Akin Gump Strauss Hauer & Feld LLP

In response to requests for leniency as companies grapple with reduced workforces during the COVID-19 crisis, the U.S. Environmental Protection Agency (EPA) issued a temporary policy announcing that it will exercise enforcement discretion with respect to most routine operational and maintenance obligations established by federal environmental permits, settlement agreements, regulations and statutes it enforces.1 Issued March 26, 2020, the policy applies retroactively through March 13, 2020, and until EPA issues notice at least seven days prior to terminating the policy. Recognizing that the pandemic impacts facility operations, the availability of key staff and contractors, and laboratory analysis throughout the nation, the policy offers some peace of mind to companies struggling to maintain compliance during this time.

The policy essentially divides compliance monitoring and reporting from operational requirements, giving greater amnesty to noncompliance with the former category, while articulating a willingness to take into account the COVID-19 pandemic among the factors it considers when determining if enforcement is appropriate for the latter category. Under this division, broad protection is afforded for noncompliance with compliance monitoring, integrity testing, sampling, laboratory analysis, training, reporting, and certification, even for those under administrative settlement agreements. Although companies should still “make every effort to comply with their environmental compliance obligations,” EPA “does not expect to assess penalties” if it is “not reasonably practicable” to meet these obligations due to the crisis, provided companies are able to document the context for the noncompliance.

On the operational side, the policy extends its forgiveness to RCRA generators or those who operate animal feeding operations and are not able to transfer waste or animals (respectively) off site in a timely manner due to transportation disruptions due solely to the pandemic and thus would otherwise face additional obligations. For example, the Agency will not consider large-quantity RCRA generators who cannot transfer waste within 90 days solely due to the COVID-19 disruption to be treatment, storage, and disposal facilities. For operational issues—such as the failure of a pollution control system or other equipment resulting in exceedances of permit limits, other unauthorized releases and any noncompliance that could result in an acute risk or imminent threat to human health or the environment—regulated entities are not guaranteed a pass on enforcement, and should still notify the appropriate implementing authority as quickly as possible. 

The Agency takes a different approach with respect to key infrastructure. Operators of public water systems are deemed to have a “heightened responsibility” in the context of the pandemic and are obligated to continue normal operations and maintenance, including required sampling, to protect drinking water supplies. Similarly, where a facility is considered “critical infrastructure” under guidance issued by the Cybersecurity and Infrastructure Security Agency,2 the EPA “may consider a more tailored short-term No Action Assurance, with conditions to protect the public, if EPA determines it is in the national interest.”

As should be clear, the policy provides much-needed relief to companies who have transitioned to remote workforces with limited staff present at operating facilities. In order to benefit from the enforcement discretion, facilities must:

  1. Minimize the “effects and duration” of noncompliance
  2. Identify the specific nature and dates of noncompliance
  3. Identify how COVID-19 caused the noncompliance 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
  5. Document all information, actions and conditions identified above.

Given the statute of limitations on enforcement decisions, it is a best practice to maintain this documentation for five years following the last date of noncompliance. Appropriately, EPA will offer no reprieve for criminal violations of environmental law and the Criminal Investigation Division can be expected to diligently pursue enforcement against those who seek to benefit from compliance forgiveness without legitimate COVID-19 exigencies.

Overall, the policy strikes a balance to provide leeway for companies to focus on the health and safety of their employees and business partners during this period of significant disruption, while continuing to keep up with obligations that avoid or minimize threat to public health or the environment.

1 Memorandum from Susan Parker Bodine, U.S. Envtl. Protection Agency, to All Governmental and Private Sector Partners (Mar. 26, 2020), https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf.

2 CISA, Guidance on the Essential Critical Infrastructure Workforce (updated Mar. 28, 2020), https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce.