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U.S. EPA Issues Enforcement Policy for Noncompliance Resultant from COVID-19 Pandemic

April 1, 2020

States may take a different approach

On Mar. 26, the U.S. Environmental Protection Agency (U.S. EPA) issued a new, temporary enforcement discretion policy for certain noncompliance events that can be documented and tied to the COVID-19 epidemic.  U.S. EPA has emphasized that this new policy is not a "license to pollute." The enforcement discretion is intended to address challenges in staffing that facilities or laboratories will likely face during the COVID-19 epidemic, which may constrain certain activities required by federal permits, including: compliance monitoring, sampling, reporting, "wet" signatures, or training as some of the listed examples. The policy applies to specified federal programs, states may take a different approach related to compliance and enforcement during the pandemic.

According to the U.S. EPA press release, "[t]he temporary policy makes it clear that EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy also requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic."  The policy outlines steps to take if compliance is not reasonably practicable:

  • Minimize the effects and duration of any noncompliance
  • Identify the nature and dates of the noncompliance
  • Identify how COVID-19 was the cause of the noncompliance (include decisions, actions, and steps to return to compliance)
  • Return to compliance as soon as possible
  • Document the above

The temporary policy does not apply to certain programs (e.g., Superfund), criminal violations, or conditions in settlement agreements or consent decrees. It also does not waive the requirement to prevent, respond to, or report accidental releases of oil and other pollutants.

AGC encourages members to read the policy in full to understand more thoroughly how it may impact varying jobsite activities. EPA said it will undertake to coordinate with other federal agencies in situations where the EPA shares jurisdiction over a regulated entity’s environmental compliance obligations.  The COVID-19 policy applies retroactively to March 13, 2020, with an uncertain end date.

For more information, contact Melinda Tomaino at melinda.tomaino@agc.org or Leah Pilconis at leah.pilconis@agc.org.

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