On March 26, 2020, EPA issued a Temporary Policy to describe how EPA will exercise its enforcement discretion for noncompliance with routine monitoring and reporting requirements resulting from the COVID-19 pandemic. The Temporary Policy also states that EPA may exercise enforcement discretion for other noncompliance, but those decisions will be made on a case-by-case basis. The Temporary Policy explains that regulated companies should make every effort to comply with their environmental compliance obligations. If compliance is not reasonably practicable, facilities with such obligations should act responsibly, document and maintain records of instances of noncompliance and return to compliance as soon as practicable.
Consistent with the Temporary Policy, the EPA issued a new temporary Reporting Advisory providing further direction to EPA Regional Offices regarding NPDES reporting requirements to ensure consistent national data collection.
This Advisory pertains specifically to scenarios impacting a NPDES permittee's ability to perform required monitoring, sampling and reporting, in addition to an authorized NPDES Program's ability to report to EPA in a timely manner as required by 40 CFR part 127 (NPDES eRule). In many cases, the failure to report to ICIS-NPDES using an electronic reporting tool (e.g., NetDMR) or by an authorized NPDES Program will result in the automatic generation of non-receipt violations. Under any circumstance, 40 CFR § 122.41(l)(6) and (7) create standard conditions in all permits that require permittees to report all noncompliance.
Authorized NPDES Programs and EPA Regions should advise permittees that they are expected to report the data they do have for the monitoring period (even if the monitoring data is incomplete in whole or part). If data is missing because of the COVID-19 pandemic as set forth in the Temporary Policy, EPA strongly encourages that permittees and authorized NPDES Programs use a No Data Indicator code that was created specifically for response to the COVID-19 situation. In addition to use of the COVID-19 code, the regulatory authority should instruct permittees to include the following comment on their DMR form: “COVID-19.” Using the COVID-19 code indicates the permittee believes the Temporary Policy applies to their routine monitoring or sampling noncompliance. The ICIS-NPDES data system will not automatically identify a DMR non-receipt violation if the COVID-19 code is used. Instead, EPA and authorized NPDES Programs may use the COVID-19 code if follow-up is needed to determine if the criteria set forth in the Temporary Policy for use of enforcement discretion are met.
Please see the attached advisory for further information. |