EPA has provided some necessary guidance and assistance to address the impacts of COVID-19 on environmental compliance. After several national trade organizations, including API, petitioned EPA for regulatory relief during the COVID-19 crisis, EPA issued a policy retroactive to March 13. EPA will apply the policy to actions, inactions or omissions that occur while the policy is in effect and even after the policy terminates.
EPA issued a "temporary policy" with guidelines for when it will exercise its enforcement discretion with regard to certain types of violations occurring during the pandemic. EPA will apply the policy "if regulated entities take the steps applicable to their situations, as set forth in this policy" and if noncompliance "results from the COVID-19 pandemic."
Several conditions must be met before EPA will exercise its enforcement discretion. Entities must "make every effort to comply with their environmental compliance obligations." However, if compliance is not reasonably practicable, entities must act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19; identify the specific nature and dates of the noncompliance; identify how COVID-19 was the cause of the noncompliance; return to compliance as soon as possible; and document all such information, action and/or conditions.
Documentation is very important in this context. A company must possess the evidence or proof necessary to substantiate a claim that compliance was not "reasonably practicable" in order for EPA to exercise its enforcement discretion. A lack of documentation will likely suggest the company simply chose not to comply, as opposed to unsuccessfully attempting to maintain compliance as a result of COVID-19.
Furthermore, there may be constraints on performing routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification. EPA does not expect to seek penalties for failures in these categories "where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request." After the crisis ends, EPA expects all noncompliant entities to return to full compliance. However, EPA does not plan to require a facility to "catch up" with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For biannual or annual reporting, EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible.
For administrative settlements, EPA has suggested that parties utilize the notice procedures in the agreement, including notification of force majeure, if the parties anticipate missing enforceable milestones. For consent decrees, EPA will coordinate with the U.S. Department of Justice to exercise enforcement discretion with regard to stipulated penalties. Parties should follow the notice provisions, including force majeure provisions, as noted above.
After the temporary policy was issued, many news outlets suggested that EPA was simply choosing not to enforce the environmental laws during the pandemic. These statements prompted EPA to issue a press release in which it stated the policy is not a "license to pollute." EPA invited the press to "actually read [the policy] before repeating reckless propaganda" and making false claims "that the policy provides a blanket waiver of environmental requirements or creates a presumption that the pandemic is the cause of noncompliance."
EPA has set reasonable conditions requiring extensive documentation to prove noncompliance was caused by the pandemic. Only then will EPA exercise its enforcement discretion.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney of enforcement for the Louisiana Department of Environmental Quality.
For more information, visit www.bswenviroblog.com, or contact John B. King at jbk@bswllp.com or (225) 381-8014.
