EPA has announced that its temporary March 26, 2020 enforcement memorandum entitled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program will be terminated no later than 11:59 p.m. EDT, August 31, 2020. See attached link. EPA reserves the right to terminate the policy earlier, in whole or in part, considering changing circumstances such as the lifting of stay-at-home orders. The EPA temporary policy has drawn challenges from states, environmental groups, some legislators and others. EPA has issued clarifications and/or explanations concerning the policy, defending the reasonableness of the approach.
However, EPA now believes that since the issuance of the temporary policy, new federal guidelines and directives have been issued to support both the public health response and economic recovery efforts. EPA notes that many parts of the country have already begun to relax restrictions intended to address COVID-19, with the goal of returning to normal operations. EPA provides that: “[a]s state and local restrictions are relaxed or lifted, so too may the restrictions that potentially impede regulatory compliance, reducing the circumstances in which the temporary policy may apply.”
EPA recognizes that some states are seeing increased numbers of COVID-19 cases (as businesses reopen), and that some reopening strategies will be paused, and businesses may once again be forced to close. August 31st was selected as the date to terminate the temporary policy in hopes that it would reflect an appropriate balancing of the relevant factors, in recognition that the circumstances surrounding the temporary policy are changing. EPA reemphasizes that entities should make every effort to comply with their environmental compliance obligations, and that the temporary policy will apply in only those situations where compliance is not reasonably practicable as a result of COVID-19. The memorandum notes that, in EPA’s view, these situations “should become fewer and fewer.”
EPA notes that nothing in the termination notice limits the Agency’s ability to exercise enforcement discretion on a case-by-case basis moving forward for any noncompliance, including noncompliance that results from COVID-19, and for events that occurred before or after the termination of the temporary policy. The Agency indicates that 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 from the transmission and spread of COVID-19, which the person or entity reasonably deems applicable to its circumstances.”
Facilities should continue to account for guidance offered in the temporary policy with respect to scenarios in which COVID-19 might impact environmental compliance. Items noted in the temporary policy will undoubtedly be considered for evaluating case-by-case discretion that might be offered after the termination of the policy. For example, if compliance is not possible: coming back into compliance as soon as possible; acting responsibly under the circumstances to minimize any effect and the duration of any noncompliance; identifying the specific nature and duration of any noncompliance; documenting how COVID-19 was the cause of the noncompliance, as well as decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity. Entities should continue to consider the availability of other affirmative defenses and enforcement discretion options that may be available, independent of the temporary policy, for relief in environmental compliance situations, and they should document and report, as required, to preserve those potential means of relief.
