January 24, 2022

Volume XII, Number 24


January 21, 2022

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NGOs Seek Court Order Compelling EPA to Respond to Petition for Emergency Rule on COVID-19 Enforcement Discretion

Key Takeaways

  • Environmental NGOs plan to heavily scrutinize regulated entities’ compliance and EPA’s handling of non-compliance during the pandemic.

  • Although NGOs and some states are concerned that EPA’s enforcement discretion policy will result in non-compliance and diminish public access to compliance documents, significant documentation and support by a regulated entity claiming a COVID-19 compliance impact is a critical condition under EPA’s policy.

  • The NGOs’ request to require real-time notifications to EPA of potential non-compliance and force EPA to contemporaneously make these publicly available, would distract from the EPA’s necessary focus on immediate public health risks and environmental threats.

  • Some states have objected to EPA’s recent policy on enforcement discretion while other states have similar policies or are following EPA’s guidance. It is critical for regulated entities to understand the specific situation in the places they operate as the ground rules for operating during COVID-19 are beginning to be defined differently depending on location.


Just two weeks after a coalition of environmental groups filed a Petition for Emergency Rulemaking (Petition) with EPA regarding the Agency’s policy on its exercise of enforcement discretion during and following the COVID-19 pandemic, the same coalition sued EPA on April 16, 2010, claiming that the Agency has unreasonably delayed in responding to the Petition and must issue a response.

NGOs filed the Petition on April 1 asking EPA to require regulated entities to notify the Agency immediately when they are unable to comply with monitoring, reporting, testing, sampling, inspection, or certification requirements. The Petition also asks EPA to publish, now, an online, publicly searchable database of entities making such notifications. Additionally, the Petition requests that EPA act on an expedited basis by publishing an emergency rule within seven days of receiving the Petition. 

To date, EPA has not formally responded to the Petition; however, reporting by Bloomberg indicates that EPA made a “public statement saying ‘the claims made by the petitioners are false and it is apparent they didn’t even read our guidance.’” Bloomberg also noted that EPA has not commented on the recent suit, as it does not comment on pending litigation.

The Petition Seeks an Unprecedented Level of Reporting

The Petition seeks to impose new obligations for non-compliance reporting and reflects the NGOs’ concern, as evidenced by the lawsuit, that EPA’s enforcement discretion policy will be abused by the regulated community and will obscure non-compliance from the public view. 

EPA’s enforcement discretion policy, however, already underscores the importance of extensively documenting the reasons a regulated entity may seek enforcement discretion for COVID-19 driven compliance issues. 

Moreover, federal environmental laws typically require notification of non-compliance to EPA or a state agency under the specific terms of duly promulgated permits and regulations. This information already becomes available to the public when required compliance reporting is posted to an agency website or in response to an open records request. The Petition seeks to use an emergency rule to expand applicable reporting requirements at a time when EPA and many states are using their enforcement discretion to allow the regulated community to respond to and operate safely during the COVID-19 public health crisis.

States Vary in their Response to EPA’s Policy and the Petition

Fourteen states have sent a letter to EPA asking the agency to rescind its enforcement discretion policy, and the California Attorney General has stated it supports the Petition. By contrast, many states are also issuing their own enforcement discretion policies during COVID-19, as we have previously reported. The division between states highlights the need for regulated entities to stay abreast of policies in each state where a company may operate, particularly in states where companies operate pursuant to permits implemented through federally delegated programs as well as under state law.

EPA’s Flexibility and Discretion in Responding to the Petition

Although the NGOs claim that EPA has unreasonably delayed in responding to its Petition and request for an “emergency” rulemaking proceeding, the Administrative Procedure Act requires only that EPA respond within a “reasonable time.” 5 U.S.C. § 555(b). What is reasonable may be determined in light of the circumstances surrounding COVID-19. As NGOs have done here, judicial review may be sought for a claimed unreasonable delay in responding. 5 U.S.C. § 706(1). Nonetheless, agencies generally receive a fair amount of deference from courts in determining how and when to respond, and EPA could still respond to the Petition despite the suit.

© 2022 Beveridge & Diamond PC National Law Review, Volume X, Number 111

About this Author

Karen M. Hansen Water Regulation Attorney Beveridge & Diamond Austin, TX

Karen Hanson’s practice focuses on the Clean Water Act and state programs for regulating and permitting water discharges and water supply/use, and on environmental, health, and safety audit review and implementation. 

She has extensive experience assisting industrial and municipal clients in preparing strategies for and pursuing water permits for ongoing operations, expansions and new operations, including permit challenges. Karen also represents clients that must defend CWA and state water law enforcement actions, including claims pursued by governmental as well as third party...

Andrew C. Silton Environmental Litigation Attorney Beveridge & Diamond Washington, DC

Andrew C. Silton guides clients through complex regulatory issues and high stakes litigation arising under the nation's clean water laws.

His practice focuses primarily on issues arising under the nation’s water quality laws and spans regulatory counseling, enforcement defense, and litigation. He is currently the Deputy Chair of the firm’s Water Practice Group and represents clients from both the private and public sectors in matters arising under the Clean Water Act and state law. Drew advises clients in a variety of sectors, ranging from waste and stormwater utilities to companies...

Allyn L. Stern Environmental Attorney Beveridge & Diamond Seattle, WA
Of Counsel

Allyn brings over 30 years of insider understanding of government operations.

Her experience as former Region 10 Counsel at the Environmental Protection Agency (EPA) informs her deep policy, regulatory, and enforcement knowledge. Allyn draws on her breadth and depth of expertise to help clients comply with an array of environmental statutes and regulations applicable to their businesses, including Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) permit approvals, risk management under the Clean Air Act 112(r), civil and criminal enforcement, Superfund cleanup...

Sarah N. Munger Environmental Attorney Beveridge & Diamond Austin, TX

Sarah’s versatile practice spans numerous environmental media. She assists clients in regulatory compliance, enforcement actions, and civil litigation under major federal and state environmental statutes, including the Clean Air Act and Clean Water Act. In particular, Sarah has worked with clients to respond to developing legal issues related to:

  • Climate change and natural disasters;
  • Plastic waste;
  • PFAS; and
  • Environmental torts

Prior to joining Beveridge & Diamond, Sarah worked at the Lower Colorado River Authority,...