Insights

What Does the EPA COVID-19 Enforcement Discretion Policy Mean?

The global COVID-19 health crisis poses unprecedented challenges for chemical/processing companies. Despite travel restrictions, social distancing, and remote work, operations persist, necessitating the management of process safety and risk in the presence of a reduced onsite workforce or unavailable key contractors. What does the EPA COVID-19 Enforcement Discretion Policy mean for RMP and PSM covered facilities? EPA issued guidance and OSHA is expected to release similar guidance very soon.

What has the EPA released?

EPA issued a notice on March 26, 2020 describing their enforcement policy during the COVID-19 crisis (EPA Press Release and Guidance Memo).  In addition to EPA’s environmental regulations, this notice also applies to the Risk Management Program (RMP) Rule (40 CFR 68).  So how do the contents of this EPA policy affect RMP-covered processes in your facility?  The EPA notice states:

…At the EPA, we are cognizant of potential worker shortages due to the COVID-19 pandemic as well as the travel and social distancing restrictions imposed by both governments and corporations or recommended by the Centers for Disease Control and Prevention to limit the spread of COVID-19. The consequences of the pandemic may affect facility operations and the availability of key staff and contractors…

This statement indicates that EPA understands that certain tasks required by their regulations may be delayed or not possible.  The notice goes on to say:

  1. Entities should make every effort to comply with their environmental compliance obligations.
  2. If compliance is not reasonably practicable, facilities with environmental compliance obligations should:
    1. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
    2. Identify the specific nature and dates of the noncompliance;
    3. Identify how COVID-19 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;
    4. Return to compliance as soon as possible; and
    5. Document the information, action, or condition specified in a. through d.

This indicates that EPA expects compliance obligations to be completed normally and an alternative option is not practical.  For any deviation, EPA expects each compliance delay to be analyzed individually and documented, including the reason why the COVID-19 crisis has impacted your facility.  This caveat is not a blanket waiver of compliance requirements during the crisis.  Finally, EPA goes on to say:

… The EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment. Nothing in this temporary policy relieves any entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants, as required by federal law, or should be read as a willingness to exercise enforcement discretion in the wake of such a release…

This statement indicates that completing activities intended to prevent the releases of hazardous materials covered by the RMP Rule, and the process safety incidents that can result, will not be tolerated during the COVID-19 crisis.

What does the EPA COVID-19 Enforcement Discretion Policy mean for managing onsite RMP and OSHA PSM programs during the COVID-19 crisis?

Actually, very little will change.  The regulators will have basically the same expectations as before the health crisis, with a few considerations.  Some examples:

  • Would EPA accept the delay of important mechanical integrity program tasks? This could include pressure vessel external or internal inspections, or the thickness measurements of the same equipment.

    Not likely if in-house or contractors can maintain proper social distancing during these tasks. Simply claiming a contractor is a third party and not allowed onsite wouldn’t likely be considered acceptable. Short delays may be acceptable if personnel conducting ITPM activities are temporarily replaced due to illness or positive virus tests. However, neglecting scheduled ITPM work, especially if the facility continues operating, will not be acceptable.

  • Would EPA accept the delay of a programmatic RMP/PSM activity such as a PHA or an audit that comes due during the crisis?

    With businesses shifting to virtual collaboration, conducting remote PHA or audits is entirely possible. Facility personnel need to adapt to this virtual work, a practice successfully implemented in the past. Organizations are demonstrating the feasibility of completing these tasks remotely during the COVID-19 pandemic. EPA will likely expect companies to explore and prove the inability to perform these activities virtually before accepting compliance date delays.

  • Would EPA accept the delay of required training?

    Recently, remote web-based training has become technically possible and popular.  Unless there are compelling circumstances, EPA would expect that regulatory required training is conducted virtually, unless the required participants cannot be provided with online access.

  • Would EPA allow not following the MOC procedure during the COVID-19 crisis?

    This is not likely at all.  If operations, including project and maintenance functions, can continue during the health crisis, then essential RMP/PSM programs such as MOC can also continue.

  • Would EPA allow the continued deferral of RMP/PSM tasks and activities that were already overdue before the COVID-19 crisis struck?

    For ITPM tasks with extended intervals, EPA may not excuse further delays if the task should have been completed pre-COVID-19. Examples include updating process safety information after a 2019 unit turnaround or implementing new provisions in a RAGAGEP published in 2018.

In summary, short delays in required RMP and PSM activities may be acceptable to EPA during the health crisis. These could include relief on deadlines for PHAs, audits, or less critical ITPM tasks, provided the delay is convincingly attributed to COVID-19 situations. Companies should adhere to EPA’s COVID-19 Enforcement Discretion Policy guidance, address compliance elements comprehensively, and assess potential compromises in activities or deadlines. Despite the challenging situation, EPA/OSHA might find it difficult to permit non-compliance when alternatives are available.

For further information see EPA’s website at and www.epa.gov/coronavirus and OSHA’s COVID-19 page: https://www.osha.gov/SLTC/covid-19/standards.html#directives

 

 

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