EPA’s Temporary Policy Regarding Enforcement During COVID-19 and Tips to Remain in Environmental Compliance

As described further below, EPA recently issued a “temporary” policy that allows EPA to use its enforcement discretion regarding impacts caused by the COVID-19 pandemic that affects a company’s ability to comply with environmental conditions of its permits or consent orders. In short, EPA does not expect to seek penalties for certain violations in situations where EPA agrees that the COVID-19 pandemic was the cause of the noncompliance and the company followed the EPA guidance as summarized below.

Businesses throughout the United States are dealing with unprecedented disruptions to the normal operations at their facilities as a result of the epidemic of respiratory illness (COVID-19) caused by a novel coronavirus (SARS-CoV-2).

In addition to depleted on-site staffing caused by remote work, self-quarantines, and illnesses, normal supply chains have been disrupted, especially with regard to the availability of Personal Protection Equipment (“PPE”), which is being allocated to the healthcare industry. Businesses are also facing a steep fall in the economy and fiscal resources, such as cash-on-hand, are suddenly more precious.

These disruptions may make it especially difficult for facilities with environmental permits, or recipients of agency consent orders or settlements, to remain in compliance. Businesses may face unfamiliar scenarios such as: 1) the unavailability of key staff and compliance personnel; 2) a scarcity of supplies, like PPE; 3) an inability to access needed services, like laboratory services or waste transport and disposal services; or even 4) a complete inability to operate a business deemed “non-essential.” These scenarios are likely to have a direct impact on a business’s ability to comply with common environmental permit conditions, such as sampling, data recording, hazardous waste disposal, and reporting obligations, and may contribute to a failure to meet operational limits. In some situations, full compliance may be made impractical or impossible, and owners and managers will be left asking: “What steps can I take to protect my business?”

First and most importantly, regulated businesses got a highly anticipated answer to many of their questions when EPA released its enforcement guidance on March 26, 2020 entitled: “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.”

EPA’s Temporary Policy Regarding Enforcement during the COVID-19 Pandemic ¹

EPA’s Memorandum: COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program (the “Guidance”) details how EPA² intends to exercise enforcement discretion for regulated businesses and facilities that experience specific impacts caused by the COVID-19 pandemic and related responses that effect that entity’s ability to comply with conditions of its permits or consent orders. The Guidance specifies: (1) what EPA expects the entity or facility to do when it anticipates or encounters a violation of a permit condition; (2) how EPA plans to respond to the issue, depending on the severity of the risk to human health and the environment, which EPA-administered program the condition applies under, and the type of condition that is violated; and (3) how EPA intends to exercise its enforcement discretion in each scenario during the period of the pandemic.

This policy applies retroactively beginning on March 13, 2020 and EPA will post a notification at least seven days prior to terminating this temporary policy at https://www.epa.gov/enforcement/enforcement-policyguidance-publications.

Eligibility for Enforcement Discretion:

EPA makes it clear that only violations resulting from a documented impact that the business or facility is experiencing due to the COVID-19 pandemic and the related response are eligible for enforcement discretion.⁴ Accordingly, EPA’s enforcement discretion will not apply to criminal violations (generally, those that result from a willful disregard of law) or conditions of probation in criminal sentences.

In order to be eligible for enforcement discretion, entities should make every effort to comply with their environmental compliance obligations. If compliance is not reasonably practicable, facilities should:

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

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

c. Identify how the COVID-19 pandemic 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.

NOTE: The information in this section is referred to throughout this summary as “Subpart A”.

Routine Compliance Monitoring and Reporting:

Entities should use existing procedures to report noncompliance with routine activities.⁵ If no such procedure is applicable, or if reporting is not reasonably practicable, entities should maintain this information internally and make it available to the EPA or an authorized state or tribe 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 in situations where EPA agrees that the COVID-19 pandemic was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request. EPA expects full compliance after this policy is no longer in effect, but absent exigent circumstances, EPA does not plan to ask facilities to “catch-up” with missed monitoring or reporting for intervals of less than three months. EPA expects facilities to take reasonable measures to resume compliance activities and submit any missed bi-annual or annual reports as soon as possible when this policy is no longer in effect. During the duration of the policy, EPA will accept a digital or other electronic signature, even where a “wet” signature is required.⁶

