Many of our clients have some state or federal environmental compliance obligations. We understand there is concern with how COVID-19 will impact your business, facility, or municipality, including your compliance obligations.
The situation is rapidly changing, and EPA and Iowa DNR have both issued guidance that may be updated or further clarified as the COVID-19 pandemic develops. We encourage you to contact your attorney should you have any questions or would like assistance developing your policies, procedures, and action plans.
Will my business, facility, or municipality be fined if we are unable to complete our monitoring, reporting, or other compliance obligations during the COVID-19 pandemic?
Federal enforcement: On March 26, 2020, EPA announced an enforcement discretion policy for the COVID-19 pandemic, applying retroactively to March 13, 2020. EPA divided environmental compliance obligations into different categories, which are treated differently under the policy. Entities should make every effort to comply with their environmental compliance obligations.
State enforcement: Iowa DNR issued a COVID-19 Enforcement and Compliance Protocol on March 20, 2020, 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.
What COVID-19-related situations qualify for EPA enforcement discretion?
Under the March 26, 2020, EPA policy, regulated entities must take several steps to qualify for possible enforcement discretion, including identification and documentation of how COVID-19 was the cause of the noncompliance. More information on the conditions for EPA enforcement discretion can be found in a previous post.
The EPA policy discusses some examples of types of causes:
- worker shortages
- travel restrictions and social distancing restrictions imposed by governments or recommended by the CDC
- unavailability of key staff and contractors
- unavailability of laboratories
- resource shortages
The Iowa DNR protocol does not specifically require regulated entities to document a COVID-19-related cause of noncompliance. However, entities should use the same documentation procedures discussed in the EPA policy, including tying noncompliance to a COVID-19-related cause, in order to fulfill the conditions for federal or state enforcement discretion.