EPA Issues Enforcement Discretion Memo for Routine Civil Violations Arising from COVID-19 Pandemic

Update: EPA has created a frequently-asked questions about covid-19 webpage that is available Here.

The federal Environmental Protection Agency has issued a Memo announcing that it will temporarily exercise enforcement discretion for certain civil violations where the non-compliance was a result of the COVID-19 pandemic.

Contrary to news articles in such publications  as E&E NewsThe Hill , the AP, and  the New York Times suggesting that the policy provides a blanket waiver of environmental requirements or creates a presumption that the pandemic is the cause of noncompliance, EPA is NOT providing a sweeping opportunity for business to pollute at will. Instead, the policy is a targeted exercise of enforcement discretion that responds to real issues confronting the regulated community because of the shutdown of non-essential services in response to the COVID-19 pandemic.

The agency has received inquiries from a number of leading trade associates such as National Waste & Recycling Association addressing RCRA compliance concerns  because of the difficulties their members were encountering due to the shelter-in rules adopted by states in response to the COVID-19 crisis.   Had EPA not issued the policy, it is quite likely the agency and state regulators would have been swamped with requests for enforcement discretion and force majeure claims that would divert administrative resources that have already been stretched thin by work-at-home orders.

This action is also not unprecedented. In response to Hurricanes Katrina and Rita, EPA invoked 41 enforcement discretion actions and issued 21 Force Majeure letters. In response to Hurricane Sandy. EPA announced 13 enforcement discretion actions. Indeed, 8 of these enforcement discretion actions involved suspending enforcement of entire swaths of the federal code of regulations as well as state implementation plans.

Because of the incorrect news reports which often only quote former Obama administration officials or members of environmental organizations, EPA issued a press release on March 30th clarifying that the enforcement discretion does not excuse exceedances of pollutant limitations in permits, regulations, and statutes. EPA reiterated that it expects regulated entities to comply with all obligations and if they do not, the policy says that EPA will consider the pandemic-related enforcement discretion requests  on a case-by-case basis when determining an appropriate response to a case of non-compliance.

Indeed, a number of states such as California, Louisiana, Oregon and Texas have issued their own enforcement discretion guidance. These policies allow regulators to focus their severely limited resources on and enable them to promptly respond to conditions that pose serious risks of harm to human health and the environment. These states have not come under the same fire from the media or environmental advocates for their enforcement discretion initiatives as EPA, which suggests the criticism lobbed at EPA may be politically-motivated.

It is also important to remember that this policy is NOT binding on states that have been authorized to implement federal environmental laws (e.g., CAA, CWA, RCRA)  so facilities need to consult with their state regulators. Moreover, the EPA enforcement discretion policy also does NOT provide protection against citizen suits.

EPA’s enforcement discretion policy which is retroactive to March 13th applies to civil violations that occur during the COVID-19 pandemic. It does not apply to intentional criminal violations of law. The policy also does NOT pertain to remedial activities that are carried out under Superfund and RCRA corrective action enforcement instruments. EPA will address these matters in separate communications.

The temporary enforcement discretion policy does NOT relieve any entity from the 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.

The policy addresses different categories of noncompliance differently. For example, the EPA will NOT seek penalties for the following categories of violations provided  EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request:

  • routine compliance monitoring,
  • integrity testing,
  • sampling,
  • laboratory analysis,
  • training,
  • recordkeeping, and
  • reporting or certification obligations

The agency expects operators of public water systems to continue to ensure the safety of our drinking water supplies.

During the COVID-19 crisis, EPA said it will focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment.

The policy describes the general steps that regulated facilities should take to qualify for enforcement discretion for civil violations.

  1. Entities should make every effort to comply with their environmental compliance obligations.
  2. If compliance is not reasonably practicable, facilities with environmental compliance obligations should:

a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;

b. Identify the specific nature and dates of the non-compliance;

c. 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;

d. Return to compliance as soon as possible; and

e. Document the information, action, or condition specified in items (a) through (d).

The policy then discusses requirements for specific categories of non-compliance.

Administrative Settlements- If parties to an EPA administrative settlement agreement anticipate missing enforceable milestones or obligations set forth in these documents as a result of COVID-19, EPA said they comply with the notice procedures set forth in the agreement, including notification of a force majeure where applicable. The notification should provide the information required by the agreement. EPA staff will review these notifications and may contact a party to seek adjustments to a proposed plan of action, pursuant to the agreement.

