On March 26, 2020, the U.S. Environmental Protection Agency (EPA) issued a memorandum announcing that, during the COVID-19 pandemic, it would exercise enforcement discretion if regulated entities violated certain environmental obligations due to the pandemic.

The press cast this temporary policy in dramatic headlines, such as The Hill’s article, “EPA suspends enforcement of environmental laws amid coronavirus.” The coverage was consistent with the broader narrative of the Trump administration’s ongoing work to limit the reach of certain environmental regulations, and the progressive weakening of EPA’s enforcement efforts.

The temporary policy is less dramatic than the initial headlines suggested. The policy contains an important qualification, which provides that authorized states and tribes may differ from EPA on their approach to COVID-19-related enforcement issues. The Wisconsin Department of Natural Resources (DNR) and several Wisconsin tribes exercise delegated authority to implement key environmental statutes, for example the Clean Water Act and the Clean Air Act.

Vanessa D. Wishart com vwishart staffordlaw Vanessa D. Wishart, U.W. 2011, is a partner with Stafford Rosenbaum in Madison, where she works on issues relating to water and wastewater permitting and regulation.

org agelatt midwestadvocates Andrea Gelatt, Yale 2008, is a staff attorney with Midwest Environmental Advocates, Madison, where she works on issues related to water quality, open government, and energy.

Thus, any EPA statement must be read together with their responses. The goal of this post is to put EPA’s temporary policy in context and describe DNR’s response to COVID-19.

EPA’s Temporary COVID-19 Policy

In the days after it released its temporary policy, EPA clarified in a news release that it had not created a “license to pollute.”

Susan Bodine, EPA assistant administrator for enforcement and compliance, explained that “if you do have violations of a permit, you’re still obligated to meet your permit limits; you’re supposed to do everything possible,” according to ABC News on March 27, 2020. “And after the fact the agency will take that all into consideration, but there isn’t a promise of no penalties in those kinds of situations,” Bodine said.

Indeed, the memorandum announcing the policy provides that all ongoing enforcement matters, both civil and criminal, will continue.

However, it also explains that EPA will not take enforcement actions to address many permit violations: “[EPA does not] expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance.”

While a permittee is still required to report such a violation under existing procedures, if reporting is not “reasonably practicable” due to COVID-19, the entity can simply maintain the information and must provide it to EPA only if the agency asks. As discussed below, allowing entities to delay or fail to comply with reporting and monitoring provisions may allow some pollution to go undetected, and lessens, if only temporarily, the transparency mandated under environmental statutes.

If a permittee exceeds its air or water pollution limits, it should still report the violation to EPA or to the implementing state or tribe. During this time, EPA plans to focus resources on situations that may create an “acute risk or imminent threat to public health or the environment,” suggesting that other violations may not be penalized.

Exemptions and Criminal Violations

The temporary policy does not apply to all environmental laws, and does not apply to criminal violations. It does not apply to activities under the Superfund or Resource Conservation and Recovery Act enforcement instruments. Those activities are now addressed under separate guidance in an April 10, 2020, memorandum.

In addition, the policy does not apply to the requirements to prevent or respond to accidental releases of pollutants like oil and hazardous chemicals.

Finally, the policy does not apply to “imports” and, particularly, imports regulated under the Federal Insecticide, Fungicide, and Rodenticide Act.

Provisions Related to Public Water Systems

Unlike other regulated entities, regardless of COVID-19, public water systems are expected to continue required sampling.

However, if those systems experience worker shortages, EPA suggests that monitoring for bacterial pathogens should take highest priority. Lower priorities include nitrite/nitrate, lead, and copper contamination, followed by contaminants for which the system has a record of noncompliance. EPA will “consider the circumstances” when considering enforcement for violations of the Safe Drinking Water Act.

When Does the Temporary Policy End and What Happens Next?

EPA’s temporary policy applies retroactively to March 13, 2020, and continues indefinitely. However, it is already subject to legal challenge.

Public Citizen, NRDC, and many other groups petitioned EPA for more transparency. They requested that EPA promulgate an emergency rule requiring, for example, that entities seeking clemency under EPA’s temporary policy disclose in writing and that EPA publish how they are violating their monitoring or reporting requirements and how the violations are related to COVID-19. The petitioners have now filed suit, demanding a response to their petition.

