Over the past month as the COVID-19 pandemic has grown and states and localities have issued non-essential businesses to suspend activities, there have been questions regarding the impact this will have on environmental compliance requirements. From the United States EPA (US EPA) guidance memo to state regulatory agencies, there have been announcements regarding how companies should proceed and what is required under current conditions. As the situation is dynamic and every company’s operations are impacted in different ways, there is no ‘one-size-fits-all’ answer. However, below are some excerpts and examples from the US EPA, state agencies, and law firms analyzing the current approach to environmental compliance during the COVID-19 pandemic.
On March 26, 2020, the United States Environmental Protection Agency (US EPA) Issued a memo titled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, which outlined their approach to enforcement with regard to the COVID-19 pandemic. As noted, “[t]he EPA will exercise the enforcement discretion specified below for noncompliance covered by this temporary policy and resulting from the COVID-19 pandemic, if regulated entities take the steps applicable to their situations, as set forth in this policy.” This means, that while US EPA may relax its enforcement of certain submittal deadlines, etc., however, the temporary change in policy is not a license to avoid compliance with applicable permit and regulatory requirements as noted in the section titled “Routine Compliance Monitoring and Reporting.” In this section, they state that “[i]f the EPA agrees that the COVID-19 pandemic caused an entity’s noncompliance with any routine monitoring and reporting requirement, then the EPA expects that it will not seek penalties for noncompliance. This discretion, of course, is conditioned on the entity reporting its noncompliance and documenting its compliance with the five steps outlined.”
Here is a summary of the five steps outlined by the US EPA, which have been either adopted outright by state regulatory agencies or they’ve implemented similar policies:
- Minimize the effects and duration of any noncompliance;
- Identify the specific nature and dates of the noncompliance;
- Identify how COVID-19 was the cause of the noncompliance and what decisions and actions taken in response to the noncompliance, including what were best efforts taken to return to compliance as soon as possible;
- Return to compliance as soon as possible; and
- Be prepared to show documentation to the EPA of the preceding four steps.
In Mapistry’s webinar with environmental leaders from Recology and Oldcastle Infrastructure, we discussed how their approach would be to comply where possible and to thoroughly document non-compliance and notifications. Their approach is similar to the steps outlined by the US EPA. And despite the fact that some news reports, like this one by the New York Times, claim that this measure “drastically relaxes rules for polluters,” the reality is quite different. From the discussions we’ve had with both regulators and industry leaders, many industrial and manufacturing companies are still approaching environmental compliance as “business as usual.” In this post from the law firm, Hanson Bridgett on environmental laws and COVID-19, they provide an important viewpoint on how industrial facilities should view compliance during the COVID-19 pandemic, “[c]ritically, regulated entities should not treat the EPA’s temporary policy as a waiver from their environmental obligations. In fact, the temporary policy requires that entities continue complying with all statutory, regulatory, permitting, and other legal obligations during the COVID-19 pandemic.” Furthermore, the US EPA published a letter to all members of Congress on April 2nd, 2020 stating that “EPA’s enforcement authority and responsibility remains active,” said EPA Administrator Andrew Wheeler. “This is not a nationwide waiver of environmental rules. We will continue to work with federal, state and tribal partners to ensure that facilities are meeting regulatory requirements, while taking appropriate steps to protect the health of our staff and the public.”
Washington Department of Ecology
The Washington Department of Ecology put out a policy on regulatory flexibility, including prioritization of inspections and expected compliance with laws and regulations. They have temporarily suspended their own inspections due to their Governor’s Stay-At-Home order, but anticipate prioritizing follow-up inspections once that is lifted. They did state, “we will continue compliance and enforcement efforts during this time” and ask businesses to reach out to them with their unique situation(s).”
