Emergency Waiver of Health, Safety, and Environmental Rules

by Victor Flatt

On August 23, 2017, Texas Governor Greg Abbott declared a state of emergency as Hurricane Harvey approached the Texas Coast. That state of emergency was ultimately expanded to 60 counties in Texas. Emergency declarations in Texas (as in many states and for the federal government) allow the governor to unilaterally suspend specific rules and regulations if they are expected to hinder disaster recovery. The Texas Commission on Environmental Quality (TCEQ) asked Governor Abbott to suspend dozens of environmental rules on August 28, 2017, as Harvey was continuing to pummel Houston and the Texas Gulf Coast area.

The waiver request specified air quality rules related to emission “upset” events as well as monitoring and releases of unpermitted Volatile Organic Compounds. Predictably, the request indicated that it was necessary because of immediate Harvey impacts and hurricane recovery efforts. Specifically, the TCEQ’s request noted that compliance with air and water pollution laws:

may not be possible as a result of hurricane effects, such as lightning, floods, fires, wind or wind-blown damage, and power outages[;] and suspending these requirements would remove a potential impediment to disaster response.

However, these waivers were still in place months after the direct effects of the hurricane (lightning, floods, fires, wind, or wind-blown damage) had passed and electricity had been restored. Most of the Gulf Coast region, including Harris County, had dried out within four weeks, and electricity was mostly restored within days.

Abbott did not end the emergency waiver of these air and water pollution rules until April 6, 2018, more than eight months after Hurricane Harvey hit. During this time, investigators from news organizations and NGOs discovered more than 100 toxic releases. According to the Houston Chronicle:

In all, reporters catalogued more than 100 Harvey-related toxic releases — on land, in water and air. Most were never publicized.

While some of these incidents happened during Hurricane Harvey itself, many others may have happened afterwards:

The public will probably never know the extent of what happened to the environment after Harvey,” said Rock Owens, supervising environmental attorney for Harris County. “But the individual companies of course know.

Given that vulnerable communities bear a disproportionate burden of proximity to industrial facilities, it is virtually certain that they will bear the brunt of releases that occur as a result of such waivers during and after disasters. When a disaster such as an unprecedented flooding occurs in Houston, an industrial behemoth, the results are particularly bad. According to Time:

“Any mass flooding event brings with it public health concerns about the spread of contaminants through the water, but Houston’s industrial sector — heavy on oil, gas and chemicals — has experts particularly worried that extreme flooding has created conditions that could lead to environmental disaster.”

After the suspension of environmental, health, and safety requirements around Houston, many companies handled their releases internally because reporting requirements were also suspended. The lesson here is that when environmental, health, and safety rules are waived during disasters, we may not only harm public health, but we may also never know the extent of that harm. The failure to report may be more problematic than the emission waivers themselves.

The experience with Harvey in Houston is by no means unique. Environmental rules have been suspended during and after other disasters. After Superstorm Sandy flooded New York City’s subway system, the floodwaters were discharged into open water as quickly as possible without permitting niceties.

Government Overreach on Emergency Waivers

During a disaster, immediate actions may be necessary to preserve life and public health as well as property. In such cases, government wants to have a system in place to alleviate legal liability when actions are designed to deal with a greater harm. Most disaster waiver laws use language that seems to limit waivers to times of emergency or crisis. However, depending on the state, how an emergency is defined, and when and how the emergency waivers are lifted, and depending on how EPA accommodates state waivers, locations can technically still be in emergency situations long after the possibility has passed that enforcement of environmental and health laws might complicate rescue and recovery efforts after a disaster.

As seen in Texas after Hurricane Harvey, the disaster was exploited to suspend environmental rules and reporting far longer than it should have been.


What Should Be Done?

There must be limits to emergency suspensions of environmental, health, and safety rules. Regulated parties should have as much incentive as possible to prepare for and control emission releases during disasters, and data concerning releases should continue to be gathered to the extent possible. Especially given that such disasters are likely to continue increasing in the face of climate change, careful planning is paramount.

We suggest three regulatory alterations to the current scheme:

Require a Plan for Emergencies

The EPA should require facilities permitted under the Clean Air Act, Clean Water Act, and Resource Conservation and Recovery Act to plan for how they can best control emissions or avoid upset emissions when a disaster or emergency occurs. This could be accomplished with a new rulemaking or guidance. Because emergency exceptions to these statutes are discretionary, a rule could be created to detail how they could be limited.

The Emergency Planning and Community Right to Know Act (EPCRA) already provides a template for the parameters of such a requirement. EPCRA requires the EPA administrator to compile a list of hazardous substances and amounts which, when present at a facility, trigger the requirement to plan for an emergency. All permitted CAA, CWA, and/or RCRA sources could be required to plan for an emergency or disaster, or a subset of major sources could be so required (above a certain threshold amount of emissions). The Clean Air Act already has a definition of a major source for both conventional and hazardous air pollutants. Limiting or starting with the subset of largest sources also would make the review of such plans more manageable by the implementing agency. Each source subject to the emergency and disaster planning could be charged an amount to cover the additional personnel necessary for timely review of such plans. EPA could start a process of basic implementing regulations to determine minimum requirements for such plans.

Keep Records of Emissions and Report to the Public

While record-keeping requirements could still be included in the suspension of rules during a disaster, the EPA should promulgate a rule that specifies that to the extent possible, all permitted entities should keep records of releases during disaster suspensions and continue to report these to their permitting agency (whether the state or the federal government). Except during the most intense phase of an emergency, when personnel may need to be evacuated or power is not available, most companies are already keeping track of their releases. There is no reason they should not be required to report what they know.

Institute Federal Review of Waivers

A new EPA regulation or guidance should clarify that a state’s emergency suspension of environmental rules for federally based requirements (such as RCRA, CERCLA, the CWA, and CAA) will be subject to federal agency review, and that it should automatically sunset after two weeks. It can be reinstated, but it should go through review at that time. As noted in the example above, though the TCEQ’s request for emergency waivers was purportedly based on active hurricane impacts or loss of power, the waiver continued for more than eight months after the initial danger.