In our previous blog post, we advised that companies with federal environmental obligations should review the applicability of U.S. EPA’s temporary enforcement policy, entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.”  In that document, U.S. EPA stated that it does not expect to seek civil penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, and reporting or certification obligations, if they occurred as a result of the COVID-19 pandemic.  Since releasing this temporary enforcement policy, U.S. EPA faced an onslaught of criticism on several fronts from those who believed that the agency was simply throwing up its hands and would no longer enforce environmental laws.  As a result, U.S. EPA has issued several press releases as well as a letter to all members of Congress to “correct the record” on the temporary enforcement policy.

The EPA’s Explanation

U.S. EPA has explained in these documents that it issued the temporary policy to answer questions and concerns that its employees were receiving concerning how the agency would deal with the COVID-19 pandemic and environmental obligations under federal law:

EPA has been inundated with questions from both state regulators and the regulated community about how to handle the current extraordinary situation where contractors are not available because they cannot travel, state and local governments are imposing stay at home orders, and the number of people who have contracted COVID-19 and are in quarantine is rising.  EPA developed the temporary policy to allow EPA to prioritize its resources to respond to acute risks and imminent threats, rather than making up front case-by-case determinations regarding routine monitoring and reporting.  The development of the policy was a group effort, involving multiple calls . . . with and drafts shared among EPA staff and managers, both career and political, at both headquarters and in the regions.

U.S. EPA has also explained that it will continue to enforce the nation’s environmental laws and “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.”  Ultimately, the agency felt that its time was better spent dealing with broader issues involving the COVID-19 pandemic and continued protection of human health and the environment instead of spending staff time responding to individual questions about routine monitoring and reporting requirements.  According to U.S. EPA, these issues were dealt with in the temporary enforcement policy.

The final point made by the agency was that it “strongly disagrees with those who argue that a more appropriate response to this public health crisis would be to force facilities to either shut down or to put people at risk by keeping all their workers at the facility at the same time, to continue routine monitoring and reporting in addition to maintaining the operation of critical infrastructure, including pollution control equipment.”

The EPA’s Report

Perhaps coincidentally, U.S. EPA’s comments regarding the temporary enforcement policy came two days after the U.S. EPA Office of Inspector General issued a report showing that the agency’s compliance monitoring activities, enforcement actions, and enforcement results “generally declined from fiscal years 2006 through 2018.”  More specifically, the Inspector General found that:

• the number of inspections that U.S. EPA conducted decreased by 33%,
• the numbers of enforcement actions initiated and concluded by U.S. EPA decreased by 52% and 51%, respectively,
• U.S. EPA concluded 58% fewer enforcement actions with injunctive relief, with the value of the injunctive relief in fiscal year 2018 ($3.9 billion) being the lowest value of injunctive relief between fiscal years 2007 and 2018,
• U.S. EPA concluded 53% fewer enforcement actions with penalties, with the lowest penalty total being in fiscal year 2018 ($69 million),
• the total number of supplemental environmental projects decreased by 48%, and
• the value of environmental benefit commitments to reduce, treat, or eliminate pollutants decreased by 64%.

The Bottom Line

The bottom line for businesses is that they should still maintain their commitments to meeting their environmental obligations.  Although enforcement has obviously decreased over the years, there are many reasons why businesses should continue meeting their obligations, including the health and safety of their own employees as well as the surrounding community and environment.  Additionally, even though federal enforcement has diminished, state governments as well as citizen environmental groups can also sue for enforcement; therefore, businesses can still face penalties and potential liability for noncompliance.  To the extent that they cannot meet their obligations due to the impact of COVID-19, that situation should be well documented so that if an inspector comes calling or another agency representative asks questions concerning the non-compliance, the business can have a well-documented reason that will put itself within U.S. EPA’s temporary enforcement policy.