As discussed in one of our earlier blogs, back in March 2020, the U.S. Environmental Protection Agency (EPA) issued its controversial Enforcement Policy outlining certain situations where EPA would not pursue enforcement actions for specific instances of noncompliance in response to the COVID-19 pandemic. Most of the suspended obligations related to routine monitoring and reporting; settlement agreement and consent decree reporting obligations and milestones; control and treatment compliance; and the transfer and disposal of hazardous waste.
As detailed in its June 29, 2020, Addendum, EPA’s Enforcement Policy is set to expire today, August 31, 2020, at 11:59 pm EST, meaning that regulated entities that were relying on EPA’s enforcement discretion are expected to resume complying with environmental laws and permits no later than September 1, 2020.
It should be noted that in the June 29, 2020, Addendum, EPA states that termination of its Enforcement Policy does not limit its ability to exercise enforcement discretion on a case-by-case basis, inferring that EPA will take COVID-19 related reasons for noncompliance into consideration when determining whether to apply its enforcement discretion.
Nevertheless, regulated entities should continue to make “every effort” to comply with all environmental laws, regulations, and timeframes and should be proactive in communicating early on with EPA and documenting any suspected noncompliance issues due to COVID-19, in order to best protect themselves against liability down the road.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.