US EPA relaxes policy, citing coronavirus pandemic

THE US Environmental Protection Agency (EPA) has announced temporary policy that will allow non-compliance from industries such as oil and gas and power generation, in cases where it is as a result of the coronavirus pandemic. However, due to their importance, public water systems are expected to continue functioning as normal.

EPA Administrator Andrew Wheeler said the Agency recognises that protecting workers and the public against coronavirus may cause challenges that affect the ability of regulated facilities to meet all federal regulatory requirements. “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,” he added.

Despite the new temporary policy, organisations are expected to make “every effort” to comply with environmental obligations, and facilities should continue to be managed and operated safely and in a manner that protects the public and the environment.

If it is not possible to comply with environmental obligations, organisations should work to minimise the effects and duration of any non-compliance that occurs due to the pandemic; identify the nature and dates of the non-compliance; identify how coronavirus was the cause, as well as the decisions and actions taken in response; return to compliance as soon as possible; and document this information.

In its memorandum about the policy, EPA discusses how the policy relates to areas such as managing and operating facilities, including in cases where the impacts of coronavirus create an acute risk or imminent threat to human health or the environment, and routine monitoring and reporting.

For example, where systems or equipment failures at facilities could result in exceeding limits on emissions, discharges into water or land disposal, or other authorised emissions, facilities must notify the necessary authorities. Additionally, if facilities produce hazardous waste, and the pandemic prevents transfer off site within required time periods, they must label and store the waste, and take actions determined under general conditions.

EPA has heightened expectations for public water systems, due to the importance of clean water access for drinking and enabling handwashing that is critical during the coronavirus pandemic. The agency expects operators to continue normal operations and maintenance, as well as sampling to ensure the safety of drinking water supplies. Laboratories must continue to provide timely analysis of sample results.

If the water sector experiences staff shortages, the EPA considers continued operation of drinking water the highest priority.

Organisations are not relieved of responsibility to prevent, respond to, or report accidental releases of oil; hazardous substances, chemicals, or waste; and other pollutants. Additionally, the policy is not to be read as a “willingness to exercise enforcement discretion in the wake of such a release”.

Furthermore, the considerations made by the policy are only to be applied to people and businesses making good-faith efforts to comply with their obligations at this time. EPA will continue to pursue criminal penalties in cases where violations were due to intentional disregard for the law.

The EPA said: “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. All ongoing enforcement matters are continuing.”

According to the New York Times, the temporary policy comes amidst an influx of requests from businesses to relax regulations, as they face layoffs, personnel restriction, and other issues stemming from the coronavirus pandemic.

Reportedly, Granta Nakayama, Assistant Administrator of EPA under US President George W Bush, said that the policy provides straightforward and sensible guidance. He said it does not give companies a free pass to pollute, but rather provides guidance in a challenging situation where industries are facing unique circumstances.

However, the policy has drawn criticism from environmentalists, as well as other former EPA officials.

Cynthia Giles, Assistant Administrator of EPA enforcement under Barack Obama, said the memorandum amounted to a nationwide moratorium on enforcing US environmental laws and an abdication of the EPA’s duty. The Guardian reports that Giles and other environmental advocates believe that while the policy may be “reasonable in limited circumstances” the “blanket waiver” of environmental requirements poses a threat to the American public.

Aaron Mintzes, Senior Policy Counsel at the non-profit organisation Earthworks, said: “It’s obscene that the Environmental Protection Agency responds to the worst public health crisis in a century by loosening oversight of oil and gas polluters that threaten public health and climate. The federal response to one crisis should not worsen another.

“Although the COVID crisis is new, there’s nothing new about the oil and gas industry’s desire for weak oversight.”

“The EPA’s action protects corporate polluters, not people. It heightens the public health threat to communities and residents living near oil and gas development.”

The temporary policy applies retroactively from 13 March for an undefined period.