In the wake of the Environmental Protection Agency’s (EPA) recent announcement of temporary enforcement discretion for certain environmental compliance obligations during the COVID-19 pandemic, state agencies across the country are considering similar policies. In general, these policies aim to increase regulatory flexibility for entities with environmental compliance obligations that experience delay or other hardship associated with the pandemic and implementation of stay-home orders.
As discussed in a previous alert, most states have delegated authority to implement and enforce their own versions of federal environmental programs. While these delegated states cannot change the terms of federally approved implementation plans or federal regulatory obligations, they are not bound by EPA’s new policy and enjoy broad latitude to make their own decisions on enforcement for noncompliance.
Requesting Regulatory Flexibility: Wisconsin and Minnesota Establish Case-By-Case Process
Most recently, Wisconsin and Minnesota environmental agencies have pledged to consider requests for regulatory flexibility for anticipated noncompliance on a case-by-case basis.
Wisconsin’s new policy, announced April 3rd, encourages entities to work with their primary Department of Natural Resources (WDNR) contact regarding actual and unavoidable site- or facility-specific compliance situations. While all state statutes and regulations remain in effect unless otherwise suspended, requests for compliance assistance can be submitted directly to the primary contact via email or to other WDNR staff via an online form. Under Wisconsin’s “Safer at Home” emergency order, WDNR will prioritize responding to imminent or threatened releases affecting human health or the environment over routine, on-site audits and inspections.
Minnesota’s new policy, announced several days prior on March 31st, is substantially similar in creating an online process to funnel compliance assistance requests for review by the Minnesota Pollution Control Agency (MPCA). Like WDNR, MPCA will prioritize requests involving health and safety-related concerns.
While the submittal instructions are slightly different for each agency, both WDNR and MPCA require certain minimum information to process a request:
- Identification of the entity requesting flexibility, including for the company and submitting individual, and the applicable permit number;
- Contact information for the site or facility;
- Statement of the specific statute/rule/permit condition the individual party is looking for flexibility from;
- Statement of the reasoning/rationale for the request and related to the COVID-19 emergency (for both, a one-paragraph summary on why the COVID-19 emergency justifies the assistance sought and what actions the requestor took prior to the request to meet the requirement);
- Bulleted points of what measures will be taken to mitigate/minimize the potential environmental impacts (if any); and
- The specific time period that the request is for including the rationale.
Both WDNR and MPCA have stated that they will “work as quickly as possible with an individual party on a solution in response to the compliance assistance request,” and may consider granting sector-specific flexibility for certain requirements depending upon the number of requests received.
Other States Implementing Broadly Applicable Relief
Other states have already granted sector-specific or general flexibility for certain requirements, offering more sweeping relief in contrast to a case-by-case approach. For example, Louisiana and Texas environmental agencies have granted blanket extensions for certain report filing and/or periodic monitoring deadlines (i.e., except for monitoring required by air permits issued under Title IV and V of the Clean Air Act or under the PSD Program) insofar as the facility does not have appropriate personnel or equipment available due to COVID-19. In a similar vein, many states have provided a grace period for certain state licenses, permits, and registrations set to expire during the pendency of emergency orders, including Maryland and Oklahoma. Alternatively, Virginia and Kentucky temporarily suspended routine field activities, including inspections, unless necessary for an imminent or threatened risk to human health or the environment.
What Companies Need to Know About Enforcement Discretion
As current events continue to unfold, it is highly likely that more states will follow suit and issue their own policies regarding environmental compliance. It is critical for entities with environmental obligations to stay abreast of these developments, whether or not any individual company is facing hardship due to supply chain disruptions or social distancing restrictions. Further, it is critical that each company keep in mind a number of practical considerations for these new policies:
- Lack of Anonymity and Public Exposure. Companies should be aware that any request for flexibility or enforcement discretion likely will be public information. At the federal level, environmental advocates have already filed a petition for emergency rulemaking to ask that EPA promptly publish a searchable database of all regulated entities that provide a notification of failure to comply with required environmental monitoring, reporting, testing, sampling, inspection, or certification due to COVID-19. The petition also proposes a requirement that EPA and relevant state agencies and regulatory authorities promptly share information regarding lapses as well as efforts to return to compliance.
- Requests for Flexibility Should Be Made in Advance. Companies should be aware that regulatory approval is generally required prior to implementing alternative measures. Without prior notification and approval, companies run a substantial risk that the relevant agency may disagree as to the degree of hardship or the sufficiency of alternative measures. This could disqualify a company from receiving enforcement discretion and subject it to retroactive penalties.
- Many Requirements Are Still in Effect. Companies should make every effort to comply with their environmental obligations. Enforcement discretion policies are generally subject to carve-outs, exceptions, and limiting language that should be carefully reviewed. As always, spills or other emergencies must be reported immediately.
- Documentation is Critical. Where alternative compliance options are authorized by the relevant agency in writing, regulated companies must maintain records adequate to document implementation of authorized alternative compliance options, and activities related to the noncompliance. Diligent documentation of the reasons for requesting flexibility is also required for any company receiving compliance assistance.
- The Situation is Rapidly Evolving. Companies must be aware of deadlines and durations established for the pendency of emergency orders. It is up to each individual company to track how these orders affect their compliance obligations, and when normal compliance obligations resume. Temporary suspensions of certain regulatory activities may be delayed at the discretion of relevant agencies.
Michael Best is committed to tracking these regulatory developments, for environmental and for other business issues as well. Please contact any member of our Environmental & Natural Resources team for assistance with your environmental compliance questions.