On March 26, 2020, the United States Environmental Protection Agency (EPA) announced it is temporarily relaxing enforcement of certain environmental legal obligations where noncompliance is due to or caused by the COVID-19 pandemic. More information about EPA’s temporary policy can be found here.
To take advantage of that policy, entities must, among other things, document the specific nature and dates of the noncompliance, how COVID-19 was the cause of the noncompliance and the actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity.
Rosemarie Kelley, director of EPA’s Office of Civil Enforcement, recently weighed in on what that documentation would look like for each facility. In an April 14, 2020 webinar hosted by the Environmental Law Institute on “Workplace Risk Management & Response to COVID-19,” Kelley emphasized that “it’s not possible for [EPA] to specify in advance” what documentation would be required, and would instead be site and scenario-specific. “For example, the nature of a facility’s operations -- how complex it is, how simple it is; the specific environmental requirement that’s affected; the extent of noncompliance; the decisions made to manage the noncompliance; what steps were taken to address the problem. All these kinds of things could be needed as documentation,” she said.
Kelley also made clear that EPA intends to strictly enforce the temporary policy’s notification requirements. Regulated entities should report “as quickly as possible” any COVID-19 disruptions which are going to cause an actual exceedance. Failure to do so would prohibit the facility from taking advantage of the temporary enforcement policy.
Taft attorneys are highly experienced in helping entities navigate EPA and other agency guidance in these types of scenarios. If your facility is trying to decide what documentation to collect during COVID-19, contact Kimberly DalSanto, or a member of Taft’s Environmental team.
Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.