EPA issues enforcement and compliance guidance tied to COVID-19

The Environmental Protection Agency (EPA) on March 26 issued guidance on COVID-19 pandemic implications for EPA’s enforcement and compliance assurance programs.

The EPA memo provides some of the guidance that industry has been seeking about COVID-19 as a “force majeure” or “Act of God” excusing performance of obligations by regulated parties under federal environmental statutes.

“For noncompliance that occurs during the period of time that this temporary policy is in effect, and that results from the COVID-19 pandemic, this policy will apply to such noncompliance in lieu of an otherwise applicable EPA enforcement response policy,” wrote Susan Parker Bodine, EPA’s Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance.

The policy will apply retroactively beginning on March 13, 2020. Authorized states or tribes may take a different approach under their own authorities. EPA will undertake to coordinate with other federal agencies in situations where the EPA shares jurisdiction over a regulated entity’s environmental compliance obligations.

Bodine said that the consequences of the pandemic may constrain the ability of regulated entities to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification.

“Entities should use existing procedures to report noncompliance with such routine activities, such as pursuant to an applicable permit, regulation or statute. If no such procedure is applicable, or if reporting is not reasonably practicable due to COVID-19, regulated entities should maintain this information internally and make it available to the EPA or an authorized state or tribe upon request,” the memo said.

Bodine said that in general, EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.

After the policy expires, EPA expects full compliance going forward. “In general, absent exigent circumstances, the EPA does not plan to ask facilities to ‘catch-up’ with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months,” wrote Bodine.

For other monitoring or reports, such as those required on a bi-annual or annual basis, when the policy is no longer in effect, EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports. “In some programs, there are sections or codes in the reporting form in which a facility may indicate why it has not conducted the required sampling and monitoring, and the EPA encourages facilities to include such information when submitting any late reports.”

Facility operations

EPA expects all regulated entities to continue to manage and operate their facilities “in a manner that is safe and that protects the public and the environment,” Bodine said in the memo. The agency will assess the continued need for and scope of this temporary policy on a regular basis and will update it if the EPA determines modifications are necessary.

The memo said that facilities should contact the appropriate implementing authority (EPA region, authorized state, or tribe) if facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment.

“Even in authorized programs, the EPA strongly encourages facilities, states, and tribes to consult with their EPA regional office on acute risks and imminent threats.

Critical infrastructure

In situations where a facility is essential critical infrastructure, EPA may consider a more tailored short-term “No Action Assurance,” with conditions to protect the public, if EPA determines it is in the public interest. Such determinations are made on a case-by-case basis. EPA will consider essential the facilities that employ essential critical infrastructure workers as determined by guidance issued by the Cybersecurity and Infrastructure Security Agency.

State oversight

The EPA will continue state review framework reviews, and other state program oversight, as practicable, taking into consideration priority work in response to COVID-19, the memo said.

“Until such time as dictated by travel and social distancing restrictions, the EPA believes states should take into account the safety and health of their inspectors and facility personnel and use discretion when making decisions to conduct routine inspections, notwithstanding any applicable compliance monitoring strategy. The EPA will take the COVID-19 pandemic into consideration in any review of a state compliance and enforcement program, such as the state review framework.” 

EPA will post a notification here at least seven days prior to terminating this temporary policy. 

Bodine’s memo is available here.

EPA may provide additional enforcement guidance applicable to specific programs on an ongoing basis and the EPA’s self-disclosure program remains available.