Texas: Suspension of Certain 30 TAC Provisions and Power Emergency Procedure

With the severe winter weather in Texas coupled with the power emergency the state is facing, the Texas Commission on Environmental Quality (TCEQ) has taken action to suspend certain provisions of 30 Texas Administrative Code (TAC).  On February 13, 2021, TCEQ made the request and received governor approval.  A second request was made on February 15, 2021.

Essentially, TCEQ requested written approval for the suspension of certain 30 TAC rules because they may prevent, hinder, or delay necessary actions needed to respond to the severe winter weather event. TCEQ states that such suspension is requested only to the extent the rules actually do prevent, hinder, or delay necessary action in coping with this disaster. Any suspension is limited to the duration of the disaster and is restricted to the applicable counties.  TCEQ cautions that all regulated entities should take all available actions necessary to ensure compliance with environmental regulations and permit requirements and they must prepare and maintain records related to the actions and suspended rules, as they have the burden of demonstrating that noncompliance was necessary. The delay of report submittals is to be minimized and resume as soon as feasible. TCEQ notes that some of these rules may have federal counterparts in statute or regulation and this suspension would not apply to such federal counterparts.

Various subparts of the following 30 TAC Chapters are covered by the suspension:

• 101 – General Air Quality Rules
• 106 – Permits by Rule
• 111 – Control of Air Pollution from Visible Emissions and Particulate Matter (PM)
• 114 – Control of Air Pollution from Motor Vehicles
• 115 – Control of Air Pollution from Volatile Organic Compounds (VOC)
• 117 – Control of Air Pollution from Nitrogen Compounds
• 285 – On-Site Sewage Facilities
• 305 – Consolidated Permits
• 309 – Domestic Wastewater Effluent Limitation and Plant Siting
• 312 – Sludge Use, Disposal, and Transportation
• 319 – General Regulations Incorporated into Permits
• 321 – Control of Certain Activities by Rule
• 327 – Spill Prevention and Control
• 330 – Municipal Solid Waste
• 334 – Underground and Aboveground Storage Tanks (and Tex. Water Code § 26.351(b))
• 335 – Industrial Solid Waste and Municipal Hazardous Waste

The TCEQ Second Suspension Request specifies the applicable subchapters as well as the Impediment to Disaster Response.  Specifics of the initial request, approvals and governor’s disaster proclamation can be found at the links below, and we suggest you check TCEQ’s website for any additional updates after publication:

• TCEQ Suspension Request (02-13-2021)
• Approval of the Second Request by the Governor’s Office
• Approval of the Request by the Governor’s Office
• Governor Abbott’s Severe Winter Weather Disaster Proclamation

So how might these temporary suspensions benefit a facility? For a facility subject to 30 TAC 117, Subchapter B, Combustion Control at Major Industrial, Commercial, and Institutional Sources in Ozone Nonattainment Areas, there may be challenges with the various control, monitoring, and testing requirements.  Facility personnel may not be able to get to the site to be able to perform the monitoring or testing for example.  TCEQ recognizes that the control, monitoring, testing, and other requirements at major sources of nitrogen oxides in the Beaumont Port Arthur (BPA), Houston Galveston Brazoria (HGB), and Dallas Fort Worth (DFW) ozone nonattainment areas may not be possible during a disaster.  This is just one of many potential situations that could occur.

Additionally, on February 10, 2021, the Procedure for Requesting TCEQ Enforcement Discretion Relating to a Power Emergency in Texas for Electric Reliability Council of Texas, Inc. (ERCOT), Midcontinent Independent System Operator, Inc. (MISO), or Southwest Power Pool, Inc. (SPP) (aka Entity) was updated.  When one of these Entities determines that it is, or likely will be, unable to reliably meet its system electric demand and reserve requirements or that a local reliability issue exists with the generation facilities that are expected to be available to serve that demand, the Entity may notify TCEQ of the Power Emergency to request that TCEQ consider exercising its enforcement discretion with respect to a potential violation under TCEQ jurisdiction.

Once TCEQ receives notification and request for enforcement discretion, they will consult with the Office of Compliance and Enforcement (OCE) to consider the request and approve if appropriate. TCEQ will communicate their response directly with the Entity and then confirm by written communication the TCEQ’s decision.

If granted, the Entity will promptly provide a written communication to its market participants notifying them of TCEQ’s determination. At the conclusion of the Power Emergency, the Entity will notify its market participants that the Entity has ended its request for TCEQ enforcement discretion. The regulated community must maintain records of operation that occurred during the Power Emergency including records required under TCEQ authorizations and rules. The regulated community must send a list of all violations for which they will seek enforcement discretion to TCEQ. TCEQ will provide this list to the appropriate TCEQ Regional Office. Refer to the procedure for more specifics and to required communications from your Entity in certain power emergency situations, as applicable.

For questions about the suspended subchapters of 30 TAC and/or the Power Emergency Procedure, please reach out to ALL4’s Houston Office Director, Kristin Gordon, kgordon@all4inc.com or 281.937.7553 x301.