Environmental Compliance During COVID-19 Shelter-In-Place Restrictions

Businesses in states that have issued the temporary in-person shutdown of non-essential businesses are not exempt from state and federal environmental regulatory obligations, without a specific exemption or directive from the governing authority. So how then do businesses perform required obligations such as operation of treatment systems, monitoring, reporting, inspections and testing when told employees must work remotely?

It is important to first understand what ongoing obligations your business has and when such obligations must be fulfilled. Do you have daily inspection requirements, ongoing monitoring requirements, reports that must be filed, compliance obligations pursuant to a permit or consent order? Which of these obligations can be performed remotely and which require the onsite presence of an employee to perform? Which of these obligations requires the support of a third party to perform, such as a lab or environmental consultant? Are these third parties available to assist?

With respect to employees necessary to perform ongoing inspections, monitoring, testing or reporting in person, state orders may consider such employees as essential and exempt from the stay at home requirements. For example, the California Water Boards advised that timely compliance with all Water Board orders and other requirements (including regulations, permits, contractual obligations, primacy delegations, and funding conditions) is generally considered to be an essential function and exempt from the COVID-19 shelter in place requirements. Michigan’s Order No. 2020-21 provides an exemption for non-critical infrastructure workers that are necessary to conduct “minimum basic operations” in person. Illinois’s Executive Order 8 contains a similar provision. Whether these exemptions will allow for the performance of these regulatory requirements remains to be seen. It is important to review any stay in place order as well as any guidance or frequently asked questions issued by your state interpreting or clarifying the order. States are reviewing their orders and issuing guidance and clarifications regularly.

Relief from penalties associated with missed or delayed obligations may also be found in the underlying statute, permit or order imposing the obligation. Some of existing “waivers” or exceptions identified after Hurricane Katrina as mechanisms to provide relief from certain regulatory requirements include:

• The Clean Water Act’s “upset” conditions and acts of God or war affirmative defenses; exceptions for NPDES permits for discharge to water that is conducted as part of Section 311(c) removal action; expedited procedures for the processing of permit applications or direct action by the Army Corps of Engineers;
• Clean Air Act waivers of controls or prohibitions regarding the use of a fuel or fuel additives, in the event of a natural disaster or Act of God; from emission restrictions for fuel-burning stationary sources during national or regional energy emergencies; from national emission standards for hazardous air pollutants from stationary sources when in the interests of national security;
• Resource Conservation and Recovery Act provisions that allow the Environmental Protection Agency to issue temporary emergency permits to allow treatment, storage, or disposal of hazardous wastes where there is imminent and substantial endangerment to human health or the environment.
• CERCLA act of God or war defense; and emergency removal actions

Permits and consent orders may also contain provisions for extending deadlines for good cause or for events of force majeure.  Finally, states and the EPA may exercise enforcement discretion to allow businesses to delay or forego certain obligations which would otherwise be a violation of the law. EPA has utilized “no action assurances” to memorialize its determination to exercise enforcement discretion in specific instances.

The bottom line is, know what ongoing requirements and obligations you have. Determine what you can and cannot accomplish remotely. If there are obligations you cannot accomplish remotely, notify your regulator as soon as possible and identify any exceptions or waivers that may apply.

Susan Johnson
248.258.1307
johnsons@butzel.com

Beth Gotthelf
248.258.1303
gotthelf@butzel.com