Law and Legal
The federal Environmental Protection Agency has issued a Memo announcing that it will temporarily exercise enforcement discretion for certain violations where the non-compliance was a result of the COVID-19 pandemic.
EPA’s enforcement discretion policy which is retroactive to March 13th applies to civil violations that occur during the COVID-19 pandemic. It does not apply to intentional criminal violations of law. The policy also does not pertain to remedial activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments. EPA will address these matters in separate communications.
The temporary enforcement discretion policy does relieve any entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants as required by federal law.
The policy addresses different categories of noncompliance differently. For example, the EPA will not 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. However, the agency expects operators of public water systems to continue to ensure the safety of our drinking water supplies.
During the COVID-19 crisis, EPA said it will focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment.
The policy describes the general steps that regulated facilities should take to qualify for enforcement discretion for civil violations.
- Entities should make every effort to comply with their environmental compliance obligations.
- If compliance is not reasonably practicable, facilities with environmental compliance obligations should:
a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
b. Identify the specific nature and dates of the non-compliance;
c. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
d. Return to compliance as soon as possible; and
e. Document the information, action, or condition specified in items (a) through (d).
The policy then discusses requirements for specific categories of non-compliance.
Administrative Settlements- If parties to an EPA administrative settlement agreement anticipate missing enforceable milestones or obligations set forth in these documents as a result of COVID-19, EPA said they comply with the notice procedures set forth in the agreement, including notification of a force majeure where applicable. The notification should provide the information required by the agreement. EPA staff will review these notifications and may contact a party to seek adjustments to a proposed plan of action, pursuant to the agreement.
Consent Decrees- Parties to judicial consent decrees are advised to comply with the notice procedures set forth in the consent decree, including notification of a force majeure where applicable for any noncompliance alleged to be caused by COVID-19. EPA staff will coordinate with U.S. Department of Justice (DOJ) to exercise enforcement discretion for stipulated penalties for the routine compliance obligations. However, EPA cautioned that courts retain jurisdiction over consent decrees and may exercise their own authority.
EPA said parties should proceed as proposed in their notice to the EPA (and to DOJ for consent decrees) unless and until contacted by the agency (if an EPA administrative settlement) or DOJ (if a judicial consent decree).
Hazardous Waste Generators
If a facility is a generator of hazardous waste and is unable to transfer the waste off-site due to disruptions caused by the COVID-19 pandemic within the time periods required under RCRA to maintain its generator status, EPA said the facility should continue to properly label and store such waste and take the general steps identified above.
If these general steps are met, the EPA will, as an exercise of enforcement discretion, treat such entities to be hazardous waste generators, and not treatment, storage and disposal facilities. In addition, the EPA will continue to allow Very Small Quantity Generators and Small Quantity Generators to retain their status even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold due to the generator’s inability to arrange for shipping of hazardous waste off of the generator’s site due to the COVID-19 pandemic.
Failure of Pollution Controls–
If a facility suffers from failure of air emission control or wastewater or waste treatment systems, or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases, the facility should notify the implementing authority as quickly as possible. The notification also should include the following information:
- pollutants emitted, discharged, discarded, or released;
- comparison between the expected emissions or discharges, disposal, or release and any applicable limitation(s); and
- the expected duration and timing of the exceedance(s) or releases.
The EPA will consult with authorized states or tribes, as applicable, in accordance with the July 11, 2019 memorandum on “Enhancing Effective Partnerships Between EPA and States in Civil Enforcement and Compliance Assurance Work” to determine the appropriate response.
Where the EPA implements the program directly, the EPA will evaluate whether the risk posed by the exceedance, disposal, or release is acute or may create an imminent threat to human health or the environment.
Facility Non-Compliance Posing Acute Risks or Imminent Threats
EPA said it expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment. However, if facility operations are impacted by the COVID-19 pandemic and the non-compliance may create an acute risk or an imminent threat to human health or the environment, the facilities should contact the appropriate implementing authority (EPA region, authorized state, or tribe). Even where a facility is located in an authorized state, EPA strongly encourages facilities and states to consult with their EPA regional office about the non-compliance that poses a potential for acute risks and imminent threats.
