On August 31, the U.S. Environmental Protection Agency (EPA) will terminate its March 26, 2020 policy that provided enforcement discretion for certain types of violations due to impacts from COVID-19. The policy 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. On June 29, 2020, EPA provided notice that it will terminate the policy on August 31, 2020, or potentially earlier with seven days advance public notice.

Implications

Such termination will not impact EPA’s ability to use its enforcement discretion, but for non-compliance after August 31, EPA will not consider its COVID-19 policy and instead would apply enforcement discretion on a case by case basis.

As a practical matter, the policy termination may not significantly change EPA practices. Our experience is that agency scrutiny of requests for enforcement discretion or for Force Majeure, as applicable, has been quite rigorous. We provide a checklist of best practices for documentation to help support future requests. Even once the COVID-19 policy is terminated, enforcement discretion can be sought where circumstances warrant and this same documentation and best practices may be helpful to have readily available.

In EPA’s June 29 memorandum amending its original policy to include a termination provision, EPA acknowledged that COVID-19 regulatory consequences are evolving. This explains that EPA’s planned termination is during a “period of adjustment.” It stated:

Some states are seeing an increase in COVID-19 cases following efforts to reopen, and as a result some states may pause reopening, or modify their reopening protocols. Similarly, some businesses are temporarily closing, after initially re-opening, to address COVID-19 infections. As states and businesses begin to re-open, 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 from the Centers for Disease Control and Prevention or other agencies regarding actions suggested to stem the transmission and spread of COVID-19.

Memorandum from Susan Parker Bodine to All Governmental and Private Sector Partners, June 29, 2020 (citations omitted).

Next Steps

Regulated entities should use this time before the August 31 policy termination to evaluate whether they expect compliance challenges in September or thereafter, and whether they might be able to take advance steps to reduce non-compliance risks. This is also a good time to compile the necessary documentation to support discretion. 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.