Environmental Compliance Requirements Amidst COVID-19

COVID-19 has changed the way many of us live our day-to-day lives. For weeks, businesses have issued statements outlining the measures they’ve taken in response to the evolving pandemic. Similarly, some federal and state agencies have been providing direction for complying with regulatory requirements during these times.

The Federal EPA

The United States Environmental Protection Agency (“the EPA”) has acknowledged the effect COVID-19 may have on regulatory and enforcement matters in a recent memorandum on temporary policy. The memorandum provides that the EPA will exercise enforcement discretion on several matters, beginning retroactively on March 13, 2020, until further notice.

Generally, under the policy, all entities are expected to make every effort to satisfy environmental compliance obligations. If compliance is not reasonably practicable, EPA expects parties to act responsibly to minimize effects and duration of noncompliance, identify specific nature and dates of noncompliance, identify how COVID-19 was the cause of noncompliance, return to compliance as soon as possible, and document the information, action or condition appropriately. The temporary policy requires parties to submit notice of noncompliance to the appropriate authority and to generate and maintain thorough documentation of such noncompliance. All such notifications, documentation, and communications with EPA should be carefully prepared and handled to best support the parties’ objectives and protect their legal interests.

Routine Compliance Monitoring and Reporting

The EPA expects entities to use existing procedures to report noncompliance with routine activities, such as pursuant to an applicable permit, regulation or statute. However, the EPA does not expect to seek penalties for violations of “routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certifications” in situations where the EPA agrees that COVID-19 was the cause of non-compliance, so long as the entity provides supporting documentation to the EPA upon request. Should reporting become not reasonably practicable due to COVID-19, regulated entities should maintain the information internally and make it available to the EPA or authorized state upon request.

For the time being, the EPA will accept digital or electronic signatures for submissions that formerly required a “wet” signature, and for enforcement purposes, the EPA will also accept emailed submissions even for those typically required to be a paper original.

With respect to settlement agreement and consent decree reporting obligations and milestones, parties should use the notice procedures set forth in the agreement or consent decree if, as a result of COVID-19, they anticipate missing enforceable milestones, including notification of a force majeure. EPA staff will review the notifications and may contact the party to seek adjustments to a proposed plan of action, pursuant to the agreement. In such circumstances, EPA intends not to pursue penalties for noncompliance with certain settlement agreement obligations. For consent decrees, courts retain jurisdiction and may exercise their own authority. Upon receipt of noncompliance notice from a party, EPA staff plan to coordinate with the DOJ to exercise enforcement discretion and not seek stipulated penalties for failure to satisfy routine compliance obligation.

Facility Operation

The 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. Should COVID-19 impact facility operations and create an acute risk or an imminent threat to human health or the environment, the EPA advises facilities to contact the appropriate implementing authority (EPA region, authorized state, or tribe).

Should a facility suffer from failure of air emission control or wastewater treatment systems or other facility equipment that may result in exceedances, the facility should notify the implementing authority as quickly as possible. The notification should include information on the pollutants emitted, discharged, discarded, or released; the comparison between pollutants expected to be released and what was actually released; and duration and timing of exceedances or releases.

If a facility is a generator of hazardous waste and, due to COVID-19, is unable to transfer the waste off-site within the time periods required under RCRA to maintain its generator status, the facility is advised to continue to properly label and store such waste. If the appropriate steps are met, the EPA will not treat such entities as treatment, storage, and disposal facilities. Further, the 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 of the generator’s site due to the COVID-19 pandemic.

With respect to animal feeding operations, if an entity is unable to transfer animals off-site and, solely as a result of the pandemic, meets the regulatory definition of concentrated animal feeding operation (“CAFO”), as an exercise of enforcement discretion, the EPA will not treat such animal feeding operations as CAFOs (or will not treat small CAFOs as medium CAFOs, or medium CAFOs as large CAFOs).

Public Water Systems Regulated Under the Safe Drinking Water Act

The EPA has heightened expectations for public water systems and expects operators of such systems to continue normal operations and maintenance as well as required sampling to ensure the safety of public drinking water supplies. The EPA expects laboratories performing analysis for water systems to continue to provide timely analysis of samples and results. The EPA strongly encourages public water systems to consults with the state and regional EPA offices without delay is issues related to safe drinking water arise.

Importantly, the policy does not apply to activities carried out under Superfund and RCRA Corrective Action enforcement matters. Such matters will be addressed in a separate communication, according to the EPA. Further, the policy does not apply to imports. The EPA states that it is especially concerned about pesticide products claiming to address COVID-19 concerns, generally governed by FIFRA. The EPA plans to update its policy on a regular basis and may provide additional enforcement guidance in the future.

Finally, the EPA warns that this temporary policy does not relieve any entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants.

The California EPA

Although the federal EPA, in its temporary policy (outlined above), advises that authorized states or tribes may take a different approach under their own authorities, the California Environmental Protection Agency (“CalEPA”) has yet to provide COVID-19 related guidance to regulated entities. However, other California agencies have issued guidance, including the following, that take a very different approach to the federal EPA.

California Air Resources Board

The California Air Resources Board (“CARB”) issued a response to COVID-19 recently. According to the statement, CARB’s regulations continue to be in effect and deadlines remain unchanged.

State Water Resources Control Board

The State Water Resources Control Board and the nine California Regional Water Quality Control Boards (“the Water Boards”) also issued a response to the pandemic. The Water Boards advised 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.

The Water Board provides, however, that if there exists a specific Water Board order or requirement that cannot be timely met due to inconsistent government directives in relation to COVID-19, the entity should notify the applicable regional Water Board immediately with the following information: the specific order, regulation, permit, or other requirement that cannot be timely met; the inconsistent COVID-19 directive; an explanation as to why the order/requirement cannot be met; and any action the entity plans to take in lieu of compliance with the order.

As a regulated entity, remaining compliant and following evolving agency directives can be challenging during these uncertain times. If you need assistance, we are here to help. Please contact us at [email protected].

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