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May 07, 2020

What to Know About the EPA’s COVID-19 Enforcement Discretion Policy

A building of the EPA with the headline about the EPA's Discretion Policy COVID-19.In response to the COVID-19 pandemic, the EPA recently released its COVID-19 Enforcement Discretion Policy, which outlines temporary guidance on environmental legal obligations. This move comes to accommodate an increase in remote working as well as the travel and social distancing restrictions to slow the spread of COVID-19. For many organizations, this means many staff members and contractors may not be available to conduct audits while laboratories are struggling to provide time-sensitive analyses. Both of these factors put organizations at risk when it comes to meeting reporting obligations.

 

Of course, with any new policy – even if well intentioned – comes questions. How does this new policy affect my obligations? How long will this new policy be in place? As you continue to adjust to working among the constraints of this pandemic, these takeaways from the EPA’s new COVID-19 policy on environmental compliance will put you on the right track.

 

Takeaways of EPA COVID-19 Enforcement Discretion Policy

 

  1. This policy only refers to civil compliance requirements. Criminal violations are not protected under the new guidelines.
  2. Activities that are part of the Superfund and RCRA Corrective Action enforcement instruments are also not covered and will be addressed in another communication.
  3. The policy excludes imports. The EPA said it’s especially worried about pesticides that claim to address COVID-19 impacts and will focus on compliance to ensure public health.
  4. While organizations should do their best to comply with environmental compliance obligations, if that’s not feasible, they should act responsibly to minimize noncompliance effects.
  5. When noncompliance occurs, organizations should record the circumstances and dates, identify how COVID-19 caused the noncompliance, and document any decisions and actions taken in response. Organizations should strive to return to compliance as soon as possible.
  6. To report routine noncompliance, organizations should use existing procedures. However, if existing procedures aren’t applicable or practical, organizations should document this information and make it available up request from the EPA, an authorized state, or tribe.
  7. The EPA doesn’t anticipate assessing penalties for violating routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations when COVID-19 caused the noncompliance and the organization can supply the necessary documentation to the EPA when requested.
  8. Outside of extreme circumstances, the EPA doesn’t plan to ask organizations to catch up with missed monitoring or reporting for requirements of less than three months. For monitoring and reporting required on a bi-annual or annual basis, the EPA expects organizations to resume compliance activities as soon as possible. This includes conducting late monitoring or submitting late reports.
  9. Although the EPA expects organizations to run operations in a way that’s safe to the public and environment, organizations should contact the appropriate implementing authority if facility operations impacted by the COVID-19 pandemic affects operations in a way that could “create an acute risk or an imminent threat to human health or the environment.”
  10. The EPA has not publicly announced an end date for this new policy. However, the EPA will post a notification at least seven days before terminating this new policy on its Enforcement Policy, Guidance & Publications resource page.

 

Keep in mind, the above points are simply an overview, and the EPA’s policy may not address every potential civil violation. Moving forward, the EPA expects to provide additional enforcement guidance.

 

During this pandemic, our industry will have to adopt to the rapidly changing work environment, and that won’t come without its challenges. To learn more about how to navigate the evolving compliance landscape, join us along with EHS Daily Advisor and RegScan for a free webinar, “Keeping Up With Environmental Obligations and Regulatory Changes During the COVID-19 Pandemic,” Thursday, May 14, at 2 p.m. ET. Not only will you learn about the EPA’s new policies, but you’ll also discover strategies and tools companies are using to continue to meet environmental obligations as we continue with remote work, staggered shifts, and social distancing.

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