Case 1:20-cv-03714 Document 1 Filed 05/13/20 Page 1 of 39
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`COMPLAINT
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`20-CV-3714
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`Plaintiffs,
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`v.
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` Defendants.
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`INTRODUCTION
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`STATE OF NEW YORK, STATE OF
`CALIFORNIA, STATE OF ILLINOIS, STATE OF
`MARYLAND, PEOPLE OF THE STATE OF
`MICHIGAN, STATE OF MINNESOTA, STATE
`OF OREGON, STATE OF VERMONT, and
`COMMONWEALTH OF VIRGINIA,
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`
`
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`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY; ANDREW WHEELER
`as Administrator of the UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY;
`and SUSAN PARKER BODINE as Assistant
`Administrator of the UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY,
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`1.
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`Plaintiffs (States) bring this action against the Environmental
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`Protection Agency (EPA), Administrator Andrew Wheeler, and Assistant
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`Administrator Susan Parker Bodine to challenge a final agency policy under which
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`EPA has stated it “will not” enforce a wide range of monitoring and reporting
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`requirements under federal environmental laws. EPA justified the policy,
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`“Temporary Policy on COVID-19 Implications for EPA’s Enforcement and
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`Compliance Assurance Program” (nonenforcement policy), as a necessary response
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`to the COVID-19 pandemic. However, rather than exercising enforcement discretion
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`as authorized by law, EPA issued a broad, open-ended policy that gives regulated
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`
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`COMPLAINT
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`20-CV-3714
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`
`
`Plaintiffs,
`
`v.
`
`
`
` Defendants.
`
`INTRODUCTION
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`STATE OF NEW YORK, STATE OF
`CALIFORNIA, STATE OF ILLINOIS, STATE OF
`MARYLAND, PEOPLE OF THE STATE OF
`MICHIGAN, STATE OF MINNESOTA, STATE
`OF OREGON, STATE OF VERMONT, and
`COMMONWEALTH OF VIRGINIA,
`
`
`
`
`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY; ANDREW WHEELER
`as Administrator of the UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY;
`and SUSAN PARKER BODINE as Assistant
`Administrator of the UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY,
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`1.
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`Plaintiffs (States) bring this action against the Environmental
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`Protection Agency (EPA), Administrator Andrew Wheeler, and Assistant
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`Administrator Susan Parker Bodine to challenge a final agency policy under which
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`EPA has stated it “will not” enforce a wide range of monitoring and reporting
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`requirements under federal environmental laws. EPA justified the policy,
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`“Temporary Policy on COVID-19 Implications for EPA’s Enforcement and
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`Compliance Assurance Program” (nonenforcement policy), as a necessary response
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`to the COVID-19 pandemic. However, rather than exercising enforcement discretion
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`as authorized by law, EPA issued a broad, open-ended policy that gives regulated
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`Case 1:20-cv-03714 Document 1 Filed 05/13/20 Page 2 of 39
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`parties free rein to self-determine when compliance with federal environmental
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`laws is not practical because of COVID-19. The nonenforcement policy also makes it
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`optional for parties to report that noncompliance to EPA, and to state and local
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`agencies. The policy’s effective waiver of these requirements, which are
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`foundational to our federal environmental laws, exceeds EPA’s authority.
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`2.
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`Despite EPA’s longstanding recognition that environmental monitoring
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`and reporting requirements protect public health by informing communities of
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`pollution hazards and deterring industry noncompliance with pollution limits, EPA
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`failed—in the midst of a public health emergency—to consider the impacts of
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`relaxing those obligations on public health. It was arbitrary and capricious for EPA
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`to adopt a broad ranging policy without considering whether it will exacerbate
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`harms to public health during the current crisis.
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`3.
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`EPA has primary enforcement authority for a number of critical
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`federal environmental laws in states as well as oversight of state enforcement of all
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`federal environmental laws. The nonenforcement policy will result in less federal
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`enforcement, reduced industry compliance with substantive requirements, an
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`increased risk of chemical accidents and releases, and a decrease in publicly-
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`available information to address pollution. These impacts will injure the States and
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`our residents. The nonenforcement policy places the States between a rock and hard
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`place: either incur increased burdens and attempt to fill EPA’s enforcement shoes at
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`a time when they are increasingly strapped for resources, or risk the health of our
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`residents based on the unfounded assumption that the policy will not cause harm.
