Per- and polyfluoroalkyl substances (“PFAS”) are a group of man-made chemicals that contain nearly 5,000 different compounds. PFAS are ubiquitous and can be found in a variety of everyday products, including stain- and water-resistant fabrics and carpeting, cleaning products, cookware, paints, and fire-fighting foams.

While PFAS compounds remain largely unregulated at the federal level, the United States Environmental Protection Agency (“EPA”) has taken some steps to develop guidelines with respect to two PFAS compounds. In 2016, EPA issued drinking-water health advisories for the sum of PFOA and PFOS at 70 ppt. This remains the nonbinding standard for PFOA and PFOS at the federal level.

In the absence of federal standards, some states have developed their own PFAS drinking water standards. The following chart details state proposed and adopted drinking water standards or advisory levels for a variety of PFAS compounds.

Chart: State and Federal PFAS Drinking Water Standards – Updated 9/29/20

Sources: State & Federal PFAS Drinking Water Standards – Updated 9/29/20

The Trump administration’s EPA has again finalized changes to the CCR Rule. The most recent rule change—”Part B”—provides an exception to the Rule’s mandate that all unlined impoundments close on or before April 11, 2021. If the rule stands—a big if, for several reasons explained below—certain unlined impoundments may be permitted to continue to operate indefinitely, even despite certain groundwater contamination exceedances. Part B requires a demonstration that the impoundment’s natural lining (or other lining not consistent with the Rule’s definition) is sufficiently impermeable that there is “no reasonable probability that releases throughout the active life of the CCR surface impoundment will result in adverse effects to human health or the environment.”

In its original version, the CCR Rule drew an absolute distinction between lined and unlined impoundments, but included in the definition of lined impoundments units with compacted soil “liners” with a hydraulic conductivity of no more than 1 x 10-7 centimeters per second. That portion of the rule was challenged and found to be unlawful in Utility Solid Waste Activities Group v. EPA, 901 F.3d 414 (D.C. Cir. 2018). In response to that decision, EPA ditched the categorical inclusion of certain soil-lined impoundments in the “lined” impoundment category, but created a process by which any impoundment that can make an “Alternate Liner Demonstration” may be treated, in effect, as “lined.”

Under Part B, any facility owner may seek to make an “Alternate Liner Demonstration” through a two-step process. In the first step, the facility submits an application demonstrating that it meets certain minimum requirements, a process “designed to ensure that it is likely a facility will ultimately be able to make the more extensive demonstration to support continued operation.” EPA anticipates acting on these applications by April 11, 2021, the date on which these impoundments would otherwise be required to close. The second step is more intensive and requires a host of site-specific data and analyses to prove the impoundment “can sustain its current performance and operate safely for the remainder of its active life.”

The rule is controversial for several reasons. First, despite the D.C. Circuit’s decision in Utility Solid Waste Activities Group, which was a victory for the environmental groups that challenged portions of the rule, Part B expands the number of unlined units that might continue to operate indefinitely (at least potentially). Second, the two step process might allow certain basins to operate at least past the otherwise applicable April 11, 2021 closure date, even if they are not ultimately successful in making an Alternate Liner Demonstration.

It is far from certain that Part B will remain part of the CCR Rule. Legal challenges are almost guaranteed. The Sierra Club, which is among the groups that challenged the initial CCR Rule as not going far enough to protect groundwater, has already criticized Part B as “another rollback of clean water protections, which will allow utilities to keep dumping enormous quantities of toxic coal ash into unlined, leaking, and structurally unsound coal ash ponds.” Because Part B, at least to some, degree moved the CCR Rule in the opposite direction the Utility Solid Waste Activities Group court suggested was required, the litigation has at least some chance of success (although EPA justifies the rule by contending it has added to the record assessed by the Utility Solid Waste Activities Group court). Perhaps as important, if the rule is tied up in litigation and a Biden administration takes over EPA, it is hard to see Part B surviving or being used. Part B is therefore just one more way in which the long-term fate of CCR is far from settled.

We will continue monitor the status of the CCR Rule. If you have any questions about this post or would like more information, please contact Ryan Rudich (rrudich@freeborn.com; (312) 360-6379) or another member of Freeborn’s Environment and Energy Practice Group.

The U.S. Environmental Protection Agency (“EPA”) recently announced that it will be extending its COVID-19 Implications for Signing Paper Hazardous Waste Manifests policy (“Temporary COVID-19 Manifest Signature Policy” or “Policy”) until November 30, 2020.

