The Environmental Protection Agency (“EPA”) issued a guidance document on March 26, 2020, regarding the agency’s legal enforcement of environmental legal obligations during the COVID-19 pandemic. According to the guidance document, EPA will be relaxing enforcement of noncompliance with environmental statutes during the COVID-19 pandemic provided that the noncompliance is a result of the pandemic. The policy will apply retroactively from March 13, 2020. There is currently no set end date, but EPA intended to post a notification on its website at least seven days before terminating the policy.
General Policy
EPA notes that this policy has been issued due to potential worker shortages, as well as travel and social distancing restrictions that are a result of the COVID-19 pandemic. The agency acknowledges that those circumstances may affect the ability of facilities and laboratories “to carry out certain activities required by […] federal environmental permits, regulations, and statutes.” Specifically, EPA recognized that entities may have a hard time with reporting obligations, meeting milestones outlined in settlements and consent decrees, and meeting enforceable limitations on air emissions, water discharges, and hazardous waste management.
Before turning to the specifics of enforcement discretion, EPA provides that all enforcement discretion will be conditioned on an entity following a set of guidelines. First, entities should take every effort to comply with their environmental compliance obligations. However, if compliance is not reasonably practical, EPA says that entities should act responsibly to minimize the effects and duration of noncompliance and return to compliance as soon as possible. EPA also stresses the need for record keeping, and states that noncomplying facilities should document the specific nature and dates of noncompliance, how the COVID-19 pandemic was the cause of noncompliance, and the decisions and actions taken that lead to noncompliance. Without that documentation, it will be difficult for EPA to identify the COVID-19 as the cause of the noncompliance and as a result will be less likely to waive legal enforcement.
Specifics
After stating the general conditions of the enforcement guidance, EPA goes into further detail. In the category of compliance monitoring and reporting, the agency includes such activities as integrity testing, sampling, laboratory analysis, training, and certification. If a regulated entity is unable to perform these activities as a result of the pandemic, they should use existing procedures to report noncompliance. If there is no procedure in place, EPA asks the entities to maintain information internally and expect to make it available to EPA upon request. According to this guidance document, EPA is not planning to ask entities to “catch-up” with missed monitoring or reporting “if the underlying requirement applies to intervals of less than three months.” However, monitoring or reports that are required on a bi-annual or annual basis, EPA expects entities to take reasonable measures to resume compliance activities as soon as possible once this guidance policy has ended.
For reporting obligations and milestones that are set out in EPA administrative settlement agreements that entities will be unable to comply with as a result of the COVID-19 pandemic, EPA states that entities should utilize the notice procedures provided in the settlement agreement. For consent decrees entered into by EPA and the United States Department of Justice (“DOJ”), EPA will coordinate with DOJ and co-plaintiffs to reach an agreement on enforcement of noncompliance. However, consent decrees are court orders that remain under court jurisdiction and are therefore subject to any authority exercised by the court. Any party subject to a consent decree that will come into noncompliance due to COVID-19 should use the notification procedures provided in the decree.
Although EPA is forgoing enforcement of certain noncompliant activities during the COVID-19 pandemic, the agency still expects all regulated entities to continue to operate in a way that is safe and does not harm the public or environment. If a facility is impacted by the pandemic in a way that may create a serious risk or imminent threat to public health or to the environment, EPA instructs that the appropriate implementing authority should be immediately contacted. Similarly, if a facility experiences some kind of equipment failure that may result in air emissions, water discharges, or land disposal that would exceed the enforceable limit, EPA asks that the facility contact the implementing authority as quickly as possible.
Other things of note in the guidance document include EPA’s acknowledgement that online training sessions should not be affected by social distancing requirements. However, if a trained operator misses a training or certification due to social distancing, EPA recommends keeping the operator in place because their prior experience and training is valuable. EPA will also waive any requirements for “wet” signatures, those signatures physically written with a pen, on documents submitted to the agency. Digital or electronic signatures will suffice.
Impacts to Agriculture: Animal Feeding Operations
Finally, this document specifically addresses animal feeding operations (“AFOs”) by providing that any AFO which ends up meeting the regulatory definition of concentrated animal feeding operation (“CAFO”) due to an inability to move animals off-site as a result of the COVID-19 pandemic will not be treated as a CAFO by EPA. Similarly, EPA will not treat small CAFOs as medium CAFOs or medium CAFOs as large CAFOs if the change is a result of the pandemic.
Impacts to Agriculture: NPDES Permittees
Building off of the general guidance policy, EPA issued an additional guidance policy several days later that specifically addresses National Pollutant Discharge Elimination System (“NPDES”) permittees. The NPDES program is a part of the Clean Water Act (“CWA”) which regulates the discharge of pollutants into the nation’s waters. NPDES permittees are affected by the temporary guidance policy issued by EPA, but the agency issued additional guidance to clarify what NPDES permittees should do if they are prevented from carrying out monitoring or reporting activities as a result of the COVID-19 pandemic.
The policy encourages NPDES permittees to continue to engage in all monitoring and reporting activity possible. If a permittee is able to report, they should continue to do so, even if the data is missing or incomplete as a result of the pandemic. For missing data, EPA strongly recommends that permittees use a No Data Indicator code that was developed for the COVID-19 pandemic and is included in the policy document. The guidance policy also contains notes that EPA may be able to issue emergency or temporary waivers from electronic reporting for those permittees that may be unable to report electronically due to the pandemic.
To read EPA’s full guidance policy, click here.
To read EPA’s NPDES-specific guidance policy, click here.
For more National Agricultural Law Center resources on agriculture and COVID-19, click here.