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`4.
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`The nonenforcement policy is a general statement of policy that is
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`subject to judicial review under the Administrative Procedure Act (APA), not the
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`type of individualized enforcement decision that may be entrusted to EPA’s
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`discretion. Because the nonenforcement policy binds EPA in future enforcement
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`actions, creates rights, and imposes obligations on both EPA and regulated entities,
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`the policy is a legislative rule and a final agency action that is subject to judicial
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`review under the APA, 5 U.S.C. § 704. EPA’s failure to issue the policy without
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`complying with the APA’s notice-and-comment requirements was unlawful.
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`5.
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`Because the nonenforcement policy is unlawful and harms the States
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`and our residents, the States seek a ruling from this court vacating the policy as
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`contrary to law.
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`JURISDICTION AND VENUE
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`6.
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`The Court has subject matter jurisdiction pursuant to 28 U.S.C.
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`§§ 1331 and 2201(a). Jurisdiction is also proper under the judicial review provisions
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`of the APA, 5 U.S.C. §§ 702 and 704.
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`7.
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`Venue is proper within this federal district, pursuant to 28 U.S.C.
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`§ 1391(e), because plaintiff State of New York resides within the district.
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`THE PARTIES
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`8.
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`Plaintiff New York is a sovereign state of the United States of America.
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`As a body politic and a sovereign entity, it brings this action on behalf of itself and
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`as trustee, guardian, and representative of all residents, citizens, and political
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`subdivisions of New York.
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`9.
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`Plaintiff State of California is a sovereign state of the United States of
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`America. As a body politic and a sovereign entity, it brings this action on behalf of
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`itself and as trustee, guardian, and representative of all residents, citizens, and
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`political subdivisions of California.
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`10. Plaintiff State of Illinois is a sovereign state of the United States of
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`America. As a body politic and a sovereign entity, it brings this action on behalf of
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`itself and as trustee, guardian, and representative of all residents, citizens, and
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`political subdivisions of Illinois.
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`11. Plaintiff State of Maryland is a sovereign state of the United States of
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`America. Maryland brings this action by and through its Attorney General, Brian E.
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`Frosh, on behalf of itself and on behalf of its citizens and residents. The Attorney
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`General of Maryland is the State’s chief legal officer with general charge,
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`supervision, and direction of the State’s legal business. Under the Constitution of
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`Maryland, and as directed by the Maryland General Assembly, the Attorney
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`General has the authority to file suit to challenge action by the federal government
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`that threatens the public interest and welfare of Maryland residents.
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`12. The Michigan Attorney General is authorized by statute and under
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`common law to initiate litigation in the public interest on behalf of the People of the
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`State of Michigan.
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`13. Plaintiff State of Minnesota is a sovereign state of the United States of
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`America. As a body politic and a sovereign entity, it brings this action on behalf of
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`itself and as trustee, guardian, and representative of all residents, citizens, and
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`political subdivisions of Minnesota.
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`14. Plaintiff State of Oregon is a sovereign state of the United States of
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`America. As a body politic and a sovereign entity, it brings this action on behalf of
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`itself and as trustee, guardian, and representative of all residents, citizens, and
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`political subdivisions of Oregon.
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`15. Plaintiff State of Vermont is a sovereign state of the United States of
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`America. It brings this action through Attorney General Thomas J. Donovan, Jr.
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`The Attorney General is authorized to represent the State in civil suits involving
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`the State’s interests when, in his judgment, the interests of the State so require.
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`16.
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` Plaintiff Commonwealth of Virginia is a sovereign state of the United
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`States of America. As a body politic and a sovereign entity, it brings this action on
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`behalf of itself and as trustee, guardian, and representative of all residents, citizens,
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`and political subdivisions of Virginia.
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`17. Defendant EPA is an agency of the United States government.
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`18. Defendant Andrew Wheeler is the Administrator of EPA and the
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`highest-ranking official in the EPA. He is sued in his official capacity.
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`19. Defendant Susan Parker Bodine is the Assistant Administrator of the
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`EPA and the signatory of the Policy. She is sued in her official capacity.
