On March 26, 2020, the U.S. Environmental Protection Agency (EPA) issued a memo outlining their approach to enforcement during the COVID-19 pandemic. The memorandum, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program (“Policy”), provides a valuable guide for facilities that may suffer from noncompliance due to the COVID-19 pandemic. The Policy applies retroactively beginning 03/13/2020. EPA has not given an end date yet but it will be announced online here.

During the COVID-19 pandemic, EPA expects to focus its resources on situations that pose an acute risk or imminent threat to public health of the environment. For noncompliance that occurs while this Policy in effect, EPA may use its discretion to not pursue enforcement actions if the noncompliance was directly related to the COVID-19 pandemic.

Key Points – COVID-19 EPA Enforcement Discretion Memo:

1. Facilities must make good faith efforts to comply with regulatory obligations. Criminal penalties are still in effect for “knowing conduct that violates the law.” (Section V)

2. The Policy does not negate noncompliance. The Policy simply states that EPA will exercise their discretion when deciding whether or not to pursue enforcement for noncompliance. EPA may still decide to pursue enforcement action for noncompliance. However, the purpose of this memo is to communicate that EPA does not plan to pursue enforcement actions for noncompliance due to the COVID-19 pandemic. Facilities must continue to document and self-report any noncompliance, as applicable. (Section I.B.)

3. Facilities must take great care to document all efforts to comply with applicable regulations, and the reasons why the COVID-19 pandemic prevented compliance. EPA describes the required documentation in detail in Section I.A.2.

4. In some cases, the COVID-19 pandemic may make it difficult or impossible to maintain training and/or certifications for certain regulated tasks. EPA made it clear that a facility should use experienced, trained operators on the job, even if an individual misses a refresher training or a certification expires. (Section I.B.)

5. EPA is temporarily waiving requirements for wet-ink signatures and making exceptions to allow for electronic submissions of documents that are typically shipped as a hardcopy. Additional details are given at the end of Section I.B.

6. In general, EPA does not plan to ask facilities to catch-up monitoring or reporting that was missed due to the COVID-19 pandemic if the underlying requirement applies to intervals of less than three months. For monitoring and reporting on a less frequent basis (e.g. semiannual and annual), the EPA expects facilities to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports. (Section I.B.)

7. The Policy outlines several specific allowances for hazardous waste generators. The Policy allows for hazardous waste generators to exceed their accumulation time limits without moving up in generator status if COVID prevents offsite shipments. (Section I.D.4.)

8. Requirements for preventing, responding to, and reporting accidental releases of oil, hazardous substances/chemicals/wastes are still in full effect (Section IV). If a facility suffers from failure of a pollution control or treatment systems that results in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases, the facility should notify the EPA or state authority as soon as possible. The EPA or state may exercise discretion when pursuing enforcement if the failure was related to the COVID-19 pandemic. (Section I.D.2.)

9. A facility engaged in settlement agreements and/or consent decrees should proceed as proposed in their notice to the EPA (and to DOJ for consent decrees) unless and until contacted by the agency (if an EPA administrative settlement) or DOJ (if a judicial consent decree). Exceptions may be made but are being handled on a case-by-case basis by EPA and DOJ. (Section I.C.)

10. The Policy lays out additional instructions and information for public water systems and facilities deemed “critical infrastructure” that may experience noncompliance or other issues due to the COVID-19 pandemic. EPA is working with state agencies and individual facilities on a case-by-case basis when needed. Refer to Sections I.E. and I.F. for additional information.

If you need immediate assistance with your regulatory compliance activities or further guidance during this critical time, please contact us today or call (800) 508-8034.

Blog Author

Wesley Fleming, P.E.
Senior Engineer, Air & Engineering Services
KERAMIDA Inc.

Contact Wesley at wfleming@keramida.com.