ACTION: Ask Congress to make enforcement of air and water pollution standards essential work. Make the EPA end its COVID-19 policy that suspends penalties for illegal increases in air and water pollution.
SUGGESTED SCRIPT (Note: It is always good to personalize your message or expand on a particular concern you have.)
\ The EPA’s COVID-19 Policy relaxes enforcement of Clean Air Act standards at a time when we need greater enforcement. Its policy allows companies to release more hazardous emissions into the air with no fear of penalties. This policy should be cancelled.
\ A recent study from Harvard’s School of Public Health indicates that cleaner air is associated with lower death rates from COVID-19. The EPA’s current relaxed enforcement policy increases the death risk of COVID19 for all of us. It especially increases the death risk for workers in polluting companies, first responders, and minorities who tend to live closest to these facilities.
\ The next coronavirus bill needs to make clear that the monitoring, testing, sampling and reporting of hazardous emissions is “essential work” that must continue during this pandemic. Extra funding for states to ensure there is no lapse in enforcing Clean Air and Clean Water Act standards needs to be included in the next corona virus bill.
\ While we are enjoying clear skies now because economic activity is greatly reduced, the same pollution threats to our air and water will be present when economic activity increases as well as the threats of COVID-19 and global warming. Helping states expand clean energy alternatives could keep our air cleaner in the future.
\ **BACKGROUND: **The EPA’s COVID-19 policy announced on March 26 allows regulated facilities to temporarily suspend (without penalty) compliance monitoring, testing, lab analysis and reporting of their emissions because of the pandemic. Should a facility decide to cease part or all of its compliance monitoring it need not inform the EPA or the public. It need show no evidence that such a decision was necessary because of COVID-19 constraints unless at some time in the future the EPA requests such information. The policy was made retroactive to March 13 (so unnecessary that it made it totally obvious that the purpose of the policy was to subsidize big polluters like the oil industry that had been lobbying for the policy change) and the policy has no expiration date. \ In other words the EPA’s COVID-19 policy is an unlimited permit to pollute. A huge subsidy for fossil fuel companies and unless halted a grave threat to our health during the current respiratory pandemic.
\ The present penalty for one violation by one facility under the Clean Air Act is more than $100,000 per day and under the Clean Water Act or Safe Drinking Water Act it is over $50,000 per day. As a result of the EPA’s COVID-19 policy polluting companies are now able to lower production costs significantly by forgoing scheduled correction of past pollution violations, by not maintaining their equipment and/or by increasing pollutants beyond legal limits without paying any penalties. The pandemic could last for 1-2 years. Clearly this discretionary enforcement policy has the potential to be a massive subsidy tor large polluters, like refineries, petrochemical plants and coal and gas fired utility plants.
\ A recent study from Harvard’s School of Public Health indicated that greater exposure to particulate matter (PM) 2.5 in the air was associated with higher death rates from COVID-19. So the EPA’s COVID-19 policy is threatening all of our lives. And it especially threatens the lives of workers in oil refineries and petrochemical plants, first responders and the low income and minority groups that tend to reside next to polluting facilities. \ Giving polluters the option of suspending compliance monitoring is totally irresponsible at any time but during this respiratory pandemic it is unconscionable. This policy was also totally unnecessary since the EPA already had the discretionary authority to waive penalties for facilities submitting proof of need.
\ Central to the EPA’s COVID-19 Policy is allowing companies to forgo compliance monitoring without penalty. Though compliance monitoring was described as routine monitoring in an EPA press release announcing its COVID enforcement policy it really comprises the heart of Clean Air Act and Clean Water Act enforcement. Compliance monitoring refers to quality assurance testing that indicates whether a facility is meeting legal standards for emitting pollutants. It monitors PM, acid gases (also very harmful to the respiratory system), carbon dioxide and methane among other emissions. It ensures that leaks in equipment are detected early and repaired before major emissions or explosions of hazardous chemicals occur. All of this is essential for protecting our health during a respiratory pandemic.
\ Almost 40% the US population (124million people) lives within 3 miles of one of the 12,500 high risk chemical factories in the US. Clearly uninterrupted compliance monitoring and reporting for all these polluting facilities is essential work necessary to protect us during our current health emergency.
