Recently the Environmental Protection Agency announced that they would be relaxing enforcement standards on pollution effective March 13, 2020 in light of the COVID-19 pandemic. Linked below is the EPA’s Memorandum announcing the relaxing of regulations, the New York Times’ article covering it, and the EPA’s response to the New York Times’ reporting.
All enforcement discretion set forth in this temporary policy is conditioned on the following.
1. Entities should make every effort to comply with their environmental compliance obligations.
2. If compliance is not reasonably practicable, facilities with environmental compliance obligations should:
- Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
- Identify the specific nature and dates of the noncompliance;
c. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
- Return to compliance as soon as possible; and
- Document the information, action, or condition specified in a. through d.
New York Times article
WASHINGTON — The Environmental Protection Agency on Thursday announced a sweeping relaxation of environmental rules in response to the coronavirus pandemic, allowing power plants, factories and other facilities to determine for themselves if they are able to meet legal requirements on reporting air and water pollution.
The move comes amid an influx of requests from businesses for a relaxation of regulations as they face layoffs, personnel restrictions and other problems related to the coronavirus outbreak.
Issued by the E.P.A.’s top compliance official, Susan P. Bodine, the policy sets new guidelines for companies to monitor themselves for an undetermined period of time during the outbreak and says that the agency will not issue fines for violations of certain air, water and hazardous-waste-reporting requirements.
EPA News Release Response
WASHINGTON (March 30, 2020) — The mission of the U.S. Environmental Protection Agency (EPA) is to protect human health and the environment, and during this time of unprecedented public health concerns, that mission is even more critical. On March 26, EPA released a temporary policy regarding the agency’s enforcement of environmental legal obligations during the COVID-19 pandemic. This temporary policy is not a license to pollute.
We strongly encourage the press to actually read EPA’s Temporary Policy before repeating reckless propaganda about it. Instead of including factual information about the policy, outlets such as E&E News, The Hill , the AP, and the New York Times are relying on sources who falsely claim that the policy provides a blanket waiver of environmental requirements or creates a presumption that the pandemic is the cause of noncompliance.
Here are some of the facts that have been conveniently left out of the press narrative:
The policy says that EPA will not seek penalties for noncompliance with routine monitoring and reporting requirements, if, on a case-by-case basis, EPA agrees that such noncompliance was caused by the COVID-19 pandemic. Regulated parties must document the basis for any claim that the pandemic prevented them from conducting that routine monitoring and reporting and present it to EPA upon request. This action was necessary to avoid tying up EPA staff time with questions about routine monitoring and reporting requirements and instead allow EPA to focus on continued protection of human health and the environment.
The policy does not say that the COVID-19 pandemic will excuse exceedances of pollutant limitations in permits, regulations, and statutes. EPA expects regulated entities to comply with all obligations and if they do not, the policy says that EPA will consider the pandemic, on a case-by-case basis, when determining an appropriate response. Further, in cases that may involve acute risks or imminent threats, or failure of pollution control or other equipment that may result in exceedances, EPA’s willingness to provide even that consideration is conditioned on the facility contacting the appropriate EPA region, or authorized state or tribe, to allow regulators to work with that facility to mitigate or eliminate such risks or threats.
EPA has been inundated with questions from both state regulators and the regulated community about how to handle the current extraordinary situation where contractors are not available because they cannot travel, state and local governments are imposing stay at home orders, and the number of people who have contracted COVID-19 and are in quarantine is rising. EPA developed the Temporary Policy to allow EPA to prioritize its resources to respond to acute risks and imminent threats, rather than making up front case-by-case determinations regarding routine monitoring and reporting. The development of the policy was a group effort, involving multiple calls and with and drafts shared among EPA staff and managers, both career and political, at both headquarters and in the regions.
It is important to note EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible, once the COVID-19 threat is over. Additionally, the policy makes clear that EPA expects operators of public water systems to continue normal operations and maintenance during this time, as well as required sampling, to ensure the safety of vital drinking water supplies.
The measures in this policy are temporary and will be lifted as soon as normal operations can resume, which may occur sooner in some locations than others. We take our environmental mandate to protect human health and the environment very seriously and will continue to carry it out during this time.