Adopting a new temporary policy that gives it more “enforcement discretion,” the Environmental Protection Agency (EPA) said March 26 it does not expect to seek penalties for civil violations of the agency’s rules that result from the COVID-19 pandemic.
The policy adopted Thursday addresses concerns that regulated facilities are facing potential worker shortages, travel restrictions, and social distancing restrictions, factors that could heavily affect compliance with EPA requirements, ranging from monitoring and reporting to exceeding air emission limits.
The EPA said that while it will still expect regulated facilities to comply with regulatory requirements “where reasonably practicable,” if consequences of the pandemic result in noncompliance, these facilities must work to return to compliance “as quickly as possible.” To be eligible for the enforcement discretion, however, facilities must also document decisions they make to prevent or mitigate noncompliance, and they must also demonstrate how the noncompliance was caused by the COVID-19 pandemic.
The new policy replaces the agency’s conventional enforcement policy, and is retroactive to March 13. As Assistant EPA Administrator for Enforcement and Compliance Assurance Susan Parker Bodine wrote in a letter to all governmental and private sector stakeholders, the EPA cannot project when the policy will terminate, noting the agency will “assess the continued need for and scope” of the policy on a “regular basis,” and update it as necessary.
Of significant note is that enforcement discretion applies only to the EPA in its federal capacity. The agency underscored that authorized states or tribes “may take a different approach under their own authorities.” Also notable is that the temporary policy does not apply to any criminal violations or conditions of probation in criminal sentences. It also does not apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments, and it does not apply to imports.
What It Means for Power Entities
Recognizing that the COVID-19 pandemic’s biggest impact will be on staffing, the EPA provides general guidelines on what regulated entities who discover potential violations should do. First, it said, they should “promptly disclose, expeditiously correct, and take steps to prevent recurrence of potential violations.” Violation disclosures can be submitted via the EPA’s automated online “eDisclosure” system.
The policy also sets out to describe what entities facing specific, “very distinct,” situations should do. Facilities, including power plants, should continue to operate in a manner that is “safe” and protects the public and the environment, but if a facility finds its operations may “create an acute risk or an imminent threat to human health or the environment,” the agency urges contact with the facility’s EPA regional office.
Generators should also contact their EPA regional office if a facility suffers a “failure of air emission control or wastewater or waste treatment systems, or other facility equipment,” and that results in more-than-allowed air emissions, discharges to water, or land disposal releases.
Of specific interest to the power sector is that the policy specifically carves out special treatment of facilities considered “essential critical infrastructure,” a category that covers nearly all generation, transmission, and distribution sector operations as outlined by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency last week. Under this category, the EPA said it “may consider a more tailored short-term No Action Assurance, with conditions to protect the public, if the EPA determines it is in the pubic interest.” It added, however, that “such determinations are made by the OECA Assistant Administrator on a case-by-case basis.”
Other Noncompliance Categories
Routine Compliance Monitoring and Reporting. The consequences of the pandemic may constrain the ability of regulated entities to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification, the EPA noted. Entities should use existing procedures to report noncompliance with these routine activities—for example, as they apply to permits, rules, or statutes.
“In general, the EPA 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 where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request,” it said.
Settlement Agreement and Consent Decree Reporting Obligations and Milestones. Parties that miss enforceable milestones outlined in administrative settlement agreements as they relate to reporting obligations should use the notice of procedures in the agreements, such as a notification of a force majeure. For consent decrees entered into with the EPA and the Department of Justice (DOJ), the EPA said it would coordinate with the DOJ and co-plaintiffs to seek agreement on enforcement discretion.