After several national trade organizations, such as the American Petroleum Institute, petitioned EPA for regulatory relief during the COVID-19 crisis, EPA provided some relief on March 26, 2020. Susan Bodine, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, issued a memorandum to “all governmental and private sector partners” announcing that EPA “will exercise [its] enforcement discretion … if regulated entities take the steps applicable to their situations, as set forth in this policy.” For noncompliance that occurs during the time the policy is in place, the policy announced in the memorandum “will apply to such noncompliance in lieu of an otherwise applicable EPA enforcement response policy.”
Importantly, the policy is retroactive to March 13, 2020. EPA will apply the policy to actions, inactions, or omissions that occur while the policy is in effect even after the policy terminates.
Although the policy announces that EPA will utilize its enforcement discretion, it placed numerous conditions on the application of that discretion. A failure to meet the necessary conditions will likely result in an enforcement action by EPA. If you need help and assistance regarding compliance obligations during the COVID-19 crisis, please contact us or seek other legal assistance.
General Conditions: The enforcement discretion set forth in the policy is not unlimited and each condition must be met. First, every company “should make every effort to comply with their environmental compliance obligations.” However, if “compliance is not reasonably practicable,” then each company should:
- Act responsibly under the circumstances in order to minimize the effects and duration of any non-compliance;
- Identify the specific nature and dates of the non-compliance;
- 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 specified above.
Documentation is very important in this context. A company must have the evidence or proof necessary to substantiate a claim that compliance was not “reasonably practicable” so that EPA will exercise its enforcement discretion. A lack of documentation will likely suggest to EPA that the company simply chose not to comply as opposed to struggling to comply due to COVID-19.
Routine Compliance Monitoring And Reporting: There may be constraints on performing routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification. EPA does not expect to seek penalties for failures in these categories “where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.” EPA provided some specific example:
- As to reporting, existing procedures to report noncompliance with such routine activities, such as pursuant to an applicable permit or regulation, should be used, unless there is no such procedure or if reporting is not reasonably practicable due to COVID-19. In such a case, companies should maintain this information internally and make it available upon request.
- As to training, EPA does not expect it to be affected due to the general availability of on-line training. If training to maintain certifications is not practicable due to COVID-19, EPA stated that it is more important to keep experienced, trained operators on the job, even if training or certification is missed.
- As to signatures, EPA will accept a digital or other electronic signature even if a submission requires a “wet” signature. As a result, the inability to obtain a “wet” signature will not be considered a justification for failure to make a paper submission or certification. EPA will accept emailed submissions even if a paper original is required.
After the crisis, EPA expects full compliance. However, EPA does not plan to require a facility to “catch-up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For bi-annual or annual reporting, EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible.
Settlement Agreements And Consent Decrees: For administrative settlements, EPA suggested that parties should utilize the notice procedures in the agreement, including notification of force majeure, if the parties anticipate missing enforceable milestones. For consent decrees, EPA will coordinate with DOJ to exercise enforcement discretion with regard to stipulated penalties. Parties should follow the notice provisions, including force majeure provisions, as noted above.
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. EPA highlighted several specific situations:
- In the event that facility operations impacted by COVID-19 “may create an acute risk or an imminent threat to human health or the environment,” EPA suggests that the facility notify EPA and the appropriate state or tribal agency.
- If a facility suffers from failure that may result in exceedances of enforceable limitations or other unauthorized releases, the facility should notify the implementing authority as quickly as possible.
- If a facility is a generator of hazardous waste and is unable to transfer the waste off-site within the time periods required under RCRA to maintain its generator status, the facility should continue to properly label and store such waste and take the steps identified above. If these steps are met, EPA will treat such entities to be hazardous waste generators, and not treatment, storage and disposal facilities. Also, 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.
Limitations: There are several limitations to the policy. These include:
- The policy is temporary. EPA will assess the continued need for and scope of the policy on a regular basis and will update it if the EPA determines modifications are necessary.
- It does not apply to criminal violations.
- It does not apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments. Those matters will be addressed in a separate communication.
- It does not apply to imports. EPA is concerned about pesticide products entering the United States, or produced, manufactured, distributed in the United States, that claim to address COVID-19 impacts.
- The policy does not relieve any entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants.
EPA’s policy provides some much-needed regulatory relief. Nevertheless, the burden will be on the regulated entity to prove that COVID-19 caused the situation preventing compliance. Documentation is the key. Without it, a request for such discretion will fail when EPA inquires about the reasons for non-compliance. Again, if you need help and assistance regarding compliance obligations during the COVID-19 crisis, please contact us or seek other legal assistance.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality. For more information, check http://www.bswenviroblog.com, or contact John B. King at firstname.lastname@example.org or (225) 381-8014.