As the coronavirus (COVID-19) outbreak continues across the U.S., it is important for companies to proactively address the potential disruptions to their compliance programs. Environmental compliance is often a boots-on-the-ground activity; but what happens when those boots are at home, can’t travel as needed, or can’t observe operations at the plant level? Unprecedented staffing and operational issues associated with the coronavirus pandemic have the potential to cause significant gaps in environmental compliance programs. Staying ahead of those gaps is key to weathering these compliance challenges. Below we discuss some recommended strategies to maintain compliance.
As environmental regulations have become increasingly complex, most businesses rely more heavily on legal and technical professionals to ensure an effective environmental compliance program. Many environmental compliance professionals are subject matter specialists tasked with managing requirements associated with particular environmental programs, such as air, waste, water, or safety. When individuals who play critical roles in the compliance chain are working remotely, or become ill, those chains can break down.
On the operational side, absences due to illness or remote work arrangements for employees with responsibility for or knowledge of routine environmental compliance procedures can negatively impact compliance. This may be further complicated by the unique impacts of the coronavirus on business-as-usual. Some industry sectors are critical to the response to coronavirus, while others are being overtaxed by increased demand. Yet others, like electricity producers and waste management companies, are critical to our daily societal functions, especially when our infrastructure is under stress. Companies in these sectors simply may not be able to cease or curtail operations if environmental compliance issues arise. On the flip side, some businesses may be forced to shutter their operations. On March 19, 2020, the Governor of Pennsylvania issued an order requiring the shutdown of all “non-life-sustaining businesses” in the state and other states can be expected to follow suit.
Some environmental laws have provisions allowing for the limited suspension of certain requirements in extraordinary circumstances. Those types of provisions, however, typically require some sort of affirmative action on behalf of EPA or other governmental authority to be triggered. Many federal and state environmental laws recognize “upset,” acts of God,” or emergencies beyond the control of a facility as affirmative defenses to noncompliance, but to claim the defense, a facility typically is required to notify the appropriate agency of a violation within a certain time period and submit information detailing the cause of the violation and why the violation was beyond the facility’s reasonable control.
EPA and state agencies can also use their enforcement discretion not to pursue certain violations. EPA policy generally prohibits the issuance of “No Action Assurance” letters (indicating that the agency will not pursue enforcement for violation of a specific environmental requirement) outside the context of a formal enforcement proceeding. Notably, the policy provides an exception “in extremely unusual cases in which a no action assurance is clearly necessary to serve the public interest (e.g., to allow action to avoid extreme risks to public health or safety, or to obtain information for research purposes) and which no other mechanism can address adequately.” EPA has used No Action Assurances from time to time in the wake of natural disasters, which is probably the closest corollary to the coronavirus in the years since environmental regulations were first passed. EPA used No Action Assurances in states affected by natural disasters, including Hurricanes Katrina, Sandy, and Michael, and even after significant flooding events. They are generally limited in time and scope, however. In 2012, for example, EPA issued a No Action Assurance to New Jersey and New York in the wake of Hurricane Sandy related to federal and state rules limiting fuels that can be burned in stationary emergency diesel generators and pumps. The No Action Assurance was limited in scope to engines that were being used in the public interest when the required fuel was not reasonably available and required the owners and operators to follow certain practices. The assurance was also issued for a limited amount of time and had to be extended at least twice. Based on the scope of prior No Action Assurance letters issued by EPA, a No Action Assurance letter issued in connection with the coronavirus may be of limited utility given the likelihood that impacts will be nationwide in scope and not limited to a particular industry sector or set of regulations.
In short, companies should not rely on federal or state environmental authorities to proactively resolve their concerns about potential noncompliance during the coronavirus pandemic, particularly when EPA and other federal and state agencies will be faced with their own personnel and staffing issues. In the absence of formal action regarding enforcement policies, EPA and state agencies can be expected to pursue enforcement on a case-by-case based on the facts of each specific situation.
