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Enforcement

Frequent Questions About the Temporary COVID-19 Enforcement Policy

This webpage contains answers to some frequently asked questions (FAQs) about the March 26th Temporary COVID-19 Enforcement Policy. We will be adding to the webpage as more FAQs become available. So please continue to check this webpage for the latest version.

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General FAQs

Why did the EPA issue the Temporary COVID-19 Enforcement Policy?

The mission of the EPA is to protect human health and the environment, and during this time of unprecedented public health concerns, that mission is even more critical. The EPA has been inundated with questions from both state and tribal regulators and the regulated community about how to handle the current extraordinary situation where employees and contractors are not available because they cannot travel; state, tribal, and local governments are imposing stay at home orders; and, the number of people who have contracted COVID-19 and are in quarantine is rising. The EPA developed the Temporary COVID-19 Enforcement Policy (hereinafter, the “Temporary Policy” or the “Policy”) to allow the EPA to prioritize its resources to respond to acute risks and imminent threats, rather than making up front case-by-case determinations regarding routine monitoring and reporting. In addition, the EPA is continuing its compliance monitoring and case development work to ensure that facilities in violation promptly return to compliance. (Posted 4/7/2020)

Does the Temporary COVID-19 Enforcement Policy mean that facilities do not need to comply with their monitoring and reporting requirements?

No. Regulated entities are expected to make every effort to comply with all applicable requirements. The Temporary Policy states that the EPA will not seek penalties for noncompliance with routine monitoring and reporting requirements, if, on a case-by-case basis, the EPA agrees that such noncompliance was caused by the COVID-19 public health emergency. Regulated parties must document the basis for any claim that the COVID-19 public health emergency prevented them from conducting their routine monitoring and reporting and present it to the EPA upon request. (Posted 4/7/2020)

Does the Temporary COVID-19 Enforcement
Policy apply to monitoring and reporting activities requested by the EPA through a company or facility-specific statutory information request?

No, information requests are not “routine compliance monitoring and reporting.” If a recipient of an information request in unable to comply with the request due to the COVID-19 public health emergency, it should contact the EPA pursuant to the instructions in the request to discuss the need for an extension. (Posted 4/7/2020)

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Does the Temporary COVID-19 Enforcement Policy waive environmental requirements?

No. Regulated entities are expected to make every effort to comply with their environmental obligations. The Policy recognizes that in some instances, compliance may not be reasonably practicable due to the impacts of the COVID-19 public health emergency. Refer to the Temporary Policy, Section I.A for the complete description of what the EPA expects a regulated entity to do in that situation.

In plain and basic terms, entities are expected to act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19, and retain sufficient documentation that describes the noncompliance, how COVID-19 was the cause of the noncompliance, and actions taken in response to the noncompliance, including best efforts to comply and to return to full compliance. (Posted 4/7/2020)

Does the Temporary COVID-19 Enforcement Policy mean a facility should contact the appropriate EPA region, authorized state, local, or tribal government (e.g., appropriate implementing authority) anytime the facility is unable to comply with environmental requirements due to the COVID-19
public health emergency?

The Temporary Policy does not call for routine reporting to the EPA (although documentation is required). However, some states have established notification requirements. In addition, the Policy states that facilities should contact the appropriate EPA region, authorized state, tribe, or territory if:

  • Facility operations impacted by the COVID-19 public health emergency may create an acute risk or an imminent threat to human health or the environment, or
  • 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.

If a facility fails to contact a regulator in these circumstances, the offer in the Temporary Policy to consider COVID-19 circumstances when determining an appropriate enforcement response does not apply.

In most instances, facilities/entities should contact their State/Local/Tribal environmental department (or similar appropriate state or local agency) given that the majority of the states have the implementing authority for most environmental programs. Facilities/entities are strongly encouraged to consult with the EPA as well as the authorized State/Local/Tribal authority if there may be an acute risk or imminent threat to human health or the environment. In any case in which a facility contacts the EPA, the EPA will coordinate with the State/Local/Tribal environmental department. Any action the EPA may take will follow the July 11, 2019 memorandum on Enhancing Effective Partnerships Between EPA and States in Civil Enforcement and Compliance Assurance Work. (Posted 4/7/2020)

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What does the Temporary COVID-19 Enforcement Policy consider to be an “acute risk or imminent threat to human health and the environment”?

