The Nickel Report

Regulated industry has been expressing significant concern about disruption as a result of the COVID-19 pandemic and seeking assurance from the US Environmental Protection Agency (EPA) that the extraordinary circumstances across the United States would be taken into account in the event of any unanticipated noncompliance. Yesterday, March 26, 2020, EPA’s (EPA) Office of Enforcement and Compliance Assurance (OECA) Assistant Administrator Susan Parker Bodine responded to these concerns with the issuance of a memorandum addressing the impact of the current global COVID-19 pandemic on EPA’s enforcement program. In it, OECA commits EPA to a “temporary policy” of exercising enforcement discretion for noncompliance “resulting from the COVID-19 pandemic,” provided that regulated entities follow the steps required in the policy.

The memorandum is perhaps most notable for its unprecedented nature: never before in our practices have we seen EPA issue such an interim nationwide enforcement policy. With the US having now surpassed all other countries in the number of COVID-19 cases, however, OECA appears to be keeping up with today’s similarly unprecedented challenges. At any rate, the memorandum represents a commendable recognition of the newfound challenges that regulated companies across the country are experiencing in keeping a full workforce on the job and able to perform regularly required environmental duties.

Beyond the groundbreaking nature of the memorandum itself, it is of paramount importance for regulated companies to read the memorandum closely to understand what it means—and, more importantly, does not mean—for environmental compliance. Evaluating the details is critical because the new temporary policy is not as broad as some headlines, and twitter feeds, may appear to suggest at first blush.

The temporary enforcement policy may offer some relief in limited certain circumstances.

OECA’s memorandum purports to provide some relief via temporary application of EPA’s enforcement discretion in limited circumstances. The memorandum addresses several specific scenarios and notes that in others, “EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether enforcement response is appropriate.” Generally speaking, this catch-all essentially tracks with how OECA typically assesses whether to initiate an enforcement action, i.e., considering the potential harm to human health and the environment against the mitigating or equitable circumstances in deciding how to prioritize EPA’s limited enforcement resources.

All relief under the memorandum is predicated on companies first making “every effort to comply with their environmental compliance obligations.” The default expectation under the memorandum, therefore, is that companies will continue to remain in full, timely compliance with all applicable requirements. However, where “compliance is not reasonably practicable,” companies may benefit from the exercise of EPA’s enforcement discretion if the company follows a series of steps:

• “Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19”;
• “Identify the specific nature and dates of the noncompliance”;
• “Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity”; and
• “Return to compliance as soon as possible.”

Critically, the final step the memorandum articulates is to contemporaneously document compliance with all of the above criteria. This emphasis on requiring documentation essentially heightens the recordkeeping and reporting obligations of regulated entities that may later need to seek EPA’s enforcement discretion due to circumstances related to COVID-19. In other words, under EPA’s policy, the exercise of EPA’s enforcement discretion for noncompliance associated with the pandemic, is conditioned upon companies contemporaneously documenting the basis and facts surrounding any noncompliance now (not later, for example, in six months or a year after EPA sends an information request or after an inspection).

As noted above, the memorandum addresses a number of specific scenarios and articulates EPA’s planned enforcement approach under the temporary policy, provided the criteria listed above are also met. For example, generators of hazardous waste that find themselves unable to transfer waste off-site during typically required timeframes under the Resource Conservation and Recovery Act (RCRA) will retain their generator status and not be deemed treatment, storage, and disposal facilities, provided they maintain proper labeling and storage practices. Similar allowances are made for Very Small Quantity and Small Quantity Generators of hazardous waste. Animal feeding operations likewise will not be treated as concentrated animal feeding operations (CAFOs) if they meet the CAFO definition only because they are unable to transfer animals off-site due solely to COVID-19 related disruptions.

OECA’s memorandum notes that “EPA has heightened expectations” for public water systems due to the importance of clean water for both drinking and handwashing during the COVID-19 pandemic. Although EPA expects continued monitoring and compliance with water quality standards, the temporary policy identifies a hierarchy of compliance monitoring “in anticipation of worker shortages and laboratory capacity problems.” Under the circumstances, EPA provides the guidance that public water systems should prioritize compliance with national Primary Drinking Water Regulations’ microbial pathogen requirements first, followed by nitrate/nitrite and Lead and Copper Rule monitoring, and meeting standards for contaminants for which a system has been noncompliant. EPA’s policy also acknowledges that, for designated critical infrastructure, a “more tailored short-term No Action Assurance” may be considered if EPA finds it to be in the public interest on a case-by-case basis.

The temporary policy recognizes the potential effects of the pandemic on regulated industries’ ability to conduct routine monitoring and reporting activities and notes that “EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations.” Again, this relief is contingent on EPA agreeing that the noncompliance was caused by COVID-19 circumstances and the facility providing supporting documentation demonstrating this to EPA on request.

