EPA Wants to Correct the Record on Temporary Enforcement Policy

On Thursday, April 2, 2020, the U.S. Environmental Protection Agency (EPA) sent a letter  to Members of Congress to "clarify misconceptions and misreporting" about the agency's temporary enforcement policy in the midst of the COVID-19 pandemic. The policy was created in response to inquiries from states and the regulated community. EPA rejects allegations as untrue that EPA “will cease all enforcement actions during the coronavirus pandemic” and that the temporary policy “absolves polluters of all responsibility”.

“EPA’s enforcement authority and responsibility remains active,” said EPA Administrator Andrew Wheeler. “This is not a nationwide waiver of environmental rules. We will continue to work with federal, state and tribal partners to ensure that facilities are meeting regulatory requirements, while taking appropriate steps to protect the health of our staff and the public.”

The policy says that EPA will not seek penalties for noncompliance with routine monitoring and reporting requirements, if, on a case-by-case basis, EPA agrees that such noncompliance was caused by the COVID-19 pandemic. Regulated parties must document the basis for any claim that the pandemic prevented them from conducting that routine monitoring and reporting and present it to EPA upon request.

EPA reaffirmed that the COVID-19 pandemic will NOT excuse exceedances of pollutant limitations in permits, regulations, and statutes. EPA expects regulated entities to comply with all obligations and if they do not, the policy says that EPA will consider the pandemic, on a case-by-case basis, when determining an appropriate response.

EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible, once the COVID-19 threat is over. Additionally, EPA expects operators of public water systems to continue normal operations and maintenance during this time, as well as required sampling, to ensure the safety of vital drinking water supplies.

The temporary policy will be lifted as soon as normal operations can resume, which may occur sooner in some locations than others.