On March 26, the EPA Headquarters Office of Enforcement and Compliance Assurance issued a broad policy statement, retroactive to March 13, describing its intention to exercise enforcement discretion with respect to compliance with environmental compliance testing and reporting obligations that cannot be met because of the effects of the COVID-19 pandemic. Nonetheless, the regulated community is required to comply to the fullest extent it can.
To the extent that the unavailability of personnel and COVID-19 restrictions prevent timely compliance with testing and reporting requirements, in order to benefit from the suspension of punitive sanctions pursuant to the policy, all regulated entities must follow specific requirements of management, record keeping, and reporting.
These requirements are described as follows in the policy:
- Minimize the effects and duration of any non-compliance caused by COVID-19
- Identify the specific nature and date of noncompliance
- Identify how COVID-19 caused the noncompliance, best efforts to comply, and measures to come into compliance at the earliest possible date
- Carefully document compliance with these obligations.
The obligations subject to the enforcement forbearance include routine compliance, monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification. In addition, there are provisions for accepting digital signatures.
Generally speaking, for Administrative Orders, Consent Decrees, and other settlement agreements the requirements for reporting to EPA impediments to compliance that are embedded in those agreements should be followed.
The policy also addresses imminent threats to human health or the environment and failure of air emission controls and waste water or water treatment systems. The requirements for hazardous waste generators to transfer accumulating hazardous waste offsite within certain time periods under RCRA are relaxed.
There are specific provisions for public drinking water systems regulated under the Safe Drinking Water Act, Accidental Releases, and criminal violations.
This policy does not apply to Superfund or RCRA corrective action enforcement cases that will be addressed in a separate memorandum.
States that have correlative enforcement authority will make their own judgments about compliance with all of the obligations addressed by the EPA policy.
Finally, the policy is temporary, careful compliance with its terms will no doubt be necessary to benefit from it, and the agency emphasizes that compliance at all times should be achieved to the fullest extent possible.
To read the statement, click here.