The Environmental Protection Agency (EPA) announced in a memo released on Thursday, March 26, 2020 that it will relax its enforcement of environmental legal obligations under certain circumstances during the COVID-19 pandemic.
Applicable retroactively to March 13, 2020, the EPA will use enforcement discretion in specific situations where a company or governmental entity is unable to comply with an obligation usually required by the EPA due to the consequences of the COVID-19 pandemic, if the company takes certain steps to mitigate and document its noncompliance. This enforcement discretion only applies to civil violations of environmental legal obligations and explicitly does not extend to any criminal violations or conditions of probation in criminal sentences, activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments or imports.
The memo specifically recognizes worker shortages, as well as, travel and social distancing restrictions that have resulted from COVID-19 that “may affect the ability of regulated entities to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification.” These consequences could ultimately prevent entities from meeting their routine reporting obligations, as well as reporting obligations and milestones set forth in settlements and consent decrees. The memo also acknowledged that the consequences of the pandemic could hinder an entity’s ability to meet enforceable limitations on air emissions and water discharges, requirements for the management of hazardous waste or requirements to ensure and provide safe drinking water.
The EPA emphasized that entities should make every effort to comply with their environmental compliance obligations, but if a company does face an issue of necessary noncompliance as a result of COVID-19’s consequences, it should take the following steps.
(1) Keep record of these items:
- The specific nature and dates of noncompliance;
- How COVID-19 caused the noncompliance;
- The decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity; and
- Efforts taken to minimize the effects and duration of any noncompliance.
(2) Use existing procedures to report noncompliance with routine activities, such as pursuant to an applicable permit, regulation or statute. If no existing reporting procedure is applicable, or if reporting is not reasonably practicable due to COVID-19, then maintain a record of the information listed above internally. The EPA or an authorized state or tribe may request this information later.
Generally, the EPA does not plan to have affected facilities “catch-up” on missed monitoring or reporting that occurs less than every three months. However, the EPA does expect affected facilities to conduct late monitoring and submit late reports due on a less frequent basis, such as annually or bi-annually.
If practicable, entities should maintain required certification and training practices for employees, but if not practicable due to COVID-19, experienced and trained operators can remain on the job should they miss training or certification requirements.
In the case of missed milestones or obligations under EPA administrative settlement agreements or consent decrees entered into with the EPA and the U.S. Department of Justice, parties should adhere to the notice procedures set forth in the agreement or court order.
The EPA does not expect to seek penalties for violations where the agency agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request. The agency instead expects to focus its resources largely on situations that potentially pose “an acute risk or imminent threat to public health or the environment.” Facilities should contact the appropriate implementing authority (EPA region, authorized state or tribe) if the COVID-19 pandemic’s effect on a facility may create such acute risk or imminent threat.
The introduction of these guidelines opens up debate as to the necessity and practicality of this more lenient approach to compliance during the ongoing crisis. Some supporting the measures described above, argue that the easing of these policies during this time is necessary in order for businesses to function. Specifically, this argument assumes that the sustained functionality of the economy as a whole, as well as specific life-sustaining functions like food production or trash decomposition, would be challenged under the current circumstances if facilities were required to adhere to the usual federal environmental policies. In the press release announcing the discretionary policy, EPA Administrator Andrew Wheeler stated in part, “EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements.”
On the other hand, others have argued that the relaxation of these policies will result in an intense amount of harm to the environment and could harm the health of communities and individuals in a way that outweighs any benefits to society of relaxing compliance requirements. In a statement sent to political publication The Hill, Cynthia Giles, Associate Administrator of EPA enforcement under the Obama administration said, “EPA should never relinquish its right and its obligation to act immediately and decisively when there is threat to public health, no matter what the reason is. I am not aware of any instance when EPA ever relinquished this fundamental authority as it does in this memo.”
Regardless of the stances of these opposing camps on the guidelines, until the temporary policy is rescinded, industry will be for the most part self-regulating in terms of federal requirements. However, businesses should recognize that while the EPA has officially relaxed enforcement efforts as outlined in the memo, states and tribes may take different approaches to environmental enforcement under their authority.
The EPA will assess the continued need for and scope of the temporary policy on a regular basis and any update to the policy will be posted on the EPA’s website at least seven days prior to terminating the current temporary policy.