On March 26, 2020, EPA issued a temporary enforcement policy related to civil non-compliance events attributable to the COVID-19 pandemic. As we have alerted clients to previously, the consequences of the pandemic may limit facility operations, the availability of key staff, and the ability of laboratories to analyze samples. In EPA's new enforcement policy, the Agency recognizes that these challenges may constrain the "ability of a facility or laboratory to carry out certain activities required by [EPA] environmental permits, regulations, and statutes." As a result, facilities may be unable to meet the obligations contained in settlements and consent decrees, enforceable limitations on air emissions and water discharges, requirements for the management of hazardous waste, and requirements to ensure clean drinking water.
The newly released policy explains that EPA will utilize its enforcement discretion for civil infractions in certain specified circumstances, including: 1) routine compliance monitoring and reporting by regulated entities; 2) settlement agreement and consent decree reporting obligations and milestones; 3) facility operations; 4) public water systems regulated under the Safe Drinking Water Act; and 5) critical infrastructure. Importantly, enforcement discretion in each of these enumerated circumstances is conditioned on the entity doing the following:
- Entities should make every effort to comply with their environmental compliance obligations.
- If compliance is not reasonably practicable, facilities should:
a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
b. Identify the specific nature and dates of the noncompliance;
c. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
d. Return to compliance as soon as possible; and
e. Document the information, action, or condition specified in a through d.
How EPA will exercise its enforcement discretion varies, depending on the circumstance. For example, EPA "does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request." The Agency explains that entities should continue to use existing procedures to report noncompliance with routine activities or, if no such procedure is applicable, maintain this information internally and make it available to the appropriate regulatory authority upon request. The policy also explains situations that the Agency does not expect to preclude compliance, such as the inability to obtain a "wet" signature of a responsible official on a paper submission or certification.
With regard to facility operations, EPA clearly states that it "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." If operations impacted by the pandemic present an acute risk or imminent threat to human health or the environment, the entity should contact EPA or the appropriate authorized state or tribe. Similarly, if an unauthorized release occurs because of a failure in air emission controls, waste or wastewater treatment systems, or other equipment, the facility should report the release to the appropriate regulatory authority as soon as possible. In these cases, EPA will work with the entity (and authorized state or tribe, as appropriate) to minimize or prevent the risk and will consider the circumstances, including the pandemic, to determine the appropriate enforcement response.
If a facility is a generator of hazardous waste that, as a result of the disruptions caused by COVID-19 pandemic, is unable to transfer the waste off-site within the time periods mandated under the Resource Conservation and Recovery Act (RCRA), EPA will exercise its enforcement discretion by continuing to treat such entities as hazardous waste generators, rather than as treatment, storage, or disposal facilities. Facilities should continue to properly label and store such waste, and comply with the conditions outlined above.
The temporary policy applies retroactively beginning on March 13, 2020. It does not apply to criminal violations, activities carried out under Superfund and RCRA Corrective Action enforcement instruments (EPA expects to address this separately), or imports (for example, EPA remains particularly concerned about the import of pesticide products that claim to address COVID-19 impacts), and it does not relieve entities of the responsibility to prevent, respond to, and report accidental releases of hazardous substances and other pollutants. EPA did not specify when the policy will terminate, but the Agency will provide notice at least seven days prior to termination.
EPA's new COVID-19 enforcement policy covers a wide range of situations and requires regulated entities to take certain steps in order to benefit from EPA's exercise of enforcement discretion. In addition, the enforcement landscape is continuing to evolve, as EPA is likely to identify new non-compliance scenarios and provide other enforcement guidance for specific programs on an ongoing basis. Venable's Environmental team is available to support your company as you navigate these complex regulatory compliance and enforcement issues.