The U.S. Environmental Protection Agency (EPA) acknowledges that the travel and social distancing restrictions imposed by governments, along with guidance from other agencies, may affect facility operations and the availability of key staff and contractors, or the abilities of a facility or lab to analyze and report on samples; which, in turn, could affect a facility’s ability to comply with certain reporting obligations and milestones, or meet enforceable limitations.

Accordingly, on March 26, 2020, EPA announced it is temporarily relaxing enforcement of certain environmental legal obligations where noncompliance is due to or caused by the COVID-19 pandemic.

Temporary Enforcement Policy

Applicability. This temporary policy will apply retroactively beginning on March 13, 2020, and will continue until EPA determines the policy is no longer necessary. EPA will provide seven days notice prior to terminating the policy. EPA’s self-disclosure program also remains available.

During the pendency of the policy, EPA expects to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment to ensure protection against such risks or threats. EPA also encourages states to take into account the safety and health of their inspectors and facility personnel, and use discretion when making decisions to conduct routine inspections, notwithstanding any applicable compliance monitoring strategy.

All ongoing enforcement matters with EPA will continue.

General Conditions. Although EPA makes clear entities should continue to make every effort to comply with their compliance obligations. If compliance is not reasonably practicable, entities must do the following to qualify for treatment pursuant to the temporary enforcement policy:

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 a. through d.

It is very important that entities follow all steps outlined above if they intend to take advantage of the temporary enforcement policy, and should document everything where possible.

Specific Conditions. EPA announced more specific guidance for the following areas:

• Routine Compliance Monitoring and Reporting by Regulated Entities. EPA does not anticipate seeking penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting of certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance. Entities should continue to utilize existing procedures to report instances of noncompliance of routine activities; however, if it is no longer reasonably practicable to do so, entities should document this information internally and make such information available to EPA upon request. Further, if the applicable interval is less than three months, the entity will not be expected to, as EPA puts it, “catch-up” with missed monitoring and reporting.
• Training. Training required to maintain certifications should be conducted online, where practicable. If not, EPA indicates it does not plan to penalize an entity for failure to do so, stating it “is more important to keep experienced, trained operators on the job, even if a training or certification is missed.”
• Signatures and Submissions. EPA will accept digital or electronic signatures instead of a “wet” signature, where required. The inability to obtain a “wet” signature will not be justification for failure to make a paper submission or certification. Further, EPA will also accept emailed submissions even if a paper original is required.
• Settlement Agreement and Consent Decree Reporting Obligations and Milestones. EPA does not plan to seek stipulated or other penalties for noncompliance with an EPA administrative settlement agreement’s routine compliance and reporting obligations. If a party anticipates missing any enforceable milestones, it should notify the agency using the notice procedures set forth in the agreement and include the information provided in the above general conditions section. With respect to EPA and the U.S. Department of Justice (DOJ) consent decrees, EPA staff will coordinate with DOJ to exercise enforcement discretion regarding routine compliance obligations.
• Facility Operations that Pose an Acute Risk or Imminent Threat. The EPA makes clear 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. If facility operations are impacted by the COVID-19 pandemic, and this impact may create an acute risk or an imminent threat to human health and the environment, facilities should contact the appropriate implementing authority (EPA region, state or tribe).

If EPA is contacted, EPA will consult with the state or tribe to discuss measures to minimize or prevent the threat, and will analyze whether changes can be made to the applicable permit, statutory or regulatory provisions to address the situation. EPA will also take into consideration the COVID-19 panic when determining whether an enforcement response is appropriate for these violations.

If a facility may exceed enforceable limitations on emissions to air, discharges to water, land disposal or other unauthorized release, the facility should notify the implementing authority as quickly as possible, and include information on the released pollutants, a comparison between any limitation and expected release, and the expected duration of any exceedance or release.

• Hazardous Waste Generators. If a generator of hazardous waste is unable to transfer the waste off-site within the time periods required under the Resource Conservation and Recovery Act (RCRA), the facility should continue to properly label and store such waste and take the steps outlined above. EPA will treat such entities to be hazardous waste generators, and not treatment, storage and disposal facilities, and will allow generators to keep their status, even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold.
• Animal Feeding Operations. If a facility is unable to transfer animals off-site, and solely because of the COVID-19 pandemic, meets the definition of a concentrated animal feeding operation (CAFO), EPA will not treat such facility as a CAFO. Additionally, a CAFO’s status will not be changed due to exceeding a regulatory volume threshold.
• Critical Infrastructure. Where a facility is deemed essential critical infrastructure, EPA may consider a more tailored short-term No Action Assurance with conditions to protect the public, if the EPA determines it is in the public interest. EPA will consider essential the facilities that employ essential critical infrastructure workers as determined by guidance issued by the Cybersecurity and Infrastructure Security Agency. The most recent guidance is available here.

Important Carve-Outs

This temporary policy does not apply to:

1. Activities carried out under the Comprehensive Environmental Response, Compensation and Liability Act (Superfund) or Resource Conservation and RCRA Corrective Action enforcement instruments. EPA plans to address these matters in a separate communication;
2. Imports or restrictions on items claiming to address COVID-19 impacts (especially pesticides);
3. Accidental releases, or 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 or
4. Any criminal violations or conditions of probation in criminal sentences.

Additionally, given the potential for unsafe drinking water to lead to serious illnesses and access to clean water for drinking and hand washing is critical during the COVID-19 pandemic, EPA has heightened its expectations for public water systems. The EPA expects operators of such systems to continue normal operations and maintenance as well as required sampling to ensure the safety of our drinking water supplies. The EPA expects laboratories performing analysis for water systems to continue to provide timely analysis of samples and results. In the event of worker shortages in the water sector, the EPA will consider continued operation of drinking water systems to be the highest priority. In anticipation of worker shortage and laboratory capacity problems, the following should be priority:

1. Monitoring required under National Primary Drinking Water Regulations (NPDWR) to protect against microbial pathogens; then
2. Nitrate/nitrite and Lead and Copper Rule monitoring and finally
3. Contaminants for which the system has been non-compliant.

EPA strongly encourages public water systems and drinking water laboratories to consult with the state and EPA if issues arise that prevent the normal delivery of safe drinking water.

For questions or guidance on EPA’s Temporary Enforcement Policy, please contact a member of Taft’s Environmental team.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.