On May 18, 2020, EPA issued its Temporary COVID-19 Manifest Signature Policy concerning how handlers of hazardous waste can address generator signatures on paper hazardous waste manifests during the COVID-19 pandemic. This Policy provides that if obtaining a generator signature on a paper manifest is not reasonably practicable, entities can use the electronic manifest. If the electronic manifest is not a viable option, then the Policy details steps that must be taken by both the transporter and generator. The Temporary COVID-19 Manifest Signature Policy was set to expire on August 31, 2020. EPA is extending the Policy, however, in light of some states experiencing an increase in COVID-19 cases following efforts to reopen.

EPA was contacted by handlers of hazardous waste regarding the need for continued social distancing for regulated parties obtaining “wet” signatures on paper hazardous waste manifests. Given the recent spike in COVID-19 cases, handlers believe continued social distancing is necessary to protect truck drivers and facility personnel. Therefore, EPA concluded that the Temporary COVID-19 Manifest Signature Policy should continue to be available, subject to a few changes.

EPA’s announcement contains three changes from the May 18, 2020 Temporary COVID-19 Manifest Signature Policy: (1) shortening the phrase transporters or designated facilities should write in Box 15, for generator signature, to address space limitations on the manifest form; (2) changing the reference to the EPA policies about signatures on manifests during the COVID-19 public health emergency in the generator’s signature substitute; and (3) removing language referencing the Temporary COVID-19 Enforcement Policy regarding how generators and transporters should maintain documentation.

Going forward, if obtaining a generator signature on a paper manifest is not reasonably practicable, entities should still use the electronic manifest. If the electronic manifest is not a practical option, however, then the following steps must be taken:

  1. The transporter should write the name of the generator in Box 15 and, under “Signature,” should write “COVID-19 signature substitute” or abbreviated as “COVID-19 sig. sub.”;
  2. The generator should provide a signature substitute in a(n) cell phone text message, email, or hard copy letter mailed to the transporter and designated facility. The generator should use one document/transmittal to cover all manifest activities per transporter/designated facility throughout the duration of this temporary policy; and
  3. The transporter or designated facility should write in Box 14 of the manifest “documentation for generator signature substitute available upon request.”

Generators and transporters taking the steps outlined above should maintain this documentation for three years from the last shipment needing a signature substitute.

When the Policy is terminated on November 30, 2020, transporters and generators should expect to return to compliance with pre-COVID-19 signature requirements for paper hazardous waste manifests.

In the wake of the COVID-19 pandemic, the U.S. Environmental Protection Agency (EPA) has suspended requirements for state agencies to perform on-site compliance inspections in favor of off-site monitoring alternatives.

In a recent letter, the EPA Office of Enforcement and Compliance Assistance announced that state environmental protection agencies must continue with their required planned inspection commitments of businesses under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); Toxic Substances Control Act (TSCA); Safe Drinking Water Act(SDWA), Clean Air Act (CAA); Clean Water Act (CWA); Resource Conservation and Recovery Act (RCRA); and Underground Storage Tank programs. Instead, EPA will allow state agencies to meet inspection requirements through alternative means including: postponing inspections until they are determined to be safe when possible, using off-site compliance monitoring, and off-site inspections. Although EPA stated that “Remote Video Partial Compliance Evaluations” may be used to determine non-compliance with requirements and for identifying inspection priorities, it is still uncertain exactly how off-site compliance monitoring and off-site inspections might work.

The important take away is that state environmental compliance inspections of regulated facilities will occur as planned in 2020 and 2021, but may be delayed or performed remotely. It remains uncertain exactly how remote inspections will proceed and what techniques may be used to ensure their validity.

The United States Environmental Protection Agency (“EPA”) recently announced that it will be terminating its temporary enforcement discretion policy on August 31, 2020 at 11:59 PM Eastern Daylight Saving Time. In general, this means that EPA will not base any exercise of enforcement discretion on this temporary enforcement discretion policy for any noncompliance that occurs after August 31, 2020.

EPA issued its temporary enforcement discretion policy on March 26, 2020 stating its intent not to bring enforcement actions for a range of violations of environmental regulations caused by COVID-19. Until August 31, 2020, EPA’s policy is that it will continue exercising this discretion and will “consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.”

