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March 27, 2020 4:00 PM, EDT

EPA Temporarily Suspends Enforcement of Environmental Rules

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The Environmental Protection Agency has announced it is temporarily suspending enforcement of its environmental rules, saying it will “generally not seek stipulated or other penalties for noncompliance” during the COVID-19 outbreak.

The announcement, outlined in a March 26 memo from EPA’s assistant administrator for enforcement and compliance assurance to all governmental and private sector partners, said the temporary policy will apply retroactively beginning March 13.

“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,” EPA Administrator Andrew Wheeler said in a statement. “This 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.”

Andrew Wheeler

Wheeler

EPA’s temporary enforcement discretion policy applies to civil violations during the COVID-19 outbreak, the agency said. “The policy addresses different categories of noncompliance differently,” EPA said.

For example, EPA said it does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic, but does expect operators of public water systems to continue to ensure the safety of U.S. drinking water supplies.

The temporary enforcement policy does not apply to criminal violations or conditions of probation in criminal sentences.

“In screening cases to determine when to seek prosecutorial assistance from the Department of Justice, EPA will distinguish violations that facilities know are unavoidable as a result of COVID-19 restrictions from violations that are the result of an intentional disregard for the law,” the memo said.

EPA said that despite the temporary regulatory policy, entities should make every effort to comply with their environmental obligations.

If that’s not possible, facilities with environmental compliance obligations should “act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19, and identify the specific nature and dates of the noncompliance.”

In addition, facilities should 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.

EPA specifically does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification obligations in situations in which EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to EPA upon request.

After the policy is no longer in effect, EPA said it expects full compliance. In general, absent exigent circumstances, EPA does not plan to ask facilities to “catch up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months.

EPA said it will assess the continued need for and scope of its temporary policy on a regular basis and will update it if the agency determines modifications are necessary.

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