The United States Environmental Protection Agency (“EPA”) recently announced that it will be terminating its temporary enforcement discretion policy on August 31, 2020 at 11:59 PM Eastern Daylight Saving Time. In general, this means that EPA will not base any exercise of enforcement discretion on this temporary enforcement discretion policy for any noncompliance that occurs after August 31, 2020.
EPA issued its temporary enforcement discretion policy on March 26, 2020 stating its intent not to bring enforcement actions for a range of violations of environmental regulations caused by COVID-19. Until August 31, 2020, EPA’s policy is that it will continue exercising this discretion and will “consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.”
In selecting the termination date, EPA took into consideration the new federal guidelines and directives that have been issued to support the public health response and economic recovery efforts, as well as the lifting of state and local restrictions. EPA expects that the restrictions impacting regulatory compliance will likewise be lifted and will reduce the circumstances in which the temporary enforcement discretion policy may apply.
EPA recognizes, however, that in certain circumstances, it may need to continue exercising enforcement discretion even beyond August 31. The Termination Addendum provides that “[n]othing herein limits the ability of the EPA to exercise enforcement discretion on a case-by-case basis regarding any noncompliance, including noncompliance caused by the COVID-19 public health emergency, before or after the temporary policy is terminated.”
Notwithstanding, regulated entities that have taken advantage of EPA’s temporary enforcement discretion policy should prepare to resume compliance activities by August 31, 2020. Additionally, regulated entities should continue to monitor EPA guidance and any state-specific enforcement discretion policies that have also been issued in response to COVID-19.
If you have any questions about EPA’s temporary enforcement discretion policy or how COVID-19 is affecting enforcement actions, please contact Hannah Vanderlaan (hvanderlaan@freeborn.com; (312) 360-6487) or another member of Freeborn’s Environment & Energy Practice Group.