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

Baker & Hostetler LLP
Cory Barnes and Martin T. Booher

April 7, 2020

This was originally published by BakerHostetler’s Environmental Blog on March 30, 2020.

On March 26, the U.S. Environmental Protection Agency (EPA) issued a memorandum on the “temporary policy regarding EPA enforcement of environmental legal obligations” given the growing impacts of COVID-19. Citing restrictions such as workforce shortages, travel and social distancing restrictions, and the inability of labs to timely analyze samples and provide results, the EPA recognizes the consequences that these restrictions may have on reporting obligations and milestones set forth in settlement and consent decrees as well as other formal or informal reporting and compliance programs. As such, the EPA is temporarily modifying its enforcement discretion policy for noncompliance as described in the attached memorandum. The summary below provides an overview of the key points addressed in the memorandum.

Applicability: The policy applies retroactively as of March 13 and will continue, or be modified, as needed until the EPA gives notice at least seven days before its termination. Upon termination, the policy will still apply to noncompliance that occurred while the policy was still in effect.

Scope: The policy explicitly does NOT apply to certain compliance activities:

  • Those that are carried out under Superfund and Resource Conservation and Recovery Act (RCRA) corrective action enforcement instruments (such matters will be addressed in a separate communication).
  • Imports (e.g., pesticides entering the U.S. or produced or manufactured in the U.S. pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act).
  • Any criminal violations or conditions of probation in criminal sentences.

Temporary Enforcement Discretion: The EPA makes clear that it still “expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and protects the public and environment.” Therefore, entities should continue making every effort to meet their compliance obligations. In general, the EPA is not expecting “to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, lab analyses, training, and reporting or certification obligations” if the agency agrees that COVID-19 was the cause of the noncompliance and it is properly documented as prescribed in the memorandum.

Where compliance is not “reasonably practical,” the EPA will take into account several key considerations, including whether the entity acted reasonably to mitigate the effects and duration of the noncompliance, the extent to which COVID-19 was the cause of the noncompliance, and how management undertook its best efforts to respond and come back into compliance at the earliest opportunity. (See page 3 of the attached memorandum.)

Furthermore, the EPA generally “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.” Once this temporary policy is terminated, however, monitoring or periodic reports submitted on a biannual or annual basis should be resumed “as soon as possible, including conducting late monitoring or submitting late report.”

Settlement and Consent Decrees: For COVID-19-impacted reporting obligations and milestones pursuant to settlement agreements with the EPA, parties should give notice to the agency as set forth in the notice procedures of the settlement agreement, and parties may rely on force majeure provisions as applicable. Such notifications should identify the “steps taken to minimize the effects and duration of any noncompliance caused by COVID-19.” The EPA “will generally not seek stipulated or other penalties for noncompliance” with routine obligations under these agreements.

For noncompliance with consent decrees entered into with the EPA and the U.S. Department of Justice (DOJ), staff from the EPA will coordinate with the DOJ to “exercise enforcement discretion with regard to stipulated penalties for [] routine compliance obligations … and will also consult with any co-plaintiffs to seek agreement to this approach.” As with EPA settlement agreements, parties should give notice to the EPA of any noncompliance as set forth in the notice procedures of the consent decree, and parties may rely on force majeure provisions as applicable.

Miscellaneous Noteworthy Provisions:

  1. This temporary policy does not impact a facility’s obligation to immediately report and respond to any operations impacted by COVID-19 that “may create an acute risk or an imminent threat to human health or the environment” (e.g., failure of air emissions controls or wastewater treatment systems, accidental or unauthorized releases, etc.).
  2. Hazardous waste generators whose off-site disposal and transfer operations are impacted by COVID-19 (e.g., the facility is unable to transfer waste off-site within the time period required under the RCRA) should continue to properly label and store their hazardous waste and notify the EPA. With proper documentation and communication to the EPA, facilities may continue to be treated as hazardous waste generators and not as treatment, storage or disposal facilities. Furthermore, the EPA may agree to continue treating very small quantity generators and small quantity generators as such even though the amount of hazardous waste stored on-site exceeds regulatory thresholds due to an inability to dispose of hazardous waste off-site.
  3. The EPA will continue to have “heightened expectations” for public water systems and “expects operators of such systems to continue normal operations and maintenance as well as required sampling to ensure the safety of our drinking water supplies.” The highest priority for these operators remains the monitoring required under the National Primary Drinking Water Regulations to protect against microbial pathogens.
  4. For noncompliance in facilities deemed “essential critical infrastructure,” the EPA may consider a “more tailored short-term No Action Assurance,” which will be made by the Office of Enforcement and Compliance Assurance assistant administrator “on a case-by-case basis.”

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Booher and Mr. Barnes and may not reflect the opinions of Synergy Environmental, Inc., Baker & Hostetler LLP or either of those firms’ clients.


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