Goldberg Segalla’s Lauren A. Behan, an attorney in the firm’s Toxic Tort and Environmental Law practices, authored an article published by Law360 that explores the effects of the federal government shutdown on EPA compliance.

As nearly 90 percent of EPA employees are furloughed, the article, “Navigating EPA Compliance as Gov’t Shutdown Continues,” highlights key provisions of the EPA’s shutdown contingency plan, discusses the differences between “exempted” and “excepted” classifications, and offers practical advice on how to prepare for the ongoing uncertainty.

Right off the bat, Lauren says companies should expect delays in processing applications and permits, unclear compliance timelines, reduced civil inspections, limited guidance from EPA personnel regarding compliance matters, manufacturing, and importing delays for certain new chemicals, and delays in court proceedings. She also outlines some of the key points of the EPA’s contingency plan, which went into effect September 29.

• Research and publication activities are on pause unless necessary for exempted or excepted activities.
• Certain activities under the Comprehensive Environmental Compensation and Liability Act, or CERCLA — also known as the Superfund law — have ceased where there is no imminent threat to health and property.
• There is no issuance of permits, guidance, regulations or policies unless necessary for exempted or excepted activities.
• Approvals of pending state requests, such as EPA permits or water quality standards, have ceased during this time.
• Civil enforcement inspections by the EPA are halted unless necessary for exempted or excepted activities.
• There is no issuance of new grants or interagency agreements unless necessary for exempted or excepted activities.
• Communications or updates to the EPA’s website only include those necessary for exempted or excepted activities.

Lauren then explains the distinction between exempted and excepted activities under the contingency plan. Exempted activities include (1) those that are funded with unexpired appropriations where carryover funds remain unobligated, and (2) activities that are funded with appropriations that are not subject to the annual appropriations process.

“For example, the EPA’s authority under CERCLA to conduct settlement agreements with potentially responsible parties for CERCLA liability – and to then use those funds to carry out Superfund cleanup activities – would be considered exempted activities,” she says.

Excepted activities, on the other hand, are legally authorized to continue despite a lapse in appropriations. These include actions required by law (like meeting court deadlines), those implied by law (such as joint rulemaking with unaffected agencies), duties tied to the president’s constitutional powers, and activities necessary to protect life or property – such as emergency responses at hazardous Superfund sites.

While there is a good deal of uncertainty during amid the shutdown, Lauren believes it can be a valuable opportunity for companies to enhance knowledge of EPA regulations and prepare for submissions, inspections, and litigation-related matters.

“During the shutdown – and even afterward – delays and uncertainty are expected in compliance activities for regulated industries, as well as in litigation and other legal-related matters,” she says. “Companies can prepare by using this extra time to complete internal tasks and taking the necessary steps to be first out of the gate when the shutdown ends.”

READ THE FULL ARTICLE HERE (SUBSCRIPTION REQUIRED)

MORE ABOUT GOLDBERG SEGALLA’S Lauren A. Behan:

Lauren focuses her practice on representing product manufacturers, distributors, general contractors, and other businesses in toxic tort and environmental litigation. She is engaged in all stages of litigation, including preparing cases for filing; drafting motions, pleadings and briefs; conducting legal research in preparation for motion hearings; and participating in depositions, trials, and appeals. Lauren draws on experience gained while practicing civil litigation and family law.