Environmental regulators have issued discretionary environmental enforcement guidance in recognition that the COVID-19 pandemic will compromise or even prevent environmental compliance in certain circumstances. In response to the debilitating combination of worker shortages, closure of non-essential businesses, and stay-at-home orders, EPA has issued a new enforcement policy, and Michigan’s Department of Environment, Great Lakes and Energy (EGLE) has established an enforcement flexibility process that may offer some relief for your business operations.
- The Scope. The EPA Policy is retroactive to March 13, 2020, temporary, and remains in effect until EPA elects to terminate the Policy upon seven days’ advance notice to be posted on its website. The Policy applies (in lieu of other applicable EPA enforcement policies) to events of noncompliance that occur while the Policy is in effect, provided that the noncompliance results from COVID-19. Notably, the Policy does not apply to CERCLA enforcement, RCRA corrective action enforcement, criminal environmental sanctions, or public water systems. The Policy is not binding on states.
- Threshold Conditions. As a threshold for application of the Policy, where compliance is “not reasonably practical” specifically due to the impact of COVID-19, the regulated party is expected to:
- minimize the effect and duration of the noncompliance;
- identify the specific nature and dates of the noncompliance and how COVID-19 was the cause, including “best efforts” to comply and return to compliance promptly; and
- document this information, to be provided to EPA as part of an enforcement inquiry or submitted as part of required communications under a permit or settlement agreement.
- Routine Monitoring. Given the effect of COVID-19 on labs, staffing, and contractor availability, EPA does not anticipate pursuing penalties for failure of a business to timely comply with routine environmental compliance requirements, such as monitoring, sampling, inspections or reporting, with respect to its facility or operations. A regulated party who is subject to these routine requirements pursuant to a permit or a settlement agreement should follow the notification provisions, including force majeure notifications, in such governing document and take steps to satisfy the threshold conditions above.
- Facility Operations. Although the Policy states EPA’s expectation that regulated entities will operate in a manner that is protective of human health and the environment, to the extent that there are operational failures caused by COVID-19, EPA will consider relaxing enforcement penalties consistent with the Policy. For example, if contamination is discharged or released to the environment above enforceable limits as a result of the failure of environmental control equipment or a treatment system, EPA will exercise enforcement discretion, provided that the regulated party immediately notifies the EPA (or implementing state agency, as applicable), of the release and includes the information required to satisfy the threshold conditions. Another common operational challenge at this time pertains to the accumulation of hazardous waste. If a hazardous waste generator is unable to ship waste off-site within the regulatory time limits to maintain its generator status under the law, the Policy provides that EPA will not enforce the additional legal requirements that apply to increased and prolonged hazardous waste storage, provided that the generator follows proper storage, labeling and documentation procedures. Although Michigan has not publicly adopted this same enforcement discretion for its hazardous waste program (which functions under delegated status from EPA), it would be reasonable for Michigan to follow the EPA’s enforcement discretion lead for such situations.
- The Bottom Line. The Policy does not offer a “free pass” to violate environmental legal requirements during the COVID-19 pandemic. In fact, in its March 30, 2020 news release, EPA criticized various news outlets for irresponsibly characterizing the Policy as providing a blanket waiver for noncompliance or creating a presumption that a violation is due to COVID-19. To benefit from the relaxed enforcement discretion offered in the Policy, businesses must carefully document the nexus between any noncompliance and COVID-19 and be prepared to substantiate their position with documentation as described above.
EGLE Discretionary Enforcement Process
Unlike EPA, EGLE has not adopted a formal enforcement policy applicable to the COVID-19 pandemic, but EGLE has publicly acknowledged that operational disruptions may handicap Michigan businesses from maintaining environmental compliance. To address these challenges, EGLE has set up an email box for the regulated community to request flexibility in the event of noncompliance. In response to requests, EGLE may consider extending deadlines, waiving fees, and exercising other enforcement discretion.
When preparing a request, keep in mind that the filing will become part of the public record and subject to Michigan’s Freedom of Information Act. In addition, although not explained in EGLE’s description of its process, be aware that EGLE is posting the requests for enforcement relief and EGLE’s responses on the department’s website.
The requests must include information similar to that required under the EPA Policy, such as the:
- correlation between the noncompliant event and COVID-19;
- governing document, such as a storm water, air discharge or other permit, order or settlement agreement, or specific regulatory requirement at issue;
- duration of the noncompliance, measures taken to avoid the noncompliance, and whether an acute risk or imminent threat to human health or the environment may result (which should be reported to the EGLE emergency hotline); and
- contact information for the regulated entity.
If noncompliance is based on a permit, order, or other agreement with EGLE, that document and the relevant provisions should be specifically identified in the request. Per EGLE’s enforcement flexibility description, such a request will serve as satisfaction of the notification and/or reporting obligations in the governing document, provided that the request otherwise complies with those requirements (such as timing for providing notice of a deviation or noncompliant event).
EGLE has provided separate information for specific challenges created by COVID19, such as workarounds for delays in conducting Baseline Environmental Assessments.
For assistance with addressing your company’s challenges with environmental compliance, including drafting appropriate documentation pursuant to the EPA Policy and enforcement discretion requests to EGLE, please contact any of our environmental lawyers.More Publications