On March 26, 2020, the U.S. Environmental Protection Agency (EPA) announced it is temporarily exercising enforcement discretion for certain noncompliance activities during the COVID-19 pandemic. The policy, which is retroactively effective beginning on March 13, 2020, also authorizes implementing agencies (states/tribes) to exercise such discretion, recognizing the effect the pandemic may have on both government and regulated entities. For example, travel restrictions may prevent sample collection, analysis, and/or report submission. The policy states that, “In general, the 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 and the entity provides supporting documentation to the EPA upon request.” The memorandum does, however, state that “EPA expects operators of such systems to continue normal operations and maintenance as well as required sampling to ensure the safety of our drinking water supplies.” Recognizing possible workforce interruptions, the memorandum prioritizes drinking water regulations; its highest priority is microbial pathogen monitoring. Additional priorities include nitrate/nitrite and Lead and Copper Rule monitoring, followed by contaminants for which the system has been in noncompliance. A copy of the memorandum is available HERE.
Not surprisingly, on April 1, 2020, the Natural Resources Defense Council (NRDC) and a coalition of approximately 20 environmental, climate justice, and public interest groups petitioned EPA for more stringent disclosure about the policies outlined in the memo. Gina McCarthy, past EPA Administrator and now President of NRDC, is quoted as saying, “No one has ever seen anything like this. This is a complete pass for every industry.” McCarthy indicated that the policy is especially harmful for communities in close proximity to pollution emitting facilities. In the petition, they ask EPA to publish within 7 days a final enforceable rule to ensure “at a minimum, the public receives prompt notice of any facility’s failure to conduct required monitoring or reporting in reliance on the March 26 policy.”