COVID-19 Follow Up – Investigations, Citizens’ Suits, and Criminal Enforcement

After our post about COVID-19 and the EPA’s Enforcement Discretion Guidance Memo, we received follow up questions. Although this blog does not provide legal advice, we thought this was a critical question to consider.

How do environmental consultants abide by “stay-at-home” orders and environmental agency regulatory requirements simultaneously?

Although the analysis varies state by state, generally speaking, environmental investigation and remediation necessary to protect against imminent harm to public health and the environment are considered “essential activities” and are allowed to proceed during the “stay-at-home” period. In addition, investigation, remediation, and other consulting efforts that serve an exempted activity are also essential. This would include a voluntary investigation and/or cleanup. If the nature of the activity is unclear, the consultant or business should contact the regulatory agency for confirmation that the activity is “essential” (preferably obtain such confirmation in writing). EPA’s guidance indicates there will be discretion in enforcement, but it assumes that every effort will be made to comply with environmental regulations and permits.

To avoid future unwarranted enforcement for noncompliance with agency requirements, orders, or permits, it is advisable to continue all compliance activities required, including investigation and remediation activities, to the extent feasible. EPA’s guidance provides discretion in “unavoidable” situations, but EPA does not define “unavoidable.” Our interpretation is that a lack of personnel, due to illness from COVID-19, to perform the required activities may be “unavoidable.” Nonetheless, a consultant or business must still provide documentation of the circumstances, mitigate impacts, and return to compliance as soon as possible. More on EPA’s guidance is provided in our prior post.

To avoid an immediate local enforcement action for not “staying-at-home,” we recommend documenting the nature of the activities as necessary for public health and safety, and obtaining such documentation from the regulating agency if possible.

We also received questions about operational compliance obligations. What if the operational activity itself presents a threat of COVID-19 transmission?

We are not labor lawyers, buy there are obvious implications for labor and employment laws that may restrict the ability to require employees to perform activities that involve the threat of COVID-19 transmission. If an operational activity cannot be performed without the threat of COVID-19 transmission, despite all efforts to do so, it may be necessary to contact the regulating agency and discuss compliance. Document all discussions, decisions, and actions taken. As addressed in our earlier blog, EPA will exercise discretion in its enforcement under these circumstances, as long as the regulated entity documents its efforts to comply and returns to compliance as quickly as possible.

What if an operational activity at a facility must stop entirely, or there are operational delays?

Regulated entities are still expected to meet all terms and conditions of permits that apply to operational interruption and delays. Typically, these conditions include immediate notification to the agency of any temporary work stoppage, or delay in transmitting operational reports. EPA’s guidance provides that delays in sampling reporting may be excused, as we discussed in our previous blog. Nonetheless, we advise checking the controlling language of the permits to determine what is required and be sure to document the steps taken to notify the regulator, mitigate any impacts of the delay or stoppage, and return to normal practice as soon as practicable. If there are specific deadlines in your permit, notify the regulator in writing and obtain an extension in writing.

What if a business is applying for a permit or is in the midst of the permitting process?

Some permits, in particular RCRA permits, are complex and require significant time to complete. Most agencies have deadlines for the permit application process. More than likely, the agencies themselves will see an internal slowdown in the permitting review and approval process because of the interruption in daily activity presented by the COVID-19 pandemic. Our interpretation of the stay-at-home order in California is that any agency activity related to public health and safety, including permitting activity, is “essential.” However, if a regulated entity needs more time to proceed through the permit process, it should seek an extension. It is difficult to predict what will happen when this situation is ultimately resolved – we cannot rule out the possibility that agencies may deny permits arguing critical deadlines were missed. It is best to communicate (and document such communications) with the regulating agency concerning permitting deadlines and any extension requests.

What about citizens’ private enforcement actions?

EPA’s guidance does not impact citizens’ suits, and plaintiffs may consider their work “essential” to public health. Deadlines under the Clean Water Act, including sixty-day notice letters, etc., are not subject to EPA’s guidance. The Clean Water Act section 33 U.S.C. § 1311(a) prohibits the discharge of a pollutant from a point source into a navigable body of water without a permit. A defendant must respond to a plaintiff within sixty days of receiving a notice letter, regardless of COVID-19, and request an extension in writing, if appropriate, to resolve the asserted claims. A court will not excuse missed deadlines because of COVID-19. That said, in many jurisdictions, court closures may impact plaintiffs’ ability to file suits. We advise the parties work together to mutually agree, in writing, to extensions to resolve claims.

What about future criminal enforcement because of an inability to comply with environmental regulations?

Criminal activity is never tolerated and will not be tolerated during the COVID-19 pandemic. EPA’s guidance made it clear that enforcement would go forward against environmental crimes, but EPA also noted that it will look differently at violations that could not be avoided because the COVID-19 “stay-at-home” orders prevented personnel from conducting certain operations.

Because President Trump has not issued a national “stay-at-home” order, EPA’s guidance does not apply equally to all states. For now, it is necessary to review “stay-at-home” orders on a state-by-state basis to determine what operations are “essential.” As a rule of thumb, until there is a national order, we recommend assuming all environmental activities can impact public health and are “essential”; therefore, all violations are avoidable (as noted above, there may be an argument that a violation is “unavoidable” if there all personnel are ill from COVID-19). A safe rule of thumb is to assume environmental-related activities (regardless of type of business) are “essential” because they protect human health and the environment.

Criminal enforcement under the Clean Water Act is of particular concern during COVID-19 because a regulated entity (or responsible person) can be criminally liable without specific intent to commit a crime. For felony violations, the Second and Ninth Circuits interpreted “knowing” under Clean Water Act section 1319(c) to require only that the defendants knowingly engage in the conduct, not that they knew that their acts violated the CWA (United States v. Weitzenhoff (35 F.3d 1275 (9th Cir.1993); United States v. Hopkins (53 F.3d 533 (2nd Cir. 1995)). For misdemeanors, or negligent violations, merely failing to exercise the same degree of care of someone of ordinary prudence in the same circumstance, resulting in a discharge of any pollutant into United States waters without an NPDES permit, is sufficient to prosecute (Hanousek v. United States (176 F.3d 1116 (9th Cir. 1999); United States v. Ortiz (No. 04-1228 (10th Cir. Nov. 1, 2005)). Therefore, it is critically important that businesses continue to fully comply with the Clean Water Act during the COVID-19 pandemic, to avoid future criminal enforcement.

As noted in our previous blog, water and wastewater workers, as well as the manufacturers and suppliers who provide vital services and materials to the water sector, are considered essential workers and businesses; therefore, these businesses must continue to comply with all environmental regulations, orders, and permits. Most water systems already have continuity plans in place as part of their best management practices.

As a reminder, EPA’s policy does not apply to enforcement activities (criminal or civil) under the CERCLA and RCRA Corrective Action enforcement instruments, which will be addressed separately in the future. Stay tuned to Bick Law LLP’s blog alerts for more information on environmental enforcement during the COVID-19 pandemic.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.