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Message to Tribal Partners - EPA Enforcement during the COVID-19 Outbreak

April 1, 2020

Dear Tribal Partner:

The mission of the Environmental Protection Agency (EPA) is to protect human health and the environment, and during this time of unprecedented public health concerns, that mission is even more critical. On March 26, EPA released a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 outbreak.  This temporary policy is not a license to pollute.

The policy says that EPA will not seek penalties for noncompliance with routine monitoring and reporting requirements, if, on a case-by-case basis, EPA agrees that such noncompliance was caused by the COVID-19 pandemic.  Regulated parties must document the basis for any claim that the pandemic prevented them from conducting that routine monitoring and reporting and present it to EPA upon request. This action was necessary to avoid tying up EPA staff time with questions about routine monitoring and reporting requirements and instead allow EPA to focus on continued protection of human health and the environment.

The policy does not say that the COVID-19 pandemic will automatically excuse exceedances of pollutant limitations in permits, regulations, and statutes. EPA expects regulated entities to comply with all obligations and if they do not, the policy says that EPA will consider the pandemic, 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, EPA’s willingness to provide even that consideration is conditioned on the facility contacting the appropriate EPA region, or authorized state or tribe, to allow regulators to work with that facility to mitigate or eliminate such risks or threats.

As you may be aware, regulators have been inundated with questions about how to handle the current extraordinary situation where contractors are not available because they cannot travel, state 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.  EPA is prioritizing its resources to respond to acute risks and imminent threats, rather than making up front case-by-case determinations regarding routine monitoring and reporting. Tribal governments have expressed similar priorities. For example, many tribal governments have decided to close their borders to any visitors, except in the case of emergencies. Like tribes, EPA is committed to the health and safety of the public, our staff, as well as our tribal partners.

It is important to note EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible, once the COVID-19 threat is over. Additionally, the policy makes clear that EPA expects operators of public water systems to continue normal operations and maintenance during this time, as well as required sampling, to ensure the safety of vital drinking water supplies.

The measures in this policy are temporary and will be lifted as soon as normal operations can resume, which may occur sooner in some locations than others. We take our mandate to protect human health and the environment very seriously and will continue to carry it out during this time.

The protection of public health is of paramount importance during this outbreak.  We will do everything in our power to protect the health of tribal members.

Sincerely,

W.C. McIntosh
Assistant Administrator
International and Tribal Affairs

W. Scott Mason
Director
American Indian Environmental Office

Susan Bodine
Assistant Administrator
Enforcement and Compliance Assurance