On March 26, 2020, U.S. EPA issued the temporary policy, “COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program” addressing EPA's exercise of enforcement of environmental legal obligations during the COVID-19 pandemic. In essence, the temporary policy defined situations arising from pandemic response that could qualify certain noncompliance for enforcement discretion.
However, over the course of the last five months, federal and state guidelines have relaxed restrictions1 that were previously impeding regulatory compliance, thereby reducing the circumstances in which the temporary EPA policy applied.
In light of these developments, EPA added a provision in the temporary policy effectively terminating it as of August 31, 2020. Following is the provision from the temporary policy.
This temporary policy terminates in its entirety at 11:59 PM Eastern Daylight Saving Time, August 31, 2020. This means that the EPA will not base any exercise of enforcement discretion on this temporary policy for any noncompliance that occurs after August 31, 2020.
In addition, the EPA may terminate this temporary policy (i.e., indicate it does not apply to future noncompliance) on a state or national basis, in whole or in part, at any earlier time, taking into account changing conditions in a state or region of the country, including as appropriate the expiration or lifting of “stay at home” orders in a state, the status of federal and/or state COVID- 19 public health emergency guidelines, and/or other relevant factors or considerations.
In order to provide fair and sufficient notice to the public, the EPA will provide notification at least seven days prior, if it terminates this temporary policy prior to August 31, 2020, either nationally or at a more local level, in whole or in part.
Nothing herein limits the ability of the EPA to exercise 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. This includes the situation in which a person or entity makes a reasonable attempt to comply with guidance from the Centers for Disease Control and Prevention or other agencies regarding actions suggested to stem the transmission and spread of COVID-19, which the person or entity reasonably deems applicable to its circumstances.
Despite termination of the policy, enforcement discretion may still be available through alternative federal or state provisions. Facilities seeking enforcement discretion related to the COVID-19 pandemic should contact their EPA regional office and applicable state or local agency to determine next steps.1 White House, Guidelines for Opening Up America Again; Centers for Disease Control and Prevention, Activities and Initiatives Supporting the COVID-19 Response and the President's Plan for Opening America Up Again (May 2020); Executive Order on Regulatory Relief to Support Economic Recovery (May 19, 2020).