EPA COVID-19 Environmental Compliance Enforcement Policy
On March 26, 2020, the United States Environmental Protection Agency issued the “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” (Policy) to “All Governmental and Private Sector Partners.” The Policy applies retroactively from March 13, 2020 to regulated entities, if compliance is “not reasonably practicable” and the noncompliance is caused by COVID-19. EPA is expecting to waive penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations where the regulated entity can provide supporting documentation demonstrating to EPA that COVID-19 was the cause of the noncompliance. Timely noncompliance reporting under permit requirements and other existing procedures should still be used as the notification mechanism.
The Policy provides: “if compliance is not reasonably practicable, facilities with environmental compliance obligations 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.”
Once reported, how will EPA determine when the compliance was not reasonably practicable under this Policy? The first condition for civil violations provides that “entities should make every effort to comply with their environmental compliance obligations.” Some examples of what might lead to reasonable impracticability include worker shortages and availability of key staff, contractors and laboratories and other such COVID-19 restrictions that could impact a broad range of environmental compliance activities such as:
permit activities, monitoring and reporting obligations
reporting obligations and milestones in settlements and consent decrees
the ability of an operation to meet enforceable limits on air emissions, water discharges, waste management, and safe drinking water.
The Policy appears to have sweeping coverage. EPA is even willing to consider using the Policy to avoid enforcement where “facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment.” Unless a program area is specifically excluded in the Policy, the legal obligation examples mentioned are not meant to limit other areas where the Policy could apply for COVID-19 causes of noncompliance.
Criminal violations of “knowing conduct” are specifically excluded from this COVID-19 enforcement discretion. With the help of the Department of Justice, EPA “will distinguish violations that facilities know are unavoidable as a result of COVID-19 restrictions from violations that are the result of an intentional disregard for the law.” Superfund and RCRA Corrective Action enforcement and imports (FIFRA) are also excluded from the Policy.
The Policy may provide relief to the regulated community, but this enforcement discretion Policy is not law. The Policy describes in broad and general terms how EPA plans to exercise enforcement discretion. It “does not alter any provision of any statute or regulation that contains legally binding requirements.” Finally, “authorized states or tribes may take a different approach under their own authorities.”