EGLE Establishes Process for Handling Enforcement Discretion Due to COVID-19 (ended July 1, 2021)
Effective July 1, 2021, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) ended its temporary policy for receiving and responding to COVID-19-related enforcement discretion requests from regulated entities.
Returning to the department's pre-pandemic procedures, regulated entities should direct all enforcement discretion requests to their contacts in the relevant EGLE program(s). If regulated entities are uncertain of whom to contact, they should email EGLEfirstname.lastname@example.org.
Instead of providing regulated entities blanket COVID-19-related discretion in certain areas of the law, as U.S. EPA and some states did in Spring 2020, EGLE's temporary policy considered COVID-19-related enforcement discretion requests case-by-case. It required regulated entities to submit detailed requests including:
- 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 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); and
- Mitigative measures planned to protect Michigan's environment and public health during the period in which the requirement cannot be met.
EGLE tracked and summarized more than 175 such requests in a publicly accessible spreadsheet posted on the department website. As mentioned below, that spreadsheet is currently in the process of being updated for a final time and will be reposted soon.
The significant majority of requests were received in the first three months following the initial issuance of stay home, stay safe orders, as regulated entities faced the pandemic period's strictest limitations on in-person work and learned to adjust their operations accordingly.
While trailing pandemic impacts continue to cause episodic challenges in maintaining compliance with environmental regulations, enforcement discretion requests related to COVID-19 have decreased dramatically as the economy has gradually re-opened.
EGLE will continue to consider requests related to COVID-19 challenges case-by-case, However, the department will return to the pre-pandemic practice of routing all enforcement discretion requests through the EGLE programs overseeing the relevant regulations.
A summary of all requests EGLE received for regulatory flexibility related to the COVID-19 pandemic has been available for public review in a regulatory flexibility spreadsheet posted here. EGLE ended its temporary process for handling enforcement discretion due to COVID-19 on July 1, 2021. The summary spreadsheet is now being updated for a final time and will be reposted here soon. In the meantime, requests for information on specific enforcement discretion requests may be made via email to EGLE-Reporting@Michigan.gov.