By Chris Kozak, Plews Shadley Racher & Braun LLP
On March 26, 2020, the U.S. Environmental Protection Agency (EPA) released a temporary enforcement policy in order to help the country cope with the COVID-19 pandemic. The policy is retroactive to March 13, 2020 and is an exercise of the agency’s enforcement discretion.
The basis for the policy is that governmental responses to the pandemic may result in workforce shortages or the inability of employees to access the laboratories and facilities necessary to comply with certain regulatory requirements.
All discretion under the policy is conditioned on entities thoroughly documenting (1) how they acted responsibly in order to minimize the duration of any noncompliance; (2) the specific nature of the noncompliance; (3) how the noncompliance was caused by COVID-19 and (4) how the entity took steps to come back into compliance as soon as possible.
Here are some key things that the policy does—and more importantly, does not— allow. Provided the threshold criteria are met, the policy:
- States that the EPA will not seek penalties for violations of routine compliance monitoring, testing, sampling, training, or reporting requirements, including those
- States that EPA will not ask entities to “catch up” for qualified, missed monitoring or reporting, if the regulatory interval is less than three months;
- Allows experienced, trained operators on the job rather than at trainings or certifications, if a choice must be made between the two tasks;
- Provides procedures for addressing COVID-induced noncompliance with administrative or judicial consent decrees;
- Provides procedures for addressing COVID-induced operational failures, including emissions-control and treatment systems
The policy does not:
- Change any environmental rules or requirements
- Suspend the obligation to prevent, respond to, and report accidental releases
- Apply to Superfund or RCRA corrective action enforcement instruments
- Apply to public water systems or SDWA requirements—the EPA has “heightened expectations” for those systems during the pandemic
- Apply to imports or FIFRA import requirements
- Apply to any criminal matter or any intentional violations of criminal law; EPA will still consult with the Department of Justice to evaluate and prosecute environmental crimes
The EPA has made it clear that application of the policy will be fact-sensitive. A detailed review of the policy should be conducted for each situation to ensure eligibility. For specific questions about the policy, contact Chris Kozak of Plews Shadley Racher & Braun LLP at firstname.lastname@example.org.
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