Locke Lord QuickStudy: Federal and State Environmental Authorities Respond to COVID-19

Federal and State environmental agencies are modifying their usual compliance procedures, including ‎deadlines, to accommodate the various challenges presented by the COVID-19 pandemic.‎ While a number of States initially indicated that they would exercise enforcement discretion, as  a ‎result of the pandemic, on March 26, 2020, the United States EPA (“EPA”) announced a ground ‎breaking temporary enforcement policy to address the pandemic’s effects. EPA’s policy and actions by certain States are discussed below. The discussion of State actions is not intended to be ‎exclusive as such policies are being implemented on an ongoing basis.

United States EPA

The EPA’s groundbreaking COVID-19 enforcement policy (“EPA Policy”) is contained in a March 26, ‎‎2020 memo from Assistant Administrator Susan Parker Bodine. The EPA Policy is retroactive ‎beginning on March 13, 2020 and is temporary in nature, although no end date is set at this    time. ‎The EPA Policy does not apply to criminal violations, nor will it apply to Superfund or RCRA ‎corrective action enforcement matters that will be addressed separately. Further the EPA Policy does not relieve an entity from responsibility associated with responding and reporting accidental ‎releases of regulated substances. EPA has indicated certain sectors may be analyzed through a different prism. EPA specifically mentions that public water supplies should be subject to ‎heightened expectations, and as to critical infrastructure, EPA may develop a “more tailored short- ‎term No Action Assurance.”‎

The EPA Policy contains several important touchstones that are discussed below.‎

‎(a)‎        General Compliance

The regulated community is expected to make every effort to comply with applicable rules. ‎Where such compliance is not reasonably practicable, EPA sets forth general obligations. These ‎obligations include to (i) act reasonably to minimize the effects of non-compliance; (ii) identify the ‎nature and dates of non-compliance; (iii) document the COVID-19 related causation, actions taken ‎in response and how compliance was sought at the earliest possible time; (iv) return to compliance ‎at the earliest time; and (v) document the foregoing.Where the regulated entity  can document ‎the COVID-19 basis for this non-compliance, EPA has indicated it will generally  not expect to seek ‎penalties.‎

‎(b)‎        Routine Compliance

Regarding routine compliance monitoring, integrity testing, sampling, lab analysis, training, ‎reporting and certification, regulated entities are asked to utilize existing procedures to report ‎non-compliance. If that is not possible because of COVID-19 impacts, entities are directed to ‎maintain documentation supporting that assertion and be prepared to present it to EPA. EPA ‎indicated it does not expect to seek penalties where that documentation is available.  After   the ‎EPA Policy is not in effect, EPA expects entities to return to compliance, but will not require catch-up reporting. Wet signature reporting will be stayed in favor digital signatures during the ‎EPA Policy’s term.‎

‎(c)‎        Settlement and Consent Decree Reporting Obligations/Milestones

With regard to EPA administrative Consent Decrees, if enforcement milestones are expected  to ‎be missed, entities should use the notice procedures set forth in the agreement including force ‎majeure provisions. For routine compliance matters, EPA intends to use the approach described ‎above.EPA indicates that the notice should include a description of mitigating  steps undertaken ‎as well as the information required to be developed documenting the COVID-19 basis for non-‎compliance describe in the General Compliance section above. Where the Consent Decree is ‎with the DOJ, EPA indicates it will seek to coordinate with the DOJ and relevant plaintiffs to allow for enforcement discretion, but notes the Courts retain jurisdiction. In all ‎events the General Compliance documentation should be maintained.‎

‎(d)‎       Facility Operations

EPA sets forth several categories of potential non-compliance and approaches. First, EPA ‎indicates that the regulated community should take all steps to operate facilities in a safe and ‎protective manner. Where operations are impacted in a way that raises an acute health or ‎environmental risk, EPA directs facilities to contact the applicable implementing authority. At ‎such time EPA will coordinate with the regulated entity, relevant state or tribe to determine ‎measures to address the acute threat and ultimately consider the overall circumstances in ‎determining appropriateness of enforcement.‎

Regarding the failure of facility equipment, including air pollution or waste/wastewater treatment ‎equipment, that could result in exceedances or unauthorized releases, EPA requires notification ‎to the implementing authority as soon as possible and include relevant information concerning ‎the release (substances, comparison to appliable limitations, expected duration, and timing of exceedance/release). EPA indicates it will coordinate with the implementing authorities ‎concerning response.‎

Where other non-compliance arises not addressed by the acute risk or equipment malfunction ‎protocols, regulated entities should develop and maintain the documentation described for ‎General Compliance set forth above. EPA indicates it will consider the totality of circumstances in ‎determining enforcement including COVID-19.‎