There is no one standard regarding what may be an acute risk or imminent threat that would apply across all the various programs that protect our air, water, and land. The Policy indicates that a regulated entity should contact the appropriate implementing agency if noncompliance “may” result in acute risk or imminent threat. Therefore, if the regulated entity is unsure if its noncompliance would rise to this level, it should err on the side of contacting the appropriate implementing agency. (Posted 4/7/2020)

Does the Temporary COVID-19 Enforcement Policy authorize exceedances of pollutant limits?

No. The Temporary Policy does not say that the COVID-19 public health emergency will excuse exceedances of pollutant limitations in permits, regulations, and statutes. The EPA expects regulated entities to comply with all obligations and if they do not, the Policy says that the EPA will consider the COVID-19 public health emergency, on a case-by-case basis, when determining an appropriate response. Further, in cases that may involve acute risks or imminent threats, or failure of pollution control or other equipment that may result in exceedances, the EPA’s willingness to provide even that consideration is conditioned on the facility contacting the appropriate EPA region, or authorized state, tribe or territory as quickly as possible and with all relevant information, so that regulators can work with that facility to mitigate or eliminate such risks or threats. (Posted 4/7/2020)

How long will the Temporary COVID-19 Enforcement Policy be in place?

The measures in the Policy are temporary only, and apply only during the COVID-19 public health emergency. The Policy does not apply to violations occurring prior to the March 13, 2020 effective date. The EPA will assess the continued need for and scope of the Temporary Policy on a regular basis and will update the Policy if the EPA determines modifications are necessary. In order to provide fair and sufficient notice to the public, the EPA will post a notification on the Enforcement Policy, Guidance & Publications webpage, at least seven days prior to terminating this Temporary Policy.  The EPA may terminate the applicability of the Policy sooner in some locations than others, depending on the recommendations of state and local public health departments. (Posted 4/7/2020)

Circumstances have changed since the EPA issued the Temporary COVID-19 Enforcement Policy.  For example, federal social distancing guidelines expired on April 30th, new federal guidelines for reopening the country have been developed, and all 50 states have relaxed or partially relaxed COVID-19 social distancing restrictions. How do these actions impact the status of the Temporary COVID-19 Enforcement Policy?

The Temporary Policy states that the “EPA will assess the continued need for and scope of this temporary policy on a regular basis and will update it if the EPA determines modifications are necessary.”  While the COVID-19 public health emergency is national in scope, it is also dynamic and changing, as most parts of the country are now taking affirmative steps to resume operations at least in some form. The EPA is taking into account both the status of federal social distancing guidelines and the changing circumstances in states, as part of its ongoing assessment of the continued need for the Temporary Policy.  By mid-June, the EPA expects to make a determination regarding whether to revise or terminate the Temporary Policy in states where restrictions have been lifted. 

Please note that while the Temporary Policy remains unchanged, changes to state and local COVID-19 restrictions and guidelines will likely impact the relevance of the Temporary Policy and the ability of regulated entities to show “how COVID‐19 was the cause of noncompliance,” whether the noncompliance was “not reasonably practicable due to COVID-19,” etc. As state and local restrictions change or are lifted, so too may be the restrictions that potentially impede regulatory compliance, reducing the circumstances in which the Temporary Policy may apply.

As provided in the Temporary Policy, the EPA will post seven days advance notice of its intent to  terminate the Policy, in whole or in part, on the COVID-19 Enforcement and Compliance Resources webpage. The EPA will also promptly post any revisions to the Temporary Policy on the same webpage. (Posted 5/22/2020)

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How does the Temporary COVID-19 Enforcement Policy work where the EPA has authorized or delegated the program to a state, tribe, or territory?

The Temporary Policy applies to the EPA’s enforcement of federally enforceable environmental laws, including where the EPA has an enforcement and oversight role for programs authorized or delegated to a state, tribe, or territory. The Policy acknowledges the important role played by our state, tribal, and territorial partners, and specifically notes states or tribes may take a different approach under their own authorities. Some states have already issued their own guidance. (Posted 4/7/2020)

Does the Temporary COVID-19 Enforcement Policy override the force majeure provisions in settlement agreements?

