The novel coronavirus (COVID-19) is already impacting—and disrupting—nearly every aspect of economic and public life. To reduce transmission of the virus, businesses across the country have severely restricted or altogether eliminated employee travel, in many cases enacting a mandatory work-from-home policy. The resulting labor shortages and supply chain disruptions are further compounded by restrictions on travel put in place by state and local governments, such as the Bay Area's shelter-in-place order. The situation is rapidly evolving; the road ahead is uncertain, but such policies are likely to expand as COVID-19 continues to spread in communities throughout the nation.
The reduced workforce and evolving travel restrictions related to the pandemic can frustrate businesses' compliance efforts and may prove particularly problematic when it comes to meeting certain timing requirements associated with the management, storage, and disposal of chemicals and solid and hazardous waste. Even where compliance deadlines seem far off, disruptions to regular operations and limited availability of personnel will present challenges in evaluating and compiling this information in a timely manner, particularly in light of competing demands, curtailed hours, and overstretched human resources.
For example, the Emergency Planning and Community Right-to-Know Act (EPCRA) requires that by July 1, companies in the manufacturing, mining, and electricity generation industries must submit annual reports on the amount of toxic chemicals they managed through recycling, energy recovery, treatment, and environmental releases in 2019 as part of the Toxics Release Inventory (TRI). Disruption to normal business operations, lack of access to sources of information, and a decreased workforce could make it difficult to meet this deadline and fulfill similar reporting obligations.
Facilities subject to EPA's Spill Prevention, Control, and Countermeasure (SPCC) Program may also risk missing applicable deadlines for five-year review and subsequent amendment of SPCC Plans. Adding to these difficulties will be a reduced availability of Professional Engineers (PEs) required to sign off on the plans, as well as company policies that restrict who can access certain facilities. The foreseeable scarcity of PEs could impact other environmental programs as well, including, for example, EPA's regulations for the disposal of Coal Combustion Residuals (CCR).
Electric utility companies managing sites contaminated with polychlorinated biphenyls (PCBs) or responding to spills from potentially PCB-containing equipment also are likely to face compliance challenges associated with strict regulatory time frames for the storage and ultimate disposal of PCB waste. It could prove extremely difficult or even impossible to dispose of PCB waste by the applicable deadlines (e.g., thirty days for temporary storage of PCB waste at the cleanup site; one year for disposal of all PCB waste) because of reduced utility personnel or limitations on the part of the transporting entity or disposal facility. Even the PCB cleanup activities themselves (to the extent they continue) could be hampered by company policies restricting who can work, and where, or by a lack of sampling capacity on the part of labs working with a reduced workforce. Similar challenges will be faced by entities working to remediate other types of sites, including at Superfund sites and brownfields properties.
In many situations, federal and state regulatory agencies have the discretion to approve extensions, waivers, or exemptions that could provide some relief or flexibility to facilitate compliance efforts during times of emergency, such as the unprecedented COVID-19 pandemic. Maryland's Department of the Environment (MDE) issued a statement that, consistent with recent executive action from Governor Larry Hogan, upcoming renewal deadlines for all expiring permits, licenses, or registrations will be extended by up to thirty days after the state of emergency is lifted. (In contrast, New Jersey's Department of Environmental Protection (NJDEP) Divisions of Water Quality and Water Supply and Geoscience recently issued a joint notice to public water systems and sewage treatment plants that it is not, at this time, relaxing any sampling or electronic reporting requirements associated with any permit, rule, regulation, or statute.)
Opportunities exist for extension of deadlines and modification of other regulatory requirements on the federal level as well. For example, EPA's PCB regulations provide the Agency with multiple tools to modify cleanup, storage, and disposal requirements, including in emergency situations. In these situations, EPA can provide guidance to facilitate and expedite responses to spills from potentially PCB-containing electrical equipment; the Agency has done so on numerous occasions to support spill cleanup in response to storms such as Hurricanes Katrina and Harvey.
Where EPA does not have the statutory authority to waive or extend applicable compliance deadlines, the Agency can exercise enforcement discretion where it is necessary to serve the public interest and there is no other mechanism available to adequately address the situation. In these circumstances, EPA can issue a "no action" assurance, under which the Agency will not take enforcement action as a result of noncompliance with a regulation or law. While EPA's general policy is to decline to issue such assurances, the Agency has done so in extraordinary circumstances, including in the wake of the December 2019 earthquake in Puerto Rico, and could well consider doing so now in the face of this unprecedented pandemic.
Finally, EPA can exercise discretion over penalties in situations where violations have occurred. To date, the Agency has not announced any enforcement policy with respect to the current pandemic, but as the nation—and the world—continues to respond to COVID-19, this could change. It remains unclear exactly what action EPA or its individual regions or program offices will take with respect to the pandemic, but it appears that questions regarding compliance obstacles and corresponding enforcement considerations related to COVID-19 are receiving expedited attention at the highest levels of the Agency.
The COVID-19 pandemic will continue to create uncertainties and compliance challenges for entities that manage chemicals and solid and hazardous waste or are otherwise involved in site assessment and cleanup, possibly long after the virus is gone. Venable's environmental team is available to support your company as you navigate these complex regulatory issues.