Environment, Energy, and Resources Practice

EPA Temporary Policy for COVID-19

Posted on: April 1, 2020


The United States Environmental Protection Agency (EPA) issued temporary guidance on March 26, 2020, entitled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program. The guidance document was developed to address the impact the COVID-19 pandemic is having on regulated entities, which are those entities subject to environmental regulations and statutes, administrative orders, consent decrees, or permits. Through this temporary policy, which applies retroactively to March 13, 2020, EPA will exercise enforcement discretion for certain noncompliance resulting from the COVID-19 pandemic if the regulated entities take the steps set forth in the policy.

It is most important to understand that this policy is temporary and EPA expects regulated facilities to continue to comply with regulatory requirements, where reasonably practicable, and to return to full compliance as quickly as possible, once the COVID-19 threat is over.

Applicability of the Temporary Policy

EPA will apply the temporary policy to actions or omissions that occur while the policy is in effect even after the policy terminates. As a result of the pandemic, travel and social distancing restrictions are affecting facility operations as well as the ability of laboratories to analyze samples and provide results in a timely manner. Reporting obligations, permit compliance, administrative order and consent decree compliance are also being impacted. These consequences also may affect the ability of an operation to meet enforceable limitations on air emissions and water discharges, requirements for the management of hazardous waste, or requirements to ensure and provide safe drinking water.  The temporary policy addresses each of these situations differently, as discussed below.

The enforcement discretion described in the temporary policy does not apply to criminal violations. It also does not apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments. The policy does not apply to imports or to pesticide products that claim to address COVID-19 impacts. EPA expects to focus on ensuring compliance with requirements applicable to these products to ensure protection of public health. 

The temporary policy will be reviewed on a regular basis and modified as necessary. Further, additional guidance applicable to specific programs such as Superfund and RCRA, may be provided. Seven days’ notice will be provided prior to terminating this temporary policy.

EPA’s Enforcement Discretion under the Temporary Policy

A. Civil violations

The temporary policy applies to civil violations such as those resulting from an inability to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification, as a result of the pandemic. EPA expects entities to:

  • act responsibly under the circumstances in order to minimize the effects and duration of noncompliance;
  • identify the nature and dates of the noncompliance;
  • 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;
  • return to compliance as soon as possible; and
  • document the information, action, or condition.

 If the regulated entity complies with this policy, EPA will not seek enforcement.

B. Routine compliance monitoring and reporting by regulated entities

Regulated entities should use existing procedures to report noncompliance such as pursuant to an applicable permit, regulation, or statute. If no such procedure is applicable, or if reporting is not possible due to COVID-19, the entity should maintain the information and make it available to EPA or the authorized state or tribe upon request. Generally, 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 EPA agrees the noncompliance was caused by COVID-19 and the entity provides supporting documentation to EPA upon request.

Once the temporary policy is terminated, EPA will expect full compliance going forward. In general, EPA will not ask facilities to submit the missing reports or undertake the missed monitoring if the underlying requirement applies to intervals of less than three months. Nevertheless, with other monitoring or reports, such as those required on a bi-annual or annual basis, when the temporary policy is no longer in effect, EPA expects facilities to resume compliance activities, including conducting late monitoring or submitting late reports, following any applicable sections or codes in the reporting form in which a facility may indicate why it has not conducted the required sampling and monitoring.

On-line training should not be impacted by the COVID-19 restrictions. However, if it is not practical to maintain normal certification and training practices during the pandemic, EPA supports keeping experienced, trained operators on the job, even if a training or certification is missed.

Electronic signatures will be accepted and not being able to submit an original signature will not be considered justification for failure to make a paper submission or certification. In addition, for enforcement purposes, EPA will accept emailed submission even if a paper original is required.

C. Settlement agreement and consent decree reporting obligations and milestones

If as a result of COVID-19, parties to an EPA administrative settlement agreement anticipate missing milestones set forth in the document, parties should make use of the notification procedures set forth in the agreement, including notification of force majeure, as applicable. EPA intends to handle routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and associated reporting or certification obligations under settlement agreements in the manner described in section A., above. EPA generally will not seek stipulated or other penalties for noncompliance with such obligations.

