As all of us at the U.S. Environmental Protection Agency adjust to the evolving COVID-19 pandemic, we are first and foremost mindful of the health and safety of the public, as well as our staff, and those of Federal Agencies, State and Local Governments, Tribes, Regulated Entities, Contractors, and Nongovernmental Organizations. The agency must take these important considerations into account as we all continue our work to protect human health and the environment. Accordingly, we are announcing the following temporary policy regarding EPA enforcement of environmental legal obligations during this time.
The EPA will exercise the enforcement discretion specified below for noncompliance covered by this temporary policy and resulting from the COVID-19 pandemic, if regulated entities take the steps applicable to their situations, as set forth in this policy. For noncompliance that occurs during the period of time that this temporary policy is in effect, and that results from the COVID-19 pandemic, this policy will apply to such noncompliance in lieu of an otherwise applicable EPA enforcement response policy.
EPA is mindful of the health and safety of the public, as well as our staff, and those of Federal Agencies, State and Local Governments, Tribes, Regulated Entities, Contractors, and Non-governmental Organizations during the COVID-19 pandemic. The agency is taking these important considerations into account as we all continue our work to protect human health and the environment. Accordingly, EPA has issued a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic:
- COVID-19 Implications for EPAs Enforcement and Compliance Assurance Program – 03/26/2020
- Download US EPA Memo > (pdf)
This policy will apply retroactively beginning on March 13, 2020. Authorized states or tribes may take a different approach under their own authorities. The EPA will undertake to coordinate with other federal agencies in situations where the EPA shares jurisdiction over a regulated entity’s environmental compliance obligations.
The EPA will assess the continued need for and scope of this temporary policy on a regular basis and will update it if the EPA determines modifications are necessary. In order to provide fair and sufficient notice to the public, the EPA will post a notification here https://www.epa.gov/enforcement/enforcement-policyguidance-publications, at least seven days prior to terminating this temporary policy.
The EPA will apply this policy to actions or omissions that occur while this policy is in effect even after
the policy terminates.
At the EPA, we are cognizant of potential worker shortages due to the COVID-19 pandemic as well as the travel and social distancing restrictions imposed by both governments and corporations or recommended by the Centers for Disease Control and Prevention to limit the spread of COVID-19. The consequences of the pandemic may affect facility operations and the availability of key staff and contractors and the ability of laboratories to timely analyze samples and provide results. As a result, there may be constraints on the ability of a facility or laboratory to carry out certain activities required by our federal environmental permits, regulations, and statutes. These consequences may affect reporting obligations and milestones set forth in settlements and consent decrees. Finally, these consequences may affect the ability of an operation to meet enforceable limitations on air emissions and water discharges, requirements for the management of hazardous waste, or requirements to ensure and provide safe drinking water. These are very distinct situations that the EPA plans to manage differently,
as described below.
The enforcement discretion described in this temporary policy do not apply to any criminal violations or conditions of probation in criminal sentences. Appropriate consideration of potential criminal liability is discussed separately, below.
This policy does not apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments. Such matters will be addressed in a separate communication. This policy does not apply to imports. We also are especially concerned about pesticide products entering the United States, or produced, manufactured, distributed in the United States, that claim to address COVID-19 impacts. The agency expects to focus on ensuring compliance with requirements applicable to these products to ensure protection of public health. Information relating to FIFRA import requirements can be found below. This website will be updated to provide information on how to submit information via email, as may be necessary during the COVID-19 pandemic.
Finally, we realize that the general statements contained in this policy may not address every potential civil violation that may arise as a result of COVID-19. As such, the EPA may provide additional enforcement guidance applicable to specific programs on an ongoing basis and the EPA’s self-disclosure program remains available.
General Civil Enforcement Penalty Policies
These policies provide guidance on the calculation of civil penalties in enforcement cases.
- A Framework for Statute-Specific Approaches to Penalty Assessments: Implementing EPA Policy on Civil Penalties – 02/16/84
- EPA Policy on Civil Penalties – (2/16/84)
- Guidance on use of Penalty Policies in Administrative Litigation – (12/15/95)
- Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, Issuance of Compliance or Corrective Actions Orders, and the Revocation, Termination or Suspension of Permits – (2/25/98)
- Guidance on Determining a Violators Ability to Pay a Civil Penalty – (12/16/86)
- Guidance on Evaluating a Violator’s Ability to Pay a Civil Penalty in an Administrative Enforcement Action – (6/29/15)
- Financial Analysis Models Used to Calculate Economic Benefit and Ability to Pay
- Joint Collection of Penalties with State and Local Governments and Federally Recognized Indian Tribes – (03/11/05)
For a full overview of the memorandum on COVID-19 from the EPA, please click HERE