Government Contracting

The United States Environmental Protection Agency (EPA) has staked out its position on environmental compliance during the COVID-19 pandemic with the issuance of a temporary policy on how it will apply enforcement discretion to violations resulting from the pandemic. While the policy was just issued on March 26, 2020, it will apply retroactively beginning March 13, 2020, and does not yet have an end date. EPA will be assessing the need for the policy on a regular basis and has committed to providing at least seven days’ notice prior to terminating the policy.

Conditions for Enforcement Discretion

The policy is an acknowledgement of the potential for personnel shortages and the effect that travel restrictions and social distancing measures can have on a regulated entity’s ability to timely sample, report and otherwise comply with federal environmental permits, regulations and statutes. Under the policy, regulated entities must make every effort to comply with environmental requirements, but if compliance is not reasonably practicable, they must, among other steps, act responsibly to minimize the effects and duration of the noncompliance and return to compliance as soon as possible. Documentation that the facility has taken or met the required conditions of the policy, including how COVID-19 was the cause of the noncompliance, will be key to obtaining relief.

EPA’s policy specifically addresses certain circumstances such as exceedances caused by the failure of facility equipment such as air emission control systems and wastewater or waste treatment systems, as well as accumulation limits for hazardous waste generators and animal feeding operations. It also urges entities to use existing reporting procedures for reporting noncompliance, such as those under applicable permits and regulations for routine activities and the notice procedures provided in administrative settlement agreements and consent decrees. A short-term No Action Assurance may be an option for facilities employing essential critical infrastructure workers under Cybersecurity and Infrastructure Security Agency guidance, if deemed by EPA to be in the public interest.

What Is Not Covered

Notably, the policy does not apply to activities required by Superfund or Resource Conservation and Recovery Act (RCRA) Correction Action enforcement documents, which will be addressed in a separate communication. It also does not apply to imports. The compliance of imported pesticide products claiming to address COVID-19 will actually be a focus of EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) import requirements. Similarly, the policy recognizes that public drinking water systems regulated under the Safe Drinking Water Act have heightened responsibility during the pandemic and continued operation, maintenance and timely sampling is expected, although EPA provides a tiering of compliance monitoring requirements during the pandemic.

Entities are not absolved of their responsibility to prevent, respond to and report accidental releases to the environment. In situations where an acute risk or imminent threat to human health or the environment is created by facility operations impacted by the COVID-19 pandemic, facilities are to contact the appropriate implementing authority such as the EPA region, authorized state or tribe. EPA will differentiate between intentional disregard for the law and unavoidable violations due to COVID-19 restrictions and the policy does not apply to criminal violations.

Recommendations

Regulated entities faced with making environmental compliance decisions as a result of the COVID-19 pandemic should be familiar with EPA’s temporary enforcement policy and seek legal counsel for guidance. States and tribes may take different approaches. The temporary enforcement policy is available here.

Please check back with the Coronavirus Task Force page for further developments, particularly EPA’s policy addressing activities covered by Superfund or RCRA Corrective Action enforcement documents. Questions regarding EPA’s Policy or other compliance or enforcement matters can be directed to any member of the Firm's Environmental Practice Group.

This alert was written by Amanda Neidert Kesler, a lawyer in the Environment & Energy practice group at Miles & Stockbridge.

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