EPA Offers Formal Compliance Guidance for Regulated Entities

The Environmental Protection Agency (EPA) will ease compliance restrictions on facilities affected by the COVID-19 pandemic. The EPA’s new enforcement policy, released March 26, addresses concerns that potential worker shortages, travel restrictions, and social distancing may impact facility operations.

The EPA said it expects regulated entities to make every effort to comply with environmental compliance obligations. However, if compliance is not reasonably practicable, those entities should:

• Act responsibly under the circumstances 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
• Document the information, action or condition specified in the above bullet points

The EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification obligations in situations where COVID-19 was the cause of the noncompliance. To be eligible for this enforcement discretion, regulated entities must comply with the above bullet points.

The policy addresses certain operations, entities and situations differently (e.g., public water systems must still ensure drinking water safety). It does not apply to criminal violations, activities conducted under Superfund and RCRA Corrective Action enforcement instruments, or an accidental release response. Authorized states or tribes may also take a different enforcement approach under their own authorities.

The policy applies retroactively beginning on March 13. The EPA will assess the continued need for and scope of this policy on a regular basis and will update it as necessary. The policy can be read in full here.

This news alert is a service to the clients of Phelps Dunbar. This is a rapidly changing situation. We will keep you informed on other COVID-19 related developments as they occur.

Inquiries concerning topics addressed in this Environmental news alert may be directed to any member of the Phelps Environmental practice group.