The Impact of COVID-19 on Environmental Enforcement

On March 26, 2020, the United States Environmental Protection Agency ("EPA") announced a broad, but temporary, policy of enforcement discretion in reaction to the employee shortages and work challenges faced by many industries and laboratories. The policy applies retroactively to March 13 to acts or omissions during its term and may be terminated on at least seven days' notice by a posting at https://www.epa.gov/enforcement/enforcement-policy-guidance-publications. The EPA may also update this policy and provide additional enforcement guidance for specific programs.

General Scope and Conditions. If the conditions discussed below are met, the EPA generally does not expect to seek civil penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, reporting or certification obligations. The EPA also generally does not expect to require "catch-up" monitoring or reporting for requirements with an interval of three months or less. For semi-annual and annual obligations, the EPA expects affected entities to schedule late monitoring or submit late reports as soon as possible. Because many training classes are offered online, the EPA does not expect training deadlines to be impacted by COVID-19 and related travel restrictions or social distancing constraints.

The EPA's exercise of enforcement discretion is subject to a number of conditions, all of which will need to be documented. First, companies and individuals must make every effort to comply, must return to compliance as soon as possible and must document those efforts. If compliance cannot be reasonably achieved, companies must also document the following: (1) decisions and actions taken to reasonably minimize the effects and duration of any non-compliance; (2) the specific nature and dates of non-compliance; and (3) how COVID-19 caused the non-compliance. Beyond documenting and maintaining this information internally, regulated entities should also promptly report the non-compliance pursuant to applicable permit conditions or regulatory requirements or pursuant to the EPA's voluntary non-compliance disclosure policy and eDisclosure system https://www.epa.gov/compliance/epas-edisclosure. The EPA's voluntary disclosure policy has a number of requirements, including that the disclosure must normally be made within 21 days of a company's discovery of the non-compliance.

The EPA also announced it would accept digital or electronic signatures in lieu of "wet" signatures for the duration of the policy, but that the inability to obtain a "wet" signature would not be considered a justification for not making a timely submission. The EPA also said it would accept emailed submissions in lieu of paper originals.

General Limitations. The enforcement discretion outlined in the EPA policy does not apply to criminal violations or conditions of probation in a criminal sentence. It also does not apply to activities under Superfund and RCRA Corrective Action enforceable orders. These are generally in the form of administrative settlement agreements ("ASAs") and consent decrees, which are discussed below. The EPA will also not apply the policy to imports—particularly imports of pesticides. The EPA has a special concern that imports making pesticidal claims comply with FIFRA approval and labeling requirements. Unsurprisingly, the policy also does not relieve any facility from the responsibility to report an accidental release or spill of oil or hazardous substances or chemicals or wastes in accordance with applicable statutory, regulatory or permit requirements.

Settlement Agreements and Consent Decrees. With regard to ASAs with the EPA, parties to those agreements should generally document their compliance efforts in the manner described above and also utilize the specific notice and force majeure procedures detailed in those ASAs. In general, the EPA expects not to seek stipulated penalties or other penalties under ASAs in the same manner as described above. Consent decrees invoke the separate authority of the U.S. Department of Justice ("DOJ") and the U.S. courts. Still, the EPA expects to coordinate with the DOJ to exercise enforcement discretion for stipulated penalties and other penalties consistent with the general policy described above.

Imminent Threats and Substantive Violations. The EPA also clarified that it expects all regulated entities to manage and operate facilities in a manner that is safe and protects humans and the environment. Thus, facilities should contact appropriate the EPA and state or tribal authorities if the facility is expected to create an acute risk or imminent threat to human health or the environment. In such circumstances, the facility must attempt to comply with applicable permit or regulatory or statutory requirements, and the EPA will generally consider all the circumstances, including the COVID-19 pandemic, in determining whether an enforcement response is appropriate. 

