EPA Administrator Andrew Wheeler said the agency’s response to relaxing enforcement due to the novel coronavirus pandemic has been “very mild” compared to the Obama administration’s similar approach to natural disasters.
In an interview on Thursday, Wheeler said the pandemic has put the Environmental Protection Agency in the unusual position of handling requests for guidance from all 50 states, as opposed to the small handful of states that it had to respond to in past crises.
In contrast, Wheeler pointed to the EPA under former President Barack Obama, when the agency issued 13 separate enforcement discretion actions and five fuel waivers in the wake of Hurricane Sandy, which he said mainly only affected four states in 2012.
“They went above and beyond what we did for those four states during the hurricane,” Wheeler said, speaking by telephone from his office, where he said he has been going every single day.
On March 26, the EPA offered temporary relief to facilities affected by the coronavirus pandemic, saying it won’t seek penalties for certain missed obligations.
The new guidance acknowledges that some entities can’t perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification activities. The guidance, which took effect retroactively to March 13, has no end date.
Susan Bodine, the EPA’s assistant administrator for enforcement and compliance assurance, told Bloomberg Law that the policy was left open-ended because the “situation is very fluid.”
“We don’t know when this crisis will be over,” Bodine said. “What we are paying very close attention to is when state and local health departments let people go back to work because then we won’t need any enforcement discretion.”
Bodine emphasized the agency will post notifications about relaxed enforcement waivers online for the public to view.
A group of 11 Democratic senators made that request of Wheeler on Wednesday.
Across the nation, the EPA has heard from companies, states, and utilities grappling with the virus in a way never before seen, Wheeler said. He pointed to water systems struggling with having enough workers, and chemical companies who need employees to operate equipment and produce disinfectants to fight the coronavirus.
“I certainly don’t want to tell any of them, ‘Take people off of your line, or take people away from producing more disinfectant products, to fill out routine reporting forms to submit to us,’” Wheeler said.
He said the temporary policy doesn’t give bad actors a better chance to flout environmental rules.
“We’re always going to have some bad actors, and we go after them,” he said. The EPA has been increasing the number of criminal enforcement cases it pursues, according to Wheeler.
EPA statistics showed the agency pursued 33% more criminal cases in fiscal 2019 compared to the previous year, though its inspector general, in a report this week, criticized an overall downward trend in enforcement and compliance monitoring over the last decade.
Wheeler said he has been “shocked” by the response and news coverage of the EPA’s new enforcement policy, accusing journalists, environmental groups, and lawmakers of not actually reading the agency’s memo.
He singled out Eric Schaeffer, the former director of EPA’s Office of Civil Enforcement under the Clinton and George W. Bush administrations, for criticizing the memo before it was officially released.
Wheeler theorized that political motivations may be driving environmental groups to criticize the enforcement guidance.
“It’s sad that there are people out there trying to politicize a very routine enforcement discretion that we do on a regional basis whenever there’s an emergency such as a hurricane,” he said.
The EPA on Thursday sent a letter to all members of Congress to “correct the record” on its enforcement policy, saying it was still enforcing regulations.
“The agency strongly disagrees with those who argue that a more appropriate response to this public health crisis would be to force facilities to either shut down or to put people at risk by keeping all their workers at the facility at the same time” to keep performing routine monitoring and reporting, Bodine wrote.
Schaeffer, who now heads the nonprofit Environmental Integrity Project, said he did read the memo prior to its public release due to Wall Street Journal reporting. And reading the memo “doesn’t change anything we said in our letter,” he said.
The group’s letter acknowledged it made sense to suspend some enforcement in response to the coronavirus, but said the EPA’s waivers were overly broad and prevented the public from knowing about violations of pollution limits.
Cynthia Giles, who held Bodine’s post at the EPA under the Obama administration, also said she recognizes the EPA must respond to what is clearly “a very unusual situation today.”
“But a nationwide waiver for every company in the country for all environmental standards is widely over-broad,” said Giles, currently a guest fellow with Harvard Law School’s Environmental and Energy Law Program.
Giles was most critical of leaving the memo open-ended, saying in the past the EPA had to justify why it made sense to extend a policy.
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