As the cleanup begins in Florida, companies face challenges in meeting existing environmental obligations and addressing the environmental impacts of the storm.
Continuing our coverage of environmental emergency response and cleanup obligation issues in the wake of the recent natural disasters of Hurricane Harvey and, now, Irma, this LawFlash addresses some of the most common environmental questions that are likely to arise for companies and businesses in the aftermath of Hurricane Irma. The scope and magnitude of environmental issues resulting from the storms continue to evolve as the water levels recede and residents return to areas evacuated due to the storms. Over the coming months, private and public stakeholders will work collaboratively to rebuild these areas. The below Q&A sets out to provide a helpful framework and resource page for companies facing crisis management and other issues related to their environmental obligations materializing in the aftermath of Hurricane Irma.
Question: Due to Hurricane Irma, my company is unable to meet its obligations under an environmental statute, regulation, permit, consent decree, settlement, or other agreement with the Environmental Protection Agency (EPA) and/or the Florida Department of Environmental Protection (FDEP). Does Hurricane Irma excuse compliance?
Answer: It may. Environmental laws provide exemptions, releases from liability, relaxation of substantive standards, and/or an acceleration of certain processes during times of natural disaster. Related consent decrees or settlement agreements typically contain force majeure provisions and exceptions that similarly apply to disasters or acts of God.
Notable Exceptions Under Federal Environmental Laws
Below are examples (but not a comprehensive list) of relevant exceptions to federal environmental laws that may be applicable to your company during the aftermath of Hurricane Irma.
Oil Pollution Act (OPA)
Resource Conservation and Recovery Act (RCRA)
Clean Air Act (CAA)
Clean Water Act (CWA)
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
Coastal Zone Management Act (CZMA)
Notable Exceptions Under Florida Environmental Laws
Below are examples (but not a comprehensive list) of relevant exceptions to Florida environmental laws that may be applicable to your company during the aftermath of Hurricane Irma.
Enforcement and Force Majeure
Florida Regulatory Scheme and FDEP Emergency Orders
Governor’s Suspension of Procedural Laws
FDEP Emergency Final Orders, Findings of Fact, and Conclusions of Law
Consent Decrees and Settlements
Question: How do I respond if my company is unable to meet its obligations under an environmental statute, regulation, permit, consent decree, or settlement with EPA and/or FDEP due to Hurricane Irma?
Answer: It is important to consult with counsel first, but counsel is likely to recommend that you contact EPA or your state environmental agency if you believe it is likely that you are unable to meet your obligations.
Steps to consider (in consultation with counsel) if your company is unable to comply with environmental obligations include the following:
For more guidance specific to Florida law, review the following FDEP regulatory guidance concerning Hurricane Irma:
Question: Due to flooding, my company’s property is covered in materials that may be hazardous and/or I have solid or hazardous materials onsite that may have escaped containment. What do I do?
Answer: In consultation with counsel and after review of any applicable cleanup agreement, notify the appropriate authorities and control the release as best possible. Written reports are often advisable.
Waste to be concerned about:
Federal: Oil spills and chemical releases may be reported to the National Response Center (NRC) hotline at +1.800.424.8802.
Question: What actions have EPA, the Texas Commission on Environmental Quality (TCEQ), and/or FDEP taken in response to Hurricanes Harvey and Irma?
Answer: EPA, TCEQ, and FDEP have taken a number of actions in response to Hurricanes Harvey and Irma, including the following: