Contributors: Kelsey Breseman, Eric Nost, Gretchen Gehrke, Chris Sellers, Marcy Beck, Lourdes Vera, EDGI
On March 26, 2020 EPA released a memo suspending permit enforcement for industries that claim to have been impacted by COVID-19. This memo has already rightly been called out as an unprecedented relinquishment of power (see: The Intercept, The Hill, The Guardian). EDGI joins this important critique: suspending enforcement under trying circumstances may sound like a reasonable leniency, but only if you make two incorrect assumptions: (1) that there will not be negative health consequences from the suspension of the permits that regulate releases of health-harming chemicals; and (2) that EPA is capable of reviewing and evaluating paperwork that facilities will submit to show that they have made their “best effort” to conduct environmental monitoring during the COVID crisis – an additional task on top of enforcing permits, which they fail to do even in normal times. The disastrous anti-regulatory approach of the current administration’s EPA indicates that the agency will take every opportunity to avoid enforcing statutory regulations.
In this memo, we highlight selected passages in order to clarify the negative impacts on human and environmental health that this policy enables. There are three major categories for concern:
- A definition of “essential” that cherrypicks rather than prioritizes the entirety of human health outcomes
- In the context of EPA’s already spotty track record in enforcing the nation’s environmental laws, the lack of accountability that will result from EPA’s request that industries use their “best effort” to comply
- The promotion of policies that privilege the concerns of industry over the concerns of the public
EPA’s wording is shown in italics (bolded statements in quoted sections are original to the memo). EDGI’s commentary and analysis are shown in regular text following each passage.
Human Health is Essential
…But EPA’s memo suggests otherwise
Scope, Page 1
At the EPA, we are cognizant 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 or recommended by the Centers for Disease Control and Prevention to limit the spread of COVID-19. The consequences of the pandemic may affect facility operations and the availability of key staff and contractors and the ability of laboratories to timely analyze samples and provide results. As a result, there may be constraints on the ability of a facility or laboratory to carry out certain activities required by our federal environmental permits, regulations, and statutes. These consequences may affect reporting obligations and milestones set forth in settlements and consent decrees. Finally, these consequences may affect the ability of an operation to meet enforceable limitations on air emissions and water discharges, requirements for the management of hazardous waste, or requirements to ensure and provide safe drinking water. These are very distinct situations that the EPA plans to manage differently, as described below.
EPA acknowledges the potential shortage of workers due to the ongoing pandemic. However, across the country workers that are deemed “essential” are going to work, such as grocery store clerks and doctors, in large part to protect human health. Emissions permits are issued precisely to protect human and environmental health. EPA’s assertion that the pandemic would limit facilities’ ability to comply with environmental permits indicates that, while states may deem facility operations–like refining oil and gas–as essential, EPA does not treat clean air, clean water, and the labor to steward them, as essential. This is particularly important in light of recent research that shows higher COVID-19 deaths in areas with higher air pollution. In addition to relaxing emissions compliance expectations, EPA will allow facilities to ignore their data collection requirements. As former EPA Office of Enforcement and Compliance Activities Director Cynthia Giles put it, by easing up on monitoring, “we may never know how bad the violating pollution was.” (The Hill) This creates a long-term problem from the perspective of enforcement, and from communities’ right to know about risks to their health imposed by industries.
Not enforcing permits pushes the burden of COVID impacts off of regulated facilities and onto members of the public and to the environment. Leniency in a crisis is not a kindness to the community here, but a cost (both in money and in health). Rather than relaxing enforcement, if EPA continued enforcement in a national emergency, it could drive industries to take precautions against this type of risk, for example: investment in remote or automated monitoring, analysis, and reporting, safeguards against emissions that might occur when a facility is not in operation, and insurance against penalties.
EPA Takes a Reactive Rather than Proactive Approach to Health
Enforcement Discretion, I. Civil Violations, D. Facility operations, Page 4
Facilities should contact the appropriate implementing authority (EPA region, authorized state, or tribe) if facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment. Even in authorized programs, the EPA strongly encourages facilities, states, and tribes to consult with their EPA regional office on acute risks and imminent threats.
b. In cases where the EPA implements the program directly:
i. The EPA regional office will evaluate whether an applicable permit, statutory, or regulatory provision addresses the situation. The EPA’s Office of Enforcement and Compliance Assurance (OECA) will work with program offices on nationwide issues that may arise.
