EPA Announces Temporary Policy during COVID-19 Pandemic

On March 26, the EPA issued a temporary policy that applies retroactively beginning on March 13, 2020 regarding enforcement of environmental legal obligations during the COVID-19 pandemic.  In essence, and with certain limitations, the EPA has suspended environmental enforcement action.

It’s important to note that this policy does not apply to activities carried out under Superfund and the Resource Conservation and Recovery Act (RCRA) Corrective Action enforcement instruments; imports (particularly pesticide products that claim to address COVID-19 impacts); or criminal violations.  The policy also does not relieve any entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants, as required by federal law.

While the Temporary Policy is in Effect

Facilities should make every effort to comply with environmental obligations. But if compliance is not reasonably practicable, EPA indicates they should take these steps:

1. Act responsibly to minimize the effects and duration of any noncompliance caused by COVID-19.

2. Identify the specific nature and dates of the noncompliance.

3. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity.

4.  Return to compliance as soon as possible.

5. Document the information, action, or condition specified in Steps 1. through 4.

Facilities should use existing procedures to report noncompliance with routine compliance activities (compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification).  If reporting is not reasonably practicable due to COVID-19, maintain this information internally and make it available to the EPA or an authorized state or tribe upon request.

After the Temporary Policy is No Longer in Effect

EPA indicates that, after the policy is no longer in effect, “catch-up” with missed monitoring or reporting will not be required, except for exigent circumstances.

The EPA indicates that it expects to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment, to ensure protection against such risks or threats.