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The Insider

EPA Eases Enforcement During Pandemic, Advances Deregulatory Efforts

The Trump EPA is easing its enforcement of various environmental standards during the coronavirus pandemic, while also pushing ahead with several deregulatory efforts including an imminent rollback of Obama-era vehicle greenhouse gases rules, air permit policies, and more.

The agency’s most recent response to the global public health crisis is a March 26 guidance to various industry sectors stating that the agency will exercise broad “enforcement discretion” regarding pollution increases linked to the pandemic:

EPA Enforcement ‘Discretion’ During Pandemic Prompts Early Concerns
EPA is pledging to exercise “enforcement discretion” if facilities cannot meet certain legal obligations under agency regulations during the COVID-19 pandemic, but environmentalists and former top Obama EPA officials fear the temporary plan will become an indefinite “nationwide waiver of environmental rules.”

The memo applies retroactively to March 13, generally allows facilities to defer routine civil compliance actions like emissions reporting, and pledges to address on a case-specific basis any excess pollution releases linked to the pandemic.

But environmentalists and former EPA officials are already airing concerns that the memo is overly broad and unprecedented, potentially signaling a legal battle over its implementation.

“This EPA statement is essentially a nationwide waiver of environmental rules for the indefinite future. It tells companies across the country that they will not face enforcement even if they emit unlawful air and water pollution in violation of environmental laws, so long as they claim that those failures are in some way ‘caused’ by the virus pandemic. And it allows them an out on monitoring too, so we may never know how bad the violating pollution was,” reads a statement from Obama-era enforcement chief Cynthia Giles.

The memo comes after a flurry of requests from industry groups for EPA to suspend enforcement during the coronavirus outbreak:

As EPA Readies Guide, Waste Industry Seeks Waiver For Numerous Rules
The waste and recycling industry is asking EPA to suspend enforcement of numerous rules during the COVID-19 pandemic, the latest in a series of sectors seeking relief from EPA in a guidance that is expected to be issued as soon as March 26.

Oil Sector Seeks EPA Waivers During Pandemic, Alarming Environmentalists
The American Petroleum Institute (API) and other industry groups are pressing EPA and other agencies for a slew of regulatory exemptions to ease the impact of the ongoing economic crisis caused by the coronavirus pandemic, prompting alarm from environmentalists who warn the move is intended to serve as a pretext for further deregulation.

Meanwhile, the pandemic does not appear to be slowing EPA’s progress on several high-profile deregulatory initiatives, including a long-pending rollback of Obama-era vehicle GHG standards:

EPA, DOT To Finalize Auto GHG Rollback Early Next Week
EPA and the Transportation Department (DOT) are poised to release their final joint rollback of Obama-era vehicle greenhouse gas and fuel economy standards as early as March 30 or 31, according to several sources, a move that will eventually start the clock on expected lawsuits.

Many sources are expecting the administration to release the rule on March 31, just ahead of a statutory deadline for DOT to write new fuel economy standards.

Trump officials in August 2018 proposed to freeze vehicle GHG and fuel economy standards at model year 2020 levels, though sources have indicated for months that the final plan would instead likely require a modest annual improvement in vehicle performance of around 1.5 percent.

In a separate deregulatory effort, EPA is also floating draft guidance that would ease strict air permitting requirements for various sectors:

Draft EPA Revision To ‘Construction’ Definition Eases NSR For Industries
EPA in a new draft guidance document is easing the path for industry to start building projects that may increase air emissions, without first obtaining a new source review (NSR) air permit, but while environmentalists oppose the move they also doubt it will have much real-world impact and is a “largely ineffectual favor” from EPA to industry.

The guide says EPA will limit its understanding of the term “begin actual construction” under NSR regulations to construction of an “emissions unit,” meaning a piece of equipment that actually emits pollution or has the potential to do so.

The draft document is the latest in a series of steps the Trump administration has taken to ease NSR air permitting, identified by industry groups as a top priority early in President Donald Trump’s current term. Such permits can require the installation of expensive pollution control technologies, so some companies aim to avoid triggering the need the permits.

The latest construction guidance is directly applicable to federally issued permits and those issued by entities with EPA-delegated permitting authority, but the guidance is merely recommended for state regulators who issue permits under EPA-approved state implementation plans for attaining federal air standards.

On the toxics front, EPA is pressing ahead with a peer review of its controversial risk evaluation for a common solvent, even as environmentalists are urging the agency to take a series of additional steps to reduce serious risks:

Environmentalists Seek ‘Immediate’ EPA Action On TCE Ahead Of Review
As science advisors prepare to review EPA’s draft evaluation of the common solvent trichloroethylene (TCE), environmentalists and former officials are urging the agency to take “immediate action” to address any “imminent and serious” acute risks while also calling for the draft to be strengthened so the substance can be banned going forward.

“After years of foot dragging, the threat to the public from uncontrolled exposure to TCE is simply too great to justify several more years of inaction while EPA completes the lengthy risk evaluation and rulemaking process” under the Toxic Substances Control Act (TSCA), several environmental groups say in a March 3 letter.

More-recent comments to EPA from environmentalists and former agency officials also urge the agency to strengthen its draft risk evaluation so that it renews the risk focus on cardiac birth defects, like previous EPA risk analyses of TCE have done. The cardiac malformations are a more severe harm than the immunosuppression focus the agency has proposed for the TSCA draft evaluation.