US EPA Expiring Enforcement Discretion Policy on August 31

AUGUST 25, 2020

The U.S. Environmental Protection Agency (EPA) is ending the enforcement discretion policy it put into place in March in response to the COVID-19 pandemic. On Aug. 31, 2020, the EPA will return to pre-COVID enforcement guidelines, and any non-compliance from that point on will not benefit from the discretionary terms of the temporary policy.

Recognizing that challenges resulting from efforts to protect workers and the public from COVID-19 may impact the ability of regulated facilities to meet all federal regulatory requirements, the EPA issued the enforcement discretion policy on March 26, 2020. The policy was intended to grant relief to regulated entities unable to comply with certain monitoring and reporting requirements due to the COVID-19 pandemic. Specifically, the EPA stated:

“In general, the EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.”

However, the EPA did retain the authority to exercise enforcement discretion on a case-by-case basis regarding any noncompliance, including noncompliance caused by the pandemic. The agency also included in its original memo the caveat that they could terminate this temporary policy on a state or national basis, in whole or in part, at any time.

State response to the EPA’s enforcement discretion policy has been varied, with some adopting it, others developing their own version of the policy and several scrutinizing it. Several states disagreed with EPA’s approach and filed a lawsuit in May to stop the policy from going into effect, prior to the EPA’s announcement to terminate the discretion policy.”

Clean Earth is on the forefront of addressing regulatory changes and ensuring our customers remain compliant with all local, state and federal regulations when managing their waste streams. We will continue to monitor for amendments to this decision as the EPA will provide notification of any updates at least seven days in advance.

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