“Acute risk” and “imminent threat” need explicit definitions (which EPA does not give here) in order to be usable for purposes of decision-making. But further, the focus on “acute risks” is problematic, particularly in the midst of a pandemic like COVID-19. Chronic health conditions, which are often sensitive to low-level exposures, increase risks of COVID-19 morbidity and mortality. The EPA’s narrow focus on acute risks extends the Trump administration’s public health approach to fund disaster or security-related response-planning rather than making long-term investments in human health. We expand on this point in our recent report on how the administration has “unprepared” us for COVID-19 by consistently slashing the staff and budgets for the Centers for Disease Control and Prevention over the past 3 years.
In all of the memo, there is no mention of possible or anticipated health impacts from releasing industry from their compliance requirements. There is also no mention of a plan to track impacts. This implies that EPA doesn’t think permits are related to human health outcomes. Meanwhile, EPA intends to lean on permit limits to protect human and environmental health if (and when) there becomes an acute risk to human health due to noncompliance. Permits cannot be both inconsequential and the last line of defense.
Breathable Air is as Important as Drinkable Water
Enforcement Discretion, I. Civil Violations, E. Public water systems regulated under the Safe Drinking Water Act, Page 6
Public water systems have a heightened responsibility to protect public health because unsafe drinking water can lead to serious illnesses and access to clean water for drinking and handwashing is critical during the COVID-19 pandemic. Accordingly, the EPA has heightened expectations for public water systems. The EPA expects operators of such systems to continue normal operations and maintenance as well as required sampling to ensure the safety of our drinking water supplies. The EPA expects laboratories performing analysis for water systems to continue to provide timely analysis of samples and results. States play the lead role on drinking water issues, but the EPA also has important drinking water enforcement and oversight responsibilities, including direct implementation responsibilities in some locations.
This part of the memo identifies clean water as an essential service – when in fact all permits designed to protect environmental and human health are essential. Clean air is obviously essential to human health, now more so than ever. COVID-19 is a respiratory illness, and people with asthma (which can, of course, be triggered by air quality issues) and other respiratory issues are at higher risk of COVID-19 complications. Air quality may be improving in aggregate and as some places as non-essential services shut down, but essential services like power plants and refineries are not shutting down. This has socio-economically uneven health impacts, as the poorer and minority-majority communities that surround these so-called essential facilities continue to be exposed to the conditions that also put them at higher risk for worse COVID-19 outcomes. Louisiana’s Cancer Alley – home to dozens of petrochemical processors – has witnessed one of the highest mortality rates due to COVID in the US. Now more than ever, these facilities must comply with existing environmental law to preserve the health of those working the sites or sheltering in homes nearby.
The EPA Memo Rubber-Stamps an Existing Pattern of Noncompliance
Trusting Polluting Facilities to Make “Best Efforts” without a Functional Review Process
Enforcement Discretion, I. Civil Violations, A. General conditions, Page 2
All enforcement discretion set forth in this temporary policy is conditioned on the following.
1. Entities should make every effort to comply with their environmental compliance obligations.
2. If compliance is not reasonably practicable, facilities with environmental compliance obligations should:
a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
b. Identify the specific nature and dates of the noncompliance;
c. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
d. Return to compliance as soon as possible; and
e. Document the information, action, or condition specified in a. through d.
