EPA Releases Enforcement Discretion Guidance in Response to COVID-19

By Sahana Rao and Jeffrey B. Gracer

These days, it seems as though COVID-19 is leaving no aspect of government untouched, and federal environmental regulation is no exception. The U.S. Environmental Protection Agency (EPA) issued a memorandum on Thursday, March 26th outlining “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” This temporary guidance explains how EPA plans to exercise enforcement discretion in response to certain forms of noncompliance resulting from the COVID-19 pandemic. The guidance applies retroactively from March 13th and will continue in effect (with periodic reassessment by EPA) until the agency terminates it.


The guidance explains how EPA intends to deal with COVID-19 related noncompliance  with regulatory standards for air emissions, water discharges, management of hazardous wastes or requirements to provide safe drinking water. The guidance does not apply to criminal violations, nor to investigation and remediation activities carried out under the Superfund program or the Resource Conservation & Recovery Act (RCRA).


Although it has been criticized as giving businesses a license to pollute during these difficult times, the guidance states that regulated entities should make every effort to comply with their environmental obligations; however, if compliance is not reasonably practicable due to circumstances caused by COVID-19, regulated entities must identify how COVID-19 caused the noncompliance, act responsibly to minimize its duration, return to compliance as soon as possible, and document efforts to do so. EPA cautions that where compliance is required pursuant to a consent decree, the U.S. Department of Justice and the courts will retain  authority to act on noncompliance.


Beyond these general guidelines, EPA is also relaxing certain regulatory thresholds. For example,  if COVID-19  prevents hazardous waste generators from transferring their waste off-site within 90 days, EPA will continue to treat them as hazardous waste generators instead of applying stricter standards for treatment, storage, and disposal facilities that would otherwise be triggered.


EPA’s guidance states that facilities should take the initiative to contact EPA (or the appropriate state or tribe for delegated programs) if:


  • Facility operations impacted by COVID-19 may create an acute risk or imminent threat to human health or the environment; or
  • A facility experiences a failure of air emission control or wastewater or water treatment systems or other equipment that may result in exceedances of enforceable limitations, land disposal, or other unauthorized releases.


EPA further notes that, although it will consider circumstances arising from COVID-19 when deciding if an enforcement measure is appropriate, it considers public water systems and drinking water to be of the highest priority. Accordingly, the agency has heightened expectations of public water systems to continue normal operations and sampling to maintain safe drinking water supplies, as compared to other regulated entities.


Although the enforcement guidance outlines how EPA intends to handle environmental noncompliance issues prompted by COVID-19 at the federal level, state environmental responses to COVID-19 could be more stringent, and are rapidly changing and evolving.  Accordingly, it will be important for businesses to communicate with federal and state regulators about the impact that COVID-19 is having on their ability to substantially comply with environmental requirements, in order to maintain the trust of regulators and come to a better understanding of what steps are reasonably necessary under these difficult circumstances.


SPR will continue to monitor both state and federal environmental agencies’ responses to COVID-19 as they develop.