The U.S. Environmental Protection Agency (USEPA) announced an unprecedented temporary enforcement discretion policy in late March, which addresses several different categories of noncompliance for civil violations caused by the COVID-19 pandemic. The memorandum entitled, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” details the requirements each regulated entity must meet to receive a reprieve of their federal monitoring and reporting requirements. However, this temporary policy does not apply to state-regulated areas of compliance. The USEPA policy will be retroactive from March 13, 2020, and it will be in effect until the USEPA provides notice online within seven days of its termination.
In general, the USEPA does not expect to assess penalties for violations of a wide range of “routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification” obligations if: (1) the regulated entity meets the criteria outlined in the policy and documents that COVID-19 was the cause of the noncompliance, and (2) EPA agrees with the entity’s determination.1 This process is self-determined with corresponding documentation of required actions; there is no federal form submittal or request process.
However, even with self-determined eligibility and proper documentation, the approval of coverage is not automatic under the policy. Firstly, the USEPA “expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment.” USEPA makes clear through the temporary policy that it “expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible” 2. Coverage under this policy is not guaranteed and will be made on a case by case determination per the established criteria.
Regulated entities must be proactive in their approach and meet the following conditions of the policy, at minimum, to receive potential enforcement discretion:
1. Minimize the duration of any noncompliance and its effects on the environment.
2. Identify the date(s) and classify the type of noncompliance.
3. Determine how COVID-19 caused the noncompliance and describe the response actions taken.
4. Return to compliance as soon as possible.
5. Document each of these actions.
EnviroScience’s Compliance Services team can aid a regulated entity to evaluate eligibility criteria set forth under the policy, gather the necessary documentation in support of circumstances of noncompliance, and assist with the preparation of the submission to USEPA.
For conditions specific to individual operators concerning the COVID-19 policy and corresponding states’ COVID-19 policies, visit the sites referenced at the end of this article.
State Compliance Regulations During the Pandemic
Note that in the event of noncompliance due to COVID-19, this policy only covers federally enforced environmental compliance situations by USEPA, not state-authorized ones. Currently, some state regulatory agencies have produced similar policies to ease the burden on regulated entities during this unprecedented time. Check with your state regulatory agency on their policies to ensure you understand the requirements of any applicable state or tribal COVID-19 related enforcement discretion policies.
Ohio Compliance Policy Changes and Information
The Ohio Environmental Protection Agency (Ohio EPA) has created measures for responding to situations of unavoidable noncompliance due to COVID-19. Ohio EPA established this website to explain how regulated parties can make enforcement discretion requests. Ohio EPA has created an email submission process to field enforcement discretion requests and assures they will timely respond.3
Ohio Policy information can be found at https://www.epa.state.oh.us/covid19 and https://epa.ohio.gov/dsw/covid19
The Ohio Water Enforcement Association has also established a COVID-19 response webpage to help keep Ohio’s wastewater operations running. They offer a list of volunteers for staffing and other resources.
Other State Regulations
For more information on various state responses to environmental compliance issues, visit:
Pennsylvania Department of Environmental Protection
Tennessee Department of Environment and Conservation
Virginia Department of Environmental Quality
West Virginia Department of Environmental Protection
1 https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf
2 https://www.epa.gov/newsreleases/epa-announces-enforcement-discretion-policy-covid-19-pandemic
3 http://www.babstcalland.com/news-article/epa-establishes-temporary-policy-for-excusing-covid-19-related-noncompliance/
Need More Information?
Contact us via the form below with questions or concerns about the federal or your state’s requirements during this time. EnviroScience compliance experts can provide clarification and help you navigate these policies.