Client Alerts
March 27, 2020

EPA Suspends Enforcement Activities at Regulated Entities Impacted by COVID-19

Stites & Harbison Client Alert, March 27, 2020


The United States Environmental Protection Agency (“EPA”) announced on March 26, 2020 that it is temporarily suspending its 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, EPA has indicated that it 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 drinking water supplies. The policy also describes the steps that regulated facilities should take to qualify for enforcement discretion. The policy does not provide leniency for intentional criminal violations of law. The policy also does not apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments as EPA has indicated that these matters will be addressed under a separate policy.

EPA expects regulated facilities to continue to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. 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. Facilities should contact the appropriate implementing authority (EPA region, authorized state, or tribe) if facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment. If a facility is a generator of hazardous waste and, due to disruptions caused by the COVID-19 pandemic, is unable to transfer the waste off-site within the time periods required under RCRA to maintain its generator status, the facility should continue to properly label and store such waste and take the steps outlined above to be eligible for enforcement discretion.

Entities subject to administrative settlement agreements with EPA should utilize the agreement’s force majeure notification provision. EPA announced that it will generally not seek stipulated or other penalties for noncompliance with missed enforceable milestones under these settlements. With respect to Consent Decrees entered into with the EPA and the United States Department of Justice, EPA will coordinate with the DOJ to exercise enforcement discretion with regard to stipulated penalties for routine compliance obligations under these agreements. However, because courts retain jurisdiction over consent decrees, they may exercise their own authority. Parties should utilize the notice procedures set forth in the consent decree, including notification of a force majeure, as applicable, with respect to any noncompliance alleged to be caused by COVID-19.

EPA announced that the policy will apply retroactively to March 13, 2020. The suspension is temporary, but has no set end date. According to the EPA, it will continue to monitor the need for and scope of the temporary policy on a regular basis and will provide a seven-day warning before terminating the policy. A copy of the complete policy can be reviewed here.

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