Permit writing, rulemaking, data collection and analysis, issuing policy statements and guidance documents, holding public hearings, maintaining community liaisons and other communication with the public and, of course, conducting compliance inspections—these are some of the critical EPA functions that ground to a halt on December 28, 2018, when the Agency’s funding ran out because of the partial shutdown of the federal government. According to a Contingency Plan for Shutdown the EPA’s chief of Operations released several days later, all of the Agency’s 14,000 employees were furloughed except for about 800 individuals, who continued to work because they were either presidentially appointed and confirmed by the Senate or they perform activities that are either excepted or exempted.
Excepted activities and functions continue because they are authorized by law. Exempted functions or activities are funded with unexpired appropriations where carryover funds remain unobligated or where they are funded from sources other than appropriations, such as fees and payments. Once this source of funding runs dry, employees performing exempted activities will also be furloughed.
The EPA is an immense agency both in staff numbers and physical assets. The Agency has 134 facilities occupying approximately 8.2 million square feet. Some facilities house laboratories with ongoing research and living organisms that cannot be abandoned; therefore, essential personnel in labs have continued to do their jobs. The strategy states:
“To protect research property and stand-alone facilities, personnel will be excepted as needed to ensure critical operating requirements are not impaired. These needs are as far-ranging as ensuring the physical protection of federal property, that controlled environments (such as freezers) will function and not be damaged, that scientific instrumentation will function and not be impaired, and that lab animals, plants, and other unique test organisms will not be damaged or destroyed.”
The strategy emphasizes that excepted personnel during the shutdown are excluded from furlough “but only for the hours/days it takes them to perform their excepted activities.”
Following are additional excepted activities the strategy indicates will continue during the shutdown:
- Superfund. Sites/projects predominantly associated with the Superfund program will continue where a failure to maintain operations would pose an imminent threat to human life. There is an expectation that an EPA presence, typically an on-scene coordinator or remedial project manager, will be required. The Agency says it will evaluate more than 800 Superfund sites to determine how many meet this criterion.
- Emergency response and readiness. The EPA’s mission is to prevent, limit, mitigate, or contain chemical, oil, radiological, biological, and hazardous materials during and in the aftermath of an accident or natural or man-made disaster and provide environmental monitoring, assessment, and reporting in support of domestic incident management. The strategy states that regional offices should utilize existing procedures to maintain their phone and response on-duty, on-scene coordinator(s) to maintain and ensure prompt support of environmental emergency responses that require EPA attention and/or action. In the event of a water-related incident where the threat to human life or property is imminent, individuals from the Water Security Division emergency response team would need to return to work to assist with the EPA’s response efforts. Also, certain technical specialists from the Office of Water incident support team may need to return to work depending on the type of emergency.
- Legal and enforcement. Law enforcement personnel involved in activities designed to protect human life and property from imminent threat will be excepted for the time minimally necessary to carry out such activities. A necessarily implied authorization exists when a statute directs the EPA or a governmental entity to perform an activity during a lapse in appropriations, and nonperformance of an attorney’s support for that activity during the funding lapse would undermine implementation of the terms of the statute. For contingency planning for the shutdown in April 2011, the Department of Justice (DOJ) advised that the courts would remain, but the DOJ would request stays of some litigation and court-ordered deadlines for the duration of the shutdown. The strategy states that the EPA will support the DOJ as per the DOJ’s direction and guidance.
The strategy does not indicate which specific activities are exempted, stating:
“The Agency will assess the availability of unexpired multiple and no-year appropriations as well as funds available from other sources. If it determines there is sufficient carryover for it to be practicable for the Agency to operate for a period of time until these appropriations and funds are close to being exhausted, it will do so. The Agency would proceed with shutdown activities when there is no longer sufficient carryover for it to be practicable for the Agency to operate.”
The strategy outlines additional impacts of the shutdown as follows:
- No new obligations will be incurred apart from those supporting excepted or approved exempted activities and shutdown operations.
- Unless necessary for excepted activities or for approved exempted activities, no new obligations for contracts including the exercise of options may be entered into.
- Under existing contracts, contracting officers may not issue new work assignments, tasks, or delivery orders unless for excepted activities or approved exempted activities.
- EPA employees will not be available to make payments until the shutdown ends.
- As a general rule, recipients of funded grants and cooperative agreements can continue work on their projects. Recipients must stop work if they reach a point at which they require EPA involvement or approval.
- Travel is not permitted unless it is for excepted and exempted activities.
As noted, the EPA is a huge and very often an unwieldy and inefficient bureaucracy. Identifying which activities must be stopped, which employees must be furloughed, and which employees must continue to work is difficult enough. Resuming the Agency’s full workload at the end of the shutdown may be even more complex as decisions are made about whether to continue work that was interrupted or move on to more pressing matters. The longer the shutdown goes on, the more challenging it will be to sort out priorities and resume normal activity.