TCEQ To Use Discretion In Enforcing Rules Amid Pandemic

By Michael Phillis
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Law360 (April 6, 2020, 10:00 PM EDT) -- The Texas Commission on Environmental Quality's chairman on Monday said that even though the commission has loosened some reporting requirements and will exercise enforcement discretion as it faces the threat of the novel coronavirus, it will continue to enforce key public health rules.

Commission Chairman Jon Niermann said in an open letter that air emission and water discharge rules will not change because of the pandemic, and industry won't be allowed to ignore reporting requirements if they exceed their allowable limits. Instead, the pandemic has forced the agency to face the realities of social distancing that might make it unreasonable to pursue every violation and enforce every reporting deadline.

The letter follows the commission's announcement last month that allowed industry to submit "enforcement discretion requests" if they face virus-related problems. Niermann said after the move received public attention, he wanted to provide reassurance that the agency wasn't abandoning its mission.

"This is not a suspension of rules, such as the limited rule suspensions that have been necessary in response to other disasters. And this is certainly not an exemption from agency rules, as some observers have incorrectly characterized it," Niermann wrote. "It is a judicious use of the agency's existing authority."

The commission won't provide "enforcement forbearance" when a company doesn't tell the agency about its compliance problem ahead of time, according to the letter. 

The agency's message mimics recent actions by the U.S. Environmental Protection Agency. In March, the EPA said it would temporarily suspend some compliance obligations for entities affected by the coronavirus crisis — a move condemned by environmental groups. 

Then the EPA said in a letter last week that its "enforcement authority and responsibility remains active," denying that it was waiving environmental rules. 

Matthew Paulson, a partner at Bracewell LLP, said the Commission on Environmental Quality forces industry to tell it before noncompliance issues arise, while the EPA requires documentation that the virus stood in the way of certain reporting requirements — not advanced approval. 

"I think there is some in the industry who would like to see TCEQ push it a step further and do what EPA has done and allow you to document it and look at it later," Paulson told Law360. "I think TCEQ struck the right balance."

Paulson said that inspections that require a lot of people, such as leak detection and repair compliance work at refineries, are often done by large groups of contractors. That work will be harder for companies in the era of social distancing.

"It is not an effort to avoid compliance, it is looking at individual scenarios and thinking about how important is this requirement" right now, Timothy A. Wilkins, managing partner of Bracewell's Austin office, told Law360.

The commission has pushed certain March reporting deadlines to April 30, such as industry requirements to send in monthly effluent monitoring reports.

The letter tries to make clear what the change does not do: waive requirements for excess emissions or other significant environmental rules.

"We are still holding polluters accountable," Niermann wrote in the letter.

Adrian Shelley, the director of Public Citizen's Texas office, said while the group didn't agree with the commission's actions, they are preferable to a rule suspension. Enforcement discretion is already available to the agency, and companies know that they can go to the commission and not face "extremely punitive" enforcement already, Shelley said.

"We see these kinds of public announcements as gratuitous," Shelley said.

Shelley said he wants industry requests to the commission for enforcement discretion to be made public quickly.  

"We want any granting to be narrowly tailored," he said.

A representative from the Texas Commission on Environmental Quality did not immediately respond to a request for comment.

--Additional reporting by Juan Carlos Rodriguez. Editing by Nicole Bleier.

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