The United States Environmental Protection Agency (EPA) announced on Thursday, March 26 that it is temporarily relaxing enforcement of environmental regulations and fines during the COVID-19 outbreak (the Policy). The Policy applies retroactively to March 13 and until EPA announces its termination. The measures in this Policy are temporary and will be lifted as soon as normal operations can resume, which may occur sooner in some locations than others. Some states have specifically responded to the EPA’s Policy. This is critical as most states have delegated authority for federal environmental programs under the federal Clean Air Act, Clean Water Act, the Resource Conservation and Recovery Act (RCRA), and the Safe Drinking Water Act.
The new EPA Policy details the agency’s enforcement discretion in response to regulated parties’ noncompliance with certain federal environmental regulatory and permitting obligations in relation to the COVID-19 pandemic. The Policy makes it clear that EPA expects regulated entities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. However, EPA will not seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where EPA determines that COVID-19 was the cause of the noncompliance. The regulated entity seeking enforcement relief must provide supporting documentation to EPA upon request. The most important aspect of this, and contrary to some news reports, and clarified in a press release issued by the EPA on March 30, 2020, is that it does not provide an excuse or a blanket waiver from compliance with federal environmental regulatory and permitting obligations and other compliance requirements. The Policy does not provide that the COVID-19 pandemic will excuse exceedances of pollutant limitations in applicable permits, regulations, and statutes.
EPA conditions relief under the Policy on the regulated entity making every effort to comply with their environmental compliance obligation and meeting a number of conditions. If compliance is not reasonably practicable, the regulated entity 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
- Document the information, action, or condition during the non-compliance
- Return to compliance as soon as possible.
If practical, sectors mandated to function with certified operators should maintain normal certification and training practices, but if not practical due to COVID-19, the EPA believes that it is more important to keep experienced, trained operators on the job, even without certifications. In each instance, EPA will be evaluating the non-compliance on a case-by-case basis.
There are some important limitations in the Policy. It does not:
- Alter consent decrees or court orders
- Apply to activities carried out under Superfund or RCRA Corrective Action instruments
- Apply to imports of products and goods
- Apply to criminal violations and conditions of probation.
With regard to imports, the Policy specifically notes the EPA’s concern about pesticide products entering the United States, or produced, manufactured, distributed in the United States, that claim to address COVID-19 impacts. Additionally, it does not cover accidental releases nor does it relieve any entity from its responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants. Importantly, it recognizes that states may take a different enforcement approach.
The EPA makes clear that public water systems have a heightened responsibility to protect public health because unsafe drinking water can lead to serious illnesses and access to clean water for drinking and handwashing is critical during the COVID-19 pandemic. As such, the EPA expects operators of such systems to continue normal operations and maintenance as well as required sampling to ensure the safety of our drinking water supplies. The EPA also expects laboratories performing analysis for water systems to continue to provide timely analysis of samples and results.
The EPA’s Policy is designed to be temporary. After it is no longer in effect, the EPA expects full compliance going forward. Generally, absent exigent circumstances, the EPA does not plan to have facilities “catch-up” missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For other monitoring or reports, such as those required on a bi-annual basis or annual basis, when the Policy is no longer effective, the EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible, including conducting later monitoring or submitting late reports.
Reaction to the Policy and COVID-19 Outbreak
The Policy specifically provides that states and tribes may take a different approach under their own authorities. As a result, state regulators are issuing additional guidance in response to the EPA’s relaxed enforcement on a range of environmental obligations by regulated entities affected by the COVID-19 pandemic. State and local government reactions to the EPA’s action are important to consider as most enforcement of federal environmental laws and regulations occurs through delegated authority to state or local environmental agencies.
Here are some examples of state-specific responses:
Ohio is one state that relaxed its environmental compliance obligations in light of the COVID-19 pandemic. On March 25, 2020, the Ohio Environmental Protection Agency (Ohio EPA) issued a short memorandum addressing notice and enforcement discretion for a broad range of environmental compliance issues, similar to the Policy. If a regulated entity is not able to reasonably comply with the existing requirements due to the COVID-19 outbreak, the Ohio EPA recommends that the entity communicate with the Ohio EPA via email. The communication should include:
- The specific regulatory or permit requirement which cannot be complied with.
- A concise statement describing the circumstances preventing compliance
- The anticipated duration of time that the noncompliance will persist.
- The mitigative measures that will be taken to protect public health and the environment during the need for enforcement discretion.
- A central point of contact for the regulated entity, including an email address and phone number.
If alternative compliance options are authorized by Ohio EPA, regulated entities must maintain records adequate to document activities related to the noncompliance and details of the regulated entity’s best efforts to comply. The memorandum does not obligate any regulatory entity to make such notifications above or beyond those obligations already found in applicable statutes, regulations, permits, orders or consent decrees.
