[UPDATED 04/02/20] Q&A: EPA suspends environmental safeguards due to COVID-19. What does this mean for the Bay?
(Last Updated April 2, 2020, 7:00pm; updated text in red)
On March 26, 2020, the Office of Enforcement and Compliance Assurance at the U.S. Environmental Protection Agency (US EPA) released a memo entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” This memo states that as a result of the COVID-19 pandemic, EPA will “exercise enforcement discretion … for noncompliance” of environmental laws. The memo has been widely covered in the media and was immediately criticized by environmental and public health advocates, with particular concern for the impact on public health.
What does this EPA memo mean for the Bay?
- What does the EPA memo say?
- What does this mean on the ground?
- Why did EPA change its policy?
- What geographic areas are covered?
- Can the public still file complaints and/or sue those violating environmental laws?
- Will the public be informed of new violations?
- What are the short-term impacts?
- What are the long-term impacts?
- I have specific questions – can you help?
The attorneys at the Chesapeake Legal Alliance are always here to help, including during the coronavirus outbreak. Contact us directly if you would like assistance in understanding this policy and how it impacts your work.
Q: What exactly does the EPA memo say?
A: This memo creates a temporary policy during the COVID-19 pandemic whereby EPA has discretion to suspend the enforcement of certain environmental laws, including the Clean Water Act and Clean Air Act.* This policy is being applied retroactively beginning on March 13, 2020.
This new policy applies to areas that are under EPA’s jurisdiction, which include the District of Columbia and a few other states and tribes that are not currently authorized to implement their own environmental regulatory programs under the Clean Water Act and Clean Air Act. For those jurisdictions that have delegated authority to implement these federal regulatory programs, the memo serves as guidance (or a suggested policy). These states may be inclined to follow EPA’s lead or use this opportunity as an excuse to suspend environmental and public health protections, however, which is what makes this policy dangerous.
Q: What do these changes look like on the ground?
A: When a facility reports a violation of the law, EPA can reduce or eliminate any penalties it would normally assess under the law. These violations can include failure to perform compliance monitoring such as fence line monitoring, tank and pipe inspections, stormwater inspections, as well as pollution sampling (cooling tower or effluent discharge).
Q: Why did EPA change its policy?
A: The stated purpose for this policy was to recognize the impact of “potential worker shortages due to the COVID-19 pandemic as well as the travel and social distancing restrictions imposed by both governments and corporations.”
This sounds pretty reasonable. What’s the problem? At first glance, it does appear reasonable. For example, the policy states that “if compliance is not reasonably practicable” the regulated facility must “identify the specific nature and dates of the noncompliance” and “return to compliance as soon as possible.” This is a higher standard than normal — typically, facilities are under no obligation to report the reasons for their noncompliance. EPA even states that “after this policy is no longer in effect, the EPA expects full compliance going forward.” However, EPA has always had this discretion to enforce the law. Therefore, the memo is technically unnecessary and merely sends the wrong message at the wrong time: that environmental compliance is not a priority, and those in charge of safely operating facilities that pollute are no longer required to protect public health and the environment.
It is unclear why facilities, including chemical plants, refineries, and other major industrial facilities, which are largely operating as for-profit-entities, would be unable to comply with environmental laws, even despite the coronavirus pandemic. If the business is operating, then full environmental compliance should be mandatory.
The leader of EPA’s enforcement division during the Obama administration, Cynthia Giles, told the New York Times: “This is essentially a nationwide waiver of environmental rules. It is so far beyond any reasonable response I am just stunned.”
Moreover, EPA’s enforcement levels — under normal circumstances — are already staggeringly low. As such, the COVID-related “policy” may not be a significant departure from the trend in enforcement we have seen under the current Administration, unfortunately. EPA enforcement levels had already plummeted even before the COVID-19 global pandemic. In fact, just this week, the EPA Inspector General released an alarming audit of EPA inspection and enforcement activity, comparing 2007 enforcement levels with 2018 levels. The audit showed:
- a 33% decline in the number of inspections;
- a 51% decline in the number of enforcement cases closed; and
- a 53% decline in the number of actions where penalties were issued.
