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Law360 (April 29, 2020, 7:37 PM EDT) -- Environmental advocates on Wednesday said the U.S. Environmental Protection Agency has ignored their request to force companies to disclose when they take advantage of the government's move to temporarily suspend some compliance obligations for entities affected by the coronavirus crisis.
The Natural Resources Defense Council and more than a dozen other advocacy groups told a New York federal court that the EPA has failed to respond to a request for it to issue a rule to force entities to tell the EPA when they have monitoring and reporting lapses and for the EPA to then make those disclosures publicly available. The groups said without the information, the public and especially vulnerable populations are put at greater risk.
The groups are alarmed by the EPA's move last month to give leeway to companies that can't meet routine compliance reporting and monitoring requirements for certain air and water pollution limits if the lapse is caused by the pandemic. The advocates take issue with part of the policy that allows the companies to keep track of the lapses internally and only tell the EPA later on if it asks, according to the groups, which say they are worried the public will be left in the dark.
The petition at issue was submitted by the groups earlier this month, but the EPA has so far ignored it, according to the advocates. The Administrative Procedure Act requires the agency to respond within a "reasonable time," but that hasn't happened, the groups said.
"EPA's policy creates an immediate risk that companies will stop monitoring and reporting pollution and chemical hazards, without disclosure," the groups said. "This raises serious health and safety concerns that the underlying environmental laws were intended to prevent. The rule plaintiffs seek would mitigate those threats, if published soon."
The motion asks the court to force the EPA to respond to the groups' request within five days of a court order. They said this was especially important since the EPA's relaxed policy has already been in effect for about six weeks.
Specifically, the rule would force companies that aren't complying with all requirements to tell the EPA about the standards at issue, provide a justification for the issue and say how they will push to return to compliance, among other provisions.
Monitoring and reporting requirements are a cornerstone of environmental law, and failures to follow those compliance rules have been linked to catastrophes, according to the motion. For example, a lack of adequate monitoring during the lead water crisis in Flint, Michigan, "masked the seriousness of elevated lead levels," the groups said.
"EPA's delay not only deprives communities of information, but will expose them to more pollution," the groups said, adding that there is a correlation between pollution violations and monitoring failures.
The groups said the EPA's silence is unreasonable. Monitoring and reporting requirements help the EPA understand whether industry is complying and enforce limits when necessary. Without information, the EPA will have a harder time assuring that industry stays within the laws' limits, according to the groups.
And information allows people to act. People can use data to take precautions concerning hazards and pressure facilities to reduce their emissions, according to the filing. Groups can also sue if they believe certain laws are being violated.
"All these measures depend on timely access to information," the groups said, adding that the poorest communities tend to be impacted the most.
Jared Knicley, an attorney with the NRDC, said the EPA hasn't "provided any indication" about when it may respond to the petition.
"It's telling that in this administration, when industry asks for an across-the-board relaxation of pollution monitoring and reporting requirements, EPA publishes a non-enforcement policy within a few days; but when our coalition asks for basic public transparency into that process, we get the cold shoulder, for several weeks now," Knicley said in an email on Wednesday.
A representative with the EPA said the agency doesn't comment on pending litigation.
The groups filed the lawsuit April 16.
The advocacy groups are represented by Michelle Wu, Aaron Colangelo and Jared E. Knicley of the Natural Resources Defense Council and Allison Zieve of Public Citizen.
The EPA is represented by Lucas Issacharoff of the U.S. Attorney's Office for the Southern District of New York.
The case is Natural Resources Defense Council et al. v. Assistant Administrator Susan Parker Bodine et al., case number 1:20-cv-03058, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Juan Carlos Rodriguez and Adrian Cruz. Editing by Jack Karp.
For a reprint of this article, please contact reprints@law360.com.
