The U.S. Environmental Protection Agency (EPA)
announced an Aug. 31, 2020, end date
for guidance issued in its
March 26, 2020, policy memorandum (discretion policy) that indicated EPA might ease environmental obligations
and forgo enforcement in certain situations during the COVID-19 national
emergency. While the guidance was never a “get out of jail free” card,
it came under intense criticism and lead to a lawsuit by nine states.
The Discretion Policy
The discretion policy was issued by EPA’s top compliance official, Susan P.
Bodine, and explained that the agency’s continuing enforcement focus during
the outbreak would be “on situations that may create an acute risk or
imminent threat to public health or the environment.” EPA stated that it
“does not expect” to seek penalties for noncompliance with routine
monitoring and reporting obligations resulting from the COVID-19 pandemic
and will exercise discretion in doing so. The discretion policy outlined
essential steps regulated facilities must take to qualify for enforcement
discretion and listed the types of documentation that EPA will expect
regulated entities to provide showing they took these qualifying steps.
Attacks on and Defenses of the March 26 Guidance
States and environmental groups immediately criticized the discretion
policy, arguing it encouraged pollution. On March 30, EPA issued a
clarifying the scope and intent of the enforcement discretion policy. EPA
emphasized the policy’s temporary nature and limited scope, and
characterized recent commentary on the policy — specifically that it
provides a “blanket waiver of environmental requirements” — as “reckless
propaganda.” Similarly on April 2, EPA also defended the enforcement
discretion policy in
a letter to the U.S. Senate, reiterating the policy’s limited duration and scope, and explaining that
determinations as to whether any deficiency qualifies for enforcement
discretion will be conducted on a case-by-case basis.
Citing concern over potential abuses, several environmental
non-governmental organizations (NGOs) filed a petition for emergency
rulemaking on April 1, seeking a final rule from EPA requiring regulated
entities to notify the agency immediately if unable to comply with
monitoring, reporting, testing, sampling, inspection or certification
requirements. On April 16, the NGOs brought a federal lawsuit in the U.S.
District Court for the Southern District of New York alleging that EPA has
unreasonably delayed responding to the petition.
On May 13, after sending a letter to EPA addressing their concerns, the
attorneys general of 14 states — New York, Illinois, Iowa, Maryland,
Massachusetts, Michigan, Minnesota, Oregon, Pennsylvania, Rhode Island,
Vermont, Virginia, Washington and Wisconsin — sued EPA over the discretion
In the NGO lawsuit, cross motions for summary judgment have been filed and
briefed. On June 30, EPA filed a letter advising the court of the end date
for the discretion policy.
In the states’ lawsuit, the states filed a motion for preliminary
injunction on June 8. The briefing schedule extends into August.
Notification of Termination
On June 29, 2020, EPA issued a policy memorandum (termination memorandum)
advising of its decision to terminate the discretion policy effective Aug.
31, 2020. The termination memorandum reasoned that state restrictions and
federal guidelines that previously impeded regulatory compliance had been
relaxed. It further noted that, as states reopen, a period of adjustment
would be needed “as regulated entities plan how to effectively comply both
with environmental legal obligations and with public health guidance from
the Centers for Disease Control and Prevention or other agencies regarding
actions suggested to stem the transmission and spread of COVID-19.”
The termination memorandum reiterated EPA’s position that regulated
entities should take all reasonable steps to comply with their
environmental obligations and that the discretion policy applies only to
situations where compliance is not reasonably practical because of
COVID-19. The termination memorandum further noted that the discretion
policy could be terminated on a state or national basis earlier than Aug.
31, 2020, based upon the status of federal and/or state “stay at home”
orders, but that notification would be provided at least seven days prior
to such earlier termination.
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