As the cleanup begins in Florida, companies face challenges in meeting existing environmental obligations and addressing the environmental impacts of the storm.
Continuing our coverage of environmental emergency response and cleanup obligation issues in the wake of the recent natural disasters of Hurricane Harvey and, now, Irma, this LawFlash addresses some of the most common environmental questions that are likely to arise for companies and businesses in the aftermath of Hurricane Irma. The scope and magnitude of environmental issues resulting from the storms continue to evolve as the water levels recede and residents return to areas evacuated due to the storms. Over the coming months, private and public stakeholders will work collaboratively to rebuild these areas. The below Q&A sets out to provide a helpful framework and resource page for companies facing crisis management and other issues related to their environmental obligations materializing in the aftermath of Hurricane Irma.
Does Hurricane Irma Excuse Compliance with Environmental Obligations?
Question: Due to Hurricane Irma, my company is unable to meet its obligations under an environmental statute, regulation, permit, consent decree, settlement, or other agreement with the Environmental Protection Agency (EPA) and/or the Florida Department of Environmental Protection (FDEP). Does Hurricane Irma excuse compliance?
Answer: It may. Environmental laws provide exemptions, releases from liability, relaxation of substantive standards, and/or an acceleration of certain processes during times of natural disaster. Related consent decrees or settlement agreements typically contain force majeure provisions and exceptions that similarly apply to disasters or acts of God.
Notable Exceptions Under Federal Environmental Laws
Below are examples (but not a comprehensive list) of relevant exceptions to federal environmental laws that may be applicable to your company during the aftermath of Hurricane Irma.
Oil Pollution Act (OPA)
- An act of God defense. 33 U.S.C. § 2703(a).
Resource Conservation and Recovery Act (RCRA)
- EPA may issue temporary emergency permits to permitted or nonpermitted facilities to allow treatment, storage, or disposal of hazardous wastes where there is imminent and substantial endangerment to human health or the environment. 40 C.F.R. § 270.61(a).
- Generally, RCRA does not require entities to obtain permits for treatment or containment activities in response to discharges of hazardous waste, the imminent threat of a discharge to hazardous waste, or an immediate threat to human health, public safety, property, or the environment from explosive materials. 40 C.F.R. §§ 264.1(g)(8), 265.1(c)(11), 270.1(c)(3).
Clean Air Act (CAA)
- Emission restrictions for fuel-burning stationary sources during national or regional energy emergencies. 42 U.S.C. § 7410(f).
- National emission standards for hazardous air pollutants from stationary sources when in the interests of national security. 42 U.S.C. § 7412(i)(4).
- Fuel additive requirements during natural disasters that cause extreme or unusual fuel and fuel additive supply circumstances. 42 U.S.C. § 7545(c)(4)(C).
- Transportation conformity requirements during emergencies or natural disasters. 40 C.F.R. § 51.853(d).
- Certain requirements under the National Emissions Standards for Hazardous Air Pollutants for the demolition of asbestos-containing buildings when the building has been ordered torn down because it “is structurally unsound and in danger of imminent collapse.” 40 C.F.R. § 61.145(a)(3).
Clean Water Act (CWA)
- An act of God exception. 33 U.S.C. § 1321(f).
- Compliance may be excused during an upset, which means “an exceptional incident in which there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the permittee.” 40 C.F.R. § 122.41(n)(1).
- Emergencies that require expedited procedures for the processing of permit applications by the Corps of Engineers. 33 C.F.R. § 325.2(e)(4).
- Exigent circumstances regarding discharges of oil and hazardous substances do not require permits. 33 U.S.C. § 1321(c); 40 C.F.R. § 122.3(d).
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
- An act of God defense. 42 U.S.C. § 9607(b)(1).
- Emergency removal actions. 42 U.S.C. § 9604(a); 40 C.F.R. § 300.440.
- Relaxation of remedial standards if compliance “would result in greater risk to human health.” 42 U.S.C. § 9621(d)(4).
Coastal Zone Management Act (CZMA)
- Allows the president to authorize federal actions that are inconsistent with state coastal plans if the president finds it is in the paramount interest of the country, or the secretary of commerce determines it is a matter of national security. 16 U.S.C. § 1456(c).
Notable Exceptions Under Florida Environmental Laws
Below are examples (but not a comprehensive list) of relevant exceptions to Florida environmental laws that may be applicable to your company during the aftermath of Hurricane Irma.
Enforcement and Force Majeure
- Florida’s Natural Resource Damages (NRD) program specifically provides for typical “force majeure” defenses to potential liability, including specifically an “act of God” provision, defined as “an unforeseeable act exclusively occasioned by the violence of nature without the interference of any human agency.” F.S.A. § 403.727(5). The entity applying the defense has the burden of pleading and proving that the alleged violation was the sole result of the act of God. Id.
Florida Regulatory Scheme and FDEP Emergency Orders
- The Florida Administrative Code provides for emergency order provisions that can suspend and/or relax FDEP environmental regulations covering the topics of Waste Management, Air Resource Management, and Water Resource Management. See generally F.S.A. §§ 120.569(2)(n), 252.36, and 252.46.
