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During Pandemic Be Proactive with Environmental Compliance

March 30, 2020

By: Robert W. Petti

Businesses should be proactively addressing environmental compliance issues and realities during the COVID-19 pandemic.  To stymie the spread of COVID-19, many federal, state, and local governments have issued emergency orders, shelter-in-place requirements, and varying moratoriums on non-essential industries.  All of these actions significantly impact how every industry conducts business. Environmental compliance is not immune, and these limitations on regular business activities may have a significant impact on a business’s ability to meet the many environmental requirements of statutes, regulations, and even consent decrees.

Businesses facing environmental regulation should be reaching out to their regulators for guidance on how best to adjust and adhere to compliance mandates given the current reality. Many federal and state agencies have issued guidance stating a willingness to adjust compliance deadlines, or allowing modification to facility staffing requirements to avoid violations.  For instance, while all individual NPDES permits have requirements for routine monitoring and/or sampling, shelter-in-place orders that result in workforce reductions may make compliance with these timelines impossible.  However, a temporary stay or adjustment to monitoring requirements is not automatic.  Reaching out to request assistance or guidance from federal, state, or local regulators to ensure compliance with environmental laws and orders may help to prevent confusion when the current crisis ends. 

Further, for those businesses operating under settlement orders or consent decrees, one avenue that may be available during the COVID-19 outbreak is to use the force majeure provisions of their respective settlement agreement or consent decree.  A standard force majeure provision in an environmental consent decree allows deadlines in the order to be modified if circumstances beyond the control of the regulated entity prevent compliance with the order.  Such provisions typically require the affected party to notify the agency of the force majeure event upon becoming aware of the event that will cause a delay, not after the delay has occurred.  While each force majeure provision should be reviewed for any specific requirements, businesses requesting relief should be prepared to provide an explanation of: (a) the reason for delay, (b) the duration of the delay (if known), (c) actions being taken to minimize the delay, (d) any measures being taken to mitigate the delay, (e) a statement as to whether the delay in compliance may cause or contribute to endangerment to public health or the environment, and (f) any documentation supporting the claim.

Every business is being impacted by the current COVID-19 pandemic in some way. To help mitigate the impacts related to compliance with environmental laws, regulations, and orders, proactively working with federal, state, and/or local regulators is in your company’s best interest, particularly during these uncertain times.

For additional information on environmental compliance and regulation during the COVID-19 outbreak, please contact our offices or follow these useful links:

Jurisdiction

Website

Federal

https://www.epa.gov/enforcement/enforcement-policy-guidance-publications

Delaware

https://news.delaware.gov/2020/03/20/update-on-dnrec-operations-in-response-to-covid-19/

Illinois

https://www2.illinois.gov/epa/Pages/default.aspx

Indiana

https://coronavirus.in.gov/

Louisiana

https://www.deq.louisiana.gov/page/covid19

Mississippi

https://msdh.ms.gov/msdhsite/_static/14,21866,420.html

Missouri

https://dnr.mo.gov/env/

New Jersey

https://www.nj.gov/dep/

New York

https://coronavirus.health.ny.gov/home

Pennsylvania

https://www.dep.pa.gov/Pages/AlertDetails.aspx

South Carolina

https://www.scdhec.gov/infectious-diseases/viruses/coronavirus-disease-2019-covid-19

Texas

https://www.tceq.texas.gov/response/covid-19

 

If you have any questions about this article, please contact

Robert W. Petti at RPetti@maronmarvel.com

Maron Marvel Bradley Anderson & Tardy LLC or at (312) 767-1314

About our Firm

Maron Marvel Bradley Anderson & Tardy LLC was founded more than 20 years ago in Wilmington, Delaware, and has grown from a boutique toxic tort practice to a national powerhouse with more than 100 attorneys located in 12 offices across the United States.  The firm represents public and private entities of all sizes.  The firm provides litigation services to companies in the areas of business and commercial litigation, products liability, bankruptcy and creditors’ rights, environmental regulation and personal injury.  The firm also acts as national trial counsel and provides national coordinating services and risk management for clients in the areas of mass toxic tort, products liability, personal injury, environmental regulation and litigation.

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