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EPA to Relax Civil Enforcement for Non-Compliance Due to COVID-19 Pandemic

In recognition of the impact the COVID-19 outbreak is having on every facet of life, the U.S. Environmental Protection Agency (EPA) issued a temporary enforcement discretion policy to excuse certain civil violations occurring during and due to the COVID-19 pandemic. While the EPA expects regulated facilities to maintain compliance, the agency does not expect to seek penalties for noncompliance for routine environmental monitoring and reporting obligations provided certain conditions are met. Other activities, such as the reporting of accidental releases of pollutants, will not be subject to discretion. Importantly, the EPA will not be seeking enforcement of violations occurring while the policy is in effect, even after the COVID-19 crisis subsides and the policy is terminated. The policy is retroactive to March 13, 2020.

General conditions to qualify for enforcement discretion. As discussed below, the EPA’s policy addresses different categories of noncompliance differently. In general, however, the EPA expects regulated entities to “make every effort” to comply with their environmental obligations. To the extent compliance is not reasonably practicable due to COVID-19, regulated facilities must take and document the following steps to qualify for enforcement discretion:

  • Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
  • Identify nature and date(s) of noncompliance, which must have occurred on or after March 13, 2020;
  • Identify how COVID-19 was the cause of noncompliance and the decisions and actions taken in response; and
  • Return to compliance at the earliest opportunity

Enforcement discretion for routine compliance monitoring and reporting. The policy affords enforcement discretion for violations of routine compliance monitoring, sampling, integrity testing, laboratory analysis, training, and reporting or certification requirements. The policy directs facilities to use existing procedures to report noncompliance with these activities, such as procedures established by an applicable permit or regulation. If no procedure applies or COVID-19 precludes reporting, regulated entities are to maintain the information described above and make it available to the EPA or an authorized state or tribe upon request. Note that the EPA must agree that COVID-19 was the cause of the noncompliance for the policy to apply. In addition, the EPA will accept electronic signatures on submissions, so failure to obtain a “wet” signature, to the extent required for a submission, will not be sufficient for coverage under the policy.

After the policy is terminated, facilities are expected to come back into full compliance. A facility need not make up any missed quarterly or more frequent monitoring or reporting. For biannual and annual monitoring or reporting, facilities are to conduct late monitoring and submit late reports to the extent necessary. Certain reporting forms allow a facility to indicate why it has not conducted a required activity, and in such instances the facility may explain the impact of COVID-19 on its compliance efforts.

Enforcement discretion for settlement agreements and consent decrees. For administrative settlement agreements, if parties expect to miss enforcement milestones set forth in an agreement due to COVID-19, the parties are to notify the EPA accordingly using the notice procedures established in the agreement, including notification of a force majeure, if applicable. The EPA intends to treat noncompliance of routine compliance and monitoring obligations in the same manner as described above.

For consent decrees entered into with the U.S. Department of Justice and EPA, the EPA will coordinate with the DOJ to exercise enforcement discretion with respect to stipulated penalties for routine compliance and monitoring obligations discussed above. Parties are to use the notice procedures set forth in the consent decree, including notification of a force majeure if applicable.

Enforcement discretion for various facility operations. The policy establishes the steps a facility should take in the event of noncompliance caused by a facility’s operations.

  • Operations causing acute risk or imminent threat. If the impact of COVID-19 on facility operations creates an acute risk or imminent threat to human health or the environment (e.g., an unpermitted discharge of pollutants), facilities are to contact and consult with the implementing authority (EPA regional office, authorized state, or tribe). Where the EPA implements the environmental program at issue, it will consider the circumstances, including COVID-19, in determining whether to bring an enforcement action. During the COVID-19 pandemic, the EPA expects to focus its resources on situations that may create an acute risk or imminent threat to the environment or public health.

  • Failure of facility equipment or pollution control. If a facility suffers from a failure of equipment that may result in exceedances of enforceable limitations, the facility is to notify the implementing authority (EPA regional office, authorized state, or tribe) as soon as possible. The notification should identify the pollutants at issue and the expected duration and timing of any exceedances or releases. As with the above, where the EPA implements the environmental program at issue, it will consider the circumstances, including COVID-19, in determining whether to bring an enforcement action.

  • Hazardous waste generation. If COVID-19 causes a generator of hazardous waste to accumulate its waste onsite for longer than is allowed under the federal Resource Conservation and Recovery Act (RCRA) to maintain its generator status, the facility is to continue labeling and storing the waste and documenting its actions. Such a facility will be treated by the EPA as a hazardous waste generator and not as a treatment, storage, and disposal facility. Additionally, Very Small Quantity Generators and Small Quantity Generators will be able to retain their status, even if the amount of hazardous waste stored onsite exceeds the regulatory cap, due to an inability to transfer waste off-site that is caused by COVID-19.

  • Public water systems. The EPA expects public water systems regulated under the Safe Water Drinking Act to comply with its obligations and continue normal operations, maintenance, and sampling to protect drinking water supplies. The EPA will generally consider on a case-by-case basis whether enforcement against a non-compliant public water system is appropriate.

  • Critical infrastructure. For the energy sector and other critical infrastructure that may experience noncompliance due to COVID-19, the EPA may consider giving a temporary No Action Assurance that it will not proceed with an enforcement response when doing so is determined to be in the public interest.

No enforcement discretion for other violations. The policy does not apply to the following:

  • Ongoing enforcement matters

  • Activities carried out under Superfund and RCRA Corrective Action enforcement instruments. The EPA indicates that those matters will be addressed in a separate communication.

  • Failure to respond to or report accidental releases of oil, hazardous substances, hazardous wastes, and other pollutants, including the new reporting obligations to the Chemical Safety Board

  • Environmental crimes

  • Violations of conditions of probation in criminal sentences

  • Imports of pesticides

For delegated programs, the EPA plans to consult with states and encourages states to use their discretion in conducting routine inspections during the pendency of the COVID-19 pandemic.

The EPA’s policy is available here, which continues in effect until terminated by the EPA. The agency will post a notification to this webpage at least seven days before the termination date.

© 2020 Schiff Hardin LLP

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About this Author

Partner

Daniel J. Deeb represents corporate and municipal clients in Civil litigation, Administrative proceedings, and Permit negotiations.

312-258-5532
Alex Garel-Frantzen, Schiff Hardin, Environmental attorney, EPA regulation lawyer, air toxins legal counsel, environment law enforcement
Associate

Alex Garel-Frantzen is an associate at Schiff Hardin who works with the Environmental group on issues like EPA regulations, air toxins, and environmental law enforcement and compliance.

EDUCATION

  • University of Illinois College of Law, J.D., 2015, magna cum laude

    • University of Illinois Law Review, Managing Notes Editor

    • Environmental Moot Court, editor and national team member

    • CALI awards in Legal Writing & Analysis, Legal Research, and Introduction to Advocacy

  • University of Illinois, B.A., History, 2012, magna cum laude

BAR ADMISSIONS:

  • Illinois

312-258-5521