On March 26, 2020, EPA issued its temporary policy regarding enforcement of legal obligations during the COVID-19 pandemic (“Guidelines" found here). Specifically, EPA stated that the Guidelines will apply to environmental noncompliance that occurs while the policy is in effect “in lieu of . . . otherwise applicable EPA enforcement response policy.”
The Guidelines address different compliance situations. First, EPA recognizes that the pandemic will impact the ability of facilities and laboratories to carry out routine monitoring and reporting activities required by federal environmental permits and applicable laws. Second, EPA notes that the pandemic may affect reporting obligations and milestones set out in settlements and consent decrees. Finally, EPA recognizes that the pandemic might affect the ability of industries to meet enforceable limits on air emissions, water discharges, requirements for the management of hazardous waste, and various requirements regarding safe drinking water. The Guidance states that EPA would use its enforcement discretion in each of these instances only if the non-compliant facilities were:
- Making “every effort to comply” with their environmental obligations; and
- If compliance is not reasonable, the facilities were: acting reasonable under the circumstances to minimize noncompliance, identifying the nature and dates of noncompliance, identifying how COVID-19 was the cause of the non-compliance, outlining the decisions taken in response to the noncompliance, and returning to compliance as soon as possible.
Routine Compliance and Monitoring
In addition to the above requirements, regulated entities should use “existing procedures” for reporting all non-compliance with routine sampling and monitoring (i.e., discharge monitoring reports, electronic reporting, written notification letters, etc.). If there are no existing procedures, entities should maintain the information and documents showing the reasons for noncompliance and have those ready to share with EPA when requested. EPA does not plan to make facilities “catch up” with missed sampling and monitoring if the required relevant intervals were less than three months. If the monitoring or required reporting is greater than three months (i.e., bi-annual, annual, etc.), EPA will require those reports as “soon as possible” after the pandemic subsides. The Guidelines recognize a “reasonableness” to this requirement. If facility operators require routine training or certification during this time, EPA suggests online courses to remain current. If certifications for trained professionals lapse, EPA states that entities should allow those individuals to continue doing their job during this time and obtain those certifications when able. Finally, EPA will accept electronic signatures and electronic copies in lieu of wet signatures or original documents during this time.
Settlement Agreements and Consent Decree Reporting Obligations and Milestones.
Like routine compliance monitoring, entities subject to settlement agreements and consent decrees should use the procedures within those documents to report noncompliance. EPA intends to treat routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and associated reporting or compliance obligations the same as described above. The Guidelines state that EPA will generally use its discretion not to seek stipulated or other penalties in these instances of noncompliance. As far as consent decrees with both EPA and the U.S. Department of Justice, EPA will coordinate with DOJ to exercise enforcement discretion; however, these generally involve courts, which may exercise their own authority. Entities covered by such instruments should use the notification requirements as outlined in the individual orders or decrees. If an entity notifies EPA of a change from the order or notifies DOJ of a change from a judicial consent decree, they may proceed as outlined in their notification until contacted by an agency. There would be a slight risk that the court will not accept this action; however, both EPA and DOJ willingness to use their discretion in such instances would likely have influence on the court.
EPA is clear that, if a facility impacted by the pandemic “may create an acute risk or an imminent threat to human health or the environment,” that facility should contact the appropriate implementing authority (i.e., EPA, authorized state agency, etc.). The Guidelines “strongly encourage” entities to consult with EPA as well as their state implementing agency if there is an acute risk or imminent threat. EPA outlines how it will address these situations. Further, EPA generally outlines how it will address pandemic related noncompliance for: facilities who suffer from a failure of air emission controls or wastewater treatment systems, generators of hazardous waste, animal feeding operations, drinking water facilities, and other failures not specifically addressed within these Guidelines.