When EPA becomes aware of noncompliance that could result in an acute risk or an imminent threat to human health or the environment, the memo says EPA will act as follows.
- In authorized states, EPA will first consult with the state or tribe to determine if the state-issued permit or regulations have provisions that address the situation and result in a return to compliance.
- Where EPA administers the regulatory program, the agency will take the following actions:
a. The EPA regional office will evaluate whether an applicable permit, statutory, or regulatory provision addresses the situation;
b. If there is no permit/regulatory provision that addresses the situation, the EPA will work with the facility to minimize or prevent the acute or imminent threat to health or the environment from the COVID-19-caused noncompliance and obtain a return to compliance as soon as possible;
c. EPA will inform the relevant state or tribe of any acute threats and actions taken in response to the noncompliance; and
d. The EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.
EPA indicated that absent exigent circumstances, it would not require facilities to “catch-up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For other monitoring or reports, such as those required on a bi-annual or annual basis, the EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports when the policy is no longer in effect.
In screening cases for referral to DOJ for potential criminal violations, EPA said it will distinguish violations that facilities know are unavoidable as a result of COVID-19 restrictions from violations that are the result of an intentional disregard for the law. EPA indicated its Criminal Investigative Division would remain vigilant and is prepared to pursue violators who demonstrate a criminal intent.
Finally, EPA said it may provide additional enforcement guidance applicable to specific regulatory programs on an ongoing basis. The agency also reminded the regulated community that the EPA’s self-disclosure program remains available for violations that are voluntarily reported .
Coronavirus Resource Guide – March 20, 2020 by Margaret Wood – “This is intended as a guide to laws, regulations and executive actions in the United States, at both the federal and the state level, and in various countries with respect to the new coronavirus and its spread. We are also including links to Congressional Research Service (CRS) reports that provide information to Congress about the novel coronavirus. In addition, we provide links to relevant federal agency websites. We intend to update this guide on at least a weekly basis for the immediate future.”
Perry, Ronen, The Law and Economics of Online Republication (March 10, 2020). Iowa Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3552301
“Jerry publishes unlawful content about Newman on Facebook, Elaine shares Jerry’s post, the share automatically turns into a tweet because her Facebook and Twitter accounts are linked, and George immediately retweets it. Should Elaine and George be liable for these republications? The question is neither theoretical nor idiosyncratic. On occasion, it reaches the headlines, as when Jennifer Lawrence’s representatives announced she would sue every person involved in the dissemination, through various online platforms, of her illegally obtained nude pictures. Yet this is only the tip of the iceberg. Numerous potentially offensive items are reposted daily, their exposure expands in widening circles, and they sometimes “go viral.”
This Article is the first to provide a law and economics analysis of the question of liability for online republication. Its main thesis is that liability for republication generates a specter of multiple defendants which might dilute the originator’s liability and undermine its deterrent effect. The Article concludes that, subject to several exceptions and methodological caveats, only the originator should be liable. This seems to be the American rule, as enunciated in Batzel v. Smith and Barrett v. Rosenthal. It stands in stark contrast to the prevalent rules in other Western jurisdictions and has been challenged by scholars on various grounds since its very inception..”
Make Use Of: “If you’re new to remote working or trying to figure out how to work from home, the internet has your back. These tips, tools, and articles will help you be productive from anywhere. The Coronavirus threat has led to a surge in the number of people working from their homes. It’s not a normal environment for many, but hey, remote working isn’t a new concept. People have been doing it for a long time, and you can draw upon their experience and advice. In fact, even if you have been a non-office worker for some time, you can still gain a lot from the new tools and tips cropping up in the wake of this outbreak.
