In an unprecedented move, today (March 26, 2020) EPA issued a memorandum to its governmental and private sector partners about its new temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. The memo states the EPA will exercise its enforcement discretion for noncompliance covered by temporary policy and resulting from the COVID-19 pandemic if regulated entities take the steps applicable to their situations, as set forth in the temporary 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. This policy applies broadly across various industries. The policy states that companies should try to minimize “the effects and duration of any noncompliance” with environmental laws and should also keep records of their own noncompliance, along with identifying how COVID-19 was a factor.

It is important to note, however, that enforcement in certain sectors is unaffected by the policy, such as public water systems. EPA states, “Public water systems have a heightened responsibility to protect public health because 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 further states the change to the enforcement discretion policy “does not provide leniency for intentional criminal violations,” and doesn’t apply to Superfund and other hazardous and solid waste management.

The policy is retroactive to March 13, 2020.