The U.S. Environmental Protection Agency (EPA) issued a memorandum (Susan Parker Bodine, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program,” U.S. EPA, March 26, 2020) (Discretion Memo) granting enforcement discretion for virtually all civil violations of federal environmental laws during the COVID-19 pandemic.
Timing
The policy will apply retroactively from March 13, 2020, the date on which the president declared a national emergency, and will last until further notice. The EPA has pledged to publish a notice on its enforcement and compliance policy website at least seven days in advance of any planned termination of the enforcement discretion policy.
Scope
While the scope of the enforcement discretion is broad, it does not apply to Superfund cleanups or RCRA corrective action. The agency plans to address those circumstances in a separate document. Likewise, the Enforcement Memo does not apply to criminal violations, nor does it apply to imports.
The Discretion Memo advises the regulated community that the EPA plans to exercise its discretion not to take civil enforcement actions or seek penalties for most noncompliance during the pandemic, so long as the entities comply with certain provisions. First, entities are generally required to “make every effort to comply with their environmental compliance obligations.” If they cannot comply, then they should: (a) act “responsibly to minimize the effect and duration” of any noncompliance caused by the pandemic; (b) identify the nature and dates of the noncompliance; (c) explain how the pandemic caused the noncompliance and the decisions and actions undertaken to comply; (d) return to compliance as soon as possible; and (e) and document the information identified in (a) – (d).