On May 14, 2020, the Pennsylvania bar Institute hosted a webinar with Alex Chiaruttini, Chief Counsel the Pennsylvania Department of Environmental Protection (“DEP”) and Cecil Rodrigues, Regional Counsel for Region III of the United States Environmental Protection Agency (“EPA”), detailing the state of agency operations during the COVID-19 shutdown. I attended this webinar on behalf of Fair Shake and all of our clients and put together this blog post to help answer some critical questions about lawyering during this global pandemic.
State of agency office operations
Initially, both presenters gave updates on workplace operations. EPA Region III offices are almost entirely teleworking. One of the logistical challenges of the shutdown has been collecting mail. Upon all employees being ordered to avoid their office space, the Region shut off its mail service. Getting mail service resumed has proven difficult, and as aa result, the office has been without USPS service for roughly a month. Accordingly, Attorney Rodrigues advises that email and electronic submission of documents be utilized to the greatest extent possible, and that any physical submissions to Region III be sent for the time being via a private commercial carrier such as UPS or FedEx.
For the DEP’s part, Attorney Chiaruttini noted that the Department’s employees were sent home “abruptly” over a two day period, and that Department employees previously had little to no experience with teleworking. Given that reality, her feeling is that operations are as well as they can “in terms of productivity.” She noted that mail was also initially a challenge for the Department, but that each regional office now has designated personnel checking their mail rooms several times per week.
Both agencies anticipate their employees will continue to primarily telework for the time being, with no defined timeline for a resumption of normal office operations.
Temporary enforcement policies
Attorney Rodrigues gave an overview of the EPA’s published Temporary Enforcement Policy. In essence, the policy outlines factors that the agency will take into account when assessing the degree to which a regulated entity needs to comply with environmental laws for the duration of quarantine and stay-at-home orders. Rodrigues predicted that the policy will lead to the agency making case-by-case waiver determinations as industry begins to reopen in the coming weeks.
The EPA’s policy has been challenged in separate lawsuits respectively led by the National Resources Defense Council and the attorneys generals of nine different states. Attorney Rodrigues noted his disagreement with characterizations of the Temporary Enforcement Policy as a “blanket waiver of liability,” though he conceded that the agency could be “doing a better job” with transparency in how the policy is being carried out.
DEP’s stated enforcement stance is that if a business is permitted to be in operation under the Governor’s directives, then that business is obligated to operate in compliance with all applicable laws. That said, DEP has been processing requests for temporary suspensions of regulations in accordance with the Governor’s Emergency Management Powers. More information is available here, under the heading, “Requesting a Suspension of Regulation or Permit Condition.” Attorney Chiaruttini has noted that the agency is attempting to process and respond to each application for waivers in a two-week timeframe. Of the 159 applications received so far, the Department has granted 25, denied 92, rejected 3 as incomplete, and that the applicants have withdrawn the remaining 17. The DEP is not publishing the applications or application determinations on their website, with the idea being that some measure of privacy will incentivize forthrightness from the regulated community.
Takeaway: If you are concerned about compliance of a specific facility then you should notify the EPA or DEP electronically first. For more information on how to report violations refer to our previous blog post about citizen enforcement.
Ongoing agency work
The DEP is continuing to process permit applications. The Permit Decisions Guarantee (PDG) program, by which the Department establishes set timeframes for taking action on permit applications, is currently formally suspended. That said, the DEP estimates that it is currently meeting those timeframes with respect to about 95% of pending applications.
The DEP’s inspection programs have been also been ongoing, though emphasis has shifted from routine compliance inspections in certain less-accessible locales. The Department has prioritized emergency responses and acute public health threats, avoiding sending employees into COVID “hotspots” whenever possible. Previously planned drone survey work has gone forward as planned.
The EPA has similarly shifted priorities. Attorney Rodrigues noted that field work is limited and subject to travel restrictions. EPA enforcement at facilities will likely be commensurate with the level of operations. For instance, Attorney Rodrigues specifically noted one boiler facility was allowed to forego restarting their boiler for scheduled testing in light of the facility being shut down for the time being.
COVID-19 is also impacting the enforcement activity of agency attorneys. Attorney Rodrigues has noted that no facilities currently under consent agreements have formally invoked force majeure provisions, though some facilities have sent notification letters of compliance problems.
Takeaway: Compliance and accountability are a real concern right now and some frontline communities may be experiencing greater pollution because reduced site visits.
Sunshine laws
The COVID-19 shutdown has also impacted the ability of citizens to request public records. The FOIA office of EPA’s Region III is continuing to respond to requests. Attorney Rodrigues notes that FOIA officers are processing requests for emails and other electronically-available information, but that files that exist in only physical paper form in Region III offices are not presently available for review or inspection.
The DEP indicated that it has responded to all Right-to-Know Requests that the agency received prior to the state’s stay-at-home protocol. They have suspended responding to any Right-to-Know requests which were received afterward, pursuant to the directives of the Governor’s Office of General Counsel (OGC). More information is available here, under the heading “Right to Know Law.” The Department noted that it has received 74 such requests. As office operations phase in over the coming weeks and months, the DEP notes that it hopes to avoid “bottlenecks” by addressing pending Right to Know requests promptly.
A specific concern was raised about the inability of the agency to process Right to Know requests while the DEP is continuing to process permit applications. Citizens’ ability to provide meaningful comments on permit applications during public comment periods is often difficult if the entire contents of the application cannot be accessed. To mitigate this problem, DEP expressed that it will attempt to make most application materials available online.
Takeaway: If you have concerns with any permit application for a facility in your community, make to contact DEP and ensure that the entire permit application is made available for public review. Be sure to document any challenges you are faced with in attempting to obtain public information.
If you have questions about the responsibilities of a polluter or other business in your community during the COVD-19 crisis, please do not hesitate to contact Fair Shake's attorneys. We are keeping up to date on all of changes for you and we are always ready to help, regardless of your income.