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`FACTUAL AND STATUTORY BACKGROUND
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`COVID-19
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`20. On March 11, 2020, the COVID-19 outbreak was characterized as a
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`“pandemic” by the World Health Organization. Similarly, the Centers for Disease
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`Control and Prevention (CDC) describes the COVID-19 outbreak as a pandemic that
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`poses a serious public health risk. COVID-19 can cause mild to severe illness, with
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`most severe cases typically occurring in adults 65 years and older and people of any
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`age with serious underlying medical conditions. COVID-19 is a respiratory illness
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`that infects the upper and lower part of the respiratory tract, causing irritation and
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`inflammation. About 80 percent of people who contract COVID-19 experience mild to
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`moderate symptoms, including a dry cough or a sore throat. Severe cases involve
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`shortness of breath and pneumonia. People who are older or who have existing
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`chronic medical conditions, such as heart disease, lung disease, diabetes, severe
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`obesity, chronic kidney or liver disease, or who have compromised immune systems
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`may be at higher risk of serious illness, including death.
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`21. On March 13, 2020, President Trump declared the COVID-19
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`pandemic of sufficient severity and magnitude to warrant an emergency declaration
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`for all states, tribes, territories, and the District of Columbia pursuant to § 501(b) of
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`the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C.
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`§§ 5121-5207.
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`22. As of the date of this filing, COVID-19 had reached every state in the
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`U.S. There were over 1.3 million of known cases of COVID-19 and more than 82,000
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`deaths reportedly caused by COVID-19 in the U.S. alone as of May 13. As of that
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`same date, more than 27,000 New York residents have died from the virus.
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`The Nonenforcement Policy
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`23. On March 23, 2020, the American Petroleum Institute (API) wrote to
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`EPA and requested that EPA “temporarily waiv[e] non-essential compliance
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`obligations” under various federal environmental laws in light of the pandemic. The
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`API, which represents more than 600 oil and gas companies across the U.S., cited
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`“physical challenges” that would impinge compliance with “on-site
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`1
`testing/monitoring/reporting requirements.”0F
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`24. On March 26, Assistant Administrator Bodine issued the
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`nonenforcement policy (Attachment A), which applies retroactively to March 13,
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`the date President Trump declared a national emergency. The policy states that it is
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`“temporary,” but currently has no end date.
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`25.
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`In the nonenforcement policy, EPA states it “will exercise the
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`enforcement discretion specified [] for noncompliance covered by this temporary
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`policy and resulting from the COVID-19 pandemic, if regulated entities take the
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`steps applicable to their situations, as set forth in this policy.” Policy at 1. The
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`policy’s application is subject to general conditions that regulated entities “should
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`make every effort to comply with their environmental obligations” and “if
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`compliance is not reasonably practicable,” the facility owners “should” act
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`1 Letter from Frank Macchiarola, API to Andrew Wheeler, EPA
`Administrator (Mar. 23, 2020) at 2 and Attachment at 2,
`https://www.eenews.net/assets/2020/03/24/document_gw_05.pdf.
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`responsibly, record certain information about the noncompliance, and return to
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`compliance as soon as possible. Id. at 1-2.
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`26. The nonenforcement policy sets forth several areas in which EPA will
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`exercise enforcement discretion: compliance monitoring and reporting, consent
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`decree obligations, facility operations, and drinking water systems.
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`27. EPA stated that it intends to exercise enforcement discretion not to
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`pursue violations of “routine compliance monitoring, integrity testing, sampling,
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`laboratory analysis, training, reporting, and certification” (referred to in this
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`complaint as “monitoring and reporting” requirements) because the pandemic “may”
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`constrain the ability of companies to perform these obligations. Policy at 3. For
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`example, the failure to conduct continuous emissions monitoring, leak detection and
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`repair, integrity testing of storage tanks and other equipment, fence line monitoring
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`of hazardous air pollutants, and wastewater sampling and testing will not provoke
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`civil enforcement from EPA. Id. These and the numerous other monitoring and
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`reporting obligations listed in the nonenforcement policy are used across the wide
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`range of federal air, water, and waste laws to demonstrate industry compliance.
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`28. Under the nonenforcement policy, EPA will not seek to penalize
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`violations of monitoring and reporting requirements provided that EPA agrees that
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`COVID-19 was the reason for noncompliance. Policy at 3. Entities are directed to
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`use existing procedures to report noncompliance, or if reporting is not “reasonably
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`practicable” due to COVID-19, regulated entities “should maintain this information
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`internally and make it available to the EPA or an authorized state or tribe upon
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`request.” Id. In light of the lack of a mandatory obligation to inform EPA of
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`noncompliance related to COVID-19, the policy does not explain how EPA will
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`become aware of violations in the first place. The nonenforcement policy also lacks
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`any requirement that EPA will make this information about noncompliance
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`available to states or the general public, even if companies choose to report their
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`noncompliance to EPA.
