The U.S. Environmental Protection Agency (EPA), as well as the Washington Department of Ecology (Ecology) and Oregon Department of Environmental Quality (ODEQ), each have announced that they will not be expecting strict compliance with environmental regulations during the COVID-19 pandemic. While the agencies are not suspending their regulations outright, all three recognize that the pandemic may affect some regulated entities’ ability to comply and, therefore, the regulators say they will be exercising “reasonable discretion” when deciding whether to pursue potential violations.
The EPA policy is the most detailed and provides a helpful template for how regulators will be approaching compliance obligations during the pandemic. The EPA policy can be found here; Washington state’s policy is here; and Oregon’s is here.
Considerations
EPA’s policy, released March 26 but retroactive to March 13, recognizes that there may be potential worker shortages due to the pandemic, including the travel and social distancing restrictions imposed by governments and corporations or recommended by the Centers for Disease Control and Prevention to limit the spread of the virus. Consequently, facility operations may be affected, including the ability to meet required limits on air emissions, water discharges, hazardous waste management or requirements to protect drinking water. Furthermore, staff and facilities, such as laboratories, may not be available to collect and analyze samples that are required for compliance with the various permits, which in turn could affect reporting obligations and milestones required by settlements and consent decrees.
Conditions
Under the policy, EPA’s relaxation of compliance and enforcement is based on meeting several conditions:
- Entities must make every effort to comply with their environmental obligations.
- If compliance is not reasonably practicable, facilities should:
- Act responsibly under the circumstances in order to minimize the effects and duration of noncompliance caused by COVID-19.
- Identify the specific nature and dates of 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 return to compliance at the earliest opportunity.
- Document the information, action or conditions.
- Use existing procedures to report noncompliance with routine activities that may be required by a permit, regulation or statute. If there is no procedure, or if reporting is not reasonably practicable due to COVID-19, regulated entities are to maintain the information internally and make it available to EPA, state or tribal regulators upon request.
- Parties to EPA administrative settlement agreements must use the notice procedures set forth in the agreement, including force majeure notice, if a party anticipates missing enforceable milestones in the agreement due to COVID-19.
- EPA will coordinate with the Department of Justice on consent decrees to exercise enforcement discretion regarding stipulated penalties for routine compliance obligations. This does not preclude the courts from exercising their own authority under their retained jurisdiction over consent decrees. Parties also should use the notice provisions in the consent decree, including the force majeure, as applicable.
- Facilities should manage and maintain their operations in a manner that is safe and protects the public and the environment. If facility operations affected by COVID-19 may create an acute risk or imminent threat to human health or the environment, facility operators should contact the appropriate regulatory authority and decide whether an enforcement response is appropriate.
- Where there is a failure of a facility’s air emission control, wastewater or waste treatment systems, or other facility equipment that could result in exceedances of enforceable limitations, the facility operator should notify EPA, state regulator or tribe, and the responsible agency will determine the appropriate response.
- Hazardous wastes that are to be transferred or disposed of off-site, but cannot meet the required time limits due to the COVID-19 pandemic, are to continue to label and store wastes properly and notify EPA and applicable state or tribal regulators.
Exceptions
The EPA policy does not apply to criminal violations. Cases subject to potential criminal penalties will be screened to distinguish between violations that are unavoidable due to COVID-19 restrictions from violations that are the result of intentional disregard for the law.
The policy also does not relieve an entity from the responsibility to prevent, respond to or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste or other pollutants.
EPA also will be taking a particularly hard look at pesticide products, either entering the U.S. or produced or manufactured here, that claim to address COVID-19 impacts.
Post-Pandemic
After the EPA policy is no longer in effect, the agency does not expect regulated entities to “catch up” on missed monitoring or reporting if the underlying requirement applies in intervals less than three months. For bi-annual or annual reporting, EPA expects facility operators to take reasonable measures to resume compliance after the policy expires.