COVID-19 UPDATE: Steps Toward Regulatory Relief from Environmental Compliance

The novel COVID-19 pandemic creates an unprecedented dilemma for many businesses trying to maintain normal business operations in compliance with applicable environmental laws, rules, and permits.  Social distancing, telework, shelter in place and other measures designed to slow viral transmission not only disrupts principal business and manufacturing operations but also creates new challenges for maintaining compliance with legally enforceable environmental obligations.  While federal and state environmental agencies are already implementing some regulatory relief measures to avoid exacerbating public health risks, there are some steps that regulated entities can take to ensure that they will not risk violating their environmental compliance obligations as they follow public health recommendations.

First, review existing environmental obligations, including rules applicable to ongoing operations and facility-specific permits, to determine where coronavirus-related changes in normal operations could impact ongoing functions such as inspection of hazardous waste storage areas, site remediation, water sampling, emission monitoring, and recordkeeping. Even if normal business operations are suspended, environmental obligations may continue to apply.

Second, determine which obligations are infeasible at this time in light of current workforce capabilities, supplies, and other controlling factors.  For example, deadlines for installing pollution control equipment may be impossible to meet under new constraints on supply chains and controlling permits may require amendment.  Also, in-person inspection of hazardous waste storage areas may become infeasible, warranting some type of waiver or application of agency enforcement discretion.  Deadlines contained in state groundwater management permits issued to responsible parties for contaminated sites may require an extension to avoid risk to well owners.

Third, review and consult on any temporary measures already taken by state or federal agencies to avoid increasing public health risks through strict enforcement of environmental requirements.  Both the New Hampshire Department of Environmental Services (NHDES) and the U.S. Environmental Protection Agency (EPA) have recently issued general and targeted notices to regulated entities on their websites.  While the state has provided targeted extensions for water sampling activities, the federal agency has gone so far as to issue a general policy on where and how enforcement discretion will be applied.  Both agencies are likely to issue periodic updates to measures already taken in order to avoid economic and public health repercussions from attempts to comply with strict environmental regulations.

Fourth, where regulatory relief measures do not address relevant environmental obligations, it is important to explore the availability of legal mechanisms for temporary waivers or extensions of the specific legal requirements that cannot, or should not, be followed at this time.  For example, many environmental program rules provide for case-specific waivers in certain circumstances, as long as no statutory requirement would be violated.  Environmental permit terms often provide for amendment on a case-by-case basis. Agency orders are subject to amendment.  Even court-approved consent decrees and settlement agreements can be amended, but normally would require prosecutor and court approval.

Because circumstances will vary in each case, relying on general agency policies on future enforcement discretion can leave regulated entities open to potential, long- term civil or criminal environmental enforcement.  Filing targeted requests in advance of non-compliance ensures that there is no factual basis for later enforcement.  Where waiver requests are appropriate to ensure compliance, they typically must be requested in writing by the regulated entity or its representative.  How environmental harm can be minimized if the requested waiver, amendment or extension is granted should always accompany requests for relief.

It is important to be proactive and to consult with legal counsel, as necessary, to address the evolving challenges presented by COVID-19.

About the Author: Maureen Smith

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