April 07, 2020

Environmental Agencies Adopt Regulatory Flexibility in Response to COVID-19

To adapt to the rapidly evolving COVID-19 situation, the United States Environmental Protection Action (EPA) and several state environmental agencies have started implementing regulatory flexibility and enforcement discretion policies to inform the regulated community on how to best proceed during these unprecedented times. Information on these policies and resources for staying updated are provided below.

It is worth noting, however, that even state environmental protection agencies that have not issued a specific COVID-19 enforcement discretion or flexibility policy will likely still be able to grant enforcement relief/discretion under an existing generic enforcement policy. Accordingly, regulated entities located in states without explicit COVID-19-related enforcement discretion policies should still thoroughly document their inability to comply with any environmental requirements due to COVID-19 disruptions.

EPA

The EPA announced a temporary enforcement discretion policy (which is retroactive dating back to March 13, 2020) for civil violations during the COVID-19 situation, if regulated entities take the steps required by the policy. EPA intends to focus its resources on situations that pose an imminent or significant risk to public health or the environment. Notably, the policy does not apply to: i) the obligation to prevent, respond to and report accidental releases of oil, hazardous substances, hazardous waste or other pollutants; ii) criminal violations; iii) imports; or iv) activities required by Superfund or Resource Conservation and Recovery Act (RCRA) corrective action.

Best Compliance Efforts Still Encouraged

EPA conditioned its enforcement discretion on regulated entities making every effort to comply with all applicable environmental compliance requirements. That said, if compliance is not “reasonably practicable,” regulated entities with compliance should ensure, at a minimum, that they do the following:

  • Act responsibly under the circumstances, especially 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.
  • Identify the decisions and actions taken in response, including best efforts to comply and steps taken to return to compliance at the earliest opportunity.
  • Return to compliance as soon as possible.
  • Maintain records of the actions or conditions identified in the above points. 

Routine Compliance Monitoring and Reporting 

For “routine compliance monitoring and reporting,” which generally includes compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification, EPA’s temporary policy is as follows:

  • Regulated entities should continue making best efforts to report any non-compliance under applicable permits, regulations or statutes.
  • In the event compliance is not possible due to COVID-19, the steps identified in the “Best Compliance Efforts” section above should be followed/
  • The inability to obtain a “wet” signature will not excuse failure to submit a paper submission or certification.
  • EPA will accept emailed submissions even if a paper original would be required under normal circumstances.
  • Generally, EPA does not anticipate seeking civil penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations if EPA agrees that COVID-19 was the cause of non-compliance.

EPA also set guidelines for whether “catch-up” efforts for routine compliance will be required after the temporary policy expires:

  • “Catch-up” submissions will not be required for monitoring or reporting if the underlying interval requirement applies to intervals of less than three months.
  • If, however, the monitoring or reporting requirements are for a longer interval (biannual or annual), facilities will be required to take reasonable measures to resume compliance activities, including conducting late monitoring or submitting late reports.

Settlement Agreement and Consent Decree Obligations

If a regulated entity has obligations under an EPA administrative settlement agreement or an EPA/Department of Justice (DOJ) consent decree, the following guidelines apply: 

  • If, due to COVID-19, a regulated entity anticipates missing enforceable milestones under an administrative settlement agreement, it should follow the “Best Compliance Efforts” noted above. EPA will generally not seek civil penalties under these circumstances, but may follow up to determine a proposed plan with adjusted requirements to account for missed deadlines or milestones under the agreement.
  • If a regulated entity anticipates missing enforceable milestones under a consent decree, EPA will coordinate with DOJ to exercise enforcement discretion concerning stipulated penalties; however, the courts still retain jurisdiction and could exercise their own discretion in such matters.
  • Under either circumstance, regulated entities should follow the notice provisions to notify EPA (and/ or DOJ) regarding non-compliance related to COVID-19.

Facility Operations — Generally

EPA’s temporary policy still requires facilities to manage and operate in a manner that protects public health and the environment. If facility operations are impacted by COVID-19 so as to create an acute risk to public health or the environment, facilities should contact their regional EPA offices. In these circumstances, EPA will do the following, as necessary:

  • Determine measures to minimize or prevent the acute or imminent threat.
  • Evaluate whether an applicable permit, statute or regulatory provision governs the issue.
  • Work with the facility to minimize or prevent the acute or imminent threat and to return to compliance as soon as possible.
  • Consider whether the circumstances, including the COVID-19 situation, require enforcement.

