US EPA: Covid-19 enforcement policy ‘not a license to pollute’Source: Chemical Watch
The US EPA has pushed back on criticism that its decision to ease enforcement against “routine” actions disrupted during the coronavirus Covid-19 pandemic is an invitation to violate environmental obligations.
Facilities in the US are expected to comply with their regulatory obligations where reasonably practicable, and return to compliance as soon as possible once the outbreak is over, the agency said on 30 March. The temporary enforcement discretion policy allows the agency to prioritise its resources, an agency spokesperson said. “We 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 American Chemistry Council said the EPA’s policy gives manufacturers needed “flexibility” during the pandemic to maintain production and meet “increased demand for vital chemical products such as sanitisers, disinfectants, and plastics”.
NGOs, however, remained critical of the agency’s action. The EPA is taking advantage of the Covid-19 pandemic “to push through something that in a normal moment would seem radical,” Michael Green with the Center for Environmental Health (CEH) said. If the agency isn’t carrying out routine enforcement, “what are the [EPA’s] enforcement officers going to do?” he asked.
“Of particular concern would be noncompliance with reporting requirements that apply if a chemical company becomes aware of adverse health effects of a chemical,” Mr Green said, referring to the TSCA section 8(e) mandate for businesses to immediately inform the EPA if they learn a substance presents a ‘substantial risk’.
That would “fall outside the scope of routine monitoring and reporting for purposes of this temporary policy”, an EPA spokesperson told Chemical Watch. TSCA section 8(e) requires “immediate reporting to the administrator of EPA.”
The enforcement discretion policy “discusses the importance of compliance, and encourages facilities to contact the EPA … where Covid-related impacts may cause acute risks or imminent threats”, the spokesperson added.
Not a ‘get out of jail card’
Most TSCA obligations are very likely to remain for chemical manufacturers and others subject to the statute, Erik Baptist, a partner with law firm Wiley, told Chemical Watch.
The EPA memo is focused on “routine reporting”, Mr Baptist said. “That’s important to keep in mind”.
Thomas Berger, a partner with Keller and Heckman, agreed. Even where TSCA might be impacted by the EPA’s policy, “don’t assume that Covid-19 is your get out of jail card”.
For example, Mr Berger said, a company could potentially invoke the EPA’s policy if it failed to self-identify by 27 May as a manufacturer subject to TSCA risk evaluation fees for the next 20 high-priority chemicals. But a company would still have to show that its compliance failure was caused by Covid-19, which may be difficult, he said.
Where companies do need to focus is on any obligations pursuant to consent orders, Mr Baptist said.
Consent orders may mandate the use of certain personal protective equipment (PPE) or require a company to engage in further testing of a substance.
Lynn Bergeson, owner of Bergeson & Campbell, said the terms and conditions of consent orders will continue to apply.
State enforcement is also not governed by the EPA’s Covid-19 enforcement policy.
For example, California’s EPA said its enforcement policy “remains intact” despite the federal enforcement memo. Entities that are unable to meet their requirements in the state due to Covid-19 “should contact the applicable CalEPA board or department or appropriate local partner before falling out of compliance,” it said.
In the end, for federal obligations like TSCA, “it’s still within the EPA’s discretion whether they will enforce, even if Covid-19 may have been a factor,” Mr Baptist said. “So don’t hang your hat on it unless absolutely necessary.”
What companies should do is read the EPA memo and “not interpretations of it”, added Ms Bergeson. They should “continue to make every effort to comply” with their obligations and the law.
This story was updated on 1 April to add comment from the EPA.