The Illinois Environmental Protection Agency (“IEPA”) posted a Compliance Expectations Statement (the “Statement”) as guidance during the COVID-19 crisis. As discussed in the Jenner & Block Corporate Environmental Lawyer previous blog post, the United States Environmental Protection Agency (“U.S. EPA”) recently issued its own temporary guidance regarding exercise of its enforcement discretion during the COVID-19 situation. U.S. EPA acknowledged that the individual states should issue their own guidance based on each state’s specific COVID-19 situation. Consistent with that guidance, IEPA issued its Statement.
Importantly, IEPA’s Statement is not intended to be used as a “get out of jail” card. At the beginning, the Statement specifically notes that “[a]ll regulated entities are expected to take every possible step to ensure ongoing compliance with environmental requirements, including all terms and conditions contained in permits, so that all regulated facilities or activities are operated and maintained in a manner safe for human health and the environment.” However, if a regulated entity is unable to comply with environmental requirements because of Governor Pritzker’s Executive Order 2020-10 and disaster proclamations, IEPA acknowledges that enforcement discretion may be appropriate.
IEPA acknowledges that it will exercise enforcement discretion in “situations brought on by, and directly related to, responses to COVID-19 that will not create or result in harm or risk to human health or the environment.” These situations will be “considered on a case-by-case basis” and will involve “interaction between the regulated entity and the Agency prior to the potential noncompliance to allow full discussion of the circumstances.” Compliance will be expected as soon as possible following the easing of COVID-19 restrictions.
Notably, this approach does not extend to critical infrastructure, such as drinking water or wastewater facilities, nor will it allow for any practice, action, or event that could create or result in harm or risk to human health or the environment.
The key takeaway for regulated entities with respect to the IEPA Statement, U.S. EPA’s temporary guidance, and other similar state guidance relating to enforcement discretion in connection with the COVID-19 situation is to communicate early and often with the regulators. As a general matter, it has been our experience that most state regulators are willing to work with regulated entities to streamline reporting and/or other obligations so long as that streamlining process does not result in an increased risk of harm to human health or the environment.
Jenner & Block’s Corporate Environmental Lawyer will continue to update on these matters, as well as other important COVID-19 related guidance, as they unfold.