If a facility suffers a failure of air emission controls or wastewater or waste treatment systems and expects to exceed enforceable limitations, it must document the exceedances and report those as quickly as possible. The reporting should include information on the pollutants emitted, the level of exceedances compared to the permitted levels, the duration of the exceedances and other pertinent information. The EPA will, again, consider all the circumstances, including the pandemic, in determining whether an enforcement response is appropriate.

The policy also indicates that generators of hazardous waste, including Very Small and Small Quantity generators, generally will not lose their status if they are unable to transfer hazardous waste off-site for treatment or disposal within the time periods normally required under RCRA. Generators in those circumstances must, of course, continue to properly label and store such wastes and must take steps to document the reasons for their non-compliance and the steps they took to mitigate and minimize the period of non-compliance as described above. The EPA will follow a similar approach in addressing animal feeding operations that are unable to transfer animals off-site solely due to the pandemic as to whether such operations meet the definition of a CAFO (or a small, medium or large CAFO).

Public Water Systems. Because of the importance of clean water for preventing illness and for drinking and handwashing, the EPA has "heightened expectations" for public water suppliers. The EPA expects operators of these systems to continue normal operations, maintenance and required sampling. The EPA also expects laboratories serving these systems to continue supplying timely analyses. In light of potential worker shortages and laboratory capacity problems, the EPA has identified testing for microbial pathogens as the highest priority. Other priorities are for nitrate/nitrite, lead and copper and any contaminant for which a supplier has been non-compliant. The EPA will be launching a website to ensure resources and personnel are available to assist facilities facing staffing and contractor shortages. As with other substantive non-compliance, the EPA will consider all the circumstances, including the pandemic, in deciding whether enforcement is appropriate.

Inspections. While the EPA intends to continue coordination and oversight of state enforcement, it understands travel and social distancing constraints brought about by the COVID-19 pandemic may cause states to reduce or delay routine compliance inspections out of concern for the safety of their employees. This may result in a temporary decrease in routine inspections, but they will not stop entirely. Thus, facilities must remain prepared to receive inspectors, educate them as to the social distancing requirements of the facility (along with other, more common health and safety requirements) and provide them with records and other information usually attendant to an inspection.

The States and Tribes. While the above describes the general parameters of the EPA's enforcement discretion policy, states and tribes have independent enforcement authority that is not impacted by the EPA policy. Thus, regulated entities must consider what, if any, enforcement approaches have been announced by the states and tribes under which they operate. Many states have publicly announced they will not relax enforcement in the same manner as announced by the EPA and they expect all facilities to continue full compliance. 

Other states, like Indiana, have adopted a statement on enforcement discretion that seems to follow the EPA approach fairly closely. While the Indiana Department of Environmental Management will not generally waive requirements or offer advance approval of non-compliance, it will exercise enforcement discretion as appropriate and work with sources that act reasonably to protect human health and the environment and document their actions. See https://www.in.gov/idem/7196.htm. 

A third approach has been more "case-by-case" and has simply advised facilities to document the reasons for any non-compliance and what steps were taken to mitigate or minimize the duration of any non-compliance. For example, Ohio has said that for unavoidable non-compliance directly attributed to the COVID-19 pandemic, regulated entities should email EPA.COVID-19REGFLEX@epa.ohio.gov with details similar to those described in the EPA policy. See https://www.epa.state.oh.us/covid19 for further details. The email box is to be reviewed daily and the Director of Ohio EPA may consider providing regulatory flexibility, alternative compliance approaches, waiving late fees or exercising other enforcement discretion.  The Illinois EPA has made no general statement on the application of enforcement discretion, but may exercise such discretion depending on the circumstances. 

Regardless of the approach taken by your state or tribe, impacted facilities should also consider what, if any, voluntary disclosure policies have been adopted by the applicable state or tribal authority. As with the EPA policy, documentation of all the circumstances will be key to avoiding or mitigating any enforcement action.
 
 
If you have questions about the EPA's national policy or the approach in any particular state, please contact any member of Ice Miller's Environmental Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.