §60.4, the Administrator would have the power to immediately reclassify a site as “suspended” in the event of a “significant emergency,” which has implications on permitting and compliance in multiple TCEQ programs, such as air permitting.  This classification is temporary and would be followed by a true reclassification into one of the categories above. A significant emergency isn’t explicitly defined but includes a list of potential results of the type of emergencies being discussed here. A few examples include situations which:

• Result in a significant disruption to one or more local communities;
• Cause emergency response by a federal or state governmental authority.

The above criteria would capture situations where there is a fire or explosion at a facility.

The ability for immediate reclassification can have a big effect on a site. For example, if a site is reclassified as unsatisfactory, the agency has the right to deny, amend, or hold hearings to discuss permits under various programs, including general permits under chapter 205 and flexible permits under chapter 116. Just as an annual reclassification can affect permitting, a reclassification to “suspended” prohibits permitting actions to be taken unless they are evaluated in light of the recent emergency event. Additionally, fines will be considered on a case-by-case basis.

There is an opportunity for a site to provide additional information during the review process. Although there is not a formal procedure, the Executive Director will accept additional materials and withdraw the reclassification, if warranted.  The site reclassification would end if the event is accounted for in the annual classification or three years after the effective date of reclassification unless identification and corrective actions were taken by the site and presented to the Executive Director.

In light of many recent events in the Houston area, it’s clear that the goal of the proposed rule is to have real-time understanding of a sites compliance history when evaluating permitting and provide the public with increased transparency. The TCEQ opened public comment on this topic, and it will remain open until October 30, 2021.  If you have any questions or want to get in touch, please reach out to Rachel Henn at 281-937-7553 or rhenn@all4inc.com.