The Environmental Protection Agency (EPA) announced an enforcement discretion policy for the COVID-19 pandemic, applying retroactively to March 13, 2020.  In the policy, EPA acknowledges that facilities may be limited in their ability to comply with federal environmental permits, regulations, statutes, settlements, and consent decrees.  EPA will post a notification seven days prior to terminating this temporary policy.

Iowa DNR (IDNR) has also issued a COVID-19 Enforcement and Compliance Protocol, primarily addressing monitoring, testing, reporting, and certification requirements, along with animal stocking at animal feeding operations. IDNR announced that these specific solid waste, animal feeding operations, air quality, storm water, and operator certification requirements are subject to the Department’s enforcement discretion through April 30, 2020.

We encourage you to contact your attorney with questions or if you would like assistance developing your policies, procedures, and action plans.

Documentation

In order to qualify for enforcement discretion under EPA’s policy, regulated entities “should make every effort to comply with their environmental compliance obligations.” 

If compliance is not reasonably practicable, the policy instructs facilities to take and document the following steps:

1. act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19
2. identify the specific nature and dates of the noncompliance
3. identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity
4. return to compliance as soon as possible

Routine Monitoring, Testing, Training, Certification, and Reporting

The policy states, “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.”

Entities should report their noncompliance according to any procedure applicable in a permit, regulation, or statute, and for obligations imposed by administrative settlement agreements. Parties should use notice procedures set forth in the agreements, including notification of a force majeure as applicable. 

EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. The policy specifies situations where facilities should and should not expect to submit late or “catch up” monitoring or reports.

Facility Operations

The policy directs facilities to immediately contact the EPA regional office or the state if:

• facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment; or
• there is a failure of air emission control equipment, wastewater or waste treatment systems, or other facility equipment “that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or unauthorized releases.”

In other circumstances resulting in noncompliance due to the COVID-19 pandemic, regulated entities should take the generally applicable documentation steps listed above and EPA will consider the circumstances when determining whether enforcement is appropriate.

The policy also provides specific direction to generators of hazardous waste that may be unable to transfer waste off-site within time periods required under RCRA due to the COVID-19 pandemic, as well as for animal feeding operations that are unable to transfer animals off-site due to disruptions caused by the COVID-19 pandemic.

Areas of Special Focus

EPA emphasizes that public water systems are obligated to continue normal operations and maintenance during the COVID-19 pandemic.  The policy prioritizes continued operation of drinking water systems in the event of water sector worker shortages.  EPA also lists tiers of compliance monitoring in the event of worker shortages and/or laboratory capacity problems.  Public water systems are strongly encouraged to consult with state and EPA regional offices “if issues arise that prevent the normal delivery of safe drinking water.”

The policy does not apply to pesticide products entering the U.S. or produced, manufactured, or distributed in the U.S. that claim to address COVID-19 impacts.  “The agency expects to focus on ensuring compliance with requirements applicable to these products to ensure protection of public health.”

No Enforcement Discretion

The policy does not provide leniency for intentional criminal violations of law, nor does it apply to activities carried out under Superfund or RCRA Corrective Action enforcement instruments.