January 24, 2022

Volume XII, Number 24

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January 24, 2022

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January 21, 2022

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EPA Weighs Lifting COVID-19-Related Enforcement Discretion Policy

EPA has recently confirmed that it is reviewing its March 26, 2020 guidance that provided enforcement discretion for certain types of violations due to impacts from COVID-19. The policy, described in a prior Beveridge and Diamond news alert, 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, and EPA has stated that it expects to terminate the policy “soon.” Such termination will not impact EPA’s ability to use its enforcement discretion, but it will do so on a case by case basis. Depending on any EPA findings that accompany the termination, the burden on the regulated entity would then be slightly heavier to show the agency why it is unable to comply.

Regulated entities should watch for details of EPA’s termination and approach forward to determine whether they need to make any changes to their environmental compliance operations. 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.

Facilities that need the benefit of the policy should compile the necessary documentation now to support discretion. Even after EPA terminates the policy, regulated entities should consider suggested best practices and documentation efforts used to support COVID-related impacts to defend any forthcoming agency enforcement action.

© 2022 Beveridge & Diamond PC National Law Review, Volume X, Number 178
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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...

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
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