The EPA’s use of “should” as opposed to “shall” is significant; it is a suggestion rather than a requirement. It amounts to a scenario in which the fox is left to guard the hen house. Technically, EPA cannot abdicate its enforcement responsibilities across the board because it is Congressionally-mandated to enforce the provisions of the nation’s major environmental protection laws: the Clean Air Act, Clean Water Act, and the Resource Conservation and Recovery Act. What the agency can do is offer case-by-case exemptions. That’s precisely the arrangement this memo sets in place. It asks polluters to send the agency their justification as to why they cannot monitor and report. However, there is no mention of mechanisms for oversight by the EPA: no stated review or audit process, no stated criteria for evaluating claims, and no mention of how any of this information may ever become public. The agency does not appear to have any way of measuring whether a facility is “making every effort.” The memo even states in the following section that facilities can simply “maintain this information internally and make it available to the EPA or an authorized state or tribe upon request.” It is very possible that EPA will end up rubber stamping industry requests, meaning, in effect, that enforcement drops on a nationwide level. EPA’s “polluters should try their best!” is a nice sentiment but doesn’t apply to a context where the base assumption is that permits, monitoring, and enforcement are necessary to the protection of environmental & human health. In the context that large-scale noncompliance is already the norm, this rings even more hollow.
Creation of Loopholes and Rubber-Stamped Noncompliance
Enforcement Discretion, I. Civil Violations, B. Routine compliance monitoring and reporting by regulated entities, Page 3
In general, the EPA 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 EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request. After this policy is no longer in effect, the EPA expects full compliance going forward. In general, absent exigent circumstances, the EPA does not plan to ask facilities to “catch-up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For other monitoring or reports, such as those required on a bi-annual or annual basis, when this policy is no longer in effect, the EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports.
The memo specifically stipulates that EPA’s metric for leniency is “where the EPA agrees that COVID-19 was the cause of the noncompliance”– which is a much lower bar than implied by asking for industry to give “best efforts.” EPA makes no attempt to assess “best efforts” – which means there is no formal need to make any.
“Expects” in “the EPA expects full compliance going forward” is an odd word choice when EPA doesn’t have anywhere close to full compliance under “normal” circumstances. For instance, a full 20% of major facilities that were evaluated for compliance under the Clean Air Act in 2019 were alleged to have violated it. This is worse than three years prior, in 2016, when 15.4% of evaluated major facilities were alleged to have violated the Act. This occured over the same period as irregular and declining enforcement by the EPA. An audit published by the EPA’s independent Office of Inspector General just days after the COVID-19 memo found that over the past 15 years, the agency’s enforcement actions have declined significantly. For instance, the number of inspections conducted by the agency dropped by one-third over that time period. EPA’s memo suggests that industries will monitor and stay within their permits, without a reasonable expectation of enforcement – even though the data indicates the opposite.
COVID as a get-out-of-jail-free card?
Enforcement Discretions, Civil Violations, Facility Operations 1.b.iv. Page 5
In screening cases to determine when to seek prosecutorial assistance from DOJ, the EPA will distinguish violations that facilities know are unavoidable as a result of COVID-19 restrictions from violations that are the result of an intentional disregard for the law.
Over the past 15 years, the agency’s enforcement actions have plummeted, according to a recent audit by the EPA itself. Although the audit did not look at criminal actions, our own examination of agency data, in “Sheep in the Closet: The Erosion of Enforcement at the EPA” showed that EPA’s “criminal case initiations in FY 2017 and 2018 were the lowest since 1992, and the number of criminal defendants charged in 2018 was the lowest since 1991.” This shows that the EPA is giving industry the benefit of the doubt with regards to their handling of human and environmental health, generally failing to enforce even criminal noncompliance. Given that the EPA is not providing any metrics or criteria that will be evaluated in COVID-related noncompliance, it seems unlikely that the EPA would counter their current pattern by determining that industry intentionally disregarded the law.
Failure to Penalize Polluting Facilities Penalizes the Public Instead
Enforcement Discretion, I. Civil Violations, C. Settlement agreement and consent decree reporting obligations and milestones, Page 4
With respect to EPA administrative settlement agreement reporting obligations and milestones, if, as a result of COVID-19, parties to such settlement agreements anticipate missing enforceable milestones set forth in those documents, parties should utilize the notice procedures set forth in the agreement, including notification of a force majeure, as applicable. For EPA administrative settlement agreements, the EPA intends to treat routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and associated reporting or certification obligations in the manner described above and will generally not seek stipulated or other penalties for noncompliance with such obligations. The notification should provide the information required by the agreement, which typically will include steps taken to minimize the effects and duration of any noncompliance caused by COVID-19, as well as the information specified under subpart A, above. EPA staff will review these notifications and may contact a party to seek adjustments to a proposed plan of action, pursuant to the agreement.