- The FDEP’s Emergency Final Orders will generally be issued to solely address the emergencies created by the storm and should not be construed to authorize any activity within the jurisdiction of the FDEP except in accordance with the express terms of the Emergency Final Order, and do not convey any property rights or any rights or privileges other than those specified in the order itself.
- The Florida Administrative Code also allows for short-term emergency funding. See Short-Term Emergency Response, Fla. Admin. Code ch. 62-107.
Governor’s Suspension of Procedural Laws
- The governor of Florida may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of any state agency if strict compliance with the provisions of any such statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency. F.S.A. § 252.36; see also F.S.A. §§ 120.569(2)(n), 252.46.
- On September 4, 2017, Governor Rick Scott authorized each state agency to determine what, if any, regulatory statutes should be suspended in accordance with Section 252.36 of the Florida Statutes. See Executive Order Number 17-235.
FDEP Emergency Final Orders, Findings of Fact, and Conclusions of Law
- Pursuant to the governor’s Executive Order Number 17-235, which declared a state of emergency for Florida in response to Hurricane Irma, the FDEP entered Emergency Final Orders allowing for emergency authorization for (1) repairs, replacement, and certain other measures made necessary by Hurricane Irma; (2) suspension of procurement and travel statutes, rules, and orders made necessary by Hurricane Irma; and (3) deviation from permit and certification requirements at power plant facilities made necessary by Hurricane Irma.
- These emergency orders dictate the suspension of certain statutes and rules, as noted within the orders, so as to “not prevent, hinder, or delay necessary action in coping with the emergency.”
Consent Decrees and Settlements
- Most consent decrees and settlements have an “act of God” or “force majeure” provision that excuses a party from performance when the circumstances outside the control of the person make performance impossible. The provision often describes what constitutes an “act of God” or “force majeure.” A natural disaster generally creates the requisite circumstances for a party to a settlement or consent decree to claim force majeure. For example, any extreme flooding due to Hurricane Irma that prevents critical personnel from performing their jobs, makes necessary supplies unavailable, renders a company unable to contain hazardous substances, or causes other similar circumstances may constitute a force majeure or an act of God.
- Notably many force majeure provisions have notice requirements that are important prerequisites for claiming that an event delayed or impeded compliance with the consent decree or settlement.
What Do I Do If I Am Unable to Comply with My Environmental Obligations?
Question: How do I respond if my company is unable to meet its obligations under an environmental statute, regulation, permit, consent decree, or settlement with EPA and/or FDEP due to Hurricane Irma?
Answer: It is important to consult with counsel first, but counsel is likely to recommend that you contact EPA or your state environmental agency if you believe it is likely that you are unable to meet your obligations.
Steps to consider (in consultation with counsel) if your company is unable to comply with environmental obligations include the following:
- Assess and list the reason(s) that your company may not be able to meet an environmental obligation.
- Determine if the issue is an emergency that should be reported immediately. If so, you may need to contact your local law enforcement agency or state hotline.
- You may need to contact EPA and/or the relevant state environmental agency to notify it that you may be unable to meet your environmental obligations. In doing so, you should consider steps necessary to create a record of the exact nature of the problem, any steps you have taken to mitigate, and any relief requested going forward.
- You should consider mitigation to the extent possible.
- You should retain all records of the event for future investigations.
For more guidance specific to Florida law, review the following FDEP regulatory guidance concerning Hurricane Irma:
What Should I Do to Address Contamination That Has Migrated onto My Property or That Has Escaped from My Property Due to Flooding?
Question: Due to flooding, my company’s property is covered in materials that may be hazardous and/or I have solid or hazardous materials onsite that may have escaped containment. What do I do?
Answer: In consultation with counsel and after review of any applicable cleanup agreement, notify the appropriate authorities and control the release as best possible. Written reports are often advisable.
Waste to be concerned about:
- Household hazardous waste
- Asbestos-containing material
- PCBs in transformers
- Petroleum products
- Firearms and ammunition
- Waste contained in underground storage tanks
Federal: Oil spills and chemical releases may be reported to the National Response Center (NRC) hotline at +1.800.424.8802.
- Notice of any spills or releases may also be provided to the Local Emergency Planning Commission.
What Actions Have Environmental Agencies Taken in Response to Hurricanes Harvey and Irma?
Question: What actions have EPA, the Texas Commission on Environmental Quality (TCEQ), and/or FDEP taken in response to Hurricanes Harvey and Irma?
Answer: EPA, TCEQ, and FDEP have taken a number of actions in response to Hurricanes Harvey and Irma, including the following:
How We Can Help
Morgan Lewis’s environmental counseling and litigation practice has assisted many companies in helping minimize the short- and long-term fallout for clients facing environmental emergencies and associated agency investigations. We stand ready to help companies mobilize customized legal teams to contain matters through swift, thorough responses. We also manage relationships with government agencies, insurers, and public or private parties.
Please do not hesitate to contact any of the lawyers listed below if you have questions about these issues or are looking for assistance.
Drew Cleary Jordan