EPA explains that reporting of noncompliance should be done through the provisions of existing permits, where applicable, but also cites some provisions of EPA’s self-audit policy to voluntarily report noncompliance (although the memorandum does not mention the formal audit requirements that typically limit the scope self-audit policy). This reference raises questions because it does not appear that EPA expects companies to report noncompliance under the self-audit policy when a permit or other existing reporting obligation does not otherwise apply. Nor does EPA state that companies that do report noncompliance under existing policies will necessarily be granted full relief from enforcement if they do not meet all the criteria in the existing policy but nonetheless identify COVID-19 circumstances as causing the noncompliance.

A few other highlights in the memorandum include OECA’s statement that it does not plan to require facilities that miss monitoring or reporting obligations for intervals of less than three months to “catch-up” after the temporary policy lifts (although annual or bi-annual monitoring and reporting would be expected to continue); an expectation that normal certification and training practices be kept up if practicable but placing a priority on keeping “experienced, trained operators on the job, even if a training or certification is missed”; and allowing digital or other electronic signatures and emailed submissions for enforcement purposes where necessary in place of a “wet” signatures and paper originals that would otherwise be required.

Finally, the memorandum also explains that EPA “generally” will not seek stipulated or other penalties for noncompliance with reporting obligations and other milestones under EPA administrative settlement agreements, provided that parties have a justifiable COVID-19 related circumstance for noncompliance and use the notice procedures in the agreements in anticipation of missing enforceable milestones. For consent decrees entered into with EPA and the US Department of Justice (DOJ), and approved by the courts, EPA plans to coordinate with DOJ to exercise enforcement discretion and “consult with any co-plaintiffs to seek agreement to this approach.”

OECA’s memorandum is not a get-out-of-jail (or out of penalties) free card.

The policy does not apply to criminal enforcement at all. Instead, the memorandum is explicitly limited to “the vast majority of people and businesses who are making good faith efforts to comply with their obligations in this difficult time.”

Other areas of environmental enforcement, including those related to pesticide imports and issues arising under Superfund and RCRA Corrective Action enforcement instruments (although the memorandum promises a forthcoming, separate communication on this topic), are likewise excluded from the policy. The memorandum provides no relief from duties to prevent, respond to and report accidental releases of oil, hazardous materials or other pollutants and states that the policy should not be read as a “willingness to exercise enforcement discretion in the wake of such a release.” Ongoing enforcement matters are also unaffected by the policy, and are continuing to move forward.

Second, the memorandum does not excuse noncompliance with federal environmental laws and requirements writ large. Although the memorandum articulates specific enforcement approaches it plans to take in a handful of narrow circumstances, the enforcement discretion it purports to offer in other situations is far less certain. Indeed, the situations where the memorandum explains that “EPA does not expect to seek penalties for violations” is predicated on companies providing certain documentation to the agency and EPA agreeing that COVID-19 was the reason for noncompliance.

Finally, OECA’s temporary policy does not affect the enforcement actions of other entities outside of EPA. It bears noting that, as an office within a federal agency, OECA lacks authority to articulate enforcement policy for other federal agencies or state or local regulatory authorities. Companies should evaluate the sources of their environmental compliance obligations and identify the oversight authority for each one, as well as stay abreast of rapidly evolving guidance from other relevant regulatory agencies that may affect their obligations.

EPA’s policy likewise does not bind citizens groups that can be expected to remain vigilant in identifying, and seeking to enforce, environmental noncompliance under federal citizen suit provisions. In fact, some environmental groups have already voiced strong objections to the policy, characterizing it as a “sweeping nationwide waiver of environmental laws.” Thus, in addition to continuing their own private enforcement efforts, it is possible that some citizens groups may even pursue legal action to attack OECA’s memorandum. Whether such a legal challenge could satisfy the threshold criteria for judicial review of administrative agency actions—namely, final agency action—remains to be determined and is outside the scope of this blog. Note, however, that if the memorandum is not binding, final agency action, application of the guidance in the memorandum would likely be committed to EPA’s sole discretion and the agency could depart from the guidance based upon the particular facts and circumstances of any specific enforcement matter.

Despite the challenges of operating during a pandemic, and the potential relief offered by OECA’s memorandum, companies must continue to make “every effort” to comply with applicable environmental regulatory requirements. OECA’s temporary policy of even limited enforcement discretion in the face of the current pandemic is, no doubt, a significant step in the right direction. Given the scope of the policy, and the limitations on the relief it may actually offer, however, regulated companies should not view the policy as a panacea for all compliance disruptions that may arise during the COVID-19 crisis. Rather, if you have concerns about being able maintain compliance with your federal environmental obligations, you should consult counsel to assist in determining whether OECA’s temporary policy may provide relief and to provide guidance on the appropriate steps to take to ensure that you will maximize the opportunity to avail yourself of EPA’s enforcement discretion.