September 29, 2020

Volume X, Number 273

September 29, 2020

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September 28, 2020

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U.S. EPA’s Temporary COVID-19 Enforcement Discretion Policy

On Thursday, March 26, the United States Environmental Protection Agency (“EPA”) announced and issued a Memo establishing an agency-wide temporary enforcement policy suspending or staying a broad array of enforcement efforts for certain environmental regulations and requirements in response to the COVID-19 pandemic.  The Memo states that EPA recognizes that “the pandemic may affect facility operations and the availability of key staff and contractors and the ability of laboratories to timely analyze samples and provide results.”  In light of this, the Memo states that EPA will “focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment.”  The Memo establishes certain limits on the policy as well as procedures that must be followed – which are different in different circumstances – in order for an impacted regulated entity to qualify for relief under the Policy.

Policy Limitations

  • Policy is Temporary. The Enforcement Policy is retroactive to March 13, but it is also temporary.  EPA will continue to assess the pandemic situation and at some point will suspend the Policy.  It will provide at least seven days’ notice before terminating the policy by posting a notice to its website.
  • Policy Exclusions. The Policy does not apply to criminal violations, reporting obligations related to accidental spills and releases, imports, nor to “activities that are carried out under Superfund and [Resource Conservation and Recovery Act (“RCRA”)] Corrective Action enforcement instruments.”  This last category will be addressed in a separate, forthcoming memo.
  • Case-by-Case Application. In the Memo, EPA carefully reserves its right to exercise discretion under the relevant regulatory schemes on a case-by-case basis.  We are seeing this borne out on the ground.  For example, the day after the Policy was announced, active cleanup operations at a high profile Superfund site in Colorado were suspended due to COVID-19, while at another high profile site in Oregon, EPA issued two large unilateral orders requiring millions of dollars of cleanup work.

Policy’s Types of Relief and Requisite Procedures

EPA’s enforcement discretion policy is tailored to a variety of different situations, providing different types of relief and establishing different procedural requirements for each.  These include:

  • Regulatory Compliance. The Policy urges regulated entities to comply to the extent possible.  However, if the pandemic makes “compliance not reasonably practicable,” the Memo advises entities to document how the pandemic made it so and return to compliance as soon as possible.
  • Civil Violations. EPA “does not expect to seek penalties” for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification in situations where COVID-19 was the cause of non-compliance and the regulated entity provides supporting documentation upon request.  This includes non-compliance with obligations under administrative settlement agreements with EPA and consent decrees (although courts have jurisdiction to enforce consent decrees), provided that the regulated entity provides notice of non-compliance as required by the agreement.
  • Facility Operations that Pose Acute Risks. The Memo specifies procedures for situations where COVID-19 related disruptions to facility operations may create an acute risk or imminent threat to human health or the environment, or where COVID-19 related disruptions may cause the failure of air emission control or wastewater or waste treatment systems.  The first and most important step is to consult with the appropriate agency overseeing the facility.  Where those procedures are followed, “EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.”
  • Hazardous Waste Generators. If a hazardous waste generator cannot transfer waste off-site within regulatory timelines but follows certain procedures specified in the Memo (g., maintaining labeling and storing requirements), EPA will continue to treat the facility as a generator (rather than a treatment, storage and disposal facility).  The same is true for Very Small Quantity Generators and Small Quantity Generators that exceed their regulatory volume thresholds.
  • Animal Feeding Operations. If such facilities are unable to move animals off-site due to COVID-19, the Memo provides that will not be considered concentrated animal feeding operations (“CAFOs”) if they follow certain specified procedures.
  • Public Water Systems. These systems are expected to operate normally, but the Memo sets up tiers of compliance monitoring priorities and states that EPA will “consider the circumstances when considering whether enforcement response is appropriate.”
  • Criminal Enforcement. In considering whether to refer matters to the U.S. Department of Justice for criminal enforcement, the Memo states that EPA will distinguish between violations that are unavoidable due to COVID-19 and those that result from an intentional disregard for the law.

While these statements represent a dramatic shift in EPA’s enforcement policies, they are not binding on states implementing federal environmental regulations under delegated authority.  Of course, they also are not binding upon states and tribes’ exercise of discretion with respect to their own regulatory programs.  Some are already issuing similar policies; some appear unlikely to do so.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 91


About this Author

Nicholas van Aelstyn, Sheppard Mullin Law Firm, Real Estate and Land Use Litigation Attorney

Nicholas van Aelstyn is a partner in the Real Estate, Land Use and Environmental Practice Group in the firm's San Francisco office.

Zachary Norris Real Estate and Land Use and Environmental Attorney Sheppard Mullin Los Angeles, CA

Zachary M. Norris is an associate in the Real Estate, Land Use and Environmental Practice Group in the Los Angeles office.

Areas of Practice

Zachary has a broad practice that focuses on land use, contaminated properties and civil litigation. His litigation experience includes successfully prosecuting and defending claims on behalf of corporate and municipal clients in both state and federal courts, including the U.S. Court of Appeals for the Ninth Circuit, California's Court of Appeal and the Supreme Court of California. Zachary has secured orders in his clients’ favor on several motions in state and federal trial courts, including temporary restraining orders, preliminary injunctions, summary judgment motions, demurrers, and motions to dismiss. He also has substantial expertise in appellate practice, and has been the primary author on numerous appellate briefs.

Zachary works on various matters involving remediation of contaminated properties under the federal Superfund law and its state equivalents. He has defended potentially responsible parties and groups of potentially responsible parties against claims by federal and state governments as well as in alternative dispute resolution proceedings. Zachary has negotiated dozens of indemnification, access, and remediation agreements to assist in the cleanup of contaminated properties, and has advised municipalities and development companies regarding redevelopment of contaminated properties.

Prior to joining Sheppard Mullin, Zachary worked for the Oregon Department of Justice, Natural Resources Section, on land use and planning under Oregon's Measure 37, a comprehensive stream adjudication for the Klamath River Basin, and timber harvesting on public lands. He also interned at the Federal Public Defender for the District of Oregon, assisting with trial preparation for federal criminal and terrorism cases.

Before law school, Zachary was a Teach For America Corps Member, teaching high school biology in Baltimore, Maryland. He also co-founded Youth Organizing Urban Revitalization Systems (YOURS), a 501(c)(3) micro-enterprise initiative in Baltimore.