US EPA Offers Advice to NPDES Permittees on Documenting COVID-Related Noncompliance While Environmental Groups Seek More Stringent Reporting Requirements
On March 26, 2020, US EPA issued a temporary policy regarding enforcement of routine monitoring, recordkeeping, and reporting violations caused by the COVID-19 pandemic. As discussed in an earlier blog post, US EPA’s temporary policy sets out the Agency’s overall policy to exercise of enforcement discretion during the COVID-19 pandemic and generally not seek penalties for noncompliance with monitoring and reporting obligations if such noncompliance was caused by the pandemic.
On March 31, 2020, US EPA provided further direction to US EPA Regional Offices on how to implement the new temporary policy with respect to NPDES reporting requirements (NPDES advisory), including electronic reporting tracked in US EPA’s Integrated Compliance Information System for the NPDES program (ICIS-NPDES).
Specifically, to aid in identifying data gaps attributed to the pandemic, US EPA has created a new “No Data Indicator” (NODI) in the ICIS-NPDES system for COVID-19 (code “z”). Permittees can use this code to identify missing or incomplete data as attributable to the pandemic and subject to US EPA’s temporary policy without triggering an automatic non-receipt violation. For reporting systems that do not have the code, the Agency recommends using code “k” for natural disasters or another infrequently used code that will not generate an automatic violation while still allowing the authorized agencies to identify the omission as attributable to COVID-19 and subject to enforcement discretion.
The NPDES advisory also includes recommended actions for facilities that cannot report electronically but can report on paper, when facilities cannot report at all, and when facilities can report but no authorized official is available to sign the required form or report.
The NPDES advisory applies to US EPA regional offices, but the Agency strongly encourages states to take a similar approach to ensure consistent national data. The NPDES advisory is to remain in effect for the duration of US EPA’s COVID-19 temporary policy.
Environmental Interest Groups Seek More Stringent Reporting
Almost immediately after US EPA published its COVID-19 temporary policy, questions arose about how it would be used. US EPA faced public backlash from environmental interest groups claiming the policy would be treated as a “license to pollute” and a letter from the House Sustainable Energy and Environment Coalition (“SEEC”) describing it as an announcement that the Agency would “cease all enforcement actions during the coronavirus pandemic.” Further, in a recent letter 11 Senators wrote to US EPA, the temporary policy was cited as a reason for seeking additional information on how US EPA is adjusting its operations in light of COVID-19.
While US EPA has publicly defended its actions — and its NPDES advisory indicates that the Agency intends to rely on existing reporting tools and requirements to track deviations caused by the pandemic as much as possible — a coalition of environmental organizations has petitioned US EPA to do more, and impose a new set of reporting obligations on parties seeking to invoke the temporary policy.
In their petition for emergency rulemaking, filed under the Administrative Procedure Act and the First Amendment, the petitioners ask US EPA to impose mandatory electronic reporting obligations on all companies relying on the Agency’s COVID-19 policy. In particular, the petitioners ask US EPA to require facilities to report:
1. The limitation or standard as to which the entity failed or is failing to monitor, report, test, or sample, including the specific pollutant or pollutants involved, or the inspection or certification no longer being performed or conducted;
2. The relevant permit provision, statute, or regulation that compels the monitoring, reporting, testing, sampling, inspection, or certification at issue;
3. Whether and to what extent the entity’s operations are continuing in other respects;
4. A detailed explanation of the COVID‐19‐related reason claimed to justify the entity’s non‐compliance with monitoring, reporting, testing, sampling, inspection, or certification; and
5. A thorough description of the good faith efforts being made to return to compliance with the requirements as quickly as possible.
Petitioners also ask US EPA to require facilities to file a second report when they resume normal operation, and that the reports be make publicly available.
The petitioners have not stated what they intend to do if US EPA takes no immediate action on their petition. At a minimum, however, petitioners make clear that environmental interest groups will closely monitor facilities that invoke US EPA’s enforcement policy. Coming on the heels of an OIG report concluding that US EPA enforcement has been down generally in recent years, interest groups may also seek to independently enforce applicable environmental reporting and monitoring requirements, through state action or private citizen suits, even while facilities struggle to maintain basic operations during the pandemic.
US EPA has not yet responded to the emergency petition, but the Agency has stated that it will post notifications about relaxed enforcement waivers online for the public to view.