Reporting Obligations and Milestones in Settlement Agreements and Consent Decrees:

For settlement agreements that EPA solely administers, parties that anticipate missing enforceable milestones as a result of the COVID-19 pandemic should utilize the notice procedures set forth in the agreement, including notification of a force majeure, as applicable. The notification should provide the information required by the agreement, including steps taken to minimize the effects and duration of any noncompliance, and the information in Subpart A above. EPA intends to not seek stipulated or other penalties for noncompliance with routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and associated reporting or certification obligations. EPA staff will review these notifications and may contact a party to adjust a proposed plan of action.

For consent decrees entered into with the EPA and the U.S. Department of Justice, EPA staff will coordinate with DOJ to exercise enforcement discretion with regard to stipulated penalties for the routine compliance obligations in the same manner as above. EPA will also consult with any co-plaintiffs to seek agreement with this approach. Parties should similarly utilize the notice procedures set forth in the consent decree, including notification of a force majeure event, as applicable, with respect to any noncompliance alleged to be caused by the COVID-19 pandemic. Note that courts retain jurisdiction over consent decrees and may exercise their own authority.

Parties should proceed as proposed in their notices to the EPA and DOJ unless and until contacted by the relevant agency.

Facility Operations:

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. As a result, EPA does not specifically commit to exercising enforcement discretion here, but instead states that it “will consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.”

Where any facility operations may create an acute risk or an imminent threat to human health or the environment, the facilities should contact the appropriate implementing authority (EPA region, authorized state, or tribe).⁷ Additionally, where any failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases, the facility should notify the implementing authority (EPA regional office or authorized state or tribe) as quickly as possible, and include information on the pollutants involved; the comparison between the expected emissions or discharges, disposal, or release and any applicable limitation(s); and the expected duration and timing of the exceedance(s) or releases. EPA will then determine whether the risk posed is acute or may create an imminent threat to human health or the environment.

In both situations above, the EPA regional office will evaluate whether an applicable permit, statutory, or regulatory provision addresses the situation, and if not, EPA will work with the facility to minimize or prevent the acute or imminent threat to health or the environment and obtain a return to compliance as soon as possible. In delegated programs, EPA’s will consult with the state or tribe to discuss measures to minimize or prevent the acute or imminent threat to health or the environment from the noncompliance.

If facility operations result in noncompliance other than discussed above, regulated entities should take the steps identified under Subpart A above.

Generators of Hazardous Waste:

Generators of hazardous waste who are unable to transfer the waste off-site within the time periods required under RCRA to maintain its generator status, should continue to properly label and store such waste and take the steps identified under Subpart A above. If these steps are met, the EPA will treat such entities to be hazardous waste generators and not treatment, storage and disposal facilities. Similarly, EPA will treat Very Small Quantity Generators and Small Quantity Generators as retaining that status, even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold due to the generator’s inability to arrange for shipping of hazardous waste off of the generator’s site due to the COVID-19 pandemic.

Public water systems regulated under the Safe Drinking Water Act:

EPA has heightened expectations for public water systems and expects operators of such systems to continue normal operations and maintenance as well as required sampling to ensure the safety of our drinking water supplies. In the event of worker shortages in the water sector, the EPA expects sampling to be prioritized to protect against microbial pathogens, then nitrate/nitrite and Lead and Copper Rule monitoring, then other contaminants for which the system has been non-compliant. EPA strongly encourages public water systems to consult with the state and EPA regional offices without delay if issues arise that prevent the normal delivery of safe drinking water. EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether any enforcement response is appropriate at public water systems acting in accordance with this subpart.

Note: This summary of the EPA Guidance is intended for informational purposes and is not a complete analysis of all of its provisions.

In light of the above, Brown Rudnick LLP has put together the following tips for remaining in environmental compliance during the COVID-19 pandemic.

Tip #1: Know your obligations and anticipate issues.

