Environmental Compliance In The Time Of Coronavirus.
By Megan McLean
As the COVID-19 pandemic wreaks havoc on our lives, owners and operators of facilities subject to environmental reporting and other compliance obligations face dramatically reduced staffing levels, critical supply disruptions, and other operational changes that may cause or contribute to environmental violations. Facilities are straining under the pressure to maintain social distancing requirements, quarantine individuals exposed to the virus, sustain operations with reduced personnel, protect their personnel, and preserve their supply chain resources.
Although all companies understand the need to protect human health and the environment, it may be impossible to meet every deadline, take every reading, and make every inspection during this emergency.
Recognizing this reality, many state and federal agencies have issued enforcement relief and response policies providing guidance on how to respond if environmental or other regulatory requirements can’t be met. These policies typically specify that all regulations remain in place and all agencies expect compliance.
However, in the event circumstances unique to the COVID-19 emergency cause, or will cause, noncompliance with a particular regulation, agencies and states have implemented procedures for handling enforcement discretion. If a business cannot meet a particular regulation, it needs to carefully review the relevant agency’s policy.
EPA’s COVID-19 Enforcement Policy
For example, on March 26, EPA’s Office of Enforcement and Compliance Assurance issued a policy outlining the agency’s approach to enforcing regulations when regulated entities find themselves unable to comply due to COVID-19-related circumstances like personnel shortages or travel restrictions.
Under the policy, if compliance is not reasonably practicable, facilities with environmental compliance obligations should:
a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
b. Identify the specific nature and dates of the noncompliance;
c. 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;
d. Return to compliance as soon as possible; and
e. Document the information, action, or condition specified in a. through d.
The policy divides compliance obligations into categories and treats potential violations differently. Significant leeway is given to noncompliance with routine compliance monitoring and reporting requirements, while discharges and emissions that could damage human health and the environment are scrutinized more closely.
Notably, if a facility is a generator of hazardous waste and, due to disruptions caused by the COVID-19 pandemic, is unable to transfer the waste off-site within the time periods required under RCRA to maintain its generator status, but the facility continues to properly label and store the waste and the facility meets the criteria laid out in the policy, EPA will continue to treat such entities as hazardous waste generators, and not treatment, storage and disposal facilities.
In addition, EPA will treat Very Small Quantity Generators and Small Quantity Generators as retaining that status, even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold due to the generator’s inability to arrange for shipping of hazardous waste off site due to the COVID-19 pandemic.
Nevertheless, regulated entities are well-advised to follow the direction of the temporary guidance to document their steps carefully, and to provide notice to the government where required or where questions arise.
Rolling Back EPA’s COVID-19 Enforcement Policy
EPA’s temporary enforcement policy ends on Aug. 31. This means that the EPA will not base any exercise of enforcement discretion on this policy for any noncompliance that occurs beginning Sept. 1. In addition, EPA reserves the right to terminate the enforcement discretion policy earlier than Aug. 31, though only by providing a minimum of seven days advance notice.
The termination of the temporary policy will require facilities to return to timely reporting, though under the terms of the temporary policy “catch-up” reports will not be required. In addition, annual or bi-annual reporting obligations may be required, even if the monitoring is conducted later than typically required. The termination also ends the blanket discretion to eschew civil penalties for noncompliance related to COVID-19.
Nonetheless, EPA recognizes that circumstances surrounding the COVID-19 pandemic continue to evolve. The policy specifically states that EPA can still exercise its enforcement discretion on a case-by-case basis regarding any noncompliance, “including any noncompliance caused by the COVID-19 public health emergency,” even after the Enforcement Discretion Policy is terminated.
With confirmed cases of COVID-19 on the rise nationwide, and renewed restrictions being implemented in several states, facilities may vary drastically in their ability to return environmental compliance operations back to pre-COVID expectations. While there are no assurances of civil penalty avoidance after August 31, strong documentation of good faith efforts toward compliance will go a long way toward resolving issues as they arise.
As a result, regulated facilities should give additional attention to their compliance plans and contingencies prior to August 31 and should keep in mind that some states and federal agencies will likely follow EPA’s lead and also revise their enforcement discretion policies.
Facilities should use this time to evaluate whether they expect compliance challenges in the coming months and whether there are any steps they can take to reduce non-compliance risks.
This is also a good time to compile the necessary documentation to support discretion because if workforce shortages or other COVID-19 related legal restrictions make compliance obligations impossible or impractical, the documentation framework set out in Enforcement Discretion Policy remains good practice.
Megan E. McLean is an associate at Husch Blackwell LLP. She confidently handles a variety of legal matters involving environmental permitting and compliance with state and federal environmental laws and regulations, as well as health and safety requirements under OSHA. McLean can be reached at [email protected].