Some Say Virus-Prompted Rule Changes Go Too Far (Corrected)

April 10, 2020, 10:10 AM; Updated: April 13, 2020, 7:17 PM

State and federal governments are using the ongoing global pandemic to pursue deregulation and political priorities, a trend that has prompted protests.

Some of the rule changes are based on common sense—like allowing hand sanitizers of up to 12 ounces on airplanes—while others are seen as threats to public health and safety. And most contain elements of both, raising hard questions about how far the government should go when it comes to fighting a deadly virus.

As of 1 a.m. Friday, the pandemic had killed nearly 16,500 people in the U.S and sickened 460,000 more. Disruptions have led to closed businesses, rampant unemployment, a skidding stock market, and a looming recession.

There are instances where it makes sense to roll back or ease regulations, said Amit Narang, a regulatory policy advocate at Public Citizen. But there is a limit, particularly when it comes to the environment.

“On the EPA side, we’re seeing the oil and gas industry pushing for basically short-term extensions across the board on pollution regulations,” he said.

EPA Moves

Among the more controversial moves, Environmental Protection Agency Administrator Andrew Wheeler used the coronavirus as justification for the agency not to punish companies that don’t monitor their pollution during the pandemic, according to a memo.

“In general, the EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request,” it reads, referring to the illness caused by the coronavirus.

Environmental groups denounced the decision.

“It is disturbing that the administration would use this global public health crisis as cover to weaken regulations that protect our nation’s air, water, lands, climate, and public health,” wrote Massachusetts Democrats Sens. Ed Markey and Elizabeth Warren in a letter to Wheeler.

“In the midst of a respiratory disease outbreak, rolling back environmental safeguards, particularly those that protect clean air and reduce lung disease and asthma, is highly dangerous and irresponsible,” they added.

Narang said that industries “claim they are going to get hit hard in terms of the economic impact. At the same time, those are the types of rollbacks and issues those industries have been pushing for long before the pandemic struck.”

The changes are temporary, however. Once the virus crisis goes away, so does the pause on penalties.

EPA’s Wheeler defended the looser rules as “very mild,” compared to how previous administrations responded to crises like natural disasters, and accused critics of having political motivations.

Oil companies, chemical manufacturers, and refiners say they are having trouble getting contractors to work sites, among other problems, Bloomberg News has reported. The American Petroleum Institute detailed the impact the coronavirus was having on operations in a letter to the EPA, and asked for relief.

FDA Pressure in Georgia

Sterigenics, a company that sterilizes medical supplies, last year voluntarily shut its plant in Cobb County, Ga., to install pollution controls amid public concerns over fugitive emissions of ethylene oxide, a chemical that has been identified by the EPA as a carcinogen. The company planned to reopen the plant, but Cobb County refused to let it resume operations pending a review of the permitting process and fire protection standards.

Food and Drug Administration Commissioner Stephen Hahn wrote a letter to Georgia Gov. Brian Kemp (R), urging him to “help protect against COVID-19 by working with Sterigenics to allow for the appropriate sterilization of PPE,” using the abbreviation for personal protective equipment.

The letter argues that much of the protective equipment also requires certain sterilization, and closures of commercial sterilization facilities further limits supply of equipment that workers need.

Cobb County gave into FDA demands, and allowed Sterigenics to only sterilize personal protective gear, which is what the company initially demanded.

Residents were skeptical.

“They are opening up a facility to sterilize equipment that is not necessarily needed by frontline workers,” said Janet Rau, president of the citizen-led Stop Sterigenics Georgia. “In the meantime, they are exposing the people living around the facility to toxic air.”

On April 8, a federal judge issued an order with the consent of Cobb County and Sterigenics allowing the company to use ethylene oxide until it issues a final judgment on the underlying lawsuit that Sterigenics brought against Cobb County for keeping its plant closed on “manufacturing a sham claim” about violating fire protection codes and for not allowing it to sterilize all medical equipment.

The April 8 order superseded the order the judge had issued a week earlier that had limited the company’s sterilization operations until April 14, the date the court planned to hold a hearing on the preliminary injunction the company was seeking against Cobb County.

Abortion Politics

States are also responding, loosening regulations to allow more flexibility in how they fight the virus. One common move has been to allow for interstate reciprocity when it comes to medical licensing, according to a list of actions compiled by Americans for Tax Reform, which supports the rollbacks.

The virus is also being used as justification to curtail access to abortions in several Republican-led states.

Indiana, Iowa, Mississippi, Ohio, Oklahoma, Alabama, and Texas sought to prohibit abortion, unless it is to protect the life or health of the woman.

The Republican governors say the orders are temporary, aimed at keeping beds available in hospitals and making sure there is an adequate supply of personal protective equipment for healthcare workers. The moves have sparked protest from abortion providers.

“A public health emergency is not the time to play politics,” Alexis McGill Johnson, acting president and CEO of Planned Parenthood Federation of America, said in a statement.

Federal judges have blocked the bans from going into effect in nearly all the states, but an appeals court allowed the Texas ban to take effect on a temporary basis. A federal judge on Thursday, however, ruled that some abortions may continue.

Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Hours of Service Rules for Truckers

In another regulatory move, the Federal Motor Carrier Safety Administration, which oversees the nation’s professional drivers, has temporarily suspended a safety law aimed at making sure drivers stay alert on the roads.

The agency said it will waive laws that limit drivers’ working hours if they are moving goods “in support of emergency relief efforts related to the COVID-19 outbreaks.”

In addition, the Department of Transportation issued “guidance” regarding drug and alcohol testing requirements for truckers because employers may not be able to conduct the tests as easily as before.

“As a DOT-regulated employer, you must comply with applicable DOT training and testing requirements. However, DOT recognizes that compliance may not be possible in certain areas due to the unavailability of program resources, such as collection sites, Breath Alcohol Technicians (BAT), Medical Review Officers (MRO) and Substance Abuse Professionals (SAP),” according to the guidance.

In a similar vein, the Nuclear Regulatory Commission allowed plants dealing with staffing problems to require workers to put in more hours, which has alarmed some watchdogs and people who live near the plants.

Union Elections Suspended, Then Not

After initially ordering the suspension of union elections, the National Labor Relations Board backed off the directive.

Initially, the board stated that the two-week suspension was “necessary to ensure the health and safety of our employees, as well as those members of the public who are involved in the election process.” The pause was criticized by the largest unions in the country and Rep. Bobby Scott (D-Va.), the chairman of the House Education and Labor Committee.

“By forfeiting its duty to safely conduct representation elections, the NLRB has undermined its statutory purpose of ‘protecting the exercise by workers of full freedom of association, self-organization, and the designation of representatives of their own choosing,’” Scott wrote in a letter to the board.

Other actions

  • Older convicts: The Justice Department will allow older, nonviolent federal inmates to be placed in home confinement in order to cope with rising Covid-19 cases affecting the federal prison population, Attorney General William Barr said.
  • Immigration rules: H-1B visa rules limit foreign doctors from freely going from one hospital to another in the U.S. Some are arguing for relief.
  • Speeding disinfectants: The EPA will start allowing manufacturers to obtain certain inert, or inactive, ingredients from different suppliers without checking with the agency first, to increase the availability of disinfecting products to use against the coronavirus.

—With assistance from Lydia Wheeler.

(Corrects information in 15th paragraph of an April 13 story to state that Sterigenics voluntarily suspended operations to install pollution controls, and corrects 21st and 22nd paragraphs to more accurately reflect implications of a court order.)

To contact the reporter on this story: John Dunbar in Washington at jdunbar@bloomberglaw.com

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergtax.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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