On April 21, 2020, the New Jersey Department of Environmental Protection (NJDEP) issued a COVID-19 Alert regarding its approach to compliance and enforcement during the ongoing public health emergency. The Alert advises that the Department is not going to extend or relax its environmental statutory, regulatory and permit requirements during the COVID-19 crisis, but will consider requests for relief on a case-by-case basis.
The NJDEP Compliance Alert also states that the Department will continue to evaluate whether specific regulatory relief is warranted in response to the pandemic. On April 24, 2020, the NJDEP issued a separate order granting regulatory relief with regard to site remediation deadlines. The NJDEP has now agreed to extend the Department’s regulatory and mandatory timeframes for 90 days during the COVID-19 emergency. The 90-day extension, however, applies only to those timeframes that have been and will be reached during the period in which the Governor’s Executive Order No. 103 relating to the COVID-19 pandemic is in effect.
NJDEP COVID-19 Enforcement Policy
The NJDEP’s COVID-19 Compliance Alert recognizes that the ongoing pandemic and resulting restrictions, such as workforce constraints or procurement disruptions, may create limitations for some regulated entities. “In some of these circumstances, regulatory flexibility may be necessary to enable a continuity of operations while also ensuring compliance continues in a manner that protects public health, safety, and the environment,” the Alert states. “Consistent with DEP’s existing enforcement policy and practice, the DEP may exercise discretion on a situational basis where it determines that an alternative, case-specific compliance pathway will maintain protections for public health, safety and the environment.”
While the NJDEP acknowledges that temporary regulatory adjustments may be necessary in some cases, its Compliance Alert makes it clear that “unless specifically approved or directed by the DEP in writing, regulated entities shall continue to act in accordance with all statutory, regulatory and permit requirements.”
To assist entities whose compliance efforts may be impacted by COVID-19, NJDEP offers the following guidance:
- In the event that non-compliance cannot be avoided due to the Public Health Emergency created by COVID-19, notification is required within two (2) business days of discovery through the NJDEP Hotline at 1-877- WARN DEP (1-877-927-6337), unless shorter time frames are required by statute, regulation or permit.
- Where compliance can be reestablished within seven days, following disclosure to the NJDEP Hotline, entities must contact both firstname.lastname@example.org and their program-specific regional enforcement office, in writing, within 14 days of notification and provide the following: i. Date of non-compliance discovery and duration of non-compliance; ii. A description of the decisions and corrective actions taken to regain compliance; iii. A description of how the cause of non-compliance was created by or is directly related to the COVID-19 pandemic; and
- Where compliance cannot be achieved within seven days, entities are to contact both email@example.com and their program-specific regional enforcement office immediately after disclosure to the DEP Hotline to develop appropriate methods to achieve compliance as quickly as possible, which shall be detailed in a compliance plan to be approved by the DEP in writing.
The NJDEP advises that regulated entities and individuals who discover, disclose within two days of discovery as specified above, and expeditiously correct and take steps to prevent recurrence of further violations may be eligible for a reduction of any civil administrative penalties that may apply.
The Compliance Alert also addresses the impact of COVID-19 on existing enforcement actions. It advises that “regulated entities that anticipate missing enforceable milestones set forth in any enforcement document, including any Administrative Consent Order or other enforceable document, should utilize the notice procedures set forth in the agreement, including notification of a force majeure, as applicable.”
Temporary Rule Modification for Site Remediation Deadlines
On April 24, 2020, NJDEP Commissioner Catherine McCabe issued a Temporary Rule Modification extending certain listed mandatory and regulatory remediation timeframes set forth in Administrative Requirements for the Remediation of Contaminated Sites (AARCS) and the Technical Requirements for Site Remediation for 90 days. The 90-day extension, however, applies only to those timeframes that have been and will be reached during the period in which the Governor’s Executive Order No. 103 relating to the COVID-19 pandemic is in effect.
However, the Rule Modification is retroactive to March 9, 2020, which is when Executive Order No. 103 103 took effect.
The NJDEP’s Temporary Rule Modification also acknowledges that that certain site-specific and case by case waivers, modifications or suspensions of other site remediation regulatory requirements may be required. In order to apply such a waiver, modification, or suspension, the NJDEP must find that such action is:
- Necessary to sustain the continued management of remediation activities and related services;
- Narrowly tailored to include only those regulatory modifications necessary to address circumstances created by or directly related to the COVID-19 pandemic;
- Applied consistently to similarly situated entities and individuals; and
- Limited to the period Executive Order No. 103 is in effect.
EPA COVID-19 Enforcement Policy
The NJDEP’s overall approach differs from the more lenient policy adopted by the Environmental Protection Agency (EPA). On March 26, 2020, the EPA issued a policy allowing for the agency’s enforcement discretion during the pandemic. To be eligible for enforcement discretion, the EPA policy requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.
Under the policy, the EPA does not plan to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request. The EPA’s temporary enforcement discretion, however, does not apply to any criminal violations or conditions of probation in criminal sentences. The policy also does not apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments.
In response to criticism that the EPA is giving polluters a “free pass” during the pandemic, EPA Administrator Andrew Wheeler has provided clarification regarding the policy. “EPA’s enforcement authority and responsibility remains active,” said EPA Administrator Andrew Wheeler. “This is not a nationwide waiver of environmental rules. We will continue to work with federal, state and tribal partners to ensure that facilities are meeting regulatory requirements, while taking appropriate steps to protect the health of our staff and the public.”
In letters to Congressional leaders, EPA Assistant Administrator Susan Parker Bodine stated that the EPA expects regulated entities to continue to comply with all obligations. “If they do not, the Agency will consider the pandemic, on a case-by-case basis, when determining an appropriate response,” Wheeler wrote. “Further, in cases that may involve acute risks or imminent threats, or failure of pollution control or other equipment that may result in exceedances, EPA’s willingness to provide even that consideration is conditioned on the facility contacting the appropriate EPA region, or authorized state or tribe, to allow regulators to work with that facility to mitigate or eliminate such risks or threats.”
Key Takeaways for Environmental Compliance
The NJDEP and the EPA both expect regulated entities to fulfill their compliance obligations, but may be willing to provide relief on a case-by-case basis. For entities facing compliance challenges during the COVID-19 pandemic, it is important to document how the noncompliance was caused by the COVID-19 pandemic and, in the case of the NJDEP, promptly notify the agency.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, John Scagnelli, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.