Margaret Anne Hill, Frank L. Tamulonis III, and Stephen C. Zumbrun
OVERVIEW/APPLICABILITY/SCOPE
Due to the coronavirus COVID-19 pandemic, the U.S. Environmental Protection Agency (“EPA”) announced a Policy that will effectively relax civil enforcement in certain circumstances. The EPA recognizes that worker shortages and supply issues may exist due to the pandemic and has decided to exercise enforcement discretion with respect to compliance with environmental laws. The Policy is retroactive to March 13, 2020, and while EPA emphasizes that it is temporary, EPA did not provide a termination date. It is important to note that the Policy applies only to certain civil violations and the regulated community is required to make every effort to maintain compliance with environmental laws. We have outlined below important specifics that will guide you in relying upon the Policy. You should contact counsel if you are having compliance issues due to the COVID-19 situation or have questions regarding EPA’s new Policy.
EPA ENFORCEMENT DISCRETION: CIVIL VIOLATIONS
General Conditions:
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- Importantly, EPA’s Policy does not relieve environmental compliance obligations and companies must continue to make every effort to achieve compliance. Where compliance is not reasonably practical due to COVID-19, a company must (1) minimize the duration of any noncompliance; (2) identify and document the nature and duration of the COVID-19 caused noncompliance; and (3) return to compliance as soon as possible.
Routine Compliance and Monitoring:
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- The Policy relaxes routine monitoring, testing, training, and reporting requirements where such compliance is not reasonably practical due to COVID-19 (entities need to maintain any information internally for future disclosure). Provided that EPA agrees that noncompliance is caused by COVID-19, EPA will not seek penalties for violations. After the Policy is no longer effective, EPA expects companies to fully comply moving forward, but EPA does not generally intend to require companies to catch up on missed requirements. E-mail submissions and e-signatures will be accepted.
Settlement Agreement and Consent Decree Obligations:
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- The Policy acknowledges that compliance with meeting required “milestones” in settlement agreements may not be achievable and directs companies to comply with notice and force majeure provisions, and to minimize the effects and duration of any noncompliance caused by COVID-19. As to Consent Decrees with EPA and the Department of Justice (“DOJ”), EPA advises that entities should continue to comply with required notice and force majeure requirements and that it will coordinate with DOJ about stipulated penalties. Nonetheless, EPA underscores that Consent Decrees are court orders and the courts are free to exercise their own authority. EPA plans to coordinate with co-plaintiffs (likely state agencies and environmental non-governmental organizations (“NGOs”)).
Facility Operations:
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- Importantly, EPA emphasizes that it expects regulated facilities to continue to manage operations in a manner that protects human health and the environment, and that facilities should contact the appropriate authority if there will be an acute risk or imminent threat to human health or the environment. If an acute risk or imminent threat arises, EPA plans to consult with the state or tribe to minimize any imminent threats (if the issue is related to an authorized state program), and if the imminent threat involves a program implemented by EPA only, EPA will work directly with the facility to minimize any threat to human health or the environment, and will consider the circumstances involved including the pandemic in determining if an enforcement action is appropriate. If the facility suffers from an air emission control, a waste or wastewater system, or other equipment failure that may result in an exceedance or release, the facility should notify EPA, the state, or the tribe as quickly as possible. The notification needs to include the relevant information regarding the exceedance or release and, again, EPA will consult and coordinate with states and tribes as required under delegated programs.
Public Water Systems Regulated under Safe Drinking Water Act:
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- EPA’s position is that public water systems must continue normal operations and maintenance, including sampling, to ensure the safety of drinking water. This continued compliance remains in place for testing laboratories as well. Public water systems and laboratories must consult with state authorities and EPA if a personnel shortage arises from the COVID-19 pandemic that would affect continued compliance. Additionally, should worker shortages affect operations, EPA considers the highest priories to be: protections against microbial pathogens, compliance with nitrate/nitrite requirements, and Lead and Copper Rule, followed by any pollutants for which a system has been noncompliant.
Critical Infrastructure:
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- EPA is considering critical infrastructure on a case-by-case basis, issuing a tailored short-term No Action Assurance for facilities deemed to be essential critical infrastructure, such as the chemical sector, energy sector, dams sector, nuclear reactors, materials and waste sector, and healthcare and public health, as outlined by guidance from the Cyber and Infrastructure Security Agency.
STATE OVERSIGHT
EPA plans to continue with its review and oversight of state programs. EPA also advises states that they should consider whether they need to conduct routine inspections during the pandemic, taking into account the safety and health of their inspectors and facility personnel. EPA will take the COVID-19 pandemic into consideration in any review of a state compliance and enforcement program, such as the State Review Framework.
OTHER EPA CONSIDERATIONS
EPA Actions:
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- EPA expects to focus primarily on events that may create an acute risk or imminent threat to public health or the environment. Also, all ongoing enforcement matters are continuing.
Accidental Releases:
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- The Policy does not relieve any regulated entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, or other pollutants, and should not be interpreted as EPA’s unwillingness to exercise enforcement discretion in there is a release.
Criminal Violations:
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- EPA notes that it will screen cases to determine when to seek prosecutorial assistance from DOJ and plans to distinguish violations that facilities know are unavoidable (because of COVID-19 restrictions) from intentional violations. EPA’s Criminal Investigative Division will remain active and will be prepared to pursue violators who demonstrate an intent to violate the law.
SUMMARY
While EPA’s new enforcement discretion will provide help to those regulated entities and facilities which need flexibility in operating with reduced staff and supplies, it does not alter any provision of any statute or regulation which applies to the regulated community. Accordingly, regulated entities should continue to strive for full compliance with environmental obligations to the maximum extent practicable. Where compliance is not practicable due to COVID-19, be sure to review the new Policy, and document the nature and duration of the noncompliance, identify how COVID-19 caused the noncompliance, and make every effort to return to compliance as quickly as possible. Provided these steps are taken, you may be able to avoid enforcement action and penalties for violations resulting from impacts caused by the pandemic.
If you are experiencing compliance issues due to the COVID-19 situation or have questions regarding EPA’s new Policy, please contact Margaret Hill, Frank Tamulonis, or Steve Zumbrun.
As COVID-19 issues permeate virtually all aspects of commerce nationally and internationally, we stand ready to help. Blank Rome’s Coronavirus (“COVID-19”) Task Force includes interdisciplinary resources across every business sector from insurance recovery to HR.