No, it does not. Where compliance with an obligation under a settlement is impacted by the COVID-19 public health emergency, Sections I.C.1 (administrative settlements) and I.C.2 (judicial consent decrees) of the Policy emphasize that the force majeure provisions in settlement agreements are to be utilized to address the claim of an inability to comply based on the COVID-19 public health emergency. The specific force majeure provisions and requirements in settlement agreements apply, and the Temporary COVID-19 Enforcement Policy does not replace or supersede those provisions.

Because a common requirement of a claim of force majeure is a requirement for a party to undertake best efforts to minimize the effects and duration of the noncompliance, the intent of Section I.C.3 (“Parties should proceed as proposed in their notice . . . unless and until contacted” by the EPA or the Department of Justice) is to encourage affected facilities not to delay undertaking such mitigating measures while the force majeure claim is pending with the EPA (for administrative settlements) or the Department of Justice (for consent decrees).

In other words, parties should look to the force majeure provisions to inform how to proceed in the event of an inability to comply with a settlement requirement, and should take appropriate actions to mitigate effects of noncompliance as soon as possible. (Posted 4/7/2020)

What kind of documentation should facilities maintain if compliance is not reasonably practicable due to the COVID-19 public health emergency?

Section I.A of the Policy provides as follows:

If compliance is not reasonably practicable, facilities with environmental compliance obligations should:

a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19 public health emergency;

b. Identify the specific nature and dates of the noncompliance;

c. Identify how COVID-19 public health emergency was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;

d. Return to compliance as soon as possible; and

e. Document the information, action, or condition specified in a. through d. (emphasis added).

The amount, level, and type of information needed to document a facility’s response to noncompliance that the facility asserts was caused by COVID-19 public health emergency necessarily will vary in each individual case. Decisions on what and how to document should reflect the particular facts and circumstances of the COVID-19 public health emergency-caused noncompliance, the nature of a facility’s operations, the specific environmental requirement(s) affected, the extent of noncompliance, the decisions made to manage the noncompliance and impacts, what steps were undertaken to address the compliance problem, and any other relevant information. While it is not possible to specify in advance exactly what contemporaneous documentation should be maintained by a facility beyond that itemized in Section I.A of the Policy, in all cases the documentation should fully and completely explain and support the situation presented by the COVID-19 public health emergency-caused noncompliance and the facility’s response to it. (Posted 4/7/2020)

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Under the Temporary COVID-19 Enforcement Policy, if due to the COVID-19 public health emergency, a regulated entity can only partially comply with a routine monitoring and reporting requirement, should it file an incomplete report or conduct partial monitoring?

Yes, a regulated entity should do either (or both) depending on the circumstances. The policy states that regulated entities are expected to make every effort to comply with their environmental compliance obligations. In those instances in which timely compliance is not reasonably practicable due to the public health emergency, regulated entities should, among other things,

(i)  “act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance,”
(ii)  identify “best efforts to comply,” and
(iii)  “return to compliance as soon as possible.” 

Filing a report that contains all of the available information, even if it is incomplete, is an example of “acting responsibly under the circumstances to minimize the effects” of any noncompliance. Doing so may also demonstrate that the regulated entity is undertaking “best efforts to comply.” That also would be true of conducting the monitoring that the facility is able to perform, even if not fully compliant. (Posted 5/6/2020)

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If a facility can only partially comply with an operational requirement (i.e., other than routine compliance monitoring and reporting) due to the COVID-19 public health emergency, what steps should the facility undertake under the Temporary COVID-19 Enforcement Policy?

Regulated entities are expected to make every effort to comply with their environmental compliance obligations, and where compliance is not reasonably practicable due to the public health emergency, under the policy regulated entities should (among other things) “act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance.”  

Minimizing the effects of any public health emergency-caused noncompliance would include an entity’s exercising its best efforts to fulfill the requirement to the extent reasonably practicable under the circumstances. The inability to comply with one part of a regulatory or permit requirement is not a basis to fail to comply with other parts of the requirement.

