In a much-anticipated memo dated March 26, 2020, the U.S. EPA shares “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.”  The seven-page memo, from Assistant Administrator for Enforcement and Compliance Assurance Susan Bodine, outlines EPA’s temporary approach to enforcement discretion for covered noncompliance resulting from the COVID-19 pandemic.  The policy recognizes that the “consequences of the pandemic may affect facility operations and the availability of key staff and contractors and the ability of laboratories to timely analyze samples and provide results.”  It applies retroactively to March 13, 2020 – if regulated entities take certain steps as outlined by EPA.

All EPA enforcement discretion set forth in the policy is specifically conditioned on the following:

1. Entities should make every effort to comply with their environmental obligations.
2. If compliance is not reasonably practical, facilities with environmental compliance obligations should:
3. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19
4. Identify the specific nature and dates of the noncompliance
5. 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;
6. Return to compliance as soon as possible, and;
7. Document the information, action, or condition specified in a. through d.

The policy also clarifies particular EPA expectations for public water systems and parties to EPA settlement agreements and consent decrees, among others.

The Burr & Forman environmental team will continue to monitor for COVID-19-related updates from EPA and the various state environmental agencies.

To view the March 26, 2020 memo in its entirety, please click here.

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