EPA Issues Temporary Policy Regarding Enforcement of Environmental Legal Obligations in Response to COVID-19 Pandemic

March 27, 2020

On March 26, 2020, the U.S. Environmental Protection Agency (“EPA”) issued a temporary policy describing how it will exercise its discretion in enforcing civil violations resulting from noncompliance with a range environmental legal obligations during the COVID-19 pandemic. The temporary policy has limited retroactive effect to March 13, 2020.

As a result of nationwide shelter-in-place, travel, or social distancing restrictions, the EPA recognizes that regulated entities may be constrained in their efforts to carry out certain activities required by federal environmental permits, regulations, and statutes. Accordingly, the EPA’s temporary policy frees up the EPA to consider COVID-19-related restrictions as part of its enforcement discretion. Under the policy, the exercise of discretion is conditioned on compliance with the following general conditions:

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:

1. 1. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance cause by COVID-19;
   2. Identify the specific nature and dates of 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 a. through d.

In addition to these general conditions, the temporary policy discusses enforcement discretion arising from specific requirements, including, but not limited to, compliance monitoring and enforcement, settlement agreement and consent decree obligations, and facility operations.

Routine Compliance Monitoring and Reporting

The EPA acknowledges that COVID-19 restrictions may constrain the ability of regulated entities to perform routine monitoring, testing, sampling, analysis, and reporting or certification. The temporary policy therefore provides that the EPA does not expect to seek penalties for violations of routine obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request. The EPA expects, however, that entities will continue to use existing procedures to report instances of noncompliance or, if no procedures exist or reporting is impracticable due to COVID-19, that entities maintain this information and make it available to the EPA, authorized states, or tribes upon request.

To facilitate ongoing compliance with reporting requirements, the EPA’s temporary policy also allows for digital or other electronic signatures for submittals that previously required a “wet signature,” and for electronic submittals that previously required paper originals.

Settlement Agreement and Consent Decree Reporting Obligations and Milestones

For EPA administrative settlement agreements, the EPA does not intend to seek stipulated orders or other penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and associated reporting or certifications provisions. The temporary policy, however, recommends that entities who anticipate noncompliance with enforceable milestones as a result of COVID-19 should provide notice as required set forth in the administrative agreement, including notification of force majeure.

For consent decrees involving the EPA and U.S. Department of Justice (“DOJ”), EPA staff will coordinate with the DOJ to exercise enforcement discretion for noncompliance with routine compliance obligations and will consult with any co-plaintiffs to seek consensus. Note, however, that courts retain their own jurisdiction over consent decrees, and may choose to exercise their own authority. The EPA again recommends that entities should utilize notice procedures set forth in the consent decree, including force majeure, as applicable.

Facility Operations

The EPA’s temporary policy expects that all regulated entities will continue to manage and operate their facilities in a safe manner that protects the public and environment. For entities who cannot manage or operate their facilities in a safe manner as a result of COVID-19, the temporary policy recommends that the entity contact the appropriate implementing authority (EPA region, state, or tribal authority).

If a facility fails to implement air emission controls or wastewater or waste treatment systems or equipment that results in emission, discharge, or release exceedances, the temporary policy also recommends that the regulated entity notify the implementing authority with information on the pollutants emitted, discharged, or released; the difference between expected emissions, discharges or releases and permitted levels; and the anticipated duration or timing of the emission, discharge, or release.

If a facility is a generator of hazardous waste and is unable to transfer waste offsite in compliance with RCRA’s timelines as a result of COVID-19 restrictions, the temporary guidelines call for facilities meeting the general conditions to be treated as “hazardous waste generators” and not “treatment, storage, and disposal facilities.” The EPA will also allow “Very Small Quantity Generators” and “Small Quantity Generators” to retain their status, even if storage volumes exceed regulatory thresholds.

Activities Not Covered by the Temporary Policy

Most notably, the EPA’s temporary policy does not alter the approach authorized states and tribes may take with jurisdiction over an entity or facility. In California, the California Environmental Protection Agency has not announced any COVID-19 related policies regarding enforcement for environmental obligations. Certain state agencies have, however, issued their own individual policies. As we previously discussed here, the State Water Resources Control Board and Regional Water Boards issued an update advising that facilities must continue to comply with all water board orders and requirements notwithstanding any shelter-in-place restrictions. Likewise, the California Air Resources Board (“CARB”) Chair and Executive Officer’s response to the COVID-19 pandemic states that “CARB regulations continue to be in effect and deadlines apply.”

The EPA’s temporary policy also does not apply to criminal environmental regulation violations, activities carried out under Superfund or RCRA Corrective Action enforcement instruments, and import requirements.

We will continue to monitor developments and will provide updates as appropriate.

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Adam Guernsey is a Partner at Harrison, Temblador, Hungerford & Guernsey LLP in Sacramento, California.

© 2020 – Harrison, Temblador, Hungerford & Guernsey LLP. All rights reserved. The information in this article has been prepared by Harrison, Temblador, Hungerford & Guernsey LLP for informational purposes only and does not constitute legal advice.