EPA Defends Eased Enforcement But States Give Mixed Messages

A top EPA official Friday defended the agency’s decision to ease certain monitoring and reporting requirements during the coronavirus pandemic, saying “acute” threats or accidental releases of chemicals and pollution won’t be ignored.

The Environmental Protection Agency isn’t “walking away at all,” from holding U.S. industries accountable, Susan Bodine said at an online forum hosted by the American Bar Association’s Environment, Energy, and Resources section.

Bodine, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance, authored the agency’s March 26 guidance.

The memo said the EPA wouldn’t seek fines for routine reporting and monitoring. The policy was made retroactive to March 13, given much of the U.S. workforce is under state stay-at-home orders and other precautions to combat the Covid-19 pandemic.

The “overarching” premise of the memo is that the EPA “will not provide you with any enforcement discretion associated with those acute threats, substantial endangerment” or other imminent hazards, Bodine said.

Environmental groups have decried EPA’s move as a “don’t ask don’t tell” policy and evidence of a continued campaign by the agency under the Trump administration to roll back environmental requirements.

Companies must show that any noncompliance stemmed directly from pandemic-related issues, Bodine said.

“Everything is contingent upon a demonstration that it’s related to Covid,” she said.

State Confusion

Some states have vowed to hold the line against easing of environmental enforcement and the Natural Resources Defense Council, Public Citizen, and other groups filed a federal lawsuit Thursday in New York to force EPA to disclose ahead of time any easing of enforcement policies.

Gwendolyn Fleming, a former EPA official who participated in the ABA forum, noted confusion over the agency’s new guidance at the state level. She said states that have authority to enforce environmental regulations are either following the guidance, making no change, or not saying how they will enforce regulations in the wake of the pandemic.

Fleming, who has been tracking state responses to EPA’s policy for weeks, said at least 28 states are in various stages of responding, either agreeing to follow EPA policy, like Wyoming and Georgia, or to leave enforcement policies unchanged, like West Virginia.

Several other states have not said how they plan to respond to the EPA’s guidance, said Fleming, a partner at Van Ness Feldman LLP. who was the EPA’s chief of staff during the Obama administration.

U.S. companies are wondering whether to follow state or federal guidelines “in the absence of a statement by the state,” she said.

“What we’re recommending to clients is that in states where there has not been an official word from the state regulator, you might want to call, find out and build relationships proactively and see whether you can get in touch” with the state agency, Fleming said.

Approaching an agency now could ensure a company isn’t “inadvertently creating problems” by misreading the degree to which state environmental regulators are relaxing enforcement or not, she said.