EPA Issues COVID-19 Enforcement Discretion Policy
Having been “inundated with questions from both state regulators and the regulated community about how to handle the current extraordinary situation,” the Environmental Protection Agency (EPA) recently announced a temporary policy regarding enforcement of federal environmental legal obligations. In its March 26, 2020 Memorandum on COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Programs (Memorandum), the EPA announced that it will relax its enforcement discretion for certain incidents of non-compliance resulting from the COVID-19 pandemic provided the regulated entity complies with measures spelled out in the Memorandum. The Memorandum is not a regulation, does not alter any provision of any statute or regulation containing legally binding requirements, and does not alter a facility’s compliance obligations in any way. In a memo from March 30, 2020, the EPA emphasized that “this temporary policy is not a license to pollute.”
The Memorandum is retroactive from March 13, 2020, and remains in effect until the EPA announces its termination. The EPA will post a notification regarding the end of the temporary policy seven days prior to termination.
SCOPE AND APPLICABILITY
The temporary policy recognizes that the consequences of the pandemic may affect facility operations and, by extension, may impact compliance activities required under federal environmental permits, regulations and statutes. As a result, the EPA will apply enforcement discretion for, among other things, civil violations, non-compliance with settlement agreements and consent decrees, and facility operations resulting in permit exceedences. The policy does not apply to any criminal violations or activities carried out under Superfund or Resource Conservation and Recovery Act (RCRA) Corrective Action enforcement instruments.
The EPA’s enforcement discretion, which may include waiver of civil penalties or declination of an enforcement response, applies to the following types of civil violations:
- Routine Compliance Monitoring and Reporting, including integrity testing, sampling, laboratory analysis, training, and reporting or certification;
- Settlement Agreement and Consent Decree Reporting Obligations and Milestones; and
- Facility Operations, including:
- Failures of air, water and/or waste treatment systems or emission control equipment; and
- Violations of hazardous waste accumulation requirements under RCRA