A number of environmental, health, and safety regulatory agencies are beginning to recognize that companies are challenged in their ability to meet deadlines, and no doubt more will follow. This is especially but not exclusively true because a number of rules require annual reports to be filed on March 31 of each year to reflect the results of the prior calendar year, and so these weeks are a source of stress under the best of circumstances. Further, the agencies are challenged in their ability to meaningfully review any information provided, rendering timely submittal less important. Accordingly, a growing number are issuing announcements suspending deadlines. Others have suspended public proceedings, or announced other changes in services. We track here the results of our investigation of announcements made to date across all federal, state, and territorial environmental regulatory agencies, and we continue to update this list as new announcements emerge.
Also, even with respect to obligations for which there have been no announced deadline extensions, an agency may be very willing to provide either an informal extension, or at least some assurance of “enforcement discretion” based on COVID-19-related challenges to timely compliance. As one example, TCEQ’s Office of Compliance and Enforcement has invited facilities whose ability to comply with applicable requirements is compromised due to virus-related staffing issues to work with TCEQ on a case-by-case basis to establish an understanding about the exercise of enforcement discretion. The Deputy Director, Ramiro Garcia, has informally encouraged companies to send an email outlining their particular issues to TCEQ, and to provide documentation concerning their compliance challenges and how those issues are related to staffing difficulties caused by the virus. Emails should go to OCE@tceq.texas.gov, with a copy to Ramiro.Garcia@tceq.texas.gov.
While not all agencies have been so direct in announcing their willingness to adjust their policies in light of the current crisis, they may be willing do to so on a case-by-case basis, or may have policies evolving with the crisis that are not well advertised. Given the current staffing situations at many agencies, it may be difficult to speak directly with someone in a position to answer question or approve requests. Vinson & Elkins can help with the outreach to a number of agencies, including but not limited to the following federal agencies:
- Department of Commerce (DOC)
- National Oceanic and Atmospheric Administration (NOAA)
- National Marine Fisheries Service (NMFS)
- Department of Justice (DOJ)
- Department of Defense (DoD)
- Department of Homeland Security (DHS)
- Department of the Interior (DOI)
- Bureau of Land Management (BLM)
- Fish and Wildlife Service (FWS)
- Bureau of Indian Affairs (BIA)
- Bureau of Ocean Energy Management (BOEM)
- Bureau of Safety and Environmental Enforcement (BSEE)
- Department of Transportation (DOT)
- Environmental Protection Agency (EPA)
- Federal Energy Regulatory Commission (FERC)
- Department of Agriculture (USDA)
- Forest Service (USFS)
Notwithstanding these reasonable concessions to our larger present reality, one should assume that a general rule of reason prevails: Environmental obligations are not generally waived, and any claim of force majeure or other relief will require strict compliance with the terms, circumstances, and processes for asserting it. That varies greatly by each legal obligation, and no general rule can be provided with respect to a pandemic.
And all agencies remain open for business to some degree, albeit with many working as remotely as the rest of us. Patience and kindness have even further increased their value as virtues in dealings with everyone, especially but not exclusively those called upon to grade our papers.
