EPA Establishes Aug. 31 End Date for COVID-19 Era Discretion Policy

July 7, 2020

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 follow-up statement 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 policy.

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.

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