In selecting the termination date, EPA took into consideration the new federal guidelines and directives that have been issued to support the public health response and economic recovery efforts, as well as the lifting of state and local restrictions. EPA expects that the restrictions impacting regulatory compliance will likewise be lifted and will reduce the circumstances in which the temporary enforcement discretion policy may apply.

EPA recognizes, however, that in certain circumstances, it may need to continue exercising enforcement discretion even beyond August 31. The Termination Addendum provides that “[n]othing herein limits the ability of the EPA to exercise enforcement discretion on a case-by-case basis regarding any noncompliance, including noncompliance caused by the COVID-19 public health emergency, before or after the temporary policy is terminated.”

Notwithstanding, regulated entities that have taken advantage of EPA’s temporary enforcement discretion policy should prepare to resume compliance activities by August 31, 2020. Additionally, regulated entities should continue to monitor EPA guidance and any state-specific enforcement discretion policies that have also been issued in response to COVID-19.

If you have any questions about EPA’s temporary enforcement discretion policy or how COVID-19 is affecting enforcement actions, please contact Hannah Vanderlaan (hvanderlaan@freeborn.com; (312) 360-6487) or another member of Freeborn’s Environment & Energy Practice Group.

In Monday’s split decision, the U.S. Supreme Court held that the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) (i) does not preclude owners of contaminated property from pursuing state law claims for nuisance, trespass and strict liability, but (ii) requires EPA approval of any remedial action conducted on the landowners’ property.

For nearly a century, the Anaconda Copper Smelter in Butte, Mon­tana contaminated an area of over 300 square miles with arsenic and lead. Over the past 35 years, EPA worked with the current owner of the now-closed smelter, Atlantic Richfield Company, to implement a cleanup plan for a remediation expected to continue through 2025. In 2008, a group of 98 landowners sued Arco in Montana state court for common law nuisance, trespass, and strict liability, seeking restoration damages, which Montana law requires to be spent on prop­erty rehabilitation. The landowners’ proposed restoration plan exceeded the measures found necessary to protect human health and the environ­ment by EPA. For instance, the landowners’ restoration plan included much more stringent contaminant cleanup levels. Ultimately, after many years of litigation and appeals, the Montana Supreme Court rejected Arco’s argument that Section 113 of CERCLA stripped the Montana courts of jurisdiction over the landowners’ claims and concluded that the landowners were not potentially responsible parties pro­hibited from taking remedial action without EPA approval under §122(e)(6) under CERCLA.

In rejecting Arco’s jurisdictional argument (and agreeing with the Montana Supreme Court), the Supreme Court noted that “[o]ften the simplest explanation is the best: Section 113(b) deprives state courts of jurisdiction over cases “arising under” the Act—just as it says—while §113(h) deprives federal courts of jurisdiction over certain “challenges” to Superfund remedial ac­tions—just as it says.” In other words, Section 113(b) applies only to cases under CERCLA (not state law claims) and Section 113(h) applies only to the jurisdiction of federal courts to challenge CERCLA remedial actions.

The Supreme Court did however agree with Arco’s argument (contrary to the Montana Supreme Court) that the claimant landowners were potentially responsible parties under CERCLA and, pursuant to Section 122(e)(6), must seek EPA approval to take remedial action on their property. Again, the Supreme Court eschewed a more complex reading of the statute and found that Section 107’s straight-forward language controlled. “Because arsenic and lead are hazardous substances that have ‘come to be located’ on the landowners’ properties, the landowners are po­tentially responsible parties,” under Section 107’s definition of a covered person as an “owner” of a “facility.” The Supreme Court also rejected the landowners’ argument that they were not potentially responsible parties because CERCLA’s limitations period had run.

The Supreme Court’s ruling appears to clear the runway for certain state statutory and common law claims even where the Superfund process has begun, including the implementation of a final remedy. A copy of the opinion can be found here.

 

In a matter of days, Americans have been asked to stay home as states across the country issue orders requiring non-essential businesses to cease operations. Given the essential public health role of the waste and recycling industries, however, these industries must continue service. This alert explores how the Department of Homeland Security and most states that have issued “stay at home” orders recognize the waste industry as an essential service, allowing the industry to continue operating during these unprecedented times.

Waste Industry Deemed “Essential Critical Infrastructure” by Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency

The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”) has recognized solid and hazardous waste collection workers and wastewater treatment workers as part of the Essential Critical Infrastructure Workforce. This classification identifies workers who conduct operations and services that are essential to continued critical infrastructure and it is intended to help state and local officials as they contemplate how to protect their communities from COVID-19. CISA listed the following waste industry personnel as critical infrastructure workers:

Transportation and Logistics

  • Truck drivers who haul hazardous and waste materials to support critical infrastructure, capabilities, functions, and services.

