April 17, 2020

EPA COVID-19 enforcement policy issued

On March 26, 2020, EPA’s Office of Enforcement and Compliance Assurance (OECA) issued a policy memo that has significant implications for enforcement of regulations under a variety of environmental programs. The agency recognized that the COVID-19 pandemic has made it difficult for many in the regulated community to meet certain regulatory obligations, such as routine monitoring, reporting, sampling, training, etc. Therefore, until further notice, EPA plans to use increased discretion when deciding whether to enforce numerous regulations cited in the policy memo. The temporary policy will apply retroactively, beginning on March 13, 2020. The policy does not apply to criminal violations or to enforcement under Superfund and RCRA corrective action.

Enforcement discretion

All enforcement discretion under the temporary policy is conditioned on regulated entities making every effort to comply with their environmental compliance obligations. If compliance is not reasonably practicable, facilities should:

  1. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
  2. Identify the specific nature and dates of the noncompliance;
  3. 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;
  4. Return to compliance as soon as possible; and
  5. Document the information, action, or condition specified in items 1 through 4 above.

In general, 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 agency agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation. After the policy is no longer in effect, EPA expects full compliance going forward. In general, the agency does not plan to ask facilities to “catch-up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than 3 months.

Facility operations

EPA 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. 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 facility operator should contact the appropriate implementing authority (e.g., EPA region, authorized state, or tribe). The authorities will work with the facility to minimize or prevent any acute or imminent threat to health or the environment. In cases where EPA implements the regulatory program directly, the agency will consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.

If a facility experiences a failure of air emission control equipment or wastewater or waste treatment systems that may result in exceedances of applicable emission or discharge limits, the facility should notify the implementing authority as quickly as possible. The notification should include information on the pollutants emitted, discharged, discarded, or released; a 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. EPA will consult with authorized states or tribes, as applicable, to determine the appropriate response. Where EPA implements the program directly, the agency 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. EPA will work with the facility to mitigate any acute or imminent threat, will inform the relevant state or tribe of such threats and actions taken in response, and will use discretion when determining if enforcement is appropriate.

If a hazardous waste generator, due to disruptions caused by the COVID-19 pandemic and after making every effort to comply, is unable to transfer hazardous waste offsite within the required time periods (e.g., 90 or 180 days), the generator should continue to properly store and label the waste and take the 5 steps enumerated in the section above on enforcement discretion. Per the policy memo, if these steps are met, based on EPA discretion, the entity will remain a generator and will not be considered a storage facility operating without a permit. Also, based on EPA discretion, the site’s generator category would not change even if the amount of hazardous waste stored onsite exceeds a volume threshold.

EPA will continue to monitor the need for and scope of this temporary policy on enforcement and will update the policy if changes are necessary. The agency will post a notice on its Enforcement Policy, Guidance & Publications page at least seven days prior to terminating the temporary policy.

McCoy Editorial

The 2020 COVID-19 pandemic is unprecedented in our lifetime, and it will continue to take extraordinary actions to blunt its effects. Public institutions, the private sector, and people in our country and across the globe are doing their very best in a difficult time.

However, in the nearly four decades that McCoy has been providing environmental regulatory seminars and content, we have not witnessed a relaxation of enforcement on such a sweeping basis as noted in this article. Industry has made great strides to operate in ways that are safer for human health and the environment and those gains have come in small incremental amounts over the past forty years. This is a worthy accomplishment. We trust and expect that industry will continue to do its best regarding environmental regulatory compliance including documenting the challenges and actions it takes during this time.

But more now than ever, we believe it is paramount to remember that even in times of severe constraints, regulatory compliance protects our communities, families and friends—and our water, land, and air. And that we all live more fully when connected to the beauty and wonder of nature.

 


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Disclaimer

Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.