New EPA policy: some pollution rules are discretionary during pandemic

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Early last week, the Environmental Protection Agency (EPA) reviewed a request from the American Petroleum Institute (API) — to soften enforcement of air and water pollution during the Covid-19 pandemic.

A few days later, the EPA invoked a temporary policy that does just that — easing enforcement of environmental laws during the outbreak.

EPA’s “temporary enforcement discretion” applies to civil violations during the outbreak — and frames the policy as more of a reporting and “routine monitoring” matter — as does the petroleum group.

“EPA does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations” resulting from the pandemic. “The temporary policy makes it clear that EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible,” according to a memo from the agency.

The policy does not apply to Superfund sites.

In a statement signed by a coalition of environmentalists, the Environmental Integrity Project pointed out: “It is not clear why refineries, chemical plants, and other facilities that continue to operate and keep their employees on the production line will no longer have the staff or time they need to comply with environmental laws.”

Not just “a paperwork concern”

The statement from EIP gave an example of the risks, saying it was not just a paperwork concern.

The Clean Air Act requires refineries to monitor benzene levels at their fencelines — and ten U.S. refineries exceeded an annual threshold for the toxin in the fourth quarter of 2019.

Monitoring these emissions would be waived if personnel were inadequate during the pandemic.

Former EPA enforcement official, Cynthia Giles, quoted in The Guardian said, “The memo amounts to a nationwide moratorium on enforcing the nation’s environmental laws and is an abdication of EPA’s responsibility to protect the public.”