June 2020 – Compliance with US EPA Regulations during a Pandemic

On March 26, 2020, US EPA released a memorandum to all governmental and private sector partners regarding its “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” The memorandum addresses protection of health and safety of the public, federal, state, and local governments, regulated entities, contractors, and non-governmental organizations (NGOs). The effective date of the policy is retroactive to March 3, 2020. The US EPA, by its policy is, “exercising its enforcement discretion” during the pandemic. The policy will remain in force until termination. US EPA will provide a 7-day notice prior to termination of this temporary policy. US EPA will continuously assess the policy and provide updates. The effects of the policy will remain intact for any actions or omissions that occur during the policy dates even after the termination of the policy.

The policy states that:

• Entities should make every effort to comply with their environmental obligations

If compliance is not reasonably practicable, facilities with environmental compliance obligations should:

• Act responsibly to minimize effects
• Identify the specific nature and dates of noncompliance
• Identify how COVID-19 was the cause of the noncompliance
• Identify the decisions and actions taken in response, including the best efforts and steps taken to come into compliance at the earliest opportunity
• Come into compliance as soon as possible
• Document all the information

The exercise of enforcement discretion applies to the following programs:

• Routine compliance monitoring and reporting by regulated entities
• Settlement agreement and consent decree reporting obligations and milestones
• Facility operations
• Public water systems regulated under the SDWA
• Critical infrastructure facility
• State oversight
• US EPA actions
• Accidental releases
• Criminal violations

This policy does not apply to activities under Superfund and RCRA Corrective Action enforcement instruments.

Full details of the enforcement discretion by the USEPA is contained HERE 

It must be noted that there is pending litigation against the US EPA to rescind its exercise of enforcement discretion policy. The case is Natural Resources Defense Council v. Bodine, S.D.N.Y., No. 1:20-cv-03058, 4/16/20. The attorneys general and members of Congress have also called on the EPA to rescind the policy.