The EPA has administrative settlement agreements with various facilities that have already grossly violated their environmental permits, under conditions absent a global pandemic. The settlement agreements usually have strict monitoring requirements precisely because of the facilities’ prior breaches of compliance and community trust. By not seeking a penalty for facilities missing their monitoring requirements, the EPA fails to take into account the likelihood of emissions violations from former violators and adds insult to injury for already burdened communities.
The EPA Memo Privileges Private Interests above Public
Promotion of Industrial Concerns over Public Concerns
Applicability, Page 1
The EPA will assess the continued need for and scope of this temporary policy on a regular basis and will update it if the EPA determines modifications are necessary. In order to provide fair and sufficient notice to the public, the EPA will post a notification here https://www.epa.gov/enforcement/enforcement-policyguidance-publications, at least seven days prior to terminating this temporary policy.
Why is the termination of the policy subject to public comment but not the policy itself? Inviting public comment about when to end this policy gives regulated facilities a space to oppose its ending. By issuing this policy in a memo without inviting public comment, EPA did not provide an opportunity for the public to critique it. Additionally, this relaxation of compliance requirements were issued at the same time as EPA opened the shortest possible public comment period for a sweeping rule that would undermine EPA’s utilization of science in its decision-making. Under pressure, EPA recently extended that public comment period by an additional 30 days, at which time the country is expected to still be in a state of national emergency.
Double Standards – Digital Signatures for Industry but not for the Public
Enforcement Discretion, I. Civil Violations, B. Routine compliance monitoring and reporting by regulated entities, Page 3
If a submission to the EPA requires a “wet” signature of a responsible official, the EPA will accept a digital or other electronic signature. The mere inability to obtain a “wet” signature will not be considered a justification for failure to make a paper submission or certification. We strongly encourage the regulated community use the EPA’s approved electronic reporting mechanisms. For enforcement purposes, the EPA also will accept emailed submissions even if a paper original is required.
This is another example of EPA extending more flexibility toward industry than to the general public. Among the general public, petitioners are especially facing this challenge of obtaining “wet signatures” during this time of social distancing. However, there hasn’t been a communication from the agency suggesting that electronic signatures will suffice.
The EPA’s COVID-19 compliance memo may seem innocuous on first read. The agency specifies that facilities “should” comply with existing rules and that nothing prevents it from exercising its normal powers. Indeed, after substantial public outcry against the memo, EPA released a follow-up letter to all members of Congress “correcting the record,” asserting that “EPA expects regulated entities to comply with all obligations and if they do not, the policy says that EPA will consider the pandemic, on a case-by-case basis, when determining an appropriate response.” But the EPA’s own recent report from the Office of the Inspector General shows enforcement, inspections, and funding decreased across the board. How realistic, then, is a plan to consider waivers on a case-by-case basis, when EPA already broadly fails to enforce its standard permits outside of global pandemic? With no articulation of criteria to be applied under a ”case by case” determination, this “correction” only underscores EPA’s authority to act arbitrarily in the interest of industry instead of public health. The lack of criteria or any stated plan for EPA oversight during this time highlight a pervasive lack of transparency related to compliance and enforcement during the pandemic. The week after the memo’s release, EPA declined to reveal how many companies sought waivers, further compounding the breach in public accountability by creating unknown unknowns. Some of the undisclosed number of companies seeking waivers have likely exceeded permitted limits, but neither we nor the companies themselves can be certain. With public reporting requirements waived, we may never know the detrimental impacts of this policy.
EPA’s memo reveals many things: the extent to which it has been “captured” by industry during this administration; how it prioritizes the fossil fuel and toxics-oriented economy over public and environmental health, deeming one but not the other essential; and the agency’s ongoing inability to ensure compliance with the nation’s most important environmental protection laws. The EPA non-enforcement policy is an opportunistic use of a monumental crisis to further deregulatory ideology and practice. EDGI will continue to provide analyses of the impact of EPA’s decision, including a more thorough discussion of how EPA’s actions undermine environmental justice.
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