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:
- Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
- Identify the specific nature and dates of the noncompliance;
- Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
- Return to compliance as soon as possible; and
- Document the information, action or condition specified in 1. through 4.
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 specific regulatory requirement in question, including identification of any permit, order or agreement that applies to the entity’s obligations;
- A concise statement describing the circumstances preventing compliance and how the compliance issue is impacted by the COVID-19 response;
- The steps taken to avoid the compliance issue, including whether you contacted EGLE for assistance and why the compliance issue was not reasonably avoidable;
- The anticipated duration of the compliance issue and whether it may create an acute risk or imminent threat to human health or the environment (but emergency situations should be reported to the PEAS Hotline at 800-292-4706);
- Mitigative measures planned to protect Michigan’s environment and public health during the period in which the requirement cannot be met; and
- A central point of contact for the regulated entity, including an email address and phone number.
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.
