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Environmental Updates and Guidance Due to COVID-19

April 7, 2020

The U.S. Environmental Protection Agency (U.S. EPA) and state environmental agencies have begun to provide guidance on addressing environmental requirements during the COVID-19 pandemic.  Below are some key highlights from the U.S. EPA, the State of Michigan and the State of Ohio. Links to the items covered are found at the end of this alert.

U.S. Environmental Protection Agency.  On March 26, 2020, the U.S. EPA issued “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program (Policy).”  Under this temporary Policy, which applies retroactively to March 13, 2020, the U.S. EPA will exercise enforcement discretion under certain circumstances for noncompliance resulting from the COVID-19 pandemic for regulated entities that follow the policy. A business should make every effort to comply with their environmental compliance obligations, but the U.S. EPA recognizes under the Policy there may be challenges that affect facility and laboratory operations and the ability to meet requirements (such as monitoring, sampling and analysis, testing, training, and reporting) under statutes, regulations, permits and orders. The Policy sets forth general conditions to follow, including acting responsibly to minimize the effects and duration of any noncompliance, notification requirements, returning to compliance as soon as possible and documenting the situation. The Policy provides specific information and requirements for certain situations, including acute risks or imminent threats, equipment failures including for air emissions control or wastewater treatment, public water systems, critical infrastructure, and accidental releases.  The U.S. EPA notes several exclusions, including activities under Superfund and RCRA Corrective Action (which will be addressed separately) and intentional violations. The U.S. EPA has a webpage covering this Policy and other COVID-19 updates, including information related to drinking water and wastewater.   

State of Michigan.  The Michigan Department of Environment, Great Lakes, and Energy (EGLE), based on the State’s actions to reduce the spread of COVID-19, has recognized some regulated entities may be required to deviate from normal business operations and thereby have difficulty meeting some legal obligations. While the EGLE expects businesses to maintain environmental compliance, where disruptions to standard operations occur because of COVID-19, the EGLE has established a process for handling environmental enforcement discretion.  The EGLE has set up an email box to submit requests for regulatory relief for entities facing unavoidable noncompliance due to the COVID-19 pandemic.  The EGLE has specified the content for making such a request, including identifying the specific regulatory requirement, describing the circumstances and impact of COVID-19, and mitigation steps taken. Circumstances of acute risk or imminent threat should be reported to the state emergency PEAS Hotline. The EGLE also has provided separate communications addressing specific topics including businesses involved with waste and materials management deemed essential and necessary activities, delays in conducting Baseline Environmental Assessments and how to contact the EGLE while its offices are closed and personnel work remotely.

State of Ohio.  The Ohio Environmental Protection Agency (Ohio EPA), in recognition of the State’s declaration of a state of emergency, has indicated it is aware that normal operations may be impacted at some regulated entities’ facilities. While such entities remain obligated to take all steps to maintain environmental compliance, where there is an unavoidable noncompliance situation due to COVID-19, the Ohio EPA has established an email box for requesting regulatory relief. The Ohio EPA has specified the content for making such a request, including identifying the environmental obligation, describing the noncompliance circumstances, and providing the mitigation measures taken.  The Ohio EPA also has provided separate communications addressing specific topics including its offices are temporarily closed and how to contact the staff that are working remotely, making submittals electronically or by email where possible, and the importance of maintaining wastewater treatment operations.

Honigman’s Environmental practice group can help your environmental management team coordinate with the U.S. EPA, state and local regulators to map out a strategy for allocating personnel and resources to meet environmental obligations in the most effective manner under the COVID-19 pandemic. If compliance assistance is required, we can identify any applicable statutory, regulatory, policy or other measures that may provide relief. We can also help you review your permits, consent orders and consent decrees to determine what options may be available. Finally, we can assist you in communicating and documenting your efforts to the appropriate agencies to maximize the compliance assistance obtained and minimize your legal risk.

Please contact one of Honigman’s Environmental practice group attorneys for assistance on any of these issues. See Honigman’s COVID-19 webpage to keep updated on a broad range of COVID-19 issues impacting businesses. 

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