COVID-19: EPA Announces Termination of COVID-19 Enforcement Policy
Businesses and others that suspended environmental monitoring and reporting during the Coronavirus pandemic should plan to resume those activities as of September 1, 2020. The U.S. Environmental Protection Agency (EPA) announced recently that its temporary policy regarding the exercise of enforcement discretion during the COVID‑19 public health emergency will end on August 31, 2020.
On March 26, 2020 the EPA issued a policy, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, indicating that it would not take enforcement action for noncompliance that results from the COVID-19 pandemic. The kinds of activities the EPA excused included missed testing, training, monitoring, and recordkeeping requirements resulting from a lack of personnel, problems with supply chain that prevented delivery of needed materials, tests, and replacement parts, and even difficulties operating within permit limits due to things like work stoppages and social distancing. The temporary policy was effective retroactively to March 13, 2020, and it stated that it would be rescinded when the coronavirus crisis ends. Our alert describing the policy can be found here.
Because it allowed regulated entities to determine whether they could or could not comply with their environmental monitoring and reporting obligations, the EPA policy drew criticism from conservation groups, some states, and others. Some, including members of Congress, said the policy gave companies license to violate environmental laws and weakened public health protections at a time when they were needed most.
In a June 29, 2020 memorandum titled, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program: Addendum on Termination, the EPA announced the termination of the temporary policy. The EPA 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.” Therefore, the EPA announced, the temporary policy terminates in its entirety at 11:59 pm EDT, August 31, 2020.
The EPA termination addendum states that, with seven days’ notice, the EPA may terminate the temporary policy at an earlier time in some areas, taking into account changing conditions in a state or region of the country. The addendum also notes that the EPA may exercise its 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.
We do not know how many businesses stalled their environmental monitoring and reporting over the past several months as a result of the COVID-19 pandemic. Although the EPA has not released publicly data concerning relief granted under the temporary policy, information provided by the EPA indicates that approximately 300 requests for relief from compliance obligations were submitted. This suggests that the vast majority of regulated facilities continued to comply with their environmental obligations during the public health emergency.
As companies continue to navigate the complexities and challenges posed by the pandemic, they should be prepared to resume (if stalled) their environmental monitoring and reporting activities. As of September 1, 2020, they will no longer be able to look to the EPA for automatic enforcement relief.