On March 21, 2020, and later modified on March 26, 2020, the Ohio EPA issued a Coronavirus COVID-19 Response, Questions, and Guidance memorandum responding to multiple requests for clarification from public water system operators around Ohio. The memorandum provides only guidance and suggestions to public water systems on how to maintain system integrity and worker protection. In the memorandum, Ohio EPA did not announce exemptions from current requirements. Ohio EPA announced its intent to monitor continuing COVID-19 developments and that it will remain flexible in developing necessary responses, including the use of compliance deadline extensions and enforcement discretion.
Pennsylvania has not issued any additional guidance in reaction to the Policy. However, regulated entities are able to request a temporary suspension of regulatory requirements and/or permit conditions, by filling out a request form and submitting it to RA-EPCOVID19SuspReq@pa.gov. The request form contains a list of questions, including:
- Basic background information of the regulated entity
- Reasons for requesting a suspension
- Evaluation of risk to public health and the environment
- Certification that all of the information provided in the request form are true and accurate.
Pennsylvania Department of Environmental Protection (PA DEP) spokesman Neil Shader stated that “a company/operator/etc. would have to make the case that [such waiver] is necessary for COVID response, and only during the declared emergency.” Mr. Shader further stated that any waiver or relaxing of compliance requirements “would be considered only on a case-by-case basis, not a blanket policy.” However, due to the state office closures and reduced staffing related to COVID-19 pandemic, PA DEP has currently suspended the timeframes for providing permit decisions. PA DEP continues to process received permit applications, but due to operational conditions, applicants will experience delays. Priority will be given to projects that are critical to public health and safety during the COVID-19 pandemic.
Additionally, PA DEP is prioritizing field inspections that are critical to public health and safety. It is continuing to respond in the field to environmental emergencies that present an immediate threat to public health and safety. For industries that can remain open in Pennsylvania, “permittees and operators are expected to meet all terms and conditions of their environmental permits, including conditions applicable to cessation of operations.” Permittees and operators who are considered “life sustaining businesses as set for the March 19, 2020 order from Governor Wolf may continue to conduct permitted earth disturbance activities to the extent that those earth disturbance activities are in support of the operation of the life sustaining business.1 If earth disturbance activities are conducted, the permittee must remain in compliance with all terms and conditions of any applicable permit.”
Although PA DEP is currently developing guidance regarding the Policy, the Allegheny County Health Department (ACHD) officially stated that it will still enforce air quality standards even with the relaxing of EPA’s guidelines due to the COVID-19 pandemic. The ACHD considers air quality in the Pittsburgh region to be one of the most pressing public health challenges. Dr. Debra Bogen, the new director of the ACHD, stated that “ACHD’s enforcement of the county’s air pollution control regulations will not be impacted by the temporary EPA policy.” The current regulations in Allegheny County remain in place and violators will be subject to civil penalties.
West Virginia continues to enforce all applicable regulations amid the COVID-19 pandemic. On March 27, 2020, Gov. Jim Justice directed the West Virginia Department of Environmental Protection (WV DEP) to remain in constant communication with the EPA regarding potential compliance and enforcement issues that may arise, but currently all rules, regulations and permitting requirements in West Virginia remain in full effect. It’s important to note that the WV DEP expects regulated entities to continue to be operated in a manner that fully protects human health and the environment and to fully comply with the existing requirements. These requirements include, but are not limited to, continued operation and monitoring pollution control devices, record-keeping, maintenance, testing and reporting requirements. If compliance is not reasonably practicable due to issues related to COVID-19 pandemic, regulated entities with environmental compliance obligations should contact the WV DEP and follow the requirements outlined in the EPA’s Policy.
Practical Considerations Going Forward
As we are clearly in unchartered territory, EPA has provided some insight into its enforcement perspective. However, it remains uncertain to what degree individual states will follow this and/or implement similar policies. In this unprecedented time where information and state emergency orders change daily, we recommend the following steps as key cornerstones in navigating environmental compliance during the COVID-19 pandemic:
- Focus On Critical Compliance Obligations. The degree of one’s ability to comply with regulatory obligations will be in large part determined by whether the company is an essential business under state emergency orders and the availability of outside consultants to assist on compliance obligations, such as sampling, data collection and laboratory analysis. Does the company have multiple site locations with possible geographic limitations based on local and regional travel restrictions? Developing a realistic and manageable compliance list on a site-by-site basis is essential.
- Keep Accurate Records. More than ever contemporaneous and precise documentation of events are critical to any successful defense. Be prepared to document to the relevant agencies any deviation from standard requirements or obligations and how such deviation relates to the COVID-19 pandemic, social distancing, shut-downs, etc.
- Maintain Constant Communications. Keeping in contact with your in-house communications and permitting teams and outside consultants and counsel will provide decision makers with the best insight on managing environmental obligations during this COVID-19 pandemic.
- Give Notice to Regulatory Agencies. In those circumstances where the EPA or states are requiring or proposing communications with their environmental agencies regarding the impacts of COVID-19 on environmental operations and obligations, submit the required or requested information to the agencies establishing the impacts of COVID-19.