EPA provides "presumptive termination" date for COVID relief

On June 29, 2020, EPA Assistant Administrator for Enforcement and Compliance Assurance Susan Bodine issued "COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program: Addendum on Termination" (Addendum). The Addendum provides a presumptive termination date for the COVID-19 temporary relief of August 31, 2020, but provides that EPA may terminate the policy earlier either nationally or for specific geographic areas upon seven days' notice.

ANALYSIS

The Addendum begins by noting that federal guidelines and directives have been issued to support health and economic recovery efforts and that many parts of the county have taken steps to reopen. As a result, the Addendum states "the restrictions that potentially impede regulatory compliance" are also relaxing, "reducing the circumstances in which the temporary policy may apply." Based on all of the factors, the Addendum sets an August 31, 2020, 11:59 pm EDST termination time.

In relevant part, the Addendum states:

This temporary policy terminates in its entirety at 11:59 PM Eastern Daylight Saving Time, August 31, 2020. This means that the EPA will not base any exercise of enforcement discretion on this temporary policy for any noncompliance that occurs after August 31, 2020.

In addition, the EPA may terminate this temporary policy (i.e., indicate it does not apply to future noncompliance) 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 COVID19 public health emergency guidelines, and/or other relevant factors or considerations.

In order to provide fair and sufficient notice to the public, the EPA will provide notification at least seven days prior, if it terminates this temporary policy prior to August 31, 2020, either nationally or at a more local level, in whole or in part.

Finally, EPA notes that it reserve the right to exercise enforcement discretion on a case-by-case basis regarding any noncompliance "before or after" the temporary policy is terminated and may do so where "a person or entity makes a reasonable attempt to comply with guidance from the Centers for Disease Control and Prevention or other agencies regarding ... COVID-19, which the person or entity reasonably deems applicable to its circumstances."

COMMENTARY

The Addendum signals that the EPA will end its period of relaxed routine monitoring, recordkeeping and reporting due to the COVID-19 pandemic on August 31, 2020, unless it gives 7-days' notice of cessation earlier. It also preserves EPA's right to exercise enforcement discretion, even after the formal termination of the guidance, where "reasonable attempts" to comply with CDC or other agency guidance were made.