Facility Operations — System Failures

Failures of air emission control, wastewater, waste treatment or other systems at a facility that could result in exceedances of permissible limits should be reported to the appropriate authorities as soon as possible. The notification should include the following:

  • Information on the pollutants emitted, discharged, discarded or released.
  • The comparison between the expected emissions or discharges, disposal, or release and any applicable limitation(s).
  • The expected duration and timing of the exceedance(s) or release(s).

If EPA implements the program directly, it will evaluate the situation in the same manner described above.

Facility Operations — Hazardous Waste Generators

Generators of hazardous waste that are unable to transfer waste off-site within the timeframes required under RCRA should continue to properly label and store the waste in addition to making all other best efforts to maintain compliance with applicable hazardous waste rules.

If the generator meets these requirements, EPA will exercise its enforcement discretion and not treat the generator as a “treatment, storage and disposal facility.” Additionally, EPA will allow Very Small Quantity Generators and Small Quantity Generators to maintain that status, even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold based on the generator’s inability to arrange for removal of the waste due to COVID-19.

Facilities — Animal Feeding Operations

Similarly, if an animal feeding operation is unable to transfer animals off-site due to the COVID-19 situation, EPA will exercise its enforcement discretion and not treat those facilities as concentrated animal feeding operations (CAFOs) (or small CAFOs as medium, or medium CAFOs as large CAFOs). EPA’s enforcement discretion is conditioned upon the animal feeding operation or CAFO implementing the “Best Compliance Efforts” noted above.

Indiana

The Indiana Department of Environmental Management (IDEM) recently issued a statement explaining how it will exercise its enforcement discretion, including extensions of submission deadlines, and waiver of specific regulations during the COVID-19 emergency. IDEM issued this statement consistent with Governor Holcomb’s Executive Order 20-05 (the “Order”) that required state agencies to “waive, suspend, or modify any existing rule…where the enforcement of which would be detrimental to the public welfare…” Although IDEM has not waived any regulatory requirements, IDEM acknowledged that it would exercise regulatory discretion as appropriate if “noncompliance is unavoidable directly due to impacts from COVID-19.”

Enforcement Discretion for Anticipated Non-Compliance

That said, IDEM also encouraged regulated entities to maintain open communication with IDEM, especially regarding anticipated noncompliance, including:

  • Concise statement describing how the COVID-19 outbreak contributes to the anticipated or ongoing noncompliance.
  • Anticipated duration of the noncompliance.
  • Citation of rule/permit provision for which enforcement discretion is requested.

Regulated entities are also required to maintain records adequate to document activities regarding the non-compliance and best efforts to comply.

Requests for Extension of Non-Essential Deadlines

Also, IDEM has authority under the Order to extend “non-essential deadlines” for up to 60 days if necessary to respond to the threat of COVID-19. Requests for an extension should be sent to the appropriate IDEM program contact with the following information:

  • A concise statement describing how the COVID-19 outbreak contributes to the need for an extension.
  • Identification of the current deadline and number of additional days requested.
  • Citation of rule/permit provision for which the extension is sought. 

Contact information and further instructions for submitting documents and requests electronically can be found here.

Michigan

Michigan’s Department of Environment, Great Lakes and Energy (EGLE) established a dedicated email address (EGLE-EnforcementDiscretion@mi.gov) to accept requests for regulatory flexibility. Regulated entities facing unavoidable non-compliance due to the COVID-19 situation may request, among other things, extended reporting deadlines and waived late fees. The request must include the following:

  • The specific regulatory requirement in question, including identification of any permit, order or agreement that applies to the regulated entity’s obligations.
  • A concise statement describing the circumstances preventing compliance and how the compliance issue is impacted by the COVID-19 response.
  • All steps taken to avoid the compliance issue, including whether the entity contacted EGLE for assistance and why the compliance issue was not reasonably avoidable.
  • The anticipated duration of the compliance issue and whether it may create an acute risk or imminent threat to human health or the environment (emergency situations should be reported to the Pollution Emergency Alerting System Hotline at +1 800 292 4706).
  • Mitigative measures planned to protect the environment and public health during the period in which the requirement cannot be met.
  • A central point of contact for the regulated entity, including an email address and phone number.

Regulated entities making such a request must also maintain records sufficient to show activities related to the non-compliance and best efforts to comply.

