April 2020 - Earth Day Reflections: Environmental Compliance Management During the COVID-19 Pandemic

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On Earth Day 2020, PHE takes stock of how we can continue to fulfill our environmental responsibilities, even as organizations struggle to cope with a dangerous and uncertain global pandemic.

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These are indeed anxious and unprecedented times.  The coronavirus outbreak has impacted nearly every corner of the earth and all walks of society. 

Such crises naturally cause us all to reevaluate our lives and re-prioritize the activities that are most important.  As priorities change, focus shifts as well.  With more and more employees – in both public and private sectors – working remotely, there are fewer personnel available to handle onsite duties.  This inevitably affects the performance of routine regulatory compliance activities, including inspections and monitoring, integrity testing, sampling and laboratory analyses, training, certification, and reporting.

COVID-19 has caused disruption on a scale not seen in recent history.  However, our experience with attendant disruptions to personnel and other resources in times of other crises (such as natural disasters), provides valuable insight into the types of compliance deficiencies and liabilities that can occur during these times.

Compliance Concerns in the Time of COVID-19

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The U.S. Environmental Protection Agency (USEPA) released a memo on March 26, announcing a temporary policy regarding discretionary enforcement of environmental legal obligations during the COVID-19 pandemic. According to this USEPA webpage describing the policy:

“[T]he policy addresses different categories of noncompliance differently. For example, under the policy EPA does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic but does expect operators of public water systems to continue to ensure the safety of our drinking water supplies. The policy also describes the steps that regulated facilities should take to qualify for enforcement discretion.”

It is important to note that this policy is not a nationwide waiver of environmental rules allowing regulated entities to broadly disregard any and all environmental compliance obligations.  Instead, USEPA will use discretion to determine which instances of noncompliance can reasonably be attributed to situations resulting from COVID-19.  In other words, USEPA does not anticipate seeking penalties for minor violations “in situations where EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to EPA upon request.”   To qualify for USEPA’s enforcement waiver, an organization must identify and document a COVID-19-related noncompliance situation by taking the following steps:

  1. Act responsibly under the circumstances to minimize the effects and duration of any COVID-19-related noncompliance;

  2. Identify the specific nature and date of the noncompliance;

  3. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;

  4. Return to compliance as soon as possible; and

  5. Document the information, action, or condition specified in 1 through 4 above.

For example, a generator of hazardous waste may find itself unable to transfer hazardous waste offsite within the time periods prescribed by RCRA, due to COVID-19 disruptions.  In such a situation, USEPA recommends that the generator continue to properly label and store the waste onsite, while making the COVID-19 notification to USEPA, as described above.  If these steps are taken, and a good faith effort is evident on the part of the generator, USEPA may apply enforcement discretion.  This discretion would include allowing Very Small Quantity Generators (VSQGs), Small Quantity Generators (SQGs), and Large Quantity Generators (LQGs) to retain their current regulatory status, even if the amount of hazardous waste stored onsite during the COVID-19 pandemic exceeds volume or time-limit thresholds applicable to their generator category.

However, instances such as criminal violations or conditions of probation in criminal sentences are not covered by this temporary policy of enforcement discretion.  Likewise, activities carried out under Superfund and RCRA corrective action settlements are largely excluded from this policy.

Note that in most locations, the environmental enforcement responsibilities largely reside with state environmental agencies.  While some states have echoed support for USEPA’s discretionary enforcement policy, others have issued starkly different messages:

  • Louisiana, Oklahoma, Pennsylvania, and Washington have issued statements indicating that their policies may closely follow USEPA’s.

  • Conversely, New York and California have indicated that their enforcement policies remain intact, while other states such as Maryland and Virginia have clarified that they expect to be stricter than USEPA in enforcing COVID-19-related noncompliance.

It is important to check your state’s environmental regulatory agency’s website, or contact them by phone or email, to determine the regulatory enforcement policy currently in effect.

Medical Waste Compliance

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As a result of the COVID-19 pandemic, many facilities not regularly used for medical purposes have become makeshift hospitals and nursing homes.  Even for hospitals and clinics that routinely generate regulated medical waste, the number of patients over the past few weeks has substantially increased the amount of medical waste generated, stored, and disposed.

Aside from certain safety, labeling, and transportation regulations, medical waste management is largely regulated at the state level.  Accordingly, there are many different requirements that facilities should be aware of moving forward.

For example:

  • Michigan, Rhode Island, and South Carolina require healthcare facilities to register as generators of medical waste.

  • Some states differentiate between large and small quantity medical waste generators according to weight of medical wastes generated (e.g., 50 pounds per month limit in North and South Carolina; 60 pounds per month limit in Oklahoma; 200 pounds per month limit in California and Utah), with less burdensome registration and other rules for the small facilities.  It is possible that medical facilities managing COVID-19-related wastes in these states may exceed their normal generator category limits and may be subject to additional or more stringent requirements.

  • New York, North Carolina, and West Virginia require medical waste generators to document or report quantities of regulated medical waste generated and disposed. Again, keeping track of the increased volumes of medical waste may be more problematic now and require additional attention.

  • California, North Carolina, South Carolina, Utah, and West Virginia require healthcare facilities to prepare a plan that ensures proper management of regulated medical waste.  If a facility in one of these states is not normally used for this purpose, such a requirement may be overlooked.

  • Missouri, New York, Rhode Island, South Carolina, and West Virginia require that a tracking document be prepared before regulated medical waste is shipped offsite and that the document accompanies the waste to the treatment/disposal site (in a manner similar to a RCRA hazardous waste manifest).  Under the U.S. Department of Transportation’s (DOT’s) Hazardous Materials Regulation (HMR), personnel signing these manifests must be provided training.  Training must be provided within 90 days of employment and every 3 years thereafter.  The training can be conducted as classroom training or through an online format.  In the current chaotic environment for hospitals and clinics, manifests for the increased medical waste volumes may be overlooked or signed in haste by untrained persons.

The Center for Disease Control and Prevention (CDC) and the World Health Organization (WHO) recommend that the management of waste materials related to COVID-19 from healthcare facilities should be performed in accordance with routine handling procedures for medical waste.  However, determine if your state or territory has developed alternative guidance for the management and disposal of COVID-19 wastes, and follow accordingly.

Despite the challenges that lie ahead, with attention to requirements and potential regulatory relief, we will all get through these unusual times with minimal unnecessary impact to the environment and human health and safety.

PHE extends its best wishes to all on this Earth Day, during these difficult times.  When the current crisis has subsided, we can help you to correct any compliance gaps you may have experienced as a result of COVID-19-related, abnormal operations.  We can also assist with the development of emergency/contingency plans to help you prepare for future disruptions in site activities.  In the short term, if you have any questions or concerns or need further assistance, please do not hesitate to reach out.  Our staff of compliance experts are ready to help in any way that we can.  Feel free to reach out to Chris Rua, CHMM, at 732-278-4279 or chrisr@phe.com.