The EPA Enforcement Discretion Policy, Three Months Later

Author: Dr. Andy Nunnery, Director of Operations for AquAeTer, Inc.

The EPA Enforcement Discretion Policy, Three Months Later

On March 26, 2020, in light of the COVID-19 pandemic, the United States Environmental Protection Agency (US EPA) issued a memorandum announcing a temporary enforcement discretion policy for regulated entities. The intent of the policy was to both give guidance to those regulated entities during a time of unprecedented uncertainty and provide relief to EPA staff to allow them to “focus on continued protection of human health and the environment.” The policy was applied retroactively beginning on March 13, 2020. This policy is unique in recent EPA history, as previous discretionary measures regarding force majeure, or “act of god,” were taken on a case-by-case basis. The policy has no scheduled expiration date, but will instead be evaluated regularly and lifted when the EPA deems it appropriate.

What prompted the policy and what activities does it affect?

The announcement came at a time when private companies and local and state governments were beginning to issue restrictions on non-essential business and travel, and various industry groups were voicing their concerns that these increased restrictions could interfere with regularly scheduled environmental compliance activities. The areas that are primarily affected by the policy include air emissions, water discharges, hazardous waste management, and drinking water safety. Affected activities may include, but are not limited to, routine compliance monitoring, integrity testing, sampling, training, and reporting and/or certification.

Reaction and Response

On March 30, following a fair amount of backlash from various environmental groups and states arguing that the EPA had abdicated their responsibilities, the EPA released a statement defending the policy. The statement attempted to clarify that the temporary policy does not provide a “blanket waiver” of environmental responsibilities, offering the following explanation:

“The policy says that EPA will not seek penalties for noncompliance with routine monitoring and reporting requirements, if, on a case-by-case basis, EPA agrees that such noncompliance was caused by the COVID-19 pandemic.”

The policy essentially instructs regulated entities that they are still required to maintain environmental compliance with regards to all of their responsibilities (e.g., permits, agreements, orders, etc.) but informs stakeholders that, in the event of noncompliance, penalties will not be enforced so long as the entity can prove that the lapse in compliance was due to complications related to the COVID-19 pandemic, and that there is no mens rea (criminal intent).

Noncompliance Due to COVID-19

What exactly constitutes noncompliance caused by the pandemic is vaguely outlined in both the policy and the March 30 news release, but can include effects on compliance due to worker shortages, travel restrictions, social distancing restrictions, availability of key staff and contractors, and ability of labs to accept and analyze samples in a timely manner. It is noted that this policy does not apply to Superfund and RCRA sites, as those facilities will be addressed by a separate policy. The policy also does not apply to imports, and specifically calls out “pesticide products entering, the United States, or produced, manufactured, distributed in the United States, that claim to address COVID-19 impacts.”

Where do the States Stand?

Since the issuance of the policy nearly three months ago, the reactions from state environmental agencies has been varied. Some state agencies, as listed in an April 6 EPA news release and including Alabama, Alaska, Arizona, Louisiana, Nebraska, Nevada, Oklahoma, South Carolina, South Dakota, Tennessee, West Virginia, have openly embraced the policy. Other states have voiced great concern over the policy, as exemplified in an April 15, 2020 letter to the EPA from the Attorneys General of New York, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

It is important to note that the EPA policy specifically addresses state and tribal authority on certain programs and calls out the current EPA policy regarding cooperation with states, as specified in the July 11, 2019 memorandum, Enhancing Effective Partnerships Between EPA and States in Civil Enforcement and Compliance Assurance Work.

How Should Regulated Entities Proceed?

Given the uncertainty caused by the pandemic and the wildly variable responses by the federal and state environmental agencies, it is important for regulated entities to take a cautious approach to applying the temporary EPA policy. For many environmental obligations, the states are the regulatory authorities and, as such, should be consulted in cases of noncompliance or expected issues with noncompliance. Regulated entities should also be aware when attributing a lapse in monitoring or compliance to the pandemic, that while the EPA may not enforce punishment for these lapses, litigation may come from other affected parties.

What is clear from the EPA policy and follow up news releases is that regulated entities are still expected to meet their environmental obligations in accordance with program requirements. If you are responsible for compliance monitoring or reporting and find that your facility or organization is unable to meet those obligations due to some consequence of the COVID-19 pandemic, it is incumbent upon you to take action to document and report the causes for the noncompliance immediately and to communicate compliance issues with the regulatory authority.