Anticipating Missed Regulatory Deadlines Now

March 26, 2020Alerts

Companies in the environmental space face a variety of filing, reporting and performance deadlines in the regular course of business. With the COVID-19 pandemic likely to affect companies’ ability to meet some regulatory and contract deadlines, now is the time to plan for dealing with potential delays.

  1. Permits, and Waste Storage and Disposal Laws – Many environmental permits require the submission of reports to government agencies, e.g., annual emission reports for certain air or water permits. Also, state and federal environmental waste laws require that certain waste be stored for only a limited period of time prior to disposal. It may, however, be difficult to comply, especially if a facility has closed. In addition to anticipating these issues, the savvy company should consider governmental self-reporting programs that reduce or eliminate penalties if timely notice is provided. Companies may be more likely to receive approval of a delay now than get after-the-fact relief months later when the crisis subsides. The retention of records adequate to explain non-compliance is also recommended. Finally, all of the foregoing assumes a reporting issue only and not a release. We can expect that actual environmental impacts will be viewed differently by regulatory agencies.
  2. Contractors – Our understanding is that environmental consulting firms are continuing to perform fieldwork. However, we can anticipate a slowdown in this work, for example, invasive field sampling, as contractors run into staffing issues. Facilities that are legally required to perform sampling, or even simply operation & maintenance (O&M) of a groundwater or soil remedy, may then find themselves in non-compliance. It would be prudent now to prepare a list of upcoming environmental contractors’ work over the next several months and then discuss contingencies with the contractor. A review of the retention agreements may also be advisable to determine whether force majeure provisions would excuse contractors’ performance, leaving your company fully exposed to the liability for non-compliance. (See our prior post concerning force majeure provisions).
  3. Consent Decrees and Settlement Agreements – Similar to the above discussion, requirements can be embedded in a consent decree or a settlement, whether it be with a government agency or a third party. For example, O&M associated with a groundwater remedy may be required pursuant to a duly approved O&M manual that, in turn, is incorporated by reference in a settlement. Reviewing the list of applicable requirements now could prevent future performance issues, or allow a timely assertion of force majeure provisions in the settlement (again, see our prior post concerning force majeure provisions). It may also be necessary to notify a regulatory agency and/or retain documents critical to explaining the non-compliance.