Summary of EPA COVID-19 Enforcement Policy

COVID-19 Update

April 2, 2020
Carol F. McCabe and Stephen D. Daly

On March 26, 2020, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, Susan Parker Bodine, issued a temporary enforcement discretion policy relating to violations of environmental legal obligations during the COVID-19 outbreak entitled “COVID-19 Implications for EPAs Enforcement and Compliance Assurance Program” (the “Policy”). 

The Policy provides assurance to the regulated community that EPA will not pursue enforcement against a regulated entity for failing to comply with routine compliance monitoring and reporting requirements as a result of COVID-19, provided that COVID-19 is the cause and the entity appropriately documents its efforts to try to comply as soon as possible.  For other circumstances where compliance may be affected by the COVID-19 pandemic, the Policy indicates that EPA will account for such circumstances in determining its enforcement response, but does not otherwise provide any blanket assurances.  Further, the Policy contains a number of important exclusions (such as RCRA/Superfund Corrective Action), and it does not foreclose enforcement from an authorized state or citizen suit, as applicable, in the event of noncompliance.  Outlined below are key highlights of the Policy.

What activities does the Policy apply to?
The Policy applies to new civil violations of federal environmental legal obligations that are caused by COVID-19 (for example, as a result of worker shortages, travel and social distancing restrictions, etc.).  The Policy provides that, in exercising its enforcement discretion, EPA will consider circumstances in which COVID-19 makes a regulated entity’s compliance with an environmental legal obligation not reasonably practicable, provided that COVID-19 is the cause of the noncompliance and the entity carefully documents its decision-making as detailed below.  In some situations, such as noncompliance with routine compliance monitoring and reporting, EPA will forego enforcement entirely if these conditions are satisfied. 

There are several exceptions to the Policy’s applicability.  The Policy does not apply to imports and does not apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments.  The Policy also does not relieve any entity from having to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, or hazardous waste under federal law, nor does it apply to EPA’s willingness to exercise enforcement discretion in the wake of an accidental spill or release.  Further, authorized states or tribes are not required to adhere to the Policy and may take a different approach on enforcement, as governing law provides.  Nor does it necessarily foreclose an enforcement action under an applicable citizen suit provision.  The enforcement discretion described in the Policy does not apply to criminal violations of the law. 

When does the Policy apply?
The Policy applies retroactively beginning on March 13, 2020.  Ongoing enforcement matters that predate this date are continuing.  As to when the Policy terminates, EPA will assess the continued need for and scope of the Policy on a regular basis.  EPA will provide at least 7 days advance notice prior to terminating the Policy.  The regulated community should closely follow any updates from EPA regarding any changes to the Policy or its termination.

How does a regulated entity qualify for enforcement discretion under the Policy?
The Policy describes the steps that regulated entities should take to qualify for enforcement discretion.  As a default proposition, EPA expects that regulated entities will make every effort to comply with their environmental compliance obligations. However, if an entity’s compliance with a federal environmental legal obligation is not reasonably practicable as a result of COVID-19, the entity should do each of the following to qualify for enforcement discretion:

  • Document the specific nature and dates of the noncompliance;
  • Document how COVID-19 was the cause of the noncompliance (g., develop a written record of the impact of a worker shortage on the specific noncompliance at issue);
  • Document the best efforts that the regulated entity used to try to comply and the steps taken by the regulated entity to come into compliance at the earliest opportunity and otherwise minimize the effect and duration of any noncompliance.

The regulated entity may need to take additional steps to qualify for enforcement discretion depending on the type of noncompliance at issue:

Routine compliance monitoring and reporting.  In general, EPA does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are attributable to the COVID-19 outbreak, provided that EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides the supporting documentation described above to EPA upon request. Examples of activities that fall within this category are compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations.

Settlement agreement and consent decree reporting obligations and milestones.  For EPA administrative settlement agreements, parties are directed to rely on applicable notice/force majeure provisions in the settlement agreement if COVID-19 prevents the party from complying with an obligation.  In general, EPA will not seek stipulated or other penalties for noncompliance with routine compliance monitoring and reporting requirements in a settlement agreement, provided that EPA agrees that COVID-19 was the cause of the noncompliance.  For consent decrees, EPA will work with the Department of Justice to exercise enforcement discretion with regard to stipulated penalties for routine compliance obligations, though Courts retain jurisdiction over consent decrees and may exercise their own authority.

Facility operations.  In addition to preparing the documentation identified above, if a facility suffers a failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances or unauthorized releases, the facility should notify the implementing authority (EPA regional office or authorized state or tribe) as quickly as possible, and the notification should include information about the pollutant released, a comparison of the applicable permitted emissions and the unauthorized release, and the expected duration and timing of the exceedance or release.

Unlike noncompliance with routine compliance monitoring and reporting, it is less clear whether EPA will exercise enforcement discretion for exceedances or unanticipated releases, particularly if the event may create an acute risk or an imminent threat to human health or the environment.  The Policy provides only that EPA will consider the circumstances, including the COVID-19 pandemic, in determining whether an enforcement response is appropriate in situations where a facility suffers from failure of air emission control or wastewater or waste treatment systems or other facility equipment.  If such an event cannot be avoided, facility operators should take special care to document the best efforts used to try to comply and minimize the noncompliance to ensure they have generated the best possible record to present to EPA in light of this Policy. 

Generators of Hazardous Waste.  If a generator of hazardous waste is unable to transfer waste off-site within time periods required under RCRA to maintain its generator status due to the COVID-19 pandemic, the facility should continue to properly label and store such waste, as well as prepare the documentation described above.  If these steps are met, EPA will treat such entities to be hazardous waste generators, and not treatment, storage and disposal facilities.  In addition, EPA will treat Very Small Quantity Generators and Small Quantity Generators as retaining that status, even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold due to the generator’s inability to arrange for shipping of hazardous waste off-site due to the COVID-19 pandemic.

Critical infrastructure and public water systems.  In situations where a facility is essential critical infrastructure, EPA may consider on a case-by-case basis a more tailored short-term No Action Assurance, with conditions to protect the public, if EPA determines it is in the public interest.  The 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 Policy separately addresses public water systems, stating that these systems have a heighted responsibility to protect public health during the COVID-19 pandemic.  EPA expects operators of such systems to continue normal operations and maintenance, as well as required sampling to ensure the safety of drinking water supplies.  The Policy identifies priorities for compliance in the event of worker shortages and encourages working closely with EPA and states if issues arise that prevent the normal delivery of safe drinking water.  EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether any enforcement response is appropriate. 

Key Considerations
Regulated entities should carefully review the Policy in order to determine whether it may provide relief during the COVID-19 pandemic.  There are important conditions and exclusions set forth in the Policy, and there are likely to be fact and program specific considerations that apply to each regulated entity and facility under the Policy.  Documentation and demonstration of best efforts to comply will be critical.  Most importantly, enforcement responses may differ among state and local delegated agencies.

For questions or clarification of the Policy, please contact MGKF’s Carol McCabe (484-430-2304) or Stephen Daly (484-430-2338).