We recently conducted an informal survey of those who receive our newsletters, and it was evident that environmental compliance is top of mind for most environmental professionals – legal and technical. In ordinary times, compliance with federal, state, and local environmental regulations is a challenge. In extraordinary times, the challenge can be greater.
EPA Enforcement Policy During COVID-19
Running a business during the COVID-19 pandemic has been a challenge unlike any of us has ever experienced. In some cases, emissions went to essentially zero as production slowed and even came to a halt. Remediation systems, on the other hand, were continuing to run so operation and maintenance of these systems were an ongoing obligation. We also heard that capabilities at analytical laboratories were greatly reduced as they, like everyone else, had to comply with state orders and modify their workflow to protect their workers from COVID-19.
In light of these challenges, the United States Environmental Protection Agency (USEPA) issued a memo (on March 26, 2020) that stated, in part, “The EPA will exercise the enforcement discretion…for noncompliance covered by this temporary policy and resulting from the COVID-19 pandemic…”
What this policy did, as opposed to what was reported by some outlets, was the cause of further confusion and promoted a clarifying memo from the USEPA to Senator Diane Feinstein.
Ending the Temporary Policy
Although the pandemic continues, the USEPA temporary policy will not continue and will expire on August 31, 2020. According to Susan Parker Bodin, Assistant Administrator for Enforcement and Compliance Assurance at the Environmental Protection Agency, “This temporary policy terminates in its entirety at 11:59 PM Eastern Daylight Saving Time, August 31, 2020. This means that the EPA will not base any exercise of enforcement discretion on this temporary policy for any noncompliance that occurs after August 31, 2020.”
As we, as well as others, have noted over the past few years, the Trump Administration has been focused on compliance over enforcement, so we don’t suspect there will be any widespread federal enforcement action. With that said, there might be an increased focus on making sure companies are complying with existing regulations. States, too, may begin to take a closer look at environmental enforcement policies. The USEPA has a list of State Guidance on Enforcement during the COVID-19 pandemic.
As Fall quickly approaches, some schools and universities are trying to hold in-person classes. Some experts suggest this may trigger a COVID-19 uptick. Will this again prompt a policy change?
Temporary Policy Generates More Legal Action
An interesting side note for those who follow developments from environmental interest groups: The USEPA’s enforcement discretion policy under COVID-19 led to yet another lawsuit that was filed by environmental groups. The Center for Biological Diversity, Natural Resource Defense Counsel, and Riverkeepers said that the Temporary Policy violated the Endangered Species Act. This is a continuation of a steady stream of legal actions by environmental groups against this administration (see NRDC Files 100th Lawsuit Against the Trump Administration).
Continue to keep a watchful eye on regulatory developments, both federal and state, as COVID-19 news in conjunction with election year politics are bound to keep things interesting in the coming months.
If you have questions about environmental compliance issues, please contact Matthew Schroeder, M.S., P.E., at 248-932-0228, Ext 117.
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