Companies unable to get outside contractors to verify the accuracy of air emissions monitoring data because of the pandemic would be able to delay some tests under an EPA rule now under review.
The rule is designed to “protect workers at power plants and other facilities during the national response to Covid-19,” the Environmental Protection Agency said in a statement.
The White House Office of Management and Budget began reviewing the direct final interim rule (RIN: 2060-AU85) on April 10. The EPA said it would temporarily allow industrial plants to delay certain required quality assurance tests on the actual emissions that smokestacks release.
The rule wouldn’t “suspend the requirement to report emissions data to EPA or to comply with applicable emissions limitations,” the agency told Bloomberg Law.
An interagency review at the OMB is usually the last step before a federal rule or policy is released to the public.
If the EPA receives no adverse comment on the rule upon its release, it would take effect for the duration of the national emergency, President Donald Trump declared March 13.
The Clean Air Act requires companies to test air samples from smokestacks every quarter to verify that the air pollution the continuous emissions monitors are measuring and reporting on an hourly basis matches up with what the quarterly tests show.
The rule makes sense because traveling to different states, finding a place to stay, and conducting tests can become logistically difficult during the pandemic, Gale Hoffnagle, senior vice president and technical director with TRC Environmental Corp., a part of TRC Companies Inc., said Monday.
Hoffnagle’s company conducts quality assurance tests of smokestacks for a number of companies. He cited the example of New Mexico, which requires any out-of-state worker to go through a 14-day quarantine before conducting any business in the state.
“This is not indicative of something that’s going to result in higher emissions,” Vince Brisini, former deputy secretary at the Pennsylvania Department of Environmental Protection’s Office of Waste, Air, Radiation, and Remediation, said.
“This basically means you are not going to bring a vendor on site during this period of time,” Brisini said. “You’re still going to meet all of the quality assurance, quality control, and monitor and report accurate data, but you’re not going to bring a vendor on site.”
Brisini, now director of environmental affairs at Olympus Power LLC, called the interim final rule “an absolutely reasonable way to do things.” He also said that continuous emissions-monitoring data is “the most highly quality-assured data” in a typical power plant.
Stan Meiburg, former EPA associate administrator under the Obama administration, said this rule looks like a “specialized extension of the enforcement waiver policy” the EPA released March 26.
‘Being Rushed Through’
Meiburg, who is director of Wake Forest University’s graduate program in sustainability, questioned the need for the rule.
“What is it about Quality Assurance requirements for power plants that is at risk because of COVID-19?,” he said in an email. “I am not saying there is nothing, but why couldn’t it be handled through enforcement discretion rather than this rulemaking, which appears to be being rushed through in the hopes that no one will notice.”
Another former EPA enforcement official, Eric Schaeffer, who now heads the nonprofit Environmental Integrity Project, said it was unclear how long the EPA would allow this rule after the pandemic ends, since the rule has no end date.
Jonathan Martel, a partner at Arnold & Porter Kaye Scholer LLP who specializes in Clean Air Act enforcement, said the rule would be different from EPA’s recent enforcement policy because it would change the compliance obligation itself.
“For example, regulated companies complying with the interim final rule would not be subject to a risk of citizen enforcement,” Martel said. “As a final rule, it could be challenged by opponents in the D.C. Circuit, but that would take time to resolve.”