March 27, 2020 Article

EPA Announces Temporary Relaxation of Certain Environmental Compliance and Monitoring Obligations During the COVID-19 Pandemic

Citing potential worker shortages and social distancing and travel restrictions related to the COVID-19 pandemic, on Thursday, March 26, 2020, the U.S. Environmental Protection Agency announced that it would exercise enforcement discretion and temporarily suspend penalties for noncompliance with certain environmental rules and orders caused by COVID-19.  The memorandum announcing the temporary policy, which is retroactive to March 13th, is available here.

The Agency explained that entities should make every effort to comply with their environmental compliance obligations, but that the Agency would exercise its discretion not to penalize temporary noncompliance under certain conditions, including where COVID-19 was documented as having made compliance not reasonably practicable.

The EPA’s announcement made clear that the temporary policy does not apply to:

  • Criminal violations or violations of conditions of probation in criminal sentences;
  • Activities carried out under Superfund (i.e., CERCLA);
  • Activities carried out under RCRA Corrective Action enforcement instruments; and
  • Imports of products into the United States.

The temporary policy allows enforcement discretion and a relaxation of compliance with certain obligations, as follows:

1. Routine compliance monitoring and reporting by regulated entities

The EPA advised entities to “use existing procedures to report noncompliance with routine activities,” such as those pursuant to an applicable permit, regulation or statute.  However, if such reporting is not practicable due to COVID-19, the EPA instructed entities to maintain such information internally and make it available to the Agency or local authorities upon request.  The EPA advised that in general, while the temporary policy is in effect, it “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  The EPA expects full compliance after the temporary policy is no longer in effect, including conducting late monitoring and submitting late reports for all monitoring and reports required on quarterly intervals or greater.

2. Settlement agreement and consent decree reporting obligations and milestones

The EPA wrote that with respect to EPA administrative settlement agreement reporting obligations and milestones, if “parties to such settlement agreements anticipate missing enforceable milestones set forth in those documents,” due to COVID-19, “parties should utilize the notice procedures set forth in the agreement, including notification of a force majeure, as applicable.”  For such agreements, the EPA stated that it will generally not seek stipulated or other penalties for noncompliance with routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and associated reporting or certification obligations.

With respect to consent decrees entered into with the EPA and Department of Justice, the EPA noted that such documents are binding agreements and court orders, but that EPA staff would coordinate with DOJ and any co-plaintiffs to exercise enforcement discretion with regard to stipulated penalties for the routine compliance obligations.  The EPA instructed parties to such consent decrees to utilize notice procedures set forth in the consent decrees, such as notifications related to force majeure, as applicable, with respect to any noncompliance caused by COVID-19.

3. Facility operations

Emphasizing that the Agency “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,” the guidance instructed facilities to contact the appropriate implementing authority (EPA region, authorized state, or tribe) if facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment, including contacting the EPA regional office in the event of noncompliance that could result in an acute risk or imminent threat to human health or the environment.

4. Public water systems regulated under the Safe Drinking Water Act

The EPA wrote that in light of the importance of continued public access to safe drinking water, it considers continued operation of drinking water systems is the “highest priority.”  The EPA explained that it expects operators of public water systems to continue normal operations and maintenance going forward, as well as performing required sampling and for laboratories to provide timely analysis of samples.

The EPA strongly encouraged 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, and also encouraged certified drinking water laboratories to consult with the state and the EPA if issues arise that prevent laboratories from conducting analyses of drinking water contaminants.

5. Critical infrastructure

Where a facility is essential critical infrastructure, the EPA stated that it “may consider a more tailored short-term No Action Assurance, with conditions to protect the public, if the EPA determines it is in the public interest.”  Such determinations are made by the Office of Enforcement and Compliance Assurance Assistant Administrator on a case-by-case basis, using guidance issued by the Cybersecurity and Infrastructure Security Agency to determine which facilities employ essential critical infrastructure.

The EPA wrote that “during the pendency of the current COVID-19 exigency,” it “expects to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment, to ensure protection against such risks or threats,” and that all ongoing enforcement matters would continue.

Entities that may be impacted by the EPA’s temporary policy should review carefully the conditions under which the Agency has indicated it may exercise enforcement discretion, including minimizing to the extent reasonably possible the effects and duration of the noncompliance; documenting the nature and dates of the noncompliance, how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response; returning to compliance as soon as possible; and meeting all applicable notice requirements, including those summarized above.