Amid the ongoing COVID-19 pandemic, the Texas Commission on Environmental Quality (TCEQ) has acknowledged the risks to employees, contractors, and other workers at industrial facilities across the state and has implemented reasonable measures to allow companies to temporarily defer selected regulatory activities to minimize infections, illnesses, and possibly deaths. Since mid-March, the TCEQ has received over 150 requests for enforcement discretion from companies seeking to delay monitoring and testing activities, suspend inspections, postpone reporting requirements, or other actions. This flexibility is needed primarily due to staff scheduling, travel restrictions, or other factors necessary to limit exposure to the virus during the early days of the outbreak. For example, a blanket approval for enforcement discretion was allowed for annual emissions inventories, typically required to be submitted by March 31, to be delayed until April 30, 2020. Approximately 85% of these requests have been approved, most specifying dates by which these activities must be resumed or accomplished.
These steps have not been without controversy. On June 4, 2020, nine members of the Texas House of Representative sent a letter to TCEQ Chairman Niermann strongly urging him “to ensure that monitoring and reporting requirements are not relaxed while you exercise that discretion.” Chairman Niermann’s response on June 9, 2020, emphasized that TCEQ’s enforcement discretion “does not relax any regulatory requirement, whether in a permit, statute or rule. It does not suspend any requirement nor exempt any regulated entity from compliance” and “addresses only those violations that are unavoidable due to the pandemic or where compliance would create an unreasonable risk of transmitting COVID-19.”
It is uncertain how long the COVID-19 pandemic will last or if future waves of the outbreak may result in the return of some restrictions. It is clear, however, that the TCEQ and the regulated community will have to continue to adapt to new strategies for social distancing, alternative scheduling, remote work practices, and other methods of keeping workers, regulators, and the community safe while continuing to comply with all laws and regulation to protect human health and the environment. As time goes on, these changes may need to be incorporated into standard operational procedures and/or emergency planning practices to minimize the need for further discretion requests. So although the TCEQ may continue to accept requests for enforcement discretion, as appropriate, it is each affected company’s responsibility to take all reasonable actions to remain in full compliance and only seek such temporary relief when valid, unavoidable circumstances exist and can be fully justified.
Please contact Bright Sky Environmental if you would like assistance evaluating your compliance requirements and determining the potential need for seeking enforcement discretion from the TCEQ. We can help you determine your compliance status and projected actions, evaluate alternatives, and prepare the justification for a request, if necessary.
-Russ Baier. Russ@BrightSkyENV.com