Does Hurricane Harvey excuse compliance with environmental obligations?

September 29, 2017

A September 21, 2017 Mondaq News Q&A addresses some of the most common environmental legal questions that are likely to arise for companies in the aftermath of Hurricane Harvey. A small sampling of issues addressed in the article is listed below.

Question: Due to Hurricane Harvey, my company is unable to meet its obligations under an environmental statute, regulation, permit, consent decree, settlement, or other agreement with the Environmental Protection Agency (EPA) and/or the Texas Commission on Environmental Quality (TCEQ). Does Hurricane Harvey excuse compliance?

Answer: It may. Environmental laws provide exemptions, releases from liability, relaxation of substantive standards, and/or an acceleration of certain processes during times of natural disaster. Related consent decrees or settlement agreements typically contain force majeure provisions and exceptions that similarly apply to disasters or acts of God.

Notable exceptions under federal laws.

Federal Clean Air Act (CAA)

  • Emission restrictions for fuel-burning stationary sources during national or regional energy emergencies. 42 U.S.C. § 7410(f).
  • National emission standards for hazardous air pollutants from stationary sources when in the interests of national security. 42 U.S.C. § 7412(i)(4).
  • Fuel additive requirements during natural disasters that cause extreme or unusual fuel and fuel additive supply circumstances. 42 U.S.C. § 7545(c)(4)(C).
  • Transportation conformity requirements during emergencies or natural disasters. 40 C.F.R. § 51.853(d).
  • Certain requirements under the National Emissions Standards for Hazardous Air Pollutants for the demolition of asbestos-containing buildings when the building has been ordered torn down because it “is structurally unsound and in danger of imminent collapse.” 40 C.F.R. § 61.145(a)(3).
  • Compliance may be excused during an upset, which means “an exceptional incident in which there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the permittee.” 40 C.F.R. § 122.41(n)(1).
  • Emergencies that require expedited procedures for the processing of permit applications by the Corps of Engineers. 33 C.F.R. § 325.2(e)(4).
  • Exigent circumstances regarding discharges of oil and hazardous substances do not require permits. 33 U.S.C. § 1321(c); 40 C.F.R. § 122.3(d).

Relevant exceptions to Texas environmental laws.

Enforcement and Force Majeure

  • TCEQ enforcement provisions expressly provide that “force majeure” (defined, in part, as an act of God) is an affirmative defense. The entity applying the defense of “force majeure” has the burden to demonstrate that it applies and has the obligation to notify the state as provided by 30 Tex. Admin. Code § 305.125(9) (relating to Standard Permit Conditions).

Governor’s Suspension of Procedural Laws

  • The governor of Texas may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster. Tex. Gov’t Code § 418.016.
  • The executive director of TCEQ requested written approval for the suspension of certain environmental rules in certain counties on August 28, 2017.  TCEQ Guidance and Disaster Response
  • As per TCEQ guidance, TCEQ approval is not necessary for actions directly related to disaster response. Response actions pursuant to the guidance include “all reasonable actions necessary and prudent to facilitate, maintain, or restore fuel production and/or distribution, within the State of Texas, directly related to Hurricane Harvey.”

What this means to you
Question: Does Hurricane Harvey excuse compliance with some federal or state environmental regulation? Answer: It may.

MIRATECH can help
Contact MIRATECH for help bringing stationary engines back into compliance.