As the effects of the COVID-19 pandemic spread, and as state and local governments impose work and travel restrictions designed to limit that spread, U.S. EPA and state regulators are being forced to confront their own version of the “essential” vs. “non-essential” business operation question. Specifically, to what extent must regulated entities continue to dispatch employees to meet compliance requirements imposed by environmental permits, orders and statutes? While recognizing, as they should, that some flexibility in enforcing such obligations is warranted in these unprecedented times, regulators’ guidance to date does not provide the regulated community with bright-line rules. Their guidance to businesses largely amounts to, “Do your best, notify us promptly if you can’t comply, document everything and trust us to be reasonable.”
The U.S. EPA’s COVID-19 Enforcement Discretion Policy
On March 26, 2020, Susan Bodine, U.S. EPA’s Assistant Administrator for Enforcement and Compliance Assurance, issued a memorandum entitled, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” (U.S. EPA Policy). The memorandum expresses EPA’s general intention to exercise enforcement discretion under a range of circumstances. The U.S. EPA Policy expressly excludes compliance issues arising under Superfund and RCRA Corrective Action instruments, indicating that they will be addressed separately at some point. Also excluded from the policy are criminal violations, violations of criminal probation orders and import restrictions, particularly those associated with imported pesticides. Finally, the U.S. EPA Policy makes clear that it does not modify any obligation under federal law “to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants….”
For those regulated facilities that operate under the jurisdiction of federal permits, orders and regulations, rather than delegated state authorities, the U.S. EPA Policy provides that “EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.”
However, to qualify for such forbearance the facility must notify EPA of the violation in accordance with the requirements of its permit or the applicable regulation and then compile documentation of the following: (a) the responsible actions by the facility to minimize the effects and duration of any noncompliance caused by COVID-19; (b) the specific nature and dates of the noncompliance; (c) how COVID-19 was the cause of the noncompliance; and (d) actions taken to return to compliance as soon as possible. For noncompliance events that do not otherwise trigger an affirmative obligation to notify EPA, facilities should consider notifying EPA via its automated online “eDisclosure” system (https://www.epa.gov/compliance/epas-edisclosure), which will activate EPA’s existing self-disclosure, penalty mitigation policy.
Signaling that facilities must take reasonably available steps to avoid noncompliance, the U.S. EPA Policy notes that many training and certification requirements can be met via on-line resources, and expressly encourages the use of electronic signatures even when an actual “wet” signature would otherwise be required.
Specific Applications of the U.S. EPA Policy
Orders. For reporting obligations and milestones imposed by federal administrative orders, the U.S. EPA Policy expects respondents to provide notification in accordance with the agreement’s force majeure provision and represents that the agency intends to follow the same approach to violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and associated reporting or certification obligations that would apply to obligations imposed under federal permits and rules. For federal judicial orders, EPA intends to work with the Department of Justice to take the same approach, but notes that it cannot dictate the positions taken by non-federal co-plaintiffs or the courts.
Generator Status. Enforcement discretion under the U.S. EPA Policy applies to hazardous waste generators who, due to disruptions caused by the COVID-19 pandemic, are unable to transfer their waste off-site within the time periods required under RCRA to maintain their generator status and to Very Small Quantity Generators and Small Quantity Generators who are forced to accumulate waste on-site in excess of the regulatory volume threshold. If EPA agrees that such time and volume exceedances were caused by the pandemic, EPA will not recognize a change in such facilities’ generator status.
CAFOs. Similarly, facilities considered a “animal feeding operation” will not be reclassified as a “concentrated animal feeding operation” (CAFO) or reclassified from a small to medium or from a medium to large CAFO if the facility is unable to transfer animals off-site solely as a result of the pandemic and the facility compiles the documentation described above.
As the U.S. EPA Policy expressly claims not to be a new regulation and not to alter any existing regulations, however, questions regarding EPA’s authority to effectively disregard the otherwise automatic consequences of its hazardous waste generation and CAFO rules might be a challenged by environmental activists in court.
Imminent and Acute Risks. The U.S. EPA Policy emphasizes 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” and that facilities “should contact the appropriate implementing authority (EPA region, authorized state, or tribe) if facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment.” If the facility is subject to federal jurisdiction, “EPA will inform the relevant state or tribe of any acute threats and actions taken in response to the noncompliance,” but EPA commits only to “consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.” Even if the facility is subject to the jurisdiction of an authorized state or tribal program, the U.S. EPA Policy “strongly encourages” consultation with the relevant EPA regional office on facility events that may present acute risks or imminent threats.
Public Water Systems. Because of the importance of maintaining safe public water supplies, particularly during public health crises like the COVID-19 pandemic, EPA expects public water systems to maintain full compliance. Because such systems may still encounter resource shortages, the U.S. EPA Policy specifies how monitoring obligations should be prioritized and suggests that future enforcement decisions will be influenced by whether systems acted in accordance with those directives.
Potential Limitations of the U.S. EPA Policy
The U.S. EPA Policy provides no specific description of the circumstances necessary to establish that noncompliance was “caused” by the COVID-19 pandemic. Since the U.S. EPA Policy references the state and local “stay at home” orders that are in effect in much of the country, presumably compliance with such an order would be considered a valid justification. Conversely, the U.S. EPA Policy notes that some categories of facilities have been deemed “essential critical infrastructure” under guidance issued by the federal Cybersecurity and Infrastructure Security Agency (CISA) and indicates that for such facilities, “the EPA may consider a more tailored short-term No Action Assurance, with conditions to protect the public, if the EPA determines it is in the public interest. Such determinations are made by the OECA Assistant Administrator on a case-by-case basis.” This could signal that EPA will be less inclined to excuse noncompliance by companies that otherwise remain operational under a governmental or personal determination that they are an “essential” business.
