In “EPA Responds to COVID-19 with New Civil Enforcement Discretion Policy,” our colleagues described EPA’s new and temporary “enforcement discretion” policy in response to the crisis. This Texas alert provides a summary of the status of environmental compliance impacts and efforts in Texas, and some suggestions to aid in ongoing compliance.

The Governor of Texas has issued a series of executive orders in response to the virus, including shelter-in-place terms. Several counties and municipalities, including Dallas, Harris and Travis counties, have issued shelter-in-place orders. The Texas Department of Environmental Quality (TCEQ) and the Texas Railroad Commission have asked many personnel to work from home and have closed some, but not all, agency buildings to the public. The regulated community has similar protective measures in place. Similarly, courts have suspended in-person hearings and taken other steps to minimize viral exposure of staff and the public. Collectively, these measures are straining compliance efforts and enforcement.

In detailed guidance issued March 17, TCEQ notified the regulated community that companies still are “encouraged to take all available actions necessary to ensure compliance with environmental regulations and permit requirements to protect the health and safety of Texans and the environment.” TCEQ will accept requests for enforcement forbearance and discretion if a permittee is unable to comply with its obligations due to the impact of the virus. Proper documentation must be prepared and maintained and made available to the TCEQ. The agency has created an email account for requests for enforcement discretion. Requests must include a concise statement supporting the request for enforcement discretion, the anticipated duration of the need for enforcement discretion, and citation of the rule or permit provision for which enforcement discretion is requested.

Additional guidance provides that routine air emissions inventory reports required by specified Texas Clean Air Act programs can be submitted by April 30, 2020, without incurring a penalty. Similarly, stormwater discharge monitoring reports may be filed by April 30, 2020, for municipal and industrial stormwater permittees.

The Texas Railroad Commission, noting that its offices around the state are not fully staffed at present, has provided public notice to the owners and operators of regulated liquefied petroleum gas (LPG) and liquefied natural gas (LNG) facilities and pipelines that they can submit requests for temporary waivers of certain regulatory requirements, such as having an active and effective permit when their permits have expired, because of the Commission’s inability to process renewal applications during the emergency. In addition, the Commission has alerted individuals who have passed the alternative fuels safety examination, but have not received the required certificate, that they may also request a waiver. Each request will be handled on a case-by-case basis. Pipeline waivers must be consistent with the pipeline safety guidance of the U.S. Department of Transportation’s Pipeline and Hazardous Materials Administration.

In evaluating ways to ensure continued compliance with environmental legal requirements, businesses should take a systematic approach, which may include the following steps:

• Develop an internal team responsible for the COVID-19 response. The establishment of clearly defined roles and a chain of command can be useful to ensure completion of the tasks needed to maintain compliance.
• Consult existing plans and internal policies. Some businesses already have plans and policies that have been triggered by the current crisis, or are otherwise useful. For example, environmental management systems, hazardous waste contingency plans and risk management plans may contain specific protocols for exigent circumstances that may prevent compliance with legal obligations (e.g., the inability to remove hazardous waste within the 90-day threshold specified for large quantity generators) or trigger certain preventative measures (e.g., the securing of extremely hazardous substances regulated under Section 112(r) of the Clean Air Act as part of a risk management plan).
• Identify what tasks and deadlines are required or coming up in the near-term and whether they are at risk of being impacted. Businesses should develop lists of upcoming environmental tasks and deadlines, including scheduled remedial activities, sampling, submittals to agencies, commitments to private parties under environmental indemnities, etc. For items due in the next few months, business should assess whether the task may be affected by COVID-19-related disruptions. It may be useful to ascertain which tasks require outside vendors or subcontractors and the likelihood that they would be available to assist.
• Review relevant statutes, regulations, guidance and other documents for authority that might excuse or delay performance. Applicable laws, regulations, and legal instruments such as permits and orders should be consulted to determine if they contain provisions that afford relief from the environmental obligations. Like Texas, the EPA has policies and guidelines regarding governmental expectations during emergency situations.

Pillsbury is closely monitoring these developments and tracking them on its website. Where agency guidance is vague, businesses should consult the specific documents establishing their legal obligations, as many consent orders, cleanup agreements, private-party indemnities, and permits contain provisions that bound parties may invoke to obtain relief from requirements that may be difficult or impossible to perform because of COVID-19-related restrictions. “Force majeure” clauses are a good place to start, as these provisions serve to excuse or delay performance under exigent circumstances. Some such clauses explicitly designate pandemics and governmentally declared emergencies and shutdowns as force majeure events. However, they often also have time limits, so they should be reviewed as soon as possible.

• If legal authority affording relief is identified, follow the specified procedures for invoking the authority and providing notice. This should be done as early as possible, especially if the applicability of specific guidance or provision is questionable, to ensure enough time to react if an agency disagrees about the existence of an adequate basis to excuse or delay performance.
• Stay in touch with local TCEQ and Texas Railroad Commission officials and other agencies which work with your facility.
• Document efforts to comply and reasons impeding performance. The legal landscape is extremely fluid right now, giving rise to a higher potential for legal disputes over failure to perform. For this reason, as well as the fact that many force majeure clauses require it, businesses should document all efforts to comply, as well as information supporting the contention that COVID-19-related disruptions have prevented compliance. Such information may be useful in supporting petitions for enforcement discretion. The importance of maintaining and updating an accessible file documenting all contacts and responses from state and federal agencies cannot be stressed too strongly. It will be very valuable to have this file available when an inspector shows up later, and government approval for actions taken or waivers granted may be valuable if a citizen suit or other legal action is threatened.