On March 26, 2020 the Environmental Protection Agency (EPA) issued a temporary enforcement policy, effective retroactively to March 13 and continuing until repealed or revised. The agency cites the overarching need for public health and safety, and anticipates that “the pandemic may affect facility operations and the availability of key staff and contractors and the ability of laboratories to timely analyze samples and provide results.” In particular, EPA references likely personnel shortages, and proliferating travel and social distancing restrictions. Accordingly, EPA’s new policy sets out conditions under which an entity can reduce or suspend its compliance activities, including monitoring and reporting, for the duration of a period during which “compliance is not reasonably practicable.”
Because the new policy does not provide useful thresholds or criteria for coronavirus-induced impracticality, there’s no realistic way to anticipate its impacts. Regulated entities and their organizations have generally expressed appreciation, while environmental and other organizations that distrust the contemporary EPA have generally expressed outrage. The remainder of this note will summarize the scope and organization of the new policy, leaving the reader to judge how it may be implemented.
What are the general terms and conditions?
EPA frames this new policy as temporary guidelines for the agency’s application of its enforcement discretion. EPA is conditioning this policy on the following “general conditions”:
Entities should make every effort to comply with their environmental compliance obligations.
If compliance is not reasonably practicable, facilities with environmental compliance obligations should:
a) Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
b) Identify the specific nature and dates of the noncompliance;
c) 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;
d) Return to compliance as soon as possible; and
e) Document the information, action, or condition specified in a. through d.
The memorandum announcing this policy offers no explanation or definition of “reasonably practicable,” which leaves regulated entities to decide what the term means. Unless EPA issues further guidance, or undertakes accelerated enforcement activities that highlight actions it interprets as unprotected, it's very possible that there will be no useful guidance until after changing conditions supersede this “temporary” approach. For example, I imagine that "The facility is closed" would justify suspension of compliance activities, but what about "The person in charge of monitoring got sick" since it may be possible to assign alternative staff or hire a healthy contractor?
What additional guidance applies to routine compliance monitoring and reporting?
EPA notes that “consequences of the pandemic may constrain the ability of regulated entities to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification.” Entities can respond to conditions by reducing or suspending any or all of these compliance functions. The policy provides some more specific guidance:
entities should use existing reporting procedures if available – such as electronic reporting mechanisms – and develop and maintain comparable records of (non)compliance where necessary.
for periodic monitoring and reporting -- generally, EPA does not anticipate requiring any “catch up” monitoring or reporting when an entity misses a periodic deadline that is quarterly or more frequent, but does anticipate facilities to make “reasonable efforts” to resume compliance activities and make up late deadlines (e.g., if a biannual or annual report is missed, a facility may expect to report as soon as it’s practical to do so, then return to its normal reporting cycle).
as necessary, EPA will extend unmet deadlines and time limits, such as restrictions on onsite hazardous waste accumulation by generators
training should continue if possible online, but if personnel issues necessitate missed training by certified personnel, actual operations and compliance duties can receive priority and documented as justification for missed training
for activities under settlement agreements and consent decrees – EPA will apply this policy when it’s the lead agency, and advocate with the Department of Justice and other federal and state agencies for them to acknowledge this approach.
EPA will waive “wet” signature requirements on reports, and allow electronic signatures
How does EPA approach emergencies and hazardous conditions?
Avoidance of hazardous exposures and emergencies remain priorities, so EPA directs entities to ensure steps to minimize the risk of these situations, and to report promptly any that occur.
How is EPA approaching compliance with regulated public water systems?
Unlike its general approach easing compliance requirements, EPA is enhancing its attention to Safe Drinking Water Act requirements applicable to public water systems. These include continuing compliance responsibilities, and an expectation that these activities will receive priorities if staffing and other limitations require trade-offs and resource allocations.
What about potential criminal violations?
EPA’s easing of requirements does not apply to criminal violations, except to the extent that non-compliance with a requirement might escalate from civil to criminal if a violation is “knowing” – i.e., knowing reliance on (civil) compliance waivers will insulate an entity against a charge that the non-compliance was “knowing.”
This interim policy took effect retroactively on March 13, and it will continue until EPA changes it. As I noted above, there is not yet a working definition of when the coronavirus pandemic will make a compliance requirement not reasonably practicable, so it’s not clear how broadly regulated entities can rely on the proffered flexibility. It seems safe to assume that environmental or other groups will sue under “citizens suit” provisions, arguing that noncompliance is not justified, so the eventual meaning of this phrase may well result from court cases over the next few years.
Does the organization conduct any operations that are subject to ongoing compliance responsibilities administered by EPA?
If so, are any of these activities subject to ongoing monitoring, reporting, or other compliance requirements?
Is the organization’s ability to meet these compliance responsibilities affected by the coronavirus pandemic (e.g., personnel limitations within the organization, or contractors or other third parties responsible for activities conducted to meet the organization’s compliance requirements)?
If so, is the organization reviewing and revising its compliance procedures to be able to maintain them during possible or actual disruptions during the pandemic?
If so, is the organization making use of EPA’s compliance waiver, and documenting each such situation?
Where Can I Go For More Information?
EPA “COVID-19 Implicaations for EPA’s Enforcement and Compliance Assurance Program” (3/26/20) - https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf
EPA Enforcement web portal - https://www.epa.gov/enforcement
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: firstname.lastname@example.org