Learn how the Coronavirus is impacting environmental regulatory compliance at YOUR business, plant, or facility.
We all know these are historic, trying times. Aside from the virus, Americans, at every step of the way, are dealing with new issues never imagined before in our personal and professional lives. While I can't give you advice on the personal aspects of your life, aside from wash your hands and practice safe social distancing, I can shed some light on something that impacts your business: environmental regulations.
Over the last few weeks, things have evolved rapidly. During this time, many of our clients, folks like you, friends, colleagues, you name it, have reached out with concerns about their company's environmental regulatory compliance program during this COVID-19 pandemic. From questions like "what if I missed a stormwater sample", to dealing with closed plants, incomplete paperwork, staffing issues, you name it, we've heard a lot. Additionally, we've heard a lot of misinformation, or incorrect news shared about environment regulations on the federal and state levels.
Here are some of the top questions we've received, things we've read, and our two cents on how the Coronavirus is impacting the environmental regulations at your business, plant, or facility.
1) Did the EPA / my state STOP enforcing environmental regulations?
Almost 100%, universally across the board the answer is NO. Environmental regulations still apply to your business the same as they did before.
More or less, no rules have been relaxed and no regulations are suspended.
Despite what some news agencies are saying, the EPA has only stated they are, on a case-by-case basis, allowing for discretion when it comes to enforcement of any missed regulatory requirements. For example, and as stated by the USEPA, they do "...not expect to seek penalties for noncompliance with routine monitoring and reporting obligations..." and "...the EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible."
This means things like if you miss a routine facility inspection that's required, like a monthly inspection required in your SPCC Plan, they aren't going to throw the book at you when things return to normal. Maybe. The keyword here is discretion.
And, many states are following suit and taking the same stance, while others are being quiet on the subject still.
When in doubt, assume that it's business as usual and nothing has changed when it comes to environmental regulations.
2) Have any environmental regulatory deadlines been suspended or relaxed?
Again, the answer is just about no across the board.
From what we've heard no deadlines have been suspended, no firm dates have been relaxed, etc.
Again, things are just about the same as they were before.
3) Will I get inspected by an environmental regulator?
Most agencies are stating that environmental inspections are not happening due to social distancing and stay at home orders. And, most of the environmental regulators are working from home, just like you may be.
Because of that reason, if you're expecting a monthly or quarterly inspection from a regulator, chances are they aren't showing up.
4) Will I get in trouble if I'm out of compliance?
Can't get a stormwater sample? Is your plant closed? What about the analytical lab you use? How about if your staff is sick?
What happens if I can't stay in environmental compliance at your business??
The short answer is we don't know. Based upon state and federal language, they may apply discretion to non-compliance issues, and it's done on a case-by-case basis. If it's a habitual thing, you have a history of noncompliance, or you have a really bad excuse for noncompliance, then don't expect them to cut you any slack. The keyword again is discretion.
5) I can't stay in compliance with my permit / approval / regulation, what should I do?
We've already seen this several times so far, and in all cases, all we can advise is document, document, document! And, get in touch with your environmental regulator ASAP to let them know that there's an issue.
And, that's the official policy of the USEPA as well. They've stated that "To be eligible for enforcement discretion, the policy also requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic."
In other words, document why you can't meet the terms of the applicable environmental regulation, how you'll make changes so it doesn't happen again, and let the applicable agency know about it ASAP. But, if you aren't in compliance, just be aware that you may be open for enforcement actions.
6) What about 3rd party environmental groups?
3rd party environmental groups, citizens groups, whatever you want to call them, are still active, still vigilant, and are calling on the general public to help keep businesses like yours from "polluting and destroying the environment."
They are petitioning federal and state agencies to not let anyone off the hook. They are asking to be notified about noncompliance issues. Assume they will show you and your business NO discretion. In fact, assume that if you are out of compliance for something COVID related, they will use it against you, now or in the future.
In short, 3rd party groups are acting like it's business as usual, and in some ways, asking for more information to help enforce regulations as they see fit.
7) What about things not covered under my permit / approval / regulation?
You MUST continue to prevent any non-routine environmental condition that might threaten the environment or human health, safety or welfare.
- Don't do anything above and beyond, or outside of the confines of your permit, approval, rule, or regulation.
- Don't start discharging process water if your NPDES stormwater permit doesn't allow it.
- Don't allow any chemicals, admixtures, oil products, etc., to discharge from your property.
- Don't release anything to the environment that shouldn't be released.
- Don't bring in material you're not allowed to.
- Don't exceed your limits.
- Don't do anything you're not supposed to.
8) What about things in the works? New permits? New approvals? Renewals?
Permit applications in process are probably not going to get issued in a timely manner. If you are in that boat, get permit applications and renewals in as soon as you can, given the situation. If you can’t, notify, document, and take corrective actions if need be.
For existing permits and approvals, from what we've seen, expect them to stay in force, like they normally do (e.g., NPDES), or discretionary power may be used.
Again, do NOT assume you are “off the hook” for ANYTHING.
9) What SHOULD I do to keep my business in compliance with environmental regulations?
Understand that YOUR environmental responsibilities are NOT going away or being suspended. Expect nothing is changing or going to change regarding your permits and approvals. And, do not push off requirements to another day, do them as soon as you can.
Figure this out on your end. What can YOU do to stay in compliance during these times? What can you do differently? Develop contingency plans in case you have an issue with staffing, due to illness, or otherwise. Cross-train staff to cover for one another. Look into technology. Can you do virtual inspections (via Zoom, Skype, Google Hangouts, etc.)?
Can technology actually help you? We've heard of environmental managers who cover large territories saying this will allow them to transition to a more digital existence, and help them stay in the office and work on more big picture items, instead of traveling to a site hundreds of miles away when an untrained plant manager has a small problem to deal with.
- First and foremost, the health of you, your family, and your staff, is the most important thing. Do everything you can to stay healthy during these trying times.
- But, environmental regulations are still (more or less) exactly the same. Virtually nothing has been suspended, almost no deadlines are relaxed, and your operation should do everything possible to stay in compliance. In short, it's business as usual.
- If you're out of compliance, you could be subject to enforcement, even IF your operation was impacted by COVID-19. AND, 3rd party groups could use it against you now, or in the future.
- If you're out of compliance, document why. Get in touch with your regulators ASAP, and let them know there's an issue. Identify why you're out of compliance, and develop a plan to prevent that going forward. Could be utilizing technology, could be more training or delegation to staff, or could be something really innovative we haven't thought of yet!
Need more information on environmental compliance?
Do you need help with environmental compliance at your business, plant, or facility? If so, you've come to the right place. RMA has been actively involved in helping companies get and stay in compliance since 1992. Long story short, we know the ins and outs of the environmental problems industrial facilities face, and can help you get into compliance with the applicable laws and regulations, ensuring your business stays out of trouble. Our staff members have been on-site at thousands of industrial operations across the country, so when we say we've seen it all and done it all, we mean it. We've helped multi-national organizations on multi-state projects, as well as small mom and pop operations. No matter your size, industry, or location, we can help.
So, if you're having any type of environmental issue at your operation, we'd love to talk and learn how we can help. Even if we can't help, chances are pretty good we know who can help you, and we'd love to get you in touch with the right people to fit your needs.
To reach out, feel free to shoot us an email at firstname.lastname@example.org, click here to contact us, or give us a call anytime at 888-RMA-0230 to learn how we can help your operation deal with environmental regulations.