Alerts

State EPA Enforcement Discretion With COVID-19

Alerts / April 20, 2020

On March 26, 2020, the U.S. Environmental Protection Agency (U.S. EPA) issued a Memorandum outlining the agency’s temporary enforcement discretion during COVID-19 (see our previous article discussing the Memorandum here). Under many environmental laws, however, the primacy for enforcement lies with the states, making federal enforcement discretion only part of the solution. Since March 26, 2020, numerous state environmental agencies have thus followed U.S. EPA’s lead and begun implementing their own temporary enforcement discretion policies for COVID-19-related environmental noncompliance.

Members of BakerHostetler’s Environmental team are spread across the firm’s 16 domestic offices, which uniquely positions us to represent our clients on state-specific issues in addition to the national and “inside the Beltway” issues that we routinely handle. This geographic positioning has given us the opportunity of advising various clients on the availability of COVID-19-related enforcement discretion in several states. The following article provides an overview of the enforcement discretion policies that we have seen or analyzed across several states, including:

Even with the considerable environmental oversight and regulations at play at the state level (notwithstanding the existence of these policies), state environmental laws and regulations subject to enforcement discretion necessarily include several non-static and subjective factors that regulated entities must satisfy in order to qualify. In addition, the applicability of these discretionary policies will no doubt be evaluated “after the fact” at some point in the future when COVID-19’s impact has subsided. With hindsight almost always being 20-20 in the context of environmental enforcement, regulated entities that now decide to avail themselves of federal or state environmental enforcement discretion may open themselves to the risk of future enforcement for noncompliance, despite the existence of these temporary enforcement discretion policies. Accordingly, companies may want to proceed with caution and avail themselves of COVID-19-related federal and state environmental enforcement discretion as a last resort.

Ohio

https://epa.ohio.gov/covid19

In General: Regulated entities generally 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.

Ohio EPA Enforcement Discretion: When a regulated entity has an unavoidable noncompliance situation directly caused by COVID-19, Ohio EPA has created a form requesting Ohio EPA to “consider providing regulatory flexibility . . . to assist entities in alternative approaches to maintaining compliance, such as extending reporting deadlines, consideration of waiving late fees and exercising enforcement discretion.”

Requesting Enforcement Discretion: Ohio EPA will require the following information when submitting the form requesting modified enforcement discretion:

  • The specific regulatory or permit requirement that cannot be complied with
  • A concise statement describing the circumstances preventing compliance
  • The anticipated duration of time that the noncompliance will persist
  • The mitigative measures that will be taken to protect public health and the environment during the need for enforcement discretion
  • A central point of contact for the regulated entity, including an email address and phone number

Documentation: If “alternative compliance options” are approved by Ohio EPA, the entity is then required to “maintain records adequate to document activities related to the noncompliance and details of the regulated entity’s best efforts to comply.”

California

https://calepa.ca.gov/2020/04/15/calepa-statement-on-compliance-with-regulatory-requirements-during-the-covid-19-emergencycalepa-policy-statement-on-covid-19-and-environmental-enforcement/

In General: On April 15, California EPA (CalEPA) issued its Statement on Compliance with Regulatory Requirements During the COVID-19 Emergency, which “recognizes that some regulated entities may need additional compliance assistance as a result of the COVID-19 pandemic.” The memorandum notes the possibility that “[s]pecific time-delimited remedies, such as the extension of deadlines, may be warranted under clearly articulated circumstances” to the agency.

Requesting Enforcement Discretion: CalEPA stresses the need for “regulated entities that cannot meet a specific regulatory requirement due to emergency government directives or a specific hardship” to contact the agency and/or applicable departments as soon as possible and “before falling out of compliance” (emphasis added). Contact information for CalEPA boards, departments and offices can be found here.

Enforcement discretion requests will generally be handled in an expedited fashion. While not listing specific criteria to be included in enforcement discretion requests, CalEPA indicates that requests should be “time-limited” and should specifically “define the hardship” leading to potential noncompliance.

Continued Focus on Air Quality: Despite CalEPA’s recognition of the need for some enforcement discretion, the agency clarified that “[c]ontrolling pollution in communities with high rates of respiratory disease and multiple environmental burdens remains a priority for CalEPA – especially given recent studies that suggest a correlation between these factors and COVID-19 susceptibility.” CalEPA will therefore continue its focus on, and priority investigation of, complaints of environmental noncompliance in at-risk areas.