Hazardous Materials

  • Workers at nuclear facilities, workers managing medical waste, workers managing waste from pharmaceuticals and medical material production, and workers at laboratories processing test kits;
  • Workers who support hazardous materials response and cleanup; and
  • Workers who maintain digital systems infrastructure supporting hazardous materials management operations.

Water and Wastewater

  • Employees needed to operate and maintain drinking water and wastewater/drainage infrastructure, including:
    • Operational staff at water authorities;
    • Operational staff at community water systems;
    • Operational staff at wastewater treatment facilities;
    • Workers repairing water and wastewater conveyances and performing required sampling or monitoring;
    • Operational staff for water distribution and testing;
    • Operational staff at wastewater collection facilities;
    • Operational staff and technical support for SCADA Control systems;
    • Chemical suppliers for wastewater and personnel protection; and
    • Workers that maintain digital systems infrastructure supporting water and wastewater operations.

Public Works

  • Support to ensure the effective removal, storage, and disposal of residential and commercial solid waste and hazardous waste.

These classifications provide a significant benefit to the waste industry. While state, local, tribal, and territorial governments are ultimately in charge of implementing response activities in their communities, states across the nation are looking to CISA’s guidance to determine which businesses and employees to deem essential. As illustrated below, 16 out of 22 states that have issued “stay at home” orders follow the CISA guidance.

How the Current “Stay at Home” Orders Impact the Waste Industry by State

California

California’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect.

Colorado

Colorado’s Stay at Home Order permits critical businesses to continue operating while the Order is in effect. The Order directs the executive director of the Colorado Department of Public Health and Environment (“CDPHE”) to issue a public health order identifying those critical businesses. CDPHE identified the following as critical businesses: (1) public water and wastewater; (2) trash, compost, and recycling collection, processing and disposal; (3) firms and professionals for who provide services necessary to maintain the safety, sanitation, and critical operation of residences and other Critical Businesses or Critical Government Functions, and other essential services; (4) disinfection; (5) treatment plants; and (6) hazardous material safety.

Connecticut

Connecticut’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The Order also directed the Department of Economic and Community Development (“DECD”) to issue guidance about which additional businesses are essential. The DECD identified “water and wastewater operations, systems, and businesses” and “trash and recycling collection, hauling, and processing” as essential businesses.

Delaware

Delaware’s fourth and fifth modifications to its state of emergency declaration closed all non-essential businesses and ordered Delaware residents to stay at home. The fourth modification permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The state also published an independent list of essential and non-essential businesses. This list states that following businesses are essential: (1) waste collection; (2) waste treatment and disposal; and (3) remediation and other waste management services.

Hawaii

Hawaii’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The Order also specifically provides that “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as . . . waste pickup and disposal” are essential businesses.

Idaho

Idaho’s Stay at Home Order permits essential businesses and essential infrastructure to continue operating while the Order is in effect. The Order provides that “solid waste collection and removal” is essential infrastructure. The Order further identifies “service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences” as an essential business. The Order also incorporates by reference the guidance issued by CISA.

Illinois

Illinois’ Stay at Home Order permits essential infrastructure or essential businesses to continue operating while the Order is in effect. The Order defines “solid waste and recycling collection and removal” as essential infrastructure. The Order also provides that the following are essential businesses: (1) service providers who provide services that are necessary to maintaining sanitation; and (2) “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as . . . waste pickup and disposal.” The definition of essential businesses also encompasses workers identified in the critical infrastructure sectors, as outlined by CISA.

Indiana

Indiana’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The Order also specifically provides that essential infrastructure or essential businesses may continue operating while the Order is in effect. The Order defines “solid waste and recycling collection and removal” as essential infrastructure. The Order also states that the following are essential businesses: (1) “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as . . . waste pickup and disposal”; and (2) service providers who provide services that are necessary to maintaining sanitation.

Louisiana

Louisiana’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect.

Massachusetts

Massachusetts’ Stay at Home Order permits essential services to continue operating while the Order is in effect. The Order lists the critical infrastructure sectors, as outlined by CISA, as essential services.

Michigan

Michigan’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect.

