The U.S. Environmental Protection Agency and the Iowa Department of Natural Resources announced this week that they are relaxing enforcement of some environmental regulations because of the novel coronavirus (COVID-19) pandemic.



EPA “WILL ALLOW INDUSTRY TO POLICE ITSELF FOR THE FORESEEABLE FUTURE”

The federal government’s main environmental regulator announced on March 26 a “temporary policy regarding EPA enforcement of environmental legal obligations” in light of COVID-19. The policy is retroactive to March 13 and has no set end date.

The document (enclosed below as Appendix 1) notes that the pandemic “may constrain the ability of regulated entities to perform routine compliance monitoring,2 integrity testing,3 sampling,4 laboratory analysis,5 training,6 and reporting or certification.7” For that reason,

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.

The federal agency also gave state governments a green light to reduce their own environmental enforcement.

Until such time as dictated by travel and social distancing restrictions, the EPA believes states should take into account the safety and health of their inspectors and facility personnel and use discretion when making decisions to conduct routine inspections, notwithstanding any applicable compliance monitoring strategy. The EPA will take the COVID-19 pandemic into consideration in any review of a state compliance and enforcement program, such as the State Review Framework.

The Iowa Environmental Council criticized the EPA decision in a March 27 statement.

Over the past three years, the Trump administration has attempted unprecedented rollbacks of foundational federal environmental regulations. Yesterday, under the guise of pandemic response, the U.S. EPA announced it is suspending enforcement of almost all environmental compliance reporting and will allow industry to police itself for the foreseeable future. Although the Iowa Environmental Council is sensitive to the staffing or monitoring challenges some industries may face at this time, such as public drinking water utilities, a general suspension of some environmental reporting and penalties – with no anticipated process or date for restoring public health and environmental protections – creates an unacceptable risk for people across the country. “Clean air and water are critical to public health. A health crisis is no time for the EPA to allow a pollution free-for-all that results in further environmental health threats,” said Kerri Johannsen, Energy Program Director with the Iowa Environmental Council. “Clean water is a critical necessity for the operation of our health care system and to provide sanitary conditions to help Americans stop the spread of this virus. Dereliction of clean water oversight could result in a compounded public health crisis,” said Ingrid Gronstal Anderson, Water Program Director with the Iowa Environmental Council. “Furthermore, it is important to ensure that vulnerable and at-risk populations are protected from pollutants and other threats that can exacerbate health problems and drive more people into the health care system.” “The EPA needs to reevaluate this decision,” said Johannsen. “Relaxation of oversight should be done with a scalpel instead of a bulldozer to provide appropriate – and temporary – regulatory relief without wholly dismantling environmental reporting and enforcement, without even a date to revisit this decision.”

Cynthia Giles, former leader of EPA’s Office of Enforcement under President Barack Obama, also criticized the policy, Rebecca Beitsch reported for The Hill.

“This EPA statement is essentially a nationwide waiver of environmental rules for the indefinite future. It tells companies across the country that they will not face enforcement even if they emit unlawful air and water pollution in violation of environmental laws, so long as they claim that those failures are in some way ’caused’ by the virus pandemic. And it allows them an out on monitoring too, so we may never know how bad the violating pollution was,” she wrote in a statement to The Hill.

Although the memo stated that “All ongoing enforcement matters are continuing,” it indicated that routine enforcement will take a back seat.

During the pendency of the current COVID-19 exigency, the EPA expects to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment, to ensure protection against such risks or threats.

Another section of the memo “encourages facilities, states, and tribes to consult with their EPA regional office on acute risks and imminent threats” and says that for programs the EPA implements directly, the federal agency “will work with the facility to minimize or prevent the acute or imminent threat to health or the environment from the COVID-19-caused noncompliance […].” That was a red flag for Giles, who told The Hill,

“Incredibly, the EPA statement does not even reserve EPA’s right to act in the event of an imminent threat to public health,” Giles said. “Instead, EPA says it will defer to states, and ‘work with the facility’ to minimize or prevent the threat. EPA should never relinquish its right and its obligation to act immediately and decisively when there is threat to public health, no matter what the reason is. I am not aware of any instance when EPA ever relinquished this fundamental authority as it does in this memo.”

IOWA DNR PROVIDES “REGULATORY RELIEF”

The state agency primarily responsible for environmental regulation issued an “enforcement and compliance protocol in recognition of the extraordinary circumstances facing the state from COVID-19.” Perry Beeman was first to report on the policy for Iowa Capital Dispatch. The DNR memo (enclosed in full below) is dated March 20 but was linked on the agency’s website seven days later.

Whereas the EPA framed normal compliance practices as infeasible due to COVID-19, the DNR’s version is more explicit about “attempting to provide some regulatory relief” in order to “mitigate the economic effects of business closings and social distancing standards necessary to protect the public’s health.” The agency presented the policy as “an attempt to balance the need to protect and maintain Iowa’s natural resources against the need to protect people from infection.”

Among other things, the DNR:

is suspending the prohibition on yard waste disposal at municipal landfills;

will allow livestock producers to double-stock confinement buildings if the pandemic forces them to “keep animals on-site longer than scheduled”;

will allow livestock producers to apply manure in ways “inconsistent” with the facility’s manure management plan due to double-stocking;

is extending the deadline for “stack testing required by an air quality construction permit”;

will not require certain facilities to monitor or sample storm water on the usual timetable set out by permits;

will be flexible regarding wastewater monitoring and reporting if staffing problems or restricted access prevent facilities from following the requirements of their permits;

is giving public water suppliers three extra months to file their “consumer confidence report” and encouraging them to contact the DNR field office if they can’t comply with some conditions of their permits, such as “monitoring requirements, operating conditions, corrective action delays, and limited laboratory capacity.”

There are some limits to what the DNR will let slide due to COVID-19. The March 20 memo states, “Health-based drinking water standards must be met at all times.” A separate announcement posted on the agency’s website March 24 noted, “Iowa’s hunting and fishing regulations are not affected by the current COVID-19 health emergency.”

Iowa’s environmental community was already wary of DNR Director Kayla Lyon, whom Governor Kim Reynolds appointed to lead the agency last summer. Lyon has a degree in agricultural communications and spent much of her career lobbying for agricultural interest groups.

How far the DNR is willing to lower the bar on water quality and air quality enforcement bears watching. The policy’s provisional end date of April 30 “may be extended if warranted by the on-going pandemic,” the document states. Will Lyon leave relaxed standards in effect only as long as the governor’s various executive actions restricting business activities and public gatherings? Or will this approach to enforcement become the new normal at DNR until a COVID-19 vaccine is widely available? That could be 18 months to two years from now.

I’ll update this post as needed.

Appendix 1: March 26, 2020 memorandum on “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program”

Appendix 2: March 20, 2020 “COVID-19 Enforcement and Compliance protocol” from the Iowa Department of Natural Resources

Top photo: Interior of a hog confinement, originally published on the EPA website and available via Wikimedia Commons.