As coronavirus (COVID-19) continues its sweep across our country, clients are increasingly faced with new environmental compliance issues and realities. Environmental laws and regulations, which were originally intended to bring certain predictability to businesses and industries, are now causing just the opposite. In an effort to “flatten the curve,” federal, state, and local governments have issued various declarations of emergency, orders, sheltering in place requirements, and moratoriums on non-essential industries, significantly impacting how our clients conduct business. In the world of environmental compliance, these limitations on activities will have a significant impact on the ability of businesses and industries to meet the requirements of the laws and specific permits. During the next weeks and months, there is a new normal in approaching environmental compliance.
Being successful during this time will require businesses and industries to be both proactive and creative. Now is not the time to adopt a “wait and see” approach regarding the impact of COVID-19 on deadlines in environmental laws or permits or how a smaller workforce will impact the ability to comply with those laws; rather, the successful businesses and industries will be those who are proactive in seeking relief. For example, any regulated or permitted industry should already be seeking waivers or permission to alter sampling, testing, and DMR reporting if needed. Likewise, they should be communicating with their regulators about the feasibility of “begin construction” dates, or outlining their claim for an “act of God” or force majeure. Attorneys at Balch can help. We are already assisting many of our clients in these areas. To date, we are finding that both federal and state agencies are willing to add additional time to compliance deadlines through discretion letters or are willing to alter various monitoring, sampling and reporting requirements. The message to the agencies is that delays to meeting certain obligations and deadlines should not be automatically considered a violation of the underlying requirements. Below is a non-comprehensive list of areas in environmental law and compliance that are being impacted by the COVID-19:
Construction Sites: Most state agencies have requirements for regular inspections of regulated construction activities and often require water quality monitoring during certain rainfall events. For example, the National Pollutant Discharge Elimination System (NPDES) General Construction Permit in Alabama (ALR100000, Part III(H)), requires daily observations, inspections within 72-hours following a “qualifying precipitation event,” and inspections of “at least once a week” in other instances. Additionally, developers are required to repair any storm water best control measures (BMPs)(i.e., silt fences, hay bales, etc.) after certain rainfall events. These requirements are not automatically waived with a “nonessential stop work order” or simply because contractors are not available to make the repairs.
NPDES Permits: All individual NPDES permits have various requirements for routine monitoring and/or sampling. Temporarily staying or altering the requirements of those permits does not happen automatically.
Water Quality Certifications: Generally, any applicant for an individual federal license or permit that allows for the discharge to navigable water must obtain a water quality certification from the state in which the discharge originates. For example, 401 and 404 permits, Rivers and Harbor Act Section 9 and 10 permits issued by the Corps, hydropower licenses and natural gas pipeline certificates issued by FERC, and CWA 402 NPDES permits where EPA administers the permit all require state water quality certifications. A state generally has a one-year time limit to make a decision on Section 401 certification request, or its ability to comment is waived. Business and industries need participate with federal and state agencies when necessary considering that the current circumstances could impact the timely issuance of these state water quality certifications.
Often administrative orders, groundwater remediation plans, and state groundwater regulations require routine groundwater monitoring. For example, in Alabama, owners and operators of Underground Storage Tank Systems “must cooperate fully with” the testing and monitoring requirements of the state agency. ADEM Rule 335-6-15-.13. More often than not, those plans and orders do not specifically contemplate a state-wide stop work order for certain businesses or the unavailability of qualified contractors.
New Source Performance Standards (NSPS) and Maximum Achievable Control Technology (MACT) regulations include provisions under which owner or operators of a facility are required to notify appropriate authorities in the event that a scheduled test must be delayed, and further discuss rescheduling the test. 40 CFR §§ 60.8(a)(1-4), 61.13(a)(3-6), 63.7(a)(4). If an owner or operator is going to assert a claim of force majeure, there are specific regulatory requirements they must follow. Keep in mind that the burden of proof is on the affected facility to justify the need for a waiver. Even then, most agencies have sole discretion in deciding whether to grant such relief. Until an extension has been approved by the regulating agency, the facility remains strictly subject to the performance test requirements of the applicable regulations. See 40 CFR §§ 60.8(a)(1-4), 61.13(a)(3-6), 63.7(a)(4). Additionally, such a waiver does not prevent the agency from implementing or enforcing its regulations or “taking any other action under the Act.” See 40 CFR § 63.7(b).
Some EPA approved State Implementation Plans (SIPs) may allow states the authority to grant extensions of deadlines to conduct stack tests without the issuance of an enforcement order. EPA guidance contemplates extensions of deadlines in certain circumstances in states where allowed by the EPA-approved SIPs. Notably, these extensions are not automatic and industries must take affirmative action to avail themselves of this relief.
Owners and operators of certain landfills, surface impoundments, land treatment units and waste piles are required to implement groundwater monitoring programs to detect the release of hazardous constituents to groundwater. See 40 C.F.R. § 264.97. The frequency of the required monitoring differs from site to site and are often ongoing. Waivers for these requirements are not automatic and require early communication with the relevant agency.
NEPA requires federal agencies to incorporate environmental considerations in their planning and decision making, often delaying projects that use any federal dollars. Getting waivers from the requirements of NEPA for emergency expansion of projects using federal emergency funds (i.e., a hospital or a lab) is not automatic and requires early conversation with the relevant agencies.
Public hearings are required for various government actions, including zoning/rezoning, permitting, administrative orders, adoption of laws and regulations. In fact, federal and state laws often require very strict adherence to their public participation requirements. These requirements could prove difficult in times of “social distancing” and quarantine orders. In fact, recently, a coalition of state and local government organizations urged President Donald Trump to pause comment periods on active rulemakings across the federal government, stating that members of the public cannot participate due to COVID-19. However, there may be alternatives that are available to those businesses that need governmental action and are currently delayed.
Balch recognizes that our clients need a team to help them navigate the new “normal” created by the COVID-19 pandemic. Our environmental lawyers are ready with their experience to make this transition as easy as possible. Balch has a team of lawyers that are familiar with environmental laws and are ready to help.