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`29.
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`In justifying waiving enforcement for violations of monitoring and
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`reporting requirements in advance, EPA did not cite any evidence that facilities
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`could not continue to perform these functions. Instead, EPA stated that potential
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`worker shortages and travel and social distancing restrictions “may” affect facility
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`operations and the availability of workers and contractors to timely analyze
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`samples and provide results. Policy at 2.
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`30. Regarding another aspect covered by the nonenforcement policy—
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`facility operations—EPA states its expectation that facilities will continue to comply
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`with mandatory pollution limits, but fails to explain how EPA, states, or the general
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`public will learn of noncompliance if facilities stop monitoring and reporting. Policy
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`at 4-5. EPA’s stated compliance expectation is further undermined by the policy’s
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`repeated use of permissive language regarding situations involving noncompliance
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`with regulatory or permit limits. For example, the policy states that facilities that
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`experience a “failure of air emission control or wastewater or waste treatment
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`systems or other equipment that may result” in exceedances of emission or effluent
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`limitations “should” inform EPA or the state agency promptly. Id. at 5. Even in
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`situations where facility operations may create an “acute risk or an imminent
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`threat to human health or the environment,” the policy merely directs owners that
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`they “should” promptly contact the appropriate regulatory authority. Id. at 4.
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`31. The nonenforcement policy sets forth two specific areas of facility
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`operations—interim storage of hazardous waste under the Resource Conservation
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`and Recovery Act (RCRA) and the regulation of water pollution from livestock
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`operations under the Clean Water Act (CWA)—in which EPA is suspending federal
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`regulatory time limits on the on-site storage of hazardous waste and the number of
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`livestock present at a facility if the owner determines the additional storage time is
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`related to COVID-19. Id. at 4-5. By so doing, the policy eases more protective
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`federal regulations that would otherwise apply to affected facilities. See 40 C.F.R. §
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`262.14-17 (RCRA requirements for interim storage of hazardous waste); 40 C.F.R. §
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`122.23 (CWA requirements for concentrated animal feedlot operations (CAFOs)).
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`32. With respect to drinking water systems, EPA has “heightened
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`expectations” that operators of public water systems will continue normal
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`operations and maintenance as well as required sampling to ensure the continued
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`safety of drinking water supplies, but the nonenforcement policy nonetheless
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`recognizes that operators may decide in light of COVID-19 to forego monitoring and
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`reporting of certain contaminants. See Policy at 6.
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`33. Although protection of public health is at the core of EPA’s mission,
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`nowhere does the nonenforcement policy acknowledge or discuss the potential
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`adverse impacts on public health that the policy will have, including impacts from
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`increased pollution, and a lack of information about that pollution, that may result
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`from the policy.
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`34. By providing a broad, open-ended, upfront waiver of enforcement of
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`monitoring and reporting obligations, EPA departed from longstanding policy
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`through multiple Presidential administrations of issuing time-limited “no action”
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`assurances that were tailored to specific industries and circumstances.
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`35. Upon EPA’s issuance of the nonenforcement policy, former EPA
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`officials and several members of Congress promptly criticized the policy for its
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`overbreadth and lack of transparency. Although EPA issued a press release
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`disputing that the policy would result in more pollution, the agency’s statement
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`further confirmed the binding nature of the policy on EPA as to monitoring and
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`reporting obligations:
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`The policy says that EPA will not seek penalties for noncompliance
`with routine monitoring and reporting requirements if, on a case-by-
`case basis, EPA agrees that such noncompliance was caused by the
`2
`COVID-19 pandemic.1F
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`36.
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`In contrast to the nonenforcement policy, state agencies have
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`issued circumscribed policy statements that provide guidance for regulated
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`entities during the COVID-19 pandemic without waiving requirements that
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`protect public health. For example, Michigan’s Department of Environment,
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`Great Lakes, and Energy issued a policy stating that “[d]uring COVID-19
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`response, regulated entities are expected to maintain compliance with
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`2 See https://www.epa.gov/newsreleases/epa-sends-letter-all-members-
`congress-correct-record-temporary-enforcement-policy (emphasis added).
