EPA Relaxes Some Enforcement in Response to Virus (1)

The EPA offered temporary relief to facilities affected by the coronavirus pandemic, saying on Thursday it won’t seek penalties for certain missed obligations.

The new guidance acknowledges that some entities can’t perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification activities.

Regulated facilities must still comply with regulations “where reasonably practicable” and must return to compliance as quickly as possible, the Environmental Protection Agency said. Facilities must also document the decisions they have made to prevent or mitigate noncompliance and show how their noncompliance was linked to the pandemic.

Broadly, the EPA won’t ask facilities to catch up with missed monitoring or reporting, so long as the underlying requirement sets intervals of less than three months.

The EPA also said it will address different types of noncompliance differently. For example, the agency said it wouldn’t seek penalties for noncompliance with routine monitoring and reporting obligations resulting from the Covid-19 pandemic, but does expect public water system operators to keep ensuring the safety of drinking water supplies.

Superfund Excluded

The policy doesn’t apply to activities carried out under Superfund and Resource Conservation and Recovery Act corrective action enforcement instruments, which the EPA said it will address later.

The new policy applies retroactive to March 13. The EPA said it will continue to assess the continued need for and scope of the new guidance on a regular basis.

Joel Gross, who headed the Justice Department’s environmental enforcement section during the Clinton administration, called the policy a “very laudable,” common sense approach to an extraordinary situation.

“It’s EPA’s effort to tell the regulated community, ‘We get this, we’re all in this together. If you exercise common sense and good faith, you’ll be OK,’” said Gross, now a partner with Arnold & Porter Kaye Scholer LLP.

Gross also theorized that the EPA wants to leave many decisions up to facilities and states in tough cases, such as whether a facility that doesn’t have enough staff should stop operating.

But the policy isn’t a blanket assurance that no action needs to be taken, said Patrick Traylor, the former EPA deputy assistant administrator for enforcement and compliance assurance.

Companies with significant potential failures of pollution controls must coordinate closely with the EPA and state regulators, said Traylor, now a partner with Vinson & Elkins LLP.

The memo doesn’t specifically list Covid-19 as a force majeure event, noted Fredric Andes, a partner with Barnes & Thornburg LLP. Instead, it directs companies to “review force majeure provisions and see if they apply to your situation.”

A ‘Nationwide Waiver’?

Eric Schaeffer, the former director of EPA’s Office of Civil Enforcement under the Clinton and George W. Bush administrations, had grave misgivings about the new policy.

“It is not clear why refineries, chemical plants, and other facilities that continue to operate and keep their employees on the production line will no longer have the staff or time they need to comply with environmental laws,” Schaeffer, now executive director of the Environmental Integrity Project, said in a statement.

Cynthia Giles, who headed enforcement at the EPA under President Barack Obama, called the policy “essentially a nationwide waiver of environmental rules for the indefinite future. It tells companies across the country that they will not face enforcement even if they emit unlawful air and water pollution in violation of environmental laws, so long as they claim that those failures are in some way ‘caused’ by the virus pandemic.”

And Jean Su, director of the Center for Biological Diversity’s energy justice program, said that environmental safety and human health protections shouldn’t be compromised during the pandemic.

“It’s unconscionable that the Trump administration is giving polluters a pass but won’t push utilities to help ordinary people struggling to keep their lights and water on,” Su said.

Agency chief Andrew Wheeler said in a statement that the EPA “is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from Covid-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements.”

The temporary policy “is designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment,” Wheeler said.

—With assistance from Amena H. Saiyid.