By Ali Abazari
On March 26, 2020, EPA issued a temporary policy related to its enforcement discretion for noncompliance events resulting from the COVID-19 pandemic. The policy is entitled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program. The policy applies retroactively beginning on March 13, 2020, and will terminate after EPA’s determination that the policy is no longer needed. Notice to the public will be provided at least seven days prior to the termination of the policy. The policy does not apply to any criminal violations or conditions of criminal probation in criminal sentences, activities carried out under Superfund and RCRA Corrective Action enforcement instruments, or to FIFRA imports. Moreover, entities are not relieved from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants, as required by federal law, and enforcement discretion will not be exercised if facilities fail to fulfill such obligations.
As a threshold matter, to be subject to the policy, entities should make every effort to comply with their environmental compliance obligations, but if compliance is not reasonably practicable, the facility should (1) minimize the effects and duration of noncompliance; (2) identify the specific nature and dates of noncompliance; (3) identify how COVID-19 was the cause of the noncompliance; (4) return to compliance as soon as possible; and (5) document all of the above information.
To understand its scope, terms and compliance scenarios, the policy should be consulted directly. A general description of the scenarios addressed by the policy is provided below.
Routine Compliance Monitoring and Reporting. Entities should use existing procedures in permits, statutes and regulations to report noncompliance events. If no procedure is applicable or if reporting is not reasonably practicable due to COVID-19, regulated entities should maintain the information internally and make it available to EPA or the state upon request. EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations if COVID-19 was the cause of the noncompliance and supporting documentation is provided to EPA upon request.
Settlement Agreement Reporting Obligations and Milestones. If milestones are anticipated to be missed, the notice procedures in the agreement, including notification of force majeure, as applicable, should be used. Reporting obligations are treated the same as above.
Consent Decree Reporting Obligations and Milestones. EPA staff will coordinate with DOJ regarding stipulated penalties for the routine compliance obligations and will also consult with any co-plaintiffs to seek agreements. Courts retain jurisdiction over consent decrees and may exercise their own authority. Parties should use the notice procedures in the consent decree, including notification of a force majeure, as applicable, with respect to any noncompliance claimed to be caused by COVID-19.
Facility Operations. If facility operations may create an acute risk or an imminent threat to human health or the environment, the facility should contact the appropriate implementing authority, which could be the state or EPA depending on the program. It is encouraged that the EPA regional office be contacted even in authorized programs.
If a facility suffers from failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations on air emissions, discharges to water, land disposal, or other unauthorized releases, the facility should notify the implementing authority (which could be the EPA regional office or state) “as quickly as possible.” The policy sets out the information to be included in the notification. It is encouraged that the EPA regional office be contacted even in authorized programs.
If a facility is a generator of hazardous waste and due to the COVID-19 pandemic is unable to transfer the waste off-site within RCRA timelines, EPA will treat such entities to be hazardous waste generators, and not treatment, storage and disposal facilities. If the facility is a Very Small Quantity Generator and Small Quantity Generator, the status will be retained even if the amount of hazardous waste stored on-site exceeds regulatory volume thresholds.
If a facility is an animal feeding operation and is unable to transfer animals off-site and solely as a result of the pandemic meets the regulatory definition of a concentrated animal feeding operation (CAFO), EPA will not treat such animal feeding operations as a CAFO.
Public Water Systems Regulated Under the Safe Drinking Water Act. In the event of worker shortages in the water sector, EPA considers continued operation of drinking water systems to be the highest priority. In anticipation of worker shortage and laboratory capacity problems, EPA has created a tiered system for compliance monitoring. Of highest priority is monitoring required under National Primary Drinking Water Regulations to protect against microbial pathogens. Additional priorities include nitrate/nitrite and Lead and Copper Rule monitoring followed by contaminants for which the system has been non-compliant. EPA will consider the circumstances, when determining whether any enforcement response is appropriate at public water systems. TCEQ is the lead agency on drinking water issues and is expected to adopt similar priorities.
Ali Abazari is an environmental law attorney whose practice is focused on environmental permitting and compliance assistance, defense of environmental enforcement actions, and environmental aspects of real estate and corporate transactions. He represents a diverse group of clients including mining companies, energy companies, manufacturers, real estate developers, utilities, and their state counterparts. Over the past 20 years, he has also participated in the drafting and development of environmental laws and regulations at the state and federal levels.
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