The U.S. Environmental Protection Agency announced last Thursday retroactively beginning March 13, 2020, a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic.

EPA’s admittedly unprecedented temporary “enforcement discretion policy” applies to civil violations during the COVID-19 outbreak as a response to the deleterious effect on a wide variety of businesses. EPA has in the past announced how it intends to exercise enforcement discretion (e.g., the 1974 mobile source tampering policy) but it has maybe never before done so, so broadly and widely across all businesses as in this instance to be reasonably commensurate with the scope of the COVID-19 pandemic.

The policy addresses different categories of noncompliance differently. For example, under the policy EPA does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic (e.g., even a well managed non-essential business closed by state order may not be able to collect monitoring samples, etc.) but on the other hand does expressly expect operators of public water systems to have heightened responsibility for continuing to ensure the safety of drinking water supplies.

Despite the hyperbole of activists who have characterized this policy as everything from an abject waiver of environmental laws to a license to pollute, “EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements,” said EPA Administrator Andrew Wheeler. “This temporary policy is designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment.”

Of paramount import “[a]ll enforcement discretion set forth in this temporary policy is conditioned on .. Entities should make every effort to comply with their environmental compliance obligations. If compliance is not reasonably practicable, facilities with environmental compliance obligations should .. [a]ct responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19.”

As we self-isolate in the final days of the first quarter of 2020, when food delivery is “out” and alcoholic beverage delivery is “in” the policy details the steps that regulated facilities must take now to qualify for enforcement discretion.

The temporary policy makes it clear that EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy also requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.

Be assured this is not a “get out of jail free” card. This policy does not provide leniency for intentional criminal violations of law.

The policy does not apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments. EPA will address these matters in separate communications.

Additionally, “[n]othing in this temporary policy relieves any entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants, as required by federal law, or should be read as a willingness to exercise enforcement discretion in the wake of such a release.”

The EPA’s policy will have a limited impact in states that have delegated EPA enforcement jurisdiction. That includes Maryland, where Secretary of the Maryland Department Environment Ben Grumbles made clear that the state wouldn’t be following EPA’s lead. “We understand we may need to exercise discretion in enforcement of environmental regulations on a limited, case-by-case basis during a disaster, but Maryland is not issuing a broad upfront policy as EPA is doing,” Grumbles said in a statement.

While you are at home take a few minutes to read the EPA COVID-19 Policy and be aware EPA will post a notification here at least 7 days prior to terminating this temporary policy.

If we can assist you in understanding how to navigate this extraordinary discretionary policy or otherwise with an environmental matter, we are ready to help you.