The WFH Manual is a newly put-together website aimed at helping those who have no prior experience of remote working. It aims to get the best guides on the web, robust tool and resource kits, and it also highlights the best tweets. Since the outbreak, experienced remote workers have been sharing many of their best tips and tricks through Twitter. From setting up workstations to forming productive habits and routines, the WFH Manual has curated insightful tweets and threads. The page only has the first tweet in the chain, so make sure you click to read the full thread and check comments from other users for additional tips. WFH Manual has two other sections: Practices and Resources. In Practices, you’ll find articles and guides by both managers and employees about working remotely and staying productive. Resources focuses on app curation and software stashes, along with a few tweets gathering recommendations for apps…”
- How to practice social distancing, from responding to a sick housemate to the pros and cons of ordering food.
- How people cope and create new customs amid a pandemic.
- What it means to contain and mitigate the coronavirus outbreak.
- How much of the world is likely to be quarantined?
- Donald Trump in the time of coronavirus.
- The coronavirus is likely to spread for more than a year before a vaccine could be widely available.
- We are all irrational panic shoppers.
- The strange terror of watching the coronavirus take Rome.
- How pandemics change history.
The New York Times: Your Money: A Hub for Help During the Coronavirus Crisis – “If your income has fallen or been cut off completely, we’re here to help. This guide will connect you to the basic information you’ll need to get through this, including on government benefits, free services and financial strategies.”
Law in the Time of COVID-19 / Mary Whisner – “This guide collects resources to support Law in the Time of Coronavirus (LAW 599, a special topics class offered Spring 2020) and to inform anyone interested in the wide array of legal issues related to COVID-19. Because of limitations on visiting libraries in person, the guide emphasizes resources that are available online. Some resources are limited to UW users. Bloomberg Law, Lexis, and Westlaw are licensed only for the UW Law community…”
Outside – How to recreate responsibly and safely through the COVID-19 pandemic: ““This disease is hyper-infectious; we haven’t seen anything like it in recent history,” says Global First Ladies Alliance Cora Neumann, who is advising Montana state heath authorities on their handling of the COVID-19 crisis. “We need to flatten the curve,” she says. By slowing the rate of infections, we can avoid overwhelming our nation’s healthcare system. The slower the rate at which people become infected and are hospitalized, the lower the fatality rate will be. Doing that requires the participation of every American. Even if you don’t have symptoms, you can spread the disease to others. That’s why we’re all being told to stay at home and stay at least six feet from other people if we must go out. The trouble is, staying indoors can get really boring, really fast. And, with layoffs and offices closures, many of us are choosing to spend time outdoors. That’s already leading to problems. Los Angeles just closed hiking trails and other outdoor areas due to overcrowding, and many National Parks are closing their gates for the same reason. Many areas of the country are also seeing local parks, beaches, and trails overwhelmed with visitors. “Your behavior can saves lives,” Neumann emphasizes. Here’s her advice…”
The New York Times – “More than 1,200 health care workers have used a private online document to share their stories of fighting the coronavirus pandemic on the front lines. In their accounts, they say the outbreak has turned American hospitals into “war zones.” They talk about being scared to go to work and anxious that they will become infected. They describe managers who seem to not care about their plight. “But we show up and have to keep showing up,” one nurse wrote, “and we have to test ourselves.” The document was created on March 19 by Sonja Schwartzbach, a nurse in New Jersey who is studying as a doctoral student. She said she had started compiling the accounts after she determined that hospital conditions were “far worse” than most people realized and that her fellow health care workers needed a place to share what they were seeing. “There was such desperation,” she said in an interview. “And it wasn’t being adequately addressed in the news media.” Ms. Schwartzbach, 34, asked contributors to provide their accounts anonymously, so that they could be candid without fear of losing their jobs. “There’s also a history within nursing of retaliation,” she said. At the top of the document, Ms. Schwartzbach made an appeal to anyone in the field who had something to contribute: “This isn’t a polite request: This is an urgent demand. Tell me your story. Share your situations. I understand that it can feel challenging to be candid as a health care provider, but this is the difference between life and death.”
