TERMINATION OF EPA COVID ENFORCEMENT DISCRETION POLICY

On June 29th, EPA announced the termination date of its temporary enforcement discretion policy contained in a March 26th memorandum entitled: “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program”. The policy was instituted with the recognition that travel restrictions and stay-at-home orders may impact the ability of some facilities to meet certain compliance requirements during the pandemic. It is important to note that entities should continue to make every effort to comply with their environmental compliance obligations and the policy applies only to situations where compliance is not reasonably practicable as a result of COVID-19. EPA believes that as more parts of the country reopen, these situations will become fewer and fewer.

EPA indicated in the original memo that the policy is temporary and the agency would provide notice to the regulated community when the policy would be terminated. EPA has determined that it is appropriate to expressly include a provision in the temporary policy that specifies a termination date. EPA selected August 31, 2020, as the termination date for the temporary policy. According to EPA, this date reflects the appropriate balancing of the relevant factors; it recognizes that the circumstances surrounding the temporary policy are changing, but also ensures that there is adequate time to adjust to the changing circumstances. While the broad discretionary policy will end on August 31st, EPA has noted that nothing in the termination of the policy would limit the ability of the EPA to exercise enforcement discretion on a case-bycase basis regarding any noncompliance, including noncompliance caused by the COVID-19 public health emergency. This includes the situation in which a person or entity makes a reasonable attempt to comply with guidance from the Centers for Disease Control and Prevention or other agencies regarding actions suggested to stem the transmission and spread of COVID-19, which the person or entity reasonably deems applicable to its circumstances.

IIAR members are encouraged to fully document any situations where compliance is not possible due to COVID-19. This documentation should take place as it happens, and not recorded after the fact to justify non-compliance. In addition, IIAR members should document their plans to return to compliance once conditions permit. These efforts to demonstrate due diligence and good faith will be critical when explaining the facilities actions to EPA.

EPA REGION 1 GENERAL DUTY CLAUSE PILOT RESULTS

On July 23rd, the Environmental Protection Agency’s (EPA) Region 1 reported on its activities to implement a pilot program focused on improving safety of industrial refrigeration facilities in the Northeast with less than 10,000 pounds of ammonia. The pilot program, launched in 2018, was initiated due to the high number of ammonia facilities in the region not subject to the Risk Management Program (RMP) and the perceived risks represented by these General Duty Clause (GDC) facilities. EPA estimates that approximately 80% of the ammonia refrigeration facilities in New England have fewer than 10,000 pounds of ammonia and so are subject to the GDC instead of the RMP regulations.

Through its GDC Initiative, EPA Region 1 is working to improve compliance with the first GDC requirement — that facilities must identify hazards that may result from accidental releases using appropriate hazard assessment techniques. EPA has completed three rounds of the GDC Initiative, reaching hundreds of facilities in the region. Included in these activities has been ammonia safety trainings in all six New England states, an ammonia refrigeration webinar, training specific to ice rinks, ammonia table-top emergency response exercises, and informative letters and emails to facilities with ammonia refrigeration systems and their contractors.

EPA has issued information request letters to 50 companies under the pilot and entered into Expedited Settlement Agreements (ESAs) with seven facilities that had not yet completed process hazard reviews. Facilities that have not completed process hazard reviews are subject to enforcement action. Under the GDC pilot, EPA is offering reduced penalties for facilities that complete a process hazard review with assistance from a third-party expert and meeting with emergency responders to plan for a potential release from the facility. EPA has announced that all 50 of the facilities contacted thus far have reported that they are now in compliance with the first duty of the GDC, 34 of those (including the ESAs) occurring after the start of outreach about the Initiative. EPA Region 1 is planning to conduct additional compliance assistance activities and send another round of information request letters to facilities.

Facilities in Region 1 with less than 10,000 pounds of ammonia are strongly encouraged to ensure that they are taking appropriate action to comply with the General Duty Clause. Other EPA Regions have expressed interest in the Region 1 program, and it is possible that other regions may implement similar programs. IIAR’s Ammonia Refrigeration Management Program (ARM) can assist facilities in meeting these requirements.