March 24, 2020

TCEQ Guidance on Enforcement Discretion Requests for Operational Noncompliance Tied to COVID-19

Holland & Knight Alert
John A. Riley

The Texas Commission on Environmental Quality (TCEQ), through its Office of Compliance and Enforcement (OCE), issued a statement on March 18, 2020, detailing its procedures for enforcement discretion requests for potential noncompliance arising from the onset of COVID-19. TCEQ encourages companies and other regulated entities 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. It also recognizes that because of COVID-19 some facilities are operating with a smaller workforce than may be necessary to maintain normal operations and ensure compliance with applicable regulations.

In light of this situation, TCEQ acknowledges that there may be some instances in which noncompliance is unavoidable. When a regulated entity finds noncompliance directly associated to COVID-19, the entity can request enforcement discretion by emailing both OCE Deputy Director Ramiro Garcia and the OCE. TCEQ is monitoring the OCE mailbox daily and has established a goal of responding to each request within 48 hours.

The email requesting enforcement discretion should include:

  • a concise statement supporting the request for enforcement discretion
  • the anticipated duration of the need for enforcement discretion
  • citation of the rule/permit provision for which the enforcement discretion is requested

In addition, regulated entities must maintain records adequate to document activities related to the noncompliance under enforcement discretion, including details of the regulated entity's best efforts to comply.

Given that enforcement consequences in these situations can vary significantly, regulated entities should work with counsel to review the situation to determine whether noncompliance has occurred. If the answer is "yes," 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
  • what actions the entity will take to minimize the impact of the noncompliance

Holland & Knight is well positioned to assist you in these events. Holland & Knight Austin Partners John Riley and Paul Sarahan were each formerly the director of TCEQ's Litigation Division, which works along with TCEQ's Enforcement Division on TCEQ's administrative enforcement actions. They both continue to practice regularly before the commission. Please contact one of them for more information or questions regarding noncompliance and COVID-19.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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