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`environmental regulations and permit requirements to protect Michigan’s
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`environment and public health.”2F3 Michigan facilities that face “unavoidable
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`noncompliance directly due to the COVID-19 emergency” may submit a
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`request for regulatory flexibility by email to the Department that provides
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`required information about the circumstances and the anticipated impacts of
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`the noncompliance. Each request is a matter of public record, and available
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`electronically on the agency’s website. The Department will determine on a
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`case-by-case basis whether to exercise enforcement discretion. Other state
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`agencies have issued similar polices that set forth an expectation of
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`compliance with all requirements but for case-by-case consideration of
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`regulatory flexibility where compliance is not feasible. See, e.g., California
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`EPA Statement on Compliance with Regulatory Requirements During the
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`COVID-19 Emergency (Apr. 15, 2020) (“Specific time-delimited remedies,
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`such as extension of deadlines, may be warranted under clearly articulated
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`circumstances, but regulated entities that cannot meet a specific regulatory
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`requirement due to emergency government directives or specific hardship
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`must contact the appropriate CalEPA board, department or office before
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`4
`falling out of compliance.”).3F
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`37. On April 1, 2020, in response to the nonenforcement policy, a
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`group of non-governmental organizations filed a petition for emergency
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`3 https://www.michigan.gov/egle/0,9429,7-135--523592--,00.html.
`4 https://calepa.ca.gov/2020/04/15/calepa-statement-on-compliance-with-
`regulatory-requirements-during-the-covid-19-emergency/.
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`rulemaking with EPA. The petition requested that EPA promulgate
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`emergency rules obligating companies that intend to invoke COVID-19 as a
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`defense for noncompliance to formally notify EPA and for EPA to make that
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`information publicly available. On April 16, 2020, because EPA had not taken
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`any action on the petition, the groups filed suit in NRDC, et al. v. Bodine, et
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`al., S.D.N.Y. Case No. 1:20-cv-3058. That case is pending with this Court.
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`38. On April 9, 2020, the California Attorney General sent a letter
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`to Assistant Administrator Bodine objecting to the nonenforcement policy and
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`supporting the demand by NRDC and other nonprofit groups for increased
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`transparency in implementing the nonenforcement policy. The California
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`Attorney General urged “at a minimum regulated entities must report
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`noncompliance with mandatory environmental obligations to the EPA and
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`applicable state and regulatory authorities” and that the reports
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`“immediately be made publicly available so that the impacted communities
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`can take necessary steps to mitigate the potential impacts from such
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`noncompliance.”
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`39. On April 15, the Attorneys General of New York, Illinois, Iowa,
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`Maryland, Massachusetts, Michigan, Minnesota, Oregon, Pennsylvania,
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`Rhode Island, Vermont, Virginia, Washington, and Wisconsin sent EPA
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`Administrator Wheeler a letter objecting to the overbroad nature of the policy
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`and EPA’s failure to consider the policy’s impact on public health, especially
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`the health of people of color and low income communities who are suffering
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`disproportionate mortality and other adverse outcomes from COVID-19. The
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`Attorneys General asked that EPA rescind the Policy.
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`40. EPA has not responded to either letter or taken any of the
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`actions requested by the Attorneys General.
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`Compliance Monitoring and Reporting and Enforcement Under Federal
`Environmental Laws
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`41. EPA is responsible for administering numerous environmental
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`statutes, including the Clean Air Act, 42 U.S.C. § 7401, et seq. (CAA), Clean Water
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`Act, 33 U.S.C. § 1251, et seq. (CWA), Safe Drinking Water Act, 42 U.S.C. § 1401 et
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`seq.; (SDWA); Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq.
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`(RCRA), Comprehensive Environmental Response, Compensation, and Liability
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`Act, 42 U.S.C. 9601, et seq. (CERCLA), and the Emergency Planning and
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`Community Right to Know Act, 42 U.S.C. § 11004, et seq. (EPCRA).
