On June 29, 2020, the EPA issued an Addendum to its March 2020 COVID-19 Temporary Enforcement Policy (“Policy”) announcing that the Policy will terminate in its entirety on August 31, 2020. The Addendum also indicates that, subject to seven days’ notice, the EPA may terminate the Policy earlier on a state or national basis, and that the EPA may still exercise enforcement discretion on a case-by-case basis.
The Addendum follows significant controversy regarding the Policy, including lawsuits brought by conservation groups and nine states that argued that the “non-enforcement policy” represents “an abdication of EPA’s responsibilities promulgated without notice or comment” and criticism from members of Congress, not to mention another potential lawsuit by environmental groups alleging that the “suspension of the Enforcement and Compliance Assurance Program” violates the Endangered Species Act. In response to the controversy, the EPA has repeatedly emphasized limits incorporated in the policy, including a requirement to “make every effort to comply” with environmental regulations. Indeed, the Policy parallels numerous previous policies in which the EPA provided guidance about how it intended to use enforcement discretion to address a particular issue.
In any case, the controversy may prove to be much ado about nothing. Although the EPA has not publicly released data regarding relief granted under the Temporary Enforcement Policy, early reports suggest that requests for relief have been limited and, often, directed to state agencies rather than the EPA. As of late June, EPA Deputy Assistant Administrator John Irving advised that EPA’s regional offices had received approximately 300 requests for compliance flexibility. On the same day as the Addendum to the policy was issued, Assistant Administrator Susan Bodine sent a letter to Democratic lawmakers similarly indicating that just 300 out of more than 49,600 facilities had failed to comply with reporting requirements for COVID-19-related reasons.
For now, the policy remains in place and conservation groups’ worst fears regarding the EPA Policy appear increasingly remote. However, as companies continue to navigate challenges caused by the ongoing pandemic and rapidly shifting state reopening measures, they should keep in mind that a sunset is approaching on potential relief available under the EPA Policy. Companies should also keep in mind that the Addendum to the EPA Policy may spur a significant amount of activity by state environmental agencies on the same front.
