EPA Issues Temporary Enforcement Discretion Policy

March 27, 2020Alerts

Recognizing the impact of the COVID-19 pandemic on the ability of facilities to meet various federal environmental compliance and reporting obligations, the EPA’s Office of Enforcement and Compliance Assurance issued a temporary policy on March 26 regarding EPA enforcement of environmental legal obligations during the outbreak. EPA will exercise enforcement discretion for noncompliance resulting from the COVID-19 pandemic if regulated entities meet certain conditions. The regulated entity must exercise best efforts to comply, but if compliance is not reasonably practicable due to COVID-19, the entity must minimize the effects and duration of the noncompliance and maintain documentation related to their efforts. The policy applies retroactively beginning on March 13, 2020.

Facilities are required to notify EPA if their operations create an acute risk or an imminent threat to human health or the environment or if there is a failure of the facility’s air, water or waste treatment system that results in an exceedance of a permit limit. The policy does not apply to all operations. EPA expects operators of public water systems to continue normal operations and maintenance and to continue required sampling. The policy does not apply to Superfund or RCRA Corrective Action “enforcement instruments”, which will be addressed in a separate EPA communication. The policy also does not apply to criminal matters or imports. The policy instructs facilities that are subject to settlement agreements and consent decrees to utilize the notice and force majeure provisions in those documents. More information about force majeure provisions is available in a previous alert. EPA also notes that courts retain jurisdiction over judicially approved consent decrees and courts may exercise their own authority.

EPA’s policy can be found here.

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