EPA's Enforcement Guidance for Noncompliance During the COVID-19 Pandemic

The U.S. Environmental Protection Agency (EPA) on March 26, 2020, issued a memo called the COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program. EPA's temporary policy is that it will exercise enforcement discretion with respect to assessing civil penalties for noncompliance with federal environmental permits, regulations and statutes that occur as a result of the coronavirus (COVID-19) pandemic. Regulated entities must take the steps outlined in the policy (Enforcement Discretion Policy) in order to qualify for enforcement discretion. The Enforcement Discretion Policy will be retroactively applied to March 13, 2020.

EPA acknowledged potential worker and contractor shortages, as well as travel issues, because of COVID-19-related government orders and recommendations. In addition, EPA acknowledged that these consequences may affect the ability of an organization to meet enforceable limitations on air emissions and water discharges, requirements for the management of hazardous waste, or the requirements to ensure and provide safe drinking water. However, EPA expects entities to make every reasonable effort to comply with their environmental compliance obligations. In other words, EPA is not issuing a license to the regulated community to intentionally pollute or violate environmental laws and permits. In fact, EPA indicated that its Criminal Investigative Division remains vigilant and is prepared to pursue violators who demonstrate a criminal intent to violate federal environmental laws.

Nonetheless, EPA outlines several steps that facilities should take if it is not reasonably practicable to comply with environmental compliance obligations and to avoid civil penalties.

This Holland & Knight alert outlines those steps. In sum, EPA expects facilities to keep records of the event, minimize the effects of noncompliance, and return to compliance as soon as possible. In certain instances facilities must notify EPA of the event, most notably if any noncompliance results or may result in a release to the environment. The temporary Enforcement Discretion Policy does not relieve an entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste and other pollutants.

EPA also provides specific guidance for generators of hazardous waste, critical infrastructure, routine compliance monitoring and reporting, settlement agreement and consent decree reporting obligations and milestones, and public water systems regulated under the Safe Drinking Water Act. This alert summarizes these specific policies below.

During the pendency of the COVID-19 pandemic, EPA expects to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment. EPA is not halting current and ongoing EPA enforcement matters; they are continuing. The Enforcement Discretion Policy does not apply to Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA) Corrective Action enforcement instruments, which will be addressed under separate cover by EPA, imports – particularly related to pesticide products, and criminal violations or conditions of criminal sentences. It is recommended that the steps outlined in the Enforcement Discretion Policy also be followed to document that the noncompliance was an unavoidable result of issues arising from the pandemic and not intentional to avoid criminal enforcement.

Facilities should, however, be aware that the Enforcement Discretion Policy does not prevent  private parties from initiating citizen suits for violations of environmental obligations, whether they were intentional or not. In fact, EPA indicated that states and tribes that have been authorized to administer environmental regulations may take a different approach to enforcement under their own authorities, and may be more stringent. Therefore, facilities should monitor COVID-19 related requirements and guidance issued by state environmental agencies. Holland & Knight is issuing state agency specific updates, which can be accessed on our COVID-19 Response Team webpage.

EPA indicated that it will provide seven days' prior notice before terminating this temporary policy.

Details of the Enforcement Discretion Policy

EPA's Policy on Civil Violations

EPA conditioned its enforcement discretion to impose civil violations during the COVID-19 pandemic on entities making every effort to comply with their environmental compliance obligations. If it is not reasonably practicable for a facility to comply with environmental compliance obligations, it should:

a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;

b. Identify the specific nature and dates of the noncompliance;

c. 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;

d. Return to compliance as soon as possible; and

e. Document the information, action, or condition specified in a. through d.

Holland & Knight considers the requirements above to be EPA's general best management practices for noncompliance during the COVID-19 pandemic (General BMPs) to avoid civil penalties and to prove that the noncompliance was not  "intentional," and therefore not a criminal compliance breach. EPA will not exercise discretion with respect to intentional compliance breaches.

The remainder of this alert outlines EPA's specific policies for facility operations, critical infrastructure, routine compliance monitoring and reporting, settlement agreement and consent decree reporting obligations and milestones, and public water systems regulated under the Safe Drinking Water Act.

A. Facility Operations

The 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 the environment. If you believe that your facility's operations during the pandemic may create an acute risk or imminent threat, you should contact the appropriate implementing authority (EPA region, state or tribe), in accordance with the July 11, 2019, memorandum on Enhancing Effective Partnerships Between EPA and States in Civil Enforcement and Compliance Assurance Work.

