The U.S. Environmental Protection Agency (EPA) issued a memorandum on June 29, 2020, announcing an “addendum on termination” to its March 26, 2020, COVID-19 temporary enforcement policy. The memorandum notes that as states and businesses begin to re-open, there will be a period of adjustment as regulated entities plan how to comply with environmental legal obligations and with public health guidance from the Centers for Disease Control and Prevention (CDC) and other agencies regarding actions intended to stem the transmission and spread of COVID-19. The memorandum states that “it is now appropriate to expressly include a provision in the temporary policy that covers termination of the temporary policy, and to make such changes to the policy as are needed to reflect the impact of the changing circumstances on facility operations, worker shortages, and other constraints caused by the public health emergency.” The temporary enforcement policy will terminate “in its entirety” on August 31, 2020, at 11:59 p.m. (EDT).

Background

On March 26, 2020, EPA announced its temporary policy regarding enforcement of environmental legal obligations during the COVID-19 pandemic. EPA states that its temporary enforcement discretion policy applies to civil violations during the COVID-19 outbreak. The policy addresses different categories of noncompliance differently. For example, according to EPA, it “does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic but does expect operators of public water systems to continue to ensure the safety of our drinking water supplies.” To be eligible for enforcement discretion, the policy requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.

EPA notes that its policy does not apply to imports. According to the policy, EPA is “especially concerned about pesticide products entering the United States, or produced, manufactured, distributed in the United States, that claim to address COVID-19 impacts.” EPA “expects to focus on ensuring compliance with requirements applicable to these products to ensure protection of public health.”

Addendum on Termination

According to the June 29, 2020, memorandum, “EPA will not base any exercise of enforcement discretion on this temporary policy for any noncompliance that occurs after August 31, 2020.” The memorandum states that this date “reflects the appropriate balancing of the relevant factors; 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.” The memorandum urges entities to make every effort to comply with their environmental compliance obligations, and notes that the temporary enforcement policy “applies only to situations where compliance is not reasonably practicable as a result of COVID-19. These situations should become fewer and fewer.” The addendum provides that EPA may terminate the temporary enforcement policy on a state or national basis, in whole or in part, at any earlier time. If EPA does terminate the policy before August 31, 2020, it will provide notification at least seven days prior.

Commentary

EPA’s “termination memorandum” is not unexpected, but possibly overly optimistic. As COVID-19 cases are surging in a growing number of states, some might argue the need for the relief offered under the enforcement discretion memorandum is every bit as needed now as when it was issued. It is unclear what can reasonably be expected to be different by the end of August. Should the case number not be materially different, presumably EPA would simply revisit the end date.

The policy was never popular with EPA detractors and was widely mischaracterized in certain media sources when it was issued. Whether EPA is anxious to end the policy as a result of the criticism or believes the policy has outlived its utility is unclear.

Additional Resources

EPA has updated its frequently asked questions (FAQ) about the temporary enforcement policy to include:

• How long will the Temporary COVID-19 Enforcement Policy be in place?

• Circumstances have changed since the EPA issued the Temporary COVID-19 Enforcement Policy. For example, federal social distancing guidelines expired on April 30th, new federal guidelines for reopening the country have been developed, and all 50 states have relaxed or partially relaxed COVID-19 social distancing restrictions. How do these actions impact the status of the Temporary COVID-19 Enforcement Policy?

More information on EPA’s temporary enforcement policy is available in Bergeson & Campbell, P.C.’s (B&C^®) following blog items:

• EPA Announces Temporary Enforcement Discretion Policy (March 27, 2020);

• EPA Announces Clarification on Its Temporary Compliance Guidance (April 1, 2020); and

• EPA Letter to Congress “Correct[s] the Record on the Temporary Enforcement Policy” (April 3, 2020).