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EPA Sets Termination Date for Temporary Enforcement Policy

As states are seeing an increase in COVID-19 cases and pausing reopening efforts, the US Environmental Protection Agency (EPA) has forged ahead with setting a definite termination date for its temporary COVID-19 enforcement policy.

On June 29, 2020, EPA’s Office of Enforcement and Compliance Assurance (OECA) Assistant Administrator Susan Parker Bodine issued an addendum to OECA’s March 26, 2020, temporary policy on enforcement discretion in light of COVID-19, adding a termination date of August 31, 2020, for the policy.  Citing new federal guidelines and directives that have been issued to support health and economic recovery, such as the White House reopening guidelines and President Trump’s recent Executive Order directing agencies to remove or ease regulatory barriers to spur economic growth, Bodine concluded that termination of the EPA policy at the end of August is now appropriate.

Termination of the temporary policy will not drastically change the status quo for the regulated community.  As we stated in Deciphering EPA’s Temporary Enforcement Discretion Policy for COVID-19, and contrary to other commentary surrounding the policy, the EPA temporary policy is not a free pass to pollute or a get-out-of-jail-free card, but instead offers some relief in limited circumstances.  Even under the temporary policy, companies are still required to make “every effort” to comply with applicable environmental regulatory requirements.  In addition, after termination of the temporary policy, EPA will continue to maintain and exercise enforcement discretion for noncompliance on a case-by-case basis, including noncompliance resulting from the COVID-19 pandemic.

The policy’s termination may, however, impact two separate challenges to EPA’s enforcement during the COVID-19 pandemic brought by environmental groups and states in the US District Court for the Southern District of New York.  A group of states, led by New York, challenged EPA’s temporary policy as unlawful and beyond EPA’s authority.  The parties are currently briefing motions for a preliminary injunction, which may now be viewed as largely unnecessary because the policy is terminating, and thus leaving open the question of whether EPA exceeded its authority in the first place.

The environmental groups did not directly challenge EPA’s temporary enforcement policy but instead brought a separate action seeking to compel EPA action on their petition for rulemaking under multiple environmental statutes to require all regulated entities unable to comply with EPA’s monitoring and reporting requirements because of COVID-19 to file a public justification.  In defending against this action, EPA has taken the position that, among other arguments, the requested disclosure is not required by any existing statute or regulation.  The parties are currently briefing motions for summary judgment but, with the EPA temporary policy terminating, the case may become moot.  The environmental groups are nonetheless still arguing that disclosure of the requested documents are necessary for the public to know which companies have utilized the EPA policy and to ensure that past violations are cured and violators are held accountable.

OECA’s recent addendum is limited to its own temporary enforcement policy and does not affect temporary COVID-19 policies issued by other offices within EPA.  For example, EPA’s Office of Land and Emergency Management and OECA issued an April 10, 2020, interim guidance on impacts to operations at cleanup sites due to the COVID-19 pandemic.  As reopening efforts continue, we may see additional actions to terminate this and other temporary COVID-19 policies.

Despite EPA’s move to terminate its temporary COVID-19 enforcement policy, there is looming uncertainty surrounding states’ reopening, facility operations, worker shortages, and other constraints caused by this public health emergency, particularly given the current trajectory of the pandemic.  Regardless, companies should continue to make “every effort” to comply with applicable environmental regulatory requirements.  If you have concerns about being able to maintain compliance with your federal environmental obligations, you should consult counsel to assist in determining whether OECA’s temporary policy is still applicable and, if not, the appropriate steps to take to ensure that you will maximize the opportunity to avail yourself of EPA’s permanent, case-by-case enforcement discretion authority.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 184

TRENDING LEGAL ANALYSIS


About this Author

J. Tom Boer Environmental Practice Hunton Andrews Kurth San Francisco, CA
Partner

Tom’s experience at the EPA and DOJ provides him with a firsthand perspective into how the government pursues and resolves enforcement actions. He, in turn, offers clients invaluable insights into the processes, risks, issues and strategies for resolving alleged environmental liabilities.

Tom represents companies, municipal utilities, and individuals in federal and state environmental litigation, in defense of environmental enforcement actions and citizen suits, in response to catastrophic environmental emergencies and chemical releases, and in connection with site cleanup and cost...