Minnesota

The Minnesota Pollution Control Agency has instituted “regulatory flexibility” measures to account for unavoidable noncompliance scenarios. In stances where non-compliance is unavoidable due to COVID-19, MPCA established an email address to accept requests for regulatory flexibility by providing regulated entities with alternative approaches to maintaining compliance, including deadline extensions. The MPCA will also consider “sector flexibility” if it receives multiple requests for regulatory flexibility from a specific requirement.

Requests for Regulatory Flexibility

For all requests related to regulatory flexibility, regulated entities mush submit all inquiries to mpca.covid19regflex@state.mn.us. At a minimum, all inquiries must meet the following requirements:

  • Come from an individual party (company/county/individual) and identify the party requesting the flexibility by name and applicable permit number.
  • Include the phone number(s) of the individual to contact regarding the Request.
  • State the specific statute/rule/permit condition the individual party is seeking flexibility from.
  • Include the reasoning/rationale for the request (one-paragraph summary on why the peacetime emergency makes the flexibility sought necessary and what actions the requestor took prior to the request to meet the requirement).
  • Include bulleted points of what measures will be taken to mitigate/minimize the potential environmental impacts (if any).
  • Specify the time period that the request is for, including the rationale.

Regulated entities must also keep records adequate to document implementation of authorized alternative compliance options, and activities related to the non-compliance.

Pennsylvania

The Pennsylvania Department of Environmental Protection (DEP) has adjusted its protocol and policy for temporarily requesting suspension of regulation or permit conditions. This authority was granted by Governor Wolf’s Proclamation of Disaster Emergency.

Request for Temporary Suspension of Regulatory Requirements/Permit Conditions

Regulated entities wishing to request temporary suspension of regulatory requirements or permit conditions must complete a request form available here.

The completed form must then be sent to RA-EPCOVID19SuspReq@pa.gov.

Additionally, DEP temporarily suspended the timeframes for providing permit decisions. Although DEP is still processing permit applications, decisions may be delayed. That said, DEP will prioritize and provide emergency authorizations for projects that are critical to public health and safety.

Texas

The Texas Commission on Environmental Quality (TCEQ) has issued regulatory guidance regarding its administrative relief and enforcement discretion for various reporting requirements, and occupational licensing. TCEQ may provide additional updates over the coming weeks, which can be reviewed here.

Point Source Emissions Inventory Reporting

Although point source emissions inventory reports were due on March 31, 2020, TCEQ will exercise enforcement discretion on submissions made on or before April 30, 2020, as timely received.

Stormwater General Permit Reporting

Under the Texas Pollutant Discharge Elimination System (TPDES) stormwater general permit requirements, regulated entities now have until April 30, 2020, to submit the following reports:

  • Small (Phase II) Municipal Separate Stormwater System (MS4, TXR04000) Annual Reports.
  • Industrial Stormwater Multi-Sector General Permit (MSGP, TXR05000) Discharge Monitoring Reports (DMRs).

Depending on how the COVID-19 situation develops, TCEQ will consider additional enforcement discretion regarding the revised April 30, 2020 deadline.

TPDES Individual Permit Reporting

TCEQ has not waived DMR reporting, and permit holders must continue to report via the NetDMR reporting system. Permittees who have received electronic reporting waivers must still submit paper copies of DMRs to the Compliance Monitoring Team of the TCEQ Enforcement Division on an approved DMR form (EPA No. 3320-1).

That said, permittees may submit DMRs for the months of February 2020 and March 2020 on or before April 30, 2020. If the reports are received by April 30, 2020, TCEQ will exercise enforcement discretion and deem the reports as filed timely. TCEQ will also consider additional enforcement discretion as warranted in response to COVID-19.

Mass Cap and Trade (MECT) and Highly Reactive Volatile Organic Compound Emissions Cap and Trade (HECT) Annual Compliance Reporting

Although MECT and HECT reports were due on March 31, 2020, TCEQ will exercise enforcement discretion on submissions made on or before April 30, 2020, as timely received. Also, depending on how the COVID-19 situation develops, TCEQ will consider additional enforcement discretion regarding the revised April 30, 2020 deadline.

Air Permitting Public Notice Signage Requirements

Requirements for posting signage regarding proposed air quality permits or proposed renewals of air quality permits are also subject to TCEQ’s discretion during the COVID-19 situation. Specifically, applicants may request a variance. The applicant must show that it is not practical to comply with signage requirements and that alternative sign posting plans will be at least as effective in providing public notice.

Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.
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