07.14.2020 EPA Announces Termination Date for COVID-19 Enforcement Policy
Last March, EPA issued a memorandum entitled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program. The memorandum announced a temporary policy regarding EPA’s enforcement of environmental obligations during the COVID-19 public health emergency. Pursuant to that memorandum, if the pandemic constrains a facility’s ability to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification, the facility can document that fact and potentially avoid enforcement. EPA said in the memo that it “does not expect to seek penalties for violations” where it agrees COVID-19 is the cause of the noncompliance. The memorandum also established certain notification obligations if the facility expected to miss certain obligations and milestones in EPA administrative settlement agreements.
All good things must come to an end. In a June 29, 2020 addendum to the memorandum, EPA announced that it will terminate the temporary policy on August 31, 2020. This means EPA will not base any exercise of enforcement discretion on COVID-19 after that date. EPA could have terminated the policy earlier, but said the August termination date is designed to give facilities time to adjust.
In announcing the termination, EPA reasoned that “new federal guidelines and directives have been issued to support both the public health response and economic recovery efforts, and many parts of the country have already taken steps to relax social distancing restrictions in parts or all of individual states, with the goal of returning to normal operations.” EPA indicated that, with a lifting of these state and local restrictions, so, too, are restrictions lifted that potentially impede regulatory compliance. EPA reserved the right to terminate the policy earlier than August 31, but indicated it will provide at least seven days prior notice if it does so.
EPA’s COVID-19 enforcement policy has been controversial. Environmental groups have criticized it and argued that it gives facilities discretion to determine whether to comply with their environmental obligations. Nine states, led by New York, sued EPA over the policy last May. Many state environmental agencies have issued their own COVID-19 enforcement discretion policies. Now that EPA is winding down its enforcement discretion, it will be interesting to see whether all states follow suit or whether decisions will be based on the spread of the virus within a given state.