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Can’t comply with EPA during the pandemic? Documentation is key

Posted by [email protected] on Jun. 26, 2020     

This article originally appeared in Bloomberg Law's Environment & Energy Report. Reproduced with permission. Published May 8, 2020. Copyright 2020 The Bureau of National Affairs, Inc. 

The Federal Environmental Protection Agency issued a policy memorandum March 26 regarding how it will exercise enforcement discretion in light of the COVID-19 pandemic.

While the policy has drawn innumerable articles discussing its contents, this article strives to examine the policy’s practical implications. Documentation and reporting are at the core of this new EPA policy.

To be clear, the EPA’s expectation is compliance. All permit requirements, regulations, and statutes remain in force. The EPA has been very explicit on this. In a March 30 press release and an April 2 letter response to Congress, the EPA sent a strong message that it was still on the job and the policy is not to be construed as a license to pollute.

In the March 26 memorandum, the EPA listed specific areas covered by the policy (e.g., stack testing, leak detection and repair monitoring (LDAR), effluent sampling, and tank integrity testing, to name a few), but what if a specific area or program is not listed? The EPA could not have possibly thought of and listed every possible scenario.

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