Ms. Schwartzbach said she had created a Google document titled “Covid-19: Mission for Masks” after fielding hundreds of messages from nurses and physicians on Instagram, where she has more than 47,000 followers…”
Federal Workforce Statistics Sources: OPM and OMB – Julie Jennings, Senior Research Librarian; Jared C. NagelSenior Research Librarian – Updated March 25, 2020 – “This report describes online tools, reports, and data compilations created by the Office of Management and Budget (OMB) and the Office of Personnel Management (OPM) that contain statistics about federal employees and the federal workforce. The report also describes key characteristics of each resource and briefly discusses selected methodological differences, with the intention of facilitating the selection of appropriate data for specific purposes. This report is not intended to be a definitive list of all information on the federal workforce. It describes significant and recurring products that contain data often requested by Members or congressional staff.”
Fortune: “IBM and its subsidiary, The Weather Channel, have created an online map that tracks the spread of U.S. coronavirus cases. The new map, which debuted nationwide on Wednesday after a few days of testing, shows a state-by-state and county-by-county breakdown of confirmed COVID-19 cases and related deaths. People can see specific information from their counties that includes the percentage increase of new COVID-19 cases from the previous week and a graph detailing the daily progression of new cases and deaths. The service, which can be accessed from the Weather Channel’s website or mobile app, also features safety tips from the World Health Organization and the Centers for Disease Control and Prevention, as well as news articles. Cameron Clayton, the general manager of IBM Watson Media & Weather, said his team gathered data from state and local governments. To do so, the Weather Channel staff used software that scans government websites for information, like updated COVID-19 cases and fatalities…”
Access to these Washington Post updates is free – Live updates: Confirmed coronavirus cases approach 500,000 worldwide; Senate passes stimulus, but new U.S. jobless claims shatter decades-old record – “Much of the world’s population is now living under some sort of coronavirus-related restrictions as the total number of confirmed cases worldwide approaches 500,000. In Washington, the Senate unanimously passed a $2 trillion emergency relief package late Wednesday [H.R. 748 – Middle Class Health Benefits Tax Repeal Act of 2019], concluding a grim day in which health departments around the country reported more than 200 coronavirus-related deaths. Meanwhile, the weekly U.S. tally of new jobless claims was historically bleak, with a record 3.3 million Americans filing for unemployment benefits. That shattered the old record of 695,000, set in 1982. Here are some significant developments…”
Note – the link to the full text of the House bill – H.R. 6321 – Financial Protections and Assistance for America’s Consumers, States, Businesses, and Vulnerable Populations Act is here
Politico – “The 69-page document [embedded in this article], finished in 2016, provided a step by step list of priorities – which were then ignored by the administration. “The strategies are among hundreds of tactics and key policy decisions laid out in a 69-page National Security Council playbook on fighting pandemics, which POLITICO is detailing for the first time. Other recommendations include that the government move swiftly to fully detect potential outbreaks, secure supplemental funding and consider invoking the Defense Production Act — all steps in which the Trump administration lagged behind the timeline laid out in the playbook.
“Each section of this playbook includes specific questions that should be asked and decisions that should be made at multiple levels” within the national security apparatus, the playbook urges, repeatedly advising officials to question the numbers on viral spread, ensure appropriate diagnostic capacity and check on the U.S. stockpile of emergency resources.”…
“Each section of this playbook includes specific questions that should be asked and decisions that should be made at multiple levels” within the national security apparatus, the playbook urges, repeatedly advising officials to question the numbers on viral spread, ensure appropriate diagnostic capacity and check on the U.S. stockpile of emergency resources.