Contaminated Sites: In addition to prioritizing air quality, CalEPA further stated that “[t]he ongoing clean-up of contaminated sites will be prioritized to abate or prevent an imminent threat to public health or the environment, while ensuring worker safety.”

Pennsylvania

https://www.dep.pa.gov/Pages/AlertDetails.aspx#

In General: “All permittees and operators are expected to meet all terms and conditions of their environmental permits, including conditions applicable to cessation of operations.”

PA DEP Enforcement Discretion: The Pennsylvania Department of Environmental Protection (PA DEP) notes that Pennsylvania Gov. Tom Wolf has authority “to suspend regulatory obligations and other legal obligations within his jurisdiction where strict compliance will prevent, hinder, or delay necessary action in coping with the COVID-19 emergency.”

Requesting Enforcement Discretion: Entities requesting suspension of regulations or permitting conditions should fill out this form and submit it to RA-EPCOVID19SuspReq@pa.gov. Among other information, the form requires information on the following:

  • Identification of the specific regulatory requirement(s) or permit condition(s) from which temporary relief is requested
  • A clear description of why temporary suspension of the specific regulatory requirement(s) or permit condition(s) is requested, including a detailed explanation of how “COVID-19 restricted your ability to comply with the environmental regulatory requirement, permit condition or other requirements”
  • Identification of any suspension of obligations or waiver(s) from other governmental agencies
  • An explanation of alternative compliance options the entity has explored prior to requesting relief
  • An estimation of how long the entity believes it will be unable to comply with the specific regulatory requirement(s) or permit condition(s) from which relief is requested
  • An evaluation of the risk to public health and the environment (e.g., increased emissions, increased concentrations of any pollutant and/or releases of new or more pollutants, potential accidents or equipment failure) resulting from a temporary suspension of the regulatory requirement(s) or permit condition(s).

PA DEP Permits: “[An entity] operating under a DEP permit that [has] ceased or suspended operations or construction, [should] refer to [its] permit terms and conditions, as they [typically] contain regulatory obligations and details regarding cessation or temporary stoppage of work.” For questions about specific permit conditions or requirements, the entity should contact the department identified on the permit cover letter.

PA DEP Permit Processing: While PA DEP is still accepting and processing permit applications, the department has suspended the time frame for providing permit decisions. However, the department will still “provide emergency authorizations for projects that are critical to public health and safety.”

“Non-Life Sustaining Businesses” Engaged in “Earth Disturbance Activities”: Permittees not considered “Life Sustaining Businesses” are required to cease earth disturbance activities and “must immediately implement temporary or permanent stabilization practices in accordance with approved permit plans and conditions and the stabilization standards outlined in the Erosion and Sediment Control Program Manual.” During such temporary or permanent stabilization, the permitee may suspend its weekly routine inspections but must continue other inspections specified in its permit, such as post-storm event and corrective action inspections.

Liability Disclaimer: “The cessation of Routine Inspections as set forth herein is not a limitation of, or defense to, liability for injury to private property or invasion of personal rights.”

Required Site Inspections: Site inspections required under PA DEP permits “are considered critical operational functions and will not be considered to be out of compliance” with Gov. Wolf’s March 6 order.

Water and Wastewater Operator Certification Exams: PA DEP has provided a memorandum summarizing its guidance on upcoming water and wastewater operator certification exams during the COVID-19 response here.

Storage Tank Guidance: PA DEP has provided a memorandum summarizing its guidance on tank inspection and installations during the COVID-19 response here.

Texas

https://www.tceq.texas.gov/news/tceqnews/features/tceq-message-concerning-covid-19-response

In General: On April 6, the Texas Commission on Environmental Quality (TCEQ) issued an overview of its temporary enforcement policy for administrative relief and enforcement discretion for the various reporting requirements impacted by COVID-19. In general, TCEQ “has determined that it may be inappropriate to pursue enforcement for violations that were unavoidable due to the pandemic or where compliance would create an unreasonable risk of transmitting COVID-19 or otherwise impede an appropriate response to the pandemic. Accordingly, TCEQ will consider exercising its discretion to not bring enforcement actions for such violations on a case-by-case basis.”

