The EPA announced a new enforcement discretion policy for noncompliance related to the COVID-19 pandemic on March 26, 2020. The policy applies retroactively to March 13, 2020 and only applies to EPA enforcement (i.e. state enforcement policies may remain unchanged). The policy does not include an ending date – the EPA will announce at least seven (7) days in advance of terminating the policy. Regardless of when alleged non-compliance is referred to enforcement, the policy will apply to any alleged non-compliance occurring during the policy’s effective dates. The EPA’s policy only announces that the EPA will use enforcement discretion – it does not otherwise change any environmental rules or requirements.

The EPA will use this discretion only when the alleged environmental non-compliance is related to or caused by COVID-19 and accompanying disruptions. To take advantage of enforcement discretion, the regulated entity must return to compliance as soon as possible. In addition, regulated entities must still (1) act responsibly under the circumstances to minimize the impact and duration of the noncompliance; (2) identify the nature and dates of noncompliance; and (3) identify how COVID-19 caused the noncompliance, including any management or compliance decisions made in response to disruptions and actions taken to try to come into compliance as soon as possible. All of this information must be thoroughly documented. EPA will ask for this supporting documentation when deciding whether to exercise enforcement discretion.

The EPA recognizes that travel restrictions and social distancing restrictions imposed by local governments and recommended by the CDC may affect facility operations and availability of key staff, laboratories, and contractors. Towards that end the EPA will not seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training,[1] and reporting or certification obligations if the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides enough supporting documentation to allow the EPA to make that determination. For monitoring and reporting requirements that normally occur relatively frequently (such as monthly), if the length of noncompliance is less than three months the EPA does not expect a facility to “catch-up” with missed monitoring or reporting. However, if a regulated entity is unable to submit something like an annual or biennial report because the entity cannot complete the report on time due to Covid-19 related issues, the EPA expects that facilities will submit such reports as soon as they can even if they are late.

To the extent potential noncompliance actually results in a failure of air emission control, wastewater treatment systems or other facility equipment, an operator must notify EPA or the state implementing program as soon as possible and inform them of the pollutants emitted or released as well as a comparison to the emission limits. In these circumstances, the entity must collect and maintain the same supporting documentation discussed above.

If environmental obligations are imposed by settlement agreements or consent decrees with the EPA or Department of Justice (DOJ), the EPA has announced that respondents should follow the procedures set forth in the agreements by providing appropriate notices (including force majeure provisions). The EPA has announced that it will work with the DOJ and courts retaining jurisdiction over these agreements to exercise enforcement discretion.

Finally, transportation and social distancing measures can impact facilities’ status under both the RCRA generation determinations and the animal feeding operation rules. If COVID-19 disruptions prevent a generator of hazardous waste from removing waste offsite within specified time periods, the accumulation of the waste will not change their generator status nor subject them to regulation as storage, treatment, or disposal facilities. All waste, however, must still be properly labeled and stored and the facility must maintain the documentation discussed above. Likewise, if an animal feeding operation is prevented from removing animals such that the regulatory definition of a concentrated animal feeding operation is triggered, the EPA will not consider the temporary increase as long as the operator maintains adequate documentation.

There are exceptions in this policy. Nothing in the COVID-19 Enforcement Discretion Policy changes the obligation to prevent, respond to, and report accidental releases. This policy does not apply to imports of pesticide products, especially those claiming to address COVID-19 impacts and FIFRA will still apply. Activities addressed under Superfund or RCRA Corrective Action Enforcement instruments are not covered by this policy, but the agency expects to issue further policies and communications about these activities. Finally, the EPA will also continue to seek criminal prosecutorial assistance from the Department of Justice for intentional disregard for environmental laws.

Environmental groups and states have challenged this policy.  At least fifteen public interest groups filed suit on April 16, 2020 in the Southern District of New York alleging that the policy will allow regulated entities to stop compliance monitoring and reporting without contemporary notice to the agencies and that local communities thus may not be able to plan for releases.  On May 13, 2020 nine states[2] initiated a similar lawsuit. Both the public interest groups and the states allege that EPA’s had enforcement discretion to deal with issues on a case-by-case basis without a sweeping policy. The EPA has previously argued that the policy was necessary as employees would be overwhelmed by case-by-case requests during operational issues caused by COVID-19, and it would be better suited to analyze issues afterwards.

Whether the policy applies as written or requests should be made in advance as the litigants to the lawsuits contend, the inability to comply due to Covid-19 issues will be a case-by-case determination based in part on whether Covid-19 disruptions exist in the location of the facility. For example, in Indiana the Governor’s March 24, 2020 “Directive For Hoosiers To Stay At Home” does not apply to individuals working to operate or maintain “Essential Infrastructure” which includes operation of utilities, oil refining, and solid waste collection and removal. The order also exempts workers of “Essential Businesses and Operations” which includes production agriculture, gas stations, and manufacturing companies. In Indiana and states with similar exemptions from what would otherwise be a significant Covid-19 disruption, it may be more difficult to prove a disruption sufficient to warrant enforcement discretion. Regulated entities therefore need to contemporaneously collect documentation about the disruption caused by Covid-19 related restrictions and other disruptions in their particular locality.

The Indiana Department of Environmental Management (“IDEM”) has announced th tit will not generally waive any regulatory requirements, but it is cognizant that entities may experience difficulties in operations.  IDEM has asked that any regulated entities take all available actions to comply with regulations, but that IDEM will exercise enforcement discretion if noncompliance is unavoidable because of COvid-19 impacts.  IDEM has requested that regulated entities communicate with IDEM about any anticipated issues and the information IDEM is requesting is similar to that required to be maintained under the EPA COVID-19 enforcement policy.  Additionally, IDEM’s existing penalty policy does include provisions to allow a respondent to argue that unique factors should militate against civil penalties.

Regardless of whether you have compliance issues related to COVID-19, both EPA’s and IDEM’s self-disclosure policies are always available to mitigate potential enforcement liability. If you voluntarily discover, promptly disclose, and quickly correct alleged environmental noncompliance you may be able to reduce or eliminate civil penalties. Whether your compliance issues are related to COVID-19 or not, Plews Shadley Racher & Braun LLP’s environmental lawyers can help you navigate any self-disclosure or enforcement actions.

[1] The EPA policy specifically noted that with a prevalence of online training, many training options should not be affected by this policy. To justify lack of training or certification an operator will likely have to prove that online options were not available. To the extent that certified individuals have certifications that lapse, it is always better to have experienced and trained operators working, even if their training or certifications have lapsed.

[2] California, Illinois, Maryland, Michigan, Minnesota, New York, Oregon, Vermont, and Virginia

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