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EPA OFFERS COVID-19 ENFORCEMENT RELIEF
March 27, 2020


Recognizing the potential that COVID-19 workforce shortage may have on environmental reporting and compliance, yesterday, the U.S. Environmental Protection Agency (EPA) released , a “temporary policy” outlining the EPA’s intent to exercise enforcement discretion to limit, and in some instances eliminate, civil penalties for certain categories of noncompliance with environmental legal obligations caused by the COVID-19 pandemic.  The following summary is not a replacement for the temporary policy, available at:  https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf.  Entities interested in learning more are encouraged to review the temporary policy or contact their lawyer.     

The temporary policy does not relieve any entity from the responsibility to prevent, respond to or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste and other pollutants, as required by federal law.  Nor does it reflect a willingness of the EPA to exercise enforcement discretion in the wake of such a release. The policy does not apply to imports, especially pesticide products targeting the coronavirus. The temporary policy similarly does not apply to activities under corrective actions or response actions under the Resource Conservation and Recovery Act Resource Conservation (RCRA) or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). Nor does it apply to criminal violations or conditions of probation in criminal sentences. 

Instead, the temporary policy provides that if compliance with more routine monitoring and reporting obligations is not reasonably practicable, entities should:

  1. Act responsibly to minimize the effects and duration of COVID-19 caused noncompliance
  2. Identify the specific nature and dates of noncompliance
  3. Identify how COVID-19 caused the noncompliance, the decisions and actions taken in response and the best efforts used to comply at the earliest opportunity
  4. Return to compliance as soon as possible
  5. Document items a-d

The temporary policy instructs regulated entities to look to existing procedures – such as applicable permits, regulations or settlement documents to report noncompliance. In the event of noncompliance, the regulated entities are also to retain the documentation described above and present it to the EPA or authorized states or tribes, if requested. 

The categories subject to the temporary policy are:

Routine Compliance Monitoring and Reporting by Regulated Entities 
The EPA’s temporary policy recognizes that during the pandemic, performance of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification may be constrained. As such, the EPA does not expect to seek penalties for violations of these routine obligations where EPA agrees that COVID-19 was the cause and the entity provides supporting documentation to the EPA upon request. Not all obligations are excused, and the temporary policy encourages alternative “compliance” efforts, such using the EPA’s approved electronic reporting mechanisms or emailing submissions where paper originals are required. “Catch-up” monitoring and reporting is unlikely to be required, but the EPA will expect regulated entities to take reasonable measures to resume compliance, such as conducting late monitoring or submitting late reports, especially for bi-annual or annual obligations. 

Settlement Agreements and Consent Decree Reporting Obligations and Milestones
The EPA intends to treat routine compliance monitoring, testing, sampling, laboratory analysis and associated reporting and compliance obligations required by EPA administrative settlement agreements like routine monitoring and reporting described above and does not intend to seek stipulated or other penalties for non-compliance. The EPA will coordinate with the U.S. Department of Justice (DOJ) to exercise enforcement discretion for similar routine obligations in a consent decree. Courts, which retain jurisdiction of consent decrees, may exercise their independent authority. Force Majeure provisions in consent decrees may also offer entities some relief from routine obligations adversely affected by COVID-19.    

Facility Operations
The temporary policy directs entities that experience an acute risk of imminent threat to human health or the environment or failures in air emission control or wastewater or waste treatment control to contact the appropriate implementing authority. If the authority is an authorized state or tribe, entities are also encouraged to consult with the EPA regional office. Where the EPA is the implementing agency, the EPA’s focus will be on minimizing or preventing the acute or imminent threat with a goal of returning to compliance as quickly as possible. 

Under the temporary policy, the EPA will exercise enforcement discretion to not penalize generators of hazardous waste or animal feeding operations that, due to COVID-19 pandemic disruptions, are unable to transfer waste or animals, respectively, off-site within the time periods specified by applicable laws.   For example, the classification of an entity as generator will not change to a treatment, storage and disposal facility, nor will the classification of a very small quantity generator change even if the amount of hazardous waste stored on the site exceeds the regulatory volume thresholds due to the inability to ship hazardous waste off-site. 

Public Water Systems Regulated Under the Safe Drinking Water Act
The temporary policy acknowledges the heightened responsibility public water systems have to protect public health and the important role access to clean water plays in the response to the COVID-19 pandemic. As such, the EPA expects normal operation and maintenance of these systems and laboratory testing. Recognizing, however, that workforce shortages may arise, especially with laboratory capacity, the EPA has identified tiers of compliance monitoring:  highest priority is to be given to microbial pathogen monitoring, nitrate/nitrite and Lead and Copper rule monitoring, followed by contaminants for which a system has been noncompliance. The EPA will consider the role of the COVID-19 pandemic when determining if enforcement response is appropriate for any noncompliance of a public water system.

Critical Infrastructure 
Facilities that are deemed to be an “essential critical infrastructure”, as determined by guidance issued by the Cybersecurity and Infrastructure Security Agency, may be able to obtain a short term “No Action Assurance” with conditions to protect the public. The EPA’s Office of Enforcement and Compliance Assurance will determine, on a case by case basis, if such a no action assurance is in the public interest. 

Timing: 

The temporary policy applies retroactively to March 13, 2020, and continues until terminated by the EPA. The EPA will provide seven days’ advance notice of the termination of this policy. During this period, the EPA will apply this policy to any non-compliance subject to the policy. This policy will continue to apply to any such non-compliance that occurs during this period, even after the termination of this policy. 

To discuss this or other related issues, contact Chad Baker at (801) 536-6705 or send an email to cbaker@parsonsbehle.com or contact Michael Zody at (801) 536-6818 or send an email to mzody@parsonsbehle.com.