As an update to our previous post regarding COVID-19 and environmental compliance, new developments at the state and federal levels continue, especially with respect to the exercise of enforcement discretion.
On March 26, 2020, USEPA issued a memorandum entitled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program (the “COVID-19 Memorandum”).
Through the COVID-19 Memorandum, subject to several conditions, USEPA has adopted a policy of not seeking penalties for violations of routine compliance monitoring and reporting requirements caused by COVID-19. With respect to other potential violations (emissions limit exceedances, etc.) USEPA will take the COVID-19 pandemic into account when considering the whether an enforcement response is appropriate.
In addition, subject to several conditions, generators of hazardous unable to meet regulatory timeframes to transfer waste off-site due to the COVID-19 pandemic will continue to be treated as generators, not treatment, storage, and disposal facilities.
The COVID-19 Memorandum does not apply to: 1) prevention of, response to, or reporting of accidental releases, 2) criminal violations, or 3) activities carried out under Superfund and RCRA Corrective Action enforcement instruments (separate policies are expected). COVID-19 Memorandum at 2, 7.
In addition, USEPA suggests that facilities subject to an administrative order or consent decree take advantage of force majeure provisions of those agreements.
Further details regarding the COVID-19 Memorandum are below.
Conditions on Enforcement Discretion
The exercise of any enforcement discretion under the COVID-19 Memorandum is conditioned upon:
“1. Entities should make every effort to comply with their environmental compliance obligations.
2, If compliance is not reasonably practicable, facilities with environmental compliance obligations should:
a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
b. Identify the specific nature and dates of the noncompliance;
c. 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;
d. Return to compliance as soon as possible; and
e. Document the information, action, or condition specified in a. through d.”
COVID-19 Memorandum at 1-2.
Routine Compliance Monitoring and Reporting
The COVID-19 Memorandum outlines USEPA’s decision to use its enforcement discretion not to seek penalties for “violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.” COVID-19 Memorandum at 3.
Settlement Agreements and Consent Decrees
For facilities subject to USEPA administrative settlement orders or consent decrees to which USEPA is a party, facilities should use the force majeure provisions in those documents, including any required notice provisions. COVID-19 Memorandum at 4.
Facility Operations, including Failure of Air Emission Control or Wastewater or Waste Treatment Systems or other Facility Equipment
The affected facility should submit a notification to the regulatory authority as soon 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.” COVID-19 Memorandum at 5. USEPA will evaluate the information submitted, and “The EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.” COVID-19 Memorandum at 5.
Hazardous Waste Generators
If a facility is a generator of hazardous waste and, due to disruptions caused by the COVID-19 pandemic, is unable to transfer the waste off-site within the time periods required under RCRA to maintain its generator status, the facility should continue to properly label and store such waste and take the steps identified above to qualify for enforcement discretion. If these steps are met, as an exercise of enforcement discretion, the EPA will treat such entities to be hazardous waste generators, and not treatment, storage and disposal facilities. In addition, as an exercise of enforcement discretion, the 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 for shipping of hazardous waste off of the generator’s site due to the COVID-19 pandemic. COVID-19 Memorandum at 5-6.
Public Water Systems
In the COVID-19 Memorandum, USEPA “strongly encourages public water systems to consult with the state and EPA regional offices without delay if issues arise that prevent the normal delivery of safe drinking water and encourages states to continue to work closely with the EPA on measures to address the potential impacts of COVID-19. The EPA also encourages certified drinking water laboratories to consult with the state and the EPA if issues arise that prevent laboratories from conducting analyses of drinking water contaminants.” COVID-19 Memorandum at 6.
USEPA will consider the circumstances, including the COVID-19 pandemic, when determining whether any enforcement response is appropriate at public water systems acting in accordance with this subpart.
In situations where a facility is essential critical infrastructure, the 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 essential the facilities that employ essential critical infrastructure workers as determined by guidance issued by the Cybersecurity and Infrastructure Security Agency. COVID-19 Memorandum at 6-7.
Some states have adopted similar policies to the federal COVID-19 Memorandum discussed above. For example, Ohio EPA has established a specific email inbox for receipt of requests for enforcement discretion: EPA.COVID-19REGFLEX@epa.ohio.gov. Ohio EPA’s COVID-19 site notes that:
All regulated entities remain obligated to take all available actions necessary to ensure compliance with environmental regulations and permit requirements to protect the health and safety of Ohioans and the environment. However, in the instance where regulated entities will have an unavoidable noncompliance situation, directly due to impact from the coronavirus, an email box has been established by Ohio EPA to accept requests for the Director of Ohio EPA to consider providing regulatory flexibility, where possible, to assist entities in alternative approaches to maintaining compliance, such as extending reporting deadlines, consideration of waiving late fees and exercising enforcement discretion.
The email should at a minimum include the following:
- The specific regulatory or permit requirement which cannot be complied with
- A concise statement describing the circumstances preventing compliance
- The anticipated duration of time that the noncompliance will persist
- The mitigative measures that will be taken to protect public health and the environment during the need for enforcement discretion
- A central point of contact for the regulated entity, including an email address and phone number
Where alternative compliance options are authorized by Ohio EPA, regulated entities must maintain records adequate to document activities related to the noncompliance and details of the regulated entity’s best efforts to comply.
In addition, the Texas Commission on Environmental Quality announced it will consider requests for enforcement discretion when a situation directly related to COVID-19 results in an unavoidable issue of non-compliance. Regulated entities should email both OCE@tceq.texas.gov and Ramiro.Garcia@tceq.texas.gov with specific information regarding the situation and maintain records adequate to document activities related to the noted issue of noncompliance, including details of the entity’s efforts to comply. The email should contain: (1) a concise statement supporting request for enforcement discretion; (2) anticipated duration for the need for enforcement discretion; and (3) a citation to the regulation or permit provision for which enforcement discretion is requested.
Other states have adopted similar policies, or may be doing so shortly, following the issuance of the COVID-19 Memorandum by USEPA.
Before taking advantage of an offer of enforcement discretion by reaching out to a regulatory agency, an environmental attorney should be consulted to ensure that the request meets the requirements of the applicable policy, and to provide advice on the consequences of making the request.