On March 26, 2020, the U.S. Environmental Protection Agency released a new temporary policy for some violations that occur as a result of the COVID-19 pandemic. It will exercise enforcement discretion (i.e., it may waive applicable penalties) for a limited group of acts or omissions that occur beginning on and after March 13, 2020.
To qualify for enforcement discretion, a regulated entity must show to EPA’s satisfaction that it made “an effort to comply” with applicable environmental regulations. In situations where “compliance is not reasonably practicable,” a facility must carefully document its actions taken to comply, explain how COVID-19 caused the non-compliance, advise the government of the steps taken to minimize the effect and length of non-compliance, the specific nature and date(s) of non-compliance, and return to compliance as soon as possible. Our reading is that the focus is really on activities required by permits.
The temporary enforcement policy applies to the following types of compliance monitoring and reporting by regulated entities:
- Routine compliance monitoring, such as stack tests or stormwater inspections;
- Integrity testing, such as aboveground tank integrity testing;
- Sampling, such as effluent or cooling tower sampling and testing;
- Laboratory analysis, such as holding and turn-around times;
- Training, such as hazardous waste training and CAA §129 renewals; and
- Reporting or certification, such as late reporting under permit or other regulatory obligations, including TRI and greenhouse gas inventory reporting.
With respect to administrative settlement agreements, the EPA does not intend on seeking stipulated or other penalties for non-compliance with reporting obligations and missed milestones caused by COVID-19. Parties to these agreements should report any non-compliance by utilizing the notice procedures in the agreements, as applicable. Notice should include all steps taken to minimize the effects and duration of non-compliance. For Consent Decrees with the EPA and DOJ, the EPA temporary policy suggests utilizing the notice procedures in the Decree for violations caused by COVID-19.
Critically for many, this new policy is not applicable to activities carried out at Superfund sites around the Country nor to RCRA Corrective Action enforcement instruments. Violations related to imports into the United States are also excluded. (EPA’s focus as to imports is on pesticide type products imported into the United States or produced or distributed in the United States claiming to address the COVID-19 virus.) The Superfund and RCRA exclusions, however, appear to preclude (for now) obtaining relief with respect to Consent Orders or Consent Decrees under those statutes, notwithstanding the statement in the policy about following the notice procedure in Orders or Decrees. Those exclusions once again reinforce the permit- centric focus of the policy. Additionally, if a facility suffers from a failure of air emission control or wastewater or waste treatment systems, the facility still needs to notify EPA or the state, whichever is the enforcing authority, as quickly as possible.
The temporary policy does take into account that some facilities may not be able to ship hazardous waste off site within the time frame prescribed by RCRA as a result of the COVID-19 pandemic. If such a non-compliance is carefully documented as described above, Hazardous Waste Generators, Very Small Quantity Generators, and Small Quantity Generators may retain their status even if the hazardous waste that has not been shipped as normally required exceeds the regulatory thresholds. Similarly, Animal Feeding Operations will not be treated as concentrated animal feeding operations if disruptions caused by the COVID-19 pandemic prevent transferring animals off-site.
This policy is not a law or regulation, and is only applicable where EPA has enforcement discretion. Thus, it is not binding on a Court and does not modify any legally binding environmental law or regulation. The policy specifically states: “Nothing in this temporary policy relieves any entity from 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 should be read as a willingness to exercise enforcement discretion in the wake of such a release.” Once the policy is no longer in effect, the EPA will expect full compliance from all regulated entities.
Finally, the policy does not apply to criminal violations of federal environmental laws.
This is only a brief summary of a complex and fact dependent policy. If you or your client want more information about the policy or help in complying with it, please let us know. Contact us at www.nwbllc.com
For a copy of the EPA policy memorandum: Click Here.
