March 26, 2020
On March 26, the South Carolina Department of Health and Environmental Control (“DHEC” or “the Department”) offered automatic extensions on some deadlines companies are struggling to meet for certain environmental requirements in light of the current Pandemic. A link to the DHEC program and introduction, including discussion of automatic extensions, is included below for reference and review.
DHEC set up a new “Regulatory Compliance Assistance” process which includes an email account to receive requests for environmental regulatory relief consideration due to COVID-19 issues. Requests should be directed to firstname.lastname@example.org and DHEC will follow-up with the company no later than the end of the next business day. To make a requests, the company needs to provide a message to DHEC at the above-address regarding specific requests for regulatory relief and must include the following minimum information:
See attached document for further information.
To ensure a timely response from the Department, the message should be clear, concise and complete. DHEC is taking a case-by-case approach to most requests so that, in its view, the Department can track each request to ensure that companies receive a timely and consistent response, and to allow the Department to more readily identify trends and common issues where it may be appropriate to provide broad relief on a more general basis. DHEC is committed to direct and frequent communication with its customers and will be scheduling webinars soon to share information on requests, trends and to discuss areas where it might provide more general relief.
It is our understanding that DHEC already has identified some areas where it will be providing more general relief, and that these items include:
Extensions have been provided for asbestos personnel licenses that expire before April 29, 2020 [we are uncertain the extent of those extensions];
DHEC stresses that communication, both direct and frequent, will be the key for the Department and the regulated community to work through issues presented by this crisis.
In evaluating the use of possible enforcement discretion, the regulated entity should consider that certain affirmative defenses in regulations and other written documents that are based on an “emergency event” or “upset event” or “force majeure” conditions may need to include specific information about those events in a notice document, may need to be identified to regulatory agencies within narrow time frames and may need to be provided to specific groups or individuals within agencies. Follow-up reports may also be required. Always consult these potential requirements in addition to seeking any kind of relief that might be available by other means of agency discretion. Failure to follow a rule or permit term may result in a waiver of a potential defense. In addition, note that some environmental requirements are mandatory in their implications. Some requirements could potentially be pursued for enforcement by third-parties. The facility should evaluate these possible complications prior to relying upon any extension of a deadline or other reliance on enforcement discretion embodied in the DHEC Memo or offered in other documents.
Also, EPA has released its own guidance on enforcement discretion, dated March 26, 2020. Since many state environmental requirements originate from federally delegated programs, facilities should consult the EPA guidance document as well. We have evaluated that document in a separate analysis.
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.