In light of the COVID-19 crisis, federal and state environmental agencies have issued temporary policies that affect regulated entities. This blog post is intended to help summarize these guidelines and highlights pertinent questions.
U.S. ENVIRONMENTAL PROTECTION AGENCY
Last week, the U.S. Environmental Protection Agency (EPA) released a public memorandum setting forth a “temporary policy” of using its “enforcement discretion” for noncompliance of certain legal obligations during the COVID-19 pandemic.
The new policy may provide some relief on civil enforcement of environmental permits. Many EPA air and water permits require sampling at regular intervals, and visual and other types of monitoring. The EPA’s temporary policy acknowledges that sampling and monitoring may be impossible without personnel being physically present due to state and local “stay-at-home” and “shelter-in-place” emergency orders. In addition, employee furloughs and layoffs may have significantly impacted the ability to comply with air and water permit conditions. In response to these unprecedented circumstances, the EPA will exercise “enforcement discretion” for regulated entities’ noncompliance with environmental permit requirements.
Although the EPA memorandum states that it does not expect to seek civil penalties for noncompliance with sampling and monitoring activities required by environmental permits, the EPA must find that COVID-19 was the cause of the noncompliance, and that the entity can provide supporting documentation to the EPA upon request. Specifically, in order to take advantage of the EPA’s temporary discretionary enforcement policy, compliance with an air or water permit must not be “reasonably practicable,” and entities should:
“a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
- Identify the specific nature and dates of the noncompliance;
- Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
- Return to compliance as soon as possible; and
- Document the information, action, or condition specified in a. through d.”
The EPA’s discretionary policy is effective retroactively beginning on March 13, 2020, and does not cover any other historic violations or enforcement actions. The memorandum further stated that the EPA will post a notification at least seven days prior to terminating the temporary policy here. Although it is currently unknown when the EPA will terminate its policy, we will continue to monitor all EPA notifications.
OREGON, WASHINGTON, AND CALIFORNIA ENVIRONMENTAL AGENCIES
Oregon, Washington, and California environmental agencies have responded inconsistently in light of the EPA’s policy of discretionary enforcement.
Before the EPA provided any response to COVID-19, Oregon’s Department of Environmental Quality (DEQ) issued its own guidance for complying with environmental permits during this time. Like the EPA, the DEQ will “exercise reasonable enforcement discretion within its authority when deciding whether to pursue potential violations caused by pandemic-related disruptions.” The DEQ’s guidance differs from the EPA policy, however, by presenting a stronger expectation of compliance: DEQ requirements remain in effect, and the DEQ asks that “all regulated entities do everything possible to maintain the safe and environmentally protective operation of their facilities.”
Soon after the EPA’s announcement, Washington’s Department of Ecology (“Ecology”) responded that it will exercise “regulatory flexibility” during the COVID-19 pandemic. Ecology will use “reasonable discretion” in “deciding whether to pursue potential violations that may be linked to the current COVID-19 pandemic.” While Ecology’s approach may have the same effect as the EPA’s, it seems slightly less all-encompassing than the EPA’s—Ecology emphasized that environmental laws will still be enforced, and recommended that entities having trouble with compliance should reach out directly to agency staff to discuss “options.”
Unfortunately, California’s Environmental Protection Agency has still not issued any overarching guidance that affects permit compliance during the COVID-19 pandemic. The California State Water Resources Control Board (“Water Board”) announced that it considers water permit compliance to be an “essential function” constituting an exception under California’s state and local COVID-19 orders and directives. Similar to the EPA’s discretionary policy, however, entities unable to comply with water permits may provide a notice of noncompliance to the Water Board that includes the following information:
- The specific Water Board order, regulation, permit, or other requirement that cannot be timely met;
- The inconsistent COVID-19 directive or guideline;
- An explanation of why the responsible entity cannot timely meet the Water Board order or requirement; and
- Any action that the entity will take in lieu of complying with the specific Water Board order or requirement.
Furthermore, and likely to cause additional confusion in the regulated community, California’s Air Resources Board took a harder line, and announced that air regulations continue to be in effect and deadlines in place still apply. The South Coast Air Quality Management District, which has some of the most stringent air quality regulations in the entire country, provided that it will prioritize and expedite permit applications from entities affected by COVID-19—a far cry from exercising any kind of discretion.
Note that this policy does not apply to Superfund or RCRA Corrective Action, which we are anticipating a separate EPA communication on. We will continuously update this post regarding additional EPA and state responses to COVID-19 affecting environmental permits.
In the scramble to respond to the quickly-evolving COVID-19 pandemic, inconsistencies have developed among EPA, state and local government policies affecting enforcement and compliance with air and water permits. Our attorneys are equipped to help you navigate these guidelines. For assistance and/or for any questions on EPA, state, and local enforcement discretion, please contact Suzanne Lacampagne or Trajan Perez.
Click on the links below for more information on agency responses to COVID-19 affecting air and water permit compliance:
- EPA Press Release Announcing Enforcement Discretion Policy
- EPA Memorandum Regarding COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program
- Washington Department of Ecology
- Oregon Department of Environmental Quality
- California Water Board
- California Air Resources Board
- South Coast Air Quality Management District