Changes to Environmental Regulations Affecting Retailers

Under the policy, the EPA will not seek enforcement for violations of routine compliance monitoring, sampling, integrity testing, laboratory analysis, training and reporting or certification obligations if it is determined that COVID-19 was the cause of noncompliance. The policy does not apply to activities under Superfund and RCRA Corrective Action. Imports of products and goods, as well as accidental release reporting are also not included in the EPA’s policy. Public water systems regulated under the Safe Drinking Water Act are expected to continue normal operations and maintenance.
 
State environmental regulatory agencies have their own response to the COVID-19 pandemic. Some states have issued statements that apply enforcement discretion on a case-by-case scenario while others are carrying out business as usual. Colorado, Florida, and about 9 other states have indicated that enforcement will carry on and no flexibility is expected. Maine, Minnesota, North Carolina, South Carolina and Utah are examples of states that will consider compliance discretion on a case-by-case scenario. These states all require documentation of noncompliance to determine if discretion will be granted. Some states, including California and Vermont, are providing extensions to hazardous waste storage time limits, specifically a 30-day extension of the 180-day/90-day storage limits for small and large generators. Maryland and Louisiana are examples of states providing grace periods for the renewal of licenses, permits, registrations and more. For a full summary of state changes to environmental regulations due to COVID-19, visit the RCC’s tracking table.
 
The EPA and states have made it clear that these policies are not an invitation to non-compliance. Retailers should still make every effort to comply with environmental regulations, as always. Discretion is not a pass to pollute or to cause harm to public health and the environment. Enforcement discretion is temporary, and violations and enforcement still may exist. States can still pursue enforcement even if the EPA does not, and the EPA can pursue enforcement even if the state does not. These policies also do not restrict the rights of citizen and advocacy groups under many environmental regulations to bring a citizen suit, or to publicize non-compliance. 
 
If compliance is not attainable due to the COVID-19 pandemic, it is extremely important for retailers to document the situation. Regulated entities should identify exactly what is causing noncompliance, the dates, and the actions taken in order to best comply with compliance obligations. Certain states like California, Oregon and South Carolina have created guidance to help retailers document noncompliance and also provide tips to help reduce the chances of becoming out of compliance.