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COVID-19 has undoubtedly shocked society and has currently brought life as most Americans know it to a screeching halt. What many Americans fear is that during these trying times, their obligations, whether it be financial or statutorily required, will continue to exist despite non-essential businesses being ordered to close and many people losing their jobs or facing a reduction in hours or pay. An event, so inconceivable to most, has now resulted in strained social distancing, financial turmoil and global anxiety the likes of which has not been seen since World War II. As a result of COVID-19, we all have had to change our routine practices, and government agencies are no exception, including environmental agencies.
The Federal Environmental Protection Agency (EPA), is a prime example of the manner in which government has been compelled to change its attitude towards enforcement. On March 26th the agency issued a memorandum entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” The EPA has many programs which require that certain actions be taken within specified time periods, with stiff penalty exposure in cases of noncompliance. The memorandum illustrates that the EPA understands the reality that strict compliance will very often not be feasible in light of current social-distancing requirements and the economic impact of COVID-19.
The EPA policy applied retroactively to March 13, 2020, when distancing started to become somewhat universally required. The agency stated that it is “cognizant of potential worker shortages” during the virus crisis, thereby limiting facility operations as well as their ability to analyze results and provide sample results – all traditional requirements imposed on permittees and those under compliance orders. Furthermore, the EPA acknowledges that certain operations, including public water supplies, may not be able meet strict effluent requirements. All of which according to the EPA warrants some measure of enforcement relaxation.
In terms of civil and criminal penalty exposure, the EPA now requires regulated parties to “make every effort” to comply with environmental obligations. When compliance is not feasible, the EPA requires all parties to act responsibly under the circumstances, identify the nature of noncompliance and its reason, return to compliance as soon as possible and thoroughly document the non-compliant event. This is simply a summary; the memorandum contains more detail that should be consulted if applicable. Settlement agreements that require cleanups and testing are also capable of being relaxed if requirements essentially similar to those described above are satisfied.
Public water providers must ensure under the Federal Safe Drinking Water Act that potable water meets certain health-based specifications. While some leeway is provided to these entities, here the EPA makes it very clear that every effort must be taken to ensure that water provided to us to drink remains safe. And where there is a threat, prompt EPA notification, as well as local regulatory reporting, is mandated.
The bottom line to all of this is that the EPA comprehends that strict regulatory compliance across its many programs may be impacted at this time. Regulated parties are able to avoid penalties and possible criminal charge exposure if these temporary guidance requirements are followed during the during the virus. There is still a substantial risk, as the regulated community will be on its own to determine what meets and what does not meet the EPA temporary guidance criteria since what might appear to be a good faith attempt may always be second guessed by the agency. But the intentions of the agency seem clear: it is attempting to balance safety and public health with the realities of the COVID-19 pandemic.
Here in New Jersey we await a similar overarching regulatory response from the Department of Environmental Protection (DEP) and other similar government agencies. Perhaps one will be forthcoming from that agency and/or from the Attorney General who has generally been extremely pro-active. However, for the time being, New Jersey has permits requiring specific compliance, countless numbers of cleanups that must be completed within strict timetables with large penalties routinely assessed for missed deadlines, and facilities that that must function within permissible environmental discharge limits. That being said, Governor Murphy instituted Executive Order No. 103 dated March 9, 2020 which authorized agency heads to waive, suspend or modify any existing rule, where the enforcement of the rule would be detrimental to the public welfare during the COVID-19 emergency, notwithstanding the provisions of the Administrative Procedure Act, N.J.S.A. 52:14B-1, or any law to the contrary.
On March 26, 2020, the NJDEP issued an “Enforcement Alert” providing guidance for Public Water Systems, Wastewater Monitoring, Licensed Operator and Certified Laboratory issues related to the COVID-Pandemic. The DEP Division of Water Supply and Geoscience (DWS&G) issued guidelines titled “Distribution Sampling Guidance During COVID-19-01” and the Division of Water Quality similarly provided “Reduced Monitoring Frequency for Sanitary Wastewater Dischargers.” The “Enforcement Alert” notes that DEP “will continue to exercise enforcement discretion to provide the necessary flexibility to allow the Water and Wastewater Sector to continue to provide essential services … despite staffing limitations and other needs related to measures intended to reduce the rate of community spread of COVID-19;” thereby providing potential insight into the DEP’s overall reaction to the COVID pandemic.
