Generally, under the temporary policy, EPA expects regulated facilities to comply with regulatory requirements where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy requires facilities to document decisions made to prevent or mitigate noncompliance, including identifying the nature and dates of noncompliance, identifying how the noncompliance was caused by the COVID-19 pandemic, and listing the decisions and actions taken in response, including best efforts and steps taken to comply. Facilities must act responsibly under the circumstances to minimize the effects and duration of any noncompliance caused by COVID-19.
The temporary enforcement policy recognizes that the impact of COVID-19 may be different for varying regulatory programs and requirements, and so it addresses disparate categories of noncompliance distinctly. For example, under the policy EPA does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic but does expect operators of public water systems to continue to ensure the safety of drinking water supplies.
For routine compliance monitoring and reporting, EPA notes that key personnel may not be available to perform or report sampling, or that laboratories may not be able to timely analyze or report results. EPA does not expect to seek penalties in these situations if it agrees that COVID-19 was the cause of noncompliance and appropriate documentation is provided.
For administrative settlements with EPA, parties are instructed to provide notice to EPA if it is anticipated that any milestones will be missed. EPA intends to treat routine compliance reporting, integrity testing, sampling, laboratory analysis, training, and associated reporting or certification obligations in the manner described above, when such obligations are imposed by permit or regulation, and will not seek stipulated or other penalties for noncompliance in such cases.
For Consent Decrees entered into with the EPA and the Department of Justice (DOJ), EPA states it will coordinate with DOJ to exercise enforcement discretion for stipulated penalties for routine compliance obligations and consult with any co-plaintiffs to seek agreement to this approach. The policy acknowledges that courts retain jurisdiction over decrees and may exercise their own authority.
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. Facilities should contact the appropriate implementing authority if operations impacted by the COVID-19 pandemic may create an acute risk or imminent threat. A facility suffering from a failure of air emission controls or wastewater or waste treatment systems or other facility equipment that may result in exceedances of regulatory requirements should notify the implementing authority as quickly as possible, providing specified information. EPA also outlines measures to provide leniency for hazardous waste generators if COVID-19 prevents off-site transfer of waste that otherwise would trigger a regulatory re-classification of the facility and impose more stringent requirements, such as relating to storage time before a facility is considered a treatment, storage and disposal facility. There is similar treatment of animal feeding operations impacted by COVID-19.
Notably, the policy places significant emphasis on the importance of public water systems, which it states have a heightened responsibility to protect public health currently. 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. EPA also expects labs performing analysis to continue to provide timely analysis of samples and results. The policy states that continued operation of drinking water systems is the highest priority. In anticipation of worker shortage and lab capacity problems, EPA establishes tiers of priority, with the highest priority being monitoring required under the National Primary Drinking Water Regulations, and suggests that States, which have primary enforcement responsibility for most public water system programs, adopt similar priorities..
The policy does not apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments. EPA will address these matters in separate communications.
The policy acknowledges that states and tribes may have independent jurisdiction on many of the above subjects, and outlines steps EPA is taking to coordinate with those entities. EPA asks states to consider the safety and health of their inspectors in deciding whether to conduct routine inspections. EPA states it expects to focus resources largely on situations that may create an acute risk or imminent threat to public health or the environment.
The EPA policy is intended to address those who cannot comply notwithstanding good faith efforts to do so. It does not provide leniency for intentional criminal violations of law.
EPA will assess the continued need for and scope of this temporary policy on a regular basis. EPA will notify the public at least seven days prior to terminating this temporary policy.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Douglas F. Schleicher is the chair of the environmental practice group at Klehr Harrison.