Georgia Environmental Protection Department (EPD)
Georgia EPD Issued a memo dated March 31st, 2020 that included a general statement they will be defaulting to US EPA memo (noted above) as guidance and not issuing their own separate one, but that “US EPA’s Memo does not change compliance obligations for regulated entities” and “Please be aware that the Memo does not alter the terms of consent decrees or court orders and does not relieve any entity from its responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous wastes, and other pollutants. “
California Water Resources Quality Control Board (“Water Board”)
California’s Water Board was one of the early agencies to post guidance for companies on environmental compliance. One of their key statements is “Please be aware that timely compliance by the regulated community with all Water Board orders and other requirements (including regulations, permits, contractual obligations, primacy delegations, and funding conditions) is generally considered to be an essential function during the COVID-19 response. As a result, the Water Boards consider compliance with board-established orders and other requirements to be within the essential activities, essential governmental functions, or comparable exceptions to shelter-in-place directives provided by local public health officials.”
Indiana Department of Environmental Management (IDEM)
Indiana Department of Environmental Management (IDEM) also reiterated in a document titled “Enforcement Discretion, Extension of Submission Deadlines, and Waiver of Specific Regulations” that there would be no waivers generally applied for regulatory requirements, stating “The Indiana Department of Environmental Management (IDEM) is cognizant that some regulated entities may be experiencing difficulties in maintaining normal operations due to reduced workforces at some facilities. IDEM has not identified any regulatory requirements that should be generally waived as a result of workforce impacts due to COVID19. Rather, all regulated entities are encouraged to take all available actions necessary to ensure continued compliance with environmental regulations and permit requirements to protect the health and safety of Hoosiers and the environment. “
Texas Commission on Environmental Quality (TCEQ)
In Texas the TCEQ posted guidance on specific deadlines making a one month extension, otherwise adhering to existing regulatory requirements. For example, stormwater reports due by March 31st are “[d]ue to COVID-19 and reduced staff in the workplace, TCEQ will exercise enforcement discretion and consider the above reports submitted on or before April 30, 2020, as timely received.” Similarly for point source air emission inventories due by March 31st, “[d]ue to COVID-19 and reduced staff in the workplace, TCEQ will exercise enforcement discretion and consider 2019 point source EIs submitted on or before April 30, 2020 as timely received. The agency will consider additional enforcement discretion regarding this deadline as conditions warrant in response to COVID-19.”
Wyoming Department of Environmental Quality (DEQ)
In Wyoming, the DEQ used the COVID-19 pandemic as an opportunity to make a push for electronic submission of regulatory documents. This reflects a growing trend and frankly an acceleration of digitization of environmental compliance both at the facility and regulatory levels.
Pennsylvania Allegheny County Health Department (ACHD)
Even at a local level we are seeing a consistent focus on enforcement and an adherence to existing environmental rules and regulations. From Allegheny County in Pennsylvania, the local air district is still enforcing air quality standards and is not impacted by a perceived change in policy by the US EPA according to a local news source. From the ACHD news release, “the Allegheny County Health Department (ACHD)’s enforcement of the county’s air pollution control regulations will not be impacted by the temporary U.S. Environmental Protection Agency (EPA) policy. Article XXI, Air Pollution Control, will remain in place to govern the county’s air pollution control regulations with ACHD as the local regulatory authority. “
Generally, the takeaways from US EPA temporary policy memo and the state regulatory agency guidance as it relates to environmental compliance is to continue to comply with existing requirements and obligations. If COVID-19 or “stay at home” orders from states or localities prevent a company from complying or meeting a deadline, the consensus (see our discussion with environmental leaders from Oldcastle Infrastructure and Recology) is to alert the appropriate agency and document variance, exceptions, and prohibitive conditions. It also has been very clear in discussions with regulators and environmental leaders and even from regulatory guidance issued, that environmental laws are not suspended during the COVID-19 pandemic.
For more information and a legal perspective on COVID-19 and environmental compliance, below are articles from two of our partner law firms:
- Complying with Environmental Requirements During COVID-19 by Samir Abdelnour of Hanson Bridgett
- COVID-19: Practical Tips for Environmental Compliance by Catherine Johnson of Environmental General Counsel