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By Catherine W. Johnson

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I.     INTRODUCTION

 

Various state and federal environmental agencies are scrambling to address the ramifications of the Covid-19 emergency – some with admonitions about the need to comply with applicable laws and others with promises of leniency for failure to comply. In California, one of the two leading agencies responsible for the oversight of contaminated sites, the State Water Resources Control Board (SWRCB) has issued an emergency Covid-19 update, while the other agency, the Department of Toxic Substance Control (DTSC) has yet to publish anything about Covid-19.

 

Meanwhile, these various policies are coupled with state and local shelter-in-place directives, which may impede compliance with state and federal laws and may be inconsistent with the approach adopted by enforcement agencies for Covid-19 policies. Finally, new policies by the same or different agencies may be published over the coming days, weeks, or months, as the situation continues to unfold.

 

In general, however, companies are on notice that, depending on the state and applicable law in question, they are expected to comply with environmental laws, or -- if not, that they will need to document and justify the rationale for non-compliance. 

 

II.   REGULATORY APPROACHES

 

       A.    US EPA Policy

 

On March 26, 2020, the U.S EPA issued a memorandum temporarily suspending enforcement of certain environmental laws where non-compliance is attributable to the Covid-19 virus (the “EPA Policy”).[1] The EPA Policy is effective retroactively as of March 13, 2020 for an indefinite period of time; EPA has committed to providing the public with seven (7) days advance notice before terminating the EPA Policy.

 

The EPA Policy is specifically targeted to worker shortages that may arise due to Covid-19 and consequently prevent the monitoring of water and air emissions for purposes of compliance with emission limitations in permit requirements, settlement decrees, and consent orders – and to the management of hazardous waste.

 

The EPA Policy applies only if companies make every effort to comply with environmental compliance obligations. If they are unable to do so, they must attempt to minimize the effect and duration of non-compliance and return to compliance as soon as possible. In addition, the policy imposes significant new record-keeping requirements.  Companies must identify the specific nature and date of non-compliance, document how Covid-19 was responsible for non-compliance, and identify “best efforts” made to comply and to return to compliance as soon as possible.

 

The EPA Policy has been widely criticized in the press by various environmental groups for giving companies a pass on pollution or otherwise endangering public health and safety.[2] Companies, however, will need to exercise vigilance in order to take advantage of the new policy (which only applies to civil enforcement not to criminal enforcement) – and in cases where failure to comply may present an “acute or imminent threat” to health and safety, companies are expected to work with both U.S. EPA and applicable state authorities (even where states have U.S. EPA-authorized programs) to resolve the situation.

 

Notably, the EPA Policy does not apply to non-compliance with cleanup programs under Superfund or RCRA corrective action programs (which the EPA Policy states will be addressed separately in subsequent memoranda), imports, nor does not it excuse any failure to prevent, respond to, or report any accidental releases of oil, hazardous materials, chemicals, pollutants, or hazardous substances[3] – nor “should [the EPA Policy] be read as a willingness to exercise enforcement discretion in the wake of such a release.”

 

Finally, EPA caveats that the EPA Policy may not apply to every potential civil violation that occurs due to Covid-19, that EPA will continue to supplement the Policy with policies targeted to specific programs, and that EPA’s self-disclosure enforcement policy (under which businesses may avoid penalties under certain circumstances by self-reporting) “remains available.” [4]

 

       B.    California SWRCB Policy

 

Taking an entirely different tactic, the California SWRCB has adopted an informal policy in the form of a Covid-19 Update (SWRCB Update) that applies broadly to all applicable requirements under its jurisdiction (i.e., cleanup orders, monitoring and discharge requirements) but imposes affirmative obligations on the regulated community to comply with permits, orders, and applicable requirements – concluding such functions are considered exceptions to shelter-in-place directives established by local health agencies.

 

The SWRCB Update does not expressly mention the State of California’s shelter-in-place directive, although the date of the Update is March 20th, after California’s directive went into effect; however, the Update provides that if there is a specific requirement that cannot be met because it would be inconsistent with current governmental directives or guidelines related to Covid-19, the responsible entity must “immediately” contact the applicable Regional Water Quality Control Board (RWQCB) via electronic notification.

 

The electronic notification must provide the specific requirement that cannot be met, the inconsistent Covid-19 directive or guidance that prevents compliance, an explanation of why the entity cannot satisfy the requirement, and actions that will be taken in lieu of complying with the requirement. 

