EPA Announces Enforcement Discretion Policy for COVID-19 Pandemic

Regulatory Announcements

Date Posted:March 26, 2020
The EPA has released a temporary policy regarding compliance assurance and reporting, which may be impacted by disruptions from the COVID-19 pandemic. Portions of the policy are applicable to NPDES compliance monitoring as well as hazardous waste generator requirements.

EPA's temporary enforcement discretion policy applies to civil violations during the COVID-19 outbreak. The policy addresses different categories of noncompliance differently. For example, under the policy EPA does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic but does expect operators of public water systems to continue to ensure the safety of our drinking water supplies. The policy also describes the steps that regulated facilities should take to qualify for enforcement discretion.

EPA is cognizant of potential worker shortages due to the COVID-19 pandemic as well as the travel and social distancing restrictions imposed by both governments and corporations or recommended by the Centers for Disease Control and Prevention (CDC) to limit the spread of COVID-19. The consequences of the pandemic may affect facility operations and the availability of key staff and contractors and the ability of laboratories to timely analyze samples and provide results. As a result, there may be constraints on the ability of a facility or laboratory to carry out certain activities required by our federal environmental permits, regulations, and statutes. These consequences may affect reporting obligations and milestones set forth in settlements and consent decrees. Finally, these consequences may affect the ability of an operation to meet enforceable limitations on air emissions and water discharges, requirements for the management of hazardous waste, or requirements to ensure and provide safe drinking water. These are very distinct situations that the EPA plans to manage differently, as described in the attached temporary policy document.

The enforcement discretion does not apply to any criminal violations or conditions of probation in criminal sentences. It also does not provide leniency for intentional criminal violations of law. Appropriate consideration of potential criminal liability is discussed separately.

General statements contained in this policy may not address every potential civil violation that may arise as a result of COVID-19. As such, the EPA may provide additional enforcement guidance applicable to specific programs on an ongoing basis and the EPA’s self-disclosure program remains available.

The policy states that all enforcement discretion is conditioned on entities making every effort to comply with their environmental compliance obligations and describes actions that facilities with environmental compliance obligations should take if compliance is not reasonably practicable.

In order to provide fair and sufficient notice to the public, EPA will post a notification at this link at least 7 days prior to terminating this temporary policy.

See the attached temporary policy document below for additional information.
    View this regulation in PDF format.

J. Connor Consulting, Inc. Teaming with Industry