EPA’s Discretionary COVID-19 Enforcement Policy – Ends August 31, 2020

On March 26, 2020, the EPA introduced a “temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic.”

The EPA, as well as other regulatory agencies, outlined details of the discretionary policy, along with procedures to document and track revised compliance activities and due dates. The relaxed enforcement provisions covered activities such as compliance testing, training activities, monitoring, and record keeping requirements due to safety concerns and supply chain considerations. The EPA is ending this temporary policy at 11:59 pm EST on August 31, 2020.

LATEST EPA POLICY UPDATE REGARDING COVID-19 ENFORCEMENT DISCRETION

The memorandum noting the termination of the temporary policy was issued on June 29, 2020. The EPA noted that, in many parts of the country, state and local restrictions have been relaxed to support economic recovery efforts. The takeaways from the June 29, 2020 memorandum include:

• Many state and local COVID-19 restrictions are now relaxed and the EPA’s action is intended to limit restrictions that potentially impede regulatory compliance by reducing the circumstances in which the temporary policy may apply.
• The end date for the temporary discretion policy was set as August 31, 2020 to allow industry and service providers time to adjust to the changing circumstances.
• The EPA still has the ability to exercise enforcement discretion on a case by–case basis, before or after the temporary policy is terminated.
• Regulated entities are expected to make every effort to comply with their environmental compliance obligations.

Since then, regulated entities have followed up with the EPA and asked if the recent spikes in COVID-19 cases have changed the timing of the termination of the temporary discretion policy. From the EPA’s frequently asked questions about temporary COVID-19 enforcement policy dated 8/20/2020:

“The number of COVID-19 cases is increasing in most states, and in fact in some areas the numbers are worse than when EPA issued the Temporary Policy. Thus, will EPA continue the Temporary Policy beyond August 31^st?

No. EPA is aware that some states are seeing an increase in COVID-19 cases following efforts to reopen, and as a result may pause reopening, or modify their reopening protocols. However, EPA has been clear from the beginning that regulated entities should be making every effort to comply with the law; this includes planning how to comply both with environmental legal obligations and with public health guidance from the Centers for Disease Control and Prevention (CDC) or other agencies regarding actions suggested to stem the transmission and spread of COVID-19. EPA recognizes that it is possible that some entities may have difficulties obtaining contractor or lab support, or experience worker shortages after the Temporary Policy terminates. However, unlike the situation in March when the policy was first issued, EPA expects that entities now have experience with such constraints and will have modified their operating procedures to account for such contingencies. As always, if noncompliance occurs, EPA will be reasonable when deciding what enforcement response is appropriate, taking all relevant facts and circumstances into account. EPA retains its ability to exercise enforcement discretion on a case-by-case basis regarding any noncompliance, including noncompliance caused by the COVID-19 public health emergency.” (Posted 8/20/2020)

Given this response, the EPA has left the door open for some enforcement discretion. On the other hand, it is important to note the agency has clearly stated “that regulated entities should be making every effort to comply with the law”. As of September 1^st, 2020, industry should be prepared to return to compliance with regulated actions and due dates. The EPA, however, may still provide enforcement discretion on a case-by-case basis.

CONSIDER HOW BUSINESS PRACTICES HAVE CHANGED IN LIGHT OF COVID-19 ISSUES

Many of the service providers have changed the way they interact with the regulated community and practice social distancing, enhanced sanitization procedures of equipment and vehicles, and pre-screening of their employees prior to client facility visits. Many compliance projects require actions from the regulated entities, the regulatory agency, and the service provider. Project timelines are now required to factor in the COVID-19 issues for vendors to complete plant entry requirements, longer lead time for regulatory reviews, and guidelines for interactions between plant, regulatory, and service provider staff during pre-project meetings and on-site compliance tasks.

BE ON THE WATCH FOR OTHER REGULATORS’ ENFORCEMENT POLICY CHANGES

Other regulatory agencies may follow the EPA’s lead with their enforcement policy decisions regarding COVID-19. Thus, state, local and tribal regulatory agency guidance needs to be tracked diligently – and depending on the scale of company operations, this could quickly prove to be an unwieldy task to manage in-house. Environmental consultants, stack testing companies, industry trade associations, and environmental attorneys may have environmental compliance and COVID-19 policy trackers to assist the regulated community in their decision process.

FOR MORE INFORMATION

For more information about this change in EPA’s policy, please visit the EPA website: https://www.epa.gov/enforcement/enforcement-policy-guidance-publications

You should also review your local regulatory agency COVID-19 enforcement informational sites.

Have questions about this update? Need a Qualified Source Test Individual (QSTI), Professional Engineer (PE), permitting expert, or general help with your compliance efforts with regards to your COVID-19 compliance concerns?

Our National Stack Testing experts can help.  Click here to start a conversation

Safe Field Testing during COVID-19. Read about the safety measures our teams are taking here.