Environmental Compliance in the Time of COVID-19: CalEPA and US EPA Enforcement Policies

COVID-19 Update

As with many government organizations, environmental agencies are continuing to respond to the COVID-19 pandemic by taking actions to inhibit the spread of the virus while balancing such measures with agency missions. Although reactions to the COVID-19 pandemic have broadly taken place at the federal, state and local levels, the responses have varied significantly. Government agencies have not only issued guidance that may be at odds with one another, but in some cases also appear to be countering the actions taken by other government agencies. The California Environmental Protection Agency (CalEPA) has taken recent action that brings its divergences from the U.S. Environmental Protection Agency (U.S. EPA) to the forefront.

On April 15, 2020, CalEPA issued a Statement on Compliance with Regulatory Requirements During the COVID-19 Emergency. CalEPA’s statement emphasized that controlling pollution in communities with high rates of respiratory disease and multiple environmental burdens remained a priority—especially given recent studies that suggest a correlation between these factors and COVID-19 susceptibility. Accordingly, CalEPA indicated that it would continue to respond, investigate and take action on complaints related to noncompliance.

CalEPA announced that it intends to fill any enforcement gaps left by the decision of U.S. EPA to reduce environmental oversight. On March 26, 2020, U.S. EPA published a temporary, albeit indefinite, policy providing that the agency will exercise enforcement discretion for civil violations due to noncompliance resulting from the COVID-19 pandemic. (See COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.) According to the U.S. EPA policy, if compliance is not reasonably practicable, facilities with environmental compliance obligations should “act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19.” Facilities should also identify and document the specific nature and dates of the noncompliance, how it was caused by COVID-19, and the decisions as well as actions taken in response. In general, U.S. 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 agency agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation upon request. U.S. EPA’s enforcement discretion specifically does not apply to criminal violations, conditions of probation in criminal sentence violations, imports (imported pesticide products are explicitly called out), nor any activities carried out under Superfund or RCRA Corrective Action enforcement instruments.

CalEPA’s statement recognized that some regulated entities may need additional compliance assistance as a result of the COVID-19 pandemic. CalEPA noted that specific time-related remedies, such as the extension of deadlines, may be warranted under clearly articulated circumstances. However, CalEPA advised that regulated entities that cannot meet a specific regulatory requirement due to emergency government directives or a specific hardship must contact the appropriate CalEPA board, department or office via email as early as possible and before falling out of compliance, and that such requests will be considered in an expedited fashion.

CalEPA’s policy follows earlier announcements from CalEPA departments such as the State Water Resources Control Board (State Board) and the Department of Toxic Substances Control (DTSC). For example, on March 20, 2020, the State Board stated that if there is a specific order or requirement that cannot be timely met because it would be inconsistent with current governmental directives or guidelines related to COVID-19, the entity responsible for compliance must notify the applicable Water Board immediately. (See Compliance with Water Board Requirements During the COVID-19 Emergency.) The State Board specifically noted that compliance is “generally considered to be an essential function during the COVID-19 response.”

Similarly, DTSC issued hazardous waste management advisories to (i) hazardous waste generators, transporters, e-waste handlers and tiered permit facilities and (ii) permitted hazardous waste facilities on April 6 and 7, 2020, respectively. DTSC’s advisories declare that the state’s hazardous waste control law, regulations and permitting requirements remain in effect, but also noted that if compliance is not possible, regulated entities should meticulously document the issues and circumstances to demonstrate that all appropriate actions were taken given the circumstances to assist with agency review. Moreover, in addition to documenting issues, DTSC advised hazardous waste facilities to take all reasonable steps to minimize impacts and correct releases, to report all instances of noncompliance to DTSC (including anticipated noncompliance), and to take measures to return to compliance as soon as possible consistent with regulatory requirements. DTSC’s advisories also note that generators of RCRA hazardous wastes may apply for 30-day storage extensions to applicable waste accumulation time periods. On the other hand, U.S. EPA has advised that if a generator of hazardous waste is unable to transfer its waste off-site within the time periods required under RCRA to maintain its generator status due to disruptions caused by the COVID-19 pandemic, the facility should continue to properly label and store such waste and take the steps identified in its temporary enforcement policy. If these steps are taken, U.S. EPA will, as an exercise of enforcement discretion, treat such entities as hazardous waste generators and not as treatment, storage and disposal facilities. U.S. EPA’s policy states that regulated facilities should contact the agency (i) if facility operations impacted by COVID-19 may create an acute risk or an imminent threat to human health or the environment or (ii) if a failure of an air emission control, wastewater, waste treatment or other equipment may result in exceedances of enforceable limitations on emissions or discharges to air, water, land disposal or other unauthorized releases.

CalEPA emphasized that it will maintain its capacity to respond to emergencies and that the ongoing cleanup of contaminated sites will be prioritized to abate or prevent an imminent threat to public health or the environment while ensuring worker safety. This, too, appeared to contrast with aspects of the US EPA’s Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 issued on April 10, 2020, which provided greater flexibility for temporarily relaxing cleanup activities in light of worker safety. In that guidance, U.S. EPA directed its regional offices to consider site-specific factors when deciding whether response actions will continue or be reduced, paused or resumed, and to consult applicable enforcement instruments to delay performance of obligations, while continuing non-field site work to the extent possible.

Businesses are navigating a complicated web of COVID-19-related orders at multiple government levels. Environmental compliance is no exception. When in doubt, businesses should be familiar with environmental agency polices regarding COVID-19 and work proactively to address compliance issues with their regulators where guidance is unclear or perhaps inconsistent.

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