On March 26, the U.S. Environmental Protection Agency announced a temporary policy on enforcement of environmental legal obligations during the COVID-19 pandemic.

EPA's temporary enforcement discretion policy applies to civil violations during the COVID-19 outbreak. The policy addresses different categories of noncompliance differently.

For example, under the policy EPA does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic but does expect operators of public water systems to continue to ensure the safety of our drinking water supplies.

The policy also describes the steps that regulated facilities should take to qualify for enforcement discretion.

The temporary policy makes it clear that EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible.  Facilities must--

-- Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;

-- Identify the specific nature and dates of the 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 come into

compliance at the earliest opportunity;

-- Return to compliance as soon as possible; and

-- Document the information, action, or condition specified above.

With respect to routine compliance monitoring and reporting by regulated entities, EPA said the pandemic may constrain the ability of entities to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification.

If entities cannot comply, they are required to use existing procedures to report noncompliance.  EPA does not plan to ask facilities to catch-up with missed monitoring or reporting.

This compliance monitoring and reporting policy also applies to settlement agreement and consent decree reporting.

EPA’s policy says they expect public water systems to continue normal operations and maintenance activities as required, including sampling.

In other circumstances, the policy also allows regulated entities, for example, to store hazardous waste in excess of their limits if they are prevented from transferring the waste off-site due to the coronavirus.

To be eligible for enforcement discretion, the policy also requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.

This policy does not provide leniency for intentional criminal violations of law.

The policy does not apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments. EPA will address these matters in separate communications.

EPA's policy will apply retroactively beginning on March 13, 2020. EPA will assess the continued need for and scope of this temporary policy on a regular basis and will update it if EPA determines modifications are necessary.

Does Not Supercede State Actions

The policy specifically notes-- “Authorized states or tribes may take a different approach under their own authorities.”

In order to provide fair and sufficient notice to the public, EPA will post a notification here at least 7 days prior to terminating this temporary policy.

Click Here to read the EPA Policy on Enforcement during the COVID-19 outbreak.

For more information, visit EPA’s Enforcement Policy, Guidance & Publications webpage.

For the latest information on the coronavirus and precautions to take in Pennsylvania, visit the Department of Health’s Coronavirus (COVID-19) webpage, Follow them on Twitter, or Like them on Facebook.

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[Posted: March 26, 2020]

3/30/2020