The Nickel Report

Last month, the Texas Commission on Environmental Quality (“TCEQ”) launched a temporary “Find It and Fix It” program effective through January 31, 2021 to facilitate air quality compliance for companies with oil and gas operations in the Permian Basin.  Regulated entities that comply with the requirements of the temporary program may be eligible for enforcement discretion.  The program will be available to those companies that: (i) provide notification to TCEQ of their intent to participate in the program and (ii) submit a compliance plan to return covered facilities to compliance.

TCEQ has developed online notification forms and compliance plan submission forms to be used in connection with the “Find It and Fix It Program.” Generally, within 30 days of providing notification to TCEQ of intent to participate in the program, absent an extension, participants are required to submit a compliance plan that includes all operational and permitting changes needed to return the facilities to compliance.  Participants are expected to achieve operational and permitting compliance within 180 days of submitting the notification to participate in the program.  However, if a longer time period is needed to come into compliance, companies may request to enter a compliance agreement with TCEQ’s Enforcement Division to achieve compliance.  If approved, compliance agreements would establish deadlines to achieve compliance but would not result in the imposition of penalties.

Companies considering participation in the program should bear in mind the following: (i) the program applies only to statutes and rules under the jurisdiction of TCEQ (not the U.S. Environmental Protection Agency (“EPA”) or the Railroad Commission of Texas (“Railroad Commission”); (ii) TCEQ reserves the right to deny enforcement discretion for violations identified that adversely impact human health and the environment; and (iii) failure to comply with the requirements of the “Find It and Fix It Program” may result in loss of enforcement discretion.  In addition, companies may avail themselves of the Texas Environmental, Health, and Safety Audit Privilege Act (“Texas Audit Act”) or the “Find It and Fix It Program, but not both.

TCEQ recently conducted an online workshop providing further information about the “Find It and Fix It Program.”  The presentations for the “Find It and Fix It” workshop, as well as various other TCEQ online workshop presentations for the oil and gas industry covering emission events, air permitting options and Texas Audit Act are available for review on TCEQ’s website.” Earlier this year, TCEQ published reports of air monitoring surveys of the Permian Basin in response to an increase in reported emission events and complaints from area residents. The Railroad Commission has also devoted attention to flaring concerns this year. While the oil and gas industry has taken active steps to address flaring, regulatory focus on emissions in the Permian Basin will likely continue.