The Environmental Protection Agency is implementing a temporary policy to forgo assessing penalties for noncompliance with routine monitoring and reporting obligations, provided that noncompliance is the result of the COVID-19 pandemic. Susan Parker Bodine, EPA’s assistant administrator for enforcement and compliance, announced the policy in a memorandum issued on March 26. EPA will apply its enforcement discretion retroactively, beginning on March 13, 2020, and will “assess the continued need for and scope of this temporary policy on a regular basis.” Notice of the policy’s termination will be published on the EPA’s website at least seven days prior to termination.

The policy provides potential enforcement relief to operators of regulated activities that include, for example, manufacturing, hazardous waste generation, electric power generation, and water and wastewater treatment. Where an operator’s ability to comply with applicable regulatory requirements is impacted by an operator’s efforts to protect employees, contractors, and the public from COVID-19, the operator must take specific steps to qualify for EPA’s COVID-19 enforcement discretion, and clearly document those steps, as follows:

• Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by the COVID-19 pandemic.
   
• Identify the specific nature and dates of the noncompliance.
   
• Identify how the COVID-19 pandemic 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 operations to compliance as soon as possible.

In addition, operators should report noncompliance in their routine activities using existing procedures where applicable, such as pursuant to permits, regulations, or statutes.

The types of noncompliance matters that are potentially covered by EPA’s temporary enforcement policy are described further below:

Routine Requirements
EPA’s enforcement policy focuses heavily on routine monitoring, testing, training, and reporting obligations. For these types of routine requirements that apply to intervals of less than three months, EPA will not ask facilities to “catch-up” with missed activities, absent exigent circumstances. For less frequent intervals, such as semiannual, annual and bi-annual reports, operators will be required to take reasonable measures to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports. The policy notes that many training classes are offered online and, where available, such online training should be utilized to maintain normal certification and training practices.

EPA Administrative Settlement Agreements. Generally, EPA will not seek penalties for noncompliance with routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and associated reporting or certification obligations set forth in EPA administrative settlement agreements. If other reporting obligations or compliance milestones will be missed as a result of the COVID-19 pandemic, operators should utilize the notice procedures set forth in the agreement, including notification of a force majeure, as applicable. Those situations will be addressed on a case-by-case basis.

Consent Decrees
Courts retain jurisdiction over consent decrees entered with EPA and the U.S. Department of Justice and may exercise their own judicial authority. However, EPA commits in the policy to coordinating with DOJ to exercise enforcement discretion with regard to stipulated penalties for routine compliance obligations. EPA also says that operators should utilize the notice procedures set forth in their consent decrees, including notification of a force majeure, as applicable.

Facility Operations
EPA may extend its discretion under the policy to limitations on air emissions, water discharges, and requirements for the management of hazardous waste. The policy manages noncompliance in those areas differently.

For failures of air emission control, wastewater, waste treatment systems, or other facility equipment that may result in an exceedance of one or more enforceable standards or limitations, the facility should notify the implementing authority as quickly as possible with (1) information on the pollutants emitted, discharged, discarded, or released; (2) the comparison between the expected emissions or discharges, disposal, or release and any applicable limitation; and (3) the expected duration and timing of the exceedance. The general documentation requirements described in bullet points above also apply. In these cases, EPA will consult with authorized states or tribes to determine the appropriate response.

Hazardous waste generators that cannot meet applicable accumulation time limits due to disruptions caused by the COVID-19 pandemic must continue to label and store their waste properly. If that bar is met and the decisions made to prevent or mitigate noncompliance are documented in accordance with the bullet points above, EPA will treat such entities as hazardous waste generators, and it will not impose the more rigorous permitting and compliance requirements applicable to treatment, storage, and disposal (TSD) facilities. In addition, EPA will treat very small quantity generators (VSQGs) and small quantity generators (SQGs) as retaining that status without triggering additional compliance requirements, even if the amount of hazardous waste stored on-site temporarily exceeds a regulatory volume threshold due to the operator’s inability to arrange for shipping of hazardous waste off-site because of the COVID-19 pandemic.

Importantly, any noncompliance issues that may create “an acute risk or an imminent threat to human health or the environment” must be reported to the implementing agency (e.g., the EPA regional office and/or state, tribal, or local agency) as quickly as possible. In such instances, EPA will work with the operator, various EPA program offices, and relevant state, tribal, or local agencies to evaluate the issue and determine whether an enforcement response is appropriate.

Public Water Systems
EPA’s temporary enforcement policy applies more narrowly to public water systems. EPA expects operators of public water systems to continue normal operations, maintenance, and required sampling, with laboratories providing timely analysis of samples and results. The policy sets forth a framework for compliance priority in the event of worker shortages in the water sector and encourages operators to consult with state and regional offices without delay if disruptions caused by the COVID-19 pandemic arise. In these cases, EPA will consider the circumstances when determining whether any enforcement response is appropriate.

Ineligible for Enforcement Discretion
The policy also identifies categories of noncompliance that are not eligible for enforcement discretion, as follows:

• Activities carried out under the Superfund or Resource Conservation and Recovery Act (RCRA) corrective action programs. EPA indicated that a separate communication is forthcoming regarding its management of these areas.
   
• Requirements for imports under various regulations, such as the Toxic Substances Control Act (TSCA) and Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The policy specifically calls out EPA’s concerns regarding pesticide products entering the United States – or those produced, manufactured, or distributed in the United States – that claim to address COVID-19 impacts.
   
• Criminal violations of environmental standards or associated requirements. The policy applies to civil noncompliance issues only, and provides no leniency for intentional criminal conduct.

Where the policy does not apply, EPA indicated that it may provide additional enforcement guidance in the future. A reduction or elimination of any civil penalties may also be available under EPA’s audit policy where an operator voluntarily discovers, promptly discloses, expeditiously corrects, and take steps to prevent recurrence of potential violations.

Finally, the policy does not extend to states, tribes, or local jurisdictions, which may take a different approach to addressing environmental noncompliance arising from the COVID-19 pandemic. Where noncompliance issues arise under the shared jurisdiction of EPA and state, tribal, and/or local agencies, operators must work with the non-federal agencies regarding their own enforcement and compliance policies.

For additional information please contact me or your regular Parker Poe contact. You can find the firm’s other COVID-19 alerts here.