Has TCEQ Gone Rogue?

Rambo Going Rogue

Webster dictionary defines rogue as “resembling or suggesting a rogue elephant especially in being isolated, aberrant, dangerous, or uncontrollable.”  I think Rambo is a better example.  Lately, it seems that some of the project managers at the Texas Commission on Environmental Quality (TCEQ) have gone rogue.

Historically, the TCEQ’s remediation division has worked with property owners to get environmental risks removed or minimized in a timely and reasonable manner so that property can be redeveloped.  Lately, TCEQ has been giving some strange requests in the name of protecting the environment that are inconsistent with these historical practices.  Here are some examples:

  • LPST Division No Longer Recognizes MSDs – Municipal Setting Designations (MDSs) have been a TCEQ staple since 2003 as a way to eliminate the groundwater pathway – in other words, put a deed restriction on the property to prohibit using the impacted groundwater for drinking (because there is a public water supply available). It has been a great tool to get site closure without spending time and money cleaning up groundwater to drinking water standards when no one is drinking the water anyway.  TCEQ has processed over 400 MSD applications, many in the Leaking Petroleum Storage Tank Program (LPST).  Recently, the LPST program decided that it will no longer recognize MSDs.  I called TCEQ regarding this new, unwritten policy.  A TCEQ attorney replied with the following:

“You asked whether the MSD statute covers releases under the jurisdiction of the TCEQ’s federally authorized Petroleum Storage Tank program (PST Program).  As we discussed, the MSD statute provides that nothing in the subchapter is meant to alter or supersede any requirement of a federally authorized environmental program administered by the State of Texas (Tex. Health & Safety Code § 361.808(g)).  TCEQ’s federally authorized PST Program contains corrective action obligations that include delineation and remediation of certain LPST releases that have contaminated onsite and offsite groundwater, and those federally authorized requirements cannot be altered or superseded by the MSD.  Therefore, MSD certifications cannot be used to address releases undergoing corrective action work under the jurisdiction of the TCEQ’s federally authorized PST Program.”

This communication appears to justify the decision, because the federal program requires delineation and remediation of onsite and offsite groundwater.  As many of us know, however, many cities require off-site delineation in order to get an MSD, and numerous LPST sites have been closed without offsite remediation.  So, why wouldn’t an MSD work in certain situations?  I think it should.

  • More and more sampling TCEQ is flush with new project managers who lack experience and information on historical TCEQ guidance and the precedent of what data are accepted in order to close a site.  Instead,  property owners are met with requests for more delineation, more investigation, and more data before a site is closed.  Obviously, these requests lead to increased closure costs and delays.  Often, a transaction could be pending, and these additional requests can cause a deal to fall through. Although these TCEQ project managers claim they have too many sites to handle, they are hesitant to pull the trigger and say a site is closed.

So, what do we do?  I like to push back on these requests.  Last year, I blogged about using attorneys as the Bad Cop.  That’s why I became an attorney – to keep the government agencies in line and ensure that they interpret the laws correctly.  Do not accept requests or decisions from TCEQ just because they are the government. 

Onward to battle!!

36 thoughts on “Has TCEQ Gone Rogue?”

  1. Well said Cindy! I have been experiencing the same thing with inexperienced TCEQ PMs, wanting more, and not understanding what they are asking for! Clients are getting frustrated…

  2. Had a project where the the TCEQ was requiring a monitoring well upgrading of the LPST. Despite the distance was 900 feet up gradient, several years of consistent gradient, wells up gradient are not drilled near the watering bearing strata of the site and the fact groundwater does not flow up gradient, the TCEQ was insistent in an off-site upgradient well. Just flies in the face of good science.

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