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OnePoint Alert

March 27, 2020

EPA Issues Memo On COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program

On March 26, 2020, EPA’s top enforcement official released agency guidance on how EPA will address enforcement of environmental legal obligations during the COVID-19 crisis. See the link to the “Memo” below for convenience and review. The introduction provides: “The EPA will exercise the enforcement discretion specified below for noncompliance covered by this temporary policy and resulting from the COVID-19 pandemic, if regulated entities take the steps applicable to their situations, as set forth in this policy. 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.” See Memo at page 1. The policy will apply retroactively beginning on March 13, 2020.

EPA recognizes that the pandemic may affect facility operations and the availability of crucial personnel, as well as the availability of outside contractors, test collection, laboratory workers, etc. This could in turn impact the ability to meet testing and reporting deadlines. The Memo also recognizes that the crisis could impact a facility being able to meet certain limitations (such as air emissions provisions, water discharge limits, waste management requirements and/or the ability to supply clean drinking water). The Memo notes that these are distinct situations and will be handled differently, as further described in the body of the document. The general guidance does not apply to criminal violations or to obligations that appear in Superfund or RCRA “enforcement instruments,” and it is indicated that these obligations will be addressed separately. It also does not apply to imports, as there is a special concern about pesticides entering the U.S. and used in this country.

All enforcement discretion identified in the Memo is contingent upon a demonstration that the entity made every effort to comply with their environmental compliance obligations. The Memo provides things a regulated entity should do if compliance is not reasonably practicable, and these items are identified at Section I.A.2. See Section I.A.2 of the Memo at pages 2-3.

EPA recognizes that due to the pandemic, sources may not be able to carry out routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification. Entities are instructed to use existing procedures to report noncompliance with such routine activities but if this is not possible 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 provides that “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.” See Memo at page 3. Thus, it will be critical to document how any deficiencies during this temporary period are related to the COVID-19 outbreak, and not the result of some other reason. EPA indicates that: “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.” See Memo at page 3. However, delegated state or tribal agencies may take a different view of this requirement.

With respect to EPA administrative settlement agreement reporting obligations and milestones, EPA indicates that if “parties to such settlement agreements anticipate missing enforceable milestones set forth in those documents [as a direct result of COVID-19 items], parties should utilize the notice procedures set forth in the agreement, including notification of a force majeure, as applicable.” Memo at page 4. With respect to court-approved documents entered into with EPA and DOJ, any discretion in this situation will be more complicated as third-parties may be involved and the courts may maintain jurisdiction to address these obligations.

EPA expects facilities to contact the appropriate implementing agency (EPA region, authorized state, or tribe) if operations as impacted by the COVID-19 pandemic “may create an acute risk or an imminent threat to human health or the environment.” Memo at page 4. EPA explains the role and steps it will take under these type situations. Memo at page 5. It also indicates that these are the types of situations EPA intends to make its top priority.

If the facility experiences a failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances applicable limits or result in an otherwise unauthorized release, the facility should notify the implementing authority (EPA regional office or authorized state or tribe) as soon as possible. Notice should include information on the pollutants involved, a comparison between the expected release and any applicable limits; and the expected duration and timing of the exceedance(s) or releases. EPA will interact with the authorized states or tribes, as applicable, in accordance with the July 11, 2019 memorandum on Enhancing Effective Partnerships Between EPA and States in Civil Enforcement and Compliance Assurance Work to address a proper response to the disclosure.

For hazardous waste generators, if a facility, due to disruptions caused by the COVID-19 pandemic, is unable to transfer the waste off-site within the time periods required under RCRA to maintain its generator status, the facility should continue to properly label and store such waste and take such further steps as identified in Part I.A of the Memo. Under these circumstances, EPA is not expected to identify the facilities involved to be hazardous waste  treatment, storage and disposal facilities. In addition, as an exercise of enforcement discretion, EPA indicates that it will treat Very Small Quantity Generators and Small Quantity Generators as retaining that status, even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold due to the generator's inability to arrange for shipping of hazardous waste off of the generator's site due to the COVID-19 pandemic. Note, this status could be impacted by delegated-state or tribal policies and enforcement discretion as well, so state or tribal authorities should be consulted to determine how they will handle these situations.

EPA provides special limitations and expectations for use of discretion for water treatment facilities. “The EPA expects operators of such systems to continue normal operations and maintenance as well as required sampling to ensure the safety of our drinking water supplies. The EPA expects laboratories performing analysis for water systems to continue to provide timely analysis of samples and results.” Memo at page 6. EPA is instructing states to place the highest priority in providing sufficient resources for proper operation of water treatment plants.

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

In evaluating the use of possible enforcement discretion, 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 Memo 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.

In conclusion, the EPA Memo provides considerable guidance on how companies facing environmental compliance challenges governed by federal programs and federally delegated programs might be addressed by EPA in light of the challenges presented by the COVID-19 Pandemic.

Memorandum: COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program