U.S. EPA Issues Enforcement Discretion Policy in Response to COVID-19

April 7, 2020

Last month, the United States Environmental Protection Agency (the “U.S. EPA”) released a temporary enforcement discretion policy in response to the COVID-19 pandemic (the “COVID-19 Policy”). Under the COVID-19 Policy, if regulated entities take certain steps, the U.S. EPA will exercise enforcement discretion for environmental compliance requirements, such as routine monitoring and reporting under environmental laws enforced by the U.S. EPA. For noncompliance that occurs while the policy is in effect and results from the COVID-19 pandemic, the COVID-19 Policy will apply in lieu of an otherwise applicable enforcement response policy. The COVID-19 policy applies retroactively to March 13, 2020 and does not currently contain an end date. The U.S. EPA indicated that it will assess the need for and the scope of the COVID-19 Policy on a regular basis and post an online notice at least seven days prior to terminating the COVID-19 Policy.

Key aspects of the COVID-19 Policy are as follows:

General Conditions

The U.S. EPA’s enforcement discretion is conditioned on entities making every effort to comply with their environmental compliance obligations. If compliance is not “reasonably practicable,” facilities should take the following steps:

  1. Act responsibly to minimize the effects and duration of any noncompliance caused by COVID-19;
  2. Identify the nature and date of the noncompliance;
  3. Identify how COVID-19 was the cause of the noncompliance and the decision and actions taken in response, including efforts made to comply and the steps taken to come into compliance at the earliest opportunity;
  4. Return to compliance as soon as possible; and
  5. Document the information, action, or condition specified in (1) through (4).

Adjustments in Compliance Monitoring and Reporting Violations

The U.S. EPA recognizes that business interruptions resulting from COVID-19 may impede the ability of regulated entities to perform certain routine compliance monitoring, testing, reporting, training, or certification. The U.S. EPA advises entities to use existing procedures to report noncompliance with such routine activities. Where there is no applicable procedure, or reporting is not reasonably practicable due to the pandemic, regulated entities should maintain the information internally so that it can be made available upon request by the U.S. EPA or an applicable state. The U.S. EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting, or certification obligations where the U.S. EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides requested documentation.

The U.S. EPA expects entities to return to full compliance going forward once the COVID-19 Policy is no longer in effect. The U.S. EPA does not plan to ask facilities to “catch-up” on missed monitoring or reporting, as long as the underlying requirement applies to intervals of less than three months. For other monitoring reports, such as those required on a bi-annual or annual basis, the U.S. EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible, such as submitting late reports.

Additionally, the U.S. EPA acknowledges the difficulty in obtaining a “wet” signature from a responsible official for filings and submissions, and during the policy period, the U.S. EPA will accept digital and other electronic signatures. 

The COVID-19 Policy also states that the U.S. EPA intends to treat routine compliance monitoring and reporting under settlement agreements and consent decrees in a similar fashion as under permits. Parties subject to the settlement agreements and consent decrees should use the notice provisions in those documents (including the force majeure provision, as applicable) to provide notice of noncompliance. 

Consent decrees are court orders, and while the U.S. EPA and the Department of Justice (“DOJ”) will coordinate the exercise of enforcement discretion with regard to stipulated penalties for routine compliane obligations, courts may not agree and may exercise their own jurisdictional authority, including enforcement of penalties. Thus, a party that is subject to a consent decree should be cautious when relying on the COVID-19 Policy. 

Routine Monitoring and Reporting Examples

The COVID-19 Policy cites numerous examples of routine monitoring and reporting obligations as being subject to its purview, including the following:

Clean Air Act

  1. Continuation emission monitoring systems (CEMS) and stack tests. 
  2. Toxic Release Inventory (TRI) and greenhouse gas reporting.
  3. Reciprocal Internal Combustion Engine (RICE) readings and monitoring.
  4. Fence line monitoring.
  5. Leak Detection and Repair (LDAR) monitoring.

Clean Water Act

  1. Spill Prevention, Control, and Countermeasure (SPCC) training.
  2. Quarterly or other routine storm water inspections and sampling.
  3. Cooling tower and effluent sampling.

Facility Operations

In addition to discussing discretion regarding compliance and violations, the COVID-19 Policy includes guidance on a few specific operational scenarios, including:

  • Threats to human health or the environment. In the event of an eminent threat to human health or the environment, or a failure of any emission control equipment, wastewater or waste treatment systems, or other facility equipment that might result in excess of enforceable emission or effluent limits, the facility should contact the appropriate implementing authority (either the U.S. EPA or the authorized state) as quickly as possible. The U.S. EPA will consider the totality of the circumstances including the COVID-19 pandemic when determining if an enforcement response is appropriate.
  • Hazardous waste generation. If a facility generates hazardous waste that, due to COVID-19, it is unable to transfer offsite within the time periods required by the Resource Conversation and Recovery Act (“RCRA”), the facility should properly label and store the waste and notify the U.S. EPA. If proper labeling, storage, and notification are done, the U.S. EPA will treat the entity as a hazardous waste generator and not a treatment, storage, and disposal facility. In addition, as an exercise of enforcement discretion, the U.S. EPA will treat Very Small Quantity Generators and Small Quantity Generators as retaining such status even if the amount of hazardous waste stored onsite exceeds the regulatory volume threshold.

Exclusions

The COVID-19 Policy does not apply to the following:

  • imports, including pesticides;
  • public water systems;
  • activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments;
  • criminal violations; and
  • violations that are the result of an intentional disregard of applicable law.

Further, the U.S. EPA clarifies that nothing in the COVID-19 Policy relieves any entity from the responsibility to prevent, respond to, and report accidental releases of oil or any hazardous substance or chemical, hazardous waste, or other pollutants. Additionally, the COVID-19 Policy applies to the U.S. EPA’s actions only and does not bind states or tribes.

Conclusion

The COVID-19 Policy should help to alleviate certain regulatory requirements. While the U.S. EPA exercises its enforcement discretion discussed in this alert, companies should continue to make their best efforts at compliance and should use existing procedures to report noncompliance under permits or applicable regulations, or else maintain the information internally if no such notification procedure is applicable. 

To stay abreast of the emerging legal issues raised by the coronavirus pandemic, Lewis Rice has formed a COVID-19 Task Force, which brings together subject matter authorities from various practice areas within the Firm who stand ready to assist our clients as they navigate these complex challenges. Our attorneys are closely monitoring these developments as they occur and will make regular updates to our COVID-19 Resource Center. If you have legal questions related to the U.S. EPA’s COVID-19 Policy, please reach out to the author above. 

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