On December 14, 2020, the EPA Office of the Inspector General sent a Memorandum to EPA’s head of enforcement, Susan Bodine, informing her that it would undertake an assessment of how the coronavirus pandemic has impacted air-compliance monitoring in states that have received delegated authority to oversee the Clean Air Act. The Memorandum also requests additional information from the EPA Office of Enforcement and Compliance Assurance — overseen by Ms. Bodine — related to how states and local agencies report and prioritize air compliance information, and the accuracy and completeness of EPA’s online databases containing this information. This is another indication that environmental compliance during the pandemic will continue to receive scrutiny, and businesses that have had to adjust their operations during the pandemic should be careful to document their efforts to comply with the law.
Background
What is an Inspector General?
Like most federal agencies, EPA has an independent internal office that performs audits, evaluations, and investigations of the agency to “promote economy and efficiency, and to prevent and detect fraud, waste and abuse.” After identifying and investigating a particular issue, the EPA Inspector General’s Office will often publish a public report, and may even provide testimony to Congress, regarding a particular issue.
What does it mean for a state to have delegated authority?
Many federal environmental laws, including the Clean Air Act, were designed to be administered at the state and local level wherever possible. Once a state received delegated authority, it plays the primary role in overseeing and implementing the federal law. While the state undertakes primary administration of the law, EPA still plays a role in enforcement, and the state agency and EPA will often jointly pursue an action against a particular business. In addition, states have their own state environmental laws, which they can enforce without EPA.
What triggered this “evaluation”?
According to the Inspector General’s Memorandum, the decision to look into state and local agency air compliance during the pandemic stems from the Inspector General’s “top management challenges for the Agency, as identified in [its] EPA’s FYs 2020–2021 Top Management Challenges report, issued July 21, 2020: Maintaining operations during pandemic and natural disaster responses. Overseeing states implementing EPA programs.”
While not explicitly stated, the evaluation could also stem from the EPA COVID-19 enforcement policy released in March 2020, and in place until August 2020. As we explained in this previous post, the policy was fairly limited and did not provide guarantees that EPA would not enforce environmental laws. The policy nonetheless garnered a strong negative reaction from certain states and portions of the environmental community, and resulted in several lawsuits against EPA. In one of these suits, environmental groups sought information from EPA about which businesses were making use of the policy. Because many environmental laws allow for private citizens to file lawsuits against companies they allege to be violating environmental laws, there was some speculation that the groups were seeking this information in order to bring their own lawsuits against the companies using EPA’s enforcement policy.
In addition to EPA’s policy, many states issued their own COVID-19 enforcement policies. Summaries of these policies can be found here. These policies varied widely among states, and this Inspector General evaluation may be an attempt to get a better grasp on the different approaches and results from the various states with delegated authority.
What does this mean for businesses?
The COVID-19 pandemic has created operational challenges for many companies, particularly when safety measures have reduced staff presence at facilities. This Memorandum is the latest indication that there will be continued scrutiny on how businesses complied with environmental laws during this time. As a result, businesses would be well advised to take steps to document both their compliance, and their best efforts to attempt compliance when pandemic conditions make doing so impossible.