Additionally, the Center for Biological Diversity sent EPA a notice of intent to sue to invalidate the policy based on anticipated impacts to endangered and threatened species.

Even before the policy is terminated, the temporary policy will be superseded and clarified by other more targeted policies and rulemakings.

For example, on April 22, 2020, EPA published an interim final rule under the Clean Air Act, allowing certain fossil fuel-fired boilers and stationary combustion turbines serving electricity generators to delay testing required by the Clean Air Act without the typical reporting sanctions if the delay is due to COVID-19. The interim rule has an expiration date (unlike the temporary policy) and requires the entity to notify EPA of the delay and to document the COVID-19-based reason(s) why the test could not be timely performed.

EPA now has a website with COVID-19-related resources and policies. We can expect that it will continue to clarify its temporary policy with more targeted policies, further guidance, and temporary rules as the COVID-19 pandemic unfolds.

What This Means for Wisconsin

EPA’s temporary policy memo noted that tribes and states may take a different approach than EPA with respect to enforcement discretion.

In Wisconsin, DNR has taken a more targeted approach to enforcement discretion.

Environmental Compliance

On April 3, 2020, DNR released an Environmental Compliance Process roadmap to help guide the notification and enforcement process during the pandemic. While DNR emphasizes that “all entities should make every effort to comply with their environmental compliance obligations,” this roadmap prioritizes imminent threats, and provides some flexibility for alternative compliance options on a case-by-case basis.

In accordance with the roadmap, permittees that foresee COVID-19 posing a potential compliance issue should:

  • contact a DNR emergency line if there is “an imminent or actual danger or threat to human health or the environment;” or

  • in the event of a non-emergency, contact DNR to request pre-approval for compliance assistance via email to the permittee’s point of contact or, if no point of contact has been established, via an online form.

Where safe compliance alternatives are approved in advance by DNR, regulated entities must document implementation of these alternatives.

The takeaway is that permittees should communicate early and often with DNR and maintain comprehensive records.

Operator Certification

On April 17, 2020, Governor Evers signed Emergency Order #30, which suspended specific sections of Wis. Admin. Code chapter NR 114 relating to waterworks, water systems, septage, and wastewater operators. In particular, the requirements for certification every three years and continuing education credits were suspended for those persons with active certifications as of March 12, 2020, through the duration of the Safer at Home Order.

Other Provisions

With respect to wastewater permits, DNR will hold public hearings for Wisconsin Pollutant Discharge Elimination System (WPDES) permits via remote connections, and will record such hearings. DNR is continuing to accept written comments for WPDES and many other permitting programs, providing a safe and practicable alternative for permit tracking during the pandemic.

While a detailed analysis is beyond the scope of this article, it is worth noting that DNR and the Department of Agriculture, Trade, and Consumer Protection (DATCP) have issued protocols regarding the emergency disposal of milk. The disposal of milk is regulated like the land application or storage of process wastewater and must be conducted in accordance with agency rules. On March 30, 2020, DNR and DATCP released a factsheet advising farmers of options for disposal. DNR issued a similar factsheet on April 10, 2020, targeted at dairy processing facilities. These factsheets outline options for storage or disposal during the pandemic.

Finally, DNR is hosting a number of webinars regarding environmental compliance during the pandemic, and posting recordings of those webinars on its website.

COVID-19 and the Environment – Many Questions Remain

Social distancing and the economic downturn resulting from the pandemic have temporarily improved air quality for a variety of reasons, but COVID-19-related improvements are not expected to last as economic activity resumes in the wake of the pandemic.

The main federal environmental statutes rely on self-monitoring and reporting to ensure that regulated entities are meeting their pollution limits. Allowing businesses and governments to disregard these reporting requirements could create a data gap that may allow pollution releases, intentional or inadvertent, to go undetected.

We may not know the impacts of COVID-19 on the environment until wardens, contractors, and other inspectors are able to return to their work – conducting tests, taking sampling, and entering businesses.

In addition, this public health crisis is also an economic crisis, where companies will find themselves stretched by COVID-19 impacts to their workers, customers, and supply chains. In stressed and potentially understaffed working environments, mistakes may happen.

Time will tell whether environmental regulators will exercise leniency based on the pandemic or whether environmental enforcement will continue or increase once EPA and DNR assess what has happened during this extraordinary period.