COVID-19: U.S. Environmental Protection Agency Enforcement Discretion Policy

COVID-19: U.S. Environmental Protection Agency Enforcement Discretion Policy

INSIGHTi

COVID-19: U.S. Environmental Protection
Agency Enforcement Discretion Policy
Updated August 7, 2020
On June 29, 2020, the U.S. Environmental Protection Agency (EPA) announced that it would terminate its
temporary policy, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance
Program,” on August 31, 2020. EPA issued the policy on March 26, 2020, outlining how it would exercise
its enforcement discretion if a facility owner or operator cannot comply with certain requirements of
federal environmental laws because of impacts related to the COVID-19 pandemic. The policy,
retroactive to March 13, 2020, is tailored to circumstances of the pandemic that may affect staffing,
physical access for monitoring and sampling, laboratory analysis, and other resources needed to fulfill
routine compliance obligations.
EPA also issued other related COVID-19 policies and guidance that cover pesticide imports, field work at
cleanup sites under Superfund and other federal programs, a nationwide fuel waiver for summer gasoline,
and emergency generator operations in Puerto Rico.
Scope of EPA Policy
The EPA March 26 policy outlines several criteria and procedures for a facility owner or operator to
demonstrate that COVID-19 impacts prevented compliance with routine monitoring or reporting
requirements under federal statute, regulation, or permit. The policy similarly applies to routine
compliance obligations specified in federal consent decrees or settlements.
The policy provides separate instructions for notification if (1) facility operations impacted by COVID-19
may present an acute risk or an imminent threat to human health or the environment or (2) a facility may
exceed enforceable limitations on air emissions, water discharges, land disposal, or other unauthorized
releases. The policy does not broadly waive federal requirements to control pollution and wastes and
indicates that EPA would determine the appropriate enforcement response for exceedances.
The policy includes additional guidance for the continued operation of public water systems and other
critical infrastructure during the pandemic. On March 31, 2020, EPA issued supplemental guidance for
reporting wastewater discharges under Clean Water Act permits.
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The policy does not waive criminal liability under federal environmental laws for knowing and willful
violations that could have been avoided or emergency notification requirements under federal laws for
spills, leaks, or other accidental releases into the environment.
EPA has also issued responses to Frequently Asked Questions about the intent of its March 26 policy.
The temporary policy is similar in principle to federal enforcement discretion in other unusual situations
that are beyond the control of a facility owner or operator, such as natural disasters or emergencies.
Beginning in 1984, the EPA general policy on civil penalties also similarly allows for consideration of the
control that a person had over the events that led to a violation. EPA has issued additional enforcement
policies over time.
Related Issues
Reactions to the EPA March 26 policy have been mixed among Members of Congress, states,
stakeholders, and regulated entities. Some have commended EPA for taking a pragmatic approach to civil
enforcement. Others have expressed concern about accountability to verify whether instances of non-
compliance during the pandemic could have been avoided, potential risks if exceedances of standards or
limitations go undetected while routine monitoring and reporting are suspended, and public disclosure of
instances of non-compliance.
On May 13, 2020, nine states filed a lawsuit in federal district court challenging the temporary
enforcement policy as unlawful and exceeding EPA’s authority by “effectively waiv[ing] enforcement of
noncompliance.” According to court filings, the states intend to voluntarily dismiss the case if EPA
terminates the enforcement policy by August 31, 2020. The same district court granted summary
judgment to EPA in a separate lawsuit filed by environmental organizations to force EPA to respond to
their petition requesting an emergency rule requiring any entity to “immediately” notify EPA and state
authorities of non-compliance during the pandemic and promptly publish such notifications. The court
ruled that the environmental organizations lacked standing to sue because they failed to show that they
were injured by EPA’s purported delay in responding to the petition.
On April 2, 2020, EPA issued letters to several Members of Congress in response to various concerns
about its March 26 policy. EPA emphasized that it would exercise discretion to not seek civil penalties
only for routine monitoring and reporting requirements and that the agency would make these decisions
on a case-by-case basis after the pandemic is over to verify the reason for non-compliance. EPA noted
limitations on enforcement resources to make facility-specific determinations during the pandemic given
the nationwide impact of COVID-19. EPA “cc’ed” all other Members.
EPA Administrator Andrew Wheeler also issued a statement that EPA “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.”
State and Tribal Enforcement Discretion
The EPA March 26 policy acknowledges that states and tribes may take different approaches to
enforcement discretion under their own laws and indicates that EPA would consider constraints during the
COVID-19 pandemic in its oversight of delegated state and tribal programs. Most federal environmental
laws authorize EPA to delegate the issuance and enforcement of permits and other regulatory
requirements to a state or tribe that has (1) developed or adopted requirements under its own laws that are
at least as stringent as federal requirements and (2) demonstrated the capability and resources to enforce
those requirements. (Most federal environmental laws treat U.S. territories as states for purposes of
delegation.)

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Delegated states and tribes may exercise enforcement discretion under their own laws similar to EPA
under federal law. EPA oversees the use of delegated authority to ensure that a state or tribe is enforcing
requirements that are at least comparable to federal law. However, EPA’s decision not to enforce a federal
requirement generally does not preclude a state from enforcing its own analogous requirement.
Compliance flexibility in delegated jurisdictions during the COVID-19 pandemic therefore may largely
depend on state or tribal enforcement discretion policies.
For a broader discussion of EPA enforcement discretion and state and tribal delegation, see CRS Report
RL34384, Federal Pollution Control Laws: How Are They Enforced?, by Robert Esworthy.

Author Information

Robert Esworthy
David M. Bearden
Specialist in Environmental Policy
Specialist in Environmental Policy

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