USEPA COVID-19 Environmental Relief
USEPA issued a memo on March 26, 2020 entitled "COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program" (the "COVID-19 Memo"). The COVID-19 Memo expresses USEPA’s intent to use enforcement discretion when dealing with violations of specific USEPA requirements that are determined to be a result of the COVID-19 crisis. The COVID-19 Memo further expresses USEPA's intent use its enforcement discretion to waive civil penalties associated with any routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification requirements that are disrupted by the COVID-19 crisis. It notes that sampling/monitoring of public drinking water supplies must be prioritized by operators and labs. It also allows extended hazardous waste shipping dates for generators if shipments cannot be arranged. However, this temporary policy provides no relief from criminal enforcement cases or from spills/releases and related reporting obligations.
While the COVID-19 Memo does not repeal any environmental laws, it does allow the agency to use enforcement discretion to forego penalties when dealing with certain violations that arise from the COVID-19 crisis. Thus environmental violations covered by the policy will still need to be tracked and reported. The COVID-19 Memo specifically says that “(f)or noncompliance that occurs during the period of time that this temporary policy is in effect, and that results from the COVID-19 pandemic, this policy will apply to such noncompliance in lieu of an otherwise applicable EPA enforcement response policy.” USEPA also says that it will give a 7 day advance notice before terminating the temporary policy.
The COVID-19 Memo notes 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.” This gives a good insight into the types of hardships that the agency will consider. The COVID-19 Memo specifies that the regulated community is required to "make every effort to comply with their environmental compliance obligations" and they must take steps to minimize noncompliance and take steps to return to compliance as soon as possible. EPA does not plan to ask facilities to “catch-up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For other monitoring or reports with longer intervals, the EPA expects facilities to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports.
Overall, while the policy is good to have as a backup, we recommend relying upon these policies as sparingly as possible. We can foresee problems in getting quickly caught up once the temporary policy is over and, because it is only a recommendation of enforcement discretion rather than a suspension of the regulatory requirements, you will need to rely upon USEPA fairly applying the policy after the crisis has ended, and there could be a less favorable regulatory environment at USEPA by then.
If you have any questions about the USEPA's memo on COVID-19 or would like to discuss any environmental law concerns related to the coronavirus pandemic, please contact one of MacDonald Illig's Environmental & Energy attorneys. Although our office is closed, our attorneys are working remotely and can be contacted via email or phone.