Hurricane Harvey Client Alert: Addressing Environmental Releases And Obligations

As the cleanup begins, companies face challenges in meeting existing environmental obligations and addressing the environmental impacts of the storm.

The havoc caused by Hurricane Harvey, including in some instances environmental crises caused by the storm, has been widely reported. The scope and magnitude of the environmental issues caused by the storm continue to evolve as the waters recede. As they do, a host of questions have arisen and will continue to arise. The below Q&A attempts to address some of the most common environmental questions that are likely to arise for companies in the aftermath of Hurricane Harvey.


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 Environmental Laws

Below are examples (but not a comprehensive list) of relevant exceptions to federal environmental laws that may be applicable to your company during the aftermath of Hurricane Harvey.

Oil Pollution Act (OPA)

An act of God defense. 33 U.S.C. § 2703(a). Resource Conservation and Recovery Act (RCRA)

EPA may issue temporary emergency permits to permitted or nonpermitted facilities to allow treatment, storage, or disposal of hazardous wastes where there is imminent and substantial endangerment to human health or the environment. 40 C.F.R. § 270.61(a). Generally, RCRA does not require entities to obtain permits for treatment or containment activities in response to discharges of hazardous waste, the imminent threat of a discharge to hazardous waste, or an immediate threat to human health, public safety, property, or the environment from explosive materials. 40 C.F.R. §§ 264.1(g)(8), 265.1(c)(11), 270.1(c)(3). 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...

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