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Amidst pandemic, EPA issues enforcement guidance

published in McAfee & Taft LINC | March 27, 2020

On March 26, 2020, EPA provided written guidance regarding enforcement during the COVID-19 pandemic situation.   

Please note the following highlights:

  • Policy applies retroactively beginning March 13, 2020.
  • Includes EPA administered programs except for activities under Superfund or RCRA Corrective Action enforcement instruments, which will be addressed in a separate communication.
  • States and Tribes are authorized to utilize a different approach under their own authorities.
  • As anticipated, EPA will exercise enforcement discretion regarding noncompliance as follows:
    • Enforcement discretion will be subject to the following conditions:
      • Entities must make every effort to maintain compliance.
      • If compliance is not reasonably practicable, then entities must:  (1) act appropriately to mitigate any noncompliance, (2) specifically identify the noncompliance and how it was caused by COVID-19, (3) return to compliance as soon as possible, and (4) document all of the above.
      • Routine compliance monitoring and reporting:
    • EPA recognizes potential constraints on the ability to perform routine monitoring, integrity testing, sampling, lab analyses, training, and reporting or certification.
    • EPA indicates existing reporting procedures for noncompliance should be utilized where applicable.
    • EPA states that it generally does not expect to seek penalties for COVID-19 related noncompliance where EPA agrees that COVID-19 was the cause of the noncompliance and the entity can provide any necessary supporting documentation.
    • EPA will accept digital or other electronic signatures on submissions that may otherwise require a “wet” signature, and will also accept email submissions where a paper original is typically required.
    • Existing Settlement agreement and consent decree obligations and milestones:
    • Parties should utilize reporting procedures set forth in agreements, including force majeure notifications if applicable.
    • EPA intends to treat routine monitoring, integrity testing, sampling, lab analyses, training, and associated reporting or certification obligations in the manner described above.  That is, EPA generally will not seek stipulated or other penalties for noncompliance caused by COVID-19 where EPA agrees that COVID-19 was the cause of the noncompliance and the entity can provide any necessary supporting documentation.
    • EPA will coordinate with the Department of Justice (DOJ) to exercise enforcement discretion on agreements to which DOJ is a party.
    • Notwithstanding the above, EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the environment.  In particular:
      • Facilities should contact the appropriate authority if operations impacted by COVID-19 may create an imminent threat to human health or the environment:
        • EPA will work with the facility (and the appropriate State and Tribal authorities, if necessary) to minimize or prevent the imminent threat and to return to compliance as soon as possible.
        • EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether enforcement is appropriate.
      • Facilities should contact the appropriate authority if a failure of emissions controls or treatment systems may result in exceedances of enforceable limits on air emissions, water discharges, land disposal, or other unauthorized releases:
        • EPA will consult with the appropriate authorities to determine appropriate response.
      • Hazardous waste generation facilities will still be considered generators even if they store hazardous material on-site for longer than is generally allowed due an inability to transfer waste off-site caused by COVID-19.
    • Nothing in the temporary policy relieves any entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste and other pollutants as required by federal law, and the policy should not be read as a willingness to exercise enforcement discretion in the wake of such a release.
    • This temporary policy does not apply to criminal violations.