The United States Environmental Protection Agency (EPA) has issued three guidance documents to address changes in enforcement of environmental laws and regulations due to the COVID-19 pandemic. We reviewed these policies to provide guidance on how regulated entities may take steps to ensure that they benefit from EPA’s guidance on when and how EPA will exercise “enforcement discretion” in response to non-compliance events...

Our Recommendations

It is important that regulated entities be able to demonstrate that any noncompliance with environmental laws was caused by COVID-19. We recommend (1) documenting the effects of COVID-19 at your facility; (2) preserving all evidence related to noncompliance and COVID-19, including internal documents, emails, and text messages; and (3) communicating noncompliance events or missing data to the appropriate regulatory authority as soon as possible and maintaining documentation of all such communications. Having this type of documentation at the ready will make it that much quicker and easier to reach a successful enforcement outcome. It is important to remember that EPA and most state agency employees are working remotely and may not be as diligent about recording conversations or maintaining texts or emails.

Additional Considerations Regarding State Policies

In addition to these EPA guidance documents, several states have also issued similar changes to their monitoring and enforcement policies in the face of COVID-19. Whether or not a state has issued an official enforcement discretion policy, it is important that regulated entities be ready and able to show that any noncompliance was related to COVID-19 to negotiate a reasonable outcome in the case of an enforcement action and to maximize the chances that the state will exercise enforcement discretion.

Policy Summaries

Here are detailed summaries of each policy:

• COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program: Under this temporary policy, which applies retroactively beginning March 13, 2020, EPA announced an intention to exercise “enforcement discretion” during the COVID-19 pandemic. EPA will not seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations where COVID-19 is the cause of the noncompliance and the entity is able to document that it was not reasonably practicable to engage in these activities due to COVID-19. Regulated entities must continue to notify EPA or the appropriate state authority of noncompliance associated with facility operations, exceedances of permit limitations, unpermitted discharges of pollutants, and other violations of permits or regulations. EPA will consider the circumstances of noncompliance, including the COVID-19 pandemic, in determining whether an enforcement action is appropriate on a case-by-case basis.

EPA has also relaxed the volume threshold for very small quantity generators (VSQGs) and small quantity generators (SQGs) of hazardous waste under this policy, as well as the threshold requirements for concentrated animal feeding operations (CAFOs). The policy does not apply to criminal violations, activities carried out under Superfund or RCRA, or to the import of products. All ongoing enforcement matters with EPA are continuing and are not affected by the policy. Once the policy is no longer in place, EPA will expect full compliance going forward, and, in some instances, facilities may have to conduct late monitoring or submit late reports to EPA.

• Temporary Advisory for National Pollutant Discharge Elimination System (NPDES) Reporting in Response to COVID-19 Pandemic: This advisory provides additional guidance for NPDES monitoring, sampling, and reporting requirements under the temporary policy described above. Under this guidance, NPDES permit holders are encouraged to continue to electronically report monitoring data, even if the data is incomplete due to the COVID-19 pandemic. The advisory contains specific instructions on how to code missing data on the permittee’s Discharge Monitoring Report (DMR) form. Regulated entities may also obtain temporary electronic reporting waivers if they are unable to submit electronic DMRs due to COVID-19. EPA encourages NPDES permit holders to continue to make all efforts to comply with their permit obligations and report if sampling, monitoring, or laboratory data is not available due to COVID-19, and subsequently report that data when it is available. This advisory guidance will be in effect for the same period as the above-mentioned temporary policy.
• Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19: This guidance pertains to cleanup and emergency response actions at sites where EPA is the lead agency or has direct oversight of/responsibility for the work performed at the site, including under CERCLA (Superfund), RCRA, TSCA PCB cleanup provisions, the Oil Pollution Act, and the Underground Storage Tank (UST) program. Due to COVID-19, EPA will make case-by-case decisions as to continuing, reducing, or pausing field work at these sites and encourages regional EPA offices to periodically evaluate the status of the response work at these sites in light of the possible impact of COVID-19 and public health threats associated with operations at the sites. The guidance directs regions to continue to monitor site conditions where work is paused on the site and modify performance obligations under the applicable enforcement instrument where appropriate. Force majeure provisions may be applicable on a case-by-case basis, and parties are encouraged to discuss such provisions and delayed performance obligations with EPA project managers.

Bottom Line

Enforcement discretion is not a get out of jail free card — regulated entities should continue to run their facilities safely and in compliance with environmental laws, regulations, and permits.