Q: What geographic areas are covered?
A: As mentioned above, this new policy applies to areas that are under EPA’s jurisdiction, which include the District of Columbia and a few other states and tribes that are not currently authorized to implement their own environmental regulatory programs under the Clean Water Act and Clean Air Act. For those jurisdictions that have delegated authority to implement these federal regulatory programs, the memo serves as guidance (or a suggested policy).
Does it Apply to Bay States? The EPA memo is not binding on any jurisdiction in the Chesapeake Bay watershed other than the District of Columbia.
Can Bay States have stronger protections? YES! The memo specifically acknowledges that “authorized states or tribes may take a different approach under their own authorities.” New York, Pennsylvania, Delaware, Maryland, West Virginia, and Virginia all administer the Clean Water Act and Clean Air Act regulatory programs at the state level. Therefore, each state program is required to be AS strong as the federal program, but can choose to be stronger.
Already, we have seen some state environmental officials make public statements about their intention to continue enforcing environmental laws and not following EPA’s blanket policy. We want to thank NY Commissioner Seggos and MD Secretary Grumbles for rejecting EPA’s path and publicly affirming their state’s commitment to protecting health and the environment during this critical time. “The Trump administration is using this public health crisis as an opportunity to allow the U.S. EPA to further abdicate its already-diminishing role in protecting public health and the environment,” Basil Seggos, commissioner of New York’s Department of Environmental Conservation, said in an email. “Rolling back enforcement of regulations in place to protect the quality of our air, water, and health of our communities is a shameful exploitation of the current public health crisis,” Seggos continued. Maryland’s Secretary of the Environment, Ben Grumbles states in the Bay Journal: “We understand we may need to exercise discretion in enforcement of environmental regulations on a limited, case-by-case basis during a disaster, but Maryland is not issuing a broad upfront policy as EPA is doing… Maryland remains fully committed to requiring compliance and we will continue to use enforcement as needed to protect the quality of our air, water, and land throughout the state and the Chesapeake Bay region.”
We hope other Bay states will follow this example to protect the health and safety of their communities. However, some states may be inclined to follow EPA’s lead or use this opportunity as an excuse to suspend environmental and public health protections. You can do something about this: Contact your state environmental agency and/or your elected state representatives and tell them that you do not condone this dangerous policy of waiving enforcement of critical environmental safeguards and you expect stronger protections in your state.
Q: Can the public still file complaints and/or sue those who are violating environmental laws?
A: Your rights to enforce the law under our federal environmental statutes have not changed. In fact, your role is more important than ever before. The further that EPA continues to withdraw from its role in enforcing our bedrock environmental laws, the more important it is to exercise the rights given to you under the Clean Water Act, Clean Air Act, and our other environmental laws. This memo merely provides guidance to EPA enforcement staff in Washington, D.C. and in the regional offices around the country, as well as to regulated facilities regarding the way in which EPA will enforce the law for an undetermined amount of time during the coronavirus pandemic.
Please remain vigilant in reporting suspected violations to county, state, and federal officials. You can also report violations to your local environmental organization. Each local Waterkeeper accepts pollution reports (find your local Waterkeeper here). However, please do not attempt to take samples of pollution and stay far from anything that you may suspect to be illegal pollution or a violation of environmental laws. Only trained professionals should attempt to investigate or remediate suspected hazardous chemicals.
If you would like assistance in bringing an enforcement action, please submit a request for legal services here.
Q: Will the public be informed of new violations?
A: The short answer is that it is unclear. EPA’s memo requires facilities seeking a waiver from enforcement during the pandemic to document “the specific nature and dates of the noncompliance” and the “return to compliance.” However, it does not indicate whether those waiver requests will immediately be made public. It is our hope that that EPA proactively shares all documents produced, and actions taken, under the guidance contained in this memo. If EPA does not proactively share the documentation, the public can obtain them through Freedom of Information Act Requests. Advocates are continually urging state and federal agencies to provide more transparency by simply posting online the public information they have in their file cabinets and computer hard drives. The Chesapeake Legal Alliance recently helped push for passage of a comprehensive environmental enforcement transparency bill in Maryland.
