Takeaways

On March 26, EPA issued a “temporary” policy outlining its plans for approaching civil enforcement in response to the COVID-19 pandemic.
The new policy does not waive environmental compliance obligations, but it provides regulated parties with a process to follow when compliance is not “reasonably practicable” due to COVID-19.
EPA will consider COVID-19-related impacts in determining whether to take enforcement actions and whether to waive penalties when regulated parties adhere to specified requirements.

Facing pressure due to the unique challenges of the COVID-19 pandemic, on March 26, 2020, the U.S. Environmental Protection Agency (EPA) issued a new enforcement policy on “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program,” formalizing EPA’s position on enforcement discretion for noncompliance with environmental obligations due to COVID-19.

EPA’s policy states that, during the pandemic, regulated parties face distinct challenges in complying with environmental obligations due to various factors, including worker shortages, travel and social distancing restrictions, and laboratory and vendor business closures and slowdowns. EPA’s approach is to treat these compliance challenges differently as described in the new policy.

The Policy Applies Retroactively and Covers Many Environmental Programs Administered by EPA

The policy applies retroactively from March 13, 2020—the day the President declared COVID-19 a national emergency—and for an indefinite period during which EPA will regularly review and reassess the circumstances and its policy. The policy applies to EPA headquarters and all EPA regional offices; however, authorized states and tribes are not required to follow EPA’s lead and can take different approaches under their authorities.

Under the policy, regulated parties remain responsible for making every effort to comply with environmental obligations. However, if compliance is not “reasonably practicable,” the policy establishes a process for the party to follow:

  • Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
  • Identify the specific nature and dates of the noncompliance;
  • 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;
  • Return to compliance as soon as possible; and
  • Document the information, action, or condition specified above.

The policy enumerates various routine requirements—compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations—for which EPA does not expect to seek penalties for violations if COVID-19 was the cause of the noncompliance and the facility provides supporting documentation. Further, EPA will not seek penalties for noncompliance with such routine obligations when they are required as part of an EPA administrative settlement agreement.

Existing Consent Decrees and Administrative Settlement Agreements

For consent decrees with EPA and the U.S. Department of Justice (DOJ), EPA plans to coordinate with DOJ to exercise enforcement discretion for stipulated penalties, but EPA discretion over consent decrees is more limited, as courts retain jurisdiction over consent decrees. The policy does not alter or replace any provisions of existing consent decrees and settlement agreements, including force majeure provisions; and EPA recommends that parties adhere to the notice procedures set forth in their consent decrees, including for force majeure, in seeking enforcement discretion for noncompliance.

Failures of Pollution Control Equipment, Unauthorized Releases, and Other Special Circumstances

The policy states that if a facility experiences an equipment or operational failure that may result in exceedances of enforceable limitations on emissions or other unpermitted releases, the regulated party should notify the EPA regional office or state permitting authority as quickly as possible. EPA will determine (in consultation with the state or tribal agency if applicable) how to minimize acute or imminent threats to human health or the environment and will consider all the circumstances, including the COVID-19 pandemic, in deciding whether an enforcement response is appropriate.

For critical infrastructure facilities experiencing noncompliance, EPA will consider taking the unusual step of issuing tailored No Action Assurances on a case-by-case basis if EPA determines doing so is in the public interest.

The policy sets forth additional specific provisions addressing generators of hazardous waste, public drinking water systems, and concentrated animal feeding operations.

The Policy Does Not Cover Certain Specified Programs and Types of Violations

The policy enumerates certain regulatory programs and types of violations that are not addressed under the policy, specifically:

  • Superfund and RCRA Corrective Action enforcement instruments—Activities carried out under Superfund and RCRA Corrective Action enforcement instruments are not covered by the policy, and EPA states these will be addressed through separate guidance.
  • Criminal matters—Criminal violations and conditions of probation in criminal sentences are not covered by the policy, and EPA states that the agency’s criminal enforcement will be addressed through a separate policy.
  • Imports—Chemical imports are not covered by the policy, and EPA states that it is particularly focused on monitoring pesticide products entering the U.S. that claim to address COVID-19 impacts.

What Happens When the Temporary Policy Ends?

The policy states that EPA will post a notice of intent to terminate the policy at least seven days before ending the policy. EPA’s enforcement policy website can be monitored at this link.

EPA states that when the policy is no longer in effect, regulated parties should ensure full compliance with all environmental obligations “going forward.” However, the policy clarifies that (1) EPA will apply the policy to actions and omissions that occur during the period the policy was in effect even after the policy terminates, and (2) EPA will not ask parties to “catch-up” with missed monitoring or reporting requirements where the reporting interval is less than three months. The latter provision covers many routine and periodic monitoring and reporting obligations under Clean Air Act permits and regulations, Clean Water Act permits, and many other regulatory programs. EPA states that parties should be prepared to comply with bi-annual or annual reporting requirements, even if original compliance deadlines were missed due to COVID-19.

EPA’s existing voluntary self-disclosure “audit policy” continues in effect under the policy, and regulated parties can take advantage of the audit policy to reduce or eliminate any civil penalty risk that may apply even after the temporary policy ends.

The Policy Provides Greater Clarity in a Difficult Compliance Environment

Parties facing difficulties meeting their environmental obligations during the COVID-19 pandemic should familiarize themselves with the new policy and take steps to establish and maintain eligibility for coverage under the policy. Time is of the essence in taking these measures, because notice may be required under the policy depending on the circumstances, and documentation must be maintained. Parties should also be mindful of separate, and possibly different, state and local requirements and continue monitoring enforcement-related guidelines issued by other regulatory agencies.

Although it is likely that opponents of the policy will threaten and some may pursue legal challenges, any challenges will face significant legal hurdles. Courts have held in other instances that EPA enforcement policies are not final agency actions and, therefore, are not subject to judicial review. The temporary nature of the policy also limits judicial review because court cases often take many months or years to reach a decision on the merits. The possibility of legal challenges should not deter regulated parties who are dealing with noncompliance issues from following the policy.

Pillsbury represents clients facing environmental and enforcement challenges and provides advice on how to respond to and manage these risks in uncertain regulatory environments. Please contact Jeff Knight at 202-663-9152 or jeffrey.knight@pillsburylaw.com, or your regular Pillsbury relationship attorney, for assistance.


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