The EPA isn’t considering extending its temporary enforcement policy beyond its Aug. 31 expiration date, despite surging coronavirus case rates, an agency spokesman said.
The policy, issued on March 26, is meant to give relief to regulated entities unable to comply with certain reporting obligations because of the Covid-19 pandemic.
However, the Environmental Protection Agency “retains the authority to exercise enforcement discretion on a case-by-case basis regarding any noncompliance, including noncompliance caused by the Covid-19 public health emergency,” according to the spokesman.
Coronavirus cases and deaths have risen sharply in the U.S. in recent weeks, and are significantly higher than when the EPA put the policy in place. More than 4 million Americans now have the virus, and some 150,000 have died, according to the Centers for Disease Control and Prevention.
Not ‘Worth the Squeeze’
Patrick Traylor, a former EPA deputy assistant administrator for enforcement and compliance assurance, said the agency’s decision could have been driven by the fact that many states have loosened their stay-at-home orders while the public health crisis remains urgent.
The EPA may also have information that the policy hasn’t been widely used by the regulated community, leading it to conclude that “the juice of an extension isn’t worth the squeeze,” said Traylor, now a partner with Vinson & Elkins LLP.
Further, to extend the policy, the EPA “would have to consider any potential negative effects of an extension on the ongoing litigation over the policy,” Traylor said.
The EPA also “took a lot of heat” from critics in Congress, the environmental community, and the media that interpreted the policy as offering broad waivers that go beyond routine monitoring, reporting, and record-keeping, said Matthew Morrison, a former associate director of the EPA’s air enforcement division who served during the terms of Presidents George W. Bush and Barack Obama.
‘Basis to Live On’?
The policy could “have a basis to live on” if there are no documented cases of regulated entities abusing it, and if the types of problems that made compliance difficult in the first place still exist, said Andrew Stewart, a former division director in the EPA’s Office of Civil Enforcement who also served during Bush’s and Obama’s terms.
Many regions are still enforcing travel restrictions and mandatory self-quarantine measures for people who may have been exposed, said Stewart, now an environmental attorney with Sidley Austin LLP.
“So many complex systems rely on contractors, and there are different sub-specialties to deploy to the field, to check on things that are more remote,” Stewart said.
Morrison, now an environmental law attorney at Pillsbury Winthrop Shaw Pittman LLP, said he doesn’t anticipate the EPA granting many exemptions as it makes individual, case-by-case determinations, except in extraordinary circumstances.
“That may be fair, given that companies now have had several months to adjust and adapt to running their plants under the pandemic,” Morrison said. “And since compliance with emission and pollutant standards was never relaxed, then companies were ostensibly doing some monitoring and at least internal reporting to ensure they remained compliant with standards.”
But the EPA will continue to keep a close eye on Covid-19 case rates, Traylor anticipated.
“If the public health situation seriously deteriorates such that widespread stay-home orders are again imposed, the EPA would at least have to consider whether an extension of the policy would be warranted,” he said.
The relaxed enforcement policy doesn’t have to extend beyond Aug. 31 because new federal guidelines have been issued to support the public health response and economic recovery efforts, Susan Parker Bodine, the EPA’s assistant administrator for enforcement and compliance assistance, wrote in a June 29 memo.
“As state and local restrictions are relaxed or lifted, so too may the restrictions that potentially impede regulatory compliance, reducing the circumstances in which the temporary policy may apply,” Bodine wrote.
EPA chief Andrew Wheeler has repeatedly said the enforcement policy doesn’t permit new emissions.
When the policy was rolled out, it was because “we did not want to have to require people to go into a facility and fill out a form to submit to EPA,” Wheeler said Wednesday during a Heritage Foundation webinar.