Amid criticism and litigation, EPA sets date to sunset its controversial COVID-19 enforcement policy
The U.S. Environmental Protection Agency (EPA) has set August 31, 2020 as the date for the termination of its COVID-19 enforcement policy. A copy of the EPA’s June 29, 2020 termination memo can be found here.
The EPA’s COVID-19 policy, originally issued on March 26, 2020, set forth the way in which the EPA intended to apply its enforcement discretion for any noncompliance with federal environmental laws by regulated entities caused by the COVID-19 pandemic. Under the currently applicable COVID-19 policy, found here, regulated entities are expected to continue to use best efforts to meet their environmental compliance obligations. If compliance cannot be achieved, regulated entities should act as responsibly as possible under the circumstances, document the way in which the COVID-19 pandemic was the cause of any noncompliance at a facility, and return the facility to compliance as soon as possible.
With the lifting of state and local stay-at-home restrictions and the advent of cautious return-to-work policies, the EPA has determined that the circumstances that gave rise to its COVID-19 policy, such as employees being at home and a lack of timely laboratory testing, are not the same as they were a few months ago. Based on current information, the EPA has determined that August 31, 2020 is an appropriate termination date. However, the EPA acknowledges the fluidity of the situation and the possibility of terminating the policy at different dates in different parts of the country based on the circumstances.
In consideration of the EPA’s COVID-19 policy, as well as the possibility of state environmental agency or citizen enforcement, we have advised regulated entities that if they find themselves unable to achieve environmental compliance for reasons due to the COVID-19 pandemic, they should presume that they will one day have to prove up the cause of any noncompliance and actions taken to return to compliance. Accordingly, regulated entities should always be thinking about the creation of reliable evidence. The following is a non-exhaustive list of factors we consider important in the creation of such evidence:
- Documentation should be made contemporaneous with noncompliance.
- Memories will fade, so put it in writing.
- Identify key personnel and witnesses, including venders and consultants.
- Record the date of noncompliance.
- Identify the specific nature of noncompliance.
- Identify decisions and actions taken in response to any inability to comply.
- Identify best efforts and steps taken in attempting to comply.
- Record when able to return to compliance.
- Keep reports, memos, paper and electronic correspondence.
- Avoid glib or flippant statements, errant emails and political statements of opinion that may have to be explained later.
In addition to the EPA’s COVID-19 policy, regulated entities should always be mindful of state or other environmental agency policies regarding noncompliance that may apply in their specific jurisdictions. Some of these policies require affirmative notifications of noncompliance rather than just internal documentation. We had previously written about environmental noncompliance considerations beyond the EPA’s COVID-19 policy – e.g., state enforcement, citizen enforcement, and business issues – which can be found here.
As can be imagined, since adoption, the EPA’s COVID-19 policy has been quite controversial. Two significant federal lawsuits have been filed to nullify and adapt the EPA’s COVID-19 policy. In New York v. EPA, No. 20-CV-3714, in the U.S. District Court for the Southern District of New York, nine states are seeking to have the EPA’s COVID-19 policy vacated. In NRDC v. EPA, No. 20-CV-2058, in the U.S. District Court for the Southern District of New York, several environmental organizations are seeking emergency rulemaking requiring prompt public notice of any regulated entity’s failure to conduct any monitoring or reporting required under any environmental laws in reliance on EPA’s COVID-19 policy.
While it can be expected that the COVID-19 policy will sunset before the above litigation is completed, disputes regarding regulated entities’ failures to achieve environmental compliance during the pandemic will certainly persist. The sunset policy tacitly, if not explicitly, acknowledges that different areas of the country will have different experiences. Our national practice confirms that each area of the country is experiencing the pandemic differently – with no one size fits all response. Moreover, regulatory compliance extends beyond environmental (EPA) matters – certainly to, and including occupational safety and health (OSHA) issues. Regardless of any COVID-19 enforcement policies issued by the EPA or otherwise, we have stressed the importance of contemporaneous, relevant, precise documentation and the development of reliable and admissible evidence regarding any noncompliance and efforts taken to return to compliance. No matter what, a regulated entity that fails to achieve compliance will need to be prepared to explain why the COVID-19 pandemic made it impossible to or frustrated its efforts to comply with any laws, regulations and requirements. We encourage working with counsel on preparing appropriate documentation of all relevant facts and circumstances.
Our Environmental Practice Group is continuing to monitor these developments and is available to answer your questions related to matters affected by COVID-19. Contact Matthew Cohn and Bill Anaya in Chicago or Richard Greenberg and Greg Mollett in St. Louis.