With Hurricane Laura’s landfall on the Texas-Louisiana border early Thursday morning, the Texas Commission on Environmental Quality (“TCEQ”) will soon be requesting that Governor Greg Abbott issue a rule suspension.
As with previous rule suspensions due to Hurricanes Harvey and Imelda, this action will focus on rules that could prevent, hinder, or delay necessary actions to address damage caused by Hurricane Laura. The rules covered by those earlier suspensions include reporting and recordkeeping requirements for unauthorized emissions, visible emissions limits and outdoor burning emissions, low-emission fuel requirements, several volatile organic compounds, and oxides of nitrogen emission control requirements, wastewater treatment and surface water quality standards, operation of on-site sewage facilities, permits for waste-treatment sludge disposal, and regulations related to industrial and municipal solid waste.
More specifically, the prior orders for Hurricanes Harvey and Imelda, suspended parts of the following rule chapters in 30 Texas Administrative Code: 101, 111, 114, 115, 117, 285, 293, 304, 305, 307, 309, 312, 314, 321, 327, 330, 331, 334, and 335. Even if these state rules chapters are suspended, absent federal government action, similar federal environmental regulatory requirements may still apply. Companies should be aware that many of the rules that are likely to be suspended by the TCEQ have federal counterparts that may not be impacted by a Gubernatorial suspension order.
As a best practice, regulated entities should prepare and maintain records related to any noncompliance with environmental rules caused by the impacts of the hurricane. The TCEQ’s regulatory guidance references the Texas Water Code defense for violations caused by an “act of God” or other catastrophe. See Texas Water Code § 7.251. The Executive Director requires regulated entities to keep written records of the disaster or response activities it considers covered by this defense to enforcement. Those records should document:
- How the action is directly related to the hurricane;
- Why the action is necessary to prevent or minimize risk to human health, safety, and the environment;
- How the company is employing the best engineering and pollution control practices that are feasible;
- How the company is following its standard operating procedures as well as startup, shutdown, and maintenance activities, requirements, and plans—to the extent feasible; and
- The county where the action occurs.
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