The Nickel Report

Commentary regarding the US Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) memorandum articulating a temporary policy applying enforcement discretion in light of the COVID-19 pandemic has been significant this week. Proponents and critics alike have misinterpreted the scope of the policy as reaching far beyond what OECA’s memorandum actually stated. As we stated in Deciphering EPA’s Temporary Enforcement Discretion Policy for COVID-19 and as the EPA has now confirmed, the “temporary policy” of exercising enforcement discretion for noncompliance “resulting from the COVID-19 pandemic” is not a free pass to pollute, despite opponent’s musings to the contrary.

In an unusual rebuttal to public statements to correct the record on the scope of the temporary compliance policy, OECA issued a press release on March 30, 2020, urging parties to “actually read the policy” instead of relying on often ill-informed reporting. OECA stated that “[t]his temporary policy is not a license to pollute,” and, contrary to the recent news reports, it does not provide a “blanket waiver of environmental requirements or create[] a presumption that the pandemic is the cause of noncompliance.” OECA reiterated the bottom-line take away from the policy:

EPA expects regulated entities to comply with all obligations and if they do not, the policy says that EPA will consider the pandemic, on a case-by-case basis, when determining an appropriate response.”

Given the headlines characterizing the policy as a “license to pollute,” it is not surprising to see swift Congressional reaction. In response to OECA’s press release announcing the policy, leaders of the House Sustainable Energy and Environmental Coalition submitted a letter to EPA chief Andrew Wheeler on March 31 opposing what they characterize as the “memorandum announcing that the agency will cease all enforcement actions during” COVID-19. They express concern that the policy grants “polluting industries a free pass to contaminate our air and water.”

OECA Assistant Administrator Susan Bodine responded to Congress on April 2, stating: “Irresponsible allegations that EPA is giving industry a license to pollute mischaracterizes the Agency’s response …. To be clear, EPA continues to enforce our nation’s environmental laws.” The letter cites prior EPA action to exercise facility-specific enforcement discretion in response to natural disasters—including Hurricanes Katrina, Rite and Sandy—but explains that the nationwide impact of the pandemic makes facility-specific determinations impracticable.

Although the policy is nationwide, Assistant Administrator Bodine’s letter emphasizes that the process for the exercise of enforcement discretion in any particular instance will be case-specific, explaining that:

“The Temporary Policy does require case-by-case determinations. But under the Temporary Policy, those determinations will be made after the pandemic is over and EPA reserves the right to disagree with any assertion that noncompliance was caused by the pandemic. Specifically, the Temporary Policy clearly states that EPA is not seeking penalties for noncompliance only in circumstances that involve routine monitoring and reporting requirements, if, on a case-by-case basis, EPA agrees that such noncompliance was caused by the COVID-19 pandemic. In this scenario, regulated parties must document the basis for any claim that the pandemic prevented them from conducting that routine monitoring and reporting and present it to EPA upon request.”

Given the extensive misinformation about the policy circulating in the press and political circles, it is incumbent upon companies to read the memorandum closely and evaluate what it may mean for potential enforcement in the event the COVID-19 pandemic renders continued compliance impossible.

As we previously wrote, regulated companies remain subject to existing environmental compliance obligations. In light of OECA’s press releases this week stressing the fairly limited scope of the temporary policy, companies subject to environmental compliance obligations should continue to make every effort to comply with those duties. In the event of an anticipated, potential compliance problem, one should develop a strategy and analyze whether OECA’s temporary policy may play a role.