Minnesota

Minnesota’s Stay at Home Order permits critical sectors to continue operating while the Order is in effect. The Order lists the following as critical sectors: (1) water and wastewater workers listed in the CISA guidance; (2) transportation and logistics workers listed in the CISA guidance; (3) public works workers listed in the CISA guidance; and (4) hazardous materials workers listed in the CISA guidance.

New Hampshire

New Hampshire’s Stay at Home Order permits essential services to continue operating while the Order is in effect. The Order lists the following as essential services: (1) water and wastewater workers listed in the CISA guidance; (2) “truck drivers who haul hazardous and waste materials to support critical infrastructure, capabilities, functions, and services”; (3) “support to ensure the effective removal, storage, and disposal of residential and commercial solid waste and hazardous waste”; (4) “solid waste collection and removal”; (5) “municipal transfer stations”; (6) “waste pickup and disposal”; (7) “wastewater treatment”; (8) hazardous materials workers listed in the CISA guidance; and (9) “licensed site clean-up professionals and other workers addressing hazardous spills, waste sites, and remediation.”

New Jersey

New Jersey’s Stay at Home Order does not explicitly identify waste removal as an essential business or service. Clarifying guidance, however, provides that all businesses, aside from non-essential retail businesses and recreational and entertainment businesses, may continue to operate.

New Mexico

New Mexico’s Stay at Home Order permits essential businesses to continue operating while the Order is in effect. The Order lists the following as essential businesses: (1) solid waste collection and removal; (2) trash and recycling collection; (3) processing and disposal; and (4) contractors and suppliers engaged in water and wastewater supply.

New York

New York’s Stay at Home Order permits essential businesses and essential services to continue operating while the Order is in effect. Further guidance issued by the New York Department of Economic Development provides that “essential services necessary to maintain the safety, sanitation and essential operations of residences or other businesses” are essential services.

The New York State Department of Environmental Conservation (“NYSDEC”) has advised its Staff and Standby Consultants and Contractors that these services are being interpreted as “any service related to emergency (spill) response and remedial activities at inactive hazardous waste sites, including the operation and maintenance of remedial systems put in place for the protection of public health.”

The guidance also lists “trash and recycling collection, processing and disposal” as an essential service. NYSDEC has explained that this includes “collection, transportation, processing and disposal activities for any solid wastes, regulated medical waste, hazardous wastes, radioactive wastes and other associated waste categories”. NYSDEC also noted “[r]egulations associated with these activities continue to be in effect and any related questions should be directed to appropriate DEC program staff.”

“Public water and wastewater” is also identified as essential infrastructure.

Ohio

Ohio’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The Order also specifically provides that essential infrastructure or essential businesses may continue operating while the Order is in effect. The Order defines “solid waste and recycling collection and removal” as essential infrastructure. The Order further provides that “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as . . . waste pick up and disposal” are essential businesses.

Oregon

Oregon’s Stay at Home Order lists those businesses which must cease operations, as opposed to defining which businesses are essential and may remain open. Waste-related businesses were not included in the list.

Vermont

Vermont’s Stay at Home Order permits businesses deemed critical to public health and safety to continue operating while the order is in effect. The order lists “trash collection and disposal recycling, and operations and maintenance of drinking water and wastewater/drainage infrastructure” as critical.

Washington

Washington’s Stay at Home Order permits essential critical infrastructure to continue operating while the Order is in effect. In accordance with the Order, the Governor designed the following waste-related businesses as “essential critical infrastructure workers:” (1) the critical infrastructure sectors, as outlined by CISA; and (2) service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of construction sites and construction projects (including support to ensure the effective removal, storage, and disposal of solid waste and hazardous waste).

West Virginia

West Virginia’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The Order also specifically provides that essential infrastructure or essential businesses may continue operating while the Order is in effect. The Order defines “solid waste and recycling collection and removal” as essential infrastructure. The Order also provides that “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as . . . waste pickup and disposal” are essential businesses.

Wisconsin

Wisconsin’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The Order also specifically provides that essential infrastructure or essential businesses may continue operating while the Order is in effect. The Order defines “wastewater testing laboratories” and “solid waste and recycling collection and removal” as essential infrastructure. The Order also provides that “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as . . . waste pickup and disposal” are essential businesses.

Take-Away

Given the essential public health role of the waste industry, most states have explicitly recognized that the waste industry is an essential business and have adhered to the CISA’s guidance. However, potential challenges and uncertainty may arise in states that have not provided clarity with respect to certain sectors of the industry.

