This blog is Part 2 of Walden’s summary of the EPA’s COVID-19 Enforcement and Compliance Assurance Program. Part 1 provided a general overview of EPA’s plan for handling environmental noncompliance issues that private and public sectors might be facing during the COVID-19 pandemic. We will now present additional details on how EPA intends to handle various types of civil violations.
General Conditions. Regulated entities should make any efforts to comply
with their environmental compliance obligations. If compliance is not
achievable due COVID-19 impact, facilities should minimize the effects of the
noncompliance, identify and document all specific nature(s), date(s) and how
the COVID-19 caused the noncompliance and any decisions and actions taken in
Compliance monitoring and reporting. EPA
does not intend to issue penalties to facilities that will be not able to
perform routine monitoring, testing, sampling, laboratory analysis, training,
reporting or certifications, and will report to EPA such noncompliance(s)
following procedure set forth in their permits, regulation or statutes. If
reporting is not feasible, records shall be maintained and make them available
upon request. When policy will be no longer effective, the EPA is not planning
to require facilities to “catch-up” with missed monitoring or reporting due in
a 3-month timeline period, but will ask to resume compliance as soon as
possible (including bi-annual or annual reporting). EPA will accept digital or
other electronic signatures and approved reporting instead of paper submission.
agreement and consent decrees reporting obligations and milestones. EPA recommends parties to use notice procedures set
forth in the agreement to notify missing milestones set forth in the agreement.
Notification shall include steps to minimize the effect of noncompliance and
all other information as per the General Conditions above. Regarding consent
decrees entered into with the EPA and the U.S. Department of Justice (DOJ), EPA
will coordinate with DOJ to exercise enforcement discretion and will also
consult with co-plaintiffs to seek agreement to this approach.
Operations. Facilities that, due to
COVID-19, may create an acute risk or an imminent threat to human health or
environment, should immediately contact EPA or appropriate implementing
authorities, that will coordinate to take appropriate actions to minimize or
prevent the imminent threat. If a facility experiences a failure of an air
emission control or wastewater or waste treatment systems or other equipment
that may result in exceedances of limitations on emissions to air or discharges
to water, or land disposal, or other unauthorized releases, it should notify
the EPA or implementing authority as quickly as possible. If a facility is
unable to transfer off-site the waste generated, EPA will not change the waste
generator status of the facility (either Very Small, Small or Large Quantity
Generator) if such facility will continue to properly label and store the
waste, and take the steps as per the General Conditions above
Water Systems Regulated Under the Safe and Drinking Water Act. The EPA expects that such facilities to be still
operational since their activities are considered of heightened responsibility,
and, whenever enforceable (States will still play a lead role on drinking
water), EPA will consider the monitoring against microbial pathogens, nitrite/nitrate,
lead and copper to be of highest priorities.
Infrastructure. For these facilities,
the EPA may consider a more tailored short-term No Action Assurance, with
conditions to protect the public, if the EPA determines it is in the public
Walden is continuously seeking updates on enforcement policies and any other notifications or communications from Federal, State and Local regulatory agencies that might be a result of the COVID-19 pandemic in terms of maintaining compliance with all applicable environmental, health and safety regulations.
If you think your facility might be affected by this EPA policy or if you have any doubts about its applicability, please contact Walden Environmental Engineering at 516-624-7200 for a free consultation.