August 12, 2020

Volume X, Number 225

August 11, 2020

Subscribe to Latest Legal News and Analysis

August 10, 2020

Subscribe to Latest Legal News and Analysis

EPA Lifting COVID-19-Related Enforcement Discretion Policy on August 31

On August 31, the U.S. Environmental Protection Agency (EPA) will terminate its March 26, 2020 policy that provided enforcement discretion for certain types of violations due to impacts from COVID-19. The policy identified EPA’s intention to use its enforcement discretion to provide some flexibility to the regulated community struggling with the impacts of the pandemic. EPA designed the policy to be temporary. On June 29, 2020, EPA provided notice that it will terminate the policy on August 31, 2020, or potentially earlier with seven days advance public notice.

Implications

Such termination will not impact EPA’s ability to use its enforcement discretion, but for non-compliance after August 31, EPA will not consider its COVID-19 policy and instead would apply enforcement discretion on a case by case basis.

As a practical matter, the policy termination may not significantly change EPA practices. Our experience is that agency scrutiny of requests for enforcement discretion or for Force Majeure, as applicable, has been quite rigorous. We provide a checklist of best practices for documentation to help support future requests. Even once the COVID-19 policy is terminated, enforcement discretion can be sought where circumstances warrant and this same documentation and best practices may be helpful to have readily available.

In EPA’s June 29 memorandum amending its original policy to include a termination provision, EPA acknowledged that COVID-19 regulatory consequences are evolving. This explains that EPA’s planned termination is during a “period of adjustment.” It stated:

Some states are seeing an increase in COVID-19 cases following efforts to reopen, and as a result some states may pause reopening, or modify their reopening protocols. Similarly, some businesses are temporarily closing, after initially re-opening, to address COVID-19 infections. As states and businesses begin to re-open, there will be a period of adjustment as regulated entities plan how to effectively comply both with environmental legal obligations and with public health guidance from the Centers for Disease Control and Prevention or other agencies regarding actions suggested to stem the transmission and spread of COVID-19.

Memorandum from Susan Parker Bodine to All Governmental and Private Sector Partners, June 29, 2020 (citations omitted).

Next Steps

Regulated entities should use this time before the August 31 policy termination to evaluate whether they expect compliance challenges in September or thereafter, and whether they might be able to take advance steps to reduce non-compliance risks. This is also a good time to compile the necessary documentation to support discretion. Depending on location, facilities may vary drastically in their ability to return environmental compliance operations back to pre-COVID expectations.

Some states will likely follow EPA’s lead and also revise their enforcement discretion policies.

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 184

TRENDING LEGAL ANALYSIS


About this Author

Madeleine Boyer Environmental Attorney Beveridge Diamond
Principal

Maddie brings 25 years of experience providing strategic and solutions-oriented counseling and representation on a broad range of US and Latin American environmental, health and safety standards.

Her portfolio includes environmental regulatory counseling; audit oversight and support; supply chain and product stewardship advocacy and compliance; and high-stakes enforcement matters. Her domestic caseload currently includes air and waste matters before the US Department of Justice, the Office of the Attorney General of the State of Texas, the US Environmental...

512-391-8010
Pamela D. Marks Environmental Litigation Attorney Beveridge & Diamond Baltimore, MD
Principal

Pam helps her clients tackle water, waste, and historic contamination regulatory issues and litigation.

Pam offers her clients the experience and judgment from decades of environmental counseling and litigation. She currently co-leads the firm-wide Environmental Practice Group, and formerly has managed Beveridge & Diamond's Baltimore office and led the firm’s Contaminated Properties practice.

Pam focuses her practice on solid and hazardous waste management, contaminated property remediation, water discharges, chemicals regulation, and project development. She counsels clients on environmental regulatory compliance, permitting, and risk management. She also has experience litigating permitting and compliance issues as well as common law claims. She also offers experience with the overlay of bankruptcy and environmental liabilities.

Regarding contaminated properties, Pam represents clients on hazardous substance and petroleum remediation issues arising under state law, CERCLA, RCRA, and FUSRAP. She assists real estate buyers and sellers with environmental due diligence, negotiating environmental liability contractual provisions, and identifying and implementing brownfields risk management strategies. For example, she has helped her clients to assess when and how to pursue state voluntary cleanup programs, and the circumstances under which a purchaser may avail itself of a CERCLA defense for innocent landowners.

Pam's clients have included governmental entities and businesses in the chemical, power generation, manufacturing, land development, biosolids, solid waste treatment, petroleum, retail, and beverage industries, as well as individuals and non-profit organizations.

Before joining B&D, Pam served as a Maryland Assistant Attorney General representing the Maryland Department of the Environment, where in 1997 she received the Attorney General's Exceptional Service Award. She also served as a law clerk for the Honorable Joseph H. Young of the United States District Court for the District of Maryland.

Pam is a former Chair of the Maryland State Bar Association Environmental Law Section Council and former President of the Women's Law Center of Maryland. She has also served on other nonprofit boards.

410-230-1315
Allyn L. Stern Environmental Attorney Beveridge & Diamond Seattle, WA
Of Counsel

Allyn brings over 30 years of insider understanding of government operations.

Her experience as former Region 10 Counsel at the Environmental Protection Agency (EPA) informs her deep policy, regulatory, and enforcement knowledge. Allyn draws on her breadth and depth of expertise to help clients comply with an array of environmental statutes and regulations applicable to their businesses, including Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) permit approvals, risk management under the Clean Air Act 112(r), civil and criminal enforcement, Superfund cleanup...

206-620-3027