“An Open License to Pollute”: The EPA Has Halted Enforcement Due to COVID-19

This is untrue. Here is the text of the memo in full.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 ASSISTANT ADMINISTRATOR FOR ENFORCEMENT AND COMPLIANCE ASSURANCE March 26, 2020 MEMORANDUM SUBJECT: COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program FROM: Susan Parker Bodine TO: All Governmental and Private Sector Partners 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 Non- governmental 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. APPLICABILITY 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-policy- guidance-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. SCOPE 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 here: https://www.epa.gov/compliance/importing-and-exporting-pesticides- and-devices. 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.1 ENFORCEMENT DISCRETION I. Civil Violations A. General conditions All enforcement discretion set forth in this temporary policy is conditioned on the following. 1. Entities should make every effort to comply with their environmental compliance obligations. 1 Regulated entities who voluntarily discover, promptly disclose, expeditiously correct, and take steps to prevent recurrence of potential violations may be eligible for a reduction or elimination of any civil penalties that otherwise might apply. Most violations can be disclosed and processed via the EPA’s automated online “eDisclosure” system (see https://www.epa.gov/compliance/epas-edisclosure). To learn more about the EPA’s violation disclosure policies, including conditions for eligibility, please review the EPA’s Audit Policy website at https://www.epa.gov/compliance/epas-audit- policy. Many states also offer incentives for self-policing; please check with the appropriate state agency for more information.

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