Environmental Enforcement During the COVID-19 Crisis
The COVID-19 pandemic has triggered many restrictions on travel and personnel, leading many businesses and industry groups to wonder whether companies will face enforcement actions if they fail to comply with environmental obligations. These obligations may include missed testing, training, monitoring, and recordkeeping requirements resulting from a lack of personnel, problems with supply chain that prevent delivery of needed materials, tests, and replacement parts, and even difficulties operating within permit limits due to things like work stoppages and social distancing. The federal government appears willing to excuse most noncompliance, while Maine, New Hampshire, and Massachusetts will approach it on a case-by-case basis.
Although some environmental statutes allow the government to waive compliance obligations, those provisions usually require an affirmative declaration that has yet to be issued. See e.g., 42 U.S.C. § 7410(f) (allowing President to declare national or regional emergencies under the Clean Air Act). Likewise, many programs recognize emergencies beyond the control of a facility as an affirmative defense to compliance, but to claim the defense, the facility must notify the agency of a violation within a particular period of time. See e.g., 40 C.F.R. § 122.41(n) (allowing facilities with NPDES permits to claim an “upset”). While those options remain available in the current crisis, both federal and state environmental agencies in New Hampshire, Maine, and Massachusetts appear to be relying on their enforcement discretion whether to take action in cases of noncompliance. In general, they are not adopting new statutory or regulatory authority to waive violations due to COVID-19, or otherwise triggering emergency provisions in existing laws.
On March 26, 2020 the U.S. Environmental Protection Agency (EPA) issued a policy, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, indicating that it would not take enforcement action for noncompliance that results from the COVID-19 pandemic. The temporary policy is effective retroactively to March 13, 2020, and will be rescinded when the coronavirus crisis ends. The policy essentially allows regulated entities to determine for themselves if they are able to meet environmental reporting requirements.
Under the policy, EPA will not take enforcement action for failure to meet routine compliance monitoring and reporting requirements. EPA will, however, look more closely where air emissions or water discharges could harm human health or the environment. The policy makes clear that entities should make every effort to comply with environmental compliance obligations. If compliance is not reasonably practicable, a facility with compliance obligations should try to minimize the effects and duration of the noncompliance and return to compliance as soon as possible. The entity must identify how the COVID‑19 virus caused the noncompliance and must document all of its information and actions related to the noncompliance.
EPA stated that it believes it is more important for facilities to ensure that their pollution control equipment remains up and running and that their facilities are operating safely, than to carry out routine sampling and reporting. When an entity has an order or decree with the federal government requiring certain actions that it cannot perform, the notice procedures, including force majeure provisions, should be invoked.
Maine, New Hampshire, and Massachusetts
Although the EPA policy gives significant leeway for not meeting routine compliance monitoring and reporting requirements, it applies only to requirements under federal laws administered by EPA. States have their own environmental laws and many federal laws are administered by states. The EPA policy does not grant relief from compliance obligations under those circumstances.
New England states have not issued broad policies or statements concerning environmental enforcement during the COVID‑19 crisis and generally appear to be unwilling to go as far as EPA.
For example, the New Hampshire Department of Environmental Services has nothing on its website regarding enforcement, although it does list several resources for working during the pandemic.
The Maine Department of Environmental Protection (DEP) has stated publicly that it expects air emission sources to continue meeting all federal and state laws and air license requirements. With respect to other obligations, Maine DEP suggests that where pandemic-related constraints impact a facility’s ability to meet compliance obligations, the facility operator should contact DEP to discuss available options that will be considered on a case-by-case basis. Click here for more COVID-19 related information from Maine DEP.
In Massachusetts, parties undertaking assessment and remediation under the Massachusetts Contingency Plan (MCP) may use a notice of delay form to notify the Massachusetts Department of Environmental Protection (MassDEP) of delays related to the COVID-19 crisis. MassDEP’s Bureau of Waste Site Cleanup has stated informally that parties and their consultants should focus on time-critical situations, and that MassDEP does not expect to take enforcement action for failing to conduct routine MCP work. With respect to other compliance obligations, MassDEP encourages facilities to speak with the agency directly if they are having difficulty complying, or expect to have difficulty complying, with requirements. Click here for more COVID-19 related information from MassDEP.
In short, there is no single answer to compliance problems during this crisis. Government agencies always have enforcement discretion and must utilize their judgment about when to apply it. During the COVID-19 pandemic, it will be necessary for agencies to use that discretion when obligations and deadlines are delayed and missed. In each case, it will be up to the regulated community to document why COVID-19 prevents compliance and to communicate with regulators proactively about those circumstances to seek agreement, preferably before a violation occurs.
We recommend that facilities make every effort not to violate, or to mitigate the severity of any violation as much as practicable, and particularly to prioritize compliance with those requirements that would directly impact human health and the environment. If violations are inevitable, we suggest early reporting to regulators, in advance if possible, and clear recordkeeping of how COVID-19 issues prevent compliance.