Update on State Environmental Guidance for Regulated Entities in La., Texas, Miss. and N.C.

April 07, 2020

The states of Louisiana, Texas, Mississippi and North Carolina have issued new or updated guidance for regulated entities during the COVID-19 pandemic. Below, we’ve laid out relevant requirements.

Additionally, we recommend that all regulated entities thoroughly document any issues they have with meeting deadlines due to COVID-19, even where a deadline is suspended. Please also keep in mind that emergency notification requirements have not been suspended.

Louisiana

  • The Louisiana Department of Environmental Quality (LDEQ) issued a Declaration of Emergency and Administrative Order on March 19. LDEQ issued subsequent guidance on March 20, March 27 and April 3.
  • All scheduled public hearings are postponed until further notice. Accompanying public comment periods will be adjusted accordingly. During this time, public comments will be accepted by LDEQ, preferably via electronic mail or mail.
  • No new public hearings will be approved or scheduled until further notice. Requests for public hearings may be submitted.
  • LDEQ will not assess any late fees for outstanding invoices beginning March 19 until May 4.
  • Effective March 11, LDEQ will accept electronic submittals for permit applications and permit-related materials, as well as e-signatures from responsible officials. LDEQ will also accept online payments through its Business Website in lieu of checks. To the extent possible, files should be submitted as a single PDF file.
  • The following deadlines occurring between March 19 and May 4 are extended for 30 days: deadlines to conduct or report periodic monitoring and deadlines to submit other reports required by permits, regulations, other authorizations, enforcement actions, or settlement agreements, except for monitoring required by air permits issued under Title IV or V of the Clean Air Act or under the PSD program. These deadlines apply only insofar as a facility does not have appropriate personnel available due to COVID-19. Documentation must be maintained and made available to LDEQ upon request.
  • Title V Semiannual Monitoring and Deviation reports and Annual Compliance Certifications, which are ordinarily required to be submitted on March 31 of the calendar year, must be submitted no later than May 1.
  • To the extent that any reports are to be submitted to the EPA, they should be submitted in accordance with the directions provided in “COVID-19 Implications for the EPA’s Enforcement and Compliance Assurance Program,” issued by the EPA on March 26 (see below for discussion link).
  • Waste Tire Generators must continue to submit monthly waste tire reports by the 20th of the month following the month in which the tires were sold. However, no late report or payment fees will be assessed for the February 2020 (due 3/20/2020) or March 2020 (due 4/20/2020) reports.
  • LDEQ also included guidance specific to radiation (x-ray) machine and radioactive material license compliance and asbestos refresher training courses.
  • Emergency reporting requirements under the regulations or permits requirements are not suspended.

Texas

  • Effective March 23, all Texas Commission on Environmental Quality (TCEQ) buildings are closed to the general public and open to staff only on a limited basis. TCEQ is still open and operating to fulfill day-to-day responsibilities.
  • Due to reduced staff in the workplace, TCEQ will exercise enforcement discretion and consider the following as timely if submitted on or before April 30:
    • 2019 point source emission inventories
    • annual compliance reports relating to the Mass Emissions Cap and Trade Program and Highly Reactive Volatile Organic Compound Emissions Cap and Trade Program
    • Small (Phase II) Municipal Separate Storm Sewer System Annual Reports
    • Industrial Stormwater Multi-Sector General Permit Discharge Monitoring Reports
    • TPDES individual permit effluent monitoring data for February and March
  • The agency will consider additional enforcement discretion regarding this deadline as conditions warrant in response to COVID-19.

Mississippi

  • On April 2, the Mississippi Department of Environmental Quality (MDEQ) issued a guidance memorandum regarding environmental compliance during the COVID-19 pandemic. The temporary guidance applies retroactively beginning March 14.
  • Regulated entities must take all reasonably practicable steps to operate in compliance with permit and regulatory requirements. However, MDEQ may exercise enforcement discretion when addressing non-compliance where the regulated entity provides documentation showing reasonable actions were taken to minimize any non-compliance and the non-compliance was due to the COVID-19 pandemic.
  • For a regulated entity that has a permit renewal application due between March 14 and the date MDEQ withdraws its guidance memorandum, the entity will have 90 days from the date MDEQ withdraws its memorandum to submit its application. An extension of any other deadline may be requested by email, but entities must provide documentation showing an extension is necessary because of the COVID-19 pandemic and that actions have been taken to minimize any non-compliance.
  • MDEQ is encouraging electronic submittal of all business documents until the withdrawal of its guidance memorandum. Regulated entities electronically submitting documents that would normally be submitted in hard copy must also submit hard copies to MDEQ within 30 days of the expiration of its memorandum. Documents submitted via email should be sent requesting a “return receipt” for record-keeping purposes.
  • Public hearings will be held via virtual/remote access to the extent possible.

North Carolina

  • The North Carolina Department of Environmental Quality (NCDEQ) has many employees working remotely or on staggered shifts. To accommodate these staffing changes, all NCDEQ office locations are limiting public access to appointments only.
  • NCDEQ has released no guidance regarding environmental submittals.

The Environmental Protection Agency (EPA) has also eased compliance restrictions on facilities affected by the COVID-19 pandemic. The policy, released March 26, is discussed here.

This news alert is a service to the clients of Phelps. This is a rapidly changing situation. We will keep you informed on other COVID-19 related developments as they occur.

Inquiries concerning topics addressed in this Environmental news alert may be directed to any member of the Phelps environmental practice group. Please contact Steve Levine, Gregory Reda or David Topping if you have any questions regarding these considerations.