Reed Smith Client Alerts

The Environmental Protection Agency has announced an unprecedented level of enforcement discretion related to environmental obligations and violations due to the COVID-19 pandemic. This policy is set to continue indefinitely and, while active, will allow facilities that face difficulties complying with certain environmental laws, permits, and other obligations due to the virus to potentially avoid penalties. Although seemingly beneficial to facilities, the EPA’s guidance has met with mixed reaction by states and environmental groups. As a result, facilities should be aware that they could still face enforcement actions by states and citizen suits by environmental groups.

Authors: Jennifer A. Smokelin Daniella D. Landers Benjamin H. Patton Todd O. Maiden Nicholas Rock Grace C. Hearn

mountains and lakes in switzerland

On March 26, 2020, the Environmental Protection Agency (EPA) issued an unprecedented memorandum stating that it will exercise its enforcement discretion for certain noncompliances.1 This temporary policy covers a broad range of environmental obligations and promises that the EPA will not seek penalties for violations of these obligations due to COVID-19.

This policy has received mixed responses by states and environmental groups. It is important to note that due to the shared enforcement of certain environmental obligations, facilities should note whether individual states will actually defer to the EPA’s guidance.

Overall, facilities should be aware of the obligations and activities included within the EPA’s policy and the conditions required to partake of this enforcement discretion. However, if facilities should seek to take advantage of this policy, consideration must be given to the differing enforcement policies of states and the risk of enforcement by environmental groups, both of which may not be in line with the EPA’s policy.

Term and scope of the EPA’s temporary policy

The EPA recognizes that the travel and social distancing requirements imposed as a result of the COVID-19 pandemic will likely affect facility operations and the ability of entities to comply with monitoring, training, and reporting obligations. As a result, the EPA has instituted this policy of enforcement discretion to offer entities some relief in continuing operations.

The EPA’s enforcement policy will apply retroactively, beginning on March 26, 2020, and continue indefinitely. The EPA will post a notification a minimum of seven days prior to terminating the policy.2  Additionally, the EPA will apply this policy to actions or omissions that occurred while this policy was in effect even after the termination of the policy.

The following activities and items are not included within this enforcement policy:

  1. Criminal violations or conditions of probation in criminal sentences
  2. Activities carried out under Superfund and RCRA Corrective Action enforcement instruments
  3. Imports - specifically pesticide products
  4. Accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste and other pollutants