. . . citing fighting the dubious Coronavirus "Pandemic" as the reason
The Environmental Protection Agency (EPA) issued a sweeping suspension of its enforcement of environmental laws Thursday, telling companies they would not need to meet environmental standards during the coronavirus outbreak. The temporary policy, for which the EPA has set no end date, would allow any number of industries to skirt environmental laws, with the agency saying it will not “seek penalties for noncompliance with routine monitoring and reporting obligations.”
Cynthia Giles, who headed the EPA’s Office of Enforcement during the Obama administration, called it a moratorium on enforcing the nation’s environmental laws and an abdication of the agency’s duty.Giles wrote in a statement to The Hill.
“This EPA statement is essentially a nationwide waiver of environmental rules for the indefinite future. It tells companies across the country that they will not face enforcement even if they emit unlawful air and water pollution in violation of environmental laws, so long as they claim that those failures are in some way ’caused’ by the virus pandemic. And it allows them an out on monitoring too, so we may never know how bad the violating pollution was,”
The EPA has been under pressure from a number of industries, including the oil industry, to suspend enforcement of a number of environmental regulations due to the pandemic.
“EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements,” EPA Administrator Andrew Wheeler said in a statement.
In a 10-page letter to the EPA earlier this week, the American Petroleum Institute (API) asked for a suspension of rules that require repairing leaky equipment as well as monitoring to make sure pollution doesn’t seep into nearby water. Other industries had also asked to ignite the “force majeure” clauses of any legal settlements they had signed with the EPA, allowing for an extension on deadlines to meet various environmental goals in the face of unforeseen circumstances.
But Giles and others say the memo signed Thursday goes beyond that request, giving industries board authority to pollute with little oversight from the agency.
“Incredibly, the EPA statement does not even reserve EPA’s right to act in the event of an imminent threat to public health,”
“Instead, EPA says it will defer to states, and ‘work with the facility’ to minimize or prevent the threat. EPA should never relinquish its right and its obligation to act immediately and decisively when there is threat to public health, no matter what the reason is. I am not aware of any instance when EPA ever relinquished this fundamental authority as it does in this memo.”
The memo says companies should try to minimize “the effects and duration of any noncompliance” with environmental laws and should also keep records of their own noncompliance, along with identifying how the coronavirus was a factor.
The EPA on Friday pushed back against characterization of the memo as a waiver of environmental rules.
EPA spokeswoman Andrea Woods told The Hill by email.
“During this extraordinary time, EPA believes that it is more important for facilities to ensure that their pollution control equipment remains up and running and the facilities are operating safely, than to carry out routine sampling and reporting,”
“If a facility has exceedances of limits on pollution the policy does not offer any no action assurance. We retain all our authorities and will exercise them appropriately. It is a temporary policy and will be terminated when this crisis is past.”
Critics say it’s not unreasonable to refrain from environmental enforcement on a case-by-case basis when companies are unable to comply with the letter of the law, but many were alarmed by the breadth of Thursday’s memo.
“It is not clear why refineries, chemical plants, and other facilities that continue to operate and keep their employees on the production line will no longer have the staff or time they need to comply with environmental laws,” Eric Schaeffer, a former director of civil enforcement at the EPA who is now with the Environmental Integrity Project, wrote in a letter signed by a number of environmental groups in anticipation of the memo.
The letter writers also criticized the requests from the API, arguing nearby communities would face prolonged exposure to a number of air and water pollutants that might be expelled through oil production — something they say would have “a very specific impact on public health and safety.”
The diminished compliance requirements for industry comes at a time when the EPA has refused to budge on deadlines for comments as they proceed with a number of deregulatory actions. Environmental and public health groups had argued that those with science and health backgrounds who would normally weigh in on such regulations have been pulled into the coronavirus fight, leaving them unable to divert their attention.
“The Environmental Protection Agency has not shown the same concern for the impact the coronavirus has had on the ability of community and public interest groups to respond to various proposals to weaken environmental standards,” Schaeffer wrote in the letter.
But the EPA has argued exceptions were not needed.
