Today the Environmental Protection Agency’s Enforcement and Compliance Assurance Program announced a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. The policy is available here and is retroactive to March 13, 2020. EPA makes clear that the policy is temporary and the agency will give seven days’ notice before terminating the policy.
In general, EPA states that if compliance with regulatory requirements, consent agreements, consent decrees, or other environmental requirements is adversely impacted by the COVID-19 pandemic, then EPA will exercise enforcement discretion. The nature of that discretion differs depending on the type of noncompliance.
Several notable carve outs apply. The policy, for example, does not apply to Superfund or RCRA corrective action instruments, many of which will have their own force majeure provisions. The policy also has no bearing on requirements relevant to accidental releases, including accidental release reporting obligations. Further, the policy does not authorize or shield against knowing or criminal violations.
The policy notes that the agency does continue to expect entities to make every effort to comply with their environmental compliance obligations. The memorandum specifies how entities should address situations of noncompliance, including recordkeeping, notification, and other details. In general, facilities still will need to continue to report noncompliance.
EPA’s memorandum includes specific examples of noncompliance that may be excused or mitigated due to the COVID-19 pandemic.
- EPA recognizes that a generator may be unable to transfer hazardous waste off-site within the storage time periods required under RCRA to maintain RCRA generator status. The facility should continue to label and store such waste and provide notice to the regulatory authorities. If these steps are met, then EPA will continue to treat the facility as a hazardous waste generator and not a treatment, storage, and disposal (TSD) facility. EPA also will treat a Very Small or Small Quantity Generator as “retaining that status, even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold due to the generator’s inability to arrange for shipping” off-site due to the COVID-19 pandemic.
- For companies that handle hazardous waste, have periodic environmental sampling and reporting requirements, or even “wet signature” report submission requirements, this Memo provides some assurance of the exercise of enforcement discretion by EPA if a company is unable to comply with these requirements due to the COVID-19 pandemic.
Companies requiring relief under this policy should ensure that they document their compliance efforts, the specific causes for noncompliance and efforts to return to compliance. In addition, companies may be subject to specific reporting requirements, as set forth in the memorandum. Further, deadlines that are enforceable under a civil consent decree may be subject to different requirements issued by the governing courts.
EPA’s memorandum applies to EPA actions only, and the agency recognizes that states or tribes may take different approaches within their jurisdictions. EPA may issue additional policies as needed during the COVID-19 response and will make those available here.
This post was drafted by Jessica Merrigan and Mike Hockley, attorneys in the Kansas City, MO and Overland Park, KS offices of Spencer Fane LLP. For more information, visit spencerfane.com.
