All information in this COVID-19 Response Resource issue is effective as of July 1, 2020.
On June 29, 2020, the Environmental Protection Agency (EPA) announced it will be terminating its temporary enforcement relief policy as of Aug. 31, 2020. The EPA first announced the temporary policy in a memorandum dated March 26, 2020, entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” (Temporary Policy). The Temporary Policy announced the EPA’s intention to exercise enforcement discretion for certain civil violations where compliance was “not reasonably practicable” due to COVID-19. To obtain the benefit of the policy, the source had to: minimize the effects/duration of the non-compliance; identify the nature/dates of the non-compliance; identify how COVID-19 was the cause of the non-compliance and explain best efforts to return to compliance; return to compliance as soon as possible; and document all of this information. The Temporary Policy can be found here: Policy Post. The termination of the Temporary Policy is explained in an Addendum on Termination which can be found here: Addendum
The Temporary Policy generated significant negative press for the EPA and was misconstrued by opponents as the EPA providing a free pass to polluters, when it was nothing of the sort. Sources had to carefully document the circumstances and be prepared to prove to the EPA they met the terms of the Temporary Policy in order to seek the enforcement discretion. In letters to Congressional Committees announcing the termination of the Temporary Policy, the EPA provides extensive context for the Temporary Policy to rebut what it perceived as unfair criticism. For instance, the EPA noted that out of 49,600 facilities with Clean Water Act discharge permits, only about 300 facilities invoked the Temporary Policy in connection with reporting. Additionally, the EPA noted that it has opened 87 criminal enforcement cases, charged 27 defendants and initiated 275 civil enforcement actions, among other enforcement statistics. The letter to the House Committee on Oversight and Reform announcing the termination of the Temporary Policy can be found here: EPA Letter
In light of the pending Aug. 31, 2020, termination of the Temporary Policy, sources who seek to invoke the potential enforcement relief should continue to rigorously follow and document compliance with the criteria set forth in the Temporary Policy, as well as maintain records of the same at least for the duration of any applicable statute of limitations. Federal enforcement is generally subject to a five years statute of limitations. EPA also left open the possibility that it could accelerate the termination of the Temporary Policy, indicating in the Addendum that it will give seven days advance notice if it does so.
If you have any questions regarding the Temporary Policy or its termination, please contact Michael Zody, or any other member of Parsons Behle & Latimer’s Environmental Department at (801) 536-6818 or send an email to mzody@parsonsbehle.com.
