A close review of the policy suggests that regulated entities should think carefully before relaxing their compliance activities.
On March 26, 2020, the United States Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance issued a seven-page, temporary policy addressing EPA’s intended use of enforcement discretion during the COVID-19 pandemic response. The COVID-19 policy has been quickly and widely described by many commentators as representing an abdication of enforcement of federal environmental law. However, a close review of the policy suggests that regulated entities should think carefully before relaxing their compliance activities.
First, businesses must understand that the policy does not apply across the board. By its terms, the COVID-19 policy does not apply to: (a) criminal violations or conditions of probation in criminal sentences; (b) activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments; (c) imports or (d) accidental releases.
Regarding accidental releases, the COVID-19 policy expressly provides that it does not relieve any entity from the responsibility to prevent, respond to or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste and other pollutants as required by federal law. The policy states that it should not be read “as a willingness to exercise enforcement discretion in the wake of such a release.”
Second, even where the COVID-19 policy does apply, the intended, discretionary relaxation of enforcement is expressly described as being conditional. In order for a regulated entity to avail itself of the protections potentially afforded by the COVID-19 policy, it must be able demonstrate, through documentation, that:
- It has made “every effort to comply” with its environmental compliance obligations. The concept of “every effort” is not defined (other than as noted below), and therefore a regulated entity may be told, after having made a presentation of its “every effort,” that EPA does not agree that every effort was in fact made.
Note: Arguably, the meaning of “every effort” is informed by other provisions in the policy, including the provisions (discussed below) regarding reasonable practicability, responsible action and best efforts. That is, a business should consider supporting its “every effort” case with information demonstrating that compliance was not “reasonably practicable,” that it acted “responsibly,” and that it used “best efforts” (these terms, too, are undefined).
- Compliance was not reasonably practicable, yet the entity acted responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19.
- COVID-19 was the cause of the noncompliance (the specific nature and dates of which must be identified), and the decisions and actions taken in response represented best efforts to comply and to come into compliance at the earliest opportunity.
- The entity in fact returned to compliance as soon as possible.
Third, the COVID-19 policy does not restrict either (i) enforcement of environmental laws and regulations by the states and localities (including in the context of delegated programs under the cooperative federalism construct) or (ii) the rights of private parties to pursue private rights of action or citizens’ suits where such avenues are available.
Finally, the COVID-19 policy stresses that EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and protects the public and the environment, and that entities should contact the appropriate implementing authority (EPA region, authorized state, etc.) if facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment. More specifically, the policy states that if a facility suffers from failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases, the facility should notify the implementing authority (e.g., EPA regional office or authorized state agency) as quickly as possible.
This Alert summarizes key components of the COVID-19 policy and touches on some considerations (such as citizen suit exposure) that fall outside the policy’s text. But businesses should review the entire policy in detail, as it covers topics and considerations beyond the scope of this Alert.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Seth v.d.H. Cooley, any of the attorneys in our Environmental Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are in regular contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.