April 6, 2020
In a letter sent to various U.S. Representatives and Senators (“letter”), Assistant Administrator Bodine of the U.S. Environmental Protection Agency (“EPA” or “the Agency”) responded to criticism of the Agency's March 26, 2020 Temporary Policy on COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program (“Temporary Policy”). This letter emphasizes various EPA considerations for those that might seek to utilize the Temporary Policy. See link to example letter provided below (“Example Letter”).
The letter repeatedly explains that the Temporary Policy is aimed at addressing a global crisis of unprecedented and extraordinary magnitude. The Temporary Policy will allow EPA to better focus its limited resources – which have been impacted by the pandemic. The letter provides assurance that “contrary to allegations you may have read, EPA continues to enforce the environmental laws and protect human health and the environment nationwide.” Example Letter at page 1. The letter further explains that the Temporary Policy addresses the “current extraordinary situation where contractors are not available because of travel restrictions, state and local governments are imposing stay at home orders, and the number of people who have contracted COVID-19 and are in quarantine is rising. EPA developed the Temporary Policy to allow the Agency to prioritize its resources to respond to acute risks and imminent threats, rather than making up front case-by-case determinations regarding routine monitoring and reporting.” Example Letter at page 1.
Addressing specific criticism of the EPA Temporary Policy, the letter provides: “Irresponsible allegations that EPA is giving industry a license to pollute mischaracterizes the Agency's response to those risks and impugns the work that the dedicated Agency officials continue to perform during this challenging time.” Example Letter at page 1. With respect to the Agency’s enforcement approach the letter explains: “Some have argued that the Agency should direct resources towards responding to each enforcement discretion request separately. However, this argument ignores the fact that the COVID-19 pandemic is a nationwide phenomenon. Diverting EPA staff time to respond to individual questions about routine monitoring and reporting requirements would hinder EPA’s ability to focus on continued protection of human health and the environment.” Example Letter at page 2.
Addressing the argument that the Temporary Policy assumes all ongoing noncompliance will be excused because of COVID-19, the letter responds that:
"The Temporary Policy does require case-by-case determinations. But under the Temporary Policy, those determinations will be made after the pandemic is over and EPA reserves the right to disagree with any assertion that noncompliance was caused by the pandemic. Specifically, the Temporary Policy clearly states that EPA is not seeking penalties for noncompliance only in circumstances that involve routine monitoring and reporting requirements, if, on a case-by-case basis, EPA agrees that such noncompliance was caused by the COVID-19 pandemic. In this scenario, regulated parties must document the basis for any claim that the pandemic prevented them from conducting that routine monitoring and reporting and present it to EPA upon request. It is in the public interest to allow critical infrastructure to remain operational while also allowing workers to exercise social distancing by moving to shift work and reducing the number of people at a facility at any one time."
Example Letter at page 2 (emphasis added). There are important points of emphasis in this response for any company considering use of the Temporary Policy to consider.
Addressing the criticism that the Temporary Policy simply allows or excuses all exceedances of environmental limitations, the letter responds:
"The Temporary Policy does not excuse exceedances of pollutant limitations in permits, regulations, and statutes due to the COVID-19 pandemic. EPA expects regulated entities to comply with all obligations and if they do not, the Temporary Policy says that the Agency will consider the pandemic, on a case-by-case basis, when determining an appropriate response. Further, in cases that may involve acute risks or imminent threats, or failure of pollution control or other equipment that may result in exceedances, EPA’s willingness to provide even that consideration is conditioned on the facility contacting the appropriate EPA region, or authorized state or tribe, to allow regulators to work with that facility to mitigate or eliminate such risks or threats."
Example Letter at page 2 (emphasis added). Again, there is helpful explanation of EPA’s expectations for any source considering use of the Temporary Policy. For any use of the Temporary Policy, the letter reminds facilities that “EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible, once the COVID-19 threat subsides.” Example Letter at pages 2-3. EPA points to this as condition for attempting to use the Temporary Policy.
The letter closes by reminding sources that the EPA enforcement policy is temporary and “will be lifted as soon as normal operations can resume, which may occur sooner in some locations than others.” Example Letter at page 3.
As a reminder, when evaluating the use of possible enforcement discretion like the Temporary Policy, the regulated entity should consider that certain affirmative defenses in regulations and other written documents that are based on an “emergency event” or “upset event” or “force majeure” conditions may need to include specific information about those events in a notice document, may need to be identified to regulatory agencies within narrow time frames and may need to be provided to specific groups or individuals within agencies. Follow-up reports may also be required. Always consult these potential requirements in addition to seeking any kind of relief that might be available by other means of agency discretion. Failure to follow a rule or permit term may result in a waiver of a potential defense. In addition, note that some environmental requirements are mandatory in their implications. Some requirements could potentially be pursued for enforcement by third-parties. The facility should evaluate these possible complications prior to relying upon any extension of a deadline or other reliance on enforcement discretion embodied in the EPA Temporary Policy or offered in other documents. In addition, states may have independent enforcement policies that should be consulted for flexibility or additional requirements for seeking extensions or other latitude for failure to satisfy environmental requirements.
For additional information on COVID-19 related issues, please visit the Nelson Mullins COVID-19 resource page or contact a Nelson Mullins attorney.
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.