April 1, 2020
As the COVID-19 crisis continues, the ways in which businesses engage in everyday activities is evolving at a pace more rapid than most of us have ever seen in our lives, and hopefully will ever see again. Among these changes is the way businesses address environmental compliance obligations. Two of the more important questions regarding environmental compliance are:
- Can a business continue environmental investigation and remediation field work?
- Can a business cease or reduce its performance of operational compliance obligations?
Continuing Environmental Investigation and Remediation Obligations
By now, you know that state Governors across the country have issued orders calling for the closure of businesses that are not “life-sustaining,” or that are “non-essential.” Each state’s prohibition is different, as is each state’s process for obtaining clarification or a waiver from the prohibition. But several common themes have emerged:
- Environmental investigation and remediation directly necessary to protect against imminent (and sometimes non-imminent) harm to public health and the environment are often allowed to proceed.
- Even investigation and remediation that does not protect against imminent harm may be permitted, if it serves an exempted activity. An example might be conducting a voluntary cleanup that is necessary for the subsequent construction of a community care facility for the elderly.
- In some jurisdictions, environmental investigation and remediation that does not fall within one of the categories above may be permitted if it can be shown that it can be conducted in a manner that does not foster the transmission of COVID-19.
For businesses conducting environmental investigation and remediation, determining whether an activity is prohibited is done on a case-by-case basis. In these situations, it is critical to properly evaluate the relevant Governor’s order, and any revisions or clarifications it has undergone, and to effectively reach out to the appropriate governing body for resolution of any ambiguity and/or to obtain an exemption. Carefully documenting that process is particularly important, in order to avoid an immediate local enforcement action and to reliably convey your determination to other participating individuals and companies.
Operational Compliance Obligations—Continuing Regulatory Actions
Mandatory environmental compliance obligations may include activities such as conducting site investigation and remediation, collecting periodic emissions or discharge samples, or performing system inspections and maintenance. The obligations arise from permits, regulations, consent decrees and settlement agreements, and other such sources. For many businesses, continuing these activities may be permitted if the activities are considered life-sustaining and essential. The process for making that determination is the same as outlined above. But what about where the activity is not life-sustaining, is non-essential, or where the business lacks sufficient personnel, equipment, or supplies to perform the activity? Or what if the activity simply presents too great a threat of COVID-19 transmission? Environmental agencies have begun to address these challenging situations. Three examples come from the federal government and two neighboring states:
- The United States Environmental Protection Agency (EPA) issued a March 26, 2020 policy entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” It is available at this link. The policy takes a practical approach to enforcement, summed up as follows: "EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy also requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.”
A business’ specific process for making a determination not to maintain compliance, and its methods of documenting that decision and advising EPA, vary under the policy. And, they may be controlled by existing force majeure clauses in a consent decree or settlement agreement. Many permits and regulations contain similar “force majeure-like” provisions that must be followed. The COVID-19 policy encourages close communication with the appropriate EPA office. For affected businesses, quickly determining how to best satisfy the policy and effectively communicate with EPA is critical to protecting health and the environment while minimizing the spread of COVID-19.
The Pennsylvania Department of Environmental Protection (PADEP) has taken a similar, although more formal, approach to these situations. On its website at this link, PADEP has posted information and a form for requesting extensions of regulatory and permit requirements. PADEP’s instructions include the following:
All permittees and operators are expected to meet all terms and conditions of their environmental permits, including conditions applicable to cessation of operations. DEP is committed to its mission of protecting public health and the environment and as such will continue to monitor these permitted facilities that have temporarily ceased operations.
Entities operating under a DEP permit that have ceased or suspended operations or construction, please refer to your permit terms and conditions, as they contain regulatory obligations and details regarding cessation or temporary stoppage of work…. Permittees or operators with questions about specific permit or operating conditions should contact the entities identified on their permit or cover letter. If a point of contact is not provided in the permit or cover letter, a current DEP directory can be found here.
Accordingly, like EPA, PADEP expects businesses to first look to the controlling language of any applicable permit (and, it goes without saying, any applicable regulation, consent decree, or settlement agreement), and to communicate closely with PADEP staff for guidance or approvals. Carefully documenting that process is, again, extremely important. Note, too, that PADEP has suspended mandatory timeframes by which it must issue permit decisions. Any impact of these delays should also be carefully documented and, if appropriate, should be the subject of an extension request.
The New Jersey Department of Environmental Protection (NJDEP) has not yet issued any formal overarching policy on reacting to the COVID-19 crisis. NJDEP has followed a more piecemeal approach to providing guidance, such as by issuing a March 23, 2020 policy entitled “Sampling Guidance During COVID-19 Pandemic-01 for Category A and ASC dischargers.” This allows certain sewage treatment facilities to adjust their operations. For other dischargers, it states:
For all other dischargers, there is no relaxation regarding any requirement pursuant to a permit, rule, regulation or statute. All other permittees are expected to maintain monitoring and electronic reporting compliance with permit conditions. Any deviations or inquiries associated with that notation should be forwarded to the appropriate NJDEP Enforcement office for follow up.
The best approach for any business, whether or not covered by express agency guidance, is again to carefully review the language of any controlling permit, regulation, consent decree or settlement agreement; communicate with agency staff; and carefully document the entire process. At some point in time, regulators are going to be examining each business’ actions and determination, as will citizen groups interested in exercising their private enforcement authorities. As such, it is prudent to meet with the appropriate agency to get guidance and approval regarding the proposed action. For businesses facing COVID-19 compliance challenges, careful decision-making is critical to not only protecting human health and the environment, but to protecting against unwarranted future enforcement.
We hope you will let us know if we can be of any assistance as you navigate these difficult times. Above all, though, we hope that you and your colleagues, and families, are doing well under the circumstances.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
About the Author:
Paul M. Schmidt is a Principal in Post & Schell, P.C.'s Environmental Practice Group. He provides environmental legal assistance to clients nationwide, ranging from small, local developers to large, national equity funds. He counsels on due diligence, risk management, and remediation; negotiates lease and sales transactions; and prepares and litigates remediation cost-recovery actions. His decades of experience include nine years as a government environmental lawyer, preceded by several years in environmental consulting prior to entering law school. He can be reached at firstname.lastname@example.org or at 215-587-1095. Learn More.