Polluters get a pass from EPA during pandemic

Andrew Wheeler, EPA photo by Eric Vance

Under pressure from industry, the EPA announced yesterday that it will not fine polluters who violate the law by failing to monitor their emissions and discharges during the COVID-19 pandemic. The policy suspending civil penalties is temporary, said EPA Administrator Andrew Wheeler in a press release. It is retroactive to March 13.

The range of industries eligible for this temporary pass is vast, including many that operate in North Carolina, such as electric utilities, plastics and textile manufacturers, asphalt plants, and waste incinerators.

The EPA’s order states that “in general the agency does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the E.P.A. agrees that Covid-19 was the cause of the noncompliance and the entity provides supporting documentation to the E.P.A. upon request.”

According to the EPA’s press release, the agency expects regulated facilities to comply with the law, “where reasonably practicable, “and to return to compliance “as quickly as possible.”

Neither of those terms is defined in the policy announcement.

To skirt the penalties, facilities must “document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.”

“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,” Wheeler wrote. “This temporary policy is designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment.”

The agency said public water systems should continue to operate normally, including routine sampling, “to continue to ensure the safety of our drinking water supplies.” Public water suppliers are required to regularly monitor for some contaminants, such as lead, copper and disinfection byproducts, that latter of which have been linked to cancer. These utilities must report results to both federal and state authorities.

The policy does not provide exempt polluters that intentionally violate the law, Wheeler wrote. Nor does the policy apply to pesticide imports, enforcement of Superfund sites or the disposal of regulated hazardous waste.

In its response to the pandemic, the EPA has been inconsistent in its leniency, particularly for public comment. Chris Frey is an NC State University environmental engineer professor who served on the agency’s Science Advisory Board from 2012 to 2018. He noted on Twitter that the EPA has refused to extend its 30-day public comment deadline on a controversial rule to limit the use of human health data in its environmental decisions.

Scientists and public health advocates have pleaded with the agency to extend the comment period, but the EPA has refused to do so.

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