Month: February 2021

What’s Old is New Again – DOJ Returns to Pre-Trump Administration Environmental Policies

On January 20, 2021, President Biden issued Executive Order (“EO”) 13,990, an expansive directive which resets the Federal Government’s vision for implementing nearly the entire gamut of environmental programs, including the Government’s approach to the incorporation of science in decision-making; public health; air, water, and chemical regulation; enforcement; environmental justice; climate change; and natural resource protection. 

Of immediate consequence, section 2 of the EO requires that Federal agencies conduct a review of Agency actions taken between January 20, 2017, and January 20, 2021, including all existing regulations, orders, guidance documents, and policies.  Any agency action viewed as inconsistent with the broad policies outlined in EO 13,990 are to be considered for suspension, revision or recission.   

The Dept. of Justice (“DOJ”), in implementing this mandate, withdrew nine documents:

  1. “Enforcement Principles and Priorities,” January 14, 2021
  2. “Additional Recommendations on Enforcement Discretion,” January 14, 2021
  3. “Guidance Regarding Newly Promulgated Rule Restricting Third-Party Payments, 28 C.F.R. § 50.28,” January 13, 2021
  4. “Equitable Mitigation in Civil Environmental Enforcement Cases,” January 12, 2021
  5. “Civil Enforcement Discretion in Certain Clean Water Act Matters Involving Prior State Proceedings,” July 27, 2020
  6. “Supplemental Environmental Projects (“SEPs”) in Civil Settlements with Private Defendants,” March 12, 2020
  7. “Using Supplemental Environmental Projects (“SEPs”) in Settlements with State and Local Governments,” August 21, 2019
  8. “Enforcement Principles and Priorities,” March 12, 2018; and
  9. “Settlement Payments to Third Parties in ENRD Cases,” January 9, 2018.

The withdrawal of these documents has the practical effect of resetting many of DOJ’s environmental policies to those in effect under the Obama Administration.  This suggests a return to increased levels of inspections and enforcement, both civil and criminal, after a comparatively significant drop during the Trump Administration (see Table 1 below).

While this may not be welcomed news for businesses still struggling during the COVID-19 pandemic, businesses should be pleased with the return of Supplemental Environmental Projects (“SEPs”).  SEPs are environmentally beneficial projects not required by law, but that a business agrees to undertake as part of the settlement of an enforcement action.  SEPs are a popular option for both industry and regulators since it encourages projects that improve the environment that would otherwise go unfunded in exchange for a reduced civil monetary penalty.  As we reported previously, DOJ rather abruptly ended the use of SEPs in Federal enforcement actions in March of 2020, seeing it as a misdirection of funds that otherwise should be payable to the Federal Government. 

The withdrawal of DOJ’s prohibition on the use of SEPs restores this otherwise long-standing and flexible option to resolve environmental violations that can reduce a business’s pecuniary liability while bringing tangible environmental or public health benefits to local communities.   As we noted previously, Virginia has codified the availability of SEPs in Section 10.1-1186.2 of the Virginia Code.  Therefore, businesses in Virginia should not see a change in state-led enforcement actions.

Overall, however, businesses should be prepared for a renewed emphasis on environmental compliance and enforcement at the Federal level.  This could also bring increased pressure on state regulators that manage delegated environmental compliance programs, such as air, water, and hazardous waste permitting.  Consequently, now is the time to assess the current state of your business’s environmental compliance program, particularly when such programs may have struggled to remain fully effective during the pandemic. 

Businesses in need of advice on this or other compliance mattes may contact Joe Romero at (757) 446-8511, or jromero@vanblacklaw.com


Table 1: EPA enforcement for the four most recent fiscal years to the 20-year average, and periods under prior administrations

 

