COVID-19 implications for EPA's enforcement

As the COVID-19 pandemic continues to evolve, the Environmental Protection Agency (EPA) and numerous other state and local environmental enforcement agencies have acknowledged the negative effects that staffing challenges, travel limitations and social distancing will have on environmentally regulated companies.  Consequently, this pandemic may not only affect facility operations but also the availability of key staff and/or contractors who are relied upon to maintain the tasks of compliance.  The resulting effects may inhibit the ability of an operating entity to meet enforceable EPA requirements relating to air emissions, water discharges, proper management of hazardous waste, or requirements to ensure and provide safe drinking water to name just a few.

So what does this mean for businesses in the short-term? 

In general, the EPA does not expect to penalize violations of routine compliance obligations such as monitoring, integrity testing, sampling, laboratory analysis, training, reporting or certification requirements in situations where the EPA agrees that COVID-19 was directly related to the cause of the noncompliance.  In these situations, the operating entity will need to provide detailed supporting documentation to the EPA upon request.

Importantly, the EPA and other agencies are clearly stating that regulated entities are still obligated and should make every effort to comply with all applicable environmental compliance responsibilities set forth in a manner that is safe and that protects the public and the environment.  Furthermore, facilities should contact the appropriate regulatory authority (i.e. EPA region, authorized state agency, or tribe) if facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment.

In the event COVID-19 does directly impact normal business operations and results in a facility exceeding enforceable limitations on emissions to air, discharges to water, or land disposal, or other unauthorized releases, the facility should notify the regulating authority immediately. 

The written notification must summarize the following:

• The compliance activities directly impacted by COVID-19
• What specific statute/rule/permit condition the individual party is seeking flexibility on
• Measures to minimize/mitigate non-compliance impact
• The specific time period for non-compliant activities

Despite the current challenges and this recent announcement from the EPA there are still additional risks to consider.  For example, if a manufacturing facility were to be negligent and cause a public health risk during this time (i.e. toxic chemical spill), civil and tort lawsuits are a likely possibility.  

Marsh & McLennan Agency-Environmental Focus Moving Forward

As we all navigate these unprecedented times together, Marsh & McLennan Agency-Environmental (MMA-E) will continue to monitor this ever-changing situation on behalf of our clients.  We take very seriously the health & safety of our clients and our communities while working to maintain the level of service our clients have come to expect from us. 

Please feel free to reach out to our MMA-E Team with any questions or concerns, and stay healthy!