The Nickel Report

The Texas Commission on Environmental Quality (TCEQ) is inviting informal public comment on the draft TCEQ Regulatory Guidance Document for Evaluation of Regionalization for Potential New Wastewater Systems (“Draft Regionalization Guidance”). Under Section 26.081 of the Texas Water Code, TCEQ is required to implement a policy to “encourage and promote the development and use of regional and area-wide waste collection, treatment and disposal systems to serve the waste disposal needs of the citizens of the state and to prevent pollution and maintain and enhance the quality of the water in the state.”

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.

Under a process known as Sunset Review, the Texas Commission on Environmental Quality (TCEQ) will be abolished in 2023 unless a bill is passed in the 88th Texas Legislative Session reauthorizing the agency. Sunset Review is performed by the Sunset Commission, and the process takes approximately two years. The TCEQ review process began last year with the preparation of the Self Evaluation Report (SER), completed by TCEQ in September of last year. The general public is encouraged to participate in the process. Public input is confidential and not passed on to the agency at this stage. Public comments should be provided by February 1, 2022 to be fully considered.

On December 18, 2020, the Texas Commission on Environmental Quality (TCEQ) published notice of its intent to issue a non-rule standard permit for Marine Loading Operations (MLO). [i] The 30 day comment period ends on January 22 and instructions for the submittal of written comments are provided in the notice. A telephonic public meeting will be held on January 21 at 10:00 a.m. Instructions for participation are provided in the notice. In addition, the standard permit section of the TCEQ website includes a background document and a copy of the permit. [ii]

The U.S. Environmental Protection Agency (EPA) is attempting to thread the needle in responding to the COVID-19 pandemic: offering clarity about ongoing federal environmental obligations to the broad swath of regulated entities faced with the threat of significant disruptions and other challenges, while contending with intense opposition from others who perceive its temporary enforcement policy as a “free pass to pollute” and a failure to enforce legal requirements. Notwithstanding the mounting scrutiny from U.S. Senators, states, and citizens groups, and now a legal challenge, EPA’s Office of Enforcement and Compliance Assurance (OECA) has continued implementing its temporary policy regarding the exercise of enforcement discretion due to the COVID-19 pandemic via issuance of additional guidance on National Pollutant Discharge Elimination System (NPDES) reporting. Other state and federal agencies, including the U.S. Department of Justice (DOJ), the Texas Commission on Environmental Quality (TCEQ), the Railroad Commission of Texas (RRC), and the California Environmental Protection Agency (CalEPA) (addressed in a separate blog post) have followed EPA’s lead in issuing their own temporary policies related to the pandemic.

Following Governor Abbott’s recent proclamation of a state of disaster in Texas due to the COVID-19 pandemic, both the Texas Commission on Environmental Quality (TCEQ) and the Railroad Commission of Texas (RRC) have issued guidance for regulated entities relating to environmental compliance concerns as well as other useful information relative to agency operations during these uncertain times.

On January 22, 2020, the Texas Senate Committees on Natural Resources and Economic Development and Water and Rural Affairs (Senate Committees) held a joint hearing to consider Lt. Governor Dan Patrick’s 2019 interim legislative charge related to one of the most pressing matters facing the state—future water supply issues. This interim charge requires that these legislative committees make recommendations to promote the state’s water supply, including the development of new sources. The recommendations made will be the subject of consideration when the Texas Legislature reconvenes in 2021 and will inform future legislative initiatives. While a broad range of water supply topics was discussed during the hearing, notably, the subject of produced water, including opportunities for reuse within and outside the oil field, continues to be a focal point under review by state policymakers.

The Texas Commission on Environmental Quality (TCEQ) is moving forward with steps necessary to seek delegation of the federal National Pollutant Discharge Elimination System (NPDES) permitting program for produced water discharges. In doing so, Texas will be joining similar efforts underway or under consideration in the neighboring states of Oklahoma and New Mexico. Should EPA delegate such NPDES authority and separately take action to address the restrictive federal regulatory framework now in effect for onshore produced water discharges, this would result in streamlined and expanded beneficial reuse options for produced water in the key oil and gas producing states in the country.