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COVID-19: EPA Announces Policy for Enforcement, Compliance Assurance Programs

March 27, 2020

The US Environmental Protection Agency announced a temporary policy regarding its enforcement of certain environmental legal obligations in an effort to protect workers and the public from exposure to the coronavirus (COVID-19).

As the situation relating to the COVID-19 pandemic steadily evolves, local and federal agencies are taking actions to protect the health and safety of employees, contractors, and the public. In line with recent measures to slow the increase and spread of the virus, and to encourage social distancing practices, the US Environmental Protection Agency (EPA) announced March 26 that a temporary policy related to compliance with EPA enforcement of certain environmental legal obligations would take effect immediately, and apply retroactively to March 13, 2020.

The policy seeks to protect workers and the public from exposure to the virus, while continuing to balance the protection of human health and the environment. This policy also acknowledges the practical difficulties that regulated entities may experience in performing basic functions like sampling and monitoring, while employee travel is restricted and laboratory and similar resources may be diverted toward more pressing public health needs.

This new policy is a first step toward providing COVID-19 response guidance specific to EPA regulated activities and sites, although the rule of thumb still appears to be that COVID-19–related issues are still being addressed on a site-by-site basis.

Of note, while reporting obligations and milestones under administrative settlement agreements and consent decrees are included in this policy, the policy otherwise expressly excludes activities being “carried out under Superfund and RCRA enforcement instruments.” The EPA has, however, stated that it intends to address such activities in a separate communication.

Enforcement Discretion

The new enforcement policy directly addresses enforcement of civil violations during the COVID-19 outbreak. In particular, the EPA will temporarily suspend seeking penalties for noncompliance with certain permitted activities and regulations and statutes, such as routine monitoring and reporting obligations (e.g., air emissions and water discharges), that are related to the COVID-19 outbreak. Where reasonable, however, the EPA expects continued compliance with existing regulations.

Facilities that are regulated by the EPA can look to the language of the policy for steps to take to qualify for enforcement discretion. Additional program-specific guidance is also expected to be published as needed. The policy requires facilities to document decisions made to prevent or mitigate noncompliance, and demonstrate how the noncompliance was caused by or related to the COVID-19 pandemic.

If compliance is deemed not reasonably practicable, facilities with environmental compliance obligations should take the following actions:

  • Act responsibly to minimize the effects and duration of noncompliance caused by COVID-19
  • Identify the nature and dates of noncompliance
  • Identify how COVID-19 caused the noncompliance and detail decisions related to noncompliance, including best efforts to comply
  • Return to compliance as soon as practicable
  • Document the information, action, or conditions specified in the above directives

The policy also addresses reporting obligations and milestones under settlement agreements and consent decrees, advising parties to utilize procedures set forth in their respective agreements, including force majeure clauses. With respect to consent decrees entered into with the EPA and the US Department of Justice (DOJ), the EPA will coordinate with the DOJ to exercise enforcement discretion.

Policy Exceptions

There are notable exceptions to the policy, such as activities carried out pursuant to Superfund or RCRA Corrective Action instruments (as noted above). The policy change also does not provide leniency for intentional criminal violations of environmental laws and directives. Imports, such as pesticide products that purport to address COVID-19 impacts, are also excluded.

Similarly, critical infrastructure facilities are subject to more tailored short-term policies to protect the public. Individual authorized states and tribes are also permitted to take different approaches under their own authority related to environmental enforcement and regulatory compliance.

While public water systems are captured by the policy, EPA emphasizes their importance and expresses heightened expectations for such systems to continue normal operations to the extent possible, and identifies priority tiers for drinking water systems.

Next Steps

The EPA had indicated that it will continue to monitor the need for the policy, and provide further guidance as to its scope and timeline in future communications. If and when the EPA determines it will end the policy, it will provide seven days’ notice to the public prior to its termination. Once the policy is terminated, EPA will expect full compliance going forward, but will not require companies to “catch up” with missed reports.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Princeton
John McGahren
Stephanie Feingold

Los Angeles
Rick Rothman

San Francisco
Ella Foley Gannon

Washington, DC
Duke McCall

Philadelphia
Glen Stuart