As states are seeing an increase in COVID-19 cases and pausing reopening efforts, the US Environmental Protection Agency (EPA) has forged ahead with setting a definite termination date for its temporary COVID-19 enforcement policy.
Continue Reading EPA Sets Termination Date for Temporary Enforcement Policy
On March 20, the California Water Boards issued guidance about complying with regulatory requirements during the COVID-19 shelter-in-place orders. The guidance directs regulated entities to “immediately” notify the Board if compliance is not possible and to seek appropriate relief. Water Board staff committed to “do their best to respond within 24/48 hours.” It has now been a month, and preliminary data about the extent to which regulated entities have sought relief, and how the Regional Water Boards have responded is available. Information was presented today providing detail about extension requests and delays by regulated entities as of the week of April 20 (i.e., at the conclusion of the first month of the policy).
Continue Reading In First Month of COVID-19 Guidance, the California Regional Water Quality Control Boards Have Issued Hundreds of Approvals for Compliance Extensions Submitted by Regulated Entities
In its ruling today in Atlantic Richfield Company v. Christian, the Supreme Court upheld a decision by the Montana Supreme Court allowing owners of contaminated residential properties at one of the nation’s largest Superfund sites to pursue state law claims for damages in the form of restoration of their properties beyond the cleanup mandated by the U.S. Environmental Protection Agency, rejecting claims by the defendant in the state court action that these claims were barred by the terms of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Court also held that the property owners, although never pursued by EPA to contribute to any of the CERCLA response costs at the site, nonetheless were “potentially responsible parties” within the meaning of the statute, and therefore would be required to obtain approval from EPA for any additional cleanup arising under state law.
Continue Reading Supreme Court Green Lights State Law Claims for Broader Cleanup at Superfund Sites, but only with EPA’s OK
EPA is attempting to thread the needle in responding to the COVID-19 pandemic: offering clarity about ongoing federal environmental obligations to the broad swath of regulated entities faced with the threat of significant disruptions and other challenges, while contending with intense opposition from others who perceive its temporary enforcement policy as a “free pass to pollute” and a failure to enforce legal requirements. Notwithstanding the mounting scrutiny from U.S. Senators, states, and citizens groups, and now a legal challenge, EPA’s Office of Enforcement and Compliance Assurance (OECA) has continued implementing its temporary policy regarding the exercise of enforcement discretion due to the COVID-19 pandemic via issuance of additional guidance on National Pollutant Discharge Elimination System (NPDES) reporting. Other state and federal agencies, including the U.S. Department of Justice, the Texas Commission on Environmental Quality, the Railroad Commission of Texas, and the California Environmental Protection Agency have followed EPA’s lead in issuing their own temporary policies related to the pandemic.
Continue Reading EPA Continues Temporary COVID-19 Policies Despite Senators’, States’, Citizens Groups’ Scrutiny
On April 15, 2020, the California Environmental Protection Agency, the umbrella agency for California’s environmental boards, departments, and offices (e.g., CARB, DPR, DTSC, OEHHA, SWRCB) issued a Statement on Compliance with Regulatory Requirements During the COVID-19 Emergency. The Statement comes in the wake of numerous questions regarding environmental compliance obligations for California facilities impacted by COVID-19. It follows COVID-19 guidance issued by U.S. EPA and various announcements by the state boards and local districts that are on the front lines of administering state, local, and federal environmental programs affecting public health and the environment, as well as companies operating facilities in California, like refineries, oil and gas terminals, mining, food processing, and other manufacturing operations.
Continue Reading CalEPA, Stepping into the Perceived Breach, Issues COVID-19 Regulatory Compliance Statement
Today, April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued its anticipated interim guidance on impacts to operations at cleanup sites due to the COVID-19 pandemic. The guidance memorandum, issued jointly by the heads of EPA’s Office of Land and Emergency Management (OLEM) and Office of Enforcement and Compliance Assurance (OECA) and directed to Regional EPA Administrators, focuses on adjusting response activities at cleanup sites under a number of EPA administered programs and emergency responses due to the COVID-19 situation and the myriad of state and local shelter-in-place and business curtailment orders.
Continue Reading EPA Cleanup Site Guidance Recognizes COVID-19 Challenges for Response Activities
Commentary regarding the US Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) memorandum articulating a temporary policy applying enforcement discretion in light of the COVID-19 pandemic has been significant this week. Proponents and critics alike have misinterpreted the scope of the policy as reaching far beyond what OECA’s memorandum actually stated. As we stated in Deciphering EPA’s Temporary Enforcement Discretion Policy for COVID-19 and as the EPA has now confirmed, the “temporary policy” of exercising enforcement discretion for noncompliance “resulting from the COVID-19 pandemic” is not a free pass to pollute, despite opponent’s musings to the contrary.
Continue Reading Misconceptions About EPA’s Temporary Enforcement Discretion Policy for COVID-19
Regulated industry has been expressing significant concern about disruption as a result of the COVID-19 pandemic and seeking assurance from the US Environmental Protection Agency (EPA) that the extraordinary circumstances across the United States would be taken into account in the event of any unanticipated noncompliance. Yesterday, March 26, 2020, EPA’s (EPA) Office of Enforcement and Compliance Assurance (OECA) Assistant Administrator Susan Parker Bodine responded to these concerns with the issuance of a memorandum addressing the impact of the current global COVID-19 pandemic on EPA’s enforcement program. In it, OECA commits EPA to a “temporary policy” of exercising enforcement discretion for noncompliance “resulting from the COVID-19 pandemic,” provided that regulated entities follow the steps required in the policy.
Continue Reading Deciphering EPA’s Temporary Enforcement Discretion Policy for COVID-19
As the country responds and adapts to unprecedented change as a result of the COVID-19 pandemic, companies are, understandably, attempting to sort out what these shifts mean for operations now and in the near future. One operational aspect that companies must address is management of environmental compliance programs and responsibilities. Although it can be challenging to maintain compliance with environmental requirements during periods of uncertain or disrupted operations, doing so remains necessary as environmental regulatory requirements remain in force, despite disruptions to government functions. The current operational and regulatory climate is fluid and changing daily (at least), making it incumbent upon companies to remain vigilant in monitoring for updates and understanding the status of rules and requirements at any given moment. The keys to successfully navigating compliance challenges during the pandemic are preparedness, situational awareness, and early and frequent communication with regulatory agencies as appropriate, with the assistance of counsel as needed.
Continue Reading Maintaining Environmental Compliance During the Coronavirus Pandemic
The California State Water Resources Control Board (State Board) and the nine Regional Water Quality Control Boards (the Regional Water Boards) recently published guidance on complying with regulatory requirements during the COVID-19 shelter-in-place orders.
Continue Reading Compliance with State Water Board Requirements and Permits During California’s Shelter-in-Place Order Associated with COVID-19