EPA Issues Enforcement Discretion Policy During COVID-19 Crisis

On March 26, 2020, the United States Environmental Protection Agency (EPA) issued a memorandum entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” setting forth its policy and intent to utilize its enforcement discretion during the COVID-19 crisis.

Contrary to what has been reported in the press, EPA has not suspended all environmental rules and regulations. EPA will, however, exercise its enforcement discretion if noncompliance with EPA rules and regulations is not “reasonably practicable” and will generally, not seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where EPA agrees that COVID-19 was the cause of the noncompliance.

In order to be eligible for enforcement discretion for violations occurring after March 13, 2020, while this policy is in effect, a facility must:

• minimize the effects and duration of any noncompliance
• identify the specific nature and dates of noncompliance
• identify how COVID-19 was the cause of the noncompliance and what measures were taken to comply and to return to compliance
• return to compliance as soon as possible
• document these efforts.

The enforcement discretion policy does not apply to criminal violations, activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments, imports, pesticide products regulated under FIFRA, or a person’s responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants, as required by federal law.  Authorized States are also not bound by the policy and may take different approaches to enforcement during the crisis.

The policy also provides that:

• EPA will accept digital signatures in lieu of “wet” signatures of responsible officials where otherwise required;
• Notifications of noncompliance should be made in the manner set forth in any permit or consent order or decree;
• For exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases, as a result of the failure of air emission control or wastewater or waste treatment systems or other facility equipment, the facility must notify the applicable regulatory agency as quickly as possible and EPA will work with the state authorities to determine the appropriate response;
• Generators of hazardous wastes unable to remove stored hazardous wastes within proscribed timeframes as a result of COVID-19 impediments will not be treated as transfer, storage, and disposal facilities as long as they maintain compliance with labeling and storage requirements and return to compliance as soon as possible. Similarly, Very Small Quantity Generators will not be treated as a Small Quantity Generators if it exceeds a regulatory volume threshold;
• Animal feeding operations unable to transfer animals off-site will not be treated as CAFOs;
• Public water systems are expected to continue to comply with regulatory obligations under “heightened expectations” of compliance with a priority of compliance with monitoring required under National Primary Drinking Water Regulations to protect against microbial pathogens, nitrate/nitrite and Lead and Copper Rule monitoring and finally other contaminants for which the system has been non-compliant. EPA will, in consultation with state authorities consider the circumstances in taking enforcement actions for violations of these requirements;

It should be stressed that the issuance of this policy is not a blanket excuse for noncompliance, nor is it a guarantee of EPA enforcement discretion or a “No Action Assurance” protecting facilities from enforcement in the event of noncompliance. While EPA may consider short term “No Action Assurance” determinations for essential critical infrastructure facilities if, in the public interest, facilities should continue to make every effort to comply with regulatory requirements and contact applicable regulatory agencies if it becomes apparent that such compliance is impracticable as a result of COVID-19 impacts or restrictions.

Susan Johnson
248.258.1307
johnsons@butzel.com

Beth Gotthelf
248.258.1303
gotthelf@butzel.com