If you would like to learn more about how you can access environmental data from your state please feel free to contact us at any time.
Q: What are the short-term impacts?
A: More pollution: First and foremost, as a matter of common sense, when law enforcement officials announce they are systematically declining to enforce the law, an increase in violations is likely. Some violations may be due to legitimate coronavirus-related situations, while other are potentially illegitimate. Either way, the increase in pollution is particularly troubling because a disproportionate amount toxic and carcinogenic chemicals emitted in this country pollute our most vulnerable communities – the same communities that are most vulnerable during this pandemic to economic dislocation, lack of health care coverage, and higher rates of pre-existing health conditions, all of which make the coronavirus even more deadly. This is why many environmental justice advocacy organizations recently submitted a petition for rulemaking to EPA to ensure that “the public receives prompt notice of any facility’s failure to conduct required monitoring or reporting in reliance.” More than ever, it is critical to protect your lungs and your overall health in order to maximize your body’s ability to fight this dangerous virus.
Compliance-sector jobs are lost: But beyond these more immediate and obvious consequences to the environment and public health, there are also direct and indirect economic consequences as well. Environmental compliance is a multi-billion dollar economic sector that includes everything from the compliance officers working at facilities to keep the operations running clean, to laboratories where samples are taken, to environmental engineers and planners that make sure facilities and developments are designed with protective standards in place, to the scientists that invent new pollution control technologies. When EPA announces that compliance is optional it signals to companies that they can invest less in environmental compliance which has ripple effects on the many industries and professions that have evolved to make our economy run cleaner. That puts not only the environment at risk, but many thousands of jobs and billions in economic output.
Q: What are the long-term impacts?
A: It is too soon to speculate about long-term impacts. However, with EPA’s diminished role in enforcement, the response by state and local governing agencies will shape the true impact. For that reason, it is critical that individuals and groups continue to voice their support for local and state agencies to enforce environmental laws and protect public health.
Q: I have specific questions about how this memo might impact a facility or consent decree. Can you help?
Does this apply to construction sites? Potentially. While most construction sites are regulated by the Clean Water Act to prevent pollution from leaving construction sites, as discussed above, this policy only applies to areas that are under the federal EPA’s jurisdiction. This includes the District of Columbia and states and tribes that are not currently authorized to implement their own regulatory programs under the Clean Water Act and Clean Air Act. The EPA memo is not binding on any other Chesapeake Bay watershed jurisdictions. That means the vast majority of construction projects in Bay states are subject to their own state’s enforcement procedures. A potential caveat to this would be: federal facilities that are exclusively regulated by EPA, including the District of Columbia and Delaware, which is the only Bay state that is not authorized to permit federal facilities.
Does this apply to industrial and municipal dischargers? Potentially. Unless the dischargers are solely regulated under state law, which generally means the facility discharges to groundwater, and not surface water. While state environmental agencies typically do the vast majority of inspections and enforcement, EPA occasionally conducts inspections and enforcement at major industrial and municipal sites compared with construction sites. It is important to note, however, that in the recent past, EPA has backed away from conducting enforcement activity in states that operate their own Clean Water Act, Clean Air Act, or other federal environmental programs. In April 2019, EPA further limited the types of inspection and enforcement activities they can conduct without notice or consent from state agencies (see EPA guidance document).
If you have questions about how your state is handling enforcement issues for a particular site during the pandemic, please contact us.
By: Angela Haren, Director of Legal Innovation & Evan Isaacson, Director of Policy and Research
Given the fluid nature of the COVID-19 situation, Chesapeake Legal Alliance will work to keep this post updated with the most current information. Also, if you have questions that are not addressed here, please contact Evan Isaacson at email@example.com.
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