Whether your business has an environmental permit or is subject to an agency consent order, the business is likely subject to one or more of the following ongoing compliance obligations:

• specific operational requirements or limitations
• monitoring and/or sampling
• data recording and retention
• periodic and/or threshold reporting
• site security protocols
• safety requirements
• emergency protocols and associated reporting
• waste manifests and hazardous materials controls
• training
• milestones and deadlines

Failure to fully understand regulatory obligations is never a defense to compliance. Be sure to review the language of the permits or orders carefully. Pay particular attention to mandatory obligations and frequency of reporting. If some obligations are conditional (i.e. conditioned on another event occurring), make note of the conditions or thresholds. Evaluate what deadlines are approaching over the next few weeks and months, and plan ahead to meet them.

Even if you have been operating under a permit or order for a while, you should not assume that everything is taken care of. Try to anticipate new issues that you may encounter due to how your business has been affected during this state of emergency. As an example, staff shortages may make otherwise routine sampling difficult or take longer than anticipated. Even minor changes to sampling routines, such as the time of day that the sample was taken, may in itself be a reportable event and failure to report would be a violation. Therefore, all businesses should take this opportunity to review your permit or order to anticipate new issues.

Reiterate the proper lines of communication for compliance issues at each facility and, if necessary, redefine compliance roles to ensure proper coverage. Develop contingency plans for the “unexpected.” Despite everyone’s best efforts, the situation may get worse before it gets better. Redundancy in planning can help avoid a last-minute scramble.

If you are overwhelmed or want to double check your evaluations or plans of action, don’t hesitate to call Brown Rudnick or your environmental consultant.

TIP #2: Understand what your permitting authority or issuing agency is doing in response to this unprecedented situation and notify them of specific issues before it leads to non-compliance.

Several federal and state agencies have issued guidance and/or modified policies as a result of the outbreak, and will likely continue to do so as this situation progresses. Therefore, it is important to check whether your state or local permitting authority or issuing agency has released any information or changed any policies applicable to your permit.

Review EPA’s Guidance carefully. Even if EPA is not your permitting authority or issuing agency, its Guidance is likely to set the standard for the expected response to most issues pertaining to permit noncompliance. However, keep in mind that states may set their own policies that differ from EPA’s.

Some states have been proactive in responding to industry concerns. The governor of Connecticut, for example, has authorized all state agencies to extend any statutory or regulatory time requirements, deadlines, and legal processes for up to 90 days, thus giving agencies explicit authority to grant individual or even blanket extensions.⁸ As of March 26, 2020, no state agency has broadly utilized this authority. It is important to note, however, that states would not have the power to nullify requirements of federal laws without additional federal approval. Therefore, while a state could extend a deadline in a permit it has issued, it could not allow a discharge of pollutants to the waters of the United States in contravention of its delegated authority.

It will be important to stay updated on new developments and guidance from your permitting authority or issuing agency throughout the period of this epidemic. EPA left open the possibility of modifying its Guidance and anticipates issuing further guidance to programs not yet covered.

Next, talk to or email your permitting authority or issuing agency! Although agencies have an obligation to uphold and enforce environmental laws, they will generally work with a business that is trying to determine how best to comply. Depending on the severity of the issues that your business faces, you may want to explore opportunities made available by your permitting authority or issuing agency to seek a temporary suspension or exemption to the permit, if the agency has a procedure to do so. It is especially important to contact your permitting authority or issuing agency if you discover that compliance will be truly impossible or as soon as you realize that noncompliance has occurred. EPA’s Guidance makes this point abundantly clear and your eligibility for enforcement discretion likely depends on proper communication with the agency. Ensure that your business follows all agency instructions, and appropriately tracks the causes of the noncompliance.

If your business is subject to a settlement agreement or consent order, the additional conditions of the order typically may be modified through a joint agreement with the issuing agency. Through this process, an agency may agree to allow for a temporary suspension of the additional obligations in the order or to extend deadlines. Note, however, that this will not suspend any obligations of the underlying law or permit that led to the issuance of the order.

Agencies have also been affected by the epidemic and the resulting government orders and recommendations for slowing the spread of COVID-19. EPA has urged all of its employees to telecommute and has confirmed that at least one employee is “presumed positive” for the disease. Several states have closed government offices and limited normal government functions. As a result, many agencies have modified procedures for how filings are to be completed. You should not assume that you can file your compliance filings the way you always have. When in doubt, ask your regulator or permitting authority, check the agency’s website, or contact your permit writer or regulatory contact. Your permit or order likely specifies a point of contact, but if you cannot reach your point of contact, try to reach other staff at the agency or contact the primary phone number and ask to be directed.

