On March 26, 2020, the U.S. Environmental Protection Agency (“EPA”) issued a sweeping temporary enforcement and compliance policy in response to the COVID-19 pandemic. Recognizing “potential worker shortages” and “travel and social distancing restrictions” due to the pandemic, EPA has provided considerable leeway for operators and permittees for whom compliance is not “reasonably practicable.” While the policy effectively relaxes compliance obligations across the board, it is important to note that there are record-keeping requirements that must be observed. Thus, facilities that cannot reasonably comply with their obligations must document any action taken to minimize the effects and length of any noncompliance, the dates and nature of the compliance, and how COVID-19 was the cause of noncompliance and mitigating factors. They would also need to return to compliance as soon as possible.
The relaxation of compliance obligations includes routine monitoring, reporting and testing as well, and EPA indicated that it does not expect to seek penalties for violations of those requirements. Documentation, again, is critical as EPA must agree that COVID-19 was the cause of the noncompliance, and may seek supporting documentation from the non-compliant entity.
The policy also addresses parties’ obligations under administrative settlement agreements, and advises that parties should notify the agency in accordance with the provisions of those agreements, including force majeure provisions. Consent decrees will be addressed differently, since they are still subject to the jurisdiction of the courts, and require coordination with the Department of Justice with respect to non-compliance and enforcement discretion.
Of particular interest to hazardous waste generators, EPA’s policy provides that if waste cannot be transferred off-site within the RCRA timeframes, then a generator may still be able to maintain its generator status by continuing to properly label and store the waste, and taking the steps outlined above with respect to minimizing the effects and length of noncompliance and maintaining the documentation required by EPA’s policy. Similarly, Very Small Quantity Generators and Small Quantity Generators would be able to maintain their classifications, even if the amount of waste stored exceeds the applicable thresholds, due to interruptions resulting from COVID-19.
The policy is currently in place for an indeterminate amount of time. It is important to bear in mind that while the policy allows for significant enforcement discretion and relaxation of compliance obligations, certain steps must still be taken to ensure a facility’s operations and actions fall within the conditions in the policy. If your business is impacted by COVID-19 and you have questions about how the policy applies, please contact Parker McCay’s Environmental Attorneys.
The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.