By Steven T. Miano and Peter V. Keays
Seemingly overnight, the COVID-19 pandemic has upended life as we know it and presented previously unfathomable challenges to businesses, municipalities, and other organizations throughout the country. Although all such entities are struggling with operational and financial challenges, the fallout from COVID-19 presents additional challenges to those that are subject to environmental legal obligations. The pandemic, and the disruptions it has caused, show no signs of abating quickly. Environmental compliance issues will therefore continue.
Regulated entities need to continue to strive for compliance with applicable environmental obligations, whether imposed by statute, regulation, permit, settlement agreement or consent decree. However, how to comply—and even what compliance means—may not be obvious under the unique and unprecedented circumstances the pandemic has created. And in reality, despite an entity’s best efforts, COVID-19 may simply preclude timely compliance with its environmental obligations. For example, in some cases, compliance may be foreclosed because contractors performing necessary work may unilaterally decide or be ordered to cease their work.
It is therefore critically important for regulated entities concerned about how to satisfy their environmental obligations to undertake a careful review of the nature and scope of the environmental obligations at issue, the specific facts involved, and pronouncements issued by cities, states, and the federal government, relating to both environmental obligations specifically and general restrictions on activities, in order to determine how to proceed to protect their interests. Regulated entities should be proactive in their approach to compliance challenges and take the following considerations into account.
Review the Governing Law or Legal Instrument
As a first step, entities should review the statutes, regulations, permits, settlement agreements or consent decrees that give rise to their environmental obligations to determine if there are any provisions that may apply to modify compliance obligations. Most environmental statutes and regulations include limited exemptions to compliance obligations and/or defenses to liability that may apply under the specific circumstances that an entity is facing as a result of COVID-19. These mechanisms are generally narrow and fact-driven. Similarly, most permits, settlement agreements, and consent degrees include provisions that may apply to excuse (or at least delay), compliance or performance under certain circumstances. Perhaps the most obvious example is the force majeure provision. Although such provisions are common, they vary widely in language and scope, and thus require individual analysis in the context of the specific situation confronting the regulated entity. Moreover, reporting of noncompliance is typically required in order to obtain the benefits of force majeure and other similar provisions. Care should be taken in putting together such notices.
Understanding the relevant provisions in applicable laws and legal instruments is critical to deciding how to proceed and developing the strongest possible legal arguments and strategy.
Stay Informed
Federal, state, and local environmental agencies have been engaged in assessing and trying to manage the unique compliance challenges created by COVID-19. It is important to stay apprised of their efforts.
Many agencies are working to develop a path forward for regulated entities that are unable to meet certain compliance obligations. Most notably, on March 26th, EPA issued a memorandum announcing that it would temporarily forego civil penalties “for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance….” The memorandum is not a blank check, however, as it also lays out certain steps that regulated entities are expected to take even if they are unable to satisfy their compliance obligations. Regulated entities should review EPA’s memorandum to determine if it applies to them, and to understand what is expected of them if they wish to avail themselves of the relief it affords.
Several state environmental agencies have announced similar policies with respect to COVID-19-induced noncompliance, and it is highly likely that additional state agencies will follow suit. The language of these policies varies and it is important to review whatever policies have been implemented by the applicable state agency, as well as considering federal policies.
In addition, a number of states and municipalities have issued more generally-applicable orders and policies restricting or limiting certain activities during the pandemic. These include, for example, stay at home orders, quarantine orders based on recent travel, and orders directing certain types of businesses to close their physical locations. These may have overarching implications for environmental compliance and should be considered.
Document Everything
Thorough documentation of the efforts made to comply with environmental obligations, and of the factors that contributed to delaying or suspending compliance, is critically important. A regulated entity that is unable to meet its obligations as a result of COVID-19 is highly unlikely to obtain any form of relief unless it is able to produce documentation showing that it made all reasonable efforts to comply. For example, EPA’s recent memorandum states that entities are expected to “make every effort to comply with their environmental legal obligations” and includes a specific documentation requirement. Likewise, several state agencies that have implemented relaxed enforcement policies have emphasized the importance of taking—and documenting—all reasonable efforts to comply with environmental obligations.
Documentation should also include contemporaneous records about the period and extent of noncompliance, the COVID-19-related conditions that caused noncompliance, and efforts made to mitigate those conditions. Because much of this documentation pertains to conditions and actions preceding noncompliance, it is important to have a plan in place to ensure that all impacted employees, contractors, and other team members understand what is expected of them in terms of documenting their actions and communications.
Regulated entities should also consider documenting costs associated with mitigating the impact of COVID-19 and any financial harm that the pandemic has caused. It is quite possible that federal or state funding may be made available to help cover such expenses for certain entities. Indeed, several industry groups, including one representing publically owned wastewater utilities, have already been lobbying for such funding. Thorough documentation will be critical to securing any funding if and when it becomes available.
Communication
Open and proactive communication with management, its consultants, its legal team, and others involved will help an entity successfully navigate COVID-19-induced environmental compliance delays or failures. Depending on the specific circumstances involved, entities might also consider reaching out to the appropriate regulatory agency regarding anticipated noncompliance. Although doing so may not be advisable under all circumstances, in considering whether to involve the agency, entities should evaluate the potential benefits of doing so under the unique circumstances created by COVID-19. Such benefits might include the possibility of crafting a mutually agreeable solution, demonstrating good faith or simply generating goodwill with the agency. Of course, the pros and cons of involving the agency must be considered carefully on a case-by-case basis.
These are indeed unprecedented times, and effective communication both within an organization and between the organization and its compliance team will be critically important.
Conclusion
For businesses, municipalities, and other organizations concerned about their ability to comply with environmental legal obligations as a result of the COVID-19 pandemic, taking early action to develop a legal strategy and a comprehensive plan to implement that strategy will be critically important. If you have questions about compliance issues or would like assistance navigating these waters, please contact Steven Miano or Peter Keays in the firm’s Environmental Practice Group.
