The Texas Commission on Environmental Quality (TCEQ) announced that it will exercise enforcement discretion on a case-by-case basis as opposed to the EPA’s broader temporary enforcement policy issued on March 26, 2020.
Under its more tailored approach, the TCEQ has not relaxed any limits on air emissions or discharges to water. Similarly, the TCEQ has not relaxed any reporting requirements related to emissions or discharges exceeding those limits. The TCEQ continues to monitor and ensure safe drinking water and safe management of waste.
The TCEQ’s investigators will continue to respond to complaints, and its enforcement office will continue to develop cases both for administrative enforcement and for referral to the Office of the Attorney General. However, the TCEQ has also determined that “it may be inappropriate to pursue enforcement for violations that were unavoidable due to the pandemic or where compliance would create an unreasonable risk of transmitting COVID-19 or otherwise impeded an appropriate response to the pandemic.” As a result, the TCEQ will consider exercising its enforcement discretion for violations on a case-by-case basis.
It is important to note that the TCEQ plans to continue its oversight of the regulated entities and is not offering enforcement forbearance where an entity fails to report its noncompliance.
The TCEQ has also determined that it will exercise administrative relief and enforcement discretion for some reporting requirements. At this time, the TCEQ has issued the following statements:
- It will consider 2019 point source emissions inventories submitted on or before April 30, 2020 as timely received.
- It will consider 2019 Mass Emissions Cap and Trade (MECT) and Highly Reactive Volatile Organic Compound Emissions Cap and Trade (HECT) annual compliance reports submitted on or before April 30, 2020 as timely received.
- It may approve variations from Title 30 Texas Administrative Code Section 39.604 requirements for air permitting public notice signage if the applicant can demonstrate that:
- it is not practicable to comply with the specific requirements of the subsection; and
- proposed alternative sign posting plans are at least as effective in providing notice to the public.
- It will consider Small (Phase II) Municipal Separate Storm Sewer System (MS4, TXR04000) Annual Reports and Industrial Stormwater Multi-Sector General Permit (MSGP, TX05000) Discharge Monitoring Reports (DMRs) submitted on or before April 30, 2020 as timely received.
- It will consider Texas Pollutant Discharge Elimination System “TPDES” effluent monitoring reports for the months of February and March 2020 as timely received if submitted on or before April 30, 2020.
- It will allow financial assurance inflation updates for any mechanism that are due on or before April 30, 2020 to be submitted by May 15, 2020.