U.S. EPA May Excuse Violations Caused by COVID-19; States May Not Follow Suit

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Companies must continue to comply with environmental compliance obligations if possible.  Noncompliance may be excused by USEPA under this policy only if compliance is not reasonably practical due to the COVID-19 pandemic.

If you determine compliance is not practical, the policy requires you to:

  • Act responsibly and minimize the effects and duration of noncompliance;
  • Document the compliance issues and the dates of noncompliance;
  • Document how the COVID-19 pandemic prevented compliance and the actions taken in response, including efforts to avoid the noncompliance and steps to return to compliance as soon as possible;
  • Return to compliance as soon as possible;
  • Be prepared to demonstrate all of this to USEPA; and
  • The noncompliance must be reported, either now or later if reporting is not reasonably practical at this time due to the COVID-19 pandemic.

The policy applies to the following types of compliance:

  • Compliance monitoring (e.g., stack tests);
  • Integrity testing (e.g., tank integrity testing);
  • Sampling (e.g., effluent sampling and cooling tower sampling);
  • Laboratory analysis (e.g., laboratory holding times and turnaround times);
  • Training (e.g., SPCC training and hazardous waste training); and
  • Reporting or certification (e.g., noncompliance reporting, reports under permits, and TRI reports).

The policy does not apply to the following:

  • Criminal violations, including conditions of probation in criminal sentences;
  • Activities carried out under Superfund and RCRA Corrective Action enforcement, agreements, or orders, although these may be relaxed in a future action by USEPA;
  • Imported materials;
  • The mere inability to obtain a “wet” signature – USEPA will accept emailed submissions; and
  • Accidental release reporting and response requirements.

USEPA Administrative Settlement Agreements. Parties to settlement agreements with USEPA must provide notice under the notification procedures in the agreement if they will miss milestones. Consider whether your agreement has a specific notification requirement applicable to force majeure events. Comply with the actions required in the agreement regarding noncompliance notice and action plans.

USEPA Consent Decrees. USEPA will coordinate with the U.S. Department of Justice to exercise enforcement discretion for stipulated penalties, although courts retain jurisdiction over consent decrees. Follow the notice procedures set forth in the consent decree, including notification for force majeure, if applicable.

Facility Operations. Notify USEPA or your state agency if the COVID-19 pandemic creates an acute risk or an imminent threat to human health or the environment, and notify the implementing authority if there is a failure of pollution control equipment (e.g., air emission controls, wastewater or waste treatment systems) that results in exceedance of enforceable limitations. In cases where USEPA implements the program at issue, it will consider the circumstances of the COVID-19 pandemic in determining whether an enforcement response is appropriate. For hazardous waste generators that cannot transfer waste offsite within the appropriate time required under RCRA, if notice is provided to USEPA or the state agency, USEPA will treat such entities to be hazardous waste generators and not treatment, storage, and disposal facilities, and Small Quantity Generators and Very Small Quantity Generators will not lose their status even if they store more waste onsite due to the generator’s inability to arrange to have the waste removed from the site due to the COVID-19 pandemic.

State Enforcement. Many states have delegated authority to administer and enforce federal environmental regulations. State reaction to USEPA’s guidance on relaxed enforcement has drawn mixed reactions. Some states have indicated a willingness to follow USEPA’s lead on enforcement, while other states like New York and California have criticized USEPA’s policy and indicated they would not provide the same broad relief from enforcement. Many states acknowledge the potential for compliance issues but want to make decisions on a case-by-case basis. Ohio EPA, for example, recently set up an email account (EPA.COVID-19REGFLEX@epa.ohio.gov) for companies to request regulatory flexibility if compliance is not possible due to impact from COVID-19, including alternative approaches to maintaining compliance and enforcement discretion.

Conclusion. USEPA’s policy is not a broad relaxation of environmental regulations as indicated in some news reports. First, compliance is still required unless you can demonstrate that it is not reasonably practical due to the COVID-19 pandemic. Second, there is no guarantee USEPA will decide to excuse violations. In the policy, USEPA states that it “does not expect to seek penalties for violations…where EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.” Third, you must comply with state regulatory and permit conditions in state-issued permits unless the state has issued a similar policy. Finally, violations, even without enforcement by USEPA, could have other negative consequences, such as triggering disclosure requirements in business transactions, insurance applications, loan agreements, or certifications. Companies should carefully consider what information to disclose to federal and state regulatory authorities.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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