UPDATE: See a more recent news alert on these developments here. 

The U.S. Environmental Protection Agency (EPA) recently confirmed that it is reviewing its March 26, 2020 guidance that provided enforcement discretion for certain types of violations due to impacts from COVID-19. The policy, described in a prior Beveridge & Diamond news alert, identified EPA’s intention to use its enforcement discretion to provide some flexibility to the regulated community struggling with the impacts of the pandemic.

EPA designed the policy to be temporary and has stated that it expects to terminate the policy “soon.” Such termination will not impact EPA’s ability to use its enforcement discretion, but it will do so on a case by case basis. Depending on any EPA findings that accompany the termination, the burden on the regulated entity would then be slightly heavier to show the agency why it is unable to comply.

Regulated entities should watch for details of EPA’s termination and approach forward to determine whether they need to make any changes to their environmental compliance operations. Depending on location, facilities may vary drastically in their ability to return environmental compliance operations back to pre-COVID expectations.

Some states will likely follow EPA’s lead and also revise their enforcement discretion policies.

Facilities that need the benefit of the policy should compile the necessary documentation now to support discretion. Even after EPA terminates the policy, regulated entities should consider suggested best practices and documentation efforts used to support COVID-related impacts to defend any forthcoming agency enforcement action.

As the leading law firm for environmental, health, and safety law and litigation, Beveridge & Diamond helps clients with unprecedented challenges posed by COVID-19. Our team includes lawyers with high-level federal government experience, including determining when to exercise enforcement discretion, grant or deny Force Majeure petitions, and sufficiency of documentation. Please visit B&D’s COVID-19 EH&S Resource Center or contact the authors for more information on navigating the global pandemic.