On March 26, 2019, the United States Environmental Protection Agency (“EPA”) released a new policy, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance.” The seven-page document outlines a temporary policy for how EPA will exercise enforcement during this unprecedented time. The policy was issued in response to social distancing and travel restrictions, as well as potential worker shortages that may impact compliance procedures during the COVID-19 pandemic.

Importantly, the new policy provides that authorized states or tribes may take a different approach under their own authorities. At this time, the New York Department of Environmental Conservation has not issued a similar discretionary enforcement policy.

In the new policy, EPA suggests regulated entities make every effort to comply with their environmental compliance obligations. If such compliance is not “reasonably practical,” regulated entities should:

  1. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
  2. Identify the specific nature and dates of the noncompliance;
  3. 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;
  4. Return to compliance as soon as possible; and
  5. Document the information, action, or condition specified in (1) through (4).

EPA acknowledges that entities may have temporary difficultly performing routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification. EPA advises entities to use existing procedures to report noncompliance with routine activities, or if such procedures do not exist, to maintain this information internally and make it available to EPA upon request. EPA does not expect to seek penalties for violations of routine activities in situations where EPA agrees that COVID-19 was the cause of the noncompliance and the entity is able to provide supporting documentation.

Settlement Agreements and Consent Decrees

If an entity subject to an EPA administrative settlement agreement anticipates missing an enforceable milestone due to COVID-19, the entity should use the notice procedures set forth in the agreement, including notification of a force majeure, as applicable. EPA intends to treat these instances of noncompliance in the same manner as routine procedures detailed above.

For consent decrees involving both EPA and the U.S. Department of Justice (“DOJ”), EPA staff will coordinate with DOJ to exercise enforcement discretion. Courts nevertheless retain jurisdiction over these matters and may exercise their own authority. Again, entities should use the notice procedures set forth in the consent decree.

Facility Operations

During the COVID-19 pandemic, if facility operations will create an “acute risk or imminent threat to human health or the environment,” entities should contact the appropriate implementing authority. The EPA office will evaluate whether a permit, statutory, or regulatory provision addresses the situation, and if not, will work with the entity to minimize the threat. EPA will also consider the circumstances to determine whether an enforcement response is necessary.

Similarly, if a facility suffers a failure of air emission controls or wastewater or waste treatment controls that may result in exceedances of enforceable limits, the entity should notify EPA as soon as possible. If a facility that generates hazardous waste is unable to transfer such waste off-site during the pandemic, it should continue to label and store the waste on-site. Again EPA will take the circumstances into account when determining whether an enforcement response is necessary in these situations.

Public Water Systems

EPA expects operators of public water systems to continue normal operations and maintenance, including required sampling to ensure the safety of drinking water supplies. EPA has prioritized certain monitoring requirements in the event of worker shortages and laboratory capacity problems.

Critical Infrastructure

EPA will consider short-term No Action Assurance orders, with conditions to protect the public, in situations where a facility is essential critical infrastructure.

Keep in mind that entities are still required to prevent, report, and respond to accidental releases as they occur. Additionally, this temporary policy does not apply to activities pursuant to Superfund and RCRA Corrective Action enforcement actions and/or administrative orders, criminal violations, or to imports. EPA also notes that it will pursue criminal investigations against those parties it believes are intentionally disregarding the law.

This new EPA policy is applicable retroactively beginning on March 13, 2020 and will remain in effect until further notice. EPA will provide seven days’ notice prior to termination. Full text of EPA’s temporary policy is available on EPA’s website.

For further resources and developments, visit our firm’s COVID-19 response page.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.