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Cities Join Businesses in Asking EPA for Pandemic-Related Help

July 14, 2020, 10:01 AM

Companies haven’t been the only ones asking the EPA for consideration of their difficulties during the coronavirus pandemic. Cities and counties have petitioned the agency for temporary relief under its relaxed enforcement policy, according to documents obtained under the Freedom of Information Act.

Letters obtained by Bloomberg News that were reviewed by Bloomberg Law didn’t include any requests to exceed air or water emission limits. In that respect, they appeared to back up the agency’s previous assertion that the guidance “is not a nationwide waiver of environmental rules.”

The EPA said March 26 it would temporarily stop seeking penalties from those not performing routine environmental compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification activities if they were unable to do so because of Covid-19 prevention actions.

Environmental and advocacy groups said in an April 1 petition that the policy created “an immediate and serious risk to people and communities affected by pollution,” adding the agency was inviting regulated industries “to suspend monitoring and reporting without public disclosure and without adequate justification or oversight.”

Local Government Requests

The documents showed some cities also asked the EPA for consideration under the relaxed enforcement policy.

Among them was Kansas City, Mo., which asserted force majeure—a legal provision that frees a contract’s parties from obligations in the event of an unforeseeable circumstance—in a consent decree requiring it to build sewer overflow control measures. The city’s Office of the City Attorney asserted that the pandemic had made project management and oversight “extremely challenging.”

The city also said the slowdown of the economy would “hinder our ability to raise rates” on low- and fixed-income customers, “along with the many newly jobless ratepayers.”

Similarly, Baltimore County, Md.'s Department of Public Works said the pandemic could delay responses from private property owners regarding right-of-way or right-of-entry negotiations.

No response from the EPA to Kansas City or Baltimore County was included in the FOIA documents.

Other requests came from Topeka, Kan.; Delaware County, Pa.; Hampton Roads, Va.; and St. Louis.

Trade Groups Seek Help

Several industry trade groups asked for leniency on behalf of their members, including the American Chemistry Council, American Petroleum Institute, National Waste and Recycling Association, National Pork Producers Council, and Portland Cement Association.

A common theme in separate letters from the associations was that companies’ telecommuting policies made it difficult to conduct inspections or calibrate their instruments.

In response, the EPA broadly told the groups it was “not in a position to advise each entity or group on how they should manage their compliance with environmental laws,” and directed them to the temporary policy for more information.

Some companies, such as Contura Energy Inc. and Phillips 66, put the EPA on notice about potential delays in their compliance obligations, while acknowledging that no coronavirus-related noncompliance had yet been observed.

In one letter, Marian Hwang, an environmental attorney with Miles & Stockbridge, asked the EPA if companies subject to consent decrees could get credits for payments they made during the relaxed enforcement period, as part of the EPA’s “penalty relief.” The agency’s response wasn’t included in the documents.

The correspondence with the EPA obtained through FOIA took place during March through May.

Susan Parker Bodine, the EPA’s assistant administrator for enforcement and compliance assistance, wrote in a June 29 memo that the EPA would end its relaxed enforcement policy on Aug. 31.

EPA Administrator Andrew Wheeler has said the temporary policy is simply a common-sense response to an unprecedented pandemic.

To contact the reporters on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com (Bloomberg Law); Jennifer A. Dlouhy in Washington at jdlouhy1@bloomberg.net (Bloomberg News).

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Renee Schoof at rschoof@bloombergindustry.com

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