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.
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.
Under the policy, EPA’s relaxation of compliance and enforcement is based on meeting several conditions:
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.
After the EPA policy is no longer in effect, the agency does not expect regulated entities to “catch up” on missed monitoring or reporting if the underlying requirement applies in intervals less than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.
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