Tip #3: Do what you can to comply.

As EPA’s Guidance makes clear, “[e]ntities should make every effort to comply with their environmental compliance obligations.” Therefore, assuming that you have completed the steps in TIP #1 and explored your options in TIP #2, now it is time to take action!

Every business’s situation will be different and there is no one-size-fits-all solution to the issues that businesses may face during this state of emergency. However, we have included several courses of action for your consideration that may help your business to remain in compliance.

1. Consider whether reasonable changes to operations will keep you in full compliance. Staggering or consolidating operations may reduce the strain caused by reduced compliance staffing. If you have conditional permit obligations, evaluate whether you can avoid them from being triggered by modifying operations.
2. Consider hiring a consultant or third party service to assist during staffing shortages or take over certain obligations during a period of mandated closure.
3. If reasonable changes to operations are not sufficient to fully comply with your permits or orders, prioritize your efforts to ensure the proper operation of air emission controls, wastewater or waste treatment systems, or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, land disposal, or other unauthorized releases. EPA did not guarantee that it will exercise enforcement discretion for these forms of noncompliance. In any case of anticipated or actual noncompliance, contact your permitting authority right away. If the noncompliance could result in an acute risk or an imminent threat to human health or the environment, contact EPA immediately per EPA’s Guidance.
4. Consider applicable technological options such as installing electronic monitoring equipment and utilize electronic data reporting and electronic signatures where allowed by the agency.
5. Plan ahead to avoid a shortage of PPE or other needed supplies or equipment. Make sure that you have enough PPE or other supplies to safely operate your business, but avoid hording supplies that are needed to protect healthcare workers and the most vulnerable members of society. Make sure you understand and comply with relevant OSHA requirements.
6. With regard to necessary third party services like laboratories and waste disposal services that are in high demand responding to the present situation, plan to communicate with them in advance to ensure they can accommodate your needs.
7. If full compliance is impossible, it is important to still attempt to comply to the best of your ability. EPA’s Guidance makes that an explicit condition to eligibility for enforcement discretion, and other agencies will likely follow suit. Additionally, agencies typically have the power to impose higher penalties when the noncompliance is willfully performed, and even seek criminal charges for willful disregard for the law.

Remember that even slight changes to operations or compliance plans may require notification to the permitting authority.

If you have any questions, or for further information please contact Franca DeRosa, Doug Cohen, or Zachary Bestor.

¹EPA, Memorandum: COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, March 26, 2020, https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf.

²Authorized states or tribes may take a different approach under their own authorities, but EPA’s Guidance at times instructs authorized states or tribes how EPA expects them to act.  States can always adopt a more stringent strategy or requirements.  Always check state requirements as well.

³EPA specifies that this Guidance is not intended to apply to: (1) activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments, (2) imports, or (3) pesticide that claim to address COVID-19 impacts.  EPA anticipates issuing further guidance with regard to these matters.

⁴In its Guidance, EPA recognizes the impact that the COVID-19 pandemic has had on its regulated businesses and facilities, including: worker shortages, travel and social distancing restrictions imposed by both governments and corporations or recommended by the Centers for Disease Control and Prevention, impacts on facility operations, unavailability of key staff and contractors, and the an inability of laboratories to timely analyze samples and provide results. 

⁵EPA specifically includes compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification in this category.  See Guidance, Footnotes 2 - 7 for more information on each.

⁶EPA strongly encourages the use the EPA’s approved electronic reporting mechanisms. For enforcement purposes, the EPA also will accept emailed submissions even if a paper original is required.

⁷EPA strongly encourages facilities, states, and tribes to consult with their EPA regional office on acute risks and imminent threats.

⁸https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7M.pdf?la=en

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The views expressed herein are solely the views of the authors and do not represent the views of Brown Rudnick LLP, those parties represented by the authors, or those parties represented by Brown Rudnick LLP. Specific legal advice depends on the facts of each situation and may vary from situation to situation. Information contained in this article is not intended to constitute legal advice by the authors or the lawyers at Brown Rudnick LLP, and it does not establish a lawyer-client relationship.