With regard to hazardous waste generation, where waste cannot be shipped off-site timely due to ‎COVID-19 implications, generators are directed to maintain typical generator requirements (e.g., ‎labeling, storage etc.). In such cases generators will maintain their status and EPA will not consider ‎the generator a TSDF as a result of the COVID-19 delays. In all events records should be ‎maintained documenting the COVID-19 based non-compliance.‎

Finally, EPA has eased restrictions on animal feeding operations, where animals cannot be timely ‎transferred off-site.‎

Texas

The Texas Commission on Environmental Quality (“TCEQ”) established an email account pursuant  to ‎which regulated entities may request enforcement discretion, where non-compliance is unavoidable ‎directly due to COVID-19. Regulated entities should email both of the following accounts ‎OCE@tceq.texas.gov and Ramiro.Garcia@tceq.texas.gov. Naturally the regulated entity should develop ‎and maintain records documenting the direct nexus to COVID-19. Further, the TCEQ is extending ‎certain deadlines to accommodate COVID-19 disruptions. It will consider 2019 point source Emissions ‎Inventories (“EIs”), Mass Emissions Cap & Trade (“MECT”) Annual Compliance Reporting, and Highly ‎Reactive Volatile Organic Compound Emissions Cap & Trade (“HECT”)   Annual Compliance Reporting ‎submitted on or before April 30, 2020 as timely received. The expiration dates of all occupational ‎licenses expiring in March and April of 2020 are extended by 30 days. TCEQ will consider additional ‎enforcement discretion regarding these deadlines as conditions warrant.‎

The Railroad Commission (“RRC”) offices are currently open and operational. Because of infection ‎concerns, RRC is not accepting in-person filings at this time. Filings may be submitted online or via ‎mail.‎

In response to Governor Abbott’s State of Disaster Declaration, the RRC is allowing certain fuel ‎companies to apply for regulatory requirement waivers on a case-by-case basis:‎

• Alternative fuels companies
• Gas utilities
• Oil & gas operators
• Pipeline safety operators
• Surface mining and reclamation operators

RRC issued a Notice extending certain deadlines under Statewide Rule 32, which regulates flaring.¹ ‎First, operators may notify the RRC of releases or request exemptions via email rather than telephone or fax. Release notification deadlines are extended from the next business day following ‎the release to seven days from the commencement of the release. Applications for exceptions  under ‎‎3.32(h) are due by the end of the fourteenth day following the initial release. The RRC will  issue a ‎Notice to Oil and Gas Operators upon termination of the notification requirement extension under ‎Statewide Rule 32.‎

Oklahoma

Oklahoma offices are closed to outside visitors.‎

The Oklahoma Department of Environmental Quality (“DEQ”) expects that permit conditions and ‎compliance schedules will continue to be met. The DEQ has stated that it understands closures and ‎illness may limit this ability, and it has committed to flexibility as needed and appropriate.‎

To accommodate reduced staff, DEQ is requesting that non-compliance issues be communicated ‎through email or program specific reporting telephone numbers. The Air Quality Department of the ‎DEQ has also instructed regulated companies to submit permit applications, annual reporting, ‎semiannual reporting, and any questions through email.‎

DEQ is extending the expiration date of all Lead Based Paint licenses and certifications that are ‎expiring on March 31, 2020 and all Renovation, Repair & Painting (“RRP”) certifications that expired on ‎or after March 17, 2020. These expirations are extended until further notice by DEQ.‎

DEQ has suspended the July 1, 2020 deadline for the four hour training requirement for water and ‎wastewater operator certification license renewals. No late fees will be assessed for license renewal ‎applications after July 1, 2020, and the grace period is extended through September 30, 2020.‎

Louisiana

All scheduled public hearings are postponed until further notice. Public comment periods will be ‎adjusted accordingly. The Louisiana Department of Environmental Quality (“LDEQ”) will accept ‎electronic submittals for the duration of its Declaration of Emergency and Administrative Order.‎

LDEQ has extended certain compliance deadlines for 30 days. Deadlines to conduct periodic ‎reporting, to report periodic monitoring or other reports required by permits, regulations, other ‎authorizations, enforcement actions, or settlement agreements, only insofar as a facility does not have ‎appropriate personnel available due to COVID-19. Deadlines to file an application for renewal of an ‎existing permit are also extended 30 days; all renewal applications must be submitted no later than the ‎expiration date of the existing permit.‎

The above extensions do not apply to reporting, monitoring, or renewal for permits issued under ‎Title IV or Title V of the Clean Air Act, or under the PSD program. Emergency reporting ‎requirements are not suspended.‎

