Dozens of facilities skipping out on EPA pollution monitoring have prior offenses

More than 50 facilities across the country that have faced enforcement actions for alleged Clean Water Act violations are among those taking advantage of an Environmental Protection Agency (EPA) policy that lets companies forgo pollution monitoring during the pandemic, an analysis by The Hill found.

The temporary EPA policy, announced in March, says industrial, municipal and other facilities do not have to report pollution discharges if they can demonstrate their ability to do so has been limited by the coronavirus.

The Hill first reported that 352 facilities have skipped water pollution monitoring requirements under the policy, which applies to air pollution as well. Of those facilities, 55 have faced formal enforcement actions in the past five years from either the EPA or state regulators.

“A significant number of these plants already have a history of violations and for that reason should be more closely monitored to make sure the violations aren’t repeated or that they are following the requirements of their consent decrees,” said Eric Schaeffer, former director of the EPA’s Office of Civil Enforcement who is now executive director of the Environmental Integrity Project.

Schaeffer’s group, which did its own analysis of the EPA data, found that over the past three years, 167 facilities, or nearly half of the 352, had at least one effluent violation, meaning they exceeded the amount of permissible pollution.

Some had a small number of violations, while others had dozens. American Samoa Shipyard Services had 418 violations, the most of any facility on the list.

“Some of these facilities have a history of not monitoring or reporting discharges,” Schaeffer said. “I’d be a little concerned that any recent failures to comply with these monitoring and reporting requirements are just more of the same, rather than any result of the pandemic.”

The EPA’s implementation of the temporary policy followed requests from certain industries asking for relief from obligations they described as nonessential during the pandemic. Environmental groups later sued over the policy, arguing that polluters would be empowered to skirt the rules without proper monitoring.

Last month, top EPA enforcement official Susan Parker Bodine said in a letter to lawmakers that about 300 facilities with Clean Water Act permits had decided to forgo their pollution monitoring requirements under the temporary policy.

“To date, out of over 49,600 facilities with a Clean Water Act discharge permit, only about 300 facilities have used the COVID-19 code,” Bodine wrote, referring to a code that entities skipping their pollution monitoring were told to put into the EPA’s system. “This is about six tenths of one percent.”

The Hill’s analysis found that of the enforcement actions taken against 55 facilities over the last five years, a majority of them involved settlements or penalty payments.

Many actions were in response to recent violations, though some dated back to the 1980s.

The alleged violations also varied in size and scope.

In one of the bigger cases, the Kensington Gold Mine in Alaska last year had to pay penalties totaling $534,500 after an EPA inspection in 2015 found 200 wastewater discharge violations.

Lynn Thorp, national campaign director for Clean Water Action, said the fact that some of these facilities have a history of violations underscores her belief that the EPA policy is too broad and that facilities should be evaluated on a case-by-case basis.

“Perhaps a history of violations would cause a permit overseer in a state or an EPA regional office to say, ‘Not sure this is a good idea,’ ” said Thorp, whose group is among several suing the EPA over the temporary policy. “Or they might know all about that history and those violations [and] that problem that led to them have been solved and they would say, ‘This is just not relevant.’ ”

“The people who oversee these permits need to be able to act on red flags like that and make decisions on an individual basis,” she added.

The EPA did not provide a comment for this story.

The Hill’s review found that sewage and wastewater treatment plants appear most frequently on the list of 352 facilities, with more than 100 locations taking advantage of the policy that’s slated to expire at the end of August.

Industries that appeared frequently on the EPA’s list, which did not include facilities typically required to monitor other types of discharges like air pollution, were concrete production facilities and shipyards.

Sectors that are often targeted by environmentalists, such as fossil fuels and chemicals, make up a smaller share. The Hill identified about seven oil and gas facilities, six minerals mines or quarries and just a handful of coal mines and chemical company facilities.

Many of the wastewater facilities on the list were small ones that serve schools or parks, while others serve major metropolitan areas like parts of New York City.

Representatives for wastewater utilities said the EPA policy has been beneficial to protect the health of city workers, arguing the lack of monitoring was not a major concern because workers can use data to project water quality, even if they reduce the amount of sampling.

“My argument is because of how small the threat is, because of the way they know how to operate, they can really provide safety with projected monitoring,” said Mike Keegan, an analyst at the National Rural Water Association.

“You can make some good speculation that you’re not really putting the public at risk there,” Keegan said. “You also can’t derive the alternative — that they’re violating the permit — either. The data is limited.”

Rebecca Beitsch, Gabby Birenbaum and Rachel Scully contributed.