EPA Will Terminate its COVID-19 Enforcement Discretion Policy

Kelley Drye Client Advisory

The U.S. Environmental Protection Agency (EPA) will terminate its temporary policy regarding the exercise of enforcement discretion during the COVID-19 public health crisis on Monday, August 31, 2020. So, on September 1, 2020, businesses and others should resume environmental monitoring and reporting practices that have been delayed or suspended due to EPA’s policy.

Recall that on March 26, 2020, EPA issued a policy, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, announcing that the agency would decline to take enforcement action for non-compliance caused by COVID-19. The types of activities subject to EPA’s policy included certain testing, training, monitoring, and recordkeeping requirements that could not be met because of a lack of personnel, supply chain problems that stalled delivery of necessary materials, tests, and replacement parts, and operating within permit limits due to work stoppages and social distancing.

Because it allowed regulated entities to determine whether they could or could not comply with their reporting obligations, EPA’s policy drew criticism from environmental interest groups, several states, and House Democrats, all of whom claimed the policy gave companies a license to violate environmental laws and public health protections. In truth, EPA’s policy did no such thing. EPA developed its temporary policy so the agency could prioritize resources to respond to acute and imminent threats, rather than making time-consuming, case-by-case determinations regarding routine monitoring and reporting. Further, EPA has clarified that its policy was never a blanket enforcement waiver. Rather, the policy always required regulated facilities to provide documentation of each instance of noncompliance due to COVID, while still making every effort to comply with their environmental obligations. EPA’s policy simply recognized that in some cases, compliance may not be practicable because of the COVID-19 public health emergency.

Many states also have implemented similar enforcement discretion policies. For instance, the Texas Commission on Environmental Quality (“TCEQ”), relaxed some of its reporting requirements and used its enforcement discretion during the COVID crisis. As with EPA’s policy, the TCEQ’s policy did not permit industries to ignore reporting requirements and the agency will not provide enforcement forbearance when companies fail to notify the agency in advance that it cannot comply with requirements due to the COVID crisis.

It’s important to note that while EPA and other agencies may use enforcement discretion to provide some leeway to businesses, that avenue may not be the best course of action for every regulated entity. If companies face delays in reporting—even those sanctioned by agency policy—they still should provide additional documentation to address missed deadlines or other discrepancies.