Understanding and Navigating Federal, Illinois and Missouri COVID-19 Environmental Enforcement Discretion Policies
The shelter-in-place orders and essential business guidelines and directives that have been issued by the federal government and the states of Illinois and Missouri have raised questions about the feasibility of compliance with environmental requirements during the COVID-19 pandemic. As outlined below, the United States Environmental Protection Agency (“USEPA”), Illinois Environmental Protection Agency (“IEPA”) and Missouri Department of Natural Resources (“MDNR”) have issued separate policies addressing enforcement discretion for environmental violations related to the COVID-19 pandemic. These policies are not a waiver of compliance with environmental regulatory standards, and an understanding of the policies is important for regulated entities in Illinois and Missouri.
USEPA POLICIES AND GUIDANCE
USEPA COVID-19 Enforcement Policy
On March 26, 2020, USEPA issued a memorandum entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” (“USEPA Policy”). https://www.epa.gov/enforcement/covid-19-implications-epas-enforcement-and-compliance-assurance-program. The memorandum outlined USEPA’s temporary policy of enforcement discretion for noncompliance resulting from the COVID-19 pandemic. The USEPA Policy had a retroactive application date of March 13, 2020, and USEPA will publish notification on its website at least seven days before the policy expires.
The USEPA Policy applies in cases where compliance is not “reasonably practicable” for reasons related to COVID-19, and requires facilities with environmental compliance obligations to take the following steps:
- Act responsibly under the circumstances in order to minimize the effects and duration of any non-compliance caused by COVID-19;
- Identify the specific nature and dates of the noncompliance;
- Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
- Return to compliance as soon as possible; and
- Document the information, action or condition specified in a. through d.
USEPA Policy, p. 3.
If regulated entities take these steps, USEPA will exercise enforcement discretion for noncompliance and civil violations resulting from the COVID-19 pandemic. The USEPA Policy addresses the following specific types of noncompliance:
- USEPA does not anticipate seeking penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting. For missed monitoring or reporting covering frequencies of less than 3 months, USEPA does not plan to request “catch-up” monitoring or reporting. For missed biannual or annual monitoring or reporting, USEPA expects facilities to perform and submit the required monitoring or reporting as soon as possible. When practicable, certified operators should maintain certification and training, but USEPA notes that it is more important to utilize experienced, trained operators even if the training or certification cannot be kept up-to-date.
- In cases involving missed reporting obligations and milestones under administrative settlement agreements, USEPA advises parties to use the notice and force majeure provisions of these agreements.
- In cases involving noncompliance with routine compliance obligations in consent decrees entered by the Department of Justice, parties should utilize notice and force majeure provisions and USEPA will coordinate with DOJ on enforcement discretion.
- Facilities that experience failure of air emission control or wastewater or waste treatment systems or equipment that could result in exceedances of enforceable limitations should contact the appropriate regulatory agency immediately.
- If facility operations may create an acute risk or imminent threat to human health and the environment, the facility should contact the appropriate regulatory agency immediately.
- The USEPA Policy does not relieve any entity from reporting and response obligations for accidental releases.
- Generators of hazardous waste who cannot transfer waste within the RCRA time periods should continue to properly label and store the waste and take the above steps. Such entities will maintain generator status, and Very Small Quantity and Small Quantity generators will maintain their classifications.
- Animal feeding operations that are unable to transfer animals due to the pandemic but that meet the requirements of the USEPA Policy will not be considered new confined animal feeding operations (CAFOs).
According to the policy, public water systems have a “heightened responsibility” to continue normal operations and protect public health. In the event of worker shortages and/or laboratory capacity problems, the USEPA Policy prioritizes compliance monitoring programs for public water systems.
The USEPA Policy does not apply to criminal violations, imports, or activities carried out under Superfund or RCRA corrective action enforcement documents (which are covered by the separate policy discussed below).
On April 1, 2020, a coalition of environmental groups filed a petition for emergency rulemaking with USEPA, asking USEPA to issue an interim final rule requiring entities to provide public notice of utilization of the USEPA Policy. The USEPA Policy has also been challenged in a lawsuit filed in the United States District Court for the Southern District of New York on April 16, 2020. The lawsuit, which was brought by the same coalition of environmental groups, maintains that the USEPA Policy presents a “serious and immediate risk that industrial facilities and other regulated entities will stop monitoring and reporting for pollution limits, with no contemporaneous notice to EPA or to the public.” According to the lawsuit, the USEPA Policy also “presents a huge threat to downstream, downwind and fenceline communities around the country.” https://www.nrdc.org/sites/default/files/complaint-epa-non-enforcement-20200416.pdf. The lawsuit asks the District Court to issue declaration that USEPA’s failure to respond to the petition for emergency rulemaking is unlawful and unreasonable.
USEPA COVID-19 Interim Guidance for Response Actions
On April 10, 2020, USEPA issued its “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19,” which addresses Superfund cleanups, RCRA corrective actions, TSCA PCB cleanups, Oil Pollution Act spill response, and Underground Storage Tank Program actions where USEPA is the lead agency or has direct oversight of work being performed. https://www.epa.gov/sites/production/files/2020-04/documents/interim_guidance_on_site_field_work_decisions_due_to_impacts_of_covid.pdf. (“USEPA Guidance”).
The USEPA Guidance outlines factors to be considered by the USEPA Regions in making decisions about whether to start or continue a response action or whether to temporarily pause and secure a site where a response action is underway. These factors may include the personal safety of responding party personnel, travel and lodging issues, health and safety regulations, and access to personal protective equipment. If USEPA decides to start or continue work at a site, the health and safety plan for the site must be reviewed and updated to address any applicable CDC or other COVID-19 guidelines.
