USEPA Enforcement During COVID-19 Pandemic – What You Need to Know

First and foremost, we hope this EHS Support client alert finds you and your loved ones in good health. These are very challenging times, but we will get through this pandemic and resume our normal lives.

The United States Environmental Protection Agency (EPA) released a memorandum on March 26, 2020 summarizing their temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. This temporary policy applies to the EPA’s Enforcement and Compliance Assurance Program and is retroactive to March 13, 2020. Another policy will be issued for activities that are performed under the Superfund and Resource Conservation and Recovery Act (RCRA) Corrective Action enforcement instruments.

EPA will exercise enforcement discretion for noncompliance if regulated entities take the appropriate steps outlined in the temporary policy. This policy will apply to such noncompliance in lieu of an otherwise applicable EPA enforcement response policy. It is important to note that states and tribes may take a different approach under their own authorities. EPA will assess this policy on a regular basis during the pandemic and update if necessary. Notifications will be posted at https://www.epa.gov/enforcement/enforcement-policy-guidance-publications at least seven days prior to terminating this temporary policy.

Enforcement Discretion

For civil violations, enforcement discretion is based on entities making every effort to comply with their environmental obligations. If compliance is not reasonably practicable, facilities will need to act responsibly to minimize the effects and duration of any noncompliance and maintain the necessary documentation listed in the policy. In general, the EPA will not seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where COVID-19 was the cause of the noncompliance. Also, after the policy is no longer in effect, EPA does not expect facilities to catch-up with missed compliance obligations if the monitoring or reporting requirement applies to intervals of less than three months. EPA expects facilities to resume compliance activities that are required semi-annually or annually, even if conducted or submitted late. Training, if available on-line, should continue as scheduled.

The reader should refer to Section I.C of the temporary policy if the facility is subject to a settlement agreement or consent decree. Notification requirements may apply.

EPA emphasizes that facilities should continue to manage and operate their facilities in a safe manner and protect the public and the environment. If your facility, due to the COVID-19 pandemic, may create an acute risk or an imminent threat to human health or the environment, you should contact the regulatory agency (e.g., authorized state) and EPA regional office. If this is the case, the policy describes EPA’s approach in Section I.D. The policy also describes specific situations and appropriate response actions for: 1) failure of air emission control or wastewater or waste treatment systems or other facility equipment, 2) other noncompliance events related to facility operations, 3) hazardous waste generator time frames for various compliance activities and waste quantities, and 4) animal feeding operations and concentrated animal feeding operations.

The temporary policy also addresses public water systems and critical infrastructure in Sections I.E and I.F, respectively. Worker shortages and laboratory capacity are potential problems and EPA outlines priorities in the policy. If a facility is considered an essential critical infrastructure, EPA may consider a more tailored short-term No Action Assurance. EPA will consider essential the facilities that employ essential critical infrastructure workers as determined by guidance issued by the Cybersecurity and Infrastructure Security Agency.

State Oversight

EPA believes that states should take into account the safety and health of their inspectors and facility personnel and use discretion when making decisions to conduct routine inspections. EPA will take the pandemic into consideration in any review of a state compliance and enforcement program, such as the State Review Framework.

EPA Actions

EPA will focus its resources on situations that may create an acute risk or imminent threat to public health or the environment. All ongoing enforcement actions are continuing.

Accidental Releases

This temporary policy does not relieve a facility 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 law. There is no enforcement discretion in the event of such a release.

Criminal Violations

When seeking prosecutorial assistance from the Department of Justice, EPA will distinguish violations that facilities know are unavoidable as a result of COVID-19 restrictions, from violations that are the result of an intentional disregard for the law.

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If you would like to read in full EPA’s temporary policy titled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” dated March 26, 2020 click HERE. Remember, this temporary policy will apply retroactively beginning on March 13, 2020 and EPA will post a notification at least seven days prior to terminating the temporary policy. The termination notification will be posted at https://www.epa.gov/enforcement/enforcement-policy-guidance-publications. Also, EPA will issue another policy for activities that are performed under the Superfund and RCRA Corrective Action enforcement instruments.