EPA Nonenforcement Policy Set to End in August

The Environmental Protection Agency announced in a memo Monday that its controversial enforcement discretion policy, enacted in March, will end by August 31, if not sooner, in response to improving pandemic conditions.

Nine states filed suit against the policy in May, alleging that the decision to not enforce certain monitoring and reporting requirements was an overstep of its authority. The plaintiffs filed a motion for a preliminary injunction in that case, while the defendants have moved to dismiss; briefing for both motions is underway at the time of publication.

The original March 26 memo outlines the policy, citing concerns that worker shortages may impact the ability for businesses to comply with EPA regulations. Enforcement discretion only applies when ” compliance is not reasonably practicable .” The relaxation of enforcement during the pandemic does not apply to criminal violations, nor activities carried out under Superfund or Resource Conservation and Recovery Act regulations.

“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,” the June memo said.

The policy is set to expire on August 31 but may be rescinded before that date in consideration of “changing conditions in a state or region of the country, including as appropriate the expiration or lifting of ‘stay at home’ orders in a state, the status of federal and/or state COVID-19 public health emergency guidelines, and/or other relevant factors or considerations.” Companies will have a week’s notice if the policy is rescinded early.