Can’t Keep Up

EPA rolls back regulations during pandemic, shifts burden to states, tribes

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This article was originally published by New Mexico in Focus, a production of New Mexico PBS. It is reproduced here with permission. Read the original article here.

As the country reels from the spread of the novel coronavirus, federal regulators say they can't keep up with the enforcement of environmental laws. They're also mounting a push-back campaign against press reports and lawmakers who questioned the new policy.

Last Thursday, the US Environmental Protection Agency emailed that because of the ongoing COVID-19 pandemic, it is allowing regulated industries to use their own discretion to report violations of clean air and water laws.

More than four decades ago, the US Congress passed laws such as the Clean Air and Clean Water acts and the Safe Drinking Water Act—laws that guide how oil and gas facilities, power plants, military installations, and drinking water utilities are supposed to operate. EPA is responsible for enforcing those laws, along with state, local and tribal agencies.

However, state environment regulators learned of the changes only as they were announced publicly via the March 26 email. They didn't have a hand in shaping the policy, nor the opportunity to comment on it.

Sen. Tom Udall, D-New Mexico, called the new policy a "green light" for polluters to act without fear of penalties, and said it puts the environment and public health at risk.

In EPA's recent email, the agency laid out scenarios in which companies would self-regulate: "For example, under the policy EPA does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic but does expect operators of public water systems to continue to ensure the safety of our drinking water supplies."

In the course of a few paragraphs within a seven-page memo that outlined the new discretion policy, Susan Parker Bodine, assistant administrator for the Office of Enforcement and Compliance Assurance, described how facilities should handle their own pollution-control failures, uncontrolled releases of wastewater, and disruptions to hazardous waste storage and transfer. If a problem occurs, she wrote, "regulated entities" should keep that information available and then self-report it to the EPA or appropriate state or tribal regulatory agency—or make it available if an agency requests it.

The policy—retroactive to March 13—burdens state regulators who are already overwhelmed. Currently, the New Mexico Environment Department's entire workforce is working from home, Sec. James Kenney told NMPBS in an interview this week, and one-quarter of those 525 employees are actively focused on COVID-19.

In addition to enforcing regulations related to air and water quality, climate change, and hazardous waste, the department also oversees food safety as well as occupational health and safety in the state.

Kenney, who worked for EPA for two decades prior to leading the Environment Department, noted that the federal agency and state regulators already have flexibility when it comes to enforcement, particularly during natural disasters or other emergencies.

Compliance with these federal laws affects every industry and the health of every person who relies upon public services like drinking water, he said.

"We're going to continue to ensure that New Mexicans have safe food and safe water and that infectious waste is managed," Kenney said. "We're also going to continue to look at making sure that the public health emergency caused by COVID is not aggravated by additional public health emergencies caused by non-compliance with environmental laws."

Kenney said states are also awaiting guidance from the federal agency on "legacy waste" sites—areas like WWII-era contamination at Los Alamos or groundwater pollution in Albuquerque's South Valley—that are being evaluated or cleaned up through efforts such as the Superfund program.

While states might not have known what was coming down from EPA Headquarters in Washington, D.C., regulated industries were lobbying for—and awaiting—changes that would ease their perceived regulatory burdens.

EPA's email came six days after the American Petroleum Institute sent a letter to the White House asking federal agencies for relief. In that letter, API president and CEO Michael J. Sommers suggested actions that several federal agencies, including EPA, could take.

Sommers's recommendations for EPA included waiving seasonal fuel requirements—gasoline blends sold in summer are required to reduce smog, but the industry hasn't sold all of its wintertime blends—and waiving routine testing and reporting requirements.

Following news coverage of the policy change, the EPA sent out another email on March 30, calling the news stories "reckless." Then on April 2, it sent a third email, again criticizing media reports, and including a link to letters it had sent to U.S. Senators who had expressed concerns about the new policy. In that letter, Bodine said the agency created the temporary policy in response to states and the "regulated community." She said EPA must prioritize its resources, and will make case-by-case determinations—though those will be made once the pandemic is over.

"In this scenario, regulated parties must document the basis for any claim that the pandemic prevented them from conducting routine monitoring and reporting and present it to EPA on request," Bodine wrote.

In an email to NMPBS, Sen. Tom Udall said, "It is flat-out wrong that the Trump administration's EPA would take advantage of a pandemic to toss its enforcement responsibility out the door when the public is not looking as part of their long-running harmful environmental agenda."

He added that this decision, along with the agency's March 31 rollback of vehicle fuel efficiency standards, is part of a trend.

"Unfortunately, putting corporate polluter profits ahead of public health—even during a pandemic—is a disturbingly consistent pattern in the Trump administration," Udall said. "But I am concerned that the current crisis will embolden them to do even worse when public attention is rightfully elsewhere."

Udall said the policy will burden states like New Mexico, as well as local governments and communities to "step up enforcement of public health and environmental protections at a time when they are facing extreme demands to stem the growing COVID-19 pandemic."

In its initial email, EPA said members of the public "can help protect our environment by identifying and reporting environmental violations."

Udall said that doesn't make sense: "Public reporting is useful at normal times, but at a time when we are staring down the serious threat of this pandemic we cannot expect New Mexicans, who are responsibly complying with the state's public health orders, to be the cops on the beat identifying and reporting environmental violations."

NMPBS asked EPA about the policy, its retroactive nature, how staffers will respond to claims by companies, what factors will be considered when terminating the temporary policy, and the agency's current capacity.

"The temporary policy states that EPA will not seek penalties for noncompliance with routine monitoring and reporting requirements, if, on a case-by-case basis, the EPA agrees that such noncompliance was caused by the COVID-19 pandemic," an email from an EPA spokesman read.

He did not answer questions about how EPA will make the case-by-case determinations, nor did he explain the decision-making process for rescinding the temporary policy. He did write that the "measures in the policy will be lifted as soon as normal operations can resume, which may occur sooner in some locations than others."

Advocates caution that deferring regulation until after pollution has entered the air, water or soil defeats the purpose of these decades-old laws.

"It's always much more difficult to clean something up once it's been polluted, rather than preventing the pollution in the first place," said Eric Jantz, interim executive director of the New Mexico Environmental Law Center. "And that's even more important in the context of public health."

Jantz has represented clients across New Mexico and the Navajo Nation whose communities have suffered from industrial pollution from uranium mining, oil and gas, chemical companies, and more.

"Say there's a significant spill or an explosion or a gas leak, or increased flaring—which leads to increased pollution—and violation after violation without consequences on behalf of the operation," Jantz said. "That is going to have health impacts on families who live nearby, and those families are typically already struggling, not only financially but also with chronic health issues and certainly with access to health care."

Unenforced regulations can lead to pollution, but also to health impacts, including long-term illnesses or intergenerational diseases—none of which can be undone when enforcement resumes.

"The biggest concern is that the U.S. Environmental Protection Agency is oftentimes the primary regulator within Indian Country," Jantz said, because tribal governments don't always have the infrastructure necessary to conduct enforcement on their lands.

"Communities that are the most vulnerable already, under the existing legal and social frameworks, are the ones who paradoxically have to bear the biggest brunt of the pandemic," Jantz said.

And the EPA's decision makes things even worse, he added.

"It's frankly disgraceful," he said. "This is a situation where the federal government is consciously and deliberately compounding the marginalization of already-marginalized communities."