ENVIRONMENTAL HEALTH AND SAFETY COMPLIANCE IN TIMES OF COVID-19

The spread of the coronavirus ("COVID-19") virus has impacted every facet of life in the United States. We are all adjusting to monumental changes in our lives. Depending on what state one resides in, you may be subject to "Stay at Home" or equivalent order from state or local authorities.

Under the terms of a State or local order, business operations may be affected. As the situation in certain states, cities or regions worsens, businesses face pressure to maintain operations. While business operations or staffing may be scaled back or suspended on a temporary basis, businesses remain subject to environmental permitting and compliance requirements. To address unanticipated events that may occur during these challenging times, federal and state authorities have issued policies addressing ongoing permit and regulatory compliance during the time of the spread of the COVID-19 virus.

U.S. Environmental Protection Agency COVID-19 Policy

On March 26, 2020 the U.S. Environmental Protection Agency ("EPA") announced its intention to stop enforcing a host of environmental regulations because of the COVID-19 pandemic.  Nonetheless the EPA noted that facilities must comply with regulations "where reasonably practicable," but EPA will not "seek penalties for noncompliance with routine monitoring and reporting obligations."

EPA Administrator Andrew Wheeler noted the EPA's normal regulations would unnecessarily hamper companies that emit pollutants, since the companies are also trying to "protect workers and the public from COVID-19," the disease caused by the virus. EPA's policy applies to civil violations, according to the statement, but "does not provide leniency for intentional criminal violations of law." EPA has advised that the policy applies retroactively to March 13, 2020 and will apply going forward on an indefinite basis. A copy of EPA's policy is below.

COVID-19 IMPLICATIONS FOR EPA'S ENFORCEMENT AND COMPLIANCE ASSURANCE PROGRAM

Minnesota Pollution Control Agency COVID-19 Policy

On March 27, 2020 the Minnesota Pollution Control Agency ("MPCA") followed EPA's lead and issued a Regulatory Flexibility Notice. MPCA noted that due to the COVID-19 outbreak, MPCA is aware that regulated parties may be impacted from a reduced workforce necessary to maintain normal operations at some facilities. MPCA notes that all regulated entities remain obligated to maintain compliance with environmental laws, regulations and permit requirements to protect public health, safety and the environment. However, MPCA recognizes that where regulated parties will have an unavoidable noncompliance situation, directly due to impact from COVID-19, MPCA has established an email box to accept requests for the MPCA Commissioner to consider providing regulatory flexibility, where possible, to assist entities in alternative approaches to maintaining compliance, such as extending reporting deadlines, extensions of operator certifications and other forms of regulatory relief.

Regulated entities need to email MPCA.COVID19REGFLEX@state.mn.us with information specified by the MPCA that is directly related to a request for regulatory relief. Contrary to the more lenient EPA policy MPCA approval is required prior to implementing alternative measures. A copy of the MPCA's COVID-19 Regulatory Flexibility Notice is below.

COVID-19 AND REGULATORY FLEXIBILITY

Environmental Health and Safety Compliance in Times of COVID-19

The Occupational Safety and Health Administration (OSHA) has developed COVID-19 planning guidance for employers based on traditional infection prevention and industrial hygiene practices. The guidance outlines a tiered system based on the exposure risk (lower, medium, higher or very high).

The guidance focuses on the need for employers to implement engineering, administrative, and work practice controls and personal protective equipment (PPE), as well as considerations for doing so. The OSHA COVID-19 webpage offers information specifically for workers and employers.

GUIDANCE ON PREPARING WORKPLACES FOR COVID-19

At Hessian & McKasy, PA we are helping clients respond to COVID-19 in all aspects of their business operations. With regard to environmental matters we are advising clients as to US EPA and MPCA policies related COVID-19 including requests for regulatory flexibility.

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