Assessing Environmental Compliance Impacts from COVID-19

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Foley & Lardner LLPAs a result of COVID-19, many companies have had to deal with facility closures, reduced operations, furloughed employees, and revised work schedules. That, in addition to service interruptions from third party providers such as analytical labs and waste disposal facilities, can impact facility management of day-to-day environmental compliance obligations.

Here are some simple steps companies should consider to ensure continued compliance in a challenging environment and to assess past performance of environmental obligations:

1. Confirm there is a current owner for each compliance obligation. Environmental requirements are complex and broad and can include operations monitoring, recordkeeping, sample collection and analysis, inspections, waste storage limits, training, permit renewals, and reporting obligations. Many of these are managed by employees in plant operations, not just EH&S personnel. With service and work schedule disruptions, employees previously managing these obligations may no longer be at the facility or available to perform the required task. Re-affirm with each employee the obligations they are responsible for and identify new owners as necessary to close any gaps. If re-assignment is required, ensure the employee has the proper training and full understanding of the requirements for that obligation and that their supervisor is also aware of their new responsibilities. 

2. Review status of current third-party service providers. These include consultants that collect samples, laboratories conducting analyses, and waste disposal facilities. Either confirm that they can meet the required timing, turnaround times, or pick-up schedules or seek out alternatives and back-up service providers. 

3. Conduct a compliance assessment of pending and past environmental obligations. Review permits, regulations, and your compliance calendar to identify any missed requirements as well as any upcoming obligations you will not be able to meet. Address those that have affirmative reporting or notification obligations (e.g., Title V annual compliance certification, CERCLA release reporting) and identify those where a request for an extension may be a potential option (e.g., permit renewal, report submission).  

4. Understand which enforcement relief options may be available and whether to pursue them. Various U.S. EPA and State enforcement discretion policies address non-compliances caused by COVID-19 and identify the protections and the steps necessary to obtain them. For example, EPA’s policy announced in March 2020 grants broad relief for a number of general compliance obligations provided the facility documents the non-compliance, identifies how COVID-19 was the cause, and if requested, provides this information to EPA. With respect to State policies, some have adopted EPA’s policy while others are more limited and require reporting the non-compliance or seeking compliance assistance from the State. Certain states have granted extended compliance periods and deadlines and a small handful of states are silent on the matter.  

Additionally, EPA and a number of states have voluntary disclosure protections that may provide relief from all or a portion of gravity-based penalties for violations meeting certain criteria (method of discovery, timing of disclosure, etc.)1. These too should be considered to determine whether these protections may apply and if they should be pursued. 

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1 Federal and State disclosure protections vary widely. Some States only grant relief if the non-compliance was discovered by an “audit” and notice of the audit was provided in advance to the state. Examine the requirements in advance of conducting an assessment to determine if you will conduct your review under that policy and to ensure you meet the triggers for coverage.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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