EPA “Discretionary Enforcement” During COVID-19

On March 26, 2020, the EPA issued a memorandum announcing that it is temporarily suspending enforcement action due to the COVID-19 pandemic. Where the EPA agrees that COVID-19 was the cause of noncompliance, it “does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations.” Additionally, the EPA suggests that it will be less likely to carry out enforcement action if other types of violations, like exceedances of effluent limits, were caused by the pandemic. 

(Source: Earth Justice)

With its new policy, the EPA can choose not to hold polluters legally responsible under our environmental laws. Further, the EPA has not set an end date for this discretionary enforcement policy, which may allow industries to violate federal environmental laws without fear of penalty. 

What isn't relaxed under this policy is the ability of citizens, and organizations like Miami Waterkeeper, to enforce our environmental laws by way of citizen suit provisions. 

Waterkeepers across the nation are contacting state environmental agencies to ensure that they maintain enforcement practices for environmental laws, especially critical protections for clean water under the Clean Water Act.

“EPA is giving polluters a “get out of jail free” card for pollution violations that will make people sicker. The effects of this temporary measure may be felt for decades: Once polluted, our water, air, and land can take generations to heal.” - Daniel E. Estrin, General Counsel and Advocacy Director at Waterkeeper Alliance.

Read EPA’s full memorandum HERE.