At this time, the primary environmental regulatory agencies have done very little to assist regulated entities address the impacts of COVID-19 on personnel and compliance. While the governors urge or mandate that people stay at home, EPA, the Louisiana Department of Environmental Quality (LDEQ), and Texas Commission of Environmental Quality (TCEQ) have, for the most part, not relaxed monitoring and reporting requirements. However, the American Petroleum Institute (API) has petitioned EPA for regulatory relief.
In Texas, Governor Abbott has urged people to stay at home but, as of this writing, has not issued an order. In Louisiana, though, Governor Edwards did issue an order on March 22, 2020. Proclamation No. 33 JBE 2020. It states that “all individuals … are under a general stay-at-home order and are directed to stay home unless performing an essential activity.” To determine what is an essential activity, the Governor adopted the Department of Homeland Security’s guidance issued through the Cybersecurity & Infrastructure Security Agency (CISA). See www.cisa.gov/identifying-critical-infrastructure-during-covid-19.
CISA guidelines identify sixteen industrial sectors, including Chemical, Commercial Facilities, Critical Manufacturing, Energy, and Food and Agriculture. Under the guidance, the flowing workers are essential:
- Petroleum workers at product storage terminals, crude oil storage facilities, petroleum refinery facilities, petroleum operations control rooms/centers, and petroleum drilling, extraction, production, processing, refining, terminal operations, transporting, and retail for use as end-use fuels or feedstocks for chemical manufacturing;
- Natural gas and propane workers at natural gas processing plants, and those that deal with natural gas liquids, LNG facilities, and drilling, production, processing, refining, and transporting natural gas for use as end-use fuels, feedstocks for chemical manufacturing, or use in electricity generation;
- Operational staff at wastewater treatment facilities;
- Workers necessary for the manufacturing of materials and products needed for supply chains associated with transportation, energy, communications, food and agriculture, chemical manufacturing;
- Workers managing medical waste from pharmaceuticals;
- Workers who support hazardous materials response and cleanup; and
- Workers supporting the chemical and industrial gas supply chains, including workers at chemical manufacturing plants.
Although essential activities can be broadly interpreted, the workers necessary to assure compliance with the myriad of environmental requirements in regulations and permits will be reduced due to stay at home admonitions and orders, self-quarantining, and actually contracting COVID-19. Despite this, the regulatory agencies have offered scant assistance.
According to EPA’s web-site on COVID-19 (www.epa.gov/coronavirus), the EPA has taken steps to expedite the review of submissions from companies requesting to add Emerging Viral Pathogens claims to their already registered surface disinfectant labels. EPA states that it usually takes 90 days to approve the addition of a pathogen to a label under the program, but EPA boasts that it has been able to approve claims within 14 days. However, it does not seem that any regulatory relief has been granted.
For its part, though, the LDEQ did offer some regulatory relief. On March 19, 2020, LDEQ issued a Declaration of Emergency and Administrative Order (Order) suspending certain deadlines due to the COVID-19 matter, including the deadline “to conduct periodic monitoring,” the deadline “to report periodic monitoring or to submit other reports,” and the deadline “to file an application for renewal of an existing permit.” While welcome, this relief is limited. It does not apply to requirements in Title V air permits. Further, it only applies to the extent the facility “does not have appropriate personnel available due to COVID-19.”
The TCEQ has decided to use its “enforcement discretion” to consider certain reports, normally due on March 31, as timely if submitted on or before April 20, 2020. The reports include point source emissions inventories; annual compliance reports required under the Mass Emissions Cap and Trade (MECT) Program and Highly Reactive Volatile Organic Compound Emissions Cap and Trade (HECT) Program; and annual reports for Small MS4s and DMRs for MSGP. See https://www.tceq.texas.gov/response/covid-19/tceq-preparedness-responsibilities-covid-19.
Although they are an important recognition of the struggles faced by industry to comply with environmental requirements, the steps announced to date offer little in terms of actual regulatory relief. However, this may soon change. The American Petroleum Institute (API) petitioned EPA via letter dated March 23, 2020 for regulatory relief from numerous requirements.
API noted that “there may be limited personnel capacity to manage the full scope of the current regulatory requirements” and requested “temporarily waiving non-essential compliance obligations” through “enforcement discretion, waivers or revised compliance timeframes.” API attached a long list of “recordkeeping, training or other non-safety critical requirements” for which it seeks relief.
The requested relief covers a host of media requirements, including drinking water, air quality, and waste control. These include such items as deferred leak detection and repair monitoring and reporting, greenhouse gas reporting, delayed stack testing, CEMS evaluation, deferred NPDES sampling, deferred SWPPP inspections, and deferral of the 90-day hazardous waste accumulation limit.
Further, API also noted that many petroleum refineries are subject to consent decrees with strict compliance deadlines and stipulated penalties. They also include force majeure clauses which require notification of known or anticipated compliance delays. A failure to meet the prescribed notification timeframe may void enforcement protections under the consent decree. Delays in meeting consent decree requirements “might occur due to workforce impacts or reductions.” API requested that EPA and state officials “work with individual companies as part of their settlement agreements.” For more on force majeure, see www.bswllp.com/its-time-to-dustoff-the-force-majeure-clause-in-your-contract.
In summary, there is scant regulatory relief at this time. Hopefully, the EPA, LDEQ, and TCEQ will consider the request by API and offer a broader range of relief than is currently in effect.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality. For more information, check http://www.bswenviroblog.com, or contact John B. King at firstname.lastname@example.org or (225) 381-8014.