Environmental Compliance Considerations for Businesses with Operations
For many Pennsylvania businesses, the emergency suspension of operations for any business not designated a “life sustaining business” and the stay at home order have created practical, technical and logistical hurdles for regulated entities required to comply with a wide range of state and federal environmental regulations and permit requirements. The Pennsylvania Department of Environmental Protection (“DEP” or “Department”) and the U.S. EPA (“Agency” or “EPA”) have each issued guidance regarding environmental compliance and enforcement discretion. The following are highlights of some of the issued guidance.
Regulation or Permit Compliance Waivers – DEP
The DEP maintains a COVID-19 Alert available here that addresses a number of environmental regulation and permit issues. Where strict compliance with a state environmental regulation or permit (or a federal regulation or permit, the administration and enforcement of which has been delegated to the DEP) would prevent, hinder, or delay necessary action in coping with the COVID-19 emergency, the regulated entity or permittee can request a temporary suspension of the regulatory requirement or permit condition. To request a temporary suspension, the regulated entity should complete the PaDEP form available here and email the completed form to the Department at RA-EPCOVID19SuspReq@pa.gov.
Chapter 102 (Erosion & Sediment Control) and Chapter 105 (Dam Safety & Waterway Management) – DEP
Permittees operating under a DEP permit that have ceased or suspended operations or construction to comply with the Governor’s stay-at-home order should review the permit requirements, as they likely contain obligations applicable to cessation or temporary work stoppage. Examples of such permits include, but are not limited to, Chapter 102 (Erosion & Sediment Control, commonly referred to as “earth disturbance permits” and Chapter 105 (Dam Safety & Waterway Management, commonly referred to as encroachment permits). The DEP encourages permittees or operators with questions about specific permit or operating conditions to contact the persons or department staff identified on their permit or cover letter. Where the permit or cover letter does not provide a point of contact, refer to the PaDEP online directory available here.
Specifically with respect to earth disturbance permits or post-construction stormwater management requirements, the DEP advises:
- Permittees and operators considered “life sustaining businesses” as set forth in Governor Wolf’s March 19, 2020 Order, as amended, may continue to conduct permitted earth disturbance activities to the extent that those earth disturbance activities are in support of the operation of the life sustaining business. If earth disturbance activities are conducted, the permittee must remain in compliance with all terms and conditions of any applicable permit.
- Permittees and operators not considered “life sustaining businesses” must, cease earth disturbance activities. Per applicable regulations the terms and conditions of their permit, including any approved plans, permittees ceasing earth disturbance activities must immediately implement temporary or permanent stabilization practices in accordance with approved permit plans and conditions and the stabilization standards outlined in the DEP’s Erosion and Sediment Control Program Manual.
- In recognition of the Governor’s directive to implement social distancing, permittees may, upon temporary or permanent stabilization, cease performing weekly Routine Inspections as otherwise required by their permit. Permittees must continue to conduct other inspections required by their permit, including Post-Storm Event Inspections and Corrective Action Inspections as set forth in their permit.
- Required site inspections of permitted activities by permittees are considered critical operational functions and will not be considered to be out of compliance with the Governor’s Order. Permittees and operators are reminded to limit on-site personnel, and in all cases follow social distancing and COVID-19 mitigation guidance provided by the PA Department of Health and CDC.
- Cessation of Routine Inspections as set in the above Alert is not a limitation of, or defense to, liability for injury to private property or invasion of personal rights and that Permittees must continue to comply with all other permit terms and conditions, including, but not limited to, the requirement to take immediate action to restore, repair, or replace the BMP or to provide an alternative method of treatment upon reduction, loss, or failure of any BMP.
Underground Storage Tank Program – Pennsylvania DEP
On April 2, 2020, the Department issued a memo to all tank handling companies certified under the Commonwealth’s Storage Tank and Spill Prevention Act. The memo is available here.
Pursuant to the memo:
- Inspection, upgrade, repair and testing activities that are performed by PaDEP-certified tank handling companies may continue. Third-party inspection activities required by storage tank regulations to identify storage tank system and component failures may also continue.
- Installation of storage tank systems at life-sustaining businesses by DEP-certified tank handling companies may continue. Removal of storage tank systems should be limited in scope where removal is necessary for subsequent tank installation or to protect human health and the environment. Please note that any in-person work at a business site is only to be performed on the most limited basis possible to deliver the services or goods.
- All storage tank and piping release detection, monitoring, and cathodic protection equipment should remain on, properly functioning, and continue to be monitored. In addition, leak detection alarms and suspected releases should be responded to by owners and operators appropriately.
- All third-party inspections, third-party testing and monthly walkthrough inspections should continue as required.
U.S. EPA Enforcement and Compliance
With respect to federal environmental regulations and federal permit requirements (where not delegated to state administration and enforcement) contact US EPA Region III and refer to the US EPA March 26, 2020 Memorandum (“COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program”). Pursuant to the March 26th Memorandum, the EPA will exercise enforcement discretion as specified in the Memo for noncompliance covered by the temporary policy and resulting from the COVID-19 pandemic, if regulated entities take the steps applicable to their situations, as set forth in the policy. For noncompliance that occurs during the period of time that the temporary policy is in effect, and that results from the COVID-19 pandemic, the policy will apply to such noncompliance in lieu of an otherwise applicable EPA enforcement response policy. Please refer to the memo in its entirety for specific scope, exclusions and applicability, the following is only a brief summary of a few of the topics covered by the memo:
- Regulated entities should make every effort to comply with their environmental compliance obligations;
- If compliance is not reasonably practicable, facilities with environmental compliance obligations should:
- Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
- Identify the specific nature and dates of the noncompliance;
- Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
- Return to compliance as soon as possible; and
- Document the information, action, or condition specified in the preceding four bullets.
- Entities should use existing procedures to report noncompliance with such routine activities, such as pursuant to an applicable permit, regulation or statute. If no such procedure is applicable, or if reporting is not reasonably practicable due to COVID-19, regulated entities should maintain this information internally and make it available to the EPA or an authorized state or tribe upon request. In general, the EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.
For more information, please contact Donald Wagner or the Stevens & Lee attorney with whom you regularly work.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.