“We’re open and continuing our regulatory work business as usual,” an EPA spokesperson told The Hill in a statement. “As regulations.gov is fully functioning, there is no barrier to the public providing comment during the established periods.”
Critics Blast EPA Move as License to Pollute During Alleged Pandemic
Critics worry a new Environmental Protection Agency (EPA) policy will leave the agency unaware of how much pollution is leaking into air, water and soil as companies are given the green light to suspend monitoring during the coronavirus outbreak.
A directive issued by EPA late Thursday informed companies they would not face fines or other enforcement actions from the agency for failing to monitor and report their pollution.
Companies are expected to “comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible,” the agency wrote in a release announcing the change, which is temporary, but has no set end date.
The move alarmed environmental and public health groups, who couched the memo as a license to pollute, warning the sweeping directive gives industry the ability to exceed clean air and water laws with little consequence.
“There’s a direct link from monitoring to excessive pollution that may occur and may never be detected or reported to the public or regulators because of the grant of amnesty by the Trump EPA,” said John Walke with the Natural Resources Defense Council.
Critics of the memo say the pandemic — along with social distancing measures — could justify a change in some EPA policies. But they worry COVID-19 could be used as a smokescreen to cover a wide variety of pollution with little oversight from the agency.
EPA regulates a number of industries that are likely to benefit from the new rule:
- chemical plants,
- oil and gas outlets,
- power plants,
- steel manufacturers and more.
Their pollution could range from gas leaks from equipment to a surge in contaminants released directly into waterways.
The memo directs companies to document when they were unable to monitor their pollution and identify how the coronavirus outbreak was responsible — prompting concerns that bad actors will try to take advantage of the change.
“How are they going to know when they’re being fooled?” asked Joel Mintz, a former EPA enforcement attorney who wrote a book about the agency’s enforcement practices. “I’m just not sure EPA has the political will or the resources to go through all these requests.”
There could be valid reasons that companies have to fine tune processes in the wake of the virus, he said.
“But if facilities have enough personnel to produce products, you should have enough personnel to comply with environmental laws,” Mintz said. “If they’re making products and making money, they should comply. It’s just that simple.”
EPA told The Hill in a statement the agency believes that it is more important for facilities to ensure that their pollution control equipment remains up and running and that facilities are operating safely, than to carry out routine sampling and reporting.
“We retain all our authorities and will exercise them appropriately,” agency spokeswoman Andrea Woods said in an email.
EPA enforcement actions are continuing, the agency said, including against retailers making unsupported claims that their products can kill coronavirus. But critics say spikes in pollution from routine industrial operations will go unnoticed if no one is monitoring them, exceeding pollution levels allowed under the Clean Air Act, Clean Water Act and other laws.
Eric Schaeffer, executive director of the EPA who previously served as director of the agency’s Office of Civil Enforcement, used benzene as an example.
The cancer-causing substance can be leaked as oil refineries turn crude into fuel. They’re often required to keep monitoring equipment in order to ensure high levels of benzene don’t leak into nearby neighborhoods. Schaeffer said the data the EPA normally collects shows companies can have spikes of as much as 10 times the legal limit.
“If you don’t monitor, you don’t see the benzene, and then you have no obligation to do anything about it. You don’t have the data to know if you need to act,” he said.
The suspension of rules could also be damaging to waterways, which many plants are allowed to directly dispose chemicals into, so long as they ensure their effluent is sufficiently free of toxins.
“If you don’t really have information about the toxicity of your discharges, you just go about your merry way without knowing if you’re discharging something accurately hazardous,” Schaeffer said.
EPA’s policy change followed requests from a number of companies, including those in legal settlements with EPA as well as the American Petroleum Institute, which outlined its hopes in a 10-page letter.
It’s not clear how many companies might seek to take advantage of the suspension outlined in the memo.
“There are always bad actors in the industrial economy when it comes to environmental safeguards,” Walke said, though the accidental pollution that might go unnoticed is just as big a concern.
“Does that mean that every industrial facility in the country is going to do that? Well, of course not, but it’s a very dangerous and irresponsible posture for a law enforcement agency to take."