TCEQ is clear in noting, however, that there has not been any across-the-board rule suspensions or exemptions to regulated entities. “Importantly, TCEQ is not offering enforcement forbearance where an entity fails to report its noncompliance.” But deadlines for certain routine reporting requirements have been extended, such as:

  • Point Source Emissions Inventory Reporting
  • Mass Emissions Cap and Trade (MECT) and Highly Reactive Volatile Organic Compound Emissions Cap and Trade (HECT) Annual Compliance Reporting
  • Air Permitting Public Notice Signage Requirements
  • Stormwater General Permit Reporting
  • Texas Pollutant Discharge Elimination System (TPDES) Individual Permit Effluent Monitoring Data

Reports submitted to TCEQ by April 30 for these programs will be considered as timely received, and the “agency will consider additional enforcement discretion regarding this deadline as conditions warrant in response to COVID-19.” Similarly, for entities required to update their financial assurance mechanisms for inflation, “[f]inancial assurance inflation updates for any mechanism – including financial test/corporate guarantees – due on or before April 30 may be submitted by May 15.”

Requesting Enforcement Discretion: TCEQ is encouraging regulated entities to “to take all available actions necessary to ensure compliance with environmental regulations and permit requirements to protect the health and safety of Texans and the environment” despite the impact of COVID-19. However, if noncompliance cannot reasonably be avoided, TCEQ has instructed entities to email both OCE@tceq.texas.gov and Ramiro.Garcia@tceq.texas.gov with its specific request for enforcement discretion. The email should include information on the following:

  • A concise statement supporting request for enforcement discretion
  • The anticipated duration of need for enforcement discretion
  • A citation to a rule/permit provision for which enforcement discretion is requested
  • Sufficient documentation of activities related to the noncompliance under enforcement discretion, including details of the regulated entity’s best efforts to comply

Exceptions: TCEQ expressly notes the following programs and compliance obligations have not been impacted or relaxed in light of the agency’s temporary enforcement discretion:

  • “[A]ny limits on air emissions or discharges to water” and “any requirement to report emissions or discharges that exceed these limits”
  • “[A]ny requirement to ensure safe drinking water or the safe management of waste”
  • TCEQ’s monitoring of air quality and drinking water supplies, noting that “investigators are still in the field responding to complaints and helping ensure compliance”
Florida

The Florida Department of Environmental Protection (FDEP) has not yet directly responded to U.S. EPA’s March 26 Memorandum, nor has it issued its own COVID-19-related temporary enforcement policy relating to ongoing compliance and reporting requirements. That said, on March 9, Gov. Ron DeSantis issued Executive Order No. 20-52, permitting state agencies to “suspend the application of the statutes, rules, ordinances and orders they administer” if “strict compliance with the provisions of any such statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency.” Accordingly, while no formal FDEP temporary enforcement policy has been issued, FDEP appears to have the authority in place to adopt temporary enforcement policies similar to those of U.S. EPA. Without any formal guidance from FDEP on this issue, however, entities subject to FDEP regulations and permits should continuing making all practical efforts to continue meeting their compliance and reporting requirements, and contact FDEP as soon as possible if COVID-19 is negatively impacting these obligations.

West Virginia

https://dep.wv.gov/news/Pages/WVDEP-still-enforcing-all-applicable-rules-and-regulations-amid-COVID-19-pandemic.aspx

On March 27, the West Virginia Department of Environmental Protection (WVDEP) confirmed that “all rules, regulations and permitting requirements under the jurisdiction of the WVDEP remain in full effect.” However, the department does recognize and acknowledge the “potential compliance challenges the regulated community may face due to COVID-19 restrictions” such as “newly implemented remote-work requirements and reduced onsite staffing due to social distancing guidelines, supply disruptions, and reduced or unavailability of consulting and/or testing firms.” WVDEP thus has directed entities to contact WVDEP and follow the requirements outlined in U.S. EPA’s March 26 Memorandum if environmental compliance obligations are “not reasonably practicable due to issues related to COVID-19.”

