Following on the March 19 internal memorandum from the Office of Land and Emergency Management (available here), and the March 26 COVID-19 Enforcement Discretion Policy from the Office of Enforcement and Compliance Assurance (see here for the Policy and Spencer Fane’s earlier alert), EPA today (April 10) issued guidance on field decisions for parties managing cleanups under CERCLA, RCRA, and other remediation programs. EPA’s interim guidance is available here.
Consistent with Governor Kelly’s March 17, 2020, directive, the Kansas Department of Health and Environment (KDHE) offices are closed for the two weeks between March 23 and April 3, 2020, as part of the state’s response to COVID-19. KDHE continues its essential functions and the Bureau of Environmental Remediation (BER) has provided several updates for the regulated community. The agency has indicated it is uncertain that mail will be logged in daily and parties should expect some delay in communications. Electronic communications are preferred where possible.
Today the Environmental Protection Agency’s Enforcement and Compliance Assurance Program announced a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. The policy is available here and is retroactive to March 13, 2020. EPA makes clear that the policy is temporary and the agency will give seven days’ notice before terminating the policy.
At a Wednesday, March 25, conference Missouri Department of Natural Resources (MDNR) division director Ed Galbraith said MDNR will take a flexible approach to enforcing environmental requirements during the COVID-19 outbreak. Galbraith also said that MDNR has discontinued environmental inspections for the time being and that he understands EPA Region 7 has done so, as well. MDNR is conducting certain field work, however.
Over the weekend and Monday morning, Missouri and the major local jurisdictions that comprise the St. Louis and Kansas City metropolitan areas issued emergency orders directing business and individual responses to the COVID-19 (coronavirus) outbreak by imposing social distancing requirements. Kansas had issued a statewide order on March 17, and Illinois had issued a statewide order on Friday, March 20. Generally speaking, these orders close schools except for distance learning, ban activities inside bars and restaurants, ban social gatherings of more than 10 people, and encourage social distancing. The Illinois state order and many of the city and county orders require businesses and organizations to close their workplaces and workers to stay home unless they are deemed “essential” or qualify for another exemption. Some businesses have been obtaining favorable determinations that they are “essential” from their local jurisdictions on a case-by-case basis. Grounds for exemptions can include food manufacturing and processing, manufacturing and supply chain services for other essential businesses, construction, services to help businesses comply with laws, and many others.
The Missouri Department of Natural Resources faces a potential funding shortfall for Missouri’s Hazardous Waste Program following the General Assembly’s March 4 disapproval of a stopgap funding measure. On that date, the Missouri House of Representatives adopted Senate Concurrent Resolution 38 disapproving an increase in Hazardous Waste Program fees previously passed by the Missouri Hazardous Waste Management Commission. The Missouri Senate had passed SCR 38 on February 24. Accordingly, the fee increases will not take effect.
Facilities that own and operate air emissions sources in the State of Missouri, such as manufacturing plants, chemical plants, and similar industrial air sources, will want to take note of recent proposed changes to the notification obligations involving certain excess emission events.
The United States Environmental Protection Agency and United States Army Corps of Engineers last week took another step toward rolling back their 2015 proposed definition of “waters of the United States” (WOTUS). On November 22, 2017, the agencies published in the Federal Register a new proposed regulation to delay the effective date of the 2015 WOTUS rule until two years from the date of final action on the new proposal. The agencies seek comments until December 13, 2017, on their new November 22 proposal, so stakeholders who wish to comment have limited time to do so.
A high-ranking Environmental Protection Agency (EPA) enforcement official in the Trump Administration recently cited a 1994 memorandum by Earl Devaney, then Director of EPA’s Office of Criminal Enforcement, as presenting guiding principles to select cases for criminal enforcement of environmental violations. The January 12, 1994, memorandum, “Exercise of Enforcement Discretion,” is often referred to as the “Devaney Memorandum,” and it is available at this link: https://www.epa.gov/sites/production/files/documents/exercise.pdf. This may signal that criminal enforcement of environmental laws under the Trump Administration will be limited to situations in which there has been significant actual or threatened environmental harm and truly culpable conduct.
Effective July 1, 2016, buyers of industrial and commercial properties in Kansas may qualify for a Certificate of Environmental Liability Release (CELR) under the state’s new Contaminated Property Redevelopment Act. This liability release for pre-existing contamination is important for prospective purchasers of industrial and commercial properties by helping to facilitate those transactions and allow the buyer to avoid state cleanup responsibility. But not only buyers benefit, as sellers can also demonstrate a framework that allows the transaction to proceed and maximize the property value without the buyer or seller taking on unnecessary risk if the proper steps to obtain the CELR are followed.
On July 10, EPA Administrator Gina McCarthy spoke to the Agricultural Business Council of Kansas City in an attempt to ease concerns over the Administration’s proposed rule to clarify the reach of the Clean Water Act (CWA). The proposed rule, issued jointly by EPA and the Army Corps of Engineers, seeks to specify by regulation the scope of the CWA following the 2006 Supreme Court decision in Rapanos v. United States. The competing tests for CWA jurisdiction issued by the Court in Rapanos have complicated efforts to determine when smaller waters, wetlands, and ephemeral streams are subject to CWA jurisdiction and would require government permits before they can be impacted. In response to mounting criticism of the proposed rule from a number of stakeholders, McCarthy tried to reassure the audience, saying, “We don’t believe that we are expanding jurisdiction.”
Earlier today, June 23, 2014, the United States Supreme Court dealt a blow to EPA’s current approach to regulating greenhouse gas emissions (GHGs) through its air permitting program for new or expanding stationary sources. Utility Air Regulatory Group v. Environmental Protection Agency. No. 12-1146, ___ U.S. ___, June 23, 1014. The Court said it left intact EPA’s ability to regulate 83 percent of such GHG emissions, compared to the 86 percent EPA championed under its approach. Nevertheless, in its ruling the Court undercut key foundations of EPA’s current GHG regulatory approach. This ruling will require EPA to re-think many aspects of its approach to GHGs and will give opponents increased leverage in the upcoming discussions.