As a result of the COVID-19 pandemic, businesses may be struggling to meet environmental compliance requirements because of limited staffing, changes in production, and government-imposed operating restrictions. Businesses must remain mindful of their environmental compliance obligations regardless of whether the requirement arises from a permit condition, general regulatory requirements, or an agreed order.
Kentucky, like other states across the country, is dealing with various shutdown and in-person business restrictions. In Kentucky, Governor Andy Beshear has declared a State of Emergency and ordered that all businesses that are not “life-sustaining” close to in-person traffic. Businesses that are allowed to continue to operate are required to follow social distancing and hygiene guidance from the Centers for Disease Control and Prevention and the Kentucky Department of Public Health.
Although the United States Environmental Protection Agency (“EPA”) announced on March 26, 2020 that it is temporarily suspending enforcement of environmental laws during the COVID-19 pandemic, the Kentucky Energy and Environment Cabinet issued an “Emergency Bulletin” and Memoranda on March 26, 2020 which appears to reaffirm the Commonwealth’s general position that regulated facilities must continue to meet their environmental compliance obligations with few exceptions. For example, a March 26th Memorandum issued by Energy and Environment Cabinet Secretary Rebecca Goodman indicates that the Department for Environmental Protection (“DEP”) will temporarily grant a limited grace period for EPA Reference Method 9 certifications that expired on or after March 1, 2020 until July 1, 2020. However, the grace period will not apply to personnel with expired certifications conducting visible emissions testing as part of a compliance demonstration pursuant to a requirement in a federal regulation, such as an NSPS or NESHAP, and also does not apply to visible emissions testing conducted to demonstrate initial compliance at any new emission source. The Secretary also announced a limited grace period for asbestos accreditation renewals. In the water sector, Secretary Goodman announced in a March 26th Memorandum that DEP is waiving late fees for drinking water operator renewals and is waiving the normal approval process for emergency staffing at drinking water plants and wastewater treatment plants where staffing has been affected by COVID-19. Lastly, an Emergency Bulletin issued by Secretary Goodman on March 26th provides additional operational flexibility for solid waste management facilities in Kentucky. These flexibilities include a waiver on daily tonnage limits and storage; permitted co-mingling recyclables and yard waste during transportation, processing, and disposal; and adjustments of operating hours as needed to expedite responsiveness to the emergency.
Based on the limited compliance flexibilities announced to date by DEP, businesses should consider what relief may exist, whether in the form of exceptions, waivers, or administrative extensions, that can be utilized where compliance with the emergency COVID-19 restrictions interferes with compliance with ongoing environmental requirements. Relief may be in the form of force majeure clauses in agreed orders with DEP or in the form of emergency provisions in regulations such as 401 KAR 52:020, Section 24. Regardless, liability relief under these types of provisions is generally not self-effectuating. At minimum, some form of notice generally is required to be provided within a certain period of time as well as showing that negative impacts to human health or the environment were minimized during the period of the emergency.