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March 27, 2020

COVID-19: US EPA Issues Policy to Regulated Entities

As the federal government continues to respond to COVID-19, the US Environmental Protection Agency (EPA) issued guidance yesterday titled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance.”

The policy provides guidance on civil enforcement, routine compliance monitoring and reporting, settlement agreement and consent decree reporting obligations, facility operations, public water supply systems, and critical infrastructure. In doing so, the policy seeks to balance its responsibility to protect human health and the environment with the health and safety of the public as well as that of the EPA’s staff; other local, state, tribal, and federal government employees; and those of the regulated community and their contractors.

The enforcement discretion detailed in the policy comes with two conditions:

  1. The regulated entity must make every effort to comply with their environmental compliance obligations.
  2. If compliance is not reasonably practicable, a facility 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

e. Document the information, action, or condition specified in a. through d.

Recognizing that COVID-19 may constrain a regulated entity’s ability to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting certification, the policy states that the EPA does not plan to seek penalties for violations where COVID-19 was the cause of the inability to perform these activities. If such a circumstance arises, the EPA directs entities to use existing procedures to report the noncompliance or, if no procedure is available or reporting is not practicable because of COVID-19, to internally maintain the information and make it available to the EPA (or an authorized state or tribe) upon request.

With respect to settlement agreement and consent decrees, the policy distinguishes between EPA administrative settlement agreements and consent decrees entered into with the EPA and US Department of Justice, the latter of which are court orders. For both, among other things, the policy directs parties to utilize existing notice procedures, including notification of force majeure.

The policy does not apply to activities carried out under Superfund and RCRA Corrective Action enforcement instruments or to imports. It also does not apply to criminal violations or conditions of probation in criminal sentences. The temporary policy does not alter or amend any statutes or regulations, and it is not a regulation.

The policy is applicable retroactive to March 13 until further notice. The EPA reported it will continue to assess the situation and the need for this temporary policy as well as whether modifications are appropriate. To ensure the regulated community has sufficient notice once it is determined that the policy should be terminated, the EPA indicated that it will provide seven days’ notice of termination on its website.

We have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental and Lobbying & Election Law Compliance Practice Areas co-chair and co-team leader of the Oil & Gas, Linear Infrastructure, and Energy Markets Teams, at yhennessey@barclaydamon.com or any member of the COVID-19 Team at COVID-19ResponseTeam@barclaydamon.com.

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