U.S. Environmental Protection Agency (EPA) has implemented a temporary policy with the understanding that the COVID-19 pandemic may impact facilities. The consequences of the pandemic may constrain entities from:
- Sampling, analyzing and providing results required by federal environmental permits, regulations, and statutes
- Reporting or certification obligations in settlements and consent decrees
- Operations to meet enforceable limitation on air emissions and water discharge
- Operations to meet requirements for the management of hazardous waste
- Operations to meet requirements to ensure and provide safe drinking water
- Perform routine compliance monitoring
- Performing integrity testing
Per EPA, entities should make every effort to comply with their environmental compliance obligations, but if that is not reasonable, facilities should:
- Minimize effects and duration of noncompliance
- Identify the specific nature and dates of the noncompliance
- 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
- Return to compliance as soon as possible
- Document the information, action, or condition specified above
This policy does not apply to:
- Any criminal violations or conditions of probation in criminal sentences
- Superfund and RCRA Corrective Action enforcement instruments
This policy will be applied retroactively beginning March 13, 2020, and EPA will make modifications to the policy if the scope changes and modifications are needed. After this policy is no longer in effect, the EPA expects full compliance going forward.
Routine compliance monitoring and reporting by regulated entities
If entities are not able to comply with existing procedures for routine compliance monitoring and reporting due to COVID-19, they need to maintain this information internally and make it available to the EPA or an authorized state or tribe upon request. It is expected that there will not be penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations if EPA agrees that COVID-19 was the cause of the noncompliance. EPA, in general, will not require facilities to complete missing monitoring or reporting if the monitoring intervals are less than three (3) months. For bi-annual and annual monitoring and reporting, the EPA expects facilities to resume compliance as soon as possible, including conducting late monitoring or submitting late reports.
Settlement agreement and consent decree reporting obligations and milestones
EPA directs facilities to utilize the notice procedures set forth in agreement or consent decree including notifications of force majeure, as applicable. For settlement agreements, EPA intends to treat routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and associated reporting or certification obligations in the same way as describe above and will not have other penalties for noncompliance. For consent decrees entered into with the EPA and the U.S. Department of Justice (DOJ), EPA will coordinate with the DOJ and any co-plaintiffs to seek an agreement for the routine compliance obligation.
The EPA expects facilities to manage and operate facilities safely to protect the public and the environment. If facilities impacted by the COVID-19 pandemic creates an acute rise or an imminent threat to human health or the environment, failure of air emission control or wastewater or waste treatment systems or other facility equipment, or generate hazardous waste and is unable to transfer the waste offsite within the time periods, the appropriate implementing authority (EPA regional office, state/local agency, or tribe) is to be contacted.
Public water systems regulated under the Safe Drinking Water Act
The EPA expects operators of public water systems to continue normal operations and maintenance as well as sampling and lab analysis to ensure the safety of our drinking water supplies. The EPA is working closely with federal partners, states, and other organizations to make sure there are enough personnel and resources available to assist facilities.
Where EPA deems it, they may consider a short-term No Action Assurance; with conditions to protect the public if a facility is essential critical infrastructure, as deemed by the Cybersecurity and Infrastructure Security Agency.
Please see the EPA guidance for additional details. If you have any questions, please contact your local Trinity office at (800) 229-6655.