On March 26, 2020, the US Environmental Protection Agency's (EPA's) Office of Enforcement and Compliance Assistance (OECA) published a temporary policy for noncompliance resulting from the COVID-19 pandemic. This temporary policy will apply retroactively beginning on March 13, 2020. EPA will assess the continued need for and scope of this temporary policy on a regular basis and will update if modifications are necessary. Read EPA's full policy about COVID-19 implications here.

Applicability of Temporary Policy

The intent of the policy is to use enforcement discretion for those facilities with environmental compliance obligations impacted by COVID-19. This policy is intended to address situations where facilities or laboratories are unable to meet reporting obligations and milestones set forth in settlements, consent decrees, enforceable limitations on air emissions and water discharges, requirements for the management of hazardous waste, or requirements to ensure and provide safe drinking water. This policy is not intended to apply to enforcement of criminal violations or actions carried out under Superfund or RCRA Corrective Action enforcements. EPA intends to publish separate guidance for those matters.

The general conditions of the policy emphasize enforcement discretion. EPA encourages that all entities should make every effort to comply with their facility environmental compliance obligations. If compliance is not reasonably practicable, facilities with compliance obligations should:

• Act reasonably under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID –19;
• Identify the specific nature and dates of the noncompliance;
• 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;
• Return to compliance as soon as possible; and
• Document the information, action, or condition as specified above.

The consequences of the pandemic may constrain the ability of regulated entities to perform compliance monitoring, integrity testing, sampling, laboratory analysis, training, reporting and certification. Entities should use existing procedures to report noncompliance with such routine activities pursuant to an applicable permit, regulation, or statue. EPA does not expect to seek penalties for violations of routine compliance and reporting where the EPA agrees that COVID-19 was the cause of the noncompliance. After the policy is no longer in effect, EPA does not plan to ask facilities to “catch-up” with missed monitoring or reporting if the underlying requirements apply to intervals of less than three months.    

With respect to consent decrees entered into with the EPA and the U.S. Department of Justice, these documents are agreements and court orders. As such, courts retain jurisdiction over consent decrees and may exercise their own authority.  EPA encourages parties to utilize the notices and procedures set forth in the consent decree, including the notification of a “force majeure,” with respect to any noncompliance alleged to be caused by COVID-19. 

EPA will accept a digital or other electronic signature in lieu of a “wet” signature and, for enforcement purposes, the EPA also will accept emailed submissions even if a paper original is required. However, EPA is requesting regulated entities to take advantage of electronic submittal procedures where possible (e.g., e-manifests).

Facility Operations

If a facility could exceed enforceable limitations on emissions to air, discharges to water, land disposal, or other unauthorized releases resulting from equipment failure or other causes, the facility should notify the implementing authority (EPA regional office or authorized state or tribe) as quickly as possible. The notification also should include information on the pollutants emitted, discharged, discarded, or released; the comparison between the expected emissions or discharges, disposal, or release, and any applicable limitation(s); and the expected duration and timing of the exceedance(s) or releases.

If a facility is unable to transfer waste offsite within the RCRA-required time frames, EPA will continue to treat such facilities as hazardous waste generators and not treatment, storage, and disposal facilities. Facilities should continue to properly label and store such waste. EPA will treat Very Small Quantity Generators and Small Quantity Generators as retaining that status, even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold due to the generator’s inability to arrange offsite disposal.

Animal feeding operations will receive relief if, due to the COVID-19 pandemic, they are unable to transfer animals offsite and thus exceed the regulatory limit of the number of permissible animals onsite.

Public Water Systems Regulated Under the Safe Drinking Water Act

EPA expects operators of public water systems to continue normal operations and maintenance including required sampling. The EPA expects laboratories performing analysis for water systems to continue to provide timely analysis of samples and results.  The EPA Office of Water plans to launch a website with guidance for such systems.

Critical Infrastructure

EPA may consider a more tailored short-term No Action Assurance, with conditions to protect the public, if the EPA determines it is in the public interest. Such determinations are made by the OECA Assistant Administrator on a case-by-case basis. The EPA will consider facilities to be essential if they employ essential critical infrastructure workers as determined by guidance issued by the Cybersecurity and Infrastructure Security Agency.

EPA’s Self-Disclosure Program

Note that EPA’s Self-Disclosure program remains available whereby a facility can self-report and correct voluntarily discovered violations provided they notify EPA within 21 days of such discovery. See EPA’s Audit Policy website here. Many states also offer incentives for self-policing; please check with the appropriate state agency for more information.

EPA has said that they will post a notice at the link below at least seven days prior to terminating this guidance. Please note that at the time of publishing this link is not yet live: https://www.epa.gov/enforcement/enforcement-policyguidance-publications

Questions? Contact us!

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Rajib Sinha, PE
Senior Consultant
[email protected]
513-604-8940