Where the noncompliance includes the failure of pollution control 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 work with the implementing authority to reduce any potential adverse impacts, in accordance with section I.D of the Temporary Policy. That also is a requirement if the noncompliance may create an acute risk or imminent threat. If a facility wishes EPA to consider whether COVID-19 is a cause of the noncompliance, the facility must meet this condition when the circumstances identified in section 1.D.1 and 2 arise.  (Posted 5/6/2020)

Does the Temporary COVID-19 Enforcement Policy statement about “wet” signatures and receipt by email apply beyond EPA’s exercise of enforcement discretion?

No. The Temporary Policy is a statement only about how the EPA may exercise its enforcement discretion in the event of noncompliance caused by COVID-19. It does not change or alter any regulatory or statutory requirements, nor does it set forth how the EPA will act or respond under other agency programs (e.g., permitting). (Posted 5/6/2020)

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Does the EPA have examples of what it means when it says that “[e]ntities should make every effort to comply with their environmental compliance obligations”?

First and foremost, regulated entities should evaluate how they can maintain compliance despite challenges from the COVID-19 public health emergency, perhaps by making staffing adjustments, or by bringing in contractors or temporary staff to perform the necessary sampling, monitoring, reporting, and pollution treatment required.  If the regulated entity determines that it is unable to make adjustments to maintain compliance, then the regulated entity should look at any applicable permits or regulations to determine whether the permits or regulations themselves provide flexibility to address the entity’s situation, or empower the permitting/regulatory agency to provide flexibility outside the enforcement context. For example, regulations issued under the Clean Water Act include exceptions for unavoidable “upsets” or bypasses” (40 C.F.R. § 122.41(m) & (n), as well as a requirement for permittees to minimize the effects of noncompliance (40 C.F.R. § 122.41(d)).  As stated in the Temporary Policy, where compliance is not reasonably practicable due to COVID-19, a regulated entity should take steps to minimize the effects and duration of any noncompliance.  However, the EPA cannot provide an exhaustive list of actions that a regulated entity should take to maintain compliance or to minimize the effects where the entity cannot comply due to the COVID-19 public health crisis. (Posted 5/6/2020)

Does the Temporary Enforcement Policy excuse all existing obligations to report noncompliance with routine monitoring and reporting?

No.  As a threshold matter, the Temporary Enforcement Policy specifically states that entities should use existing procedures to report noncompliance, as found in an applicable permit, regulation, or statute.  However, where no such procedure is applicable, or if reporting is not reasonably practicable due to COVID-19, then regulated entities should nevertheless maintain this information internally and make it available to the EPA or an authorized state or tribe upon request. (Posted 5/6/2020)

Does the Temporary Policy apply to EPA requirements or standards for products made at facilities, such as pesticides, fuels, and other manufactured goods?

No. The Temporary Policy does not apply to EPA requirements or standards that are applicable to products that are imported, manufactured, sold, distributed, or used in the United States. Several EPA programs establish health and safety standards, labeling and content/formulation requirements, use and application restrictions, and other requirements applicable to a variety of final products. Examples include pesticides, fungicides, insecticides, fuels, vehicles and engines, composite wood products, and certain types of lead-free plumbing products, among various other manufactured products. EPA requirements covering the manufacture, sale, and use of products are particularly important for the consumer as the end-user. The Temporary Policy does not apply to these types of requirements. (Posted 5/7/2020)

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What types of reporting are considered “routine” under the Temporary Policy?

Section I.B. of the Temporary Policy addresses “routine compliance monitoring and reporting” that often is required by a permit, statute or regulation. The Temporary Policy describes a few examples to illustrate the types of routine reporting obligations that may be impacted due to the unavailability of employees or contractors because they cannot travel, are subject to stay-at-home orders, etc., as a result of the COVID-19 public health emergency. “Routine” in this context refers to regular and repeating reporting to the implementing agency on a set schedule, such as reporting on a quarterly, annual, biennial, etc. basis, whether for compliance purposes (e.g., providing routine sampling results) or for EPA programmatic purposes (e.g., annual TRI reporting).

Importantly, where the data or information to be reported is available, regulated entities are expected to accurately report this information as required by the permit or regulation.

