By Jeryl L. OlsonAndrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: U.S. Environmental Protection Agency (EPA), in support of the U.S. Government’s overall response to the COVID-19 pandemic, has announced a temporary enforcement discretion policy regarding environmental legal obligations during the COVID-19 pandemic.

EPA’s recently-released temporary enforcement discretion policy, COVID-19 Implications for EPAs Enforcement and Compliance Assurance Program (3/26/2020), (Policy) applies to civil violations during the COVID-19 outbreak. Criminal violations, Superfund obligations, and RCRA Corrective Actions will be addressed separately in forthcoming communications from EPA.

The Policy reiterates that entities must remain in compliance with environmental obligations and must “act responsibly” if compliance is not reasonably practicable due to COVID-19. If an entity determines that compliance is not reasonably practicable due to COVID-19’s impacts on its workforce, it must take certain actions to document that decision such as:

  • Identifying the specific nature and date of noncompliance;
  • Identifying how COVID-19 was the cause of the noncompliance;
  • Identifying the decisions and actions taken in response to the noncompliance, including the efforts to comply and the steps taken to come back to compliance at the earliest opportunity.

Entities who are out of compliance due to COVID-19’s impacts will be expected to maintain documentation and data to be provided to EPA upon request.

The Policy sets out a narrow set of circumstances where EPA will use discretion when enforcing civil environmental matters:

  • Reporting obligations set forth in permits, regulations, or statutes:
    • Including compliance monitoring, integrity testing, sampling, laboratory analysis, training, reporting, and/or certification
    • If “wet” signatures are required for a submission, EPA will accept a digital or other electronic signature
  • Reporting obligations set forth in settlements and consent decrees:
    • Again including compliance monitoring, integrity testing, sampling, laboratory analysis, training, reporting, and/or certification
    • If parties anticipate missing enforceable milestones in settlement agreements, those persons should utilize notice procedures in the agreements, to notify EPA
    • EPA will generally not seek stipulated penalties due to noncompliance with a settlement agreement as a result of COVID-19’s impacts
    • If a party anticipates noncompliance with a consent decree with EPA and the U.S. Department of Justice, EPA staff will coordinate with DOJ to exercise enforcement discretion with respect to stipulated penalties
  • Facility operations:
    • Facilities should contact EPA or other applicable authority if operational impacts due to COVID-19 may create an acute risk or imminent threat to human health or the environment
    • If a facility suffers from a failure of control systems or other equipment due to COVID-19, the facility should notify EPA as quickly as possible. The notification should include information as to the pollutants emitted, a comparison between the expected emissions due to the failure and applicable limitations, and the expected duration and timing of the exceedance or release
    • If a facility is a generator of hazardous waste and is unable to transfer waste off-site within the time periods set forth under RCRA, the facility should continue to properly label and store such waste until it can be removed
  • Public Water Systems:
    • The EPA expects public water systems to take all steps that are necessary to maintain normal operations and maintenance as well as required sampling to ensure drinking water safety
  • Critical Infrastructure:
    • If a facility is considered essential critical infrastructure by the Cybersecurity & Infrastructure Security Agency (CISA), EPA may consider a tailored short-term “No Action Assurance” with conditions to protect the public. Such decisions will be made on a case by case basis

Nothing in the Policy relieves an entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, chemicals, or waste, or other pollutants.

In his release announcing the Policy, Administrator Andrew Wheeler said that “EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements….This temporary policy is designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment.”

The Policy applies retroactively beginning on March 13, 2020.

States have provided their response to EPA’s Policy, with New York, among others, indicating it would not decrease its enforcement activities and Washington and Oklahoma, among others, indicating they would take EPA’s Policy into account when deciding the appropriate level of enforcement.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.