On March 26, 2020, the U.S. Environmental Protection Agency (EPA) announced a temporary policy on its enforcement of environmental obligations during the COVID-19 pandemic. Many facilities are experiencing unexpected constraints arising from the pandemic, including limited availability of key staff, contractors, and laboratories. The EPA’s temporary policy considers these constraints and provides much-needed guidance for how regulated facilities should balance their limited resources with their compliance requirements.

Critically, regulated entities should not treat the EPA’s temporary policy as a waiver from their environmental obligations. In fact, the temporary policy requires that entities continue complying with all statutory, regulatory, permitting, and other legal obligations during the COVID-19 pandemic.

When circumstances related to the COVID-19 pandemic make compliance impracticable, however, then the EPA’s temporary policy outlines five steps entities must follow to allow the EPA to exercise discretion when addressing their noncompliance:

1. Minimize the effects and duration of any noncompliance;
2. Identify the specific nature and dates of the noncompliance;
3. Identify how COVID-19 was the cause of the noncompliance and what decisions and actions taken in response to the noncompliance, including what were best efforts taken to return to compliance as soon as possible;
4. Return to compliance as soon as possible; and
5. Be prepared to show documentation to the EPA of the preceding four steps.
   
   

The temporary policy does not apply to criminal violations, imports, or activities carried out under Superfund and RCRA Corrective Action enforcement instruments. It also does not relieve any entity from its responsibility for preventing, responding to, or reporting accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants.

Instead, the temporary policy provides the following specific situations in which it may apply.

Public Water Systems

The continued operation of public water systems is the EPA’s highest priority, and the EPA expects those systems to continue normal operations, maintenance, and sampling throughout the pandemic. If issues arise that may prevent normal delivery of safe drinking water, then the EPA will consider the following tiers of compliance monitoring: (1) continued monitoring for pathogens under the National Primary Drinking Water Regulations to protect against microbial pathogens; (2) nitrate/nitrite levels and Lead and Copper Rule monitoring; and (3) contaminants for which the system has been non-compliant.

Routine Compliance Monitoring and Reporting

If the EPA agrees that the COVID-19 pandemic caused an entity’s noncompliance with any routine monitoring and reporting requirement, then the EPA expects that it will not seek penalties for noncompliance. This discretion, of course, is conditioned on the entity reporting its noncompliance and documenting its compliance with the five steps outlined above.

The temporary policy, however, does not change consent decrees entered into with the EPA and the Department of Justice. Instead, the EPA will coordinate with the Department of Justice, consult with co-plaintiffs, and seek court approval when necessary to address violations of routine compliance obligations under those consent decrees.

Exceedances of Enforceable Limitations on Air Emissions, Water Discharges, or Land Disposal

Facilities with operations impacted by the COVID-19 pandemic that may create an acute risk or imminent threat to human health or the environment must immediately report to the EPA any noncompliance with any enforceable limitation. If the facility suffers from any failure of air emission control, or wastewater or waste treatment system, or other facility equipment, then the facility must notify the EPA regional office or authorized state or tribal implementing authority as quickly as possible. The notice must document the exceedance or release, including the pollutants emitted, discharged, discarded, or released, and the times and expected duration of the exceedance. And if the facility documents its compliance with the above five steps, then the EPA will consider the pandemic when determining whether an enforcement response is appropriate.

Hazardous Waste Generators

Hazardous waste generators that cannot transfer wastes offsite must continue labeling and storing those wastes while also complying with the above five steps. If so, then the EPA will continue treating the facility as a generator and not as treatment, storage, and disposal facility.

Very Small Quantity Generators and Small Quantity Generators whose stored hazardous waste exceeds volume thresholds may also retain their status if their inability to transfer wastes offsite is due to the COVID-19 pandemic.

Animal Feeding Operations

The EPA will not reclassify animal feeding operations that cannot transfer animals offsite solely because of the COVID-19 pandemic as a concentrated animal feeding operation—known as a CAFO—so long as the operations document compliance with the above five steps.

The EPA's temporary policy, which can be found here, applies retroactively beginning March 13, 2020. The EPA will update the policy as needed, and will terminate it after seven days’ notice. This policy, however, does not change authorized state and tribal programs ability to take different enforcement and compliance assurance approaches. As discussed in our prior alert, the California Environmental Protection Agency has not provided guidance similar to the EPA’s temporary policy. Instead, some individual departments within CalEPA have provided limited information about how COVID-19 has impacted their operations. For example, the California State Water Resources Control Board expects compliance with all orders, regulations, permits, and other requirements during the pandemic. If compliance is inconsistent with governmental directives or guidelines related to COVID-19, then affected entities must immediately notify the Water Board. Thus, entities must seek out guidance from California regulators on an individual, case-by-case basis.