Critics blast EPA move as license to pollute during pandemic

Critics worry a new Environmental Protection Agency (EPA) policy will leave the agency unaware of how much pollution is leaking into air, water and soil as companies are given the green light to suspend monitoring during the coronavirus outbreak.

A directive issued by EPA late Thursday informed companies they would not face fines or other enforcement actions from the agency for failing to monitor and report their pollution. 

Companies are expected to “comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible,” the agency wrote in a release announcing the change, which is temporary, but has no set end date.

The move alarmed environmental and public health groups, who couched the memo as a license to pollute, warning the sweeping directive gives industry the ability to exceed clean air and water laws with little consequence. 

“There’s a direct link from monitoring to excessive pollution that may occur and may never be detected or reported to the public or regulators because of the grant of amnesty by the Trump EPA,” said John Walke with the Natural Resources Defense Council.

Critics of the memo say the pandemic–along with social distancing measures–could justify a change in some EPA policies. But they worry COVID-19 could be used as a smokescreen to cover a wide variety of pollution with little oversight from the agency.

EPA regulates a number of industries that are likely to benefit from the new rule: chemical plants, oil and gas outlets, power plants, steel manufacturers and more. Their pollution could range from gas leaks from equipment to a surge in contaminants released directly into waterways.

The memo directs companies to document when they were unable to monitor their pollution and identify how the coronavirus outbreak was responsible–prompting concerns that bad actors will try to take advantage of the change.

“How are they going to know when they’re being fooled?” asked Joel Mintz, a former EPA enforcement attorney who wrote a book about the agency’s enforcement practices. “I’m just not sure EPA has the political will or the resources to go through all these requests.”

There could be valid reasons that companies have to fine tune processes in the wake of the virus, he said.

“But if facilities have enough personnel to produce products, you should have enough personnel to comply with environmental laws,” Mintz said. “If they’re making products and making money, they should comply. It’s just that simple.”

EPA told The Hill in a statement the agency believes that it is more important for facilities to ensure that their pollution control equipment remains up and running and that facilities are operating safely, than to carry out routine sampling and reporting. 

“We retain all our authorities and will exercise them appropriately,” agency spokeswoman Andrea Woods said in an email. 

EPA enforcement actions are continuing, the agency said, including against retailers making unsupported claims that their products can kill coronavirus.

But critics say spikes in pollution from routine industrial operations will go unnoticed if no one is monitoring them, exceeding pollution levels allowed under the Clean Air Act, Clean Water Act and other laws.

Eric Schaeffer, executive director of the EPA who previously served as director of the agency’s Office of Civil Enforcement, used benzene as an example.

The cancer-causing substance can be leaked as oil refineries turn crude into fuel. They’re often required to keep monitoring equipment in order to ensure high levels of benzene don’t leak into nearby neighborhoods.

Schaeffer said the data the EPA normally collects shows companies can have spikes of as much as 10 times the legal limit.

“If you don’t monitor, you don’t see the benzene, and then you have no obligation to do anything about it. You don’t have the data to know if you need to act,” he said.

The suspension of rules could also be damaging to waterways, which many plants are allowed to directly dispose chemicals into, so long as they ensure their effluent is sufficiently free of toxins.

“If you don’t really have information about the toxicity of your discharges, you just go about your merry way without knowing if you’re discharging something accurately hazardous,” Schaeffer said.

EPA’s policy change followed requests from a number of companies, including those in legal settlements with EPA as well as the American Petroleum Institute, which outlined its hopes in a 10-page letter. 

It’s not clear how many companies might seek to take advantage of the suspension outlined in the memo.

“There are always bad actors in the industrial economy when it comes to environmental safeguards,” Walke said, though the accidental pollution that might go unnoticed is just as big a concern.

“Does that mean that every industrial facility in the country is going to do that? Well, of course not, but it’s a very dangerous and irresponsible posture for a law enforcement agency to take.”