Since the U.S. EPA Policy only implicates enforcement discretion and does not purport to reclassify noncompliance as compliant, facilities remain potentially subject to federal citizen suit provisions so long as the facility is not in compliance with an applicable requirement. However, such suits require advance notice to EPA and state regulators, during which time it’s possible that pandemic disruptions might ease allowing facilities to return to compliance. Also, to the extent that agency resources permit, EPA can generally preempt individual suits by issuing compliance orders that require a return to compliance, while imposing no monetary penalty. Finally, even if a citizen suit were to proceed, if the facility’s documentation (as required by the U.S. EPA Policy) demonstrated responsible conduct under the extraordinary circumstances of a pandemic, courts could legitimately exercise their considerable discretion to impose small or no civil penalties.
States Agencies Remain Free to Adopt Different Approaches
It is important to understand that the U.S. EPA Policy applies only to federal obligations and expressly provides, “Authorized states or tribes may take a different approach under their own authorities.” Accordingly, facilities with affirmative compliance obligations under state permits, orders or regulations should check the websites of the relevant state environmental agencies for guidance. While a 50-state survey is beyond the scope of this Bulletin, we offer the Ohio Environmental Protection Agency’s official position to illustrate the potential contrast in policy that businesses should anticipate.
On a webpage, entitled “Coronavirus (COVID-19) Response, Questions, and Guidance,” (Ohio EPA Policy), Ohio EPA starts from the same common sense understanding as U.S. EPA, observing that “Ohio EPA is aware that regulated entities may be impacted from a reduced workforce necessary to maintain normal operations at some facilities,” but then proceeds to set a less reassuring tone: “All regulated entities remain obligated to take all available actions necessary to ensure compliance with environmental regulations and permit requirements to protect the health and safety of Ohioans and the environment.”
Instead of outlining how, if at all, it intends to exercise its enforcement discretion in response to the COVID-19 pandemic, Ohio EPA simply encourages regulated entities to notify the agency “in the instance where regulated entities will have an unavoidable noncompliance situation, directly due to impact from the coronavirus….” For entities that provide such notice via a specially-created email address (EPA.COVID-19REGFLEX@epa.ohio.gov), Ohio EPA agrees “to consider providing regulatory flexibility, where possible, to assist entities in alternative approaches to maintaining compliance, such as extending reporting deadlines, consideration of waiving late fees and exercising enforcement discretion.”
Emails from facilities seeking noncompliance relief are to include, at a minimum, (a) the specific regulatory or permit requirement which cannot be complied with, (b) a concise statement describing the circumstances preventing compliance, (c) the anticipated duration of time that the noncompliance will persist, (d) the mitigative measures that will be taken to protect public health and the environment during the need for enforcement discretion, and (e) a contact person for the regulated entity, including an email address and phone number.
Ohio EPA promises to check the email box at least daily and to “work diligently to expeditiously review and respond” to requests from regulated entities. When Ohio EPA authorizes “alternative compliance options,” facilities must maintain records “adequate to document” activities related to the noncompliance and details of the regulated entity’s best efforts to comply.
It may be simply a difference in tone, but the Ohio EPA policy seems to communicate a more skeptical attitude regarding the need for regulatory relief in light of the COVOID-19 pandemic than does the U.S. EPA Policy. Moreover, the Ohio EPA Policy provides far less specificity regarding the situations in which relief will be available. Given the greater level of substantive uncertainty created by the Ohio EPA Policy, it’s worth noting that Ohio EPA’s day-to-day operations have been significantly disrupted and it remains to be seen whether the agency’s open-ended, case-by-case approach will operate quickly enough to provide Ohio facilities with meaningful guidance in the timeframe needed by environmental managers.
In a world where businesses seem to encounter new operational challenges on a daily, if not hourly, basis the Ohio EPA Policy effectively requires businesses to anticipate conditions that might trigger noncompliance as far in advance as possible, so that Ohio EPA will have sufficient time to diligently and expeditiously act on the facility’s request for compliance relief.
Conclusions
As businesses adapt their operations to the realities of life with COVID-19, they should not lose sight of their continuing obligation to satisfy their environmental compliance obligations and seek to preserve, to the extent legally allowed, the resources necessary to meet those obligations. Facility environmental managers should familiarize themselves with the COVID-19 policies of U.S. EPA and their state agency and, as soon as they see that forces beyond their control, such as the unavailability of necessary contractors or labs, will interfere with their ability to meet an obligation, they should notify the relevant regulator and seek an accommodation. It is critical to collect, create and preserve documentation demonstrating the unavoidability of noncompliance and the facility’s timely efforts to mitigate its effects.
If you have any questions regarding the above, please contact a member of your Benesch team.
John A. Rego at jrego@beneschlaw.com or 216.363.4542.
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Please note that this information is current as of the date of this Client Alert, based on the available data. However, because COVID-19’s status and updates related to the same are ongoing, we recommend real-time review of guidance distributed by the CDC and local officials.
