A group of nearly two dozen environmental advocates on April 1 petitioned the Environmental Protection Agency to amend its recent memo addressing compliance enforcement during the COVID-19 pandemic.
The March 26 EPA memo granted entities guidance on compliance measures that result from COVID-19, noting that the pandemic may constrain the ability of regulated entities to perform routine compliance “monitoring, testing, sampling, laboratory analysis, training, and reporting or certification” because of reduced work staff.
Entities should “make every effort to comply with their environmental compliance obligations” but if compliance is “not reasonably practicable” the memo says the EPA would exercise “enforcement discretion.”
The memo reserves the right for the EPA to judge if COVID-19 was the cause of noncompliance and requires the entity to provide supporting documentation to the EPA upon request. The memo is retroactive to March 13.
The EPA’s non‐enforcement policy “threatens environmental and health protections by inviting regulated entities to pollute and to hide crucial information from the public,” according to the petition filed by the environmentalists, which include the Natural Resources Defense Council, Environmental Justice Health Alliance, Flint Rising, Public Citizen, Sane Energy Project, Southeast Environmental Task Force, and the Texas Environmental Justice Advocacy Service. The memo “conveys a broad license to industry to quit monitoring and reporting indefinitely, based only on the honor system,” they said.
The petitioners are particularly concerned that the non‐enforcement policy presents a “huge risk to downstream, downwind, and fenceline communities.” Those people “can’t take steps to protect themselves—or pursue appropriate enforcement against polluters—without timely information about air and water pollution.”
The petitioners are asking that the EPA “promptly publish” online an electronically searchable and sortable list of the name of all regulated entities that provide notification of non-compliance under the memo and the location of the facility involved.
To that end, the petitioners are asking that, instead of the EPA’s “broad invitation” to regulated industries to suspend monitoring and reporting without public disclosure, the agency publish within seven days “a final, enforceable rule” to ensure that the public receives prompt notice of any facility’s failure to conduct required monitoring or reporting based on the March 26 memo.
The petitioners want the new rule to be immediately enforceable, but also said the EPA should solicit public comment at the same time as it publishes the requested final rule and then amend the rule as appropriate in response to comments.
“Providing advance notice and comment serves an important purpose, but given the extraordinary circumstances here, delaying issuance of the rule would be harmful,” the petitioners wrote.
The petitioners said they “fully appreciate” the disruption and harm caused by the COVID‐19 pandemic but argued that the EPA’s “unprecedented non‐enforcement policy creates a clear opportunity for abuse.”