EPA Announces Proposed Regulation Amendment to Clarify Negligence Standards

On December 14, 2020, the Environmental Protection Agency (EPA) proposed amendments to a part of the Clean Water Act (CWA) regulation. The regulations pertain to enforcement standards for state and tribal programs under the CWA. The EPA is seeking to clarify that it does not interpret the federal regulations as requiring state and tribal programs to have the same negligence standards as the EPA. The CWA is the major water pollution control mechanism for waters within the United States. The EPA has authority to oversee the implementation of the CWA. States and tribes may submit program plans to the EPA and receive delegated authority to manage water pollution control and permits within the state. EPA will review the state plans to make sure they are in conformity with the CWA. The CWA and its regulations require states and tribes to have legal authorities in place to provide for compliance enforcement and criminal enforcement. The EPA is proposing to modify the enforcement regulations contained in 40 C.F.R. § 233.41(a) and 40 C.F.R. § 123.27(a).

These regulations specifically require a state or tribal program to provide for enforcement against a person who “negligently” violates a permit condition. The EPA also has enforcement authority over these types of violations. However, the current regulations do not specify whether states and tribes must have the same negligence standards as the EPA. Through these proposed amendments, the EPA is seeking to broaden the language to include a provision that gives states and tribes the authority to “establish violations.” The EPA asserts that this change in language will clarify that states and tribes do not need to have the same negligence standard as the EPA to receive program approval.

Negligence is a failure to exercise reasonable care. In a CWA context, this might mean that someone failed to take reasonable steps to ensure they were not violating a permit. Negligence arises on a spectrum, which may include gross negligence or strict negligence. For example, negligence might occur when a person fails to exercise the same care as a reasonably prudent person, whereas a gross negligence violation might occur when a person acts with reckless disregard for human safety. These distinctions are important because legal systems may allow for someone to be convicted of a crime only if they had a certain mental state, or mens rea, when they were engaging in potentially criminal behavior. Generally, states define negligence standards and other mens rea in their respective penal codes.

Negligence standards and mens rea requirements can vary by state. This led to a confusing patchwork of state negligence standards for CWA purposes that generated confusion and controversy, including in federal courts. Between 1999 and 2012 a series of cases were brought to determine the EPA negligence standard. The decisions concluded that negligence for EPA enforcement actions meant “ordinary negligence,” rather than gross negligence or any other negligence standard. In NRDC v. EPA, petitioners argued that 40 C.F.R. § 123.27 was improper because it did not require states to have the same maximum criminal penalties as the federal program. The court reasoned that it was not Congress’s intent to require state enforcement standards to mirror the federal requirements. Following NRDC v. EPA, petitioners in Akiak Native Community v. EPA argued that Alaska did not have proper authority to pursue CWA violations because Alaska had to initiate legal proceedings for violations, whereas EPA could do so administratively. The court upheld Alaska’s authority to administer a CWA program and pursue violations despite this procedural difference between the state and federal program. The decision noted that states are not required to impose penalties identical to the EPA. Most recently, the Ninth Circuit Court of Appeals in September issued an unpublished opinion that found the EPA incorrectly approved a state CWA permitting program that had a gross negligence standard. The court noted that 40 C.F.R. § 123.27(b)(2) requires a state plan to have a standard that is “no greater than” ordinary negligence. The ruling’s consequences were not far-reaching, however, as unpublished opinions only set out the law pertaining to that case and are not precedential for the entire Ninth Circuit.

In its regulation amendment announcement, the EPA expressed its disagreement with the Ninth Circuit’s September unpublished opinion. Instead, the EPA seeks to clarify that state and tribal programs under the CWA do not have to establish the same negligence standards as the EPA. The EPA justified its position by drawing from statutory interpretation, the purpose of the CWA, and the agency’s experience in overseeing state and tribal programs. For now, the public will have to wait and see how the EPA will respond to any submitted public comments and whether any new language will be implemented. Members of the public may submit a public comment until January 13, 2021.