Since the end of January, EPA has been working to expedite review and approval of disinfectants for use in disinfecting surfaces potentially contaminated with the virus.
While hospitals and other healthcare centers, transportation systems and many places of employment are understandably the focus of attention when it comes to the novel coronavirus, the intersection of the virus and environmental law should not be overlooked.
The United States Environmental Protection Agency (EPA) has established a webpage devoted to this topic, covering the regulation of antiviral disinfectants, wastewater treatment and drinking water.
Since the end of January, EPA has been working to expedite review and approval of disinfectants for use in disinfecting surfaces potentially contaminated with the virus. On March 13, 2020, EPA released an expanded list of EPA-registered disinfectant products that have qualified for use. EPA states that the list contains nearly 200 additional products―including 40 new products that went through the agency’s expedited review process. EPA advises that the products on the list have not been tested specifically against the novel coronavirus, but claims that they are expected to be effective because they have been tested and proven effective on either a harder-to-kill virus or against another human coronavirus similar to the novel coronavirus.
EPA advises that there is no need for additional measures with regard to wastewater treatment, citing the World Health Organization (WHO): “WHO has indicated that ‘there is no evidence to date that COVID-19 virus has been transmitted via sewerage systems, with or without wastewater treatment.’” EPA adds that wastewater treatment plants already treat for viruses and other pathogens, and that the novel coronavirus “is a type of virus that is particularly susceptible to disinfection. Standard treatment and disinfectant processes at wastewater treatment plants are expected to be effective.”
Again relying on the WHO, EPA recommends “that Americans continue to use and drink tap water as usual.” According to the WHO, the “‘presence of the COVID-19 virus has not been detected in drinking-water supplies and based on current evidence the risk to water supplies is low.’” Finally, EPA notes that its drinking water regulations require treatment at public water systems to remove or kill pathogens, including viruses.
On-Site Civil Inspections
One consideration not addressed by EPA on its webpage is the subject of on-site civil inspections. Just recently, EPA’s new On-Site Civil Inspection Procedures Rule became effective. This rule, promulgated in response to the president’s October 9, 2019, Executive Order 13892 titled “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication,” obviously did not contemplate the emergence of a viral pandemic. With regard to a regulated entity’s ability to turn away an inspection request, the rule itself says only the following:
§ 31.1 Procedures conducted by EPA for on-site civil inspections. (a) … (b) EPA inspections shall take place at such times and in such places as appropriate.
The preamble to the rule, however, includes this additional language:
Timing of Inspections and Facility Notification. EPA inspectors should generally conduct inspections during the facility’s normal work hours. However, there may be circumstances which require EPA inspectors to access, monitor, or observe specific operations or activities at other times. Where possible, for announced inspections, EPA inspectors shall take reasonable steps to work with the facility to agree on a workable schedule for accessing areas for the inspection. EPA inspectors have the authority to conduct, and do conduct, inspections with or without prior notice to a facility. (Emphasis added.)
While there is some anticipation of a significant reduction (perhaps to near zero) in on-site civil inspections during the current COVID-19 pandemic, to the extent that a facility is facing limitations on its ability to respond to an inspection request at any point during the arc of the pandemic, even if some months from now, consideration should be given to invoking the language above when seeking an extension.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
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