EPA Announces Enforcement Discretion Plan During Pandemic

The US EPA has announced a temporary enforcement discretion policy for petrochemicals producers, refiners and other industries, as they respond to the COVID-19 pandemic.

"EPA's temporary enforcement discretion policy applies to civil violations during the COVID-19 outbreak. This policy does not provide leniency for intentional criminal violations of law," EPA said in a press statement.

"This temporary policy is designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment," said EPA Administrator Andrew Wheeler.

Before it was announced, industry groups such as API had written to the agency to outline the areas of enforcement discretion that would help them maintain reliable operations without compromising health and safety (see article). But environmental groups also had written to the agency to say that no types of blanket waivers or discretion should be offered, but EPA should approach regulatory flexibility on a more case-by-case basis (see article).

EPA chose the broader style of waiver, and it back-dated it to March 13.

EPA created different categories of noncompliance, and it said it will enforce them differently. In other words, a reporting violation due to lack of lab personnel to test a water sample under a consent decree is different than an unauthorized discharge of chemicals into water that could harm the public. "These are very distinct situations that the EPA plans to manage differently," EPA said.

EPA said that companies that miss reporting deadlines will not have to "make up" for the deficiencies when the enforcement discretion is lifted, if the backlog is less than three months, but will be expected to return to regulated procedures. EPA will accept some gaps in semi-annual or annual reporting, if the party can document that staffing and resource problems during the pandemic were the cause.

Examples of when discretionary authority will be used include: emissions stack tests, pipeline and well production leak detection and repair, fenceline monitoring, and tank and piping inspections.

Also, permits will not require "wet" signatures, but can be submitted electronically.

As for actual emissions, EPA also said it will use discretion, including on facilities that are operating under consent decrees due to prior violations. "If a facility suffers from failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases, the facility should notify the implementing authority (EPA regional office or authorized state or tribe) as quickly as possible," it said. "The notification also should include information on the pollutants emitted, discharged, discarded, or released; the comparison between the expected emissions or discharges, disposal, or release and any applicable limitation(s); and the expected duration and timing of the exceedance(s) or releases."

In addition to the blanket discretion, EPA said for "essential critical infrastructure," it might provide further flexibility. Those facilities, as defined by the Cybersecurity and Infrastructure Security Agency, may receive "a more tailored short-term No Action Assurance, with conditions to protect the public, if the EPA determines it is in the public interest."

Reprinted from PointLogic News. For more natural gas news from IHS Markit, visit the PointLogic website.

Kevin Adler is an Editorial Director at IHS Markit.

Posted 08 April 2020

This article was published by S&P Global Commodity Insights and not by S&P Global Ratings, which is a separately managed division of S&P Global.