As the EPA retreats on enforcement, our Waterkeepers will be called on to step in to protect the public
The Environmental Protection Agency (EPA) issued a Memorandum on March 26, 2020, that virtually exempts all federally-regulated entities from compliance with environmental laws and obligations due to the COVID-19 health crisis. Under the Memorandum, the EPA gives notice that it will not be pursuing civil environmental violations for the indefinite future. The announcement is sweeping, applies broadly, and completely leaves the public in the dark about major forms of pollution that were outlawed prior to the pandemic.
If the pandemic has somehow truly undermined a facility’s ability to comply with environmental laws or permit terms, the facility should be able to make it clear that there is no other safe way for the operations to move forward. The federal government and states should be prepared to respond and take corrective action in those individual instances. But that’s not the case here.
The EPA has issued exemptions from compliance before, in ‘enforcement discretion’ Memorandums, with carefully tailored exemptions in situations like hurricanes to specific facilities or specific types of operations. In the past, the reasoning for the exemption was clearly laid out, with details about how specific facilities or types of facilities could temporarily be prevented from complying with laws, and a firm end date for the enforcement discretion. But the exemptions set out in this Memorandum are of a new breed because they apply so broadly and indefinitely, with no end date in sight. If a regulated entity can safely utilize its employees to continue operating to bring in profits, then it should be able to safely comply with environmental laws.
Our nation’s monitoring and reporting requirements are essential to protecting the health and safety of local communities. Encouraging non-compliance with environmental laws and obligations will only exacerbate the public health threats communities across the country are facing, not to mention the quality of our water and air. The communities that face the brunt of these impacts are already disproportionately burdened by harmful pollution and lack of access to health care.
Failure to monitor discharges or emissions means that facilities do not know whether they are complying with permit terms set out to protect the public and wildlife. Likewise, failure to monitor or upgrade critical equipment could lead to the next environmental and public health disaster. Failure to report means that communities and hospitals are left in the dark about key details that could mean life or death for some. Air pollutants, gone unchecked, will only worsen asthma, respiratory and cardiovascular issues for many; water pollutants in drinking water sources, gone unchecked, can lead to organ failure and cancer. When we exempt certain facilities from complying with environmental obligations, there could be some major public health implications for decades to come. For example:
- An oil refinery, typically required to monitor and take necessary corrective actions on benzene emissions, emits over 9 micrograms of benzene per cubic meter – causing a deadly scenario for nearby communities and wildlife
- A large CAFO, required to monitor and report on ammonia levels under a federal agreement, emits over 100 pounds of ammonia – failure to monitor ammonia outputs means failure to report this deadly release of ammonia to hospitals and first responders
- A coal-fired power plant, typically required to monitor and report on toxic outputs associated with burning coal, discharges bromide into nearby waterways, threatening the drinking water of nearby communities
- A gas company fails to repair critical infrastructure related to a pipeline in a timely manner and leaks toxic gases into the air, risking the health and safety of its neighbors
- A city, required to repair aging wastewater treatment infrastructure and eliminate sewage overflows under a consent decree, fails to take action and continues to release bacteria, nitrogen, and phosphorus into already degraded waters
At the end of the day, one would expect that the agency charged with protecting the environment and public health would rise to meet the needs of the COVID-19 crisis and work with federally-regulated entities to ensure that the public isn’t placed in greater danger than it is. Instead, the EPA has placed it’s enforcement responsibilities on hold for no clear or apparent reason. We support the revisions to the memorandum outlined by the Center for Progressive Reform.
This exemption only extends to federally-regulated entities and states can exercise enforcement discretion as they see fit. But it remains to be seen how well increasingly beleaguered state agencies will be able to continue inspections, monitoring and enforcements. Some Chesapeake Bay states have already offered some encouraging responses to the EPA Memorandum, but the jury is still out. Secretary Ben Grumbles of the Maryland Department of the Environment made a statement that the agency would continue to enforce Maryland’s laws and environmental obligations as usual, only granting exemptions on a limited, case-by-case basis. Virginia’s Department of Environmental Protection has already issued a guidance stating that “DEQ staff will consider non-compliance issues resulting from COVID-19 on a case-by-case basis, but by no means does this crisis equal a free pass for the regulated community.” Pennsylvania’s Department of Environmental Quality is accepting requests from regulated entities to temporarily suspend regulatory or permit conditions — but the burden is on the entity to show exactly why the exemption is needed. With every state, public participation in the regulatory and permitting process has been jeopardized given the shelter-in-place orders and social distancing requirements.
Waterkeepers Chesapeake, along with the seventeen Waterkeepers we represent, are calling on state agencies to rise up to the challenges posed by our current public health crisis to ensure the health of our communities and waterways [see our letters to Pennsylvania and Maryland]. We will continue to work with Chesapeake Bay states to ensure that state-level enforcement continues without interruption. The water quality monitoring conducted by Chesapeake Bay waterkeepers and tools like Water Reporter may be more important now than ever before. You can also contact your local Waterkeeper or your local environmental protection agency directly to report pollution.