Facilities are expected to notify the appropriate implementing authority as soon as possible if there is a failure of air emissions controls, wastewater or waste treatment systems, or other facility equipment that results in or may result in exceedances of enforceable permit limitations. Facilities' notice to EPA should include information about the pollutants discharged, the expected discharges and limits, and the expected duration.

EPA will exercise its enforcement discretion under this temporary Enforcement Discretion Policy to allow generators of hazardous waste who are not able to transfer waste off-site within the time periods required to simply label and store that waste. Generators should also comply with the General BMPs. EPA will consider these facilities to be hazardous waste generators, not Treatment, Storage and Disposal Facilities (TSDFs). EPA will also allow Very Small Quantity Generators and Small Quantity Generators to retain that status if they follow the same guidelines, even if they exceed the regulatory thresholds for storage.

B. Critical Infrastructure

EPA indicated that it may consider tailored, short-term, No Action Assurance with conditions letters for critical infrastructure to protect the public. EPA indicated that these determinations will be made on a case-by-case basis and will consider whether or not the operations are "in the public interest." EPA does not define "critical infrastructure," but  operations that have been considered "essential" by the Cybersecurity and Infrastructure Security Agency (CISA) or state orders will likely be considered critical infrastructure. The assistant administrator for the Office of Enforcement and Compliance Assurance (OECA) will sign off on these letters.

C. Routine Compliance Monitoring and Reporting

EPA requires parties to review their existing permits, as well as existing regulation and statutes, to determine the applicable procedures to report noncompliance with routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification (Routine Compliance Obligations). If no procedure is applicable, facilities are expected to maintain the information internally and make it available upon EPA's request. EPA does not expect to seek penalties for violations of Routine Compliance Obligations, so long as parties provide supporting documentation upon EPA's request.

EPA does not expect parties to "catch-up" with missed Routine Compliance Obligations if the requirement is a quarterly obligation, but does expect facilities to take reasonable measures to complete biannual and annual Routine Compliance Obligations. EPA does expect operators to take their required licensing and certification courses, as most of those training courses are available online.

EPA will request digital and electronic submissions, but asks that the regulated community use EPA's approved electronic reporting mechanisms. Emails will be acceptable even when originals are typically required.

D. Settlement Agreements and Consent Decree Reporting Obligations and Milestones

EPA expects parties to Settlement Agreements to give notice to EPA if settling parties expect that they will miss enforceable milestones. The notice should provide the information required by the agreement, including, typically, the steps taken to minimize the effects and duration of any noncompliance and the General BMPs. With respect to Consent Decrees, EPA will coordinate with the U.S. Department of Justice with regard to stipulated penalties for Routine Compliance Obligations. Parties to Consent Decrees are expected to utilize the notice provisions in the Consent Decrees, including notification of force majeure, and utilize the General BMPs.

E. Public Water Systems Regulated Under the Safe Drinking Water Act

EPA indicated in this memorandum that public water systems have a heightened responsibility to protect public health and should maintain normal operations, maintenance and required sampling. In the case of worker shortages and laboratory capacity problems, EPA stated that continued operations of drinking water supplies will be of the highest priority, with compliance monitoring prioritized in the following order of importance:

• microbial pathogens
• nitrate/nitrite
• lead and copper rule
• contaminants for which the system has been noncompliant

Conclusion

EPA's Enforcement Discretion Guidance is not a license for facilities to break environmental laws or avoid the requirements of their permits. EPA expects all facilities to comply with federal environmental permits, regulations and statutes during this global health emergency. If noncompliance occurs as a result of the COVID-19 pandemic, then regulated entities must be prepared to take the steps outlined in the Enforcement Discretion Policy to avoid being assessed civil penalties or subject to criminal enforcement. Facilities must prove that there has not been an intentional lapse in compliance; but that noncompliance was a result of issues with staffing, contracting and laboratory resources outside of the facilities' control. Diligent record keeping is imperative should noncompliance occur. It is recommended that each regulated entity perform a risk assessment of its operations that takes into account the entity's capabilities to comply with environmental laws, regulations, permits, Settlement Agreements and Consent Orders during the COVID-19 pandemic, including current staffing, potential business interruptions, shelter-in-place rules and other limitations. Based on this assessment, the entity should develop and implement an internal emergency response plan to ensure that the General BMPs and specific operational requirements can be followed in the event that upcoming regulatory deadlines or permit requirements cannot be met.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.