EPA Temporarily Suspends Enforcement During COVID-19 Outbreak

EPA announced on March 26, 2020 a temporary enforcement discretion policy that applies to civil violations during the COVID-19 outbreak. EPA recognizes the extraordinary challenges the pandemic has created and will exercise reasonable enforcement discretion to forego civil enforcement for companies and other entities who are acting responsibly and making good faith, reasonable decisions. The primary basis for the policy is the lack of access to key staff, laboratories and facilities that work to analyze samples due to current social distancing measures and travel restrictions.

Under the policy, which was retroactively enacted for March 13, 2020, EPA will not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic. EPA does expect operators of public water systems to continue to ensure the safety of our drinking water supplies.

EPA still expects compliance with regulatory requirements where reasonably practicable and requires regulated facilities to return to compliance measures as quickly as possible. The policy strongly encourages facilities to notify authorities as quickly as possible when noncompliance could result in an acute risk or imminent threat to human health or the environment of failures of air emissions, wastewater, or waste treatment equipment. Activities under Superfund and RCRA Corrective Action enforcement are not included in the temporary guidance and will be addressed in a separate statement.

Regulated facilities need to adhere to certain guidelines in order to qualify for enforcement discretion. In order to be eligible, the facility needs to keep records and document any procedures or steps made to prevent or mitigate noncompliance and demonstrate how the pandemic contributed to the noncompliance. The measure does not provide any leniency for intentional criminal violations or conditions of probation that have been outlined as a result of past sentences.

EPA will assess the continued need for and scope of the temporary policy on a regular basis and will update it if EPA determines modifications are necessary. In order to inform the public when the policy will be terminated, EPA will provide a notification at least 7 days prior to terminating it.

In addition, many states that have issued shelter in place or similar orders are also exercising discretion in their enforcement policies. Some are extending deadlines, granting requests on a case-by-case situation, and making special arrangements for facilities to meet their compliance obligations. Since each state has the authority to administer its own program, the policies for that state need to be followed.