The Bee Is Declared The Most Important Living Being On The Planet – “Earthwatch Institute concluded in last debate of Royal Geographical Society of London that bees are the most important living being on the planet, however, scientists have also made an announcement: Bees have already entered into extinction risk. Bees around the world have disappeared up to 90% according to recent studies, the reasons are different depending on the region, but among the main reasons are massive deforestation, lack of safe places for nests, lack of flowers, use uncontrolled pesticides, changes in soil, among others…”
CNET – A research group scrapes more than 500,000 Instagram profiles in Italy to see if people are abiding by the quarantine. “Your posts on social media have been harvested for advertising. They’ve been taken to build up a massive facial recognition database. Now that same data could be used by companies and governments to help maintain quarantines during the coronavirus outbreak. Ghost Data, a research group in Italy and the US, collected more than half a million Instagram posts in March, targeting regions in Italy where residents were supposed to be on lockdown. It provided those images and videos to LogoGrab, an image recognition company that can automatically identify people and places. The company found at least 33,120 people violated Italy’s quarantine orders. Andrea Stroppa, the founder of Ghost Data, said his group has offered its research to the Italian government. Stroppa doesn’t consider the social media scraping to be a privacy concern because researchers anonymized the data by removing profile and specific location data before analyzing it. He also has public health on his mind. “In our view, privacy is very important. It’s a fundamental human right,” Stroppa said. “However, it’s important to give our support to help the government and the authorities. Hundreds of people are dying every day.”..
Forbes: “The first internet streaming and usage figures are coming in as the coronavirus pandemic places a quarter of the world’s population under lockdown. As millions of people go online for entertainment and more, total internet hits have surged by between 50% and 70%, according to preliminary statistics. Streaming has also jumped by at least 12%, estimates show. While an increase is not surprising with so many people ordered to stay at home, streaming of many planned sporting and musical events is impossible as they are cancelled. They have been replaced by some stars such as Coldplay’s Chris Martin, John Legend, U2’s Bono, Yungblud and Christine & The Queens offering impromptu home concerts. Still, the largest increase comes from other movie and music streaming…”
The Verge: “Most people are currently relying on videoconferencing to keep in touch with work colleagues, family, and friends — and if they’re facing financial difficulties, free is best. While Zoom seems currently to be the most popular videoconferencing app, there are several applications out there that will allow people to meet online for free. We’ve listed here a few of the best known videoconferencing apps, along with a couple of popular text chat apps that include videoconferencing features. It’s worth noting that while most of these already have free versions, some are offering access to additional features for all those who are currently working from home or who want to check up on friends and relatives online. There are a number of apps we have not included, such as Facebook, WhatsApp, and FaceTime, that allow you to do video chats; however, they either require that all participants be members (Facebook, WhatsApp) or that you use a specific type of device (FaceTime). The following list includes more generalized applications that should allow you to participate without having to download the app (unless you’re the host). A good idea is to try one or two out for yourself to see how well they fit in with your style, and those of your friends. This list, however, is a good place to start...”
TimeOut – Take a trip through some of the world’s greatest collections on these virtual museum and gallery tours: “Our much-loved museums and art galleries may be closing their doors due to the coronavirus outbreak, but don’t despair. Tech-savvy curators are getting creative with how the public can access their collections, and many are catering to an online audience with insanely good virtual tours. Top-tier institutions around the world have vast online archives, meaning you can take a digital stroll through art history wearing just your pants (or even less if you really want). From ogling Parisian Impressionist works in the Musée d’Orsay to a lesson in ancient Greece from Athens’ Benaki Museum to a voyeuristic archive of ex-lovers’ relics at the Museum of Broken Relationships, there are some fascinating exhibitions at your fingertips – all of which are free. So pop the kettle on, settle into the sofa and gear up for some seriously enlightening self-isolation with these museums you can explore from home…”
Internet Archive Blogs: “To address our unprecedented global and immediate need for access to reading and research materials, as of today, March 24, 2020, the Internet Archive will suspend waitlists for the 1.4 million (and growing) books in our lending library by creating a National Emergency Library to serve the nation’s displaced learners. This suspension will run through June 30, 2020, or the end of the US national emergency, whichever is later. During the waitlist suspension, users will be able to borrow books from the National Emergency Library without joining a waitlist, ensuring that students will have access to assigned readings and library materials that the Internet Archive has digitized for the remainder of the US academic calendar, and that people who cannot physically access their local libraries because of closure or self-quarantine can continue to read and thrive during this time of crisis, keeping themselves and others safe. This library brings together all the books from Phillips Academy Andover and Marygrove College, and much of Trent University’s collections, along with over a million other books donated from other libraries to readers worldwide that are locked out of their libraries…”