The U.S. Environmental Protection Agency (EPA) is positioning to pick up enforcement efforts in the near future. In March, the EPA issued a temporary policy memorandum suspending enforcement of certain environmental requirements in light of the COVID-19 pandemic. However, the reprieve now has an end date. On June 29, 2020, the EPA issued a memorandum titled, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program: Addendum on Termination, that announced it plans to terminate the temporary enforcement policy on August 31, 2020.

EPA Response to COVID-19

As discussed in a prior article, on March 26, the EPA issued a policy allowing for the agency’s enforcement discretion during the pandemic. To be eligible for enforcement discretion, the EPA policy requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic. Under the policy, the EPA does not plan to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request. 

While the regulated community appreciated that the EPA relaxed its enforcement in response to COVID-19, the policy received significant criticism from environmental groups and certain members of Congress. Critics argued that the EPA had effectively given companies the green light to violate environmental laws. Several states also filed suit, challenging the temporary enforcement policy.

Termination of COVID-19 Temporary Enforcement Policy

The EPA now plans to end its temporary policy on August 31, 2020. In support, the agency noted that “new federal guidelines and directives have been issued to support both the public health response and economic recovery efforts” and that “[a]s state and local restrictions are relaxed or lifted, so too may the restrictions that potentially impede regulatory compliance, reducing the circumstances in which the temporary policy may apply.”

The EPA’s memo also indicates that it could end the policy sooner than August 31. “In addition, the EPA may terminate this temporary policy (i.e., indicate it does not apply to future noncompliance) on a state or national basis, in whole or in part, at any earlier time, taking into account changing conditions in a state or region of the country, including as appropriate the expiration or lifting of ‘stay at home’ orders in a state, the status of federal and/or state COVID- 19 public health emergency guidelines, and/or other relevant factors or considerations,” the memo states. If the EPA does terminate its temporary policy prior to August 31, either on the national or local level, it will provide prior notification of at least seven days.

Even when the policy is terminated, the EPA may still exercise enforcement discretion on a case-by-case basis. “Nothing herein limits the ability of the EPA to exercise enforcement discretion on a case-by-case basis regarding any noncompliance, including noncompliance caused by the COVID-19 public health emergency, before or after the temporary policy is terminated,” the memo states. “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.”

Key Takeaway Regulated entities should be prepared for the EPA to return to business as usual by August 31, if not sooner. If you have paused any environmental monitoring and reporting activities in response to COVID-19, it is time to start preparing to come back into compliance.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.