A significant number of oil spills have been reported in the wake of Hurricane Ida’s passage over the Gulf of Mexico and south Louisiana. Does a major hurricane like Ida qualify as an “act of God” under the Oil Pollution Act so as to provide a defense to spill liability? This post examines the act of God defense under the Oil Pollution Act.

Continue Reading Hurricane Ida and OPA’s Acts of God

On August 27, 2021, with Hurricane Ida’s impact on South Louisiana imminent, the Louisiana Department of Environmental Quality (LDEQ) issued a statewide Declaration of Emergency. The Declaration provided guidance on a number of expected impacts of the storm, including “upset” of Louisiana Pollutant Discharge Elimination System permits by wastewater treatment plants, the influx of solid waste disposal at landfills, the need to repair permitted facilities to commence operations, and the extension of deadlines. The original Declaration was set to expire on September 26, 2021. On August 28, LDEQ issued the First Amended Declaration of Emergency, which was substantively identical to the first and also applied to the entire state.


Continue Reading LDEQ’s Hurricane Ida Emergency Declarations: What Do They Cover?

On March 27, 2020, the Louisiana Department of Environmental Quality (LDEQ) issued its Second Amended Emergency Declaration and Administrative Order, which supersedes its two previous declarations and orders issued on March 19 and 20, 2020. Both of these declarations and orders were addressed in our previous blog entry titled LDEQ Issued COVID-19 Declaration and Administrative Order.

Continue Reading LDEQ Issues Second Amended COVID-19 Emergency Declaration and Administrative Order

On March 26, 2020, the Environmental Protection Agency announced a temporary policy of enforcement discretion for noncompliance as a result of COVID-19 or its protective measures that have been put in place. The policy is based on the recognition by EPA that worker shortage and social distancing measures may impact the ability of regulated entities to conduct and report certain monitoring activities required by federal permits, regulations, and statutes. The policy also recognizes that the pandemic and the measures put in place to address it impact the ability of the regulated entities to meet consent decree milestones and obligations, enforceable limits of air and water permits, hazardous waste management requirements, and safe drinking water requirements. This policy is retroactive to March 13, 2020, and will apply to conduct that occurs even after the policy terminates. EPA will notify the public at least seven days prior to ending this policy. Below is a summary of the major sections of the policy:

General Conditions

In general, EPA expects all regulated entities to comply with the requirements provided by their permits, regulations, and statutes. The exercise of EPA’s enforcement discretion under this policy is conditioned on the entities complying with the following:

  1. “Entities should make every effort to comply with their environmental compliance obligations.
  2. If compliance is not reasonably practicable, facilities with enforcement compliance obligations should:
    • Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
    • Identify the specific nature and dates of the noncompliance;
    • Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
    • Return to compliance as soon as possible; and
    • Document the information, action, or condition specified in a. through d.”


Continue Reading EPA Exercises Enforcement Discretion in Response to COVID-19 Pandemic

Unlike Louisiana and some other states, Texas has not elected, as of now, to issue COVID-19 statewide orders of shelter-in-place that could mandate the closure of, or result in reduced operations at, commercial and industrial facilities or businesses that may be regulated by TCEQ. Instead, Texas Governor Abbott has left such decisions to counties and localities which have issued such orders. Governor Abbott did issue Executive Order GA-08, effective March 19, 2020, which ordered the implementation of CDC social distancing concepts and closed schools, and which had the effect of encouraging people to work from home. TCEQ and other state agencies took additional steps. TCEQ has prepared regulatory guidance and has taken steps to minimize the impact of COVID-19 on both TCEQ staff and its customers, and has posted information and guidance on its web page. See here.

Continue Reading Texas Commission on Environmental Quality (TCEQ) Responds to COVID-19

Environmental issues may arise relating to shut-downs, start-ups, and upsets, as well as spills or releases from operating facilities in Texas relating to Harvey and the massive flooding that resulted. Many operating permits and authorizations require notification to TCEQ and/or EPA for force majeure events, such as floods and storms. Verbal notifications followed by written