Despite surging COVID-19 case rates, the Environmental Protection Agency is not considering extending its temporary enforcement policy, meant to provide relief to regulated entities unable to comply with certain reporting obligations, beyond its August 31 expiration date.

However, the EPA “retains the authority to exercise enforcement discretion on a case-by-case basis regarding any noncompliance, including noncompliance caused by the pandemic.”  

The EPA also “took a lot of heat” from critics in Congress, the environmental community, and the media that interpreted the policy as offering broad waivers that go beyond routine monitoring, reporting and record-keeping, said Matthew Morrison, Environmental & Natural Resources partner at Pillsbury and a former associate director of the EPA’s air enforcement division.

Morrison said he doesn’t anticipate the EPA granting many exemptions as it makes individual, case-by-case determinations, except in extraordinary circumstances.

“That may be fair, given that companies now have had several months to adjust and adapt to running their plants under the pandemic,” Morrison said. “And since compliance with emission and pollutant standards was never relaxed, then companies were ostensibly doing some monitoring and at least internal reporting to ensure they remained compliant with standards.”