Parties who believe that their performance obligations under an enforcement document may be affected by COVID-19 restrictions are directed to consult and seek appropriate relief under the applicable notice and/or force majeure provisions of the enforcement document.
The USEPA Guidance notes that USEPA Regions have already made and will continue to make decisions regarding reducing or suspending response actions in the following situations:
- There has been a request to suspend site operations from a state, local or tribal agency;
- Site workers have tested positive for or exhibited symptoms of COVID-19;
- There may be close interaction with high risk groups or persons under quarantine, e.g., residential areas;
- Travel restrictions or medical quarantine are in place; and/or
- Social distancing is not possible.
The USEPA Guidance directs the USEPA Regions to consider whether pausing a response action would pose an imminent and substantial threat to human health or the environment. The USEPA Guidance indicates that USEPA may be less inclined to allow pauses or delays in work being performed at sites under these scenarios, which include sites where:
- USEPA or responsible parties are providing an alternative water supply,
- there are on-site exposures to contaminants,
- groundwater plumes or releases to waterways may affect drinking water systems,
- potential or actual vapor intrusion threats exist, especially involving sensitive populations; and
- response actions are needed to prevent a release or catastrophic event.
The USEPA Guidance similarly highlights response actions at vapor intrusion sites, residential sites, and drinking water work, as situations where maintaining a response action may be the preferred course of action if it would lead to a reduction in human health exposure in the next six months.
However, USEPA may be more favorably inclined to approve delay or suspension of work involving periodic monitoring, routine sampling, RI/FS or RFI field sampling, or active remediation of stable conditions. The USEPA Guidance also encourages Regions and parties to continue with non-site work, including documentation and modeling.
With respect to Superfund sites, USEPA Regions are directed to continue with community engagement regardless of whether work is continuing or has been paused. The USEPA Guidance applies specifically to sites where USEPA is the lead agency; however, States are encouraged to consider the guidance at State-led sites and entities affected by the USEPA Guidance.
During a telephone conference with industry groups and others on March 23, 2020, IEPA Director John Kim acknowledged that the regulated community in Illinois may face difficulties meeting environmental requirements or deadlines due to the COVID-19 pandemic. As Director Kim explained, IEPA will utilize enforcement discretion on a case-by-case basis to address noncompliance with such requirements or deadlines. Director Kim indicated a willingness for IEPA to accept electronic submittals instead of hard copies of certain regulatory documents, and it advised regulated entities seeking enforcement discretion for noncompliance to notify the IEPA in writing of these requests. In response to questions about hazardous waste storage timeframes and delayed reporting or recordkeeping, Director Kim indicated that these were potential enforcement discretion scenarios.
Director Kim indicated that IEPA would prefer to utilize enforcement discretion than a provisional variance or similar regulatory relief. For facilities considering seeking enforcement discretion, Director Kim suggested consulting legal counsel regarding such requests.
On April 16, 2020, IEPA issued a Compliance Expectations Statement (“IEPA Statement”), which reiterated several of the points made by Director Kim during the March 23 call. As explained in the IEPA Statement, IEPA may exercise enforcement discretion in situations where Governor Pritzker’s declarations and orders concerning COVID-19 result in an inability to comply with environmental regulations, e.g., submittal of routine reporting or monitoring information. IEPA will evaluate enforcement discretion on a case-by-case basis, and it will not consider enforcement discretion in scenarios involving drinking water, wastewater, or harm or risk to human health and the environment.
On March 24, 2020, MDNR issued a statement entitled “Requests for Regulatory Relief Due to COVID-19 Impacts.” It explains the process for seeking MDNR enforcement discretion for environmental noncompliance or delayed compliance resulting from COVID-19. https://dnr.mo.gov/docs/2020-03-24-requests-for-regulatory-relief-due-to-covid-19-impacts.pdf. The statement directs regulated entities to contact the appropriate MDNR Regional Office or Department if compliance issues are anticipated, and it also provides an email address established for requests for enforcement discretion. The information that should be provided to support the request for enforcement discretion is listed in the MDNR statement. The MDNR email inbox is monitored on a daily basis by MDNR personnel.
Subsequently, MDNR has issued Notices of Suspension for rules which eliminate provisions that are overly burdensome during the COVID-19 pandemic. Two of the four suspensions waive requirements for hard-copy submittals of wastewater facility plans and hazardous waste generator applications. Other suspensions waive the certification requirements for asbestos professionals and training for well installation permit holders.
SEEKING ENFORCEMENT DISCRETION
For regulated entities in Illinois or Missouri that may be experiencing non-compliance issues related to the shelter-in-place orders in effect in those states, providing notice to the applicable authorities that the non-compliance was directly related to COVID-19 and seeking enforcement discretion under the relevant policy described above may be a prudent option. However, entities should bear in mind that, even if USEPA, IEPA, or MDNR find that enforcement discretion is appropriate, this finding does not protect an entity from a third-party suit under environmental statutes.
As reflected in the response to the USEPA Policy, environmental groups believe that agencies have given the regulated community a free pass to pollute in their enforcement discretion policies, which have been issued outside of the rulemaking process. In particular, environmental groups are concerned with the breadth of discretion afforded to regulatory agencies, the lack of notification to the public, and the absence of an end date in the policies. Regulatory agencies are receiving requests for all public records related to requests for enforcement discretion for non-compliance issues. With this in mind, regulated entities should proceed carefully in seeking enforcement discretion under the USEPA, Illinois, or Missouri policies.