UPDATE: The EPA has added an addendum to this policy which states that it will terminate on August 31, 2020. The EPA reserves the right to terminate the policy sooner than August 31, but if the Agency chooses to do so, it will provide a 7-day notice period.

The EPA’s Office of Enforcement and Compliance Assurance (OECA) has issued a “temporary” policy outlining the Agency’s approach to civil enforcement during the COVID-19 pandemic. Generally, says the EPA, it will exercise its “enforcement discretion” during the pandemic “if regulated entities take the steps applicable to their situations.” Enforcement discretion is an intentionally vague term that could mean anything from taking no enforcement action at all to taking no enforcement action provided certain conditions are met to fully enforcing an alleged violation if, for example, the Agency does not agree with a regulated entity’s contention that the alleged violation resulted from conditions brought on by the pandemic.

The policy states that, generally, the EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.

Criminal enforcement not included

The policy does not apply to criminal violations.

“In screening cases to determine when to seek prosecutorial assistance from [the Department of Justice], the 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,” states the EPA. “EPA’s Criminal Investigative Division remains vigilant and is prepared to pursue violators who demonstrate a criminal mens rea [literally, ‘guilty mind,’ or intention to commit a crime].”

In addition, the policy does not apply to Superfund and Resource Conservation and Recovery Act (RCRA) Corrective Action enforcement. These matters will be covered by a separate communication, says the EPA.

Worker shortages

The policy focuses on the inability of regulated entities to comply with certain statutory obligations because of worker shortages due to the pandemic, as well as travel and social-distancing restrictions. These constrictions can occur in both the regulated facilities themselves and in labs that analyze samples required by statutes, regulations, or permits. For an entity to benefit from the EPA’s enforcement discretion, the policy requires that two general conditions be met:

• Entities should make every effort to comply with their environmental compliance obligations.
• If compliance is not reasonably practicable, facilities with environmental compliance obligations should:
• Act responsibly to minimize the effects and duration of any noncompliance caused by COVID-19.
• Identify the specific nature and dates of the noncompliance.
• Identify both 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.
• Document the above information, actions, and conditions.

Existing procedures

The policy notes that some regulations and environmental permits require that noncompliance be formally reported; these procedures should continue to be followed while the temporary policy is effective. If no such procedure is applicable or if reporting is not reasonably practicable due to COVID-19, regulated entities should internally maintain information about noncompliance and efforts to comply and make it available to the EPA or an authorized state or tribe upon request, says the EPA. The policy specifically references the need for information about exceedances of enforceable limits on air emissions, discharges to water, and land disposal. Also, as soon as possible, facilities should report violations that may create an acute risk or an imminent threat to human health or the environment.

Approximately 90 percent of enforcement under federal and state law is carried out by the states. States with authorized federal programs may also undertake their own inspection and enforcement procedures during the pandemic, writes the EPA.

Hazardous waste and CAFOs

The policy includes two specific regulatory exceptions:

• Generators that are not able to transfer their hazardous waste off-site in the time frames required by RCRA should continue to properly label and store such waste and comply with the general conditions listed above. If these steps are met, the EPA will treat such entities to be hazardous waste generators and not treatment, storage, and disposal facilities (that is, facilities that must have RCRA permits). In addition, the EPA will treat very small quantity generators and small quantity generators as retaining those statuses even if the amount of hazardous waste stored on-site exceeds a regulatory volume threshold because the generator is unable to arrange for shipping hazardous waste off-site due to the pandemic.
• If a facility is an animal feeding operation and, due to disruptions caused by the pandemic, is unable to transfer animals off-site and, solely as a result of the pandemic, meets the regulatory definition of a concentrated animal feeding operation (CAFO), the EPA will not treat such operations as CAFOs (or will not treat small CAFOs as medium CAFOs or medium CAFOs as large CAFOs).

Drinking water

The policy places a special emphasis on protecting public health from unsafe drinking water. “Accordingly, the EPA has heightened expectations for public water systems,” says the Agency. The EPA says it expects water-system operators to continue normal operations and maintenance, as well as required sampling to ensure the safety of drinking water supplies. The EPA considers monitoring required under National Primary Drinking Water Regulations to protect against microbial pathogens to be the highest priority, followed by nitrate/nitrite and Lead and Copper Rule monitoring, and monitoring of contaminants for which the system has been noncompliant.

To highlight the importance of safe drinking water during the crisis, EPA Administrator Andrew Wheeler sent a letter to the governors of all states, territories, and Washington, D.C., urging them to ensure that drinking water and wastewater employees are considered essential workers by state authorities when enacting restrictions such as shelter-in-place orders.

“Ensuring that drinking water and wastewater services are fully operational is critical to containing COVID-19 and protecting Americans from other public health risks,” wrote Wheeler.