Arkansas

https://www.adeq.state.ar.us/home/hot_topics/pdfs/energy-and-environment-enforcement-guidance.pdf

Division of Environmental Quality Response to letter from AEF

In General: As of the date of this update, the Arkansas Department of Energy and Environment (ADEE) remains open for business and is continuing to conduct inspections and respond to environmental emergencies and complaints. ADEE thus expects that all regulated entities continue to comply with all orders, regulations and permit requirements to the best of their abilities, despite the current state of affairs.

Requesting Enforcement Discretion: ADEE notes that in many cases, existing procedures can address the needs and concerns of regulated entities relating to noncompliance (e.g., deadlines to respond, deadlines for training required by permits, deadlines for sampling). Entities should thus “use existing procedures to submit requests for accommodations and flexibility.”

But for “regulated entities that face unavoidable noncompliance situations,” ADEE has established an email account, COVID19EE@adeq.state.ar.us, “to request regulatory flexibility and assistance in providing alternative approaches to maintaining compliance, where possible.” This includes requests for reporting deadline extensions, waiver of late fees and exercising enforcement discretion generally. The email request will need to include the following, among other information:

  • The specific regulatory or permit requirement that cannot be complied with
  • A statement describing the circumstances preventing compliance
  • The requested start and stop date for relief
  • The measures that will be taken to protect public health and the environment during the need for enforcement discretion

If “alternative compliance options are authorized,” the entity “must maintain records adequate to document activities related to the noncompliance and details of the regulated entity’s best efforts to comply.” As in U.S. EPA’s guidance, ADEE has also recommended that entities should undertake best practices to minimize the effect and duration of any noncompliance caused by COVID-19.

DEQ-Administered Licenses: In a March 20 Emergency Order, the director of the Dept. of Environmental Quality (DEQ) extended by an additional six months department-administered licenses that expire before July 1.

Colorado

https://drive.google.com/file/d/1WPHQ42OAE-9wJRG7_HPaurRkckToG5h8/view

On March 25, the Colorado Department of Public Health and Environment (CDPHE) issued its response to “several letters requesting that the department pause its environmental regulation and policy activities to allow facilities and operators to focus on maintaining critical operations and compliance.” After review, the CDPHE determined that “the majority of the scheduled regulatory and policy activities [will] continue as planned,” with the exception of recommending that certain water and air quality meetings and hearings be postponed until June or July (including the Water Quality Control Commission’s April 13 meeting to consider adoption of water quality standards for PFAS). We are not currently aware of any Colorado environmental compliance or reporting obligations that have been affected or altered due to COVID-19.

New York

https://www.dec.ny.gov/docs/materials_minerals_pdf/tempsigprocovid2.pdf

On March 27, the New York State Department of Environmental Conservation (NDEC) issued guidance on certain COVID-19 related enforcement discretion. This memorandum appears limited to regulations on signatures to waste shipments pursuant to NYCRR Parts 364, 372, 374-2 and 381.

While NDEC’s temporary enforcement policy is effective (at least until Sept. 7, 2020), “the procedures delineated herein may be used as alternatives to receiving generator signatures on waste shipping documents” as required under New York codes and regulations for the following types of wastes: Non-Hazardous Waste and Used Oil Shipments; Hazardous Waste Shipments; and Low-Level Radioactive Waste Shipments. (See page 2 of the memorandum for specific procedures.)

Importantly, however, “[if] a waste shipment is being sent to, or is being received from, a state other than New York, the regulated party should contact the other state’s jurisdictional agency to ensure compliance with that state’s requirements.”

Apart from this guidance, New York appears to have otherwise adopted a negative view toward COVID-19-related environmental enforcement discretion. New York Department of Environmental Conservation (NYDEC) Commissioner Basil Seggos has stated, “Rolling back enforcement of regulations in place to protect the quality of our air, water, and health of our communities is a shameful exploitation of the current public health crisis.” Accordingly, we are not aware of any further COVID-19-related temporary enforcement discretion policies from NYDEC at this time.

Conclusion

We will continue to keep you posted as state environmental agencies update and issue guidance on environmental compliance enforcement during the COVID-19 pandemic. Please contact us if you have any questions or concerns about your environmental compliance obligations with the U.S. EPA or state environmental regulators.

Authorship Credit: Cory Barnes and Marty Booher

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