FY 2020 FY 2017-2020 Average (Trump)FY 2009-2016 Average (Obama)FY 2001-2008 Average (Bush)20-year Average
Civil Case Conclusions8294156189157
Civil Case Referrals81106211278217
Injunctive Relief (non-Superfund) (Millions)$2.514B$8.084B$11.92B$8.813B$9.910B
Civil Penalties$174M$603M$1.092M$159M$621M
Civil Penalties (excluding individual cases recovering more than $300 million in penalties).$174M$141M$202M$159M$173M
Criminal Polluters Charged91118226282227
Criminal Cases Opened247165297400312
Criminal Fines and Restitutions$42M$853M$312M$93M$333M
Criminal Fines and Restitutions Penalties (excluding individual cases recovering more than $1 billion in penalties).$42M$139M$146M$93M$124M
Inspections8,54410,37118,08220,13917,362
Total Superfund Money$815M$999M$2.045B$1.485B$1.612B  

(From Environmental Integrity Project, Jan. 2021)

Federal Circuit Holds CICA Stay Clock Begins at Time of Debriefing When Disappointed Offeror does not Avail Itself of Right to Ask Additional Questions

No questions, no stay. The United States Court of Appeals for the Federal Circuit recently ruled on the interplay of debriefings and automatic stays.[1]  In NIKA Technologies v. United States, the Federal Circuit reversed a Court of Federal Claims (“COFC”) decision requiring an automatic stay of contract performance pursuant to the Competition in Contract Act (“CICA”) that had been previously denied by the Government Accountability Office (“GAO”) as untimely.  31 U.S.C. § 3553(d) requires the automatic stay of contract performance when a disappointed offeror files a protest within ten (10) days of the contract award or within five (5) days of a required debriefing.  NIKA dealt with the latter of these deadlines and the impact of the DoD “enhanced post-award debriefing rights” on the stay deadline.

In the 2018 National Defense Authorization Act, Congress required the DoD to issue regulations providing for enhanced post-award debriefing rights for certain DoD procurements.  The resulting enhanced debriefing rights permit a disappointed offeror to ask follow-up questions in the two (2) business days after receiving a debriefing with the debriefing being “held open” until the government provides written responses to the questions asked.  DoD implemented the enhanced post-award debriefing rights by issuing this 2018 Department of Defense Class Deviation from the FAR.

In NIKA, the disappointed offeror filed its GAO bid protest of the Army Corps of Engineers award decision six (6) days after the agency provided a debriefing.  The contractor had elected to not ask follow-up questions in the two (2) business days after the debriefing as permitted by the enhanced debriefing rights.  The GAO found NIKA’s protest to be timely but declined to implement the CICA automatic stay of contract performance because the protest had not been filed within five (5) days after the debriefing.  To fight that decision, NIKA  brought an action at the COFC, arguing that it was entitled it to an additional two (2) days to file its protest and invoke the automatic stay because 10 U.S.C. § 2305(b)(5)(B)(vii) holds open the debriefing, requiring that “[t]he debriefing shall include . . . an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.”  Surprisingly, the COFC granted the stay even though NIKA had not taken advantage of the opportunity to submit follow-up questions.  The COFC’s decision was then appealed to the Federal Circuit, which decided to exercise its discretionary review of the COFC’s decision under the court’s “capable of repetition, yet evading review” doctrine, even though the issue was moot by that point because NIKA’s bid protest and the stay at issue had both concluded by the time of appellate review.

10 U.S.C. § 2305(b)(5)(C) and 31 U.S.C. § 3553(d)(4)(B) create an extended deadline for the CICA stay when additional questions are submitted; however, they do not address the situation wherein no questions are asked.  NIKA argued that this extension applied regardless of whether additional questions were asked.  Thus, the Court’s analysis considered whether the 2-day window afforded by the DoD post-award enhanced debriefing rights and the 5-day window for the CICA automatic stay run concurrently or consecutively in such cases.  In its analysis, the Court looked to both statutes, focusing on the enhanced post-award debriefing rights section of the former which provides that “[t]he agency shall not consider the debriefing to be concluded until the agency delivers its written responses.”  The Court held that Congress’s express extension for cases wherein the protester asks additional questions implies that no such extension exists when the protestor does not elect to ask questions.

The lesson learned is that if disappointed offerors wish to avail themselves of additional time to consider and file a protest while still obtaining the benefit of the automatic CICA stay, they must ask additional questions within two (2) business days of a debriefing.

Vandeventer Black’s Government Contracts attorneys can answer your questions about protest timeliness or other government contracting issues.


