COVID-19 in Australia and US: A tale of two environmental regulators

The United States Environmental Protection Agency (US EPA) caused a wave a controversy when it announced in February 2020 suspension of some environmental law requirements in response to the COVID-19 outbreak. This stands as a counterpoint to approaches taken in several Australian jurisdictions, including the New South Wales Environment Protection Authority (NSW EPA), Environment Protection Authority Victoria (VIC EPA), and Western Australian Department of Water and Environmental Regulation (WA

US EPA approach

In February 2020, the US EPA announced a temporary policy (1), in which certain non-compliances by regulated entities would not be enforced by the EPA, in response to shortages of workers and other restrictions on movement. Those relaxations included:

• If reporting of non-compliances was not reasonably practicable due to COVID-19, the entity could maintain the information internally and provide to the US EPA upon request.
• The US EPA did not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, or reporting or certification obligations, where "the EPA agrees that COVID-19 was the cause of the noncompliance"
• While the policy is temporary, facilities are not expected to "catch up" on missed monitoring or reporting, if the interval is less than 3 months.

This policy approach was criticised by some former administrators, including a former US EPA Head of Enforcement, who was quoted as describing the temporary policy as "essentially a nationwide waiver of environmental rules for the indefinite future. It tells companies across the country that they will not face enforcement even if they emit unlawful air and water pollution in violation of environmental laws, so long as they claim that those failures are in some way 'caused' by the virus pandemic. And it allows them an out on monitoring too, so we may never know how bad the violating pollution was.” (2)

Approach in NSW, WA, and Victoria

The NSW EPA has adopted a less relaxed approach, emphasising instead the role of business to have business continuity planning in place to respond to disruption such as COVID-19, in a response published on their website (3). While indicating they would "offer industry and businesses … EPA guidance if needed", they emphasised their intention to carry on environmental regulatory activities in accordance with their internal business continuity plans.

As the statement notes –the EPA expects licence holders and other businesses to have business continuity plans and environmental risk management procedures in place, to be informing staff of those measures, and to be capable of informing EPA officers of those measures if asked. They noted that Pollution Incident Response Management Plans should be updated to reflect the impact of coronavirus prevention measures. While noting the EPA has discretion in how to respond to particular entities experiencing difficulties, it nonetheless emphasised its expectation of compliance.

Helpfully, the NSW has provided guidance on business continuity planning and environmental compliance. This includes encouraging businesses to consider:

• identifying alternative measures where needed to minimise risks to the environment and human health
• priority responsibilities of maintaining and operating pollution control equipment, and storing, transporting and disposing of waste appropriately
• considering other challenges such as staffing issues or disruptions to the supply chain or communications.

Similar to the NSW EPA approach, the Vic EPA has likewise emphasised that while it understands compliance is made more challenging, its expectation is that compliance will continue, and noted that businesses should have appropriate business continuity planning to manage compliance (4). The Vic EPA did note that certain emergency approvals can be sought on application and on a case-by-case basis.

A similar, albeit brief, announcement was made by the WA DWER that it was open as usual, and its expectation that licence holders would comply with their obligations and adopt business continuity plans (5).

Conclusion

The two different approaches taken by these two regulators provides a contrast in regulatory responses – the US EPA providing an assumption of relaxed obligations, whereas the NSW EPA more strongly placing the onus on business to respond and manage compliance in light of COVID-19. As always, for regulated businesses, or any businesses carrying potential for environmental incidents, it is important to understand the expectations of the regulator, including the local officers likely to be tasked with managing compliance for that region. Regardless of the approach of regulators, businesses should be including environmental compliance obligations into business continuity planning for COVID-19 and other potential disruptors, to manage their social licence for their obligations, minimise legal risks, ensure worker safety, and prevent impacts on the environment.

Please feel free to contact our team specialising in environmental regulation, if need any assistance with reviewing your pollution incident response management plans or business continuity plans, in light of COVID-19.

[1] https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf

[2] https://thehill.com/policy/energy-environment/489753-epa-suspends-enforcement-of-environmental-laws-amid-coronavirus

[3] https://www.epa.nsw.gov.au/licensing-and-regulation/licensing/environment-protection-licences/guide-to-licensing/epa-response-to-covid-19

[4] https://www.epa.vic.gov.au/about-epa/news-media-and-updates/coronavirus-and-business-responsibilities

[5] https://dwer.wa.gov.au/covid19-update