EPA to Exercise Enforcement Discretion in Response to COVID-19

The U.S. Environmental Protection Agency (EPA) announced a temporary policy regarding enforcement of legal obligations of facilities affected by the spread of the 2019 novel Coronavirus (named COVID-19). The temporary enforcement policy, released by the EPA on March 26, will apply retroactively beginning March 13, 2020 and addresses concerns that potential worker shortages, as well as the travel and social distancing restrictions imposed by governments and corporations or recommended by the Centers for Disease Control and Prevention, may adversely affect operations at facilities.

The policy addresses certain facilities and situations differently (e.g., public water systems must still ensure drinking water safety). If regulated entities take the steps applicable to their situations (which are set forth in the policy), the EPA will exercise its enforcement discretion for noncompliance covered by the temporary policy and resulting from the COVID-19 pandemic to apply the policy to such noncompliance in lieu of an otherwise applicable EPA enforcement response policy.

The EPA conditioned all enforcement discretion set forth in the temporary policy on entities making every effort to comply with their environmental compliance obligations. However, if compliance is not reasonably practicable, facilities with environmental compliance obligations should:

  • Act responsibly under the circumstances to minimize the effects and duration of any noncompliance caused by COVID-19
  • Identify the specific nature and dates of the noncompliance
  • Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity
  • Return to compliance as soon as possible
  • Document the information, action or condition specified in the above bullet points

The EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification obligations in situations where COVID-19 caused the noncompliance.

With respect to submittals to the agency, EPA is accepting a digital or other electronic signature of responsible officials in lieu of a “wet” signature. Further, EPA is accepting electronic submittals of reports normally required to be submitted in original form.

The EPA also clarified that generators of hazardous waste whoare unable to timely transfer their waste off-site in order to maintain generator status should continue to properly label and store the waste and comply with the obligations outlined in the bulleted list above. In such situations, EPA will treat these entities as hazardous waste generators rather than as treatment, storage and disposal facilities.

The policy does not apply to criminal violations, activities carried out under Superfund and RCRA Corrective Action enforcement instruments, or accidental release(s). Authorized states or tribes may also take a different approach under their own authorities.

While the temporary policy doesn’t clarify what constitutes “best efforts” to comply, it suggests that EPA will take a reasonable approach to enforcement if a facility has acted reasonably in light of its current situation and documented all of its efforts. Therefore, it is important that facilities develop thorough documentation of all relevant facts and circumstances leading to any noncompliance, the direct connection between the noncompliance and the COVID-19 pandemic, steps taken to mitigate and minimize noncompliance, and all efforts taken to return to compliance as soon as possible. This documentation should be developed contemporaneously and updated continuously throughout the period of noncompliance.

The EPA will assess the continued need for and scope of the temporary policy on a regular basis and will update the policy if it determines modifications are necessary. The policy is set forth as:

Taylor Porter will continue to monitor legislation, news, and legal developments pertaining to COVID-19.