Companies encountering civil violations during the COVID-19 outbreak should not expect penalties for noncompliance, according to new temporary guidance the U.S. Environmental Protection Agency (EPA) has released.
The agency is suspending its enforcement policies for civil violations indefinitely, citing lack of access to key staff, laboratories and facilities that work to analyze samples due to current social distancing measures and travel restrictions.
Andrew Wheeler, EPA administrator, addressed the changes: "EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements. This temporary policy is designed to provide enforcement discretion under the current, extraordinary conditions while ensuring facility operations continue to protect human health and the environment."
Under the policy which was retroactively enacted for March 13, 2020, the agency will "not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic but does expect operators of public water systems to continue to ensure the safety of our drinking water supplies."
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.
The new guidance does not apply to the production, manufacturing and distributing of pesticides as well as the import and export of associated products. "The agency expects to focus on ensuring compliance with requirements applicable to these products to ensure protection of public health," it stated.
The EPA still expects compliance with regulatory requirements "where reasonably practicable," but maintains that entities should return to compliance measures "as quickly as possible."
The agency noted: "These consequences may affect reporting obligations and milestones set forth in settlements and consent decrees. Finally, these consequences may affect the ability of an operation to meet enforceable limitations on air emissions and water discharges, requirements for the management of hazardous waste, or requirements to ensure and provide safe drinking water."
Activities under Superfund and RCRA Corrective Action enforcement are not included in the temporary guidance and will be addressed in a separate statement.
Opponents of the measures spoke out against the sweeping suspension of pollution policies as a response to the pandemic.
Thomas Oppel, executive vice president, American Sustainable Business Council (ASBC), told the media: “This EPA decision exploits a public health crisis to further advance a dangerous political agenda that is stripping away the very environmental protections that science suggests are needed to combat climate change which may have a role in generating future pandemics.“
He said the EPA has taken an "unprecedented step back" from protecting the country against pollution without providing any evidence that the current crisis should render such a significant decision.
Wisconsin Second District Representative Mark Pocan tweeted: "Outrageous. Suspending all environmental regulations indefinitely? This has nothing to do with coronavirus. This has everything to do with protecting Big Business."
The timeline and scope of the policy will be evaluated on a "regular basis," and the EPA also will determine if any modifications to the guidance. A notification will be posted on the agency's website 7 days before termination.
Policy guidance and enforcement information regarding the COVID-19 outbreak is available on the agency's website.