Few decisions address force majeure provisions within United States Environmental Protection Agency (EPA) consent decrees, and Agency documents provide limited guidance. Nevertheless, available information provides some meaningful insight on how to act if a party to a consent decree believes impacts from COVID-19 could prevent them from complying with existing consent decrees. That party, in consultation with legal counsel, should do the following:
(1) Immediately review force majeure provisions in consent decrees related to sites where there are concerns about maintaining compliance during the pandemic;
(2) Remain in contact with contractors and agents to understand how issues they may be experiencing may impact compliance with consent decree requirements;
(3) Strictly follow all notice requirements in those consent decrees to properly raise the force majeure defense with EPA;
(4) Provide all required supporting information and evidence to EPA in a timely manner;
(5) Continue to make diligent efforts to ensure compliance wherever doing so would be safe, until EPA makes a force majeure determination and grants an extension for compliance; and
(6) Maintain communication with EPA regarding any extension and comply with all new Agency directives related to the extension.
1. EPA Model Language In Consent Decrees on Remedial Design/Remedial Action
A. Definition of "Force Majeure"
EPA consent decrees with settling defendants (“SDs”) typically follow the Agency’s model language. The model definition of “force majeure” appears to be fairly flexible to account for diverse circumstances (including, potentially a pandemic), but that flexibility hinges on SDs being attentive and diligently responding to potential problems that could prevent full compliance with consent decree requirements.
EPA defines “force majeure” as “any event arising from causes beyond the control of SDs, of any entity controlled by SDs, or of SDs’ contractors that delays or prevents the performance of any obligation under this CD despite SDs’ best efforts to fulfill the obligation. The requirement that SDs exercise ‘best efforts to fulfill the obligation’ includes using best efforts to anticipate any potential force majeure and best efforts to address the effects of any potential force majeure (a) as it is occurring and (b) following the potential force majeure such that the delay and any adverse effects of the delay are minimized to the greatest extent possible. ‘Force majeure’ does not include financial inability to complete the Work or a failure to achieve the Performance Standards.”1
B. Model Provisions on Invoking Force Majeure
Based on EPA’s previously mentioned model consent decree, SDs must follow specific procedural requirements to invoke the force majeure defense. Model language provides that “[i]f any event occurs or has occurred that may delay the performance of any obligation under this CD for which SDs intend or may intend to assert a claim of force majeure, SDs shall notify EPA’s Project Coordinator orally or, in his or her absence, EPA’s Alternate Project Coordinator or, in the event both of EPA’s designated representatives are unavailable, the Director of the Waste Management Division, EPA Region __, within [insert period of time] of when SDs first knew that the event might cause a delay.”2 Additionally, model language states that “SDs shall be deemed to know of any circumstance of which SDs, any entity controlled by SDs, or SDs’ contractors or subcontractors knew or should have known.”
The model provisions also provide that shortly after this notice, SDs must provide in writing to EPA a detailed explanation and description of “the reasons for the delay; the anticipated duration of the delay; all actions taken or to be taken to prevent or minimize the delay; a schedule for implementation of any measures to be taken to prevent or mitigate the delay or the effect of the delay; SDs’ rationale for attributing such delay to a force majeure; and a statement as to whether, in the opinion of SDs, such event may cause or contribute to an endangerment to public health or welfare, or the environment. SDs shall include with any notice all available documentation supporting their claim that the delay was attributable to a force majeure.” Failure to follow these requirements will preclude SDs from asserting any claim of force majeure regarding the event at issue, though EPA may excuse untimely and incomplete notices.3
If EPA agrees that the event at issue is force majeure, the Agency will grant an extension of time for performance of obligations under the consent decree. In doing so, EPA will provide written notice to SDs of the duration for the extension. An extension granted for certain provisions due to a force majeure event will not, on its own, extend other deadlines in a consent decree. If EPA issues a decision disagreeing with SDs on the force majeure question, SDs may invoke dispute resolution procedures within 15 days of that decision. SDs have the burden of demonstrating by a preponderance of evidence that the delay or anticipated delay has been or will be caused by a force majeure, the length of the delay caused by the force majeure event, and that SDs used best efforts to fulfill the compliance obligation.
A review of several consent decrees confirms that EPA currently follows this model language closely. Consent decree language will differ, however, depending on when it became effective and who drafted it. Accordingly, SDs will need to be attentive to the specific language used in each consent decree.
With respect to deadlines, SDs may be required to provide EPA with notice within 48-72 hours of becoming aware of a potential problem that may prevent full compliance, where SDs will seek to rely on a force majeure clause. For this reason, SDs will need to act quickly if they believe the current pandemic could prevent them from complying with a particular consent decree obligation or if it could prevent their contractors from providing the goods or services that SDs need to comply with consent decree requirements. In addition, based on strict deadlines, it will be important for legal counsel to be strategic in identifying and describing the force majeure event (i.e., the event you tie the force majeure defense to) and the obligations that may be impacted by the delay resulting therefrom.