Section I.B. of the Temporary Policy does not apply to one-time reporting, intermittent reporting (e.g., in response to an event or incident), or any other type of reporting other than on a regular and routine basis. Emergency reporting is also specifically excluded from the Temporary Policy under Section IV. (“Accidental Releases”). Note also that reporting required by a civil judicial consent decree or administrative settlement that may be impacted by the COVID-19 public health emergency is not considered “routine” under the Temporary Policy and instead is covered by Section I.C. (“Settlement agreement and consent decree reporting obligations and milestones”), and not Section I.B. (Posted 5/7/2020)

Can noncompliance that results from money-savings practices undertaken by a facility/company in response to the economic impacts of COVID-19 qualify for enforcement discretion under the Temporary Policy?

No. EPA recognized in the Temporary Policy that “worker shortages,” “travel and social distancing restrictions” and “availability of key staff and contractors and the ability of laboratories to timely analyze samples and provide results” could impact the ability of some regulated entities to comply with applicable requirements in a timely manner. The type of consequences of COVID-19 that impact compliance that were contemplated and addressed by the Temporary Policy are those consequences that result from these types of logistical restraints.

While there are economic impacts of the COVID-19 public health emergency, noncompliance that results from cost-saving measures by a regulated entity is neither “act[ing] responsibly under the circumstances” nor is it “mak[ing] every effort to comply” with environmental compliance obligations, when compliance is logistically possible (e.g., where staff or contractors are otherwise available to perform the routine monitoring or reporting). (Posted 5/7/2020)

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What does the Temporary Policy mean in Section I.D.2. by “failure” of equipment “that may result in exceedances”?

Any failure of equipment that may result in exceedances is covered by Section I.D.2. of the Temporary Policy. “Failure” in this context means everything from complete failure of a piece of control equipment (e.g., the equipment is non-operational) to operational but malfunctioning equipment. In these circumstances, the failure of equipment “may result in exceedances of enforceable limitations” and under the Temporary Policy, facilities should notify the appropriate implementing authority about the equipment failure “as quickly as possible” and provide the information described in Section I.D.2. Further, “act[ing] responsibly under the circumstances” and “mak[ing] every effort to comply” with environmental compliance obligations would require a facility to make sure it knows if equipment is operating properly or within applicable parameters. (Posted 5/7/2020)

If the failure to undertake routine compliance monitoring, testing, sampling, etc. potentially creates an acute risk/imminent threat, or may result in exceedances due to failure of equipment to operate as intended (e.g., if calibrations are not performed, equipment could operate outside expected parameters), does Section I.D. of the Temporary Policy apply, which indicates that regulated entities should contact the implementing agency?

Yes. The Temporary Policy should be read as a whole. The overall message is that regulated entities should make every effort to comply with their environmental and public health obligations, and to contact the implementing agency for any circumstance in which there may be an acute risk/imminent threat to human health or the environment, or equipment failure that may result in exceedances. While Section I.B. of the Temporary Policy generally addresses noncompliance with routine compliance monitoring and reporting, Section I.D.1. addresses any noncompliance that may create an acute risk or an imminent threat to human health and the environment, while Section I.D.2. addresses any noncompliance of equipment that may result in an exceedance. Thus, a regulated entity should contact the implementing agency for any noncompliance that may create an acute risk/imminent threat, or equipment failure that may result in exceedances, including failure to undertake routine compliance monitoring. The overall goal is to minimize, and prevent to the extent possible, threats to human health and the environment that may result from noncompliance. (Posted 5/7/2020)

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Clean Air Act FAQs

Does the Temporary COVID-19 Enforcement Policy apply to Leak Detection and Repair (LDAR) requirements?

Section 1.B. of the Temporary Policy applies to LDAR monitoring.  It is listed in footnote two of page three of the policy as an example of routine compliance monitoring. However, the obligation to carry out a follow-up repair if leaks are detected is not routine. Failure to meet a deadline for that repair activity would fall under section I.D of the Temporary Policy, requiring notification to a regulatory authority of a problem with pollution control equipment.  Any decision for determining whether an enforcement response related to a delay in a repair would be evaluated on a case-by-case basis, as provided in section I.D.2. of the Temporary Policy.  (Posted 5/6/2020)

Are tank integrity tests addressed by the Temporary COVID-19 Enforcement Policy?

