The Texas Commission on Environmental Quality (TCEQ) yesterday issued guidance (below) for submitting enforcement discretion requests during the COVID-19 pandemic.  In this guidance, Ramiro Garcia, TCEQ’s Deputy Director of the Office of Compliance & Enforcement (OCE), encourages all 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.” The guidance indicates that if, despite such efforts, regulated entities are concerned about compliance due to a reduced workforce, they may submit enforcement discretion requests to TCEQ if noncompliance is unavoidable directly due to impact from the coronavirus. 

TCEQ invited affected regulated entities to email both [email protected] and [email protected] with specific information related to enforcement discretion requests. “The email should at a minimum include the following:

• Concise statement supporting request for enforcement discretion
• Anticipated duration of need for enforcement discretion
• Citation of rule / permit provision for which enforcement discretion is requested

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.”

The TCEQ guidance indicates that staff monitoring the OCE email box will ensure the requests are expeditiously addressed, with a goal of responding within 24 to 48 hours of receiving the request.

We encourage our clients to contact us for a consultation on the pros and cons of invoking this guidance and best practices for doing so. 

In addition, during this uncertain time, please be assured that our entire firm is fully open for business and ready to assist you with questions specific to TCEQ guidance, operational issues, or any other matters.

As the leading law firm for environmental law and litigation, B&D helps clients meet environmental, health, and safety challenges impacting the workplace, including many unprecedented issues posed by COVID-19. Please visit B&D’s COVID-19 Resource Page for more information, which we will update as developments occur. TCEQ has also shared guidance for addressing the transportation, treatment, and disposal of COVID-19 medical waste and information to assist public water systems to minimize impacts due to the COVID-19 outbreak.

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March 18, 2020

TCEQ Enforcement Discretion for COVID-19

From: Ramiro Garcia <[email protected]>
Sent: Tuesday, March 17, 2020 5:02 PM
To: Sam Gammage <[email protected]>

Subject: Enforcement Discretion Overview

With the onset of COVID-19 (coronavirus) and the Governor’s Proclamation of a state of disaster in Texas, the TCEQ is aware that regulated entities may be experiencing an impact from a reduced workforce necessary to maintain normal operations at some facilities.  All regulated entities 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.  However, in the instance that noncompliance is unavoidable directly due to impact from the coronavirus, an email box has been established by TCEQ to accept requests for potential enforcement discretion.  Regulated entities should email both [email protected] and [email protected] with specific information related to enforcement discretion requests.  The OCE email box is monitored daily by multiple TCEQ staff who will ensure the requests are expeditiously addressed.  The TCEQ’s goal is to provide a response to the regulated entity’s request within 24 to 48 hours.

The email should at a minimum include the following:

• Concise statement supporting request for enforcement discretion
• Anticipated duration of need for enforcement discretion
• Citation of rule / permit provision for which enforcement discretion is requested

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.

Any questions regarding this guidance should be directed to the OCE email box and a response will be provided.

Sincerely,

Ramiro Garcia, Jr.
Deputy
Office of Compliance & Enforcement
TCEQ