U.S. EPA Set to End Enforcement Discretion Policy

By [ Kaela Martins ]
07/13/2020

The U.S. Environmental Protection Agency (EPA) recently announced that the enforcement discretion policy put into place in March 2020 in response to the COVID-19 pandemic will end on August 31, 2020. EPA’s enforcement discretion policy had suspended some monitoring and reporting requirements for specific entities to address noncompliance issues due to COVID-19. This was not to be seen, however, as an invitation to noncompliance but rather the acknowledgement of difficulties that some entities may have had with routine compliance activities during the pandemic. The Agency did include in their most recent memo the caveat that they could “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…”

State responses to EPA’s enforcement discretion policy have been varied. Some states like Arizona and Georgia, adopted the EPA’s enforcement discretion policy, while many other states developed their own version of the policy (the Retail Compliance Center has a list of state enforcement policies likely to apply in retail). Nine states had pushed back on the EPA’s enforcement discretion policy, stating that it provided regulated entities the opportunity to violate environmental laws and potentially increase harm to the public, particularly low income and minority communities who are also suffering disproportionally from COVID-19. As a result, these states filed a lawsuit in May, prior to the EPA’s announcement to terminate the discretion policy. Additionally, since issuing the policy in March, U.S. EPA has come under fire from environmental advocacy groups that view the policy as a license to pollute. Several states with their own policies have ended their discretion programs, while some states like Virginia have not provided an end date.

With variations in state COVID-19 cases and state reopening plans, regulated entities are left uncertain about how inspections and enforcement will proceed in the future. Wade Scheel, Director of Governmental Affairs at Clean Earth, shared his thoughts in a recent RILA committee meeting on how he believes this changing landscape may lead to reduced compliance risks and overall program improvements. According to Scheel, COVID-19 social distancing requirements could lead to fewer onsite inspections and move regulatory oversight towards a more virtual world. He suggested that virtual technology could be used for compliance assessments, and that webinars would be used for guidance, meetings for enforcement actions and even public hearings. In addition, email communication and electronic submittals and digital signatures could be more widely accepted.

With no sure certainty or consistency of how the changes in COVID-19 cases will affect enforcement, regulated entities should still ensure compliance to their best ability and stay up to date with any changes to enforcement. In this unpredictable time, it is even more important for retailers to implement compliance programs that provide a systematic structure to ensure compliance and reduce regulatory risk, even during outside disruptions. RILA’s Retail Advisor for Environmental Compliance is a free tool to help retailers evaluate and benchmark their environmental compliance programs.

RILA’s Environmental Compliance Committee (ECC) also has many resources on environmental regulatory compliance for retail, in addition to COVID-19 specific information. To stay up to date sign up for RCC Alerts. Other resources to help ensure compliance are included in the box below.