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OnePoint Alert

April 21, 2020

Environmental Groups Sue EPA Over Use of COVID-19 Enforcement Discretion Policy

By Bernard F. Hawkins, Jr.

Fifteen public interest groups filed a lawsuit against the U.S. Environmental Protection Agency (“EPA” or “the Agency”) in federal court for the Southern District of New York (Case No. 20-cv-3058, ECF Case) on April 16, 2020 challenging EPA’s March 26, 2020 policy, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program,” addressing enforcement – also referred to as the “Temporary Policy.” See link for Complaint. The Complaint alleges that: “EPA’s policy allows regulated companies to stop monitoring, reporting, and certifying their compliance with limits on air and water pollution if the company claims a pandemic-related constraint. The policy permits a company to document its noncompliance and the reason for it ‘internally’ and tell EPA about it later, if asked.” Complaint, Count 1. The Complaint further alleges: “The policy creates a serious and immediate risk that industrial facilities and other regulated entities will stop monitoring and reporting for compliance with pollution limits, with no contemporaneous notice to EPA or to the public. The programs implicated by EPA’s non-enforcement policy provide vital protections and information to the public about hazardous air pollutants, toxic chemical releases, drinking water safety, and more.” Complaint at Count 3.

The Complaint alleges that EPA’s Temporary Policy will result in certain "downwind" and “downstream" communities being unable to plan to address releases. Complaint at Count 4. It also alleges the Temporary Policy will eliminate a deterrent effect on sources. Complaint at Count 7. The Complaint further claims that the EPA Temporary Policy “does not describe the circumstances in which EPA believes a facility could safely continue to operate during the pandemic but not safely perform ‘routine activities’ such as monitoring for compliance with pollution limits or other public-health or environmental protections.” Complaint at Count 42. The pleading continues with a long list of circumstances in which Plaintiffs alleges EPA’s Temporary Policy will not afford adequate protection for human health and the environment.

The plaintiffs previously petitioned EPA on April 1, 2020 to publish a rule on an emergency basis, requiring any entity “that stops monitoring and reporting for environmental pollution in response to the COVID-19 pandemic to provide written notice and justification to EPA, which EPA would then make available to the public.” Complaint at Count 10. See link for attached Petition. The Complaint requests the Court to compel EPA to respond to the emergency rulemaking petition. Complaint at Count 14 and Request for Relief.

EPA has addressed the type of allegations appearing in the Complaint in the Temporary Policy itself as well as a clarification of the Temporary Policy by letter dated April 2, 2020 (“April 2 EPA letter”). In the April 2 EPA letter, the Agency made it clear that it was continuing to enforce the nation’s environmental laws, and that the Temporary Policy continues to require a case-by-case determination of whether any deficiency qualifies for enforcement discretion under the Temporary Policy. See April 2 EPA letter at pages 1 and 2. The April 2 EPA letter notes that in most instances, those case-by-case determinations will not be made until after the pandemic – with the limited exception for circumstances where a company receives an advance “No Action Assurance” waiver. See April 2 EPA letter at page 2 and Temporary Policy at pages 6-7.

With respect to specified unpermitted discharges or releases resulting from failures of pollution control equipment, the Temporary Policy itself provides for notification as quickly as possible. EPA indicates regulated entities should continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment. See Temporary Policy at pages 4-5.The Temporary Policy specifies that facilities “should contact the appropriate implementing authority (EPA region, authorized state, or tribe) if facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment.” Temporary Policy at page 4. EPA further indicates its intention to focus the Agency’s limited resources on any situation creating an acute risk or imminent threat to public health or the environment. See Temporary Policy at pages 4-5, and 7. EPA makes the case that this approach is consistent with the best use of its limited capacity and the desire to avoid unnecessarily subjecting people to COVID-19 infections. Further, the Temporary Policy does not provide relief for criminal actions. See April 2 EPA letter at page 3.

Given the above considerations, there appears to be no undue encouragement for sources to somehow blatantly disregard environmental requirements or carelessly allow situations to exist that could endanger human health or the environment. This is especially the case given that sources, in most cases, will not have an agreement on EPA’s enforcement discretion until after the fact, if ever. All enforcement options would be on the table when a source is considering how to respond to a situation arising during the pandemic. 

In addition, the Temporary Policy itself provides that sources seeking relief under the Temporary Policy should “make every effort to comply with their environmental compliance obligations.” Temporary Policy at page 2. Sources should act responsibility under the circumstances to minimize any effect or duration of any noncompliance, COVID-19 should be identified as the cause of the noncompliance, sources should return to compliance as soon as possible, and they should document the information addressed in the Temporary Policy. See Temporary Policy at page 3. Again, these provisions (including the requirement for documentation) stand against any allegation that the EPA Temporary Policy encourages sources to carelessly ignore environmental requirements or that the Temporary Policy promotes some wholesale reckless failure to comply with discharge or release limitations that will endanger public health and the environment.

States may pursue their own enforcement actions. For example, on April 15, 2020, Attorneys General from 14 states wrote a letter to EPA challenging EPA’s Temporary Policy and indicating they intended to continue pursuing enforcement. See attached link. It is also likely that the same environmental groups reflected in the Complaint, among others, will pursue citizen suits in cases where they take issue with any alleged violation of environmental requirements – especially in case where endangerment and harm is alleged to have occurred.

Finally, addressing the allegation that there should be pre-approval for any discretionary use of enforcement, EPA responds that:

"The Agency strongly disagrees with those who argue that a more appropriate response to this public health crisis would be to force facilities to either shut down or to put people at risk by keeping all their workers at the facility at the same time, to continue routine monitoring and reporting in addition to maintaining the operation of critical infrastructure, including pollution control equipment. It also is no solution to force facilities to choose one of those options until EPA or a state could review the facts of each situation and approve an individual site-specific not action assurance."

April 2 EPA letter at page 3. EPA has pointed out that it does not have the capacity to pre-approve emergency compliance plans for the roughly 4.6 million facilities it regulates.

In conclusion, various public interest groups have filed suit to challenge EPA’s March 26 Temporary Policy. Any source anticipating use of this policy should be aware of this challenge as well as the fact that fourteen state’s Attorneys General have also gone on record as expressing reservations about the policy and requesting that it be rescinded. See link to AG Letter. Likewise, sources should continue to preserve all other defenses which may be available through other means, such as by regulation, permits, other documents and/or voluntary disclosure provisions, and must realize that some obligations may not be such that they are suitable for extensions or avoidance.