Alert 03.31.20
So the Government Shut Down Your Construction Project—What Next?
Navigating construction projects during COVID-19
Alert
04.06.20
The swift onslaught of the COVID-19 virus has presented serious challenges to the regulated community’s ability to maintain standard compliance protocols. Environmental agencies, which are also struggling with workforce impacts of their own, are responding with updated compliance and enforcement policies meant to provide some measure of relief, without relaxing substantive obligations.
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:
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.
For more information, please reach out to your regular Pillsbury contact or the authors of this client alert.
Pillsbury’s experienced crisis management professionals are closely monitoring the global threat of COVID-19, drawing on the firm’s capabilities in supply chain management, insurance law, cybersecurity, employment law, corporate law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 (Coronavirus) Resource Center.