EPA staff will coordinate with the U.S. Department of Justice (DOJ) to exercise enforcement discretion with regard to stipulated penalties for routine compliance obligations under consent decrees entered into with EPA and DOJ. Co-plaintiffs will also be consulted to seek agreement. Note that courts retain jurisdiction over consent decrees and may exercise their own authority.

D. Facility operations

The temporary policy states that EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public health and the environment. If there is a possibility that facility operations impacted by the COVID-19 pandemic may create an acute risk or imminent threat to human health or the environment, the policy states the facility should contact the implementing authority: EPA region, authorized state, or tribe. EPA strongly encourages facilities, states, and tribes to consult with the EPA regional office on acute risks and imminent threats even in authorized state programs. EPA 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 COVID-19-caused noncompliance.

If a facility experiences a failure of air emission control or wastewater or waste treatment systems or other equipment that may result in exceedances on emissions to air or discharges to water, or land disposal, or other unauthorized releases, the facility should notify the implementing authority as quickly as possible. The notification should include information on the pollutants emitted, discharged, discarded, or released; the comparison between the expected emissions or release and any applicable limitation; and the expected duration and timing of the exceedance or release. EPA will consult with the authorized state or tribe to determine the appropriate response. Where EPA implements the program directly, EPA will evaluate whether the risk is acute or may create an imminent threat to human health or the environment.

If a facility is a generator of hazardous waste and, as a result of the COVID-19 pandemic, is unable to transfer waste off-site within the time periods required under RCRA to maintain its generator status, the temporary policy states that the facility should continue to properly label and store the waste and take the steps identified in section A., above, for addressing a noncompliance. If these steps are met, EPA will exercise its enforcement discretion and treat the facility as a generator and not a treatment, storage, and disposal facility. In addition, EPA will exercise its enforcement discretion to treat Very Small Quantity Generators and Small Quantity Generators as retaining that status, even if the quantities of hazardous waste stored onsite exceeds a regulatory volume threshold due to an inability to arrange for shipping the waste off-site as a result of the COVID-19 pandemic.

E. Public water systems regulated under the Safe Drinking Water Act

The temporary policy does not apply to public water systems regulated under the Safe Drinking Water Act. Public water systems have a heightened responsibility to protect public health because unsafe drinking water can lead to serous illness and access to clean water for drinking and handwashing is critical during the COVID-19 pandemic. EPA expects operators of public water systems to continue normal operations and maintenance as well as required sampling to ensure the safety of drinking water supplies. Laboratories are expected to perform analysis for water systems and provide timely analysis of samples and results. 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. Further, EPA encourages certified drinking water labs to consult with the state and EPA if issues arise that prevent a lab from conducting analyses of drinking water contaminants.

Accidental Releases

The temporary policy does not relieve any entity from the responsibility to prevent, respond to, or report accidental releases of petroleum, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants, as required by federal law. In addition, the policy should not be interpreted as a willingness on the part of EPA to exercise enforcement discretion in the wake of a release that occurs under such circumstances.

Criminal Violations

EPA’s temporary policy makes it clear that it applies to entities that are making good faith efforts to comply with their obligations during the COVID-19 pandemic. Federal environmental statutes provide for criminal penalties for knowing conduct that violates the law. EPA will distinguish violations that facilities know are unavoidable as a result of COVID-19 restrictions from violations that are the result of an intentional disregard for the law.

Some Final Notes

In a follow up press release on March 30, 2020, in response to some negative press on its temporary guidance document, EPA clarified the purpose of its temporary policy stating that it is important to note EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible, once the COVID-19 threat is over. The measures in the policy are temporary and will be lifted as soon as normal operations can resume, which may occur sooner in some locations than others. EPA stated that it takes its environmental mandate to protect human health and the environment very seriously and will continue to carry it out during this time. 

If your facility is potentially impacted by the temporary policy, consider reading the entire policy and any subsequent guidance. Review your operations and consider where noncompliance is possible and whether that potential noncompliance could create a risk to public health or the environment. Document the decisions made, why they were made, and the anticipated consequences. Notify EPA, states, and tribes as appropriate, if a notification is required by the temporary policy, an order or consent decree, or law, of whatever information is required by such document. If you are unsure of how to proceed, contact EPA, the state, or tribe. 

If you have any questions about EPA’s temporary policy, please contact Miriam E. Villani.