August 12, 2020

Volume X, Number 225

August 12, 2020

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August 10, 2020

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USEPA’s Temporary Policy Suspending Enforcement Terminates August 31, 2020

On June 29, 2020, USEPA issued a memorandum on a termination addendum to the COVID-19 temporary enforcement policy. USEPA has selected August 31, 2020, as the termination date for the temporary enforcement policy, as it recognizes that the circumstances surrounding the temporary policy are changing, but also ensures that there is adequate time to adjust to the changing circumstances.

Since the issuance of the COVID-19 Implications for USEPA’s Enforcement and Compliance Assurance Program on March 26, 2020, new federal guidelines and directives have been issued to support both the public health response and economic recovery efforts. In addition, 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.

The USEPA recognizes that states and businesses are on differing schedules for reopening. As such, as states and businesses reopen, there will be a period of adjustment as regulated entities plan how to effectively comply with both environmental legal obligations as well as public health guidelines regarding actions suggested to stem the transmission and spread of COVID-19.

The USEPA has determined that it is now appropriate to expressly include a provision that covers termination of the temporary policy, and to make changes to the policy as are necessary to reflect the impact of the changing circumstances on facility operations, worker shortages, and other public health constraints.

As stated in the temporary policy, entities should make every effort to comply with their environmental compliance obligations and; the policy applies only to situations where compliance is not reasonably practicable as a result of COVID-19. USEPA anticipates that these situations should decrease over time.

The temporary enforcement policy terminates in its entirety at 11:59 PM Eastern Daylight Saving Time, August 31, 2020. This means that USEPA will not base any exercise of enforcement discretion on the temporary policy for any noncompliance that occurs after August 31, 2020. USEPA has reserved the right to terminate the temporary policy at any earlier time, and will provide notification at least seven (7) days in advance, if USEPA decides to terminate the temporary policy prior to August 31, 2020. In the event that the USEPA deadline changes, we will issue an update to this Alert.

VP has a full-service environmental practice that can assist companies with every aspect of environmental compliance. VP can also assist your company with crisis management planning and execution. Visit our Coronavirus Task Force Page for additional information about how you and your colleagues can address the multitude of transactional, regulatory, litigation, and employee relations issues that you are facing as a result of this public health crisis.

© 2020 Vedder PriceNational Law Review, Volume X, Number 185


About this Author

Brett Heinrich, environmental matters lawyer, enforcement litigator, Vedder Price Law Firm

Brett D. Heinrich is a Shareholder and a member of the firm’s Environmental group.

Mr. Heinrich focuses his practice on a diverse range of environmental matters, including enforcement litigation, compliance counseling, remediation, Superfund, RCRA citizen suits, Clean Air Act and Clean Water Act suits, transactional counseling and various environmental aspects of real estate transactions. He represents clients in a variety of service areas, such as manufacturing, waste management, waste transportation, and industries such as building materials, chemicals, paper, insurance, cosmetics...

Dana Mehlman Commercial Litigation Attorney Vedder Price
Dana B. Mehlman is an Associate in the Chicago office of Vedder Price and a member of the firm’s Commercial Litigation group and the Environmental group.

Ms. Mehlman focuses her practice on a diverse range of environmental matters, including compliance, policy, operations, permitting and enforcement actions in both transactional and litigation actions. She represents clients in various phases of CERCLA action, including responding to EPA general notice, forming PRP groups and renegotiating PRP group standing during transitions from RI/FS to RD/RA.

Ms. Mehlman also has experience in advising clients in regards to implementation of wind energy conversion systems, siting of solid waste facilities including landfills, transfer stations and compost facilities, and with the technical and legal ramifications of subsurface soil and groundwater contamination. In 2015 she was named to the National Law Journal’s inaugural list of Energy & Environmental Trailblazers.

Prior to joining Vedder Price, Ms. Mehlman worked as the Environmental Manager for the world’s largest fertilizer company, and previously served as a Geotechnical Engineer before attending law school at the University of Florida, where she received the Environmental and Land Use Law Certificate. She received her BS and MS in Civil and Environmental Engineering and she is a licensed Professional Engineer in both Illinois and Georgia.