On April 13, 2020, the DEP issued additional general COVID-19 Regulatory Compliance guidelines pertaining to Green Acres and Solid Waste. The temporary changes made to N.J.A.C 7:36-25.10(b) pertaining to Green Acres is for the purpose of relieving local governments or nonprofits from the requirement to provide notice to Green Acres in advance of a 30 day or longer closure of funded parkland, where such closure is mandated, required, recommended or otherwise determined by the local government unit or nonprofit as necessary to protect public safety for the duration of the Public Health Emergency and State of Emergency declared by Executive Order 103. As for solid waste, the Department recognized that it may become necessary for the DEP to take emergency action during the duration of Executive Order 103 to ensure the continued appropriate management of solid and hazardous waste and recyclable materials, despite such actions being in contradiction to the social distancing order. Therefore, for solid waste, the DEP may waive, suspend, modify or relax any provision of its relevant rules (e.g. N.J.A.C. 7:26 (solid waste); N.J.A.C. 7:26A (recycling); N.J.A.C. 7:26G (hazardous waste); and N.J.A.C. 7:26H (solid waste utility)) on a case-by-case, site-specific basis. In applying this method, the Department must determine that their actions are:
Please see the DEP’s website for further information regarding these guidelines.
On April 13, 2020, the DEP also issued specific COVID-19 Regulatory Compliance guidelines pertaining to Air Quality. The Air Quality guidelines specifically pertained to Human Crematory Operators, in the respect that for the duration of Executive Order 103, human crematories may operate in excess of any permitted daily hourly operating limits as may be necessary to satisfy increased service needs due to the COVID-19 pandemic. This certainly is one of the more unique temporary changes, but nonetheless it sheds light on the changes that need to be made during these unprecedented times.
Other agencies in New Jersey have also been relaxing or waiving compliance rules during the COVID-19 pandemic. The New Jersey Economic Development Authority is waiving compliance rules for its some of its largest tax incentive programs, which normally require that workers “spend 80 percent of his or her time” at the office in order to qualify as a regular, full-time employee. Now, companies seeking awards under the NJEDA’s programs will have to show that an employee does at least 35 hours of work per week (or 30 hours for Atlantic City, Camden, Trenton, Passaic and Paterson counties).
In addition to changes to state and federal enforcement of environmental obligations, the Attorney General has been working with prosecutors and enforcement authorities to enforce all distancing bans. New Jersey Governor Philip Murphy has signed Executive Orders 102-104, 107, 108 and 116-119 over the past months to, among other things, further social distancing measures in order to decrease the spread of COVID-19. Specifically, Governor Murphy stated, “we are taking a zero-tolerance policy against anyone who acts so stupidly and puts others in danger or makes them fear for their health.” Thus far, New Jersey has seen violations ranging from large crowds gathering for funeral services, to persons making terroristic threats towards police officers relating to COVID-19. This type of violations, at best exposes people to disorderly person charges, and at worst exposes them to third- and fourth-degree felony charges.
The Attorney General was quoted in recent media posts as having established a “network of prosecutors” to help law informant secure compliance with the Governor’s social distancing and related orders. When people are charged with violating Executive Orders, additional charges are filed against the targets in addition to the original charges. The Attorney general is also pursuing persons who inferential infect or try to infect others, sell bogus virus remedies and host large gatherings. Cases have already been filed statewide.
It is clear that federal and state agencies are appropriately tailoring their respective enforcement responses to provide necessary relief, but are also mindful of the various aspects of society which must continue to operate, but that can still do so under slightly less rigorous oversight and regulation for the time-being during the pandemic. That being said, those with obligations to any federal or state agency, should continue to monitor the respective departments’ continually changing responses to the current situation. For the time being, please stay home while we all await the end of the COVID-19 pandemic.
**Lieberman is an attorney with the Princeton law firm of Lieberman Blecher & Sinkevich. The firm practices environmental law, commercial real estate law and land use. All lawyers are working remotely and on-line client meetings are being routinely conducted.
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