U.S. Environmental Protection Agency

The EPA has announced that it will exercise enforcement discretion for certain types of noncompliance resulting from the COVID-19 pandemic retroactive to March 13.

The EPA asks that entities make every effort to comply with environmental obligations, but if compliance is not reasonably practicable, the entities should take the following steps:

  1. Act to minimize the effects and duration of any noncompliance;
  2. Identify the specific nature and dates of noncompliance;
  3. Identify how COVID-19 was related to the noncompliance, how this was handled by the regulated party, including the party’s best efforts to comply and steps taken to come into compliance;
  4. Return to compliance as soon as possible; and
  5. Document all of the above.

While the EPA is not requiring parties to notify the EPA of its intent to take advantage of this policy subject to the significant exceptions below, the documentation described above must be provided to the EPA, a state or a tribe upon request.  That said, the EPA’s policy does not give facilities a free pass – with respect to those situations that do not require a facility to disclose the issue, the EPA has stated that it “will consider the circumstances, including the COVID-19 pandemic, when determining whether enforcement response is appropriate.”  As a result, facilities should ensure that any incident of noncompliance meets the parameters of the EPA’s policy.  Minnesota companies also need to be aware that most facilities in Minnesota are directly regulated by the MPCA, which is requiring regulated entities to make a request for flexible treatment, as described below.

The EPA’s policy applies to routine compliance monitoring and reporting; settlement agreement and consent decree reporting obligations and milestones; facility operations (including failure of air emission control or wastewater or water treatment systems or other equipment; delays in timely transfer of hazardous waste generated at a facility; or change in concentrated animal feeding operation (CAFO) status).  Public water systems and critical infrastructure are also addressed.

If the noncompliance will cause an acute risk or imminent threat to human health or the environment, facilities should contact the implementing authority for the relevant program, which could be an EPA region, state, or tribe.  Similarly, if COVID-19 issues could cause the facility to exceed enforceable limitations on air emissions, water discharges, or land disposal, or other unauthorized releases, facilities are to contact the implementing authority as quickly as possible.  The responsibility to respond to accidental releases or spills is not changed by this policy.

The policy explicitly excludes criminal violations, conditions of probation in criminal sentences or activities under Superfund or Resource Conservation and Recovery Act (RCRA) Corrective Action enforcement instruments.  Imports are also expressly excluded from the policy.  The EPA also specifically notes that it expects to focus on ensuring compliance with requirements (such as the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)) with respect to  pesticide products that claim to address COVID-19 impacts.

The EPA will provide seven days’ notice of its intent to terminate this policy.

Authorized states, such as Minnesota, and tribes, are able to take a different approach.  Minnesota’s policy is discussed below – other states may have declined to provide regulatory flexibility at this time or developed their own policies.

Detailed information on the EPA’s policy is available here:  https://www.epa.gov/enforcement/enforcement-policy-guidance-publications

Minnesota Pollution Control Agency

The MPCA is responsible for enforcing most environmental laws and permit conditions applicable to facilities in the state (with the exception of those subject to tribal jurisdiction) pursuant to delegated authority.

The MPCA’s policy recognizes that some regulated entities may be impacted from a reduced workforce necessary to maintain normal operations at certain facilities.  While the MPCA reminds the regulated community that while permittees and operators are expected to meet all terms and conditions of their permits, the MPCA is accepting requests for regulatory flexibility for unavoidable noncompliance situations directly due to impacts from COVID-19.  Specifically, the MPCA intends to assist entities by providing alternative approaches to maintaining compliance, such as extending reporting deadlines, extensions of operator certifications and other forms of regulatory relief.

While the EPA’s policy does not require regulated entities to notify the EPA of intent to use the policy, the MPCA is requiring regulated parties to reach out.

Requests for regulatory flexibility should be sent to mpca.covid19regflex@state.mn.us and should include specific information similar to that sought by the EPA, including:

  1. The name of the entity requesting relief along with an applicable permit number;
  2. Identification of a contact individual and phone number;
  3. Identification of the specific statute, rule and/or permit condition at issue;
  4. A discussion of why relief is necessary, including actions the requesting party has taken before making the request, and how the need for relief is connected to the COVID-19 pandemic;
  5. Identification of specific measures that will be taken to mitigate or otherwise minimize any potential environmental impacts from the noncompliance, in bullet-point format; and
  6. Designation of the time period the request is intended to cover, as well as the rationale for that time period.

The regulated party is required to maintain all records relating to the noncompliance as well as any alternative compliance methods authorized.

The MPCA has indicated that it may, if warranted, grant sector-wide relief from some requirements in the future.

Detailed information on the MPCA’s policy is available here: https://www.pca.state.mn.us/covid-19/covid-19-and-regulatory-flexibility

UPDATE:  The Wisconsin Department of Natural Resources has announced a COVID-19 compliance policy similar to that in place in Minnesota for regulated entities operating in Wisconsin.  Details here:  https://dnr.wi.gov/emergency/COVID19Compliance.html