[1] In another recent article, we discussed protest timeliness in procurements where the FAR does not mandate debriefings be conducted if requested.

OSHA Issues COVID Guidance

The federal Occupational Safety and Health Administration (“OSHA”) recently released Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (“OSHA Guidance”). The OSHA Guidance is similar to the Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19 (“Virginia Standard”) recently approved by the Virginia Occupational Safety and Health (“VOSH”) Program. This firm previously wrote about the Virginia Standard.

The OSHA Guidance is only guidance, not law; its “recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.” Although the OSHA Guidance is not a new OSHA standard, some aspects are driven by existing OSHA standards. The Virginia Standard, by contrast, is mandatory for all work sites under VOSH’s jurisdiction. In other words, an employer can be cited for violation of the Virginia Standard, but not for violation of the OSHA Guidance. The employer could be cited, however, for violation of an existing OSHA standard on which the OSHA Guidance is based.

As a reminder, whether OSHA or VOSH have jurisdiction depends on the location of the work that is being performed in Virginia. A job site on federal property or premises, or on the waterfront, is governed by the OSHA Guidance. All other Virginia work locations are governed by the VOSH Standard.

Apart from this key difference, the OSHA Guidance echoes the Virginia Standard to such an extent that it appears OSHA was influenced by Virginia’s groundbreaking approach to COVID safety. Both advise that businesses assign an employee or employees to coordinate COVID prevention efforts and implement commonsense prevention methods: physical distancing, face coverings, barriers where physical distancing is not feasible, improved ventilation, use of personal protective equipment when necessary, handwashing and hand sanitizing, good hygiene, and routine cleaning and disinfection. Some key highlights of the similarities and differences between the Virginia Standard and the OSHA Guidance are noted below.

The Virginia Standard’s infection prevention planning has differing requirements based on whether an employee’s work is classified as very high, high, medium, or lower exposure risk. The OSHA Guidance makes no distinction.  Both make specific recommendations for workplace airflow management.  The Virginia Standard goes a step further by detailing employer vehicle usage requirements.

The Virginia Standard sets forth detailed COVID infection reporting requirements, while the OSHA Guidance relies on its existing illness/injury recording requirements.  Neither the Virginia Standard nor the OSHA Guidance requires or recommends that COVID testing be used as a prerequisite for an infected employee’s return to work. Both instead rely on the passage of time: for an asymptomatic employee, ten days since the positive test, and for a symptomatic employee, 24 hours without a fever, ten days since symptom onset, and improvement in respiratory symptoms.

Finally, both the Virginia Standard and OSHA Guidance emphasize the importance of employee training to prevent disease transmission.

Whether you have job sites that are  subject to OSHA or VOSH jurisdiction, or both, Vandeventer Black can assist you with safety compliance and responding to government safety inspections and citations.

Don’t be a victim of an ADA drive-by!

This past year marked the 30th Anniversary of the Americans with Disabilities Act (ADA). The Act was signed into law on July 26, 1990. The Act is a civil rights law that promotes the inclusion of people with disabilities in every aspect of life, including existing buildings and facilities.  Under Title III, the Act defines “Public Accommodations” as a private entity that owns, leases, or leases to, or operates a “place of public accommodation.”  More specifically, a place of public accommodation is a private facility whose operations affect commerce and fall within at least one of 12 categories listed in Title III. Persons with disabilities are to be provided accommodations and access equal or similar to that available to the general public.  Services may be provided through the removal of “physical barriers” or “equal facilitation” as defined by the Act.

What most Owner’s are not aware of and are frequently alarmed to discover is that the responsibility to remove architectural barriers (steps, railings, steep grades on walks, lack of ramps…etc.) and communication barriers in existing “public accommodations” (with certain exceptions) has been their responsibility since the ADA’s adoption and then becoming effective in 1992. Moreover, ignorance of the Act and its requirements are no defense, and there is no grandfathering of any sort for facilities built before or after the enactment of the ADA, as these barriers were to have been removed as of 1992 so long as doing so was “readily achievable.”