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`42. EPA is also charged with the enforcement of federal environmental
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`laws. See, e.g., 42 U.S.C. § 7413 (CAA); 33 U.S.C. § 1319 (CWA); 42 U.S.C. § 6928
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`(RCRA). EPA may delegate certain enforcement and implementation powers to
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`states, local governments, or tribes. Where such delegation has occurred, the state,
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`local agency, or tribe becomes the primary implementer and enforcer of that federal
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`program, with continued oversight from EPA. That continued oversight—including
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`the ability of EPA to commence enforcement actions—is especially important
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`concerning compliance with federal environmental requirements that protect states
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`from pollution originating in upwind or upstream states.
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`43. Federal environmental laws also contain citizen suit provisions, which
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`authorize any person (including any state) to commence litigation to address
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`violations of these statutes where EPA or a delegated state is not taking action to
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`address noncompliance. See, e.g., 42 U.S.C. § 7604 (CAA), 33 U.S.C. § 1365 (CWA);
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`42 U.S.C. § 6972 (RCRA).
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`44. Fundamental to the enforcement of these laws are requirements that
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`regulated entities demonstrate compliance through regular monitoring and
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`reporting. Compliance monitoring and reporting take many forms and are essential
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`for EPA, states, local governments, tribes, and citizens to enforce federal
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`environmental laws and protect human health and the environment. These
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`compliance monitoring and reporting requirements are not mere paperwork
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`exercises—they are bedrock obligations that are fundamental to the successful
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`implementation of these laws. Indeed, EPA has recognized that compliance
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`monitoring and reporting are integral to protecting human health and the
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`environment:
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`Compliance monitoring is one of the key components EPA uses to
`ensure that the regulated community obeys environmental laws and
`regulations. It encompasses all regulatory agency activities performed
`to determine whether a facility (or group of facilities, such as plants
`related geographically, by sector, or corporate structure) is in
`compliance with applicable law. Compliance monitoring includes:
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`•
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`formulation and implementation of compliance monitoring
`strategies
`• on-site compliance monitoring: compliance inspections,
`evaluations, and investigations (including review of permits,
`data, and other documentation)
`• off-site compliance monitoring: data collection, review,
`reporting, program coordination, oversight, and support
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`15
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`Case 1:20-cv-03714 Document 1 Filed 05/13/20 Page 16 of 39
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`•
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`inspector training, credentialing and support.4F5
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`45. EPA also has recognized the vital role compliance monitoring plays in
`
`meeting the goals Congress set out to accomplish in federal environmental laws:
`
`Compliance monitoring is a key component of any effective
`environmental compliance and enforcement program. It encompasses
`all of the means used to make a compliance determination. The
`primary goals of compliance monitoring include:
`
`• Assessing and documenting compliance with permits and
`regulations,
`• Supporting the enforcement process through evidence collection,
`• Monitoring compliance with enforcement orders and decrees,
`• Creating deterrence, and
`• Providing feedback on implementation challenges to permit and
`
`rule writers.5F6
`Thus, as EPA has recognized, monitoring and reporting by regulated entities are
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`foundational requirements of the functioning of our federal environmental laws.
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`The Statutes Impacted by the Nonenforcement Policy
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`Clean Air Act
`
`
`46. The CAA is one of the most comprehensive environmental statutes and
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`contains a number of programs that mandate and rely on compliance monitoring
`
`and reporting by regulated entities. EPA has noted that CAA “compliance
`
`monitoring ensures that the regulated community obeys environmental
`
`
`5 See https://www.epa.gov/compliance/how-we-monitor-compliance
`6 See https://www.epa.gov/compliance/compliance-monitoring-programs.
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`
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`16
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`Case 1:20-cv-03714 Document 1 Filed 05/13/20 Page 17 of 39
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`laws/regulations through on-site inspections and record reviews that can lead to
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`
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`enforcement when necessary.”6F7
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`47. Numerous CAA provisions, across its multiple programs, provide for
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`mandatory monitoring and reporting. See 42 U.S.C. § 7410(a)(2)(B) (state
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`implementation plans); § 7412(r)(7)(A) (chemical accident safety prevention); § 7414
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`(inspections and information requests); § 7475(e) (Prevention of Significant
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`Deterioration permitting); § 7661a (Title V operating permits). Monitoring and
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`reporting under these programs occurs at facilities, at the fence line of facilities, or
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`in downwind areas.
