Pa. officials reject Trump EPA move to ease enforcement during pandemic

WASHINGTON — Pennsylvania officials are pledging tough enforcement of environmental laws during the COVID-19 pandemic after the Trump administration announced that it would ease up on pollution rules.

Late last month, the U.S. EPA laid out what the agency called a “temporary enforcement discretion policy.” It states that EPA won’t penalize polluters for failing to comply with monitoring and reporting rules in situations where EPA agrees that the COVID-19 crisis was the cause of the noncompliance.

The policy prompted a fierce backlash from critics, who warned that while EPA has the authority to use its enforcement discretion during crises, making such a public pronouncement gives polluters a green light to flout public health protections.

“Making excuses for the release of excess toxic air pollutants and other pollution, which we all know can exacerbate breathing difficulties, or asthma or cardiovascular problems” in the midst of a pandemic that has respiratory problems as one of its central features “makes no sense to most Americans,” U.S. Sen. Bob Casey, D-Pa., told the Pennsylvania Capital-Star in an interview.

He called the EPA move “reckless and dangerous and irresponsible.”

U.S. Rep. Mike Doyle, D-18th District, called the EPA’s policy an “outrageous abdication of the EPA’s obligations to the American people,” and an “unending license to pollute.” Doyle, who serves on a U.S. House committee with jurisdiction over the EPA, said he would do everything he can to “roll back this decision and ensure that the EPA once again begins enforcing our vital water and air quality laws.”

In the wake of the EPA’s announcement, top state officials said they’re prepared to crack down on polluters, although companies can request exemptions from the state due to the pandemic.

The Pennsylvania Department of Environmental Protection said that it would review requests to waive certain requirements, but — in contrast to EPA —  those “would be considered only on a case-by-case basis, not a blanket policy,” according to department spokesman Neil Shader.

The DEP, he said, “is continuing to enforce environmental law and regulations that have been delegated to Pennsylvania from the federal government, as well as relevant state laws.”

Pennsylvania Attorney General Josh Shapiro joined with several other states’ top lawyers in sending a letter on April 15 to EPA Administrator Andrew Wheeler asking the agency to rescind the policy.

It “turns a blind eye to the impacts on our communities of more pollution and lesser accountability,” they wrote. Among their concerns, they said, is that the policy is overly broad and has no expiration date. They’re particularly worried about EPA’s “lack of consideration of the policy’s potential impact on public health, especially the health of low income and minority communities who are [at] greater risk of suffering adverse outcomes from COVID-19.”

In the meantime, the AGs added, “we will continue to enforce our state environmental laws in a reasonable manner, and stand ready to hold regulated entities accountable under critical federal environmental laws if EPA will not.”

EPA has defended the policy, saying it had been inundated with questions from state and tribal regulators about how to conduct enforcement when employees aren’t able to travel due to restrictions, and others have contracted COVID-19 or are in quarantine. Its temporary policy, EPA said, would allow the agency to “prioritize its resources to respond to acute risks and imminent threats, rather than making up front case-by-case determinations regarding routine monitoring and reporting.”

‘Proof’s always in the pudding’ 

Environmental advocates and former EPA officials have assailed the federal policy, and some in Pennsylvania are worried that the state’s enforcement will also fall short.

Former Obama EPA administrator Gina McCarthy, who’s now the head of the Natural Resources Defense Council, accused the Trump administration of taking advantage of the COVID-19 crisis to “do favors for polluters that threaten public health.”

The NRDC and other environmental groups sued EPA in a federal court over the policy on April 16, warning that the agency’s policy creates a serious risk that industries will stop monitoring and reporting things like hazardous air pollutants and toxic chemical releases without warning the public.

Even as Pennsylvania pledged tougher enforcement at the state level, environmentalists have been wary about the potential implications of the federal order.

A coalition of groups including PennEnvironment, Conservation Voters of Pennsylvania, League of Women Voters of Pennsylvania, Earthworks and others penned an April 1 letter to DEP Secretary Patrick McDonnell. They asked him to issue a clear statement that “in the absence of DEP approval of a properly submitted temporary suspension request, regulated entities must comply with all monitoring and reporting obligations under the DEP’s jurisdiction, notwithstanding the EPA Memorandum.”

McDonnell responded in an April 15 letter. “I have been clear that we cannot allow one public health crisis [to] lead to another,” he wrote. He stressed that facilities are still expected to comply with reporting and monitoring requirements.

During the first four weeks of the stay-at-home order, DEP staff conducted 3,163 inspections, he said. “While it is lower than inspections conducted during our normal operations, we are still on the ground at the sites most susceptible to environmental impacts.”

Leann Leiter, the Pennsylvania and Ohio field advocate at Earthworks, welcomed McDonnell’s reassurances, but she wants state officials to do more.

“We believe the Wolf administration should go further and reverse its decision that issuing permits for new sources of pollution is part of ‘essential’ operations during this unprecedented moment,” she said in a statement. She also urged DEP to post all requests from companies asking for regulatory relief, not just those granted by the agency.

David Masur, executive director of PennEnvironment, told the Capital-Star that he’d like to see “more environmental cops on the beat,” not less.

As for whether DEP can keep up sufficient enforcement, he said, “the proof’s always in the pudding.” He added, “it’s not like before that there weren’t some enforcement problems,” pointing to budget and staff cuts at the agency in recent years.

Gov. Tom Wolf proposed money for additional staffing at DEP in his annual budget released in February, WHYY-FM reported. The agency has seen decades of cuts under both Democratic and Republican administrations.

Masur said he’s particularly concerned about the agency’s ability to patrol the abundance of natural gas drilling sites around the state. “It was hard enough to regulate when you could be out in the world inspecting sites,” he said.

“How could you possibly do it now when you’re dealing with the pandemic?”