New York

On March 23, 2020 New York Department of Environmental Conservation Commissioner Basil ‎Seggos issued an Emergency Declaration waiving formal permit procedures and review under the State Environmental Quality Review Act² for “activities necessary to immediately facilitate the ‎construction (and operation) of medical facilities, infrastructure and related facilities” “to control and ‎combat the COVID epidemic.” The Declaration allows regional DEC staff to issue general permits or ‎issue emergency declarations with regard to such activities, at their discretion. Note that the law ‎applicable to such emergency declarations requires prior notice to the DEC before engaging in ‎such activities, except for activities taken by state or local governments where prior notice is not ‎feasible, in which case notice must be made within 24 hours.³ The Declaration also authorizes the ‎issuance of emergency authorizations “to allow for changes in operations of existing facilities” for ‎the same purpose. The Declaration and all permits and authorizations issued there under expire no ‎later than September 23, 2020, unless extended by order of the Commissioner.‎

The New York Department of Environmental Conservation is temporarily closing regional offices to ‎the public but has provided contact information on its website. All customer service and records ‎offices will be closed until further notice.‎

Illinois

Vehicle emission testing has been temporarily suspended. The suspension is in effect through April 7, ‎‎2020 and may be extended depending on circumstances. Vehicle registration expiration dates have ‎been extended by 30 days allowing motorists to wait to have their vehicles tested and renew vehicle ‎registrations.‎

New Mexico

Oil Conservation Division (“OCD”) Field Offices are only accessible by appointment. The OCD is ‎encouraging operators and the public to conduct business online as much as possible.‎

North Dakota

The North Dakota Department of Environmental Quality offices are closed, but they are available via ‎telephone or email.‎

Colorado

The Colorado Department of Public Health and Environment, recognizing the difficulty with ‎wastewater sampling during personnel shortages, has provided guidance on compliance ‎procedures that permittees should follow.‎

Any wastewater discharge permittee that temporarily cannot collect or analyze samples as required by ‎their permit should still submit the required Discharge Monitoring Reports (“DMRs”). If samples ‎cannot be collected or analyzed, paper DMR users are instructed to complete the DMR to the best of ‎your ability and write “Pandemic Incident” on the DMR. Electronic reporters using NetDMR should ‎enter a no data indicator (“NODI”) code into the required fields.‎

If permittees are able to conduct monitoring during part, but not all, of the monitoring period, ‎any collected data should be reported on the DMR (or entered in NetDMR). Permittees should ‎specifically note the actual frequency that the discharge was monitored.‎

If permittees are constricted to utilizing non-EPA approved methods for sampling and analysis, any ‎relevant data should be reported on the DMR. Permittees should submit a cover letter or comment ‎that identifies the specific methodology used.‎

In all cases, a cover letter should be submitted with the DMR that includes a brief explanation of how ‎conditions beyond the reasonable control of the permittee resulted in the monitoring and reporting ‎requirements not being met, providing any information to support that the facility was being properly ‎maintained at the time and was expected to be meeting effluent limits. Permittees should outline ‎their plan to complete the monitoring and reporting requirement as soon as possible. Any monitoring requirements that cannot be met by the deadlines in a permit should still be ‎completed at and reported to the division when conditions allow.‎

A facility may be able to claim upset per the permit if it violates its permit effluent limits, including ‎practice based effluent limits, because it is following COVID-19 safe practices.‎

Some Colorado Discharge Permit System permits and division forms require submittals to include an ‎original signature. Until the end of the state of emergency, a scanned hand-signed signature or  a ‎digital signature will be accepted.‎

Indiana

The Indiana Department of Environmental Management (“IDEM”) will continue to issue permits, ‎assess environmental conditions, and perform inspections. Requirements of regulated entities to ‎follow permit terms, submit reports, conduct and report on sampling, and other activities, have not ‎been suspended.‎

California

The California Air Resource Board’s regulations continue to be in effect, and regular deadlines  apply. ‎The California Water Board is postponing non-essential file reviews, and essential file reviews are by ‎appointment only.‎

The Department of Conservation is modifying some practices including limiting staffing in some ‎offices.‎

Conclusion

The EPA Policy offers the regulated community a reasonable approach to potentially mitigate ‎enforcement for COVID-19 caused non-compliance. It will be key for facilities to document the basis ‎for non-compliance, including efforts toward compliance and the reasons COVID-19 interfered.‎

States vary in their willingness to be flexible with deadlines, and regulated entities should continue to ‎make a good faith effort to meet compliance deadlines and standards where possible. In this ‎unprecedented time, hopefully the EPA Policy will serve as a model for State discretion where ‎programs have been delegated.‎

Rachael Beavers-Horne, a law clerk in our Houston office, contributed to this article.‎

Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of the legal issues related to COVID-19.

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1. ‎16 Tex. Admin. Code § 3.32.‎
2. Environmental Conservation Law, Article 8 ‎‎“SEQRA” ‎
3. NY ECL 70-0116(3)‎