Environmental Alert

(by Lisa Bruderly, Ben Clapp and Gary Steinbauer)

In light of historic protective measures and travel bans to prevent community spread of COVID-19, the U.S. Environmental Protection Agency (EPA) issued an unprecedented temporary policy for exercising its enforcement discretion for environmental noncompliance caused by the COVID-19 pandemic.  On March 26, 2020, the EPA published a memorandum entitled, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program (“EPA’s COVID-19 Policy” or “Policy”).  EPA’s COVID-19 Policy applies retroactively, beginning on March 13, 2020, and is in effect until EPA provides notice online within seven days of its termination.  This Alert addresses five critical questions about EPA’s COVID-19 Policy.

When Does EPA’s COVID-19 Policy Apply?

EPA’s COVID-19 Policy applies when environmental compliance is not “reasonably practical,” despite making every effort to comply.  Coverage under the Policy is not automatic.  It requires regulated entities to take, at a minimum, the following proactive steps: (1) minimize the effect and duration of any noncompliance; (2) identify the nature and date(s) of noncompliance; (3) identify how COVID-19 caused the noncompliance and describe the response actions taken; (4) return to compliance as soon as possible; and (5) document each of these actions.

What Compliance Monitoring and Reporting Obligations Does the Policy Cover?

Generally, EPA does not expect to assess penalties for violations of a wide-range of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations if: (1) the regulated entity takes the steps outlined above and documents that COVID-19 was the cause of the noncompliance, and (2) EPA agrees with the entity’s determination.

EPA expects regulated parties to use existing statutory, regulatory, and permitting requirements for reporting COVID-19-related noncompliance, unless COVID-19 response actions themselves hinder reporting, in which case EPA expects facilities to document and maintain noncompliance-related information internally and make it available upon request.  “Catching up” is not expected for missed monitoring and reporting, when the underlying obligation applies to intervals of less than three months.  For monitoring and reporting obligations that apply on a semi-annual or annual basis, EPA expects facilities to monitor and report as soon as possible after the Policy is terminated and submit reports late, if necessary.  EPA also encourages regulated parties to use electronic reporting, digital signatures, and e-mail to meet reporting obligations.

What Expectations Does EPA Have for Facility Operations?

EPA expects all regulated entities to operate their facilities in a manner that is safe and protective of human health and the environment.  If non-compliance caused by COVID-19 could result in an acute risk or an imminent threat to human health or the environment, regulated entities are expected to notify the appropriate implementing authority (i.e., for authorized programs, the state or tribe) and are encouraged to notify the EPA as well.  EPA will then coordinate with state and tribal authorities and work with the facility to minimize or prevent the acute risk or imminent threat from the COVID-19 caused noncompliance and obtain a return to compliance.

If a facility exceeds air emission or wastewater discharge limitations as a result of a failure of pollution control equipment (e.g. air emission controls, wastewater treatment systems) caused by COVID-19, the facility is expected to notify the implementing authority as quickly as possible.  The notification should include information on the pollutants released as a result of the failure, a comparison between the expected non-compliant release or exceedances and applicable permit limits, and the expected timing and duration of the release or exceedances.  EPA will evaluate the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.

If COVID-19 disruptions prevent hazardous waste generators from transferring waste off-site as required by RCRA, EPA will continue to treat such entities as hazardous waste generators, rather than as treatment, storage and disposal facilities, if the entity properly stores and labels the waste and takes the steps outlined above.   Similarly, Very Small Quantity Generators and Small Quantity Generators will retain their status, even if the quantity of stored hazardous waste exceeds the regulatory threshold, if they properly store and label the waste and take the steps outlined above.

For settlement agreement-related obligations and milestones, EPA expects parties to utilize the noncompliance notification provisions in the settlement agreements, including force majeure provisions.  Under its administrative settlement agreements, EPA does not intend to seek stipulated penalties for compliance obligations that were missed due to COVID-19, if the steps outlined above are taken.  The Policy recognizes that consent decrees with the U.S. Department of Justice (DOJ) and EPA are court orders, and courts retain jurisdiction.  Nonetheless, EPA plans to work with DOJ to exercise discretion not to pursue stipulated penalties for COVID-19-related noncompliance.

How Will EPA Focus Its Resources During this Period?

EPA expects to focus its resources largely on situations that may create an acute risk or an imminent threat to human health or the environment.  However, all ongoing enforcement matters will continue.

What are the Exceptions and How Does the Policy Affect State Environmental Obligations?

The Policy does not apply to activities carried out under Superfund or RCRA Corrective Actions.  EPA policy with respect to those programs will be issued separately.  The Policy also does not apply to violations that are the result of an intentional disregard for the law (i.e., criminal violations). EPA also makes clear that the Policy is not intended to relieve an entity from its obligation to prevent, respond to, or report accidental releases of pollutants.

Importantly, the Policy only addresses EPA’s enforcement discretion for federal environmental noncompliance caused by COVID-19 and does not address noncompliance situations when a state is the authorized authority.  Several state environmental regulatory agencies have taken similar steps to provide relief during this unprecedented time and affected regulated entities should ensure that they understand the requirements of any applicable state or tribal COVID-19 related enforcement discretion policies.  As an example, the Ohio Environmental Protection Agency (Ohio EPA) has established a website explaining how regulated parties can make COVID-19-related enforcement discretion requests for unavoidable noncompliance situations.  Ohio EPA has created an email submission process to field enforcement discretion requests and pledges to timely respond.

Babst Calland’s environmental attorneys are available to help you develop and implement procedures for addressing Coronavirus-related environmental noncompliance under the Policy.  For more information, please contact Lisa M. Bruderly at (412) 394-6495 or lbruderly@babstcalland.com, Ben Clapp at (202) 853-3488 or bclapp@babstcalland.com, or Gary E. Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com.

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