Additional EPA Guidance and Developments During the COVID-19 Era

April 28, 2020

Update (July 7, 2020): The U.S. Environmental Protection Agency announced an end-of-summer expiration date for March 26 guidance that indicated EPA might ease environmental obligations and forgo enforcement in certain situations during the COVID-19 national emergency. For more details, see our July 7 alert.

The U.S. Environmental Protection Agency has published various guidance documents after it issued its March 26, 2020, policy memorandum announcing that it may ease environmental obligations and forgo enforcement in certain situations during the COVID-19 national emergency (the Enforcement Discretion Policy).

The following addresses the EPA’s follow-up guidance clarifying the Enforcement Discretion Policy as well as the ongoing challenges to the policy.

Clarification of the EPA’s Enforcement Discretion Policy

On March 30, the EPA issued a follow-up statement clarifying the scope and intent of the Enforcement Discretion Policy. The 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.”

On April 2, the 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. The letter explains that the EPA still expects regulated facilities to comply with regulatory requirements where reasonably practicable and to return to compliance as quickly as possible after the COVID-19 threat subsides. Whether deficiencies qualify for enforcement discretion will not be decided until after the pandemic, with limited exceptions for circumstances where a company receives a no-action assurance waiver. In the letter, the EPA also challenged the “[i]rresponsible allegations that [the] EPA is giving industry a license to pollute,” as a mischaracterization during an unprecedented and challenging time.

Interim Guidance on Regional Offices’ Cleanup Activities

On April 10, the EPA issued interim guidance to its regional offices regarding decisions about new or ongoing cleanup activities at sites across the country. Decisions to potentially pause field work are to be made on a case-by-case basis, prioritizing the health and safety of the public, communities, state and tribal partners, EPA staff, and contractors. The interim guidance focuses on emergency response and long-term cleanup sites where the EPA is the lead agency or has direct oversight of the cleanup work. This includes, but is not limited to, Superfund cleanups, Resource Conservation and Recovery Act corrective actions, Toxic Substance and Control Act PCB cleanups, Oil Pollution Act spill responses and Underground Storage Tank Program actions.

Quality Assurance Testing and Reporting

On April 22, the EPA also published an interim final rule providing relief to those subject to quality assurance testing and reporting pursuant to 40 CFR Part 75. The relief applies to any source reporting emissions to the EPA under Part 75, including under the Acid Rain Program, the Cross-State Air Pollution Rule and/or the NOx Sip Call. To qualify for relief, sources must maintain documentation, notify the EPA of any test delay, certify to the EPA that the data are otherwise valid and explain how the delay was caused by the pandemic. The EPA has sought comments.

Challenges to EPA Enforcement Discretion Memo

Despite follow-up guidance, coalitions of environmental groups and some states have objected to the EPA’s Enforcement Discretion Policy and its position on the national emergency.

Citing concern over potential abuse, several environmental non-governmental organizations (NGOs) filed a petition for emergency rulemaking on April 1, seeking a final rule from the 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 the EPA has unreasonably delayed responding to the petition. The EPA has yet to respond.

On April 15, the attorneys general of 14 states — New York, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin — sent a letter to the EPA administrator addressing their concerns over the March 26 Enforcement Discretion Policy memorandum. The letter requests that the EPA rescind the Enforcement Discretion Policy, citing concerns over potential negative impact to communities. The April 15 letter also expresses concern over a lack of consideration for the policy’s potential impact on public health, especially the health of low-income and minority communities who are at greater risk of suffering adverse outcomes from COVID-19.

Regulated entities should be cognizant that relief from enforcement is discretionary and may not be granted until after the pandemic subsides. In evaluating the use of possible enforcement discretion, regulated entities should consider that asserting affirmative defenses requires the inclusion of specific information about “emergency events” or “force majeure” conditions in notice documentation and that follow-up reports may be required. Finally, regulated entities should also consider the risk of independent actions brought by NGOs against those who appear to be taking advantage of the Enforcement Discretion Policy.

McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.