Yes. To the extent that companies are having difficulties in emptying, inspecting, and degassing tanks storing organic liquids (e.g., petroleum products) because of problems caused by COVID-19 (e.g., due to the lack of extra capacity into which to empty the contents of tanks, or the unavailability of qualified inspectors), the Temporary Policy sets forth EPA’s planned process for considering such situations.  (Posted 5/6/2020)

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Clean Water Act FAQs

Does the Temporary COVID-19 Enforcement Policy allow NPDES permittees to exceed their effluent limits and impact public health and the environment?

No. EPA’s Temporary COVID-19 Enforcement Policy does not allow NPDES permittees to exceed effluent limits and impact public health and the environment.  EPA expects regulated facilities to make every effort to comply with their environmental compliance obligations. If a facility suffers from failure of wastewater treatment systems or of other facility equipment that may result in exceedances of enforceable limitations or discharges to water or other unauthorized releases, the facility should notify the implementing authority (EPA regional office or authorized state or tribe) as quickly as possible. EPA will continue to work closely with federal, state and tribal partners to ensure that facilities are meeting regulatory requirements, while taking appropriate steps to protect the health of both staff and the public. (Posted 5/6/2020)

Does EPA’s March 31, 2020 “Temporary Advisory for National Pollutant Discharge Elimination System (NPDES) Reporting in Response to COVID-19 Pandemic” mean that EPA is no longer tracking discharge monitoring reports? 

No.  EPA is still tracking discharge monitoring reports in its data system for the NPDES program (the Integrated Compliance Information System (ICIS-NPDES)).  Any reports of discharges in excess of NPDES permit requirements or missing reporting for non-excusable reasons, will still register violations, and that information will continue to be available to the public through EPA’s ECHO and Envirofacts websites.  Even if some data are not available to report, the Temporary Advisory makes clear that all sampling or reporting that can occur should continue and may not be excused.

In situations where a required monitoring report cannot be submitted in whole or in part due to the COVID-19 public health emergency, EPA has created a new way to tag that missing data. When this tag is used, like the existing tags for excusable non-reporting, the ICIS-NPDES data system will not automatically register a violation for non-reporting.  EPA and states will be able to identify the users of the new tag and follow up to determine whether there was non-compliance with permit requirements and can then adjust the data in the system to register violations. (Posted 5/6/2020)

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Safe Drinking Water FAQs

Does the March 26, 2020 Temporary COVID-19 Enforcement Policy apply to public water systems?

The March 26 Temporary COVID-19 Enforcement Policy identifies priorities for, but does not extend enforcement discretion to, public water systems. Only Section I.E. of the Temporary COVID-19 Enforcement Policy applies to public water systems. (Posted 5/6/2020)

Will my drinking water system tell me if they are in violation of drinking water standards?

Yes, drinking water systems are required to notify consumers of any violation that occurs, consistent with the existing public notification requirements. (See  the public notification rule page for more information). (Posted 5/6/2020)

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If a drinking water system is in noncompliance starting on or after March 13, 2020, how do requirements differ compared to noncompliance issued before the public health emergency? How long will the water system have to return to compliance?

There is no difference. Public water systems remain responsible for violations that occur during the public health emergency, and EPA expects systems to return to compliance as soon as possible. Systems should consult with their primacy agency without delay if issues arise that prevent normal operations and the delivery of safe drinking water, and EPA encourages primacy agencies to continue to work closely with the Agency on potential impacts of COVID-19. (Posted 5/6/2020)

Are public drinking water systems covered by the routine compliance and reporting Section I.B. of the Temporary COVID-19 Enforcement Policy?

No. Monitoring and sampling by public water systems is not covered by Section I.B. of the Temporary COVID-19 Enforcement Policy. Drinking water systems should consult with their primacy agency without delay if issues arise that prevent normal operations and the delivery of safe drinking water and EPA encourages primacy agencies to continue to work closely with the Agency on potential impacts of COVID-19. (Posted 5/6/2020)

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