Federal and state environmental agencies said they are adopting temporary “enforcement discretion” policies that allow regulated businesses to violate some environmental regulations during the COVID-19 public health emergency.
Both the U.S. Environmental Protection Agency and the state of Indiana’s Department of Environmental Management said the policy is necessary due to the effect COVID-19 is having on a reduced workforce.
But environmental groups say the policy will allow polluters to endanger human health through more pollution.
“We can all appreciate the need for additional caution and flexibility in a time of crisis, but this brazen directive is an abdication of the EPA’s responsibility to protect our health,” said National Resources Defense Council president and CEO, former EPA administrator Gina McCarthy. “This is an open license to pollute. Plain and simple.”
Local groups say IDEM’s similar policy will endanger Hoosier health.
“While the new IDEM policy, at a high level, is a positive affirmation of the agency’s role in protecting public health and while the policy does require that requests by regulated entities must be in writing, we do not believe that the policy is sufficiently protective of human health,” Hoosier Environmental Council executive director Jesse Kharbanda told the Indiana Environmental Reporter in an email.
The EPA announced it would institute a temporary enforcement discretion policy for civil environmental legal obligations like routine monitoring and reporting requirements. The agency said it would not seek penalties for noncompliance if that noncompliance was “caused by the COVID-19 pandemic.”
The EPA said the policy “does not provide leniency for intentional criminal violations of law.”
“EPA’s enforcement authority and responsibility remains active,” said EPA administrator Andrew Wheeler. “This is not a nationwide waiver of environmental rules. We will continue to work with federal, state and tribal partners to ensure that facilities are meeting regulatory requirements, while taking appropriate steps to protect the health of our staff and the public.”
But, the EPA may not be able to depend on state-level monitoring in Indiana. IDEM has adopted a similar policy during the COVID health crisis, saying it would also allow environmental regulation noncompliance if the regulated entity says COVID-19 contributed to the ongoing noncompliance.
“IDEM has not identified any regulatory requirements that should be generally waived as a result of workforce impacts due to COVID-19,” the agency policy states. “Rather, all regulated entities are encouraged to take all available actions necessary to ensure continued compliance with environmental regulations and permit requirements to protect the health and safety of Hoosiers and the environment. However, in the instance that noncompliance is unavoidable directly due to impacts from COVID-19, IDEM will exercise enforcement discretion as appropriate.”
IDEM said regulated entities must continue maintaining records to document activities related to the noncompliance. According to IDEM, Gov. Eric Holcomb’s Executive Order 20-05, which lays out state government actions during the public health emergency, authorizes the agency to extend any non-essential deadline up to 60 days, “if necessary to respond to the threat of COVID-19.”
The policy will help businesses during the crisis, but loopholes could allow those same businesses to pollute Indiana’s environment and endanger human health.
Kharbanda said the policy “encourages” rather than “requires” companies to take all actions necessary to remain compliant and keep in contact with IDEM.
He also noted that the policy does not make a distinction between administrative noncompliance and other noncompliance that could directly affect public health, like a spill.
“While IDEM does have discretion (and thereby would assuredly treat a spill much more differently than an administrative error), we worry that IDEM is setting the expectation to regulated entities that the agency will not be as rigorous in enforcing the law during the COVID-19 pandemic, which could cause regulated companies to understaff position that are, effectively, essential in nature,” Kharbanda said.
Kharbanda said the Hoosier Environmental Council is also concerned about whether IDEM will have sufficient staff levels to assess noncompliance requests and extensions.
IDEM funding has decreased by 20% in the last decade. One of the hardest hit programs was the hazardous waste management program, which suffered a 76% cut even as more hazardous sites needed cleanup.
State and federal regulations require permitted facilities to track certain air and water pollutants and to submit noncompliance reports whenever the facilities exceed their permit limits for those pollutants.
But, even without a virus complicating matters, companies have often had issues with their reporting.
One recent example is the ArcelorMittal steel mill in Burns Harbor.
In August 2019, the company admitted releasing elevated levels of cyanide and ammonia into the Little Calumet River. The spill resulted in about 3,000 dead fish and closed down beaches and parts of the Indiana Dunes National Park.
IDEM ordered the company to conduct daily 24-hour composite sampling of the water discharged from an outfall where the facility’s coke plant, sinter plant, blast furnaces and other essential areas are discharged.
The company submitted noncompliance reports days and weeks after the violations first occurred and would also initially report effluence violations slightly above permitted limits, only to revise the reports weeks later with a much higher monitored value.
The company collected water samples and sent them to independent laboratories for testing. IDEM said it found sampling deficiencies in data submitted by the company in the months after the chemical release.
The company has denied manipulating data. A report detailing IDEM’s findings was forwarded to the IDEM Office of Water Quality’s enforcement section.
Kharbanda is concerned these types of serious reporting issues would become much more frequent during the time IDEM is practicing the COVID-19 enforcement discretion.
With about 5,000 Hoosiers testing positive for the disease, Gov. Holcomb has extended a stay-at-home order until at least April 20 and continued the policies that allow only essential services to continue operating.
It’s unclear whether IDEM’s enforcement discretion would end at that date or continue for much longer.
Now that two levels of environmental enforcement are gone for the foreseeable future, some environmental groups said the federal enforcement discretion guideline could allow companies to take advantage of the public health crisis.
In a letter to members of Congress, EPA assistant administrator Susan Parker Bodine said the EPA is still enforcing U.S. environmental laws and expects regulated facilities to comply with regulatory requirements where “reasonably practicable.”
“Irresponsible allegations that EPA is giving industry a license to pollute mischaracterizes the Agency’s response to those risks and impugns the work that the dedicated Agency officials continue to perform during this challenging time,” Bodine said.
Bodine said the temporary policy does require case-by-case determinations that will be made after the pandemic is over. The EPA may determine that a company’s noncompliance was not caused by COVID-19.
If the EPA decides to investigate every company for noncompliance, those companies found violating environmental law could escape penalties altogether.
A recent report released by the EPA’s Office of Inspector General found that compliance monitoring activities, enforcement actions and enforcement results have declined greatly since 2006.
The report found that inspections have decreased by 33% and enforcement actions with penalties have decreased by 53%.
The EPA found that the lowest numbers for EPA enforcement came in 2018, the year Andrew Wheeler became the acting EPA administrator.