On March 26, 2020, the Environmental Protection Agency (EPA) issued guidance regarding enforcement discretion in light of the COVID-19 pandemic. The guidance acknowledges that COVID-19 may impair compliance with environmental laws and regulations and sets forth the steps that regulated entities must take to qualify for enforcement relief. The policy is retroactive to March 13, 2020, and has no end date.
General Conditions for Enforcement Discretion
The guidance provides that regulated entities should make every effort to comply with their obligations, but if compliance is not reasonably practicable, they should:
- act responsibly to minimize the effects and duration of noncompliance;
- identify the nature and dates of noncompliance;
- identify how COVID-19 was the cause of 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; and
- document the information, action or condition specified in (a)-(d).
EPA will exercise enforcement discretion for noncompliance in the areas outlined below, provided that the regulated entities meet certain specific conditions.
- Compliance Monitoring and Reporting. The guidance recognizes that the COVID-19 pandemic may hamper routine monitoring and reporting requirements. Thus, the guidance provides that 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 the EPA agrees that COVID-19” caused the noncompliance.
- Settlement and Consent Decree Obligations. The guidance directs parties with EPA administrative settlement agreements or consent decrees to utilize notice procedures set forth in the agreement/decree in the event of noncompliance due to the COVID-19 pandemic. With respect to administrative agreements, EPA “will generally not seek stipulated or other penalties for noncompliance.” With respect to consent decrees, the guidance provides that EPA will coordinate with the Department of Justice to exercise enforcement discretion, but notes that courts retain jurisdiction over consent decrees and may exercise their own authority.
- Facility Operations. The guidance provides that EPA expects all regulated entities to continue operating their facilities in a manner that is “safe and that protects the public health and the environment.” If facility operations impacted by the COVID-19 pandemic “may create an acute risk or an imminent threat to human health or the environment,” the regulated entity should contact the appropriate implementing authority (e.g., EPA, authorized state, or tribe), which will take appropriate steps. If a facility suffers from a failure of air emission controls or wastewater treatment systems that may result in exceedances of enforceable limitations, the regulated entity should notify the implementing authority, which will take appropriate steps.
- Facility Operations–Generators of Hazardous Waste. If generators of hazardous waste cannot transfer the waste off-site due to the COVID-19 pandemic, they will not lose their status as a generator provided the waste is properly labelled and stored on-site. Very Small and Small Quantity Generators will retain their prior status even if the amount of hazardous waste stored on-site exceeds regulatory thresholds due to the COVID-19 pandemic.
- Facility Operations–Animal Feeding Operations. As an exercise of enforcement discretion, EPA will not reclassify animal feeding operations as concentrated animal feeding operations (CAFOs) if they become unable to transfer animals off-site due to the COVID-19 pandemic.
- Public Water Systems. The guidance provides that EPA has “heightened expectations” for public water systems, because they have a “heightened responsibility” to provide clean water during the COVID-19 pandemic. In the event of worker shortages, EPA will prioritize (1) monitoring required under the National Primary Drinking Water Regulations to protect against microbial pathogens; (2) nitrate/nitrite, Lead and Copper Rule monitoring; and (3) monitoring for contaminants for which a system has been noncompliant. EPA will consider the circumstances when determining whether any enforcement response is appropriate at public water systems.
- Critical Infrastructure. The guidance provides that EPA, on a case-by-case basis, may consider a “more tailored short-term No Action Assurance” where a facility is essential critical infrastructure and EPA determines that it is in the public interest.
There are several important limitations to the guidance, including the following.
- CERCLA & RCRA. The guidance does not apply to activities that are carried out under Superfund or RCRA Corrective Action enforcement instruments, but it states that such matters will be addressed in a separate communication.
- Imports. The guidance does not apply to imports. EPA expects to focus on ensuring compliance with imports, particularly pesticide products that claim to address COVID-19 impacts.
- State Oversight. The guidance does not limit state oversight of environmental laws.1
- EPA Actions. The guidance provides that ongoing enforcement matters will continue, but during the COVID-19 pandemic, EPA will focus its resources on situations that may create an acute risk or imminent threat to public health or the environment.
- Accidental Releases. The guidance does not relieve any entity from its obligations with respect to accidental releases of oil, hazardous chemicals, hazardous waste and other pollutants.
- Criminal Violations. The guidance does not apply to criminal violations of federal environmental statutes.
- Citizen Suits. The policy does not address citizen suits.
Effective Date & Termination
The policy is retroactive to March 13, 2020. Although the policy contains no end date, EPA committed itself to regularly reviewing the policy and providing a seven-day notice of its termination found on their web page “Enforcement Policy, Guidance & Publications.”
This policy signals that EPA will not seek penalties during the COVID-19 pandemic provided that any noncompliance was caused by it. However, the policy does not restrict the ability of states to enforce their own environmental laws or delegated federal laws. To date, New York State has not announced a similar policy. As such, regulated entities in and out of New York should make every effort to comply with their environmental obligations and carefully document any noncompliance due to the COVID-19 pandemic.
- Several states, including Texas and California, have announced similar policies. To date, New York has not adopted similar guidance. In response to Executive Order 202.6, the New York State Department of Environmental Conservation (DEC) issued guidance — found on their web page “Environmental Cleanup & Brownfields” — on activities it considers essential to environmental cleanups, but has not relaxed environmental reporting or other requirements.