415-975-3717
Samuel L. Brown Environmental Practice Hunton Andrews Kurth San Francisco, CA
Partner

A former US EPA lawyer, Sam brings deep knowledge and practical experience to his clients’ environmental and natural resource concerns, helping them navigate the demands of regulatory agencies, ensure facility and corporate compliance, respond to government investigations and defend against enforcement actions.

Sam is experienced in domestic and international environmental and natural resource matters that impact client business and operations. His clients primarily include public and private sector manufacturing, mining, electric utility, oil and gas, municipal drinking water and wastewater utility, agriculture and land development companies. Sam’s clients are nationwide and they rely on his advice for compliance counseling, obtaining regulatory authorizations, facility and corporate audits, project and transactional due diligence, administrative and civil enforcement defense, and litigation.

Sam’s sophisticated approach to engaging with regulatory agencies and his deep knowledge of complex regulatory programs is grounded in his experience as a lawyer with the US EPA, in the Office of Regional Counsel in San Francisco (Region 9) and in New York (Region 2), and the Office of General Counsel in Washington, DC. His experience at EPA makes him effective and efficient at problem solving with federal and state regulatory agencies.

Sam focuses, in part, on multi-media government and third party investigations, incident response, and defending clients against government enforcement actions and NGO citizen suits.

In the US, his clients rely on his experience when navigating the Clean Water Act (CWA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Safe Drinking Water Act (SDWA), Resource Conservation and Recovery Act (RCRA); the Clean Air Act (CAA); the Toxic Substances Control Act (TSCA); the National Environmental Policy Act (NEPA); the Emergency Planning and Community Right-to-Know Act (EPCRA); the Endangered Species Act (ESA); and state-equivalent environmental, health and safety, and consumer product-related statutes.

For international matters, he is often called on to ensure facility and corporate consistency with Equator Principles and World Bank established International Finance Corporation (IFC) Performance Standards and manage legal, commercial and reputational risk.

Sam is frequently invited to speak and write on trending issues in environmental law, particularly the enforcement practices and operations of federal and state regulatory agencies. He also contributes regularly to the firm’s Nickel Report blog, which focuses on trends and developments in energy and environmental law.

He is a former adjunct professor and guest lecturer, including at the University of San Francisco, where he taught environmental law; Taras Shevchenko National University of Kyiv School of Law in Ukraine, where he taught on matters related to the oil and natural gas sector in Eastern Europe; Pace University School of Law; Golden Gate University School of Law; and The George Washington University School of Law, where he taught courses on environmental, energy and land use.

415-975-3714
Todd S. Mikolop Environmental Attorney Hunton Andrews Kurth Washington, DC
Counsel

Todd, a former environmental crimes prosecutor for the US Department of Justice, advises and defends clients in internal investigations and environmental enforcement actions and counsels clients in federal permitting programs.

Clients faced with crisis situations turn to Todd for advice. His extensive government experience from previous roles as a federal prosecutor in the US Department of Justice and as a judge advocate in the US Coast Guard prove invaluable when conducting internal investigations and defending enforcement actions for companies facing allegations of wrong doing or...

202-778-2249
Lauren A. Bachtel Environmental Attorney Hunton Andrews Kurth Washington, DC
Senior Attorney

A former US Department of the Interior and American Wind Energy Association lawyer, Lauren draws on her diverse experience to navigate clients through complex permitting and compliance issues that arise under a host of federal environmental statutes and regulations. She also advocates for clients during related administrative rulemakings and litigation.

Lauren has extensive experience with permitting and litigation under the National Environmental Policy Act (NEPA), Mineral Leasing Act (MLA), Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle...

202-419-2011
Alexandra Hamilton Environmental Hunton Andrews Kurth Washington, DC
Associate

Alexandra focuses on environmental issues involving regulation, compliance, enforcement and litigation.

She represents clients on regulatory matters in federal appellate and district court litigation, advises clients during the rulemaking process for federal environmental regulations under the Clean Air Act and counsels clients on regulatory compliance related to chemical and toxic substances. Additionally, Alexandra has notable experience working on enforcement matters under the Clean Water Act.

Relevant Experience

  • Advises clients on EPA...
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