July 8, 2020

EPA Announces Termination of COVID-19 Enforcement Discretion Policy

Holland & Knight Alert
Amy L. Edwards | Bonni F. Kaufman | Meaghan A. Colligan | Alexandra E. Dobles

Highlights

  • The U.S. Environmental Protection Agency (EPA) issued a Termination Addendum to its temporary enforcement discretion policy for noncompliance with federal environmental laws and permits during the COVID-19 pandemic (Enforcement Discretion Policy). EPA's Enforcement Discretion Policy will terminate on Aug. 31, 2020.
  • EPA's Termination Addendum reminds regulated entities that they are expected to make every effort to comply with environmental laws and permits, and document any instances of noncompliance in accordance with EPA's Enforcement Discretion Policy.
  • EPA may terminate the Enforcement Discretion Policy sooner than Aug. 31, 2020, based upon changing regional or national circumstances. EPA may also apply its enforcement discretion on a case-by-case basis after Aug. 31, 2020.
  • In addition, EPA issued an interim guidance document that provides health and safety guidelines for EPA employees conducting field activities during the COVID-19 pandemic in order to reduce the risk of exposure to EPA personnel, regulated entities and the general public. EPA also issued a supplemental Job Hazard Analysis to be used to establish the level of risk for typical work activities.

The U.S. Environmental Protection Agency (EPA) on June 29, 2020, issued a memorandum titled COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program: Addendum on Termination (Termination Addendum), which sets Aug. 31, 2020, as the termination date for EPA's temporary enforcement policy during the coronavirus (COVID-19) pandemic (Enforcement Discretion Policy). In selecting the termination date, EPA indicates that it balanced relevant factors, including changing state COVID-19-related restrictions and federal economic recovery resources, and considered providing regulated entities adequate time to adjust to changing circumstances.

EPA's Enforcement Discretion Policy became effective on March 13, 2020. EPA's policy until Aug. 31, 2020, is that it will exercise enforcement discretion with respect to assessing civil penalties for noncompliance with federal environmental permits, regulations and statutes that occurs as a result of COVID-19. To qualify for enforcement discretion, regulated entities must take the steps outlined in the Enforcement Discretion Policy. (For an in-depth summary of EPA's Enforcement Discretion Policy, see Holland & Knight's previous alert, "EPA's Enforcement Guidance for Noncompliance During the COVID-19 Pandemic," March 30, 2020.)

EPA's Termination Addendum reminds regulated entities that they are expected to make every effort to comply with environmental laws and permits. EPA also expects that situations in which compliance is not reasonably practicable because of COVID-19 should become fewer as many parts of the country continue to take steps to return to normal operations. Nonetheless, EPA recognizes that circumstances surrounding the COVID-19 pandemic continue to evolve. The Termination Addendum specifically states that EPA can still exercise its enforcement discretion on a case-by-case basis regarding any noncompliance, "including any noncompliance caused by the COVID-19 public health emergency," even after the Enforcement Discretion Policy is terminated. Regulated entities may still qualify for enforcement discretion under applicable federal permits, statutes and regulations.

The Termination Addendum states that EPA can terminate the Enforcement Discretion Policy, or any part of the Enforcement Discretion Policy, earlier than Aug. 31, 2020. EPA also indicates that it may terminate the Enforcement Discretion Policy on a national or regional level based on changing conditions, such as the lifting of "stay at home" orders and other COVID-19 restrictions. EPA will provide at least seven days' notice to the affected general public before it terminates early any aspect of the Enforcement Discretion Policy in any region.

Notably, EPA has not yet issued a termination addendum for its distinct interim guidance during the COVID-19 pandemic related to cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act (RCRA), Toxic Substances Control Act (TSCA), Oil Pollution Act (OPA) and Underground Storage Tank (UST) program, as well as EPA emergency responses to releases or substantial threats of releases. (A summary of EPA's Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 is available in this previous Holland & Knight alert on April 10, 2020.)

Lastly, many state environmental agencies echoed EPA's Enforcement Discretion Policy with similar enforcement discretion policies at the state level. Following EPA's Termination Addendum, state environmental agencies may similarly reevaluate and set termination dates for their enforcement discretion policies as COVID-19 restrictions begin to lift in some regions.

Interim COVID-19 Health and Safety Guidelines for Field Activities

On July 6, 2020, EPA issued two interim guidance documents pertaining to health and safety measures for field activities during the COVID-19 emergency (Interim COVID-19 Health and Safety Guidelines or the Guidelines). The Guidelines are available on the EPA website. EPA's Interim COVID-19 Health and Safety Guidelines take into account national workforce-related COVID-19 guidance from other federal agencies, such as the Centers for Disease Control and Prevention (CDC) and the Occupational Health and Safety Administration (OSHA), and apply this guidance to environmental field activities.

Specifically, the Guidelines provide information regarding appropriate COVID-19 personal protective equipment to be worn by EPA employees while engaged in field activities; field health and safety training; travel considerations; and other general recommendations that echo workplace guidance from the CDC and OSHA. EPA's Interim COVID-19 Health and Safety Guidelines also include a supplement to the standard Job Hazard Analysis (JHA Supplement) that EPA employees are required to submit before performing typical work activities in order to assess potential COVID-19 risk. The JHA Supplement also includes a form that is used to assess potential COVID-19 risk. The calculated level of risk helps to identify whether additional protective equipment or work practice controls are needed because of COVID-19 risk.

While these Guidelines expressly pertain to EPA employees conducting field activities, the Guidelines can be used as models by regulated entities and environmental professionals to assess risks and reduce the likelihood of COVID-19 spread and exposure while performing environmental field work and typical work activities.

Conclusion

EPA reiterates in the Termination Addendum that it expects regulated entities to comply to the extent possible with federal environmental permits, regulations and statutes during the ongoing global health emergency, both before and after termination of the Enforcement Discretion Policy. Beginning on Sept. 1, 2020, EPA will only offer enforcement discretion for noncompliance emanating from COVID-19-related business disruptions on a case-by-case basis. Therefore, businesses and operations should begin to adjust and prepare for the termination of EPA's Enforcement Discretion Policy, as well as the likely termination of comparable state enforcement discretion policies. To do so, entities should perform a risk assessment that reviews current and potentially ongoing business disruptions that are or could hinder compliance with federal and state environmental statutes, regulations and permits. As part of this assessment, entities should also review EPA's Interim COVID-19 Health and Safety Guidance. Based on this assessment, the entity should develop and implement a compliance plan to ensure that the entity has adequate staffing and resources in place to be in full compliance with environmental obligations by Aug. 31, 2020.

For additional information or questions on the EPA's Termination Addendum or Health and Safety Guidelines, contact the authors.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


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