EHS Management During the Coronavirus Pandemic: Proactive Measures

Margaret Anne Hill, Frank L. Tamulonis III, and Stephen C. Zumbrun

The novel coronavirus (“COVID-19”) pandemic has caused significant personal and business disruptions to virtually every aspect of life. Businesses are being challenged by the financial markets, supply chain threats, cybersecurity threats, plus questions regarding future growth, sustainability, and expansion. Understandably, the immediate focus for the business community is on the safety and welfare of employees, as well as economic survival. Notwithstanding these well-founded concerns, companies, and in particular their environmental, health, and safety (“EHS”) staffs, need to be prepared to address employees’ concerns regarding issues related to the company’s COVID-19 response and management, as well as to respond to any environmental or safety incidents, which may involve state environmental agencies or the U.S. Environmental Protection Agency (“EPA”). Simply put, companies involved in environmentally sensitive operations such as refineries, mining, chemical facilities, oil and gas production, water treatment facilities, or plant manufacturing operations, etc., need to remember that EHS personnel must still ensure compliance with EHS laws and requirements during a period when they may find themselves inundated with new COVID-19 responsibilities, or with very little staff to support their company’s EHS regulatory obligations. Below are tips for companies and their EHS managers who might find themselves operating under a “trial by fire” and with limited capacity, or who may find that they have more time on their hands until the economy bounces back from the current disruption.

    • Be informed about Employee Safety. Information on the spread, impacts, and response to COVID-19 is changing hourly. It is imperative that EHS personnel be educated with the latest information. The Center for Disease Control and World Health Organization have websites with the latest information, including symptoms, prevention and treatment, and frequently asked questions. Additionally, the Occupational Safety and Health Association (“OSHA”) has provided information and guidance on its website. EHS personnel should receive or obtain frequent updates, on an hourly basis if necessary. Also, be aware of any new directives and limitations enacted by the federal, state, and local government, which may restrict work practices or close businesses.
    • Educate your Employees about Safety. EHS updates should be regularly communicated to employees. For example, there may be new OSHA safety requirements applicable to operations, warehousing, transport, or deliveries. Any new employee safety procedures or guidelines need to be documented, and employees must receive training and applicable standard operating procedures will need to be modified. EHS managers should team with Human Resources and other company leadership to ensure that communication with employees is regular, consistent, and accurate.
    • Appoint an Emergency and Safety Management Team. In order to educate and communicate effectively with your employees, a multidisciplinary emergency and safety management team should be organized in an effort to address the impact that COVID -19 will have on operational practices, including employee health and safety, operational changes, medical and sick leave policies, non-salary shift modifications, and technological support. The EHS manager should play a central role in this Management Team.
    • Review Facility Emergency Response Plans. Most companies are required to ensure that individual plants or facilities have emergency response plans to address a wide array of environmental incidents or emergencies. In the EHS context, spill and releases of hazardous substances, employee exposures, explosions, and fires must be addressed in such plans, and there are dedicated emergency response coordinators responsible for training employees and ensuring that the plans are implemented as written and as may be required to address an emergency incident. These Emergency Response Plans should be reviewed to ensure that they are current, and that employee safety and environmental protection is a paramount goal. Given that employees may have changed job assignments (as a result of the COVID-19 outbreak), or that operations may have changed, it is imperative to revise or update these Plans, and to train employees.
    • Maintain EHS Compliance. EHS personnel will be tasked with maintaining compliance with permits and other legal requirements such as monitoring and reporting requirements during a time of great flux. In the face of reduced staff, employees working remotely, and other business disruptions, continued compliance may be challenging. EHS personnel will need to prioritize EHS obligations and must ensure that no significant events that could impact human health or the environment occur. However, EHS personnel should also be aware of exemptions and waivers that might apply. For example, the Clean Water Act; the Clean Air Act; the Resource Conservation and Recovery Act; the Safe Drinking Water Act; and the Federal Insecticide, Fungicide, and Rodenticide Act all contain waivers and exemptions for certain emergencies or acts of God. Most consent decrees contain “force majeure” clauses that forgive noncompliance with deadlines when events arise that are beyond the control of the parties. Other emergency measures enacted in response to COVID-19 may further loosen compliance requirements. For example, the Robert T. Stafford Disaster and Emergency Assistance Act, enacted on March 13, provides an exemption from the National Environmental Policy Act. State equivalent laws, such as New York’s State Environmental Quality Review Act, provide for exemptions from emergencies. EHS directors should be familiar with these exemptions and waivers and use them, if necessary.
    • Gather Resources. In addition to gathering internal sources, EHS personnel should be aware of external sources that are available to them. Many engineering and environmental consulting firms are offering COVID-19 response services. These consultants can assist companies in addressing emergency preparedness, mitigation, and responses, while also assisting with maintaining operations and compliance with legal requirements. Law firms are also tracking the latest developments and can provide assistance with a wide array of legal requirements including environmental, OSHA, and employment-related issues. EHS managers may benefit from regular consultations with outside consultants and counsel to keep abreast of the rapid changes and to prepare and implement an effective response.
    • Review EHS Compliance Management Systems. If manufacturing or any other aspect of your company’s business has slowed, then now is the time to review all applicable ESH requirements to your operations to evaluate your current compliance status. For example, are the facilities’ hazardous waste management compliance plans up-to- date, do stormwater management plans reflect all activities occurring outside the facility, have all Clean Air Act emissions reports been submitted, have all facilities evaluated their hazardous chemicals to ensure that Section 312 Tier II reports are accurate, do all facilities maintain the required safety data sheet information for releases or employee exposures. As you well know, this list can be added to with many more EHS compliance requirements. Blank Rome is well-equipped to assist your EHS Team with evaluating the status of your EHS Compliance Management Systems should the need arise.

Should you require further counsel in connection with applicable EHS requirements generally or as they may apply to the COVID-19 response, please contact Margaret Hill, Frank Tamulonis, or Steve Zumbrun.

As COVID-19 issues permeate virtually all aspects of commerce nationally and internationally, we stand ready to help. Blank Rome’s Coronavirus (“COVID-19”) Task Force includes interdisciplinary resources across every business sector from insurance recovery to HR.

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