Earlier this week, we provided guidance on the development of an “Environmental Action Plan” to address potential environmental regulatory and compliance challenges arising from the COVID-19 crisis. Our recommendations included – in the context of limited or unavailable EHS staff or resources and in response to plant shutdown orders – (i) a prioritized assessment of potential risks to human health and the environment and compliance concerns with permits or cleanup order obligations, (ii) effective communication with applicable environmental authorities, and (iii) thorough documentation of the COVID-19 challenges and reasonable steps taken to minimize the impacts of any inevitable consequences. Yesterday, U.S. EPA issued its “temporary policy” for how it intends to approach enforcement of environmental legal obligations during the pendency of the crisis. While environmental groups were quick to criticize the Agency’s policy overnight, it appears to strike the right balance of providing necessary relief from administrative obligations while still imposing obligations on operators of industrial facilities to protect worker health and safety and the environment – embracing in many respects the spirit of our action plan recommendations.
U.S. EPA’s Expectations of Industry.
Before discussing the potential relief afforded industrial operators under this policy, we note the clear expectations imposed by U.S. EPA on regulated facilities seeking to avail themselves of the benefits of this temporary enforcement policy.
First, the policy states clearly that “EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment.” In this regard, U.S. EPA expects all facilities to notify the appropriate regulatory authority – either EPA, state authorities or tribal governments – in the event that any inability to comply with environmental requirements as a result of the COVID-19 crisis could result in “acute risk” or “imminent and substantial endangerment” to human health and the environment. Similar notice is also required should the failure of pollution control equipment or other compliance systems result in exceedances of permit standards or limits. Notice to the agencies will be followed by active engagement by and between the agencies and regulated entities on actions to avoid or minimize any potential adverse consequences from any failed compliance.
Second, the policy also makes clear that regulated facilities are required in the first instance to make every effort to comply with their regulatory obligations. Where compliance is not possible due to COVID-19 causes, industrial operators must “act responsibly” in order to “minimize the effect and duration of any noncompliance caused by COVID-19.” This will require (i) prompt reporting of any noncompliance as required under applicable permits or government orders, including relevant force majeure provisions, and (ii) documentation of the impact of COVID-19 on compliance and the steps taken by the facility to return to compliance as quickly as possible.
Potential Relief from Environmental Requirements/Exercise of Agency Enforcement Discretion.
U.S. EPA’s COVID-19 enforcement policy provides that, in the event that a facility has fulfilled its obligations under the policy, the Agency will exercise its enforcement discretion and not pursue enforcement or stipulated penalties in Agency orders for compliance shortcomings caused by COVID-19. The policy notes that relief would extend to compliance monitoring and reporting, training requirements, reporting obligations and other milestones under government settlement agreements and orders, violations of 90 day hazardous waste storage requirements and exceedances of applicable permit standards. Again, the ability to garner favorable enforcement relief from U.S. EPA will depend upon a facility’s satisfaction of notice requirements in any permits, orders or the COVID-19 policy itself.
The policy also includes guidance on when after-the-fact “catch-up” reporting will be required (for reporting durations of 3 months or greater) and other relief (e.g., VSQ and SQ generators of hazardous waste will not lose their status from delays in off-site disposal of any accumulated waste).
Duration of this Temporary Enforcement Policy.
The policy is retroactive to March 13th and will remain in effect until U.S. EPA indicates otherwise, with 7 days advance notice of termination required by the Agency.
What is not Covered by the Policy.
U.S. EPA makes clear that criminal liability for the “intentional disregard of the law” is not covered. This policy also does not apply to cleanups being conducted under the Agency’s Superfund or RCRA authority, which the policy indicates will be covered in a forthcoming, separate policy document, and regulations involving the importation of products into the U.S. The policy also does not apply to state enforcement actions.
What are the States Doing?
In general, we have found most state agencies to be open to discussion and compromise when approached with COVID-19 compliance issues, especially around delays in schedules for required monitoring. This has not been not universally true, however, so active outreach is advisable and diligent documentation of any agreements on relief from compliance requirements must be done. A number of states are developing their own COVID-19 enforcement policies, examples of which include the following:
- Indiana and Washington – Exercise of enforcement discretion for failed compliance (notice and documentation expected) - https://ecology.wa.gov/About-us/Get-to-know-us/Coronavirus-Updates/Regulatory-flexibility
- Louisiana – Extension of reporting deadlines and monitoring requirements - https://www.deq.louisiana.gov/assets/docs/Covid-19/Amended-Declaration-of-Emergency-COVID-19-03-20-20.pdf.
- Ohio and Texas – Emails have been set up to field requests for relief from compliance obligations impacted by COVID-19 - https://www.tceq.texas.gov/response/covid-19.
How we can Help. U.S. EPA’s new COVID-19 enforcement policy and similar actions across the states reflect a recognition of the very real environmental compliance challenges confronted by industry amidst this crisis. Relief is increasingly available, but requires careful planning, satisfaction of notice and other regulatory obligations, active engagement with the regulators and documentation of accommodations and relief granted. Baker McKenzie's Environmental Group is available to answer any questions you might have and provide legal support and counsel as you navigate the environmental issues that arise as the COVID-19 crisis continues to evolve. Please reach out to our COVID-19 contacts should you need further assistance.