By Steve Jones
On March 26, 2020, the Environmental Protection Agency (EPA) issued a memorandum outlining “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” In the memo, EPA announced that it was temporarily modifying the Agency’s enforcement of certain environmental obligations in response to the COVID-19 pandemic. EPA’s new policy will apply retroactively to March 13, 2020; the policy contains no stated end-date.
Under the policy, EPA will exercise enforcement discretion if compliance with environmental obligations is rendered impracticable as a result of COVID-19, for example, because of worker shortages, an inability to obtain laboratory results to verify compliance, or to submit required compliance reports. In such situations, “EPA does not expect to seek penalties for violations” if the Agency agrees that COVID-19 was the cause of the non-compliance.
Conversely, the policy highlights the “heightened responsibility to protect public health” that has fallen upon public water systems, based on the critical need for “access to clean water for drinking and handwashing [that] is critical during the COVID-19 pandemic.” While states have primary responsibility for assuring access to clean drinking water, EPA has stated that, in the event of worker shortages, “EPA will consider continued operation of drinking water systems to be of the highest priority.”
In the event an acute risk or imminent threat to human health or the environment is caused as a result of the COVID-19 pandemic, affected facilities are directed to immediately notify EPA, the state administering the regulatory program (administration of the Clean Water Act, Clean Air Act and RCRA are primarily delegated to the states) and work to remedy the problem as quickly as possible.
The new policy has provisions that apply to particular types of facilities: for example, if generators of hazardous waste are unable to transmit such waste off-site, the waste is to be retained on-site with proper labeling and storage. Retention will not render the generator a hazardous waste “treatment, storage or disposal” facility. Similarly, animal feeding operations that are unable to transfer animals off-site because of COVID-19 will not be deemed to be “concentrated animal feeding operations.”
For regulated entities with obligations under settlement agreements or consent decrees with EPA or the Department of Justice, parties unable to meet their obligations as a result of COVID-19 are to use the notice procedures and force majeure provisions under those agreements. EPA has stated it will “generally not seek stipulated or other penalties for noncompliance.” Since the Department of Justice administers Consent Decrees under the supervision of the federal courts, parties to consent decrees are directed to work with the DOJ and the courts having jurisdiction over those decrees. RQN has already encountered an instance where EPA refused to defer payments for environmental civil penalties due to COVID-19 related economic hardship, however, claiming that no EPA policy or guidance allowed the deferment. Clearly, EPA will closely scrutinize the language of the memorandum when determining what is, and what is not, covered.
EPA’s new policy does not apply to criminal violations, the investigation or remediation of activities under the Superfund program (CERCLA), or the Resource Conservation and Recovery Act. It also does not apply to imports. In addition, the policy notes that states and tribes remain free to exercise more stringent enforcement authority.
Finally, if a company’s ability to comply with environmental laws and permits is compromised by COVID-19 related issues, the company should closely analyze the language of its permits and applicable state laws. For example, Utah’s air quality regulations allow a permitted source to seek relief from enforcement due to a violation caused by an “emergency” or “breakdown.” See Utah Admin. Rules R307-415-6g and R307-107. Because these regulations have strict timing and reporting requirements, they should be reviewed expeditiously if there is a possibility that they might apply.
Steve Jones handles environmental matters in both the litigation and transactional arenas. He has litigated cases under every major environmental statute, including CERCLA, RCRA, the Clean Water Act and Clean Air Act, in both citizen suits and environmental enforcement actions brought by state and federal agencies.