State regulators are giving mixed responses to the EPA’s relaxed enforcement on a range of environmental obligations by facilities affected by the coronavirus pandemic.
The Environmental Protection Agency said this week it wouldn’t seek penalties for violations covered by the emergency policy.
But most states are involved in the actual day-to-day-work of enforcing environmental permitting programs based on federal rules and policies. So while some states plan to defer to the EPA’s latest guidance, others indicated they will not.
Different responses from different states will create headaches for companies with operations across the nation, said Joel Gross, who headed the Justice Department’s environmental enforcement section during the Clinton administration.
“This is not one size fits all,” said Gross, now a partner with Arnold & Porter Kaye Scholer LLP. “There are situations where an employer would be more concerned about EPA, and situations where you’d be more concerned about the state.”
Companies with multistate operations are already used to dealing with varying enforcement regimes across the nation, Gross said. Even so, the mixed reactions to the Covid-19 pandemic creates an extra level of complication, he said.
Criticism From New York
New York’s environmental regulator trashed the EPA’s guidance on Friday and said it won’t stop implementing rules.
“The Trump administration is using this public health crisis as an opportunity to allow the U.S. EPA to further abdicate its already-diminishing role in protecting public health and the environment,” Basil Seggos, commissioner of New York’s Department of Environmental Conservation, said in an email.
“Rolling back enforcement of regulations in place to protect the quality of our air, water, and health of our communities is a shameful exploitation of the current public health crisis,” Seggos said.
The Maryland Department of the Environment said it will only grant exemptions from permit requirements on a “more limited, case-by-case, locally-tailored basis.”
“We don’t want to lose any momentum for environmental progress in our state or the broader airshed and watershed of the Chesapeake Bay region,” said Ben Grumbles, the state’s secretary of the environment.
The California Environmental Protection Agency said its enforcement authority “remains intact” in spite of the EPA memo.
“CalEPA expects compliance with environmental obligations, especially where failure to follow the law creates an imminent threat or risk to public health,” said Sam Delson, the agency’s deputy director for external and legislative affairs. The agency acknowledges that some companies might need enforcement relief, but Delson said they should contact CalEPA before falling out of compliance.
The Virginia Department of Environmental Quality said it was still reviewing the EPA guidance.
Some States Line Up Behind EPA
But other states signaled that their enforcement stances will largely match up with the EPA’s.
Washington state’s Department of Ecology will still respond to spills and enforce environmental protection laws, but also said it recognizes that the virus could make it hard for entities to comply with state law.
In Oklahoma, the Department of Environmental Quality will “exercise enforcement discretion as appropriate while focusing enforcement efforts on compliance issues directly impacting human health,” agency spokeswoman Erin Hatfield said. The DEQ will work with facilities on a case-by-case basis “to determine the most effective and reasonable approach to ensure compliance.”
“We have not suspended any rules or laws, but we are using enforcement discretion to determine appropriate action,” said Shellie Chard, director of the Oklahoma DEQ’s water quality division. “We do not intend to pursue penalties due to violations caused by the Covid-19, as laid out by the EPA memo.”
Chard also called the EPA guidance a “reasonable response.”
The Pennsylvania Department of Environmental Protection said it will prioritize complaint inspections on a case-by-case basis and is also prioritizing field inspections of critical infrastructure and inspections that are critical to public health and safety, agency spokesman Neil Shader said.
The agency is working on further enforcement guidance, Shader said.
Louisiana’s Department of Environmental Quality on Friday granted a range of extensions to regulated entities, including extended permits if a company can show that contractors or supplies aren’t available to start work, or if the company needs more time to get authorizations.
Julia Anastasio, executive director of the Association of Clean Water Administrators, said states “expect regulated entities to continue to meet their Clean Water Act obligations, but state regulators will exercise the enforcement discretion they always have had.”
States are working with regulated entities on a case-by-case basis to “evaluate conditions and to make the appropriate decisions,” said Anastasio, whose group represents state officials.
EPA career staff weren’t advised directly on the new policy, several agency employees said. Regional offices are waiting for further guidance on how to interpret it, the staffers said.
The EPA’s Thursday guidance says some entities face challenges in being able to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification activities.
EPA chief Andrew Wheeler sent a letter to all 50 governors on Friday, urging them to classify drinking water and wastewater employees as essential workers during shelter-in-place and other types of restrictions.
“Having fully operational drinking water and wastewater services is critical to containing Covid-19 and protecting Americans from other public health risks,” Wheeler said.
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