The regulatory landscape has become a challenging place to operate as the nation struggles to contain the spread of COVID-19. The frequency and diversity of policy changes being issued by various levels of government, combined with the proliferation of information and misinformation, means regulated entities may find it difficult to track and accurately understand current environmental and safety requirements. While we have posted several articles on regulatory guidance issued by EPA, States, and OSHA, now is a good time to remember fundamental best practices.
Comply If You Can
Be careful with what you read on the Internet. Despite some reports to the contrary, all environmental and workplace laws are in effect and are being enforced. EPA, OSHA, and many states, including Virginia, Maryland, and North Carolina, have issued different variations of policies or announcements addressing enforcement discretion for noncompliance resulting from COVID-19 on a case-by-case basis. While EPA’s policy is one of the more detailed in articulating the agency’s intentions, including specific compliance scenarios, many news reports, Internet sites, and advocacy groups have mischaracterized this policy. Some reports have gone so far as to claim that EPA has stopped enforcing environmental laws altogether. These reports are, quite simply, wrong, and forced EPA to issue a press release to “correct the record.”
The undercurrent in all enforcement discretion policies is this: If you can comply, you must comply; if you can’t comply fully, you must comply to the extent you can. These policies articulate only that the regulator may consider COVID-19 considerations in enforcement decisions. The burden of proof will be on the regulated entity, and regulated entities should not assume that a regulator will agree with their justifications. Regarding environmental compliance, while the verbiage may differ between enforcement policies, generally speaking regulated entities should expect that these policies will apply only to routine reporting and monitoring activities; entities should not expect any relief for failing to report or respond to a release that may create an endangerment to the public or the environment. In addition, it is always worth remembering that purposeful noncompliance is often a criminal act, and no policy excuses criminal violations.
Document If You Can’t
If a regulated entity is unable to comply with a requirement, they should document the reasons why. For example, if a business simply cannot find an available inspector to conduct a tank integrity test by a compliance date, the business should document its efforts to find an available inspector, such as which inspectors were called, when, the justification for their unavailability, and importantly, when they will be available if known. Regulated entities will be better positioned to address regulator and public concerns if they document plans to come into compliance as soon as practicable, and develop mitigation strategies to help protect against unauthorized releases or exceedances in the interim, such as a more robust internal inspection regime, using less hazardous formulations or processes, or suspending waste-generating activities where feasible.
Communicate With Your Regulator
Once noncompliance is a possibility, follow the steps delineated by the applicable enforcement policy or your enforcement document to communicate with the regulator, which could be as simple as an informal email, or may require a formal written letter. Early notice may help satisfy notice requirements in a permit or enforcement document, preserve any force majeure rights, and may preemptively address allegations of intentional noncompliance arising from third-parties, such as a citizen complaint. A notice to a regulator should include the same kind information noted above, such as how the regulated entity is attempting to comply to the extent practicable, a plan to come back into compliance, and any actions taken to mitigate against potential harm the could result from noncompliance.
Review Your Documents
It is an unfortunate reality that, in normal times, many regulated entities do not read their permits or enforcement documents closely enough, which results in missed reporting deadlines, incomplete report content, or a misunderstanding of what the document requires. Another common problem is that individuals may read the document when first issued years before, but haven’t read them since. Employees implementing compliance requirements may rely mistakenly on word-of-mouth rather than review the permit or enforcement document. More than ever it is critically important to understand what these documents say so that the regulated entity knows when it may need to seek timely forbearance from a regulator, what notice requirements are in place, and what relief the document itself can provide if compliance becomes impracticable.
After reviewing their compliance documents, regulated entities should ensure that, as part of their business continuity plans, they account for the logistic and administrative requirements needed to comply, including simple things like ensuring appropriate employees have the login to EPA or state regulator websites, they understand report due dates, have access to compliance documents that may currently be accessible only from a computer in the office, and whether employees have the Internet access and software at home to file necessary reports digitally. Regulated entities should also ensure they have access to important contact information as they shift to remote operations, to include email addresses and telephone numbers for Federal and State regulators, compliance and response contractors, and counsel. Regulated entities must also ensure that, if operations are suspended or reduced, waste material or other substances that can present a public threat are secured to prevent unauthorized access and potential releases. For example, where localities have suspended hazardous waste accumulation times, entities must continue to ensure these wastes are properly categorized, stored, are appropriately labeled, tracked, and a process is in place to inspect them periodically.
Finally, government guidance is being promulgated on a frequent basis, particularly at the state and local level. When you add federal guidance issued by numerous agencies, regulated entities may face a labyrinth of sometimes inconsistent policies. This can be particularly challenging for regulated entities that have operations in more than one locality or state. It is critical, particularly in light of stay-at-home orders and social distancing, that regulated entities stay connected with their trade groups, consultants, and counsel to maintain an up-to-date understanding of how governmental policies affect their operations today, and how compliance activities will be judged by regulators when the pandemic passes. One excellent source of state information is the Counsel of State Governments COVID-19 page, which has a library of state executive orders and policies, in addition to links to federal agency websites.