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Can’t comply with EPA during the pandemic? Documentation is key

Eric Berry May 8, 2020

This article originally appeared in Bloomberg Law's Environment & Energy Report. Reproduced with permission. Published May 8, 2020. Copyright 2020 The Bureau of National Affairs, Inc. 

The Federal Environmental Protection Agency issued a policy memorandum March 26 regarding how it will exercise enforcement discretion in light of the COVID-19 pandemic.

While the policy has drawn innumerable articles discussing its contents, this article strives to examine the policy’s practical implications. Documentation and reporting are at the core of this new EPA policy.

To be clear, the EPA’s expectation is compliance. All permit requirements, regulations, and statutes remain in force. The EPA has been very explicit on this. In a March 30 press release and an April 2 letter response to Congress, the EPA sent a strong message that it was still on the job and the policy is not to be construed as a license to pollute.

In the March 26 memorandum, the EPA listed specific areas covered by the policy (e.g., stack testing, leak detection and repair monitoring (LDAR), effluent sampling, and tank integrity testing, to name a few), but what if a specific area or program is not listed? The EPA could not have possibly thought of and listed every possible scenario.

Here’s a possible example. LDAR monitoring is listed, but delay of repair (DOR) is not. If a company has equipment (valve, connector, agitator, pump, etc.) on a DOR list and the facility goes into shutdown, or a section of a line or process is shut down such that in normal situations the equipment would be accessible, the company would be expected to make the necessary repairs.

But what if, due to COVID-19, the facility has limited maintenance personnel and they are performing other higher-priority, even life-saving, tasks, and are not able to perform the repairs? Is this covered? It should be, but whether specifically covered or not, if a facility is going to rely on any of the federal or state policies to make a COVID-19-related noncompliance claim, proper documentation, reporting, and communication with regulators is required.

Proper, contemporaneous documentation critical

With respect to proper documentation, “contemporaneous” documentation is additionally critical. Emails are convenient and easy to use. However, emails can be deleted, misfiled, or automatically archived after a period of time and become difficult to find. There is also the possibility of personnel turnover and the fading of memories.

A better practice would be to create an internal memorandum to the file specific to the issue at hand. A good guideline is to, at a minimum, step through and address the specific expectations identified by the EPA, as outlined below and any additional information facility personnel believe is relevant to the issue of non-compliance.

Next, the names of all personnel involved should be documented and any relevant photos or videos maintained. The EPA does not expect this information to be sent to it automatically, but to be kept in a file and produced if the agency requests it. These memos should stick to the facts, should report those facts accurately, and should not include speculation or opinion.

“If compliance is not reasonably practicable,” the EPA expects the regulated community to do the following:

  1. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
  2. Identify the specific nature and dates of the noncompliance;
  3. 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;
  4. Return to compliance as soon as possible; and
  5. Document the information, action, or condition specified in 1 through 4.

Reporting expectations

With respect to reporting, the EPA also has certain expectations. The agency’s enforcement discretion policy is for routine monitoring and reporting. Existing procedures for reporting non-compliance should be utilized. Reportable quantity releases are not likely to be considered “routine,” and so should be reported to the National Response Center and applicable states as usual.

For routine reports that are filed on a time period of less than three months, the EPA does not expect companies to perform “make-up” testing or reporting. However, for annual or bi-annual reports, the EPA does require late monitoring and late submission of reports.

The EPA also explicitly states that the mere inability to obtain an original signature from a responsible official is not an excuse for failing to file a scheduled report. An electronic signature should be obtained. Other exceedances should be reported under existing permit requirements (e.g., Title V deviation reports).

In the case of “acute risks and imminent threats,” which is undefined, companies should communicate immediately to applicable regulators, according to the new policy. In addition, a facility that experiences “failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases,” should report it as soon as possible.

Companies also should refer to any policies or guidance issued by their state environmental regulators. States are typically on the front lines, and the EPA notes that authorized states or tribes may take a different approach. Numerous states have already adopted state-specific COVID-19-related guidance and/or policies and many of them include a notification requirement should a facility wish to claim COVID-19 related non-compliance.

Finally, if a company’s facility is operating pursuant to a consent decree or administrative order on consent, the EPA advises to use that governing document’s notice provisions and/or force majeure provisions. The EPA states that it will “cooperate” with the Department of Justice; however, it is noteworthy that, so far, there is no guarantee that the DOJ will agree with the EPA’s discretion judgment. Nor is there any guarantee that courts, which retain jurisdiction over consent decrees, similarly will agree with the EPA’s discretion The policy is only a guide as to how the EPA will apply noncompliance discretion as well as its expectations due to COVID-19 impacts on the regulated community.

The regulated industry is operating in uncharted waters and is being expected to adapt accordingly with no prior examples to guide it during the COVID-19 pandemic. With good efforts to maintain compliance and proper documentation, reporting and communication, there is little more that should rightly be expected from industry during these very trying times.

Eric Berry assists clients across a wide range of environmental fields, drawing on his extensive experience in compliance counseling, transactional matters and litigation to respond to all types of environmental, health and safety issues.