Consent Decrees- Parties to judicial consent decrees are advised to comply with the notice procedures set forth in the consent decree, including notification of a force majeure where applicable for any noncompliance alleged to be caused by COVID-19. EPA staff will coordinate with U.S. Department of Justice (DOJ) to exercise enforcement discretion for stipulated penalties for the routine compliance obligations. However, EPA cautioned that courts retain jurisdiction over consent decrees and may exercise their own authority.

EPA said parties should proceed as proposed in their notice to the EPA (and to DOJ for consent decrees) unless and until contacted by the agency (if an EPA administrative settlement) or DOJ (if a judicial consent decree).

Hazardous Waste Generators

If a facility is a generator of hazardous waste and is unable to transfer the waste off-site due to disruptions caused by the COVID-19 pandemic within the time periods required under RCRA to maintain its generator status, EPA said the facility should continue to properly label and store such waste and take the general steps identified above.

If these general steps are met, the EPA will, as an exercise of enforcement discretion, treat such entities to be hazardous waste generators, and not treatment, storage and disposal facilities. In addition, the EPA will continue to allow Very Small Quantity Generators and Small Quantity Generators to retain their status even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold due to the generator’s inability to arrange for shipping of hazardous waste off of the generator’s site due to the COVID-19 pandemic.

Failure of Pollution Controls

If a facility suffers from failure of air emission control or wastewater or waste treatment systems, or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases, the facility should notify the implementing authority  as quickly as possible. The notification also should include the following information:

  • pollutants emitted, discharged, discarded, or released;
  • comparison between the expected emissions or discharges, disposal, or release and any applicable limitation(s); and
  • the expected duration and timing of the exceedance(s) or releases.

The EPA will consult with authorized states or tribes, as applicable, in accordance with the July 11, 2019 memorandum on “Enhancing Effective Partnerships Between EPA and States in Civil Enforcement and Compliance Assurance Work” to determine the appropriate response.

Where the EPA implements the program directly, the EPA will evaluate whether the risk posed by the exceedance, disposal, or release is acute or may create an imminent threat to human health or the environment.

Facility Non-Compliance Posing Acute Risks or Imminent Threats

EPA said it expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment. However, if facility operations are impacted by the COVID-19 pandemic and the non-compliance may create an acute risk or an imminent threat to human health or the environment, the facilities should contact the appropriate implementing authority (EPA region, authorized state, or tribe). Even where a facility is located in an authorized  state, EPA strongly encourages facilities and states to consult with their EPA regional office about the non-compliance that poses a potential for acute risks and imminent threats.

When EPA becomes aware of noncompliance that could result in an acute risk or an imminent threat to human health or the environment, the memo says EPA will act as follows.

  1. In authorized states, EPA will first consult with the state or tribe to determine if the state-issued permit or regulations have provisions that address the situation and result in a return to compliance.
  2. Where EPA administers the regulatory program, the agency will take the following actions:

a. The EPA regional office will evaluate whether an applicable permit, statutory, or regulatory provision addresses the situation;

b. If there is no permit/regulatory provision that addresses the situation, the EPA will work with the facility to minimize or prevent the acute or imminent threat to health or the environment from the COVID-19-caused noncompliance and obtain a return to compliance as soon as possible;

c. EPA will inform the relevant state or tribe of any acute threats and actions taken in response to the noncompliance; and

d. The EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.

EPA indicated that absent exigent circumstances, it would not require facilities to “catch-up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For other monitoring or reports, such as those required on a bi-annual or annual basis, the EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports when the policy is no longer in effect.

In screening cases for referral to DOJ for potential criminal violations, EPA said it will distinguish violations that facilities know are unavoidable as a result of COVID-19 restrictions from violations that are the result of an intentional disregard for the law. EPA indicated its  Criminal Investigative Division would remain vigilant and is prepared to pursue violators who demonstrate a criminal intent.

Finally, EPA said it may provide additional enforcement guidance applicable to specific regulatory programs on an ongoing basis. The agency also reminded the regulated community that the EPA’s self-disclosure program remains available for violations that are voluntarily reported .

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