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Environmental Remediation and Enforcement – COVID-19 Policy Updates

April 17, 2020

As the COVID-19 pandemic continues, federal and state environmental agencies continue to issue policies and guidance to assist regulated entities in navigating compliance with requirements under applicable law, permits and orders in a severely restricted society. Our last Client Alert focused on the US Environmental Protection Agency (“EPA’s”) March 26, 2020 policy memorandum regarding the use of enforcement discretion in connection with COVID-19 related environmental noncompliance. That memorandum has generated some backlash, including a letter from a number of state Attorneys General expressing concern about the policy’s potential impact on public health, especially the health of low income and minority communities, and a lawsuit by the Natural Resources Defense Council and other groups, filed on April 16th, citing similar concerns. That memorandum reserved on guidance for enforcement of obligations with regard to remediation activities under federal cleanup laws, with such guidance to be issued at a later date.

USEPA Remediation Guidance

On April 10, 2020 the EPA issued the promised additional COVID-19 related guidance, entitled “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19,” focused on providing direction to its regional offices regarding relaxation of enforcement actions at ongoing Superfund and Resource Conservation and Recovery Act (“RCRA”) cleanups. The purpose of the guidance is to ensure that COVID-19 related health and safety considerations are taken into account in connection with new and ongoing cleanup activities. The interim guidance focuses on decision making at emergency response and longer term cleanup sites where the EPA is the lead agency or has direct oversight of, or responsibility for, the cleanup work. The EPA stated that as of the beginning of April, the EPA has reduced or paused on-site construction work at approximately 34 EPA or PRP-led Superfund National Priority List sites, or 12% of all EPA sites with ongoing remedial actions, due to the pandemic.

The interim guidance issued provides direction to the agency’s regional offices regarding:

  • Considering site-specific factors when deciding on whether response actions will continue or be curtailed, paused or resumed. These include whether:
    • State, tribal, or local health officials have requested particular site operations or types of operations that would pertain to particular sites be suspended.
    • Site workers have tested positive for or exhibited symptoms of COVID-19.
    • There may be close interaction with high risk groups or those under quarantine, such as work inside homes.
    • Contractor field personnel are not able to work due to state, tribal, or local travel restrictions or medical quarantine.
    • Social distancing is not possible.
  • Applying applicable enforcement instruments: The EPA notes that enforcement instruments such as consent orders may contain provisions allowing for adjustments to schedules to be made at the discretion of the EPA’s project manager, and/or force majeure provisions, generally including directions to responsible parties on providing the requisite notice and other information to the EPA related to a requested extension. As noted in our prior alert, these provisions generally do not provide for “inability to pay” as a force majeure circumstance.
  • Conducting Non-Field Site Work: The EPA further notes that because much of the work to advance cleanup of sites is performed away from sites, that work should continue if possible. That includes work that can be conducted virtually such as work on investigation reports, modeling, negotiations, decision documents, cleanup documentation, workplans, progress reports, and maintaining compliance with obligations such as financial assurance. 

US DOJ Civil Penalty Policy

In a March 31, 2020 letter and a follow-up clarifying memorandum, the US Department of Justice (“DOJ”) temporarily suspended collection of civil penalty payments to cushion the impact of the pandemic on businesses. The policy is not limited to environmental matters. The DOJ emphasized that the policy does not apply to criminal enforcement matters, and does not impact a US Attorney’s office’s ability to investigate, file complaints, litigate or settle any civil enforcement matter. Under the policy, affected parties can continue paying their full payments or make interest-only payments. While the policy provides relief regardless of the party’s financial circumstances, it is consistent with the other pandemic-related reprieves, such as the postponement of the April 15th tax filing deadline. As a general matter, this memo will result in more limited action on civil and stipulated penalties since the EPA typically can proceed in such matters without DOJ approval.

State Actions

In our prior Alert, we noted the federal guidance is not binding on state environmental enforcement proceedings or third-party actions under common law. Not surprisingly, states have now issued their own pandemic-related policies to guide the regulated community and provide flexibility. For example, Massachusetts issued remediation-related guidance, noting that there are no exceptions to requirements regarding hazardous substance release notification, but providing flexibility to the extent that active remediation systems cannot be safely operated under pandemic-related constraints. Wisconsin issued guidance advising companies to notify the Department of Natural Resources of pandemic-related compliance issues and specify the nature of the “compliance flexibility” requested and efforts to mitigate any environmental impacts due to the potential noncompliance. Texas has granted a general extension for certain report filing and periodic monitoring deadlines as long as a facility does not have sufficient personnel or equipment due to the pandemic. With regard to solid and hazardous waste management, New Jersey advised of the availability case-by-case, site-specific waiver, modification, suspension or relaxation of rules where strict adherence is not possible due to pandemic-related staffing issues or other issues. The Department of Environmental Protection noted circumstances where hazardous waste holding time limitations cannot be met due to inability to move the wastes off-site. California is taking a more limited approach, announcing that it will provide flexibility on a case-by-case basis, stating that specific remedies “may be warranted under clearly articulated circumstances,” and asking regulated entities that cannot meet a regulatory requirement due to emergency government directives or a specific hardship to contact the appropriate CalEPA board, department or office before falling out of compliance.

Federal and state agencies continue to announce and adjust their COVID-19 related policies and guidance as new compliance challenges arise. What is clear is that so long as noncompliance does not pose a threat to the environment or public health, most agencies will take a reasonable approach to enforcement that does not punish companies operating under extraordinary pandemic-related constraints. 

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Kelly McTigue, an O'Melveny partner licensed to practice law in California, Eric Rothenberg, an O'Melveny partner licensed to practice law in Missouri and New York, and John Rousakis, an O'Melveny counsel licensed to practice law in New Jersey and New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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