EPA Temporarily Suspends Certain Compliance Obligations Due to COVID-19

On March 26, 2020, the U.S. Environmental Protection Agency (EPA) issued a policy temporarily suspending certain compliance obligations for entities affected by the COVID-19 pandemic.

The EPA recognized the COVID-19 pandemic may constrain regulated entities’ abilities to carry out certain activities required by federal environmental permits, regulations and statutes, potentially affecting reporting obligations set forth in settlements and consent decrees. Additionally, the EPA found operations may not be able to meet enforceable limitations on air emissions and water discharges, requirements for hazardous waste management, or requirements to ensure and provide safe drinking water.

Businesses that show they cannot meet routine compliance monitoring and reporting requirements as a result of COVID-19 impacts may receive significant temporary relief. Entities should continue to make every effort to comply with their environmental compliance obligations. However, if compliance is not reasonably practicable as a result of COVID-19, the entities should:

1. Act responsibly in order to minimize the effects and duration of noncompliance;
2. Identify the specific nature and dates of noncompliance;
3. 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;
4. Return to compliance as soon as possible; and
5. Thoroughly document all actions taken in steps 1-4 above.

The EPA does not expect to seek penalties for violations of routine compliance monitoring, testing, sampling, training, and reporting or certification obligations if the entity provides the EPA with documentation supporting why compliance was not reasonably practicable due to COVID-19, and the EPA agrees with the entities’ reasoning.

Key Takeaways

• Document Everything. As the policy clearly states, EPA expects every regulated entity to thoroughly document the circumstances of noncompliance. Entities unable to satisfy compliance monitoring or reporting requirements during the COVID-19 pandemic should document all attempts at compliance, detail the exact efforts taken, detail a plan to get back into compliance, and explain how damages were mitigated during this time.
• Continue to Report Noncompliance. Entities should continue to use existing procedures to report noncompliance, as dictated by the applicable permit, regulation or statute. If no such procedure applies, the entity should document the noncompliance internally and make the documentation available to the EPA or authorized state agency upon request.
• Submit Late Reports. The EPA does not plan to request facilities to make up missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For other monitoring or reports, such as on a biannual or annual basis, the EPA expects entities to use best efforts to resume monitoring and reporting once the policy is no longer in effect, including submitting late monitoring or late reports.
• Give Notice Under Settlements and Consent Decrees. Parties to settlement agreements should abide by notification procedures laid out in the agreement, including notification of a force majeure event, as applicable, if they believe they will be missing milestones. The EPA will coordinate with the Department of Justice (DOJ) to exercise enforcement discretion regarding stipulated penalties for routine compliance obligations in consent decrees. However, courts maintain jurisdiction over consent decrees and can enforce them at their own discretion.
• Report Threats to Human Health or the Environment. Facilities should contact the appropriate authorities if operations impacted by the COVID-19 pandemic may create an acute risk or imminent threat to human health or the environment. The EPA will consider surrounding circumstances, such as the COVID-19 pandemic, when determining whether enforcement is appropriate.
• Report on Public Water and Essential Infrastructure. The EPA has heightened expectations for public water systems and expects operators to continue normal operations, maintenance and required sampling to ensure the safety of drinking water supplies. The EPA expects laboratories responsible for the analysis of water samples to operate in a timely manner. If a facility is essential critical infrastructure, the EPA may consider a short-term “No Action Assurance” if it’s necessary to protect the public.

What the Temporary Policy Does Not Do

• The policy is not a nationwide waiver of environmental rules. Regulated entities should not take this policy as a free pass for noncompliance. Any entity finding themselves in noncompliance during the COVID-19 pandemic should be able to relate their noncompliant status, in some way, to the consequences of COVID-19.
• Training classes available online should not be affected by travel and social distancing constraints. Operators should maintain normal certification and training practices if practicable through online training.
• The inability to submit a "wet" signature when required is not enough to justify failure to make a proper submission. The EPA encourages responsible individuals to provide digital signatures per the EPA’s electronic reporting mechanisms, and emailed submissions will be accepted where paper originals are typically required.
• The policy does not apply to criminal enforcement or conditions of probation in criminal sentences.
• Activities carried out under Superfund and Resource Conservation and Recovery Act enforcement instruments will be addressed separately.
• The policy applies only to the EPA. Many states have been delegated authority to administer and enforce their own environmental regulations, and they are free to continue to do so.
• The temporary policy does not relieve entities from the responsibility to respond to or report accidental releases as required by federal law. 

The policy will apply to all actions or omissions occurring while the policy is in effect even after the policy is terminated. The policy applies retroactively beginning on March 13, 2020, and will be rescinded once the EPA determines the COVID-19 pandemic is no longer affecting the reporting and monitoring obligations of regulated entities.

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