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By: Jeremy Cox, Bayjournal.com
As the new coronavirus spreads across the country, environmental regulatory enforcement is contracting.
The U.S. Environmental Protection Agency announced March 26 that it is “temporarily” suspending enforcement of environmental laws tied to a sweeping list of categories. The policy is retroactive to March 13, when President Trump officially declared a national emergency and includes no end date.
“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.
The federal action comes as many states also curtail routine environmental monitoring and fieldwork as part of a larger effort to limit in-person interactions that could lead to the virus’ further transmission.
Environmentalists sharply criticized the EPA announcement, arguing that it effectively allows many industries to skirt environmental rules, including oil refineries and chemical plants.
“We understand the coronavirus is a public health emergency that may require a flexible response from EPA,” a coalition of 14 groups said in a letter to the agency. But “that response must be tailored to specific and appropriate circumstances and not offer a blanket waiver of requirements that many companies that are up and running may have no trouble meeting.”
The Chesapeake Bay-region groups signing the letter included the Chesapeake Climate Action Network, Potomac Riverkeeper Network, PennEnvironment, and Waterkeepers Chesapeake.
In its memo, the EPA said the action is necessary because many companies are suffering from worker shortages and may not have the capacity to process lab results, submit required paperwork or keep emissions in check as they normally would.
The EPA “does not expect” to seek penalties for failure to complete routine monitoring, sampling, training and certain types of reporting, according to the memo.
The policy states that regulators may enforce at their discretion certain environmental violations caused, at least in part, by the pandemic. But entities must still “make every effort” to comply with the rules and take steps to minimize any excess pollution. They also must fully document the episode and identify how it was tied to the coronavirus crisis.
The agency, though, will grant extraordinary leniency to facilities determined to be “critical infrastructure.” Such plants may be given “No-Action Assurance” notices to continue operating.
Enforcement will continue in several sectors, however.
The waivers won’t apply to criminal violations, the EPA said. Nor does the policy affect Superfund cleanups, though the agency said it would address that program in a future announcement.
Public water systems also must continue normal operations and maintenance while continuing to perform routine lab tests to ensure their supplies are safe, according to the memo.
Environmental groups said the agency is sending conflicting messaging amid the outbreak. On the one hand, they say, it is granting polluters leeway. On the other hand, it has refused to give the public more time to comment on proposals to roll back environmental regulations.
“In fact, EPA recently denied a request to extend the comment period for the so-called ‘science transparency’ rule at a time when public health officials who may oppose that decision have had to turn their attention to coronavirus,” the coalition said in its letter. “Our organizations face the same challenges keeping up with the rulemaking process as do large corporations, but with fewer resources.”
State environmental officials in the Bay watershed said they were still responding to environmental emergencies, such as oil spills. But they were shutting down routine facility inspections and taking other steps to slow the spread of the coronavirus. Offices have closed, turning most staff members into teleworkers.
In Virginia, the Department of Environmental Quality suspended all fieldwork temporarily and canceled all public meetings through April. Pennsylvania’s Department of Environmental Protection was prioritizing fieldwork it deemed “critical” to public health and safety.
“All permittees and operators are expected to meet all terms and conditions of their environmental permits, including conditions applicable to the cessation of operations,” the agency said on its website. “DEP is committed to its mission of protecting public health and the environment and as such will continue to monitor these permitted facilities that have temporarily ceased operations.
The head of the Maryland Department of the Environment didn’t criticize the federal action. The state is also making difficult decisions to balance its regulatory mission with protecting its employees’ health, Secretary Ben Grumbles said.
“The [EPA] memo underscores upfront that authorized states may take a different approach under their own authorities, and we certainly intend to do that,” he said. “We recognize the need for enforcement discretion in limited situations on a case-by-case basis.”
The MDE is allowing a grace period for state licenses and permits facing expiration or renewal. And it is reducing fieldwork as well to only those visits deemed most critical.
The agency is looking into ways to conduct inspections remotely using digital technology, Grumbles said. In the meantime, he added, “We’re putting our greatest priority on non-routine inspections.”