What Occurred?
The U.S. Environmental Safety Company (EPA) has proposed new guidelines that might amend the “prior discover” rules governing Notices of Intent (NOIs) for citizen fits beneath seven federal environmental statutes. Prior Notice of Citizen Suits, 91 Fed. Reg. 8810 (proposed Feb. 24, 2026). The proposal would require that NOIs be served on EPA electronically by way of a centralized Workplace of Basic Counsel (OGC) course of. The proposed rule is open for public remark till March 26, 2026.
What Would the Proposal Do?
If adopted, the revision would apply to notices of intent to sue EPA, a State, or one other celebration, and supersede the present process beneath which notices are served by licensed mail. Notice by licensed mail can take days – if not weeks – to achieve the suitable Company official, taking over crucial days of discover durations (usually 60 days) throughout which the Company can reply earlier than swimsuit could also be filed. The discover change would now present EPA with an instantaneous discover of a citizen swimsuit, successfully maximizing the time for EPA to answer notices filed in opposition to it (e.g., APA challenges to EPA rulemakings) or different entities (e.g., citizen enforcement in opposition to firms). Time to reply throughout this quick discover interval issues – statutory “diligent prosecution” bars that restrict subsequent citizen litigation expire on the finish of the discover interval.
Shifting Company Technique? Whereas the procedural change is small, it might additionally sign a broader shift in EPA’s strategic approach to addressing citizen suits. In its current “Compliance First” memorandum, EPA particularly pointed to citizen fits in its dialogue on “Reasoned Choice Making,” stating: “[W]e should act swiftly to restrict actions from third events who, by way of citizen swimsuit litigation, unfairly influence coverage by way of abusive litigation ways.” Memorandum at 6. EPA gives an identical justification for the digital discover proposal, stating the “change may alleviate the necessity for pricey and protracted litigation, which might preserve the sources of the Company and the general public.” 91 Fed. Reg. 8812. In mild of an anticipated increase in citizen suits, the proposed change means that EPA could also be extra energetic in evaluating and fascinating in citizen fits.
Even with these additional days, the Company will nonetheless have to act rapidly to answer citizen enforcement to bar citizen fits; most statutory bars anticipate that enforcement can be introduced in a court docket of regulation, with two essential penalties: (1) EPA’s administrative enforcement choices are inadequate to fulfill the diligent prosecution bar; and (2) EPA might want to immediate the Division of Justice (DOJ) to file a lawsuit on its behalf. Participating DOJ might current its personal dilemma – DOJ has diminished its environmental enforcement part by almost two-thirds to roughly 50 attorneys. Citizen enforcement complaints might be ambiguous, advanced, and allege scores of violations; fastidiously scoping a criticism to exactly cowl all elements of a citizen swimsuit might be notably difficult, even with a full 60 (or 90) days. Even so, the strategic shift may have essential implications for trade searching for to stave off the potential for citizen enforcement litigation.
Impacts to Trade
Extra visibility, sooner. If NOIs are posted rapidly and tracked centrally, firms can monitor NOI exercise, affecting litigation readiness, the power to hunt company overfiling, and the power to have interaction citizen plaintiffs for early settlement with out litigation. For NOIs directed at EPA actions, regulated entities may monitor potential challenges to company actions affecting their pursuits and react extra promptly.
Acceleration of “front-end” strategy. For firms that obtain an NOI (or anticipate one), the primary days after an NOI might matter extra. Early evaluation of (i) the alleged violations, (ii) what’s included within the public document, (iii) regulator posture, and (iv) whether or not corrective measures or engagement may assist mootness or scale back requested reduction can materially affect outcomes.
What Ought to Trade Do?
Stakeholders supporting the proposal might emphasize modernization, transparency, and litigation avoidance. Stakeholders commenting might also need to take into account implementation particulars which will have an effect on their pursuits (e.g., practicability, confidentiality of supporting documentation, posting practices/timing, and procedural equity), and whether or not centralized posting may create unintended penalties. Feedback are due: March 26, 2026 (Docket: EPA–HQ–OGC–2024–0557).
Overview of the EPA Proposal
EPA proposes to amend rules in 40 CFR Components 54, 135, 210, 254, 374, and 702 to revise “the way through which NOIs shall be given” for citizen-suit provisions beneath the Clear Air Act (CAA), Clear Water Act (CWA), Protected Ingesting Water Act (SDWA), Noise Management Act (NCA), Useful resource Conservation and Restoration Act (RCRA), Complete Environmental Response, Compensation, and Legal responsibility Act (CERCLA), and Poisonous Substances Management Act (TSCA).
Key components embody:
- Electronic service to EPA: NOI submitters would electronically present a duplicate to EPA through the process recognized on EPA OGC’s website.
- Fallback possibility: If digital service just isn’t practicable, EPA would permit service by licensed mail to specified EPA addresses, accompanied by an evidence of why digital service is impracticable.
- Centralization and transparency: EPA describes the change as enabling a centralized digital NOI “repository,” permitting EPA to “extra successfully monitor” NOIs and submit them to a public-facing web site.
EPA’s acknowledged rationale is simple: the statutory ready durations give authorities businesses time to handle alleged issues after receiving an NOI however earlier than a citizen information swimsuit. Electronic receipt provides EPA fast discover and maximizes that window.