Below are some tips for navigating environmental compliance and minimizing exposure for potential violations during this uncertain time:
- Fix the problem. Don’t exacerbate a potential violation by letting it continue. If your company experiences a release or violates a permit requirement, address the problem and minimize any environmental impact. Do not let your company become paralyzed by uncertainty regarding how to determine, document, or report a violation. Keep noncompliance short-term.
- Pay close attention to all reporting requirements. Depending on the type of release event (e.g., valve leak, explosion, wastewater treatment system malfunction), your company may have multiple reporting requirements across multiple programs with different time frames. Some programs, like EPCRA, trigger virtually instantaneous reporting requirements (within 15 minutes of a release). Other programs or permit requirements may have 8-hour reporting requirements, 24-hour requirements, 30-day follow-up requirements, etc. Map them out and come up with a plan.
- Actively manage critical compliance staff. Schedule regular status calls to address concerns and help forecast compliance gaps. Spell out a succession plan that will kick in if critical personnel are sidelined by illness. Use communication trees or other approaches to ensure critical compliance information reaches the right people in a timely manner.
- Use additional resources as necessary. Consider the use of outside consultants, your environmental legal team, and/or even retired employees to help supplement strained internal resources. Don’t be short-sighted when trying to manage compliance resources.
- Avoid late reporting, where possible. Do your best to submit reports on time, even if there are some concerns over usual quality control assurances. You can resubmit or amend these reports as needed when the crisis point passes. If you need to have a discussion with the environmental agency about the sufficiency of the information in a report, that is a better position to be in than turning in a late report. Some agencies have penalty policies that may automatically trigger NOVs for late reports.
- Take compliance certifications seriously. Many environmental reports and compliance certifications require a responsible official to attest that the information provided to the agency is true, accurate, and complete. While your report will be based on the best information available at the time of submittal, you may not have all of the facts due to absence of key compliance or operations staff or for other reasons. Pay close attention to the certification requirement in your reports and include qualifying language where necessary. If you are unsure about facts, it appropriate to indicate that.
- Carefully document noncompliant events and notify the agency as soon as possible. If a potential violation or missed deadline occurs, work with your staff and legal counsel to carefully document why compliance was not possible and what steps were taken to mitigate the impact of the noncompliance and ensure future compliance. Most importantly, reach out to regulators as soon as possible to notify them of the potential violation and work out a solution. While self-disclosure policies used by many regulatory agencies to reduce penalties for violations discovered through voluntary audits will not necessarily be applicable, many agencies still take voluntary self-disclosure and cooperation by the regulated party into account when exercising their enforcement discretion. Familiarize yourself with any affirmative defense provisions that might be applicable to your facility and ensure that you follow the steps necessary to claim that defense.
- Stay informed and stay in contact with your regulator, where possible.
Circumstances are changing almost daily. Businesses with facilities in different states may be subject to different orders from local or state governments. Flexibility and communication are key, as the situation is changing rapidly. Be prepared to adjust your compliance plan as circumstances and directives change and inform or coordinate with your regulator(s) as needed.
For more information on managing environmental compliance during the coronavirus outbreak, contact Randy Brogdon or Melissa Horne. Pepper Hamilton LLP and Troutman Sanders LLP have developed a dedicated Resource Center to guide clients through this unprecedented global health challenge.
 See, e.g., Section 110(f) of the Clean Air Act, allowing the President to declare a national or regional energy emergency, during which the Governor of an affected state could suspend certain rules for up to 4 months, and Section 211(c)(4)(c) of the Clean Air Act, allowing EPA to temporarily waive requirements related to fuel use or fuel additives.
 See, e.g., 40 C.F.R. § 122.41(n), the NPDES “upset” regulation.
 Memorandum from Courtney M. Price, Assistant Administrator for Enforcement and Compliance Monitoring re: Policy Against “No Action” Assurances, Nov. 16, 1984.
 Id. at p. 2.
 Letter from Cynthia Giles, Assistant Administrator, EPA, to Bob Martins, Commissioner, New Jersey Department of Environmental Protection, and Joseph Martens, Commissioner, New York State Department of Environmental Protection,