Environmental Compliance In The Wake Of Hurricane Harvey

As the flood waters recede and rebuilding begins in Southeast Texas, those responsible for environmental issues face many compliance questions. This update describes recent actions by the State of Texas to relieve some of these concerns and actions counsel may want to take to protect against later claims.

Suspension of Rules

Governor Abbott suspended numerous rules regarding pollution control equipment and operations at industrial and other facilities to the extent they hamper or impede responses to Harvey. These suspensions include, among others, various air emission restrictions and effluent restrictions, as well as reporting, operation, maintenance, and other standards infeasible to perform during weather relayed disruptions and flooded conditions. The suspensions also include the spill reporting and response requirements and the 90 day limits on the storage of hazardous waste.

The Texas Commission on Environmental Quality (TCEQ) Executive Director has also issued regulatory guidance that states no additional approval from TCEQ is necessary for restoration and other recovery activities directly related to the disaster.

Practice Tip: Review the list of suspended rules and the stated basis for suspension. The suspension is only to the extent that normal operations are impossible or unsafe due to the conditions and compliance would actually prevent, hinder, or delay necessary action in coping with this disaster. Any suspension is limited to the duration of the disaster and is restricted to those counties set forth in the Governors Disaster Proclamation including any amendments. Regulated entities must prepare and maintain records related to the actions and suspended rules.

Some of these rules may have federal counterparts in statute or regulation and this suspension would not apply to such federal counterparts.

Act of God Defense

Both the federal Superfund law and the Texas Health and Safety Code (THSC) impose cleanup liability on owners and operators of facilities for releases that occur at or from their facilities.1 Both statutes allow a general defense to liability if the owner or operator of the facility can demonstrate through a preponderance of evidence that the release or threatened release was caused solely by, among other things, an "Act of God."2 The Texas Water Code (TWC) also imposes cleanup liability on owners or operators of facilities at which a discharge or spill of harmful quantities of hazardous substances occurs that may...

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