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The End for EPA’s Temporary Enforcement Discretion Policy for COVID 19 Pandemic

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By Leah M. Song

Covid-19On June 29, 2020, the U.S. Environmental Protection Agency (“EPA”) issued a termination addendum to the COVID‑19 temporary enforcement policy previously issued on March 26, 2020. As further discussed below, EPA’s temporary enforcement policy will now terminate no later than August 31, 2020. 

The temporary enforcement policy discussed EPA enforcement of environmental legal obligations during the COVID‑19 pandemic. The temporary policy made clear that the EPA expected regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy also required facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID‑19 pandemic. The temporary enforcement policy was analyzed in Jenner & Block’s Corporate Environmental Lawyer blog here.

In the recent termination addendum, EPA pointed to various federal and state guidelines developed in response to the pandemic, but noted that as restrictions begin to be relaxed or lifted, so too are compliance obstacles. However, EPA also noted that in some states, the resurgence of COVID‑19 cases could result in a pause in reopening and EPA acknowledged that “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.”

EPA therefore selected August 31, 2020, as the termination date for the temporary enforcement policy. EPA stated that the termination date reflects “the changing circumstances on facility operations, worker shortages, and other constraints caused by the public health emergency,” but “ensures that there is adequate time to adjust to the changing circumstances.”

EPA reminded entities that “[a]s 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” which “should become fewer and fewer.” EPA made clear that it “will not base any exercise of enforcement discretion on this temporary policy for any noncompliance that occurs after August 31, 2020.” However, EPA will still consider exercising 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.”

Finally, EPA floated the possibility that the temporary enforcement policy could terminate even before August 31, 2020. EPA will continue to assess national and state conditions, such as “the expiration or lifting of ‘stay at home’ orders” and “the status of federal and/or state COVID‑19 public health emergency guidelines.” In the event that EPA determines conditions warrant earlier termination of the policy, EPA will provide at least 7 days’ notice prior to termination of the policy. 

Jenner & Block’s Corporate Environmental Lawyer will continue to update on these matters, as well as other important COVID‑19 related guidance, as they unfold.

TAGS: COVID-19

PEOPLE: Leah M. Song