Today, U.S. Environmental Protection Agency (EPA) Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance (OECA) Susan Bodine issued guidance regarding OECA enforcement discretion in the wake of the coronavirus (COVID-19) COVID-19 pandemic. EPA intends to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment. The guidance, which is retroactively effective to March 13, does not have an end date but EPA commits to reviewing the policy regularly and to providing a seven day notice of its termination on OECA’s guidance page.
The guidance acknowledges that COVID-19 and related government social distancing restrictions may affect facility operations and performance, and addresses steps that regulated entities must take for any noncompliance to be considered for enforcement relief under the guidance. Specifically, the guidance states that entities should make every effort to comply with their environmental compliance obligations. Where compliance is not reasonably practicable, entities should minimize the effects and duration of any noncompliance caused by COVID-19, identify the nature of the noncompliance, how it was caused by COVID-19, return to compliance as soon as possible, and document all of this information. The guidance does not apply to criminal violations, nor does it affect any authorized actions by states or tribes or any other existing statute or regulation.
Routine Compliance Obligations
The guidance notes that COVID-19 may affect a company’s ability to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification, and recommends that entities use existing procedures to report this noncompliance but that both the administering agency and your EPA region should be notified. If no reporting procedures exist, entities should maintain this information internally. EPA explains that it does not expect to seek penalties for these types of violations where EPA concurs that COVID-19 was the cause of the noncompliance and the entity can produce supporting documentation. EPA does not anticipate seeking any “catch up” monitoring once the guidance is no longer in effect, but for other monitoring such as annual or bi-annual monitoring, entities should take reasonable measures to resume their normal compliance activities.
Settlement Agreement and Consent Decree Milestones and Reporting
The guidance also addresses administrative settlement agreements and indicates that EPA will generally not seek penalties for any missed milestones and that entities should use the notice procedures set forth in their agreements. Regarding civil judicial consent decrees, EPA will coordinate with the U.S. Department of Justice (DOJ) to exercise enforcement discretion regarding stipulated penalties for any routine compliance obligations that are missed due to COVID-19, but the guidance recognizes courts’ authority to exercise their own judgment.
EPA expects entities to continue to manage and operate their facilities safely and EPA will focus on acute risks or imminent threats to human health or the environment in coordination with state or tribal authorized programs consistent with existing federal-state partnership guidance. Regarding enforceable permit limitations on air emissions and water discharges or other unauthorized releases, the guidance states that the entity should notify the implementing authority as quickly as possible with details of the noncompliance, and EPA will consult with authorized states or tribes to determine the appropriate response. Regarding RCRA waste handling, the guidance provides that so long as proper labeling and storage are implemented, waste generators who fail to transfer waste off-site within the time periods required by RCRA will not be deemed to be storage or disposal facilities and EPA will not escalate very small quantity generators or small quantity generators to a higher generator status due to the generator’s inability to arrange for shipment of hazardous waste due to COVID-19. The guidance does not apply to activities being carried out under Superfund and RCRA Corrective Action enforcement instruments and EPA has indicated that it will issue separate guidance to address these activities.
Public Water Systems
Despite the general flexibility provided in the guidance, EPA is heightening its expectations for public water systems in light of their critical importance to public health and continues to expect compliance with all applicable operations, maintenance and sampling requirements. EPA believes monitoring required under National Primary Drinking Water Regulations to be the highest priority in the event of any worker shortages, followed by nitrate/nitrite and Lead and Copper Rule monitoring, followed by contaminants for which a specific system has been non-compliant.
The guidance includes a commitment to more tailored short-term No Action Assurance for facilities that are considered critical infrastructure, with Assistant Administrator Bodine serving as the arbiter of such determinations on a case-by-case basis. EPA notes that it will continue its oversight of state programs as practicable and will take COVID-19 into consideration when conducting such reviews. The guidance does not relieve any responsibilities for the prevention or response to, or reporting of accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, or other pollutants.
Companies that may need to rely on this guidance should carefully and deliberately document the noncompliance and how COVID-19 is the cause of the noncompliance.
For additional information regarding the OECA guidance and general EPA enforcement procedures, please contact Brooks Smith or Patrick Fanning.