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EPA Issues Guidance on Enforcement Discretion During COVID-19 Pandemic

By: Ted A. Warpinski and M. Andrew Skwierawski

On March 26, 2020, EPA issued the policy document entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” The policy document addresses situations where compliance with environmental obligations may not be “reasonably practicable” due to COVID-19. The policy is retroactive to March 13, 2020. Regulated entities would still need to report their non-compliance under the terms of their permit or other requirement, but EPA is indicating that it will waive penalties for violations if the failure is due to COVID-19. Some of the routine requirements, such as compliance monitoring, sampling, laboratory testing, routine reporting could certainly be delayed due to COVID-19 with the need for social distancing and restrictions on travel, so this guidance can be seen as a good indicator that delays in completing these tasks will not result in further financial hardship. Timely response to accidental releases are still required and EPA indicates that its priority will be responding to acute risks and imminent threats to public health and the environment. We have not seen similar guidance from Wisconsin DNR, but it would generally be reasonable to expect that the State would address compliance requirements in a similar fashion.

We will continue to monitor the impact of COVID-19 and provide guidance to businesses via our Coronavirus Legal and Business Resource hub.