A sweeping decision by the Environmental Protection Agency to suspend enforcement on a range of health and environmental protections due to the spread of the coronavirus has prompted heavy criticism from California regulators, local health officers and environmentalists.
"The severity of the COVID-19 crisis should not be used as an excuse by the EPA to relax enforcement of federal environmental laws designed to protect public health and safety," said Serge Dedina, mayor of Imperial Beach, whose city, on the Mexican border, is under constant siege from pollution. "This crisis has only underscored why protecting public health and safety and our environment is more critical than ever."
In an announcement late Thursday, the EPA waived enforcement on a range of legally mandated protections, saying industries could have trouble complying with them during the COVID-19 pandemic, due to restrictions on travel and social distancing.
"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," said a memorandum from Susan Parker Bodine, an official in the EPA's Office of Enforcement and Compliance Assurance. "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."
The action comes as some local environmental agencies have also paused enforcement due to the outbreak. The Contra Costa County Hazardous Materials Program, for instance, has suspended all nonessential inspections.
According to a county spokesman, the program is doing some limited inspections of underground storage tanks at gasoline dispensing facilities.
"We will respond to any hazardous materials incident in the county as usual," said county health services spokesman Karl Fischer.
Critics of the move worry it could impact environmental compliance in heavily industrialized urban centers such as the Los Angeles-Long Beach harbor complex — an empire of cranes, cargo ships, chemical transfer stations and big rigs about 20 miles south of downtown Los Angeles — and near urban oil fields that have long been accused of causing respiratory illnesses and other health problems.
The oil and gas industries were among those seeking relaxation of environmental and public health enforcement, and cited potential staffing problems due to illness. The EPA’s decision Thursday was sweeping, forgoing fines or other civil penalties for companies that failed to monitor, report or meet some other requirements for releasing hazardous pollutants.
The move was the latest, and one of the broadest, regulation-easing moves by the EPA, which is seeking to roll back dozens of regulations as part of President Trump’s purge of rules that the administration sees as unfriendly to business. Civil and criminal enforcement of polluters under the administration has fallen sharply.
“No one has ever seen anything like this. This is a complete pass for every industry,” said Gina McCarthy, a former Obama-era EPA chief and current president of the Natural Resources Defense Council. “It basically says that if somehow it’s related to COVID-19, then you don’t have to worry — and this is retroactive to earlier in the month — about monitoring or keeping records.”
Monitoring or record-keeping may sound like “just paperwork,” she said, but it’s the most fundamental way for the public to know what pollutants are getting emitted into air and dumped into our water. She’s skeptical of all the industries pushing, on the one hand, to keep their factories open so that their hundreds of thousands of workers can keep their jobs, while also saying that the safety of their lab personnel are at risk of COVID-19 and can’t perform their typical monitoring duties.
“It’s ludicrous,” she said. “This is standard work that takes very few people to do — especially when you’re trying to keep the factories running.” She called the announcement, “an open license to pollute.”
In a statement, EPA Administrator Andrew Wheeler said the open-ended waiver was temporary and retroactive to March 13.
“EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements,” Wheeler said. “This temporary policy is designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment.”
The EPA directive said industries would be expected to comply with regulations “where reasonably practicable.” Businesses that broke regulations would have to be able to show that they tried to reduce the harm, and show how any violations were caused by the coronavirus outbreak, the EPA said.
"This policy does not provide leniency for intentional criminal violations of law," the agency said.
David Uhlmann, director of the environmental law and policy program at the University of Michigan and former chief of the environmental crimes section at the Justice Department, seemed less alarmed about the announcement, in part because it does not apply to criminal violations.
He said that while it was no surprise people would be suspicious about the decision, considering the Trump administration's "deplorable record" on environmental protection, "this policy may be less nefarious than the alarming environmental rollbacks that the Trump EPA continues to pursue, even as the nation is fighting the COVID pandemic."
Just this week, the administration announced it was going to move forward on a rule designed to restrict the types of research that can be used in public health protection decisions and scientific assessments.
“It’s not a free pass or get out of jail free card. The issue is not the policy itself — but how it’s going to be implemented,” said Felicia Marcus, former EPA regional administrator during the Clinton Administration.
Like Uhlmann, she said she understood the suspicious context in which everyone is interpreting this latest announcement. “Everyone is seeing this coming from an EPA that you can’t trust. They haven’t done a lot to inspire confidence in the past 3½ years, so why should people trust them now?”
There are still clear requirements to document, to notify, to clearly establish how COVID-19 restrictions are disrupting your ability to perform certain duties, she said. This is all good policy. Protecting clean drinking water also remains a top priority, she noted, as well as any “acute risks or imminent threats.”
“People will have to put a transparent spotlight on this and make sure it doesn’t become an excuse to pollute,” Marcus said.
But others, like McCarthy, were less assured.
Nancy Marvel, former counsel for EPA's Region 9, said she saw no reason for the announcement. Typically, if a natural event were to displace workers or prevent monitoring by industry, it was a situation that would be dealt with after the fact "through enforcement discretion if appropriate."
Issuing a pass in advance, she said, was unusual. In her 30 years at the EPA, she'd never seen anything like it.
And while she said it wasn't likely to impact most people in California, where regional air and water districts have stricter laws than the federal government, she was concerned about how it might be applied elsewhere.
In the Bay Area, enforcement and monitoring of air pollution is still happening, said Kristine Roselius, spokewoman for the Bay Area Air Quality Management District, adding that the EPA's absence is likely not going to be noticed.
"We have more more stringent regulations than the EPA, and we're still going to enforce them," she said. "We're here to protect public health; Especially right now when everyone is so concerned about respiratory health."
The Associated Press contributed to this report.