EPA Releases COVID-19 Enforcement Memo

(March 27, 2020) – In response to the ongoing COVID-19 pandemic, and in recognition of the concerns raised by NACWA members and many others concerning the worker shortages and compliance limitations it may cause, the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) on March 26 issued a temporary policy outlining how the Agency “intends to exercise its enforcement discretion with respect to certain compliance situations.”

The policy is retroactive, applying to certain noncompliance events beginning on March 13, 2020, and will continue until EPA provides notice of its termination.  Below is a summary of how EPA intends to address various activities relevant to NACWA’s members under the policy. 

Routine Monitoring and Sampling Requirements

While EPA expects “all regulated entities [to] continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment,” if compliance with certain requirements is not practicable due to COVID-19, the policy states that EPA will generally not seek penalties for violations. 

Specifically, EPA intends to excuse penalties for failure to comply with routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting requirements caused by COVID-19 if facilities including POTWs have acted responsibly, taken best steps to avoid noncompliance, and properly documented and, where applicable, reported noncompliance.  EPA likewise does not intend to require facilities to “catch up” on missed requirements if the interval for the requirement is less than three months. 

Importantly, however, the policy states that EPA has “heightened expectations” for public water systems due to the fact that “unsafe drinking water can lead to serious illnesses and access to clean water for drinking and handwashing is critical during the COVID-19 pandemic.”

EPA therefore expects public water systems to continue normal operations, maintenance, sampling, and compliance monitoring, with the highest priority being placed on monitoring required by the National Primary Drinking Water Regulations to protect against microbial pathogens, followed by nitrate/nitrite and Lead and Copper Rule monitoring and then monitoring for contaminants for which the system has been non-compliant.  EPA also expects laboratories to continue to provide timely analysis of samples and results.

EPA’s Office of Water will be launching a website with critical information for utilities, including information concerning assistance for facilities facing staffing and contractor challenges.

Discharge Limitations

With respect to operational failures that may result in exceedances of enforceable discharge limits, POTWs are to notify their regulatory authorities and include information on the pollutants discharged, a comparison between expected discharge and any applicable limit, and the expected duration and timing of the exceedance. For such failures, EPA will “consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.”  EPA intends to coordinate with states and tribes pursuant to their July 11, 2019 memorandum, Enhancing Effective Partnerships Between EPA and States in Civil Enforcement and Compliance Assurance Work.

No Action Assurances

For critical infrastructure facilities, which include wastewater treatment plants and collection systems, EPA will consider issuing tailored, short-term No Action Assurances on a case-by-case basis if the Agency determines it would be in the public interest.    

Consent Decrees and Settlement Agreements

For EPA administrative settlement agreement reporting obligations and milestones, the policy states that EPA will generally not seek stipulated penalties for noncompliance with routine compliance monitoring and sampling requirements caused by COVID-19. 

EPA likewise intends to coordinate with the U.S. Department of Justice to exercise enforcement discretion with regard to stipulated penalties for routine monitoring and sampling requirements in consent decrees and will consult with any co-plaintiffs to seek agreement on that approach.  However, the policy notes that courts retain jurisdiction over consent decrees and may exercise their own authority.  

For both settlement agreements and consent decrees, EPA encourages parties to “utilize notice procedures within the agreement, including force majeure, as applicable.”

Recordkeeping

If a submission requires the signature of a responsible official, EPA will be accepting digital or other electronic signatures.  EPA will also be accepting e-mailed submissions even if a paper original is typically required.

NACWA will continue to engage with EPA on how the Agency will work with the regulated community on concerns around COVID-19.  Members with questions on the EPA memo can contact Emily Remmel, NACWA’s Director of Regulatory Affairs, or Amanda Aspatore, NACWA’s Chief Legal Counsel.