EGLE Identifies Process for Requesting Use of Enforcement Discretion During COVID-19 Response

On March 31, 2020, the Michigan Department of Environment, Great Lakes and Energy (EGLE) issued a temporary enforcement memo to address environmental compliance obligations in light of Michigan Governor Gretchen Whitmer’s March 23, 2020 emergency COVID-19 response “Stay at Home” Executive Order, 2020-21 (Order).  That Order basically prohibits in-person work at non-essential businesses.  Recognizing that “disruptions to standard operations may create challenges for regulated entities to meet some legal obligations” as a result of the Order, EGLE has set up a dedicated email box (EGLE-EnforcementDiscretion@mi.gov) where the regulated community can contact EGLE and request that EGLE extend reporting deadlines, waive late fees, or otherwise exercise enforcement discretion with respect to a facility’s environmental compliance.

The state and EGLE have repeatedly reminded businesses with respect to the Order that “this order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.”  EGLE has nonetheless advised that compliance is not excused during the COVID-19 crisis and that “conducting minimum basic operations”, an exception to the Order’s stay at home directive, may include activities required to comply with EGLE permits and environmental laws and standards.

Businesses experiencing difficulties meeting their environmental compliance obligations as a result of the Order or COVID-19 response may nontheless seek temporary relief from these compliance obligations or request that EGLE exercise its enforcement discretion for noncompliance. In requesting relief from EGLE, the email must include:

• The specific regulatory requirement in question, including identification of any permit, order, or agreement that applies to the entity’s obligations;
• A concise statement describing the circumstances preventing compliance and how the compliance issue is impacted by the COVID-19 response;
• The steps taken to avoid the compliance issue, including whether you contacted EGLE for assistance and why the compliance issue was not reasonably avoidable;
• The anticipated duration of the compliance issue and whether it may create an acute risk or imminent threat to human health or the environment (but emergency situations should be reported to the PEAS Hotline at 800-292-4706);
• Mitigative measures planned to protect Michigan’s environment and public health during the period in which the requirement cannot be met; and
• A central point of contact for the regulated entity, including an email address and phone number.

It is important to stress that EGLE has not relaxed, deferred or suspended regulatory requirements by extending this enforcement discretion opportunity. Regulated entities should and must make every reasonable effort to comply with applicable environmental laws and regulations. Do not assume “all will be forgiven” just because of COVID-19 or the Order.

Susan Johnson
248.258.1307
johnsons@butzel.com

Beth Gotthelf
248.258.1303
gotthelf@butzel.com