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April 2020

Environmental Protection Agency Issues Temporary Enforcement Discretion Policy in Response to COVID-19

April 13, 2020 

The U.S. Environmental Protection Agency's ("EPA") response to the COVID-19 pandemic includes a temporary policy of enforcement discretion relative to certain permitting timelines retroactive to March 13, 2020.  The policy will remain in place as long as needed and the EPA will post a termination notice, at least seven days in advance.[1]

The intent of the policy is to take into account the restrictions imposed by responses to the COVID-19 pandemic, which may affect facility operations and the availability of key staff and contractors, and the ability of laboratories to timely analyze samples and provide results. The goal is to ensure that during these extraordinary conditions, facilities will continue to operate to protect human health and the environment, and where reasonably practicable, return to compliance as quickly as possible.

Covered by the Policy

Civil violations, where the regulated entity takes the steps applicable to their situations, as set forth in the policy.

General Conditions

The EPA’s self-disclosure policy remains in effect and entities should make every effort to comply. If compliance isn’t reasonably practicable, facilities are expected to:

  • Act reasonably under the circumstances to minimize effects and duration of noncompliance
  • Identify specific nature and dates of noncompliance
    • Failures of air emissions control or waste water or water treatment systems or other facility equipment that may result in exceedances of enforceable limitation
  • Idenify how COVID-19 was the cause, the decisions and actions taken in response, including best efforts to comply
  • Return to compliance as soon as possible
  • Document information and actions to support response

Routine Compliance Monitoring and Reporting

EPA recognizes that the pandemic may constrain the ability of regulated entities to perform routine compliance monitoring, integrity testing, sampling, lab analysis, training and reporting or certification. The policy provides that entities should use existing procedures to report noncompliance with such routine activities. If no procedure is applicable or if reporting is not reasonably practicable due to the COVID-19 pandemic, such entities should maintain the information internally and make it available to EPA or an authorized state or tribe upon request. Under the policy, EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, lab analysis, training and reporting or certification obligations where EPA agrees that the pandemic was the cause of non-compliance and the entity provides supporting documentation to EPA upon request. 

Settlement Agreements

With respect to administrative settlement agreements, parties should follow the notification procedures in the document, including notification of force majeure, if applicable. Generally, EPA intends to not seek stipulated penalties for violations related to routine compliance monitoring, integrity testing, sampling, lab analysis, training and associated reporting or certification obligations in the manner described above.

Consent Decrees

With respect to Consent Decrees entered into with EPA and USDOJ, EPA will coordinate with DOJ to exercise enforcement discretion with regard to stipulated penalties for routine compliance violations related to COVID-19 response.

Facility Operations

EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and environment.

In each instance below, the first step facilities should take is to contact the appropriate implementing authority if facility operations may create an acute risk or imminent threat to human health or the environment.  Information provided should include the general conditions listed above. 

Hazardous Waste Generators

A generator of hazardous waste unable to transfer waste off-site due to COVID-19 conditions should continue to properly label and store such wastes.

Public Water Systems Regulated Under the Safe Drinking Water Act

Due to the heightened responsibility to protect public health because unsafe drinking water can lead to serious illnesses and access to clean water for drinking and handwashing is critical during the COVID-19 pandemic, EPA’s expectations for such facilities is heightened and such operators, laboratories and states must continue to prioritize compliance.

In the event of worker shortages in the water sector, EPA will consider continued operation of drinking water systems to be the highest priority and is working closely for federal, state and other partners to ensure that appropriate workers remain available.  

Critical Infrastructure

On a case by case basis, EPA may consider a more tailored short term No Action Assurance, with conditions to protect the public, if EPA determines it is in the public interest.

EPA Actions and State Oversight

During the COVID-19 pandemic, EPA intends to focus its resources largely on situations that may create acute risk or imminent threat to public health or the environment.  EPA will continue to work with states on oversight, to the extent practicable.

Accidental Releases

Nothing in the policy relieves a regulated entity from the responsibility to prevent, respond to, or report accidental releases, hazardous substances/chemicals/waste and other pollutants, or should be read as a willingness to exercise enforcement discretion in the wake of such a release.

Excluded from the Policy

  • Intentional criminal violations or conditions of probation in criminal sentences.
  • Does not apply to imports; for example, pesticide products entering the U.S., or produced, manufactured, or distributed in the U.S. that claim to address COVID-19 impacts. 
  • Activities carried out under Superfund and RCRA Corrective Action Enforcement documents (separate guidance coming).

Visit our COVID-19 Hub for ongoing updates.

Environmental/Toxic Tort

Thomas C. Blatchley

Environmental/Toxic Tort