By Leah M. Song and Steven M. Siros
On March 26, 2020, the U.S. Environmental Protection Agency (“EPA”) announced a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. EPA Administrator Andrew Wheeler stated that the “EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements.”
This temporary enforcement discretion policy applies to civil violations during the COVID-19 outbreak. To clarify, the policy does not apply to: a) any criminal violations or conditions of probation in criminal sentences, b) activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments, and c) imports. Additionally, the policy does not relieve any entity from preventing, responding to, or reporting accidental releases.
The temporary policy makes it clear that the EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy also requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.
The policy addresses different categories of noncompliance differently and is broken into the following sections:
Routine Compliance Monitoring and Reporting by Regulated Entities
Facilities should use existing procedures to report noncompliance with routine activities, such as compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification. If reporting is not reasonably practicable due to COVID-19, facilities should maintain this information internally and make it available to EPA upon request. In general, the EPA does not expect to seek penalties for violations of such routine activities where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.
Additionally, the EPA does not plan to ask facilities to “catch-up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For other monitoring or reports, such as those required on a bi-annual or annual basis, when this policy is no longer in effect, the EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports, and encourages facilities to provide supporting documentation in the reporting form.
Given the online availability of trainings, the EPA does not think trainings will be affected. If training is not practicable due to COVID-19, the EPA believes that it is more important to keep experienced, trained operators on the job, even if a training or certification is missed.
EPA does expect continued submissions, certifications or required reports or other deliverables, but will exempt the requirement to obtain a “wet” signature, and will accept a digital or electronic signature. EPA strongly encourages use of approved electronic reporting mechanisms.
Settlement Agreement and Consent Decrees Reporting Obligations and Milestones
Parties to EPA administrative settlement agreements should utilize the notice procedures set forth in the agreement if the parties anticipate missing enforceable milestones. The notification should provide the information required by the agreement, which typically will include steps taken to minimize the effects and duration of any noncompliance caused by COVID-19.
Consent decrees entered into with the EPA and the U.S. Department of Justice (“DOJ”) remain under the jurisdiction of the courts. The EPA staff will coordinate with the DOJ to exercise enforcement discretion with regard to stipulated penalties for the routine compliance obligation. Again, parties should utilize the notice procedures set forth in the consent decree.
The EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment.
Facilities should contact the appropriate implementing authority if facility operations impacted by COVID-19 may create an acute risk or an imminent threat to human health or the environment. In response, the EPA will work with the appropriate authority to discuss measures to minimize or prevent the acute or imminent threat to health or the environment from the COVID-19-caused noncompliance and obtain a return to compliance as soon as possible.
If a facility suffers from failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations, the facility should notify the implementing authority as quickly as possible. The notification also should include information on the pollutants emitted, discharged, discarded, or released; the comparison between the expected emissions or discharges, disposal, or release and any applicable limitation(s); and the expected duration and timing of the exceedance(s) or releases.
If facility operations result in noncompliance are not already addressed by the EPA above, the facility should do its best to prevent or mitigate noncompliance and document such efforts.
If a facility is a generator of hazardous waste and, due to disruptions caused by the COVID-19 pandemic, is unable to transfer the waste off-site within the time periods required under RCRA to maintain its generator status, the facility should continue to properly label and store such waste. If the facility does its best to prevent or mitigate noncompliance, the EPA will treat such entities to be hazardous waste generators.
Lastly, if a facility is an animal feeding operation, and, due to disruptions caused by the COVID-19 pandemic, is unable to transfer animals off-site and, solely as a result of the pandemic, meets the regulatory definition of concentrated animal feeding operation (“CAFO”), the EPA will not treat such animal feeding operations as CAFOs.
Public Water Systems Regulated Under the Safe Drinking Water Act
The EPA has heightened expectations for public water systems. The EPA expects operators of such systems and laboratories performing analysis for water system to continue normal operations, maintenance, and timely analysis of samples and results.
The EPA will consider continued operation of drinking water systems to be the highest priority. The EPA considers the following tiers of compliance monitoring: 1) National Primary Drinking Water Regulations, 2) nitrate/nitrite and Lead and Copper Rule, and 3) contaminants for which the system has been non-compliant.
The EPA strongly encourages public water systems to consult with the state and EPA regional offices without delay if issues arise that prevent the normal delivery of safe drinking water.
In situations where a facility is essential critical infrastructure, the EPA may consider, on a case-by-case basis, a more tailored short-term No Action Assurance if it is in the public interest. The EPA will consider essential the facilities that employ essential critical infrastructure workers as determined by guidance issued by the Cybersecurity and Infrastructure Security Agency.
EPA’s policy will apply retroactively beginning on March 13, 2020. EPA will assess the continued need for and scope of this temporary policy on a regular basis and will update it if EPA determines modifications are necessary. EPA will post a notification here at least 7 days prior to terminating this temporary policy.
Jenner & Block’s "Corporate Environmental Lawyer" will continue to update on these matters, as well as other important COVID-19 related guidance, as they unfold.