COVID-19 Legal Update: EPA's Enforcement Discretion Policy


Practice Areas

Sean M. Sullivan and Emily S. Sherlock
Robinson Bradshaw Publication
April 1, 2020

The U.S. Environmental Protection Agency recently released new guidance to assist the regulated community in responding to COVID-19. The guidance confirms that EPA will exercise fact-specific enforcement discretion regarding compliance issues that arise due to the outbreak and addresses a number of specific scenarios that may arise. A full copy of the policy, which is effective until withdrawn by EPA, can be found here

Note that the North Carolina Department of Environmental Quality and approved local programs (like local sewer authorities) are not bound by this policy and that NCDEQ has not yet released its own policy.

Accidental Releases During the Outbreak

The policy does not relieve facilities from any requirements regarding reporting or responding to accidental releases. It explicitly disclaims any plan by EPA to exercise enforcement discretion regarding accidental releases, regardless of the outbreak. We take this to mean that facilities should attempt to mitigate the potential for releases in advance of a shut-down scenario.

EPA's General Approach for Exercising Enforcement Discretion

Facility Operations

EPA and states will use the information described below to determine if an immediate response is warranted and to determine if follow-up enforcement actions are justified.

Routine Compliance, Monitoring and Reporting Tasks

In general, EPA does not intend to seek penalties for missed routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, or reporting and certification compliance events due to COVID-19.

Pesticidal Claims

EPA is particularly concerned about imports of products claiming to have antimicrobial effects on COVID-19. We suggest anyone who sells or distributes such products should confirm the product is appropriately registered under FIFRA.

EPA Administrative and Judicial Settlements

Many of these settlements contain milestones or interim deadlines with stipulated penalties for failure to comply.

Critical Infrastructure

EPA may be willing to consider one-off agreements with critical infrastructure facilities and provide short-term assurances of no enforcement action, but EPA will likely include conditions to protect public health.

Public Water Systems

While this is primarily directed towards government entities, there are a number of private companies providing water services – either as a utility or to employees.

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