On March 26, 2020, the U.S. Environmental Protection Agency announced it may ease enforcement of environmental legal obligations during the COVID-19 national emergency. Though some have incorrectly interpreted this announcement as a “get-out-of-jail-free” card to permit holders, the EPA’s temporary pandemic policy applies only to a narrow set of circumstances, and even in those cases the policy offers no guarantee that harsh penalties will be withheld. Moreover, there is still risk of enforcement by state environmental agencies or third parties pursuant to citizen suit provisions. Thus, permit holders should not reduce their efforts to maintain environmental compliance and, in fact, should affirmatively convey to their staffs and contractors the limited nature of this policy.
The policy memorandum issued by the EPA’s top compliance official, Susan P. Bodine, explains that the agency’s continuing enforcement focus during the outbreak will be “on situations that may create an acute risk or imminent threat to public health or the environment.” The EPA stated that it “does not expect” to seek penalties for noncompliance with routine monitoring and reporting obligations resulting from the COVID-19 pandemic and will exercise discretion in doing so. The policy memorandum outlines essential steps that regulated facilities must take to qualify for enforcement discretion and lists the types of documentation that the EPA will expect regulated entities to provide showing that these qualifying steps were taken.
The sections below address potential impacts based upon the status of EPA enforcement:
When the EPA May Relax Enforcement for Noncompliance
Compliance was not reasonably practicable because of the COVID-19 pandemic
First, a facility must demonstrate that compliance was not reasonably practicable because of the pandemic. Examples where noncompliance could be reasonably caused by the COVID-19 pandemic likely include social distancing and travel restrictions by governments, corporations or the CDC, and shortages of key staff attributable to the health crisis.
Documentation is required
Second, the facility must provide the EPA with documentation (1) showing that it acted responsibly under the circumstances to minimize the effects and duration of any noncompliance caused by COVID-19; (2) identifying the specific nature and dates of the noncompliance; (3) identifying 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; and (4) showing return to compliance as soon as possible.
If documents show that COVID-19 made compliance impracticable, EPA does not expect to seek penalties for the following types of noncompliance:
- violations of routine compliance monitoring, including CEMS and stack tests, relative accuracy test audits, LDAR monitoring, fence line monitoring, RICE readings and monitoring, tank and piping inspections, assessments, or stormwater inspections
- noncompliance related to integrity testing, including tank integrity testing (e.g., API 653) for compliance with certain “good air pollution control practices”
- noncompliance related to sampling practices, including effluent sampling and testing, as well as cooling tower sampling
- noncompliance related to laboratory analysis, including laboratory holding times and turnaround times
- noncompliance related to in-person training, including PCC training, hazardous waste trainings, CAA section 129 renewals, and other annual re-certifications
- noncompliance related to reporting and certification obligations, including reports and certifications associated with delayed activities described above, and late reports under permit or other regulatory obligations, including TRI and greenhouse gas inventory reporting
- storage of more hazardous waste by hazardous waste generators if the pandemic prevents it from transporting the waste, although the generator should continue to properly label and store such waste
- holding a greater population of animals by an animal feeding operation, if the pandemic prevents it from transferring them
The activities summarized in the bullets above are not necessarily an exclusive list. EPA indicates that, so long as the actions are taken to avoid and document the problems, it “will consider the circumstances, including the COVID-19 pandemic, when determining whether enforcement response is appropriate.” Thus, the pandemic need not be the sole cause of the non-compliance although EPA’s response is discretionary and dependent on the persuasiveness of the regulated entity’s documented response.
Waiver of penalties is discretionary
Waiver of any penalties for noncompliance will be discretionary only, not automatic. EPA’s policy memorandum explains, “The EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether enforcement response is appropriate.” And, keep in mind that EPA expects facilities to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports.
Special guidance to parties under consent decrees
Parties to consent decrees entered into with the EPA and the U.S. Department of Justice or EPA-administered settlements must also give notice of any expected failure to comply with the agreement’s terms and should follow the notice requirements in the settlement or consent decree.
Best practice for regulated entities
Finally, the policy memorandum states that it “does not alter any provision of any statute or regulation that contains legally binding requirements, and it is not itself a regulation.” Regulated entities should not rely on this temporary policy memorandum as failsafe protection from statutory penalties and enforcement actions. The best practice in any instance where the pandemic makes compliance impracticable is to notify the implementing authority of the issue and obtain written assurance that delayed compliance will be excused until practicable.
Ongoing Environmental Enforcement Matters Are Not Effected
Since the EPA’s temporary policy will apply only to noncompliance that occurs on or after March 13 and where compliance is made impractical due to the COVID-19 pandemic, any enforcement actions related to violations predating March 13, 2020, will continue in full force. In fact, EPA’s memorandum states, “All ongoing enforcement matters are continuing.” Companies should not expect significant fall off from the pace of existing enforcement actions or ongoing litigation.
Immediately Report All Incidents that Create a Risk to Human Health or the Environment
EPA’s policy emphasizes, “EPA 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.” Significantly, any COVID-19-caused incident of noncompliance that may create an acute risk or imminent threat to human health or the environment must be reported immediately to the appropriate implementing authority. If a facility suffers from failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases, the facility must notify the appropriate implementing authority immediately. EPA’s memorandum emphasizes in particular that air or water treatment system failures constitute a serious imminent threat amid the pandemic health crisis.
Furthermore, the EPA memorandum explicitly excludes the following categories from its discretionary pandemic enforcement policy:
- intentional criminal violations of law
- conditions of probation in criminal sentences
- activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments
- activities related to imports – particularly FIFRA-regulated pesticides
- activities related to pesticide products produced, manufactured and/or distributed in the United States that claim to address COVID-19 impacts
- activities related to operation of public water systems
- training activities that may be conducted online
- activities related to a facility that is essential critical infrastructure
- activities related to all ongoing enforcement matters
- activities related to properly preventing, responding to, or reporting accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants
When Does the EPA’s Pandemic Policy Apply?
EPA's policy applies to certain civil violations occurring on and after March 13, 2020 until the EPA announces an end to the policy. EPA will post a notification on its website (https://www.epa.gov/enforcement/enforcement-policy-guidance-publications) at least 7 days prior to terminating this temporary policy. EPA will assess the continued need for and scope of this temporary policy on a regular basis and will update it if the EPA determines modifications are necessary.
State Agencies Are Authorized to Proceed with Enforcement
EPA notes in its memorandum that authorized states or tribes may take a different approach under their own authorities. Already, states such as New York are taking widely varied views on this EPA pandemic policy and many may reject it entirely, so companies should expect that state enforcement actions and penalties for noncompliance will proceed regardless of the pandemic. Please subscribe here for future updates on the EPA guidance and the reaction from state regulatory agencies.
The memorandum does not explicitly address the fact that third parties such as NGOs are not bound by the memorandum. As noted previously, parties with standing may be able to bring citizen suits under the federal statutes for such violations. In fact, EPA’s deferral of enforcement under the memorandum may raise issues of whether diligent prosecution can be successfully asserted as a defense in a citizen suit.