Trump Track: Does COVID-19 Excuse Environmental Compliance?
Among the barrage of news reports related to state and federal responses to COVID-19, less discussed is the suspension of some environmental compliance obligations for regulated entities affected by the crisis.
EPA Enforcement and Compliance Policy
On March 26, 2020 Susan Bodine issued EPA's response to the COVID-19 pandemic, titled "COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program." Under this temporary policy, the agency will exercise enforcement discretion for noncompliance over certain activities covered by the memorandum.
The policy applies retroactively to March 13, 2020 and speaks only to EPA enforcement; it does not bind states or tribes in making their own enforcement decisions. The policy does not apply to criminal violations or enforcement under Superfund and RCRA Corrective Action, although EPA announced it planned future guidance for such enforcement. The policy also does not cover imports of certain chemicals, especially pesticide products.
Further, after the policy became controversial, EPA issued a hot press release complaining of unfair reporting and offered this clarification: "The policy does not say that the COVID-19 pandemic will excuse exceedances of pollutant limitations in permits, regulations, and statutes (emphasis added)."
What does the policy apply to then? EPA will exercise "enforcement discretion" for civil violations in cases where an entity made every effort to comply with its environmental obligations, and if compliance was not reasonably practicable, took reasonable steps to act responsibly and mitigate noncompliance.
Specifically, the EPA announced it would not seek penalties for "violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, reporting or certification obligations" where it is shown that COVID-19 was the cause of the noncompliance. EPA will exercise the same discretion with regard to reporting obligations and milestones under EPA administrative unilateral or consent orders.
With regard to consent decrees, EPA may relax enforcement of routine compliance monitoring issues, but will consult with any co-plaintiffs on the approach to follow. Courts, of course, retain jurisdiction over such modifications to compliance obligations.
EPA asks that facilities contact the appropriate authority immediately if facility operations impacted by the COVID-19 pandemic may create an "acute risk or an imminent threat to human health or the environment," or if a facility suffers from a "failure of air emission control or wastewater or waste treatment systems" that may result in discharges exceeding enforceable limitations.
As noted, the EPA policy applies only to federal enforcement, and states retain authority under state laws. The policy does not grant relief from state compliance obligations.
Impact of National Emergency Declaration on Environmental Laws
In addition to EPA's policy, President Trump issued a declaration of a national emergency on March 13. The declaration invoked the Stafford Act, which provides an exemption from the environmental impact reporting requirements of the National Environmental Policy Act (NEPA). This could significantly speed up federally funded projects in response to the COVID-19 crisis, such as building new medical facilities to treat patients.
Other environmental statutes, such as the Clean Air Act, the Clean Water Act, and Superfund also contain exemptions to avoid compliance in case of disasters or when justified because "in the paramount national interest." Many implementing state laws contain similar provisions, making it possible that companies could avoid certain compliance obligations when avoidance is justified by the current national emergency.
Takeaways
The EPA policy and the current state of national emergency mean that companies may be able to delay or avoid environmental compliance during the COVID-19 pandemic. However, an entity should not assume that the pandemic will automatically excuse compliance with its environmental obligations. Rather, the entity should do its best to continue complying and be prepared to explain on a case-by-case basis how specific circumstances caused by the pandemic made compliance impracticable or impossible.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.