Environmental Law Matters

Three months after issuing its COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program temporary policy memorandum suspending enforcement of certain environmental requirements, the U.S. Environmental Protection Agency has announced it is supplementing the temporary policy to include a specific termination date.

The supplement, described as an Addendum on Termination, indicates EPA’s temporary enforcement policy will terminate on August 31, 2020.  As EPA’s Office of Enforcement and Compliance Assurance explains, EPA will not base an exercise of enforcement discretion on the temporary policy for any noncompliance that occurs after this date. EPA chose this date because “it recognizes that the circumstances surrounding the temporary policy are changing, but also ensures that there is adequate time to adjust to the changing circumstances.”  The Addendum also notes EPA may terminate the enforcement policy “in whole or in part, at any earlier time” if relevant circumstances warrant; however, if EPA decides to terminate early, it will notify the public at least a week in advance.

EPA issued the temporary policy in late March to outline how it would use enforcement discretion for identified issues of non-compliance resulting from the COVID-19 pandemic.  Not surprisingly, the action prompted mixed reviews.  While many states have similarly adopted their own enforcement discretion policies outlining expectations for the regulated community, nine states (California, Illinois, Maryland, New York, Michigan, Minnesota, Oregon, Vermont, and Virginia) have filed suit challenging the EPA policy. In addition, three environmental conservation groups have announced plans to sue EPA over the policy.  It remains to be seen how the newly announced termination date may affect these legal proceedings.

The June 29, 2020, Addendum on Termination may be viewed here.