EPA enforcement discretion policy to end next month

The original policy, which came in the form of a March 26 memo, stated that the EPA won’t seek penalties for certain violations in situations where the agency believes the coronavirus pandemic caused the noncompliance. The EPA went on to assert that disruptions to facility operations or labs and staff shortages may hinder the ability “to meet enforceable limitations on air emissions and water discharges, requirements for the management of hazardous waste, or requirements to ensure and provide safe drinking water.”

The policy was so controversial that it sparked a federal lawsuit, filed in May in the U.S. District Court for the Southern District of New York, by a coalition of nine attorneys general. The lawsuit argued, among other things, that the EPA policy is “overly broad, lacks transparency and accountability, and will result in higher pollution emissions by industry and corresponding impacts on public health and the environment.”

The policy, while temporary, did not establish an end date. But in a June 29 memo addressing the government and private sector, Susan Parker Bodine, assistant administrator for enforcement and compliance assurance at the EPA, announced an Aug. 31 end date to the policy.

The EPA added that it “may terminate this temporary policy … on a state or national basis, in whole or in part, at any earlier time, taking into account changing conditions in a state or region of the country, including as appropriate the expiration or lifting of ‘stay at home’ orders in a state, the status of federal and/or state COVID-19 public health emergency guidelines, and/or other relevant factors or considerations.” If that does occur, the EPA said it will provide notification at least seven days prior.