Today, U.S. Environmental Protection Agency (EPA) Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance (OECA) Susan Bodine issued guidance regarding OECA enforcement discretion in the wake of the coronavirus (COVID-19) COVID-19 pandemic. EPA intends to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment. The guidance, which is retroactively effective to March 13, does not have an end date but EPA commits to reviewing the policy regularly and to providing a seven day notice of its termination on OECA’s guidance page.
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DOJ Kills SEPs
The U.S. Department of Justice’s (“DOJ”) Environmental and Natural Resources Division (“ENRD”) Chief, Jeffrey Bossert Clark, has issued a memorandum prohibiting the use of Supplemental Environmental Projects (“SEPs”) in civil environmental enforcement actions unless specifically authorized by Congress.
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EPA and OSHA Penalty Increases
On January 13 and 15, 2020, EPA and the U.S. Department of Labor (DOL), respectively, published their annual civil monetary penalty adjustments in the Federal Register. The Federal Civil Penalties Inflation Adjustment Act of 2015 requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. The annual inflation adjustments are based on a cost-of-living multiplier determined by changes to the Consumer Price Index. This year’s inflation multiplier is 1.01764.
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Council on Environmental Quality Proposes Long-Awaited NEPA Regulations Overhaul
On January 10, 2020, the Council on Environmental Quality (CEQ) published the long-awaited proposed rule to amend its regulations implementing the National Environmental Policy Act of 1969 (NEPA). The statute, sometimes pejoratively referred to as a “paper-tiger,” requires a federal agency to take a hard look at the environmental impacts of certain proposed projects, but does not mandate any particular outcome.
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EPA Opens Public Comment Period for Revisions to Lead and Copper Rule
On November 13, 2019, the Environmental Protection Agency (EPA) officially opened the public comment period for its proposed revisions to its Lead and Copper Rule under the Safe Water Drinking Act. The EPA will receive comments on the proposal until January 13, 2020. A copy of proposal can be found here and an explanation of
Nationwide WOTUS Certainty in Sight
EPA and the U.S. Army Corps of Engineers’ new rule repealing the 2015 “Clean Water Rule,” will be published in the Federal Register tomorrow.
The “repeal rule” will take effect December 20, 2019, providing nationwide consistency regarding the jurisdiction of Waters of the U.S. and ending the current state-by-state patchwork of where the
EPA Proposes Significant Revisions to Lead and Copper Rule
On October 10, 2019, the Environmental Protection Agency (EPA) announced long-awaited proposed revisions to its Lead and Copper Rule (LCR) under the Safe Drinking Water Act. The proposed LCR revisions come nearly 30 years after the federal government last updated its lead and copper testing procedures. Originally promulgated in 1991, the LCR has long been criticized for its imprecise language and has come under fire in recent years in the wake of the water crisis in Flint, Michigan.
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EPA Issues Final Guidance on State Partnerships, Lays Out Deference to State Inspections and Enforcement
Yesterday, Susan Bodine, EPA’s Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA), issued final guidance for EPA regions regarding interactions between the Agency and the states in civil enforcement and compliance assurance matters. Under the new guidance, EPA will generally defer to a state as having primary jurisdiction over inspections and enforcement, but it also sets out a number of important exceptions where EPA may take direct action. The final guidance replaces previous interim guidance issued in January 2018.
The guidance is split into three parts and expands upon the interim guidance by providing additional procedures and outlining various principles and approaches for coordination between EPA regions and states. The changes are the result of input from EPA regional offices, states, and a workgroup on compliance assurance that EPA and the Environmental Council of States convened in September of 2017.
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EPA Announces National Compliance Initiatives
The US EPA Office of Enforcement and Compliance Assurance (OECA) has recently published its final National Compliance Initiatives (NCIs) for FY 2020-2023, setting out its new enforcement and compliance areas of focus. Formerly known as the National Enforcement Initiatives (NEIs), the newly-renamed NCIs reflect OECA’s shift toward compliance assurance. EPA believes the name change helps better convey the goal of the NCIs, which is to reduce the average time from violation identification to correction. In doing so, the Agency seeks to use a collaborative approach, working with other federal, state, and local actors to help resolve violations and provide compliance resources. In its notice, EPA endorses the use of a “full range of compliance tools,” including informal actions, state-led guidance, and the use of federal civil or criminal enforcement where necessary.
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Court Orders EPA to Redo Parts of the 2015 ELG Rule
On April 12, 2019, the Fifth Circuit issued its opinion in Southwestern Elec. Power Co. v. EPA, ordering EPA to reconsider parts of its 2015 Effluents Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (“2015 ELG Rule”). The opinion resolves a challenge brought by environmental groups regarding the rule’s effluent limitation guidelines for “legacy” wastewater and for combustion residual leachate from landfills or settling ponds.
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