On March 23, 2020, on behalf of its members and U.S. industry, the American Petroleum Institute (“API”) sent a letter to the EPA requesting a temporary waiver of non-essential compliance obligations, including recordkeeping, training or other non-safety critical requirements. The letter asked that Federal and State agencies consider using enforcement discretion to provide temporary relief, waivers or revised compliance timeframes when compliance activities become infeasible due to travel restrictions and COVID-19 stay home/shelter in place orders. 

Three days later, on March 26, 2020, Susan Parker Bodine, the assistant administrator for Enforcement and Compliance Assurance at EPA, issued an unprecedented temporary policy suspending enforcement of certain environmental requirements. The EPA recognized that operating limitations arising from the pandemic constrain the ability of facilities and laboratories to carry out certain activities required by federal environmental permits, regulations, and statutes. These same limitations also make it more difficult to meet requirements for the management of hazardous waste and insure compliance with enforceable limitations on air emissions and water discharges. The EPA advised it would temporarily exercise enforcement discretion, under specific circumstances, for identified issues of noncompliance resulting from the COVID-19 pandemic.

Under EPA’s temporary policy, which applies retroactively to March 13, EPA will not pursue enforcement or seek penalties for noncompliance with routine compliance monitoring, tank integrity testing, sampling, laboratory analysis, training, reporting and certification obligations if an entity can show that a violation is directly attributable to the pandemic. While entities are expected to “make every effort to comply”, if compliance is not feasible, entities must documentation the specific nature, dates and reason for non-compliance, provide such documentation to EPA upon request, and EPA must concur with the assessment for the policy to apply. The policy warns, however, that “states and tribes may take a different approach under their own authorities.”  

EPA has not identified an end date for its policy, but when it is no longer in effect, EPA expects full compliance going forward. With that said, EPA does not plan to ask facilities to ‘catch-up’ with missed monitoring or reporting” after the fact.  

While more than half of the states have independently adopted some form of enforcement discretion policy to help US industry navigate these unprecedented times, environmental groups and a subset of states have expressed significant opposition to EPA’s policy. Opponents are concerned that the policy provides an advanced blanket waiver of environmental obligations and allows regulated entities to postpone repairs and corrective action and hide non-compliance, leaving communities in the dark about facility compliance and putting communities at risk for increased exposure to toxic pollutants.

As an initial response to EPA’s policy, several environmental groups submitted a Petition for Emergency Rulemaking on April 1, 2020, requesting that EPA issue a rule to ensure the public receives prompt notice of “any facility’s failure to conduct required monitoring or reporting in reliance on the March 26 policy.” When the EPA failed to act on the petition, the environmental groups filed suit requesting a federal court to require EPA to respond to the petition. This case is pending.    

EPA did not ignore the petition. Rather, EPA attempted to set the record straight on April 2, 2020 and sent letters to all members of Congress advising that it will not “cease all enforcement actions during the coronavirus pandemic” and denying that the temporary policy “absolves polluters of all responsibility”. EPA Administrator Wheeler clarified that “EPA’s enforcement authority and responsibility remains active…this is not a nationwide waiver of environmental rules. We will continue to work with federal, state and tribal partners to ensure that facilities are meeting regulatory requirements, while taking appropriate steps to protect the health of our staff and the public.”  

On April 15, the Attorneys General of New York, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin took matters into their own hands and sent a letter to EPA strongly urging it to withdraw its enforcement policy. The letter states that they are “particularly concerned about the agency’s lack of consideration of the policy’s potential impact on public health, especially the health of low income and minority communities who are [at] greater risk of suffering adverse outcomes from COVID-19.” EPA did not respond, and on May 13, 2020 nine of the original 14 attorneys general (California, Illinois, Maryland, New York, Michigan, Minnesota, Oregon, Vermont and Virginia) filed a complaint in the United States District Court for the Southern District of New York, challenging what they call EPA’s “nonenforcement policy.”   

The complaint takes issue with what the states characterize as EPA’s broad, open-ended policy that allows regulated parties to self-determine when compliance is not practical because of COVID-19 rather than exercising enforcement discretion as authorized by law. The complaint lays out four challenges to EPA’s “nonenforcement policy”:

  1. The EPA policy, in practice and effect, is a blanket waiver of numerous regulatory requirements. Such a waiver exceeds the discretion and authority Congress extended to EPA through these laws. 
  2. The EPA policy is an abdication of EPA’s statutory responsibilities to implement the law and regulations. The environmental statutes mandate regulated entities conduct monitoring and reporting and EPA does not have authority to waive those requirements.
  3. The EPA policy is in effect a policy that is subject to notice and comment was promulgated without notice and comment as required by the Administrative Procedure Act.
  4. The EPA policy was issued without consideration of all relevant data and factors and the policy is applicable across the board to all industries and to virtually all monitoring and reporting requirements, assuming without evidence that the COVID-19 pandemic will prevent all industries from performing their monitoring and reporting obligations and is therefore arbitrary and capricious.

While we cannot predict when or how the court will rule on this complaint, companies should not minimize the importance of environmental compliance and assume that they will be protected from enforcement pursuant to EPA’s policy. Aside from Georgia, which adopted an enforcement discretion policy that mirrors EPA’s enforcement policy, states and tribes have adopted a range of strategies for handling industry compliance during the pandemic, and the recently filed state litigation clearly demonstrates that certain states outright reject EPA’s policy. While EPA may not take any enforcement action when a company reports an issue of noncompliance, these states expect full compliance and are unlikely to waive enforcement unless specifically authorized on a case-by-case basis by the state. Moreover, there is nothing in EPA’s policy, or any other state policy, that prevents a private party from seeking to enforce regulatory obligations under the citizen suit provisions set forth in the Resource Conservation and Recovery Act, Comprehensive Environmental Response, Compensation, and Liability Act (aka Superfund), Safe Drinking Water Act, Clean Water Act, Clean Air Act, Emergency Planning-And-Right-To Know Act, Surface Mining Control and Reclamation Act, or the Endangered Species Act. 

So where does that leave you? If your company is unable to comply with the applicable laws and permits as a result of COVID-19, we encourage you to fully comprehend the expectation of your state environmental agency regarding compliance activities. We also encourage you to consider the ramifications of requesting enforcement discretion in that certain agencies (e.g. the Department of Environment, Great Lakes, and Energy in Michigan) may publically disclose your request. And, lastly we encourage you to develop a compliance plan which includes documentation the time, date and reason for any transgressions from compliance and steps taken to return to compliance.