Last week, Susan Bodine, EPA Assistant Administrator for Enforcement and Compliance Assurance, issued a memorandum stating that EPA would exercise its enforcement discretion and not take enforcement action against entities that cannot comply with obligations to EPA due to issues arising from COVID-19.  At a certain level, this is understandable.  The world has been turned upside down and no one quite knows what is feasible in the current circumstances and what it not.

The issue is really just a classic economic problem – we live in a world of imperfect information.  If EPA had perfect information, it would know which are the true force majeure events and which are bogus.  In a normal imperfect world, regulated entities have to demonstrate the existence of a force majeure event – and the standard of proof is rather high.

In the current, abnormal, imperfect world, EPA has apparently changed the default and is now simply assuming that all noncompliance is due to COVID-19.  That may not be explicitly stated in the memorandum.  Nonetheless, while EPA makes clear that intentional violations combined with fraudulent assertions that the noncompliance was due to COVID-19 will be punished appropriately, does anyone really think that EPA is going to go back after the fact and try to police noncompliance during the COVID-19 emergency?

While regulated entities would be wise to follow the procedures in the memorandum and document the basis for their conclusions that any noncompliance was due to COVID-19, if I were a betting man, I’d lay money that the only enforcement we’re going to see from EPA concerning non-compliance during the current emergency will be criminal cases that someone hands to EPA on a plate.