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The EPA’s COVID-19 Enforcement Policy—A Reasonable Compromise in Extraordinary Times

Smart companies are planning for scenarios under which they might not be able to comply with environmental laws because of COVID-19. The noncompliance might be trivial—failing to keep up certifications because recertification classes have been postponed. Or the noncompliance might be important—major air pollution control systems could fail because of a scarcity of reactor reagents. And unlike a natural disaster that is geographically limited, the COVID-19 epidemic could affect environmental compliance in every state. Companies—especially those in essential sectors—cannot blindly hope for the best. Nor should they face a Hobson’s choice between environmental compliance and maintaining critical production in a reeling economy. The EPA’s recent COVID-19 statement of enforcement policy helps the regulated community prepare to deal with potential noncompliance.

The COVID-19 policy is a statement of enforcement policy

The EPA’s COVID-19 policy is a statement of enforcement policy under which the agency describes in advance how it intends to exercise its enforcement discretion. The unusually broad scope of the policy is commensurate with the scope of the epidemic. But the EPA has for decades issued statements of policy that signal in advance how it intends to exercise its enforcement discretion whether to bring and how to conduct an enforcement action. The EPA’s 1974 mobile source tampering policy, its 1984 civil penalty policy, its 1995 audit policy, and its 2019 federal-state partnerships policy all describe in advance how the EPA intends to exercise its enforcement discretion.

The COVID-19 policy is not a “no action” assurance

The EPA’s COVID-19 policy is not a “no action” assurance under which the agency declares that it will not take enforcement action against specific violations. The typical formulation of a “no action” assurance is that “EPA will exercise its discretion not to pursue enforcement” against a specifically-identified set of violations. While the agency could have exercised its enforcement discretion in response to COVID-19 under its 1984 and 1995 “no action” assurance policies, it has not done so here.

For now, the EPA’s decision to issue a statement of enforcement policy and not to issue a blanket “no action” assurance is a reasonable compromise. The statement of enforcement policy gives the regulated community a directional sense of how the EPA will most likely act. But it does not take the next step of assuring the regulated community that no enforcement will be pursued.

How should smart companies understand the COVID-19 enforcement policy?

The EPA’s COVID-19 policy includes six main concepts for civil enforcement that work together to provide helpful guidance to the regulated community.

  1. General conditions. Section I(A) sets out general conditions that must be met before the EPA will exercise its enforcement discretion. The COVID-19 policy is not a license for noncompliance—a failure to meet these conditions could disqualify a company from the policy. Our Six Things to Consider article provides more information on how to approach these general conditions.
  2. Routine monitoring and reporting. Section I(B) addresses potential noncompliance with routine monitoring and reporting requirements. The EPA understands that workforce disruptions might result in monitoring and reporting violations. If the regulated party can show that COVID-19 caused the noncompliance, the EPA “does not expect to seek civil penalties.” While not as strong as a “no action” assurance, this language does two things. First, it should give the regulated community strong comfort that noncompliance with their myriad monitoring and reporting requirements will not be a priority for EPA enforcement as long as the operator follows the general and specific conditions of the COVID-19 policy. Second—and possibly more importantly—this language clears the field for the EPA to spend its time thinking more carefully about how to respond to more important noncompliance, as described next.
  3. Imminent threats and failures of pollution controls. Section I(D) sets out the EPA’s response to noncompliance that causes acute risks or imminent threats and noncompliance arising from a failure of pollution control systems. In these situations, the EPA signals only that it will “consider the circumstances when determining whether an enforcement response is appropriate.” This more ambiguous statement of policy reflects the importance of noncompliance that threatens public health or arises from the inoperability of pollution controls. In these instances, the regulated community will have a higher burden of demonstrating the unavoidability of the noncompliance and how the public interest in ongoing operations outweighs the impacts of noncompliance. There will need to be a greater degree of careful engagement with the EPA for these more impactful violations, while monitoring and reporting noncompliance would likely be more appropriate for disclosure through normal reporting mechanisms.  Having signaled that monitoring and reporting violations are of less relative importance, EPA enforcement has freed up its resources to focus more carefully on how to exercise its enforcement resources on more impactful noncompliance.
  4. Future “no action” assurances for critical infrastructure. Section I(F) signals the EPA’s willingness to issue tailored “no action” assurances for facilities in essential critical infrastructure. As a matter of policy, the use of “no action” assurances are disfavored and will only be issued in compelling circumstances. When faced with the choice between environmental noncompliance and shutting down essential critical infrastructure, the EPA would be wise to issue “no action” assurances with appropriate conditions and limitations. And having articulated its general approach to monitoring and reporting violations and more important violations at nonessential facilities, the EPA has left itself the time and space to think most carefully about taking extraordinary action to support critical infrastructure. Entities that are in an essential critical infrastructure sector should think carefully about how to request and justify a “no action” assurance.
  5. Administrative and judicial settlements. In Section I(C), the EPA describes how parties to administrative settlements or federal judicial consent decrees should manage their compliance obligations. The EPA advises that these parties should follow the procedures in the settlements to obtain relief from compliance requirements, including making force majeure claims.
  6. Public water systems. In Section I(E), the EPA states that it expects public water systems to maintain compliance with the Safe Drinking Water Act. Nevertheless, the EPA signals that it will consider the circumstances when determining whether any enforcement response is appropriate at these systems.

In addition to these six concepts for civil enforcement, the COVID-19 policy states that it is inapplicable to criminal violations of environmental laws and responses to accidental releases of oil, hazardous substances, hazardous chemicals, or hazardous wastes.

The EPA’s COVID-19 enforcement policy is an unprecedented but reasonable response to an unprecedented public health crisis. Smart companies should understand the general and specific conditions of the policy in detail as a part of their COVID-19 planning process.

Patrick Traylor is a partner in Vinson & Elkin’s Environment and Natural Resources practice and was most recently the Deputy Assistant Administrator for the EPA’s Office of Enforcement and Compliance Assurance in Washington, D.C., where he helped oversee the EPA’s enforcement response during natural disasters.

Please visit our Coronavirus: Preparation & Response series for additional resources we hope will be helpful.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.