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OnePoint Alert

April 30, 2020

Groups Demand Immediate Publication of Requests For COVID-19 Enforcement Discretion

By Bernard F. Hawkins, Jr.

As a follow-up in the lawsuit filed by public interest groups against the U.S. Environmental Protection Agency (“EPA”) in the U.S. District Court for the Southern District of New York, challenging the EPA’s March 26, 2020 COVID-19 enforcement discretion policy, the plaintiffs filed a brief on April 29, 2020 supporting a Motion for Summary Judgment and asking for expedited hearing on the matter. See attached link (“Memo in Support”). The Memo in Support alleges that EPA failed to respond to plaintiffs' request that EPA issue a rulemaking on enforcement discretion and failed to require publication of a list of all requests for enforcement discretion. EPA has yet to file a formal response but has addressed points raised in the Memo in Support, including emphasis on the facts that the EPA’s enforcement discretion policy does not allow regulated entities to ignore environmental laws and does afford continued protection for human health and the environment.

EPA has not published a list of entities requesting any enforcement discretion under the EPA temporary enforcement policy. However, this type of information is becoming available. For example, the Texas Commission on Environmental Quality (“TCEQ”) published a spreadsheet dated April 24, 2020 showing the status of requests received by TCEQ for enforcement discretion. See attached link. There is likely to be a continued push to publish this sort of list – both by EPA and state agencies. There is not an apparent exemption from FOIA disclosure requirements for this information.