The increased limitations on day-to-day life resulting from efforts to slow the spread of COVID-19 have made previously routine regulatory compliance efforts more difficult. In some cases, regulated entities may find that they are unable to comply with certain requirements imposed by regulations, a settlement agreement, or a consent decree. For example, a hazardous waste generator may find it difficult to arrange for the transportation of their wastes to a disposal facility within the relevant accumulation period, emitters may not be able to obtain timely lab results of their emissions, or a gas station operator may be unable to find a contractor to conduct tank integrity testing.
Environmental Protection Agency
Recognizing this new reality, EPA issued a temporary policy on March 26, 2020, regarding the enforcement of environmental obligations. This policy may provide regulated entities with some enforcement relief if they find they are unable to meet their environmental obligations because of COVID-19.
With this said, it is important to understand what this policy is not — this is not a relaxation of any laws or regulations. Regulated entities should be suspicious when they read articles on the Internet that claim EPA has stopped enforcing environmental laws. All current environmental regulatory requirements remain in effect, and regulated entities are expected to attain full compliance unless they are prevented from doing specifically because of the COVID-19 pandemic.
In addition, this policy does not suspend or relax EPA’s enforcement program. It articulates that EPA may, on a case-by-case basis, elect not to impose certain enforcement measures, such as the imposition of civil penalties, if a regulated entity can demonstrate it is unable to comply with a requirement because of COVID-19. EPA’s enforcement program otherwise remains very much active, and the burden will be on the regulated entity to demonstrate that they are unable to comply because of COVID-19.
We expect the EPA will require stringent compliance with the temporary policy’s requirements before a business or individual may benefit from any enforcement discretion. This starts with understanding what the policy does not apply to, or otherwise does not affect, which includes:
- Criminal violations;
- CERCLA “Superfund” enforcement activities;
- RCRA corrective action enforcement activities;
- Importation of regulated products, such as pesticides regulated under the Federal Insecticide, Fungicide, and Rodenticide Act;
- Noncompliance that is not the result of COVID-19;
- Accidental releases of oil, hazardous substances, hazardous wastes, or chemicals that normally require statutory or regulatory reporting and response; and
- State programs.
If a regulated entity, after making every effort to comply, finds it is not reasonably practicable to comply with their environmental compliance obligations, they must:
- Minimize the effects and duration of compliance 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, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
- Return to compliance as soon as possible; and
- Document the information, action, or condition specified above.
A business which is unable to comply with an environmental obligation should contact EPA as soon as the potential noncompliance is identified. Early self-reporting is a factor EPA usually considers when assessing possible penalty mitigation and may help businesses preserve any rights they may have under force majeure clauses in their administrative settlement agreement or consent decrees. (For additional information on this topic, see here.)
The EPA’s temporary policy provides guidance specific to the following compliance scenarios:
- Routine compliance monitoring and reporting;
- Enforcement of settlement agreements and consent decrees;
- Facility operations, including those that emit air or water pollution, generators of hazardous waste, and animal feeding operations;
- Public water systems regulated under the Safe Drinking Water Act; and
- Critical infrastructure.
State Enforcement Programs
As noted above, EPA’s temporary policy does not apply to State programs. Regulated entities should therefore consult with state regulatory agencies if they are unable to comply with environmental requirements because of COVID-19. Some state regulators have posted similar temporary enforcement policies, including regulators in Washington, Oregon, and Texas. In addition, Virginia’s Department of Environmental Quality (DEQ) announced on March 27, 2020, that it was suspending all field work in order to “assess COVID exposure risks to field staff, develop exposure mitigation plans and prioritize monitoring and inspections for resumption of field activities.”
Interestingly, Virginia’s announcement does not state it is enacting a similar enforcement approach as EPA and other states. On the contrary, the announcement suggests DEQ is seeking to re-prioritize agency resources to account for personnel safety while it seeks to continue inspection and monitoring activities. Therefore, regulated entities in Virginia, at least for the moment, should assume DEQ will continue to treat noncompliance as it has historically until and unless DEQ issues more explicit guidance.
Moreover, regulated entities need to be cautious even in states that have announced temporary enforcement policies because municipal agencies may not adopt similar policies. Many Virginia local governments have their own permitting and enforcement authority for water pollution, wetlands protection, and solid and hazardous waste mishandling and they may not suspend their enforcement initiatives even though DEQ has suspended its field activities.
Businesses and individuals facing compliance challenges resulting from COVID-19 should consult with counsel as soon as the potential difficulty is known to ensure they fully understand how Federal, State, and local policies may affect their legal rights and liabilities. WRVB’s environmental law attorneys are available to assist.