The Nickel Report

Following Governor Abbott’s recent proclamation of a state of disaster in Texas due to the COVID-19 pandemic, both the Texas Commission on Environmental Quality (TCEQ) and the Railroad Commission of Texas (RRC) have issued guidance for regulated entities relating to environmental compliance concerns as well as other useful information relative to agency operations during these uncertain times.

TCEQ

Last week, TCEQ issued guidance for submitting enforcement discretion requests arising from noncompliance related to the impacts of the COVID-19 pandemic.[1] While all regulated entities are encouraged “to take all available actions necessary to ensure compliance with environmental regulations and permit requirements” during the pandemic, if noncompliance is made unavoidable directly due to impact from the coronavirus, enforcement discretion requests may be submitted to TCEQ for consideration. Such enforcement discretion requests are required to be sent via email to OCE@tceq.texas.gov and Ramiro.Garica@tceq.texas.gov. Requests must include the following important elements:

• a concise statement supporting the request;
• anticipated duration of the need for the TCEQ’s exercise of enforcement discretion; and
• citation of applicable rules and/or permit provisions.

Notably, regulated entities are expected to maintain records adequate to document activities related to the noncompliance under enforcement discretion, including details of the requestor’s best efforts to comply. TCEQ has established a projected timeframe for response of 24 to 48 hours from receipt of the request.

With respect to air quality reporting requirements, TCEQ has issued additional guidance extending the timeframe for point source emissions inventory reporting and annual compliance reporting for the Mass Emissions Cap and Trade (MECT) and Highly Reactive Volatile Organic Compound Emissions Cap and Trade (HECT) programs. Specifically, the 2019 emission inventory reports and annual compliance reports due March 31, 2020, will be considered timely by the agency if filed by April 30, 2020. If conditions associated with COVID-19 so warrant, TCEQ may consider the exercise of additional enforcement discretion associated with these reporting deadlines. Visit the TCEQ website for more information.

TCEQ has published additional COVID-19 guidance on its website. This guidance includes information relevant to specific regulatory programs, such as those governing medical waste management, occupational licensing and public water systems, as well as information regarding cancellations of upcoming public meetings and hearings and procedures for filings with the Office of Chief Clerk and obtaining agency records.

RRC

The RRC has published guidance for oil and gas operators and other operators under its jurisdiction that wish to file waiver requests related to RRC regulatory requirements. The agency has indicated that it will review these requests on a case-by-case basis. For oil and gas operators, these requests are required to be filed electronically with the district director and assistant director for the RRC district serving the county where the well is located with a copy to Clay Woodal, Assistant Director for Field Operations. For additional details, please see the RRC website.

With regard to flaring reporting requirements, the RRC has issued specific guidance extending certain deadlines under Statewide Rule 32 (16 Tex. Admin. Code (TAC) §3.32).[2] While operators are required to continue to notify the appropriate RRC district office as soon as reasonably possible after the release of gas begins, this notification may be provided after the initial 24 hours but no later than seven (7) calendar days from the commencement of the release. Requests for administrative exceptions under 16 TAC § 3.32(h) may be made electronically and the time period for filing is extended to the end of the 14^th calendar day following the first 24 hours of the release. The RRC will issue a subsequent Notice to Oil and Gas Operators when the extension of these notification requirements is terminated.

With regard to upcoming hearings, the RRC Hearing Division issued a COVID-19 Emergency Response Order (Order) allowing hearings currently scheduled through March 30, 2020, to either be postponed or transitioned to telephonic or Skype hearings. The Order may be amended as additional information becomes available.[3]

We will continue to monitor TCEQ and RRC regulatory developments related to the COVID-19 pandemic. While regulatory entities should continue to be vigilant with regard to compliance obligations, opportunities for regulatory relief are available under certain circumstances.

[1]   See TCEQ COVID-19 Regulatory Relief Guidance issued by Ramiro Garcia, Deputy Director, Office of Compliance and Enforcement, TCEQ.

[2]     See Notice to Oil and Gas Operators, Extension of Notification Requirements under Statewide Rule 32.

[3]     See Railroad Commission of Texas, Hearings Division, COVID-19 Emergency Response Order.