Air and Waste: COVID-19 Update

by Samuel Ballard

In the midst of the COVID-19 outbreak, the Firm’s Air and Waste Practice Group is still conducting business as usual, albeit remotely, as are many of the group’s clients. While the Firm’s Air and Waste clients continue to conduct their business and address regulatory compliance issues in this pressing time, it is important to be aware of recent decisions taken by the State Office of Administrative Hearings (“SOAH”), the TCEQ, and the EPA in response to COVID-19.

First, SOAH recently issued an emergency order suspending all non-emergency live, in-person hearings and mediations until April 30, 2020. Parties to general docket contested case hearings and mediations that are currently scheduled to take place live, in-person on or before April 30, 2020 will be contacted by SOAH directly and given the opportunity to either conduct the proceedings telephonically or request a continuance at a later date.

TCEQ has also recently taken action to lessen the burden on regulated entities during the COVID-19 outbreak by releasing guidance on submitting enforcement discretion requests. On March 18, 2020, TCEQ released guidance directing regulated entities to submit enforcement discretion requests if they are unable to comply with environmental regulations due to their workforce being reduced by COVID-19. Requests should include the following: (1) a concise statement supporting request for enforcement discretion; (2) the anticipated duration of need for enforcement discretion; and (3) the citation of the rule/permit provision for which enforcement discretion is requested. Regulated entities must also maintain records sufficient to document activities related to noncompliance under enforcement discretion, including details of the regulated entity’s best efforts to comply. The Firm has already successfully obtained several regulatory extensions on behalf of its clients pursuant to enforcement discretion requests.

In addition, the EPA issued similar guidance on March 26, 2020 related to its enforcement discretion measures. The guidance retroactively applies to any COVID-19 related compliance issues beginning on March 13, 2020 and contains essentially the same enforcement discretion request criteria as the TCEQ guidance. With respect to administrative settlement agreements and consent decrees, the guidance indicates that if parties are unable to meet an enforceable obligation, the parties should utilize the notice procedures in the agreement, including any force majeure notice provision, as applicable.

Of note, the EPA guidance does not apply to criminal violations or activities that are carried out under Superfund or the Resource Conservation and Recovery Act (the EPA plans to address those matters in separate guidance). Furthermore, the guidance does not apply to preventing and reporting accidental releases. Clients should submit enforcement discretion requests to the Office of Enforcement and Compliance Assurance and the regional EPA office with jurisdiction over the regulated activity.

Given that enforcement consequences in these situations can vary significantly, regulated entities should work with the Firm to evaluate the situation to determine whether noncompliance has occurred at the state or federal level. If so, the requesting entity would need to prepare a submission that accurately identifies:

• the potential noncompliance;
• how the noncompliance is related to COVID-19;
• what actions the entity has taken to attempt to comply;
• how long the noncompliance is anticipated to continue; and
• what actions the entity will take to minimize the impact of the noncompliance.

• In preparing such requests, it is important to keep in mind the following types of potential causes to link to a COVID-19 impact:
• Worker shortage;
• Travel restrictions and social distancing restrictions at facilities that are consistent with announcements by the U.S. Centers for Disease Control and Prevention (“CDC”);
• Lack of key staff and contractors;
• Unavailable testing laboratories; and
• Worker and third-party resource shortages that affect a facility’s ability to meet reporting obligations or milestones under consent decrees.

It is highly recommended that clients diligently document any noncompliance issues that may be impacted by COVID-19 and consult with a Lloyd Gosselink attorney to evaluate whether an enforcement discretion request is warranted. Additional reports will be forthcoming as the TCEQ and EPA update their enforcement discretion guidance. In the meantime, we hope you, your family, friends, and co-workers are staying safe and healthy.

Please do not hesitate to contact the Air and Waste Practice Group with any questions.

Sam Ballard is an Associate in the Firm’s Air and Waste Practice Group. If you would like additional information or have questions related to this article or other matters, please contact Sam at 512.322.5825 or sballard@lglawfirm.com.