Compliance was initially conducted exclusively by Department of Justice personnel through spot inspections. Those efforts gradually waned due to cost and inadequate manpower. However, Title III allows anyone with a disability, which is defined broadly as any physical or mental impairment that substantially limits one or more major life activities, and includes persons who have a past history or record of such impairments, and even persons who are simply perceived by others as having such impairments, to file a claim with the Court. And because Title III permits the prevailing party to recover their attorneys’ fees (which many times includes expert fees), such civil enforcement by what in slang terminology has become known as “drive-by” accessibility complaints has become commonplace.

Critics object to the potential profit-generating aspect of such actions, but – bottom line – owners are either in compliance with the ADA requirements or not; and not being in compliance violates the act and places owners at-risk for the monetary obligation. Moreover, compliance with the Act has numerous benefits, including demonstrating concern for the well-being of disabled persons, which can lead to varied positive results for business owners. For these reasons, it behooves all property owners to initiate proactive actions to assess, identify, and, as readily achievable, address any areas of non-compliance. The attorneys at Vandeventer Black are knowledgeable about ADA compliance matters such as these and available to assist property owners with their assessments, planning, and compliance actions. For more information about this topic, contact the author or any of the other attorneys in our law firms Construction and Government Contracts Practice Group.

DEQ Releases Draft Climate Change Chesapeake Bay Preservation Area Management Regulations

On January 21, 2021, the State Water Control Board (“Board”) published draft amendments to the Chesapeake Bay Preservation Area Designation and Management Regulations that would require localities to incorporate coastal resilience and climate change adaptation into local land use ordinances. 

This draft regulation implements amendments to the Chesapeake Bay Preservation Act (“CBPA”) passed during the 2020 General Assembly which requires local governments add consideration of “coastal resilience and adaption to sea-level rise and climate change” to local Chesapeake Bay Preservation Area land use ordinances, and specifically any proposed land development in CBPA Resource Protection Areas (“RPAs”).  RPAs are regulated waterbodies and associated corridors of environmentally sensitive land that lie alongside or near the shorelines of streams, rivers and other waterways which drain into the Chesapeake Bay, including a buffer of land within 100 feet of these features.  In their natural condition, RPAs protect water quality, filter pollutants from stormwater runoff, reduce the volume of stormwater runoff, prevent erosion, and perform other important biological and ecological functions. 

The draft regulation would require local governments consider future floodplain, water level, storm surge, or other climate impacts that could be affected by development or activities within the RPA.  It would require consideration of a potential impact range of no less than 30 years, and the use of modeling or forecasting that incorporates National Oceanographic and Atmospheric Administration’s 2017 Intermediate-High sea level projection.

The proposed regulation would prohibit local governments from granting exceptions to RPA development limits where the plans for that activity did not consider the impacts of climate change, including sea level rise, and would prohibit development within the seaward 50 feet of the RPA.

The regulation provides additional criteria local governments must consider in permitting climate change adaptation activities within RPAs.  These criteria require the incorporation or preservation of vegetation and trees, minimization of impervious land cover, and minimization of land disturbance.   These criteria also favor living shoreline projects that maintain or establish a vegetative buffer inland of the living shoreline to the maximum extent practicable.

The proposed regulation would result in increased scrutiny for any proposed activity within a CBPA RPA especially for proposed development within the 50-foot seaward portion.  Moreover, developers and landowners may face increased costs associated with the preparation of a climate change analysis, and will face increased pressure to incorporate design features that are more sustainable and improve the development’s long-term resiliency.    

Local governments would have three years to implement changes to their local ordinances after the regulation becomes final.  At this stage of the regulation’s development, the Board is seeking public comment, which will open 2/1/2021 through 5/3/2021. 

The Proposed Regulations, to be codified at 9VAC25-830-155, can be found online.

Comments may be submitted to Justin Williams, VA Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218; Phone: 804-698-4195; Fax: 804-698-4116; Email: Justin.Williams@deq.virginia.gov. Comments may also be submitted through the Public Forum feature of the Virginia Regulatory Town Hall web site.

Businesses and property owners with questions regarding this proposed regulation may contact Joe Romero at (757)446-8511, or jromero@vanblacklaw.com.

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