EPA, States Provide Direction on Dealing with Agency Submittals during COVID-19 Pandemic

Officials with the Environmental Protection Agency (EPA) have provided informal direction on how regulated facilities should proceed in dealing with the agency during the COVID-19 pandemic. In summary:

• The EPA is continuing its operations with staff working remotely. Agency staff will still be available as a resource and all online portals remain operational.
• In general, all facility-specific deadlines, permitting requirements and the like remain in effect. However, the EPA will use enforcement discretion on a case-by-case basis where deadlines cannot be met due to COVID-19.
• The EPA will still be accepting mail, though any review of mailed materials could potentially be significantly delayed. Wherever possible, you should submit documents electronically. Only mail documents if it is necessary to do so. E-signatures on documents are now being accepted.

This summary should not be considered official EPA guidance. This is a fluid situation, and it is anticipated that the EPA will issue a more formal policy statement in the days ahead. Key states have also issued formal guidance on deadlines and submittals to applicable regulatory agencies:

Louisiana

• The Louisiana Department of Environmental Quality (LDEQ) issued a Declaration of Emergency and Administrative Order on March 20 that will remain in effect until April 19. During this time, LDEQ will accept electronic submittals for permit applications and permit-related materials and will accept e-signatures from responsible officials. LDEQ will also accept online payments through its Business Website in lieu of checks.
• In addition, the following deadlines occurring between March 19 and April 19 are extended for 30 days: deadlines to conduct or report periodic monitoring and deadlines to submit other reports required by permits, regulations, other authorizations, enforcement actions, or settlement agreements, except for monitoring required by air permits issued under Title IV or V of the Clean Air Act or under the PSD program. These deadlines apply only insofar as a facility does not have appropriate personnel available due to COVID-19. Documentation must be maintained and made available to LDEQ upon request.
• Emergency reporting requirements are not suspended.
• Additionally, as of March 16, the New Orleans District of the U.S. Army Corps of Engineers has directed all non-essential personnel to work from home and are restricting public access to its office.

Texas

• Effective March 23, all Texas Commission on Environmental Quality (TCEQ) buildings are closed to the general public and open to staff-only on a limited basis. TCEQ is still open and operating to fulfill day-to-day responsibilities.
• Due to reduced staff in the workplace, TCEQ will exercise enforcement discretion and consider the following as timely if submitted on or before April 30: (1) 2019 point source emission inventories, and (2) annual compliance reports relating to the Mass Emissions Cap and Trade Program and Highly Reactive Volatile Organic Compound Emissions Cap and Trade Program. The agency will consider additional enforcement discretion regarding this deadline as conditions warrant in response to COVID-19.
• No guidance regarding other environmental submittals to TCEQ is currently available.

Other states, including Alabama, Mississippi, Florida and North Carolina, have not provided formal guidance on environmental submittals to-date.

Practical Tips

We recommend that facilities attempt to meet deadlines and submit all information electronically if possible. We also recommend that each facility document its attempts to comply with deadlines and permitting requirements, especially where COVID-19 makes compliance difficult or impossible. All facilities must keep in mind that emergency disclosure requirements are still in effect.

This news alert is a service to the clients of Phelps. This is a rapidly changing situation. We will keep you informed on other COVID-19 related developments as they occur.

Inquiries concerning topics addressed in this Environmental news alert may be directed to any member of the Phelps Environmental practice group.