A. EPA's Approach
EPA guidance is limited but sheds some light on how the Agency may approach claims under force majeure provisions in consent decrees. The Agency’s 1987 “Guidance on the Use of Stipulated Penalties in Hazardous Waste Consent Decrees” provides the following commentary related to force majeure events:
One of the most common reasons for the noncollection of stipulated penalties is the occurrence of a event. A event is one which is beyond the control of the defendant and provides the defendant with an affirmative defense to a charge of noncompliance. Since penalties do not accrue during this period, the definition of a event should be narrowly drawn and the burden placed on the defendant to show that a event has occurred. In any event, neither increased costs nor financial difficulty should constitute a event.
1987 WL 348621, at *3 (emphasis added).
While the force majeure definition in EPA’s model consent decree appears to be flexible, this guidance suggests that the Agency will seek to construe it narrowly.
B. Federal Cases
Few federal cases involve disputes between EPA and SDs over the application of force majeure clauses in a consent decree. In those cases, courts often rule against defendants for failing to comply with applicable notice requirements. Additionally, courts routinely rule in favor of EPA in disputes about whether the force majeure clause of a consent decree applies, finding EPA’s position to be reasonable. These cases are summarized below:
i. Settling Defendants Must Strictly Comply with Notice Requirements in Force Majeure Provisions
- 277 F.3d 930, 935-36 (7th Cir. 2002) (rejecting
defense because defendant failed to provide requisite notice under consent decree for Clean Water Act violation).
- 818 F.2d 1077, 1088 (3rd Cir. 1987) (rejecting force majeure defense based on 98-day labor strike where defendant failed to provide requisite notice).
- , No. CIV. 06-00140 BMK, 2007 WL 1876028, at *2 (D. Haw. June 27, 2007) (rejecting force majeure defense where defendants provided timely written notice but failed to provide timely electronic or oral notification in accordance with applicable consent decree provisions).
- , No. CIV.A.03-4625, 2006 WL 2331101 (D.N.J. Aug. 9, 2006) (refusing to review force majeure defense where defendant failed to invoke dispute resolution proceedings properly).
ii. Courts Typically Affirm as Reasonable EPA's Substantive Determinations on What Constitutes Force Majeure
- , No. C14-0829JLR, 2017 WL 6515970, at *9–10 (W.D. Wash. Dec. 19, 2017) (rejecting force majeure defense where defendant failed to “act in earnest” when doing so could have avoided the alleged third-party force majeure and, separately, for failing to comply with notice requirements).
- , 98 F. Supp. 2d 1380, 1385 (N.D. Ga. 2000) (concluding that force majeure clause in CWA consent decree did not apply to dry weather overflows caused by third-party backup in sewer system).
- , No. 2:09-CV-481, 2012 WL 1109030, at *8–9 (E.D. Va. Apr. 2, 2012) (rejecting force majeure defense because, considering the magnitude and frequency of annual to bi-annual storms, mitigating impacts from these storms was not beyond defendant’s control under CWA consent decree).
- , No. 2:07-CV-262 PPS, 2009 WL 2970385, at *9 (N.D. Ind. Sept. 14, 2009) (rejecting force majeure defense for financial hardship, where clause expressly exempted such hardship).
- , 987 F. Supp. 137, 143 (N.D.N.Y. 1997) (rejecting force majeure defense where defendant failed to comply with notice requirements and, separately, because the “computer bug” in the model causing the problem was within defendant’s control and defendant failed to show that this problem could not be overcome by its own due diligence).
- , 145 F.R.D. 432, 434–35 (E.D. Mich. 1993) (rejecting force majeure defense to consent decree air emissions requirements based on maintenance difficulties with boiler, and separately questioning whether defendant complied with notice provisions required to invoke the clause).
- , No. 84 C 6547, 1989 WL 81799, at *3, 7 (N.D. Ill. July 10, 1989) (rejecting force majeure defense because, despite good faith efforts, “‘[e]vents beyond its control’ does not include who it hires to build its environmental protection devices, what devices it chooses to implement, or on whom it decides to rely”).The Defendant failed in attempts to establish a compliant solvent recovery system pursuant to the consent decree over a 19-month period using three experts and expending $450,000.
In reported cases, courts routinely side with EPA and are quick to rule against defendants where the slightest error in notice occurs when force majeure issues are litigated. However, EPA’s agreement that the issue was the result of force majeure, or dispute resolution finding that the delay was the result of force majeure, may prevent many of these issues from being resolved by courts. To obtain favorable results on a claimed force majeure event early in the process, SDs should act diligently and take proactive compliance measures where possible to ensure that EPA does not deem them to be a contributing factor to non-compliance attributed to a force majeure. Furthermore, as stated above, SDs need to strictly adhere to all notice and procedural requirements.
The above analysis discusses agreements between private parties and the government. Force majeure issues arising in agreements between private parties present their own unique force majeure issues not addressed above. Further Firm guidance on force majeure in a crisis context can be found here and here.
1 See Exhibit A, Excerpt of EPA’s Model Remedial Design/Remedial Action Consent Decree, available for download at https://cfpub.epa.gov/compliance/models/view.cfm?model_ID=81 (last visited March 19, 2020).
2 Id. (emphasis added).
3 While the model force majeure language would prohibit any claim of force majeure if notice is not timely provided, EPA has approved variations to this language that would prevent a claim of force majeure only as to the days that notice was delayed
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