Legal Alert: U.S. EPA Enforcement Discretion Policy During COVID-19 Pandemic

Recently, the United States Environmental Protection Agency issued a temporary policy for dealing with environmental noncompliance during the COVID-19 pandemic. Generally, EPA will exercise enforcement discretion for noncompliance that is directly related to the COVID-19 pandemic. In issuing this policy, EPA acknowledged the pandemic may affect a facility’s ability to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, reporting and certification. 

EPA recognized that work shortages and travel and social distancing restrictions imposed by federal and state governments and employers to limit the spread of COVID-19 may affect facility operations, availability of key staff, and limit the ability of a facility or its laboratory to fulfill certain obligations imposed by permits, regulations, statutes, settlements and consent decrees. EPA conditioned its willingness to exercise enforcement discretion on the following:

1. an entity’s obligation to make “every effort” to comply with environmental compliance obligations; and
2. if compliance is “not reasonably practicable,” the facility with environmental compliance obligations should:
   1. act responsibly under the circumstances to minimize the effects and duration of any noncompliance caused by the COVID-19;
   2. identify the specific nature and dates of noncompliance;
   3. identify how COVID-19 was the cause of the noncompliance, the decisions taken in response, including best efforts to comply and 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 conditions specified in a through d.

Importantly, under this temporary policy, EPA expects regulated facilities to comply with environmental obligations where reasonably practicable, to return to compliance as soon as possible, and documents decisions to prevent or mitigate noncompliance and how noncompliance was caused by the COVID-19 pandemic. EPA does not expect to require affected facilities to “catch-up” on missed monitoring or reporting obligations if the underlying requirements affect intervals of less than three months.

Failures of air emission control systems or wastewater or waste treatment systems or other equipment that result in exceedances of enforceable limits on air emissions or discharges to water, land disposal or unauthorized rereleases are required to be promptly reported to EPA or the authorized state. Due to heightened expectations, public water systems are required to continue normal operations and maintenance, and sampling, to ensure the safety of drinking water supplies. Nothing in this policy relieves any person or entity from the responsibility to prevent, respond to and report accidental releases of oil, hazardous substances or chemicals, hazardous wastes or other pollutants required by federal law.

EPA acknowledged the pandemic may affect a facility’s ability to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, reporting and certification.  Noncompliance is required to be reported through existing procedures, as set forth in applicable permits, rules or statutes. EPA does not expect to seek penalties for violations from noncompliance with these types of activities where EPA agrees COVID-19 was the cause of the noncompliance and the entity provides supporting documentation upon EPA’s request.

With respect to administrative settlements and judicial consent decrees, if affected by COVID-19, parties are expected to use notice provisions in such documents, including notification of force majeure events. EPA does not intend to seek stipulated or other types of penalties for routine noncompliance with monitoring, testing, sampling, lab analysis, training, and reporting obligations under these circumstances.

EPA states in the policy that it expects all regulated facilities to continue to manage and operate their facilities in a manner that is safe and protects the public and the environment. In instances where facilities impacted by COVID-19 may create an acute risk or imminent threat to human health or the environmental then the EPA or the state should be contacted.

This policy applies retroactively to March 13, 2020 and is effective until terminated. This policy excludes criminal violations, Superfund (hazardous substances) cleanup obligations and RCRA hazardous waste corrective actions. Once the temporary policy is no longer in effect, EPA expects full compliance going forward.  EPA intends to provide notification at least seven days prior to termination of this policy.

Ohio EPA also has recognized the difficulties regulated entities may have in complying with environmental requirements, and where such unavoidable noncompliance situations exist, a request, on EPA form, can be submitted for regulatory flexibility, including the exercise of enforcement discretion.

Should you have any questions please contact Brian Babb at 513.579.6963 or bbabb@kmklaw.com.