General conditions to obtain enforcement discretion

The EPA conditions its enforcement discretion under this temporary policy on the following actions by entities:

1. Entities should make every effort to comply with their environmental compliance obligations.
2. If compliance is not reasonably practicable, facilities with compliance obligations should:

1. act 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 to the noncompliance, and steps taken to come into compliance, at the earliest opportunity;
4. return to compliance as soon as possible; and
5. document the information, action, or condition specified in the above conditions.

Covered environmental obligations

The following obligations and compliance actions are included in the EPA’s temporary policy. If a facility meets the general conditions discussed above and any specific conditions identified by the EPA for a particular obligation, then the EPA will not seek to enforce penalties against the facility. However, where compliance is enforced by the state, the facility should first identify whether the state is following the EPA’s guidance.

Routine compliance monitoring and reporting

The EPA recognizes that the pandemic may constrain an entity’s ability to conduct routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certifications. As a result, if an entity cannot maintain compliance under these obligations, it should use existing procedures to report the noncompliance, i.e., as set out under an applicable permit, regulation, or statute. If no such procedure is available or reporting is not feasible due to COVID-19, the entity should maintain the noncompliance information internally and make it available to the EPA or the state or tribe upon request.

Settlement agreement and consent decree obligations

For EPA administrative settlement agreements, the EPA will treat routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and associated reporting or certification obligations in the same manner as the routine compliance obligations discussed above.

For consent decrees entered into with the EPA and the U.S. Department of Justice (DOJ), the EPA will coordinate with the DOJ to exercise enforcement discretion relating to stipulated penalties for routine compliance obligations. The EPA notes, however, that courts retain jurisdiction over the consent decrees and may exercise their own authority.

Facility operations

Notably, the EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment.  The agency suggests the following actions in certain circumstances:

• Acute risk or imminent threat. If facility operations impacted by COVID-19 create an acute risk or an imminent threat to human health or the environment, the facility should contact the appropriate authority - the EPA, authorized state, or tribe.
• State and tribal programs. If there is an established authorized state or tribal program, the EPA will consult with the state or tribe to address the situation. If the EPA implements the program directly, the EPA will consider the circumstances, including COVID-19, surrounding the threat and determine whether an enforcement response is appropriate. 
• Air issues. If the facility experiences a failure of air emission control or wastewater or waste treatment systems or other facility equipment that may lead to exceedances of enforceable limitations on emission to air or discharges the water, or land disposal, or other unauthorized releases, the facility should notify the implementing authority as soon as possible.
• Compliance. If the facility experiences a noncompliance not already addressed above, the EPA will consider the circumstances, including COVID-19, when determining whether an enforcement response is appropriate.
• Hazardous waste. If the facility is a generator of hazardous waste and due to COVID-19, is unable to transfer the waste off-site within the time periods required under the federal Resource Conservation and Recovery Act to maintain a generator status, the facility should continue to properly label and store its waste. If these steps are met and the entity complies with the conditions discussed above, the EPA will treat these entities as hazardous waste generators and not treatment, storage and disposal facilities. Additionally, the EPA will allow Very Small Quantity Generators and Small Quantity Generators to maintain their status, even if the amount of hazardous waste stored on-site exceeds regulatory thresholds due to the generator’s inability to arrange for transport due to COVID-19.
• Animal feeding operations.  If an animal feeding operation is unable to transfer animals off-site due to COVID-19 disruptions, and as a result, meets the regulatory definition of a concentrated animal feeding operation (CAFO), the EPA will not treat that operation as a CAFO.

Public water systems

The EPA has heightened expectations for public water systems due to their critical role in protecting public health. The EPA expects labs performing analysis for water systems to continue to provide timely results.

Critical infrastructure

If a facility is considered “essential critical infrastructure,” the EPA may consider a more tailored “no action” assurances policy if it is in the public interest.

Post-pandemic enforcement return

Following the termination of this policy, the EPA does not expect entities to “catch up” on missed monitoring or reporting if the underlying requirement involves intervals of less than three months. For monitoring or reports subject to longer intervals, the EPA expects facilities to take reasonable measures to resume compliance as soon as possible, including conducting late monitoring or submitting late reports.

Reaction to EPA’s temporary policy

The EPA’s temporary policy has received mixed reactions by both states and environmental groups.³ It is important to note that the EPA’s temporary policy is only binding on the EPA. States are free to enforce the EPA’s policy if they wish, and environmental groups are still able to bring citizen suits to enforce environmental laws.

Below are some of the state responses so far:

• Texas. The Texas Department of Environmental Quality stated that it will practice its own enforcement discretion and has begun initiating special methods for businesses to notify the agency of COVID-19-related issues.
• New York. The New York Department of Environmental Conservation stated that it will continue to enforce environmental obligations and implement rules.
• Maryland. The Maryland Department of the Environment reported that it will pursue a more tailored approach and only grant exemptions from permit requirements on a case-by-case basis.
• California. The California Environmental Protection Agency intends to continue enforcement of environmental obligations, “especially where failure to follow the law creates an imminent threat or risk to public health.”
• Virginia. The Virginia Department of Environmental Quality is still reviewing the EPA guidance and has not announced whether it intends to defer to the EPA or maintain its enforcement authority.
• Washington. The Washington Department of Ecology will still respond to spills and enforce environmental obligations; however, it recognizes that COVID-19 could make it difficult for facilities to maintain compliance.
• Oklahoma. The Oklahoma Department of Environmental Quality announced that it will exercise enforcement discretion as appropriate and work with facilities on a case-by-case basis.
• Pennsylvania. The Pennsylvania Department of Environmental Protection will prioritize complaint inspections on a case-by-case basis and field inspections of critical infrastructure.
• Louisiana. The Louisiana Department of Environmental Quality granted extensions to regulated entities facing issues related to COVID-19.

EPA’s defense of its temporary enforcement discretion policy

Recently, on April 2, 2020, EPA Administrator Andrew Wheeler defended the EPA’s temporary policy, calling it “very mild” when compared to its actions in other crises.⁴ Describing the EPA’s response to Hurricane Sandy in 2012, Wheeler noted that the agency issued 13 separate enforcement discretion actions and five fuel waivers primarily targeted at four affected states. In contrast, Wheeler stated that the EPA is now dealing with impacts to all 50 states from the coronavirus. Additionally, no one knows when the pandemic will be over. As a result, the EPA intentionally left its policy broad and open-ended in order to better deal with the evolving situation.

1. U.S. Environmental Protection Agency, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” (March 26, 2020).
2. Notification of the EPA’s decision to terminate the enforcement policy will be posted on its webpage at epa.gov/enforcement.
3. Stephen Lee, et al., “EPA’s Relaxed Enforcement Amid Virus Draws Mixed State Reaction,” Bloomberg Environment & Energy Report, (March 28, 2020); Juan Carols Rodriguez, “Greens See Red, Attys Urge Care with New EPA Virus Policy,” Law360 (March 27, 2020).
4. Stephen Lee and Amena H. Saiyid, “EPA Chief Says Virus-Linked Looser Enforcement ‘Very Mild’,” Bloomberg (April 2, 2020).