Last week, the United States Environmental Protection Agency (EPA) released a potentially broad policy restraining federal civil enforcement for various environmental obligations. Specifically, the March 26, 2020 Bodine Memo states that the EPA will conditionally exercise “enforcement discretion” for noncompliance with environmental obligations caused by the COVID-19 pandemic. Although the “temporary” EPA policy applies as of March 13, 2020, it does not identify a sunset date. The EPA policy does not apply to criminal violations, operation of water utilities, import rules or RCRA correction actions. In addition, it does not restrict authorized states and local agencies from exercising independent judgment about enforcement. When environmental compliance is not reasonably practicable, the entity seeking the EPA’s exercise of enforcement discretion should:
Yesterday, the Michigan Department of Environment, Great Lakes and Energy (EGLE) offered its version of an enforcement discretion policy. Unlike the federal policy, the EGLE policy requires the submission of an email request for the state to “consider extending reporting deadlines, waiving late fees and otherwise exercising enforcement discretion.” The EGLE policy directs requesters to include:
The EGLE policy continues by specifying that alternative monitoring or recordkeeping may be necessary and that exchanges remain subject to the Freedom of Information Act (FOIA). Suffice it to say, the EGLE policy appears to provide fewer assurances that enforcement discretion will result.
Please contact Kurt Kissling or your Warner Resources, Energy and Environment Law Practice Group attorney if you’d like to discuss any potential areas where it may make sense to consider invoking one or both of these agency policies or if you have any questions regarding your environmental compliance obligations.