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U.S. EPA Releases COVID-19 Compliance Policy Document

Posted: March 30th, 2020

Authors: Roy R. 

The U.S. EPA (U.S. EPA) issued a temporary policy as a guidance memorandum on March 26, 2020 that addresses compliance and enforcement related issues that result from the COVID-19 pandemic.   The overall point of the policy is that U.S. EPA will exercise enforcement discretion for noncompliance as a result of the COVID-19 pandemic, so long as regulated entities abide by the policy.  The policy is comprehensive and acknowledges that states or other regulatory authorities may take different approaches consistent with their authorities. The policy applies retroactively to March 13, 2020 and U.S. EPA will apply the policy to compliance related issues while the policy is in effect. The policy does not apply to criminal violations and does not apply to Superfund and RCRA Corrective Action enforcement instruments, nor to imports (with an emphasis on pesticide products).

The U.S. EPA explains in a scope statement that “…the consequences of 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. As a result, there may be constraints on the ability of a facility or laboratory to carry out certain activities required by our federal environmental permits, regulations, and statutes.”  Logically, these consequences can affect reporting obligations specified in settlements, consent decrees, enforceable limitations on air emissions, water discharges, hazardous waste management, and other environmental obligations. U.S. EPA acknowledges that the policy will not cover every possible civil violation that may result from COVID-19 and states that additional guidance may be provided on an ongoing basis.

The policy addresses U.S. EPA enforcement discretion with regards to civil violations, state oversight, U.S. EPA actions, accidental releases, and criminal violations.  The most extensive and arguably the most useful guidance is provided under civil violations as summarized below:

  • General Conditions – The key point made is that regulated entities should take every effort to comply with their environmental obligations. In the event of noncompliance facilities are advised to minimize the effects and duration of the noncompliance, identify the specific noncompliance, document how COVID-19 caused the noncompliance and associated actions, and to document everything.
  • Routine Monitoring and Reporting – U.S. EPA advises that regulated entities should use existing procedures to report noncompliance. If there are no reporting provision or reporting tools, regulated entities are advised to maintain the information and provide it to regulatory authorities upon request. Where U.S. EPA agrees that the noncompliance is caused by COVID-19, they do not intend to seek penalties for events such as violations of routine monitoring, integrity testing, sampling, analysis, training, reporting, or certification obligations. Full compliance is expected following the expiration of the policy (U.S. EPA will provide notice seven days prior to termination of the policy).  U.S. EPA will accept digital or electronic signatures in lieu of “wet” signatures and email submittals in lieu of paper submittals.
  • Settlement Agreement and Consent Decree Reporting Obligations – For settlement agreement reporting obligations, if parties anticipate missing deadlines, they should use reporting mechanisms specified in the agreements including force majeure. U.S. EPA intends to treat routine monitoring, integrity testing, sampling, analysis, training, reporting, or certification obligations as described under routine monitoring and reporting (above) and will not seek penalties. Notifications must include related COVID-19 documentation as the cause. U.S. EPA acknowledges that consent decrees are court orders, and U.S. EPA will coordinate with the Department of Justice (DOJ) regarding enforcement discretion regarding stipulated penalties for routine compliance obligations. U.S. EPA also acknowledges that the courts retain jurisdiction over consent decrees and may “exercise their own authority”.  Parties are advised to use the notification procedures of the consent decree and force majeure as applicable with regard to COVID-19.
  • Facility Operations – The key point is that U.S. EPA expects regulated entities to “…manage and operate their facilities in a manner that is safe and that protects the public and the environment.” Facilities are advised to contact regulatory authorities (U.S. EPA, state, or local authority) if operations may create an acute risk or imminent threat to human health or the environment.
    • If contacted directly, U.S. EPA will consult with the state or local authority to discuss actions to minimize the threat and return to compliance. Where U.S. EPA implements the program, they will evaluate the permit and work with the Office of Enforcement and Compliance Assurance (OECA).  If not addressed by a permit or regulation, U.S. EPA will work with the facility to minimize the impact and return to compliance.  U.S. EPA will notify the state or local authority and will consider the COVID-19 circumstances in determining an enforcement response.
    • In the event of a failure of an air pollution control device or wastewater treatment system that results in exceedance, the facility should notify the regulatory authority as quickly as possible. The notification should include estimates of the releases, estimates of excess releases, and duration of the event.
    • For hazardous waste generators, if waste cannot be transferred offsite within RCRA timelines due to COVID-19, continue to properly label and store waste onsite and take steps described under general conditions above. U.S. EPA will use discretion and treat such entities as generators and not treatment storage, and disposal facilities. Very small generators will retain their status as an exercise in enforcement discretion.
    • For animal feeding operations unable to transfer animals off-site due to COVID-19 and becomes a concentrated animal feeding operation (CAFO) as a result, U.S. EPA will use discretion and will not treat such sites as CAFOs. Facilitates should abide by the general conditions above.

Additional policy guidance is provided in the document for public water systems and critical infrastructure that is not addressed herein.

Finally, the policy addresses the broader topics of state oversight, expected actions by U.S. EPA, accidental releases, and criminal violations in less detail.  Key points include

  • The expectation of U.S. EPA to focus resources largely on situations that may create an acute risk or imminent threat to public health or the environment.
  • The continued responsibility of entities to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants, as required by federal law.
  • The acknowledgement by U.S. EPA that they will screen cases in accordance with federal statutes to distinguish unavoidable violations as a result of COVID-19 restrictions from violations that are the result of an intentional disregard for the law.

The content presented herein represents a summary of the key points of the policy guidance. Please read the actual policy guidance to gain a full appreciation and understanding of how it can impact your operations or a possible instance of noncompliance.  Several key points to remember, as highlighted in the policy, include checking with your state or local regulatory authority to ensure consistency with the U.S. EPA policy guidance, documenting your specific noncompliance issue and how it was caused by COVID-19, notifying the U.S. EPA and/or the appropriate regulatory authority of the noncompliant event through normal or alternative means, and continuing to operate your facility in a manner that is safe and that protects the public and the environment.   Please contact me at rrakiewicz@all4inc.com if you have any questions.  Thanks for reading.
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