Analysis

Greens See Red, Attys Urge Care With New EPA Virus Policy

By Juan Carlos Rodriguez
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Law360 (March 27, 2020, 9:35 PM EDT) -- The U.S. Environmental Protection Agency's decision to temporarily suspend some compliance obligations for entities affected by the coronavirus crisis was condemned by green groups as a free pass for polluters, but attorneys who work with companies say it's appropriate for the circumstances as long as clients don't stretch their interpretations too far.

On Thursday, Susan Bodine, who leads the EPA's Office of Enforcement and Compliance Assurance, issued a policy to the agency's various state, tribal and local government partners outlining the agency's approach to enforcing regulations when regulated entities find themselves unable to comply due to COVID-19-related circumstances like personnel shortages or travel restrictions.

The policy generally divides compliance obligations into tiers and treats potential violations differently. Significant leeway will be given to businesses that show they can't meet routine compliance monitoring and reporting requirements, while those at risk of allowing discharges or emissions that could damage human health and the environment will be scrutinized more closely. Once the coronavirus crisis has passed, Bodine said the policy will be rescinded.

Bernadette Rappold, a shareholder at Greenberg Traurig LLP and former director of the EPA's Special Litigation and Projects Division at OECA, said she worked at the agency during the Sept. 11, 2001, terrorist attacks and is unaware of a previous enforcement discretion policy that's been so sweeping.

"EPA has issued enforcement discretion policies in the past, but they're usually very targeted," she said. "But it's hard to think of what would be an appropriate analogue in our lifetimes to this situation. I can't think of one."

Sierra Club legal program director Pat Gallagher said his group and dozens of other environmental organizations have responded directly to Bodine about her memo, saying that while it's reasonable "in limited circumstances" for EPA to exercise enforcement discretion on a case-by-case basis, OECA's blanket policy is unacceptable.

"Rather than doing a more targeted, specific approach to compliance, they just sort of open the barn door, and said, 'Hey, don't worry about compliance. If you have trouble, just document it, and later on we'll check your documentation.' Especially for bad actors, that's just an invitation to pollute," Gallagher said.

And Erik Olson, an attorney who directs the Natural Resources Defense Council's advocacy initiatives on health, food and agriculture, said the policy is like "a bank turning off all of its security cameras and all of its alarms and then telling people, 'please be good.'"

The EPA defended the policy on Friday, saying it only offers "no action assurance" for routine compliance monitoring and reporting, and emphasized it is not a nationwide waiver of environmental rules.

"During this extraordinary time, EPA believes that it is more important for facilities to ensure that their pollution control equipment remains up and running and the facilities are operating safely, than to carry out routine sampling and reporting," the agency said in a statement. "We retain all our authorities and will exercise them appropriately."

Rappold said she's not sure what else the agency could have done, because the issues with the disease are so widespread.

"As an initial matter, it says everyone has to make every effort they can to comply. And if you can't you've got to make a real showing why your inability to comply is related to the pandemic," she said.

Jonathan Martel, a partner at Arnold & Porter, said the EPA was responding to legitimate queries from regulated entities about what they should do if they're affected.

For example, both the American Petroleum Institute and the National Waste and Recycling Association wrote to EPA Administrator Andrew Wheeler requesting a clear policy on how the agency plans to use its enforcement discretion during the COVID-19 crisis.

Martel said clients he's spoken with are concerned about their ability to maintain routine compliance with auditing, training, reporting and testing requirements since they often rely on third parties to do those things.

"In terms of actual operations ... where the virus is actually causing operation that will result in excess emissions, we haven't seen that yet, though there may be circumstances where repairs to equipment, or the ability of people to come to repair equipment, may create difficulties. I can imagine that. But we haven't seen that arise so far," Martel said.

Stacey Mitchell, a partner at Akin Gump Strauss Hauer & Feld LLP, former deputy general counsel at the EPA and former chief of the U.S. Department of Justice's Environmental Crimes Section, said clients need to take the agency at its word and assume enforcement discretion will only be exercised in legitimate cases.

"When I'm speaking to my clients, I'm telling them to be mindful, to utilize this flexibility in circumstances where compliance is really not reasonably practicable. And then to return to compliance as soon as practice is practicable," Mitchell said. "Companies have to be careful not to overutilize this and be considered to have essentially taken a good opportunity to avoid compliance in general. And I think for the most part, companies won't do that."

The policy notably doesn't apply to criminal enforcement, and the agency said activities that are carried out under Superfund and Resource Conservation and Recovery Act enforcement instruments will be addressed separately.

Since criminal enforcement generally applies to knowing violations of the various environmental statutes, Martel said companies have to be extra careful to have clear communication with regulators and keep scrupulous records in the event they anticipate severely running afoul of the law.

"If they're going to proceed with what would otherwise be considered a knowing violation, outside of the routine monitoring and reporting type of issues, they should be very careful to make sure that everyone's on board and fully informed about the decision-making with respect to that," he said.

While the EPA has made clear its intention, there are some gray areas, since the policy is only binding on that agency. States are technically free to enforce as they see fit if they've been delegated that authority, and nothing has eliminated the rights of groups like the NRDC and Sierra Club to enforce environmental laws under citizen suit provisions.

Some state environmental agencies, such as the Texas Department of Environmental Quality, have already begun rolling out special methods for businesses to communicate any coronavirus-related issues and stated their intention to practice their own enforcement discretion.

Olson said alternatives beyond the federal EPA's enforcement policy are going to be extremely difficult. If a business or other regulated entity does have to stop monitoring and reporting its emissions, that eliminates the evidence that usually serves as the basis for a citizen suit.

"There are a handful of cases where the citizen group does its own monitoring and bases enforcement on that. But that's pretty unusual," he said. "But it's generally based on data that's submitted by the polluter or the responsible person under requirements to submit to agencies. And if that data has not been submitted, it makes it really hard for a citizen enforcement to go forward."

--Editing by Brian Baresch and Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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