EPA Issues COVID-19 Enforcement Discretion Policy

On March 26, 2020, the Environmental Protection Agency (EPA) issued guidance addressing a range of issues related to environmental enforcement and compliance arising from the COVID-19 pandemic.

The guidance addresses situations where EPA may apply enforcement discretion to pandemic-related non-compliance. EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations when the EPA agrees, on a case-by-case basis, that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request. There are general conditions that must be met in order for the policy to apply to civil noncompliance. These include minimizing the effects and duration of noncompliance caused by COVID-19, identifying and documenting how COVID-19 caused the noncompliance, and returning to compliance as soon as possible.

In a press release on March 30, EPA clarified that the policy does not excuse exceedances of pollutant limitations in permits, regulations, and statutes. EPA reiterated that it expects regulated entities to comply with all obligations where reasonably practicable.

The policy applies retroactively from March 13, 2020 until EPA publishes a notification terminating the policy, for which the agency commits to provide seven days’ advance notice. As the COVID-19 situation progresses, EPA may provide additional enforcement guidance applicable to specific programs on an ongoing basis.

KMCL attorneys are actively tracking developments in this area and welcome any questions about the effects and potential applicability of this policy.