On March 26th, the U.S. Environmental Protection Agency (“EPA” or “Agency”) issued a sweeping guidance memorandum, announcing its intent not to bring enforcement actions for a range of violations of environmental laws caused by the ongoing COVID-19 pandemic.

For an indefinite period of time, “[i]n general, the EPA does not expect 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 guidance also announces the Agency’s intent to be lenient even with more serious violations, including those that cause harm or a threat of harm to human health or the environment. If such circumstances arise, “[t]he EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.”

Nevertheless, the policy does not give carte blanche to pollute or violate applicable standards. EPA’s enforcement abstention is specifically conditioned on good-faith efforts by regulated entities to maintain compliance and the ability to adequately document those efforts. So facilities that are not able to meet all of their environmental obligations should keep records of the specific nature and dates of any noncompliance, and be prepared to explain precisely how COVID-19 was the cause of the deviation. Regulated entities should also continue to report any noncompliance, even with routine activities, using existing procedures identified in applicable permits, regulations and statutes. And the guidance reaffirms the requirement to notify EPA or the applicable state implementing authority in the case of a system failure that leads to a release or emissions exceedance.

Once the pandemic ends, EPA will not require facilities to “catch-up” with all monitoring and reporting that is excused under the conditions of the guidance. The Agency does, however, expect facilities to eventually submit all annual and bi-annual reports, and conduct associated monitoring, even if that must be done late.

For environmental obligations that exist pursuant to settlement agreements, the guidance establishes that the Agency considers the pandemic to qualify as a force majeure event. Notice provisions for invoking force majeure clauses in such agreements remain applicable and should be followed. Consent orders, however, are subject to the jurisdiction of a court, and while EPA intends to work with the Department of Justice to help avoid the imposition of certain penalties, its authority in that area is more limited.

Hazardous waste generators that are unable to transfer waste out of their facilities within a Resource Conservation and Recovery Act (“RCRA”) prescribed time period will not be treated as storage and disposal facilities, as long as they continue to properly label and store the waste.

The guidance identifies protection of public water supplies as the Agency’s highest priority and makes no specific exceptions for testing and maintenance of public water systems. Nevertheless, the Agency will consider the pandemic when determining if any enforcement action is appropriate for violations involving public water systems.

Significantly, this is federal guidance only. States and other government entities with environmental enforcement authority may exercise the same or similar enforcement discretion, but are under no obligation to do so. That further underscores the significance of taking all possible action to maintain compliance. EPA’s stated leniency is significant, but the regulated community should not assume that any violations that occur during the COVID-19 pandemic cannot lead to enforcement problems down the road.

The Occupational Safety and Health Administration (“OSHA”) has recently released guidance for solid waste and wastewater management workers and employers handling waste with potential or known COVID-19 contamination. This blog post details what that guidance means for employers.

While OSHA previously recommended treating this waste as regulated medical waste, OSHA now states that “the management of waste that is suspected or known to contain or be contaminated with COVID-19 does not require special precautions beyond those already used to protect workers from the hazards they encounter during their routine job tasks in solid waste and wastewater management.” This change came after recent engagement by both the National Waste & Recycling Association (“NWRA”) and Solid Waste Association of North America (“SWANA”).

Per the updated OSHA guidance, “[w]orkers and employers should manage municipal (e.g., household, business) solid waste with potential or known COVID-19 contamination like any other non-contaminated municipal waste.” OSHA’s recommendation includes maintaining standard safety precautions that have been put in place, such as using puncture-resistant gloves and face and eye protection. These same recommendations also apply to workers handling recyclable material.

For medical waste with potential or known COVID-19 contamination, OSHA’s recommended approach is the same as for any other medical material. OSHA recommends continuing to use typical engineering and administrative controls, safe work practices, and personal protective equipment (“PPE”), such as puncture-resistant gloves and face and eye protection, to prevent worker exposure to the waste streams (or types of wastes), including any contaminants in the materials, they manage.

From a wastewater treatment perspective, OSHA has indicated the virus is considered susceptible to normal disinfectant procedures in wastewater, so current disinfection conditions in wastewater treatment facilities is expected to be sufficient. This includes conditions for practices such as oxidation with hypochlorite (i.e., chlorine bleach) and peracetic acid, as well as inactivation through the use of ultraviolet irradiation. According to OSHA, “[t]here is no evidence to suggest that additional, COVID-19-specific protections are needed for employees involved in wastewater management operations, including those at wastewater treatment facilities.”