COVID-19 – Impacts on Compliance with and Enforcement of Environmental Laws

Have environmental laws changed during COVID-19?

Yes, some temporary changes were recently made to both federal and state environmental policies in response to COVID-19.

On March 26, 2020, the U.S. Environmental Protection Agency (EPA) announced the agency’s exercise of its enforcement discretion for noncompliance due to the COVID-19 pandemic. The policy applies retroactively beginning on March 13, 2020. A seven-page memo announcing the policy is posted on EPA’s website here.

What does enforcement discretion mean?

It means the EPA will not punish businesses or facilities for failing to comply with its regulations if their reason is a result of COVID-19. Those specifics, though, are detailed in their seven-page memo above.

Texas’ Enforcement Response to COVID-19

In response to EPA’s policy announcement, the Texas Commission on Environmental Quality (TCEQ) announced it would provide administrative relief on a case-by-case basis to Texas businesses and facilities facing direct impacts due to COVID-19.  Where compliance is not possible due to disrupted operations caused by workforce reductions, the regulated parties are encouraged to submit a request to the agency with the following information:

• A statement supporting the request for enforcement discretion;
• The anticipated duration of the need for enforcement discretion; and
• A citation of the rule or permit provision that might be violated.

The TCEQ has issued guidance specific to different types of regulated entities during the pandemic, found here:  https://www.tceq.texas.gov/response/covid-19

How do I find out which facilities have requested an enforcement discretion exception?

The TCEQ maintains a spreadsheet listing the enforcement discretion requests made by regulated facilities in Texas, along with information on the status of those requests. Community members can access the spreadsheet here:  https://www.tceq.texas.gov/response/covid-19

Is the TCEQ automatically approving enforcement discretion requests?

No.  Out of the 129 requests received as of May 8, 2020, the TCEQ has denied 33 requests. Many approvals are being made for limited periods of time.

Why can’t I see the name of the regulated facility making the enforcement discretion request?

The TCEQ is withholding certain information, such as the name of the facility, pending the regulated entity’s opportunity to assert exceptions to disclosure under the Texas Public Information Act.  It’s possible that this information may be made public at a later date. 

What information is the TCEQ providing about the enforcement discretion requests?

TCEQ’s spreadsheet lists the county that the regulated facility is in, a general description of the request for enforcement discretion made by the regulatory entity, and the status of that request (e.g., approved, denied, or under review).

What types of enforcement discretion requests are facilities making?

Most regulated facilities are requesting deferrals on their obligations to submit reports, testing requirements, and delay of regularly scheduled inspections of the facility.

Are facilities still required to report unauthorized emissions?

Yes.  TCEQ is still requiring regulated facilities to report unauthorized emissions during this period, regardless of whether they have received an enforcement discretion exception or not. 

Lone Star Legal Aid is a 501(c)(3) nonprofit law firm focused on advocacy on behalf of low-income and underserved populations. Lone Star Legal Aid serves millions of people at 125% of federal poverty guidelines that reside in 72 counties in the eastern and Gulf Coast regions of Texas, and 4 counties of southwest Arkansas. Lone Star Legal Aid focuses its resources on maintaining, enhancing, and protecting income and economic stability; preserving housing; improving outcomes for children; establishing and sustaining family safety and stability, health and well‐being; and assisting populations with special vulnerabilities, like those who have disabilities, or who are elderly, homeless, or have limited English language skills. To learn more about Lone Star Legal Aid, visit our website at www.lonestarlegal.org.

Media contact: Clarissa Ayala, cayala@lonestarlegal.org