Regulated parties face disruption of their ability to comply with environmental, health & safety laws due to the COVID-19 pandemic.
While EPA has not issued a formal enforcement relief policy, its general policy on enforcement discretion and procedure for assessing force majeure claims provide useful guidance for how the Agency may respond to compliance issues.
States—led by Texas and Louisiana—have begun to announce policies for providing enforcement relief to parties for violations of environmental laws caused by workforce reductions and other issues related to COVID-19.

Remote work and other impacts to company workforces from the novel coronavirus pandemic are likely to result in practical limitations on usual environmental, health and safety compliance programs and activities across a wide variety of industries. We are already seeing see some regulatory agencies issuing new guidance and orders with implications for compliance and enforcement, and it is worth noting that regulatory agencies will also likely be impacted by their own workforce capacity issues in this environment.

As a first step for companies navigating this shifting terrain, existing guidance from the U.S. Environmental Protection Agency (EPA) provides some conceptual anchoring for informing evolving risk management considerations. The EPA’s policy on enforcement discretion and its procedure for assessing force majeure claims can guide regulated parties who face disruption of their ability to comply with environmental laws due to the COVID-19 pandemic. Regulated parties should also monitor state-level developments, as a few state environmental agencies have already issued policy responses to COVID-19, and many more will likely follow suit.

EPA Enforcement Discretion Policy and COVID-19 Response

EPA has a longstanding policy of limiting its exercise of enforcement discretion. The Agency’s 1984 Policy Against “No Action” Assurances “reaffirm[ed] EPA policy against giving definitive assurances (written or oral) outside the context of a formal enforcement proceeding that EPA will not proceed with an enforcement response for a specific individual violation of an environmental protection statute, regulation or other legal requirement.”

EPA reiterated its policy against no action assurances in its 1995 Memorandum on Processing Requests for Use of Enforcement Discretion, where it also recognized two situations in which a no action assurance may be appropriate: (1) where it is expressly provided for by an applicable statute; and (2) in extremely unusual circumstances where an assurance is clearly necessary to serve the public interest and which no other mechanism can address adequately.

Violations of environmental laws caused by COVID-19 very well may warrant discretion as “extremely unusual circumstances” that “no other mechanism can address adequately.” When requesting enforcement discretion based on such “unusual circumstances,” parties will often invoke force majeure to assert that discretion is needed because unforeseeable circumstances outside the control of the regulated entity make it appropriate to delay or forgive a legal requirement. For example, in the context of the COVID-19 outbreak, some regulated parties have discussed intent to invoke the force majeure provisions of consent decrees to request extensions of deadlines for consent decree obligations.      

EPA has established several notice and documentation requirements for parties requesting enforcement discretion based on force majeure:

  • An explanation and description of the reasons for the delay;
  • The anticipated duration of the delay;
  • All actions taken or to be taken to prevent or minimize the delay;
  • A schedule for implementation of any measures to be taken to prevent or mitigate the delay or the effect of the delay;
  • The party’s rationale for attributing such delay to a force majeure;
  • A statement as to whether, in the opinion of the party, such event may cause or contribute to an endangerment to public health or welfare, or the environment; and
  • All available documentation supporting their claim.

While EPA has yet to issue guidance on its approach to enforcement during the COVID-19 pandemic, it will face substantial pressure to do so, and in the meantime regulated parties should look to these established practices. Entities facing potential violations of environmental laws due to COVID-19 should consider preparing the notice and documentation requirements listed above.

State Enforcement Responses to COVID-19

As economic disruption caused by the virus spreads, regulated parties should also monitor responses by state regulators in the states in which they operate. Some states have already begun to issue enforcement discretion polices to respond to the virus.

In Texas, the Commission on Environmental Quality (TCEQ) announced a policy to provide administrative relief on a case-by-case basis to businesses directly affected by COVID-19. Where compliance is not possible due to disrupted operations caused by workforce reductions, regulated parties are encouraged to submit a request to TCEQ ([email protected]) with the following information:

  • A statement supporting the request for enforcement discretion;
  • The anticipated duration of the need for enforcement discretion; and
  • A citation of which rule or permit provision may be violated.

The Louisiana Department of Environmental Quality issued a statewide Declaration of Emergency and Administrative Order providing relief from “the regulatory and proprietary requirements of the Department.” It extends the compliance period by 30 days for the following deadlines occurring between March 19, 2020, and the expiration of the order:

  • Submission of periodic monitoring and other reports required by permits, regulations, other authorizations, enforcement actions, or settlement agreements, except for monitoring requiring by air permits issued under Title IV or V of the Clean Air Act (CAA) or under the Prevention of Significant Deterioration (PSD) program. This is limited to facilities that lack personnel due to COVID-19.
  • Conducting periodic monitoring required by permits, regulations, other authorizations, enforcement actions, or settlement agreements, except for monitoring requiring by air permits issued under Title IV or V of the CAA or PSD program. This is limited to facilities that lack personnel due to COVID-19.
  • Deadlines to file an application for renewal of an existing permit, except for air permits issued under Title V of the CAA. Renewal applications must be submitted before the existing permit expires.

Pursuant to a state executive order, the Maryland Department of the Environment adopted a grace period for state licenses, permits and registrations that will expire or be up for renewal during the state of emergency. After the state of emergency is lifted, renewal deadlines will be extended for another 30 days.

In Pennsylvania, the Department of Environmental Protection suspended timeframes for providing permit decisions. According to the Department, permit processing will continue, but decisions are likely to be delayed.

As states continue to respond to COVID-19, more states may adopt state-level enforcement discretion policies as the potential for disruptions to the operations and workforces of regulated parties intensifies.

Pillsbury is continuing to monitor these state and federal enforcement discretion developments and can provide advice and counsel on strategies for managing the risk of noncompliance and seeking compliance flexibility. Please contact Matt Morrison at 202-663-8036 or [email protected] for assistance.

Pillsbury’s experienced crisis management professionals are closely monitoring the global threat of COVID-19, drawing on the firm's capabilities in supply chain management, insurance law, cybersecurity, employment law, corporate law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 resources page.