 

        C.    OSHA and Cal/OSHA Standards

 

The U.S Department of Labor has published a summary of applicable OSHA standards, pointing out that while there are no special standards for Covid-19, existing OSHA requirements may apply, including Personal Protective Equipment Standards (and in particular the Respirator Protective Standards (29 CFR 1910.134) (to which OSHA has issued temporary guidance on fit requirements targeted to Covid-19)[5] OSHA’s Bloodborne Pathogens standard (29 CFR 1910.1030), and the General Duty Clause.[6]   

 

Under the General Duty Clause, employers must furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”[7]

 

In addition, the summary highlights the responsibility of employers to protect their workers from exposure to hazardous chemicals used for cleaning and disinfection – and an obligation to comply with OSHA Hazard Communication Standards (29 CFR 1910.1200).

 

Twenty-eight (28) states, including California, have OSHA-approved state programs, which may have standards more stringent that the federal OSHA requirements. In particular, the U.S. DOL summary notes California’s Aerosol Transmissible Diseases (ATD) standard, which is aimed at preventing worker illness from infectious diseases that can be transmitted by inhaling air that contains viruses (including COVID-19), bacteria or other disease-causing organisms. According to the U.S. DOL, “while the Cal/OSHA ATD standard is only mandatory for certain healthcare employers in California, it may provide useful guidance for protecting other workers exposed to COVID-19.”

 

Of particular significance, the DOL concludes that in some cases, “COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties.” In that case, OSHA’s record-keeping requirements at mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log (29 CFR Part 1904). 

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In California, Cal/OSHA has issued interim guidance for general industry standards applicable to Covid-19.[8] Similar, to the U.S. DOJ’s approach, Cal/OSHA provides a list of pre-existing standards generally applicable, including the ATD standard for the healthcare industry (while recommending companies use CDC guidance for protecting workers if the ATD standard is not applicable to their operations), and general industry standards – including most notably, a requirement that companies must have an Injury and Illness Prevention Plan (IIPP) in place to protect workers from workplace hazards. According to Cal/OSHA, for purposes of the IIPP, employers are required to determine if COVID-19 infection is a hazard in their workplace. 

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III. DISCUSSION

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Although different agencies are taking different approaches to compliance, companies will in many cases be called upon to exercise prudence and judgment – balancing protection of their employees with their environmental compliance obligations – while at the same time, observing mandatory shelter-in-place directives.

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In the absence of clear guidance (and with the obvious caveat that each situation should be addressed on a case-by-case basis with the advice of legal counsel), companies may want to consider taking the following steps to minimize liabilities and protect employees and the environment:

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• Prepare (and comply with) an IIPP to identify potential Covid-19 hazards to workers, incorporating applicable and/or appropriate OSHA standards.

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• In consultation with an employment attorney, consider what company policies should be established and/or distributed to employees about health and safety measures and company expectations – and any other issues associated with Covid-19 and environmental compliance that should be evaluated from an employment law perspective.

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• Evaluate and document the applicability of local or state shelter-in-place directives to business operations, taking into account applicable agency interpretations of these directives, including what business functions may be considered essential or otherwise exempt from these directives.

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• Identify any environmental obligations that the company may be or will be unable to meet due to the IIPP, general safety considerations, and any applicable shelter-in-place type directives.

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• Document the nature and date of any anticipated or actual non-compliance, the legal and factual reasons why non-compliance is not feasible or possible, and what efforts can be made to minimize the effects of non-compliance, and when and under what circumstances a return to compliance can be anticipated.

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• Evaluate whether to notify applicable governmental agencies or any other third parties who may be affected (e.g., private-party contracts) by anticipated or actual non-compliance and make such notices as appropriate.

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• If any non-compliance presents a threat of an imminent or substantial endangerment, immediately notify applicable governmental agencies, taking into consideration that U.S. EPA has requested notification about such threats associated with state-authorized programs.

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• Evaluate any available federal or state self-disclosure policies which may apply and whether such policies should be invoked.

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• Make best efforts to return to compliance as soon as feasible.

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In conclusion, companies will need to exercise diligence and caution in order to satisfy their legal obligations and minimize liabilities while protecting health, safety and the environment.

                                                                           

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[1] COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, U.S. EPA (March 26, 2020). https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf

[2] See, e.g., EPA Suspends Enforcement of Environmental Laws, Sierra (newsletter of the Sierra Club) (March 28, 2020)

[3] All these designations are defined terms under various environmental laws, including the Clean Water Act, the Clean Air Act, CERCLA, and RCRA.

[4] See, e.g., Incentives for Self-Policing, Discovery, Disclosure, Correction and Prevention of Violations, EPA Audit Policy (1997).

[5] Temporary Enforcement Guidance - Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak (March 14, 2020) https://www.osha.gov/memos/2020-03-14/temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit

[6] U.S. Department of Labor, Webpage, https://www.osha.gov/SLTC/covid-19/standards.html

[7] Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1).

[8] Cal/OSHA Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease (COVID-19)(March 2020).