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`48. The nonenforcement policy applies to the following federal monitoring
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`and reporting requirements that are essential to fulfilling CAA programs aimed at
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`protecting public health and welfare:
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`a. Stack Testing. Compliance with pollution limits on major stationary
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`sources imposed by the CAA’s hazardous air pollutant program
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`(section 112), 42 U.S.C. § 7412, New Source Performance Standards
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`(section 111), id. § 7411, and New Source Review (sections 165 and
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`172), id. §§ 7475 and 7502, depends in part on stack testing. Stack
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`tests measure the amount of pollutants emitted from a facility,
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`including the removal efficiency of a pollution control device.
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`b. Continuous Emission Monitoring Systems. “Good Neighbor” rules
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`under section 110(a)(2)(D), 42 U.S.C.§ 7410(a)(2)(D) and Title IV’s
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`7 See https://www.epa.gov/enforcement/air-enforcement#compliance.
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`17
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`Case 1:20-cv-03714 Document 1 Filed 05/13/20 Page 18 of 39
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`Acid Rain Deposition program rely on continuous emission
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`monitoring systems (CEMS) to ensure that power plants and other
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`major stationary sources are properly limiting their emissions of
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`pollutants such as nitrogen oxides and sulfur dioxide that can cause
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`respiratory illness and premature death.
`
`c. Leak Detection and Repair. Leak Detection and Repair (LDAR) is
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`regularly used at facilities that process and store petroleum and
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`chemicals to monitor equipment—including wellheads, storage
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`tanks, and pipelines—to determine whether volatile organic
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`compounds (VOCs), methane, and hazardous air pollutants are
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`leaking, alerting facility owners to repairs that need to be done to
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`protect public health and the environment. Enforcing LDAR
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`requirements at oil and gas facilities is particularly important when
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`the price of oil or gas is low because facilities have less financial
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`incentive to promptly detect and repair methane leaks (and other
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`pollutants such as VOCs that are often released together with
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`methane).
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`d. Fence line monitoring. Fence line monitoring provides an important
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`function by alerting adjacent communities to elevated levels of
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`hazardous air pollutants that occur as fugitive emissions at nearby
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`industrial facilities, such as refineries. For example, a recent report
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`based on fence line monitoring found emissions of benzene—a
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`18
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`Case 1:20-cv-03714 Document 1 Filed 05/13/20 Page 19 of 39
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`carcinogenic pollutant—exceeded EPA action levels at ten
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`
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`petroleum refineries in the U.S.7F8
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`e. Tank testing. The CAA’s Risk Management Program, which
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`implements section 112(r)(7), 42 U.S.C. § 7412(r)(7), requires
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`facilities that handle certain quantities of listed hazardous
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`chemicals to perform regular testing to evaluate the integrity of
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`storage tanks. See 40 C.F.R. 68.73(d). This testing serves a vital
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`function by enabling facility owners to detect tank flaws or leaks
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`that could result in accidents and, in some instances, catastrophic
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`explosions.
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`Clean Water Act
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`49. The CWA establishes the basic structure for regulating discharges of
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`pollutants into the water of the United States and issuing water quality standards
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`to protect surface waters. The CWA makes it unlawful to discharge any pollutant
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`from a point source into navigable waters without a discharge permit issued under
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`the National Pollution Discharge Elimination System (NPDES) program.
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`Industrial, municipal and other facilities must obtain discharge permits if their
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`discharges go directly into surface waters.
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`50. Compliance monitoring is an essential aspect of the NPDES discharge
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`permit program, as EPA has recognized:
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`8 Environmental Integrity Project, Monitoring for Benzene at Refinery
`Fencelines (Feb. 6, 2020), https://environmentalintegrity.org/wp-
`content/uploads/2020/02/Benzene-Report-2.6.20.pdf
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`19
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`Case 1:20-cv-03714 Document 1 Filed 05/13/20 Page 20 of 39
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`Compliance monitoring is a cornerstone of EPA’s program to protect
`and restore water quality. The primary goal of the combined EPA and
`state compliance monitoring efforts, such as on-site inspections and
`evaluation of self-reported Discharge Monitoring Report (DMR) data, is
`to ensure and document whether entities regulated under the NPDES
`and pretreatment programs should accurately identify and document
`noncompliance, support the enforcement process, monitor compliance
`with enforcement orders and decrees, establish presence in the
`regulated community, deter noncompliance, support the permitting
`process and further the broad watershed protection and restoration
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`goals of the NPDES program.8F9
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`Safe Drinking Water Act
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`51. The SDWA was passed to ensure that Americans have safe, good
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`quality
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