\ CALL OR EMAIL YOUR SENATORS and REPRESENTATIVE:
Senator Dianne Feinstein: (415) 393-0707, (310) 914-7300, (202) 224-3841, or email.
Senator Kamala Harris: (415) 355-9041, (213) 894-5000, (202) 224-3553, or email.
Rep. Mark DeSaulnier - 11th district: (510) 620-1000, (202) 225-2095, or email.
Rep. Nancy Pelosi - 12th district: (415) 556-4862, (202) 225-4965, or email.
Rep. Barbara Lee - 13th district: (510) 763-0370, (202) 225-2661, or email.
Rep. Jackie Speier - 14th district: (650) 342-0300, (202) 225-3531, or email.
Rep. Eric Swalwell - 15th district: 510-370-3322, 202-225-5065, or email.\
ADDITIONAL BACKGROUNDIn the words of the Union of Concerned Scientists this policy makes it clear that the “current EPA is not committed to protecting human health and the environment.”\ \ Gina McCarthy, past Administrator of the EPA and Current President of NRDC, summed up the effect of EPA’s COVID-19 Policy in a 4/1/20 fund raising appeal: “Chemical plants, oil and gas operations, power plants, steel mills, coal plants, and more, can now dump toxic chemicals in our waters and emit deadly gases and other health-harming pollution into our air, with no accountability or oversight.”\ \ Cynthia Giles, past Associate Administrator of EPA Enforcement, commented that the “EPA should never relinquish its right and its obligation to act immediately and decisively when there is a threat to public health, no matter what the reason is.” She further stated that for the last 35 years the EPA has adhered to a firm written policy vowing that it will never promise to not enforce the country’s environmental laws.\ \ The EPA used its discretionary power to waive penalties for facilities under exceptional stress after Hurricane Sandy in 2012. It assessed waiver requests on a case-by-case basis after facilities submitted evidence of need. This is what the EPA should be doing during this pandemic. \ \ —The suspension of compliance monitoring is a massive subsidy to oil refineries, petrochemical plants and other polluting facilities. Just days before the EPA announced its COVID-19 policy the American Petroleum Institute requested the following: a) the suspension of oil refinery obligations outlined in settlement agreements to correct past air and water pollution violations b) the deferral of requirements for handling fracking wastewater and c) a pause in the reporting of emissions of green house gases and other pollutants.\ \ The suspension of monitoring covered by the order has the potential to gut EPA enforcement of the Clean Air Act and the Clean Water Act.\ \ The following list includes some of the monitoring and testing or sampling requirements that can be suspended without penalty:
Continuous emission monitoring system (CEMS) operations which ensure that a facility’s regulated emissions, including particulates, sulfur dioxides, oxides of nitrogen and carbon dioxide comply with legal limits. (The first three of these mentioned pollutants cause respiratory problems.)
Stack testing which measures emissions also demonstrates whether a facility’s hazardous air pollutant emissions comply with legal limits and it also indicates whether a facility’s pollution control equipment is working properly.
Leak detection and repair monitoring (LDAR) which identifies leaks in equipment (e.g. valves, pumps, and connectors) which are the largest source of carbon dioxide emissions and hazardous air pollutant emissions from petroleum refineries and chemical manufacturing facilities. LDAR monitoring is essential for repairing minor leaks in equipment quickly enough to prevent large leaks in the future.
Tank-integrity testing which detects oil leaks, spills, or other potential infrastructure integrity issues before they result in a discharge of oil to rivers or shorelines. These tests are also a critical component of the Clean Air Act’s Risk Management Program, which aims to prevent chemical disasters at the most dangerous industrial facilities in the country.
Fenceline monitoring which measures “fugitive emissions” from leaky equipment at the boundaries of refineries, energy production sites, and natural gas pipelines. This is especially helpful in keeping neighbors informed about the level of benezine and other harmful pollutants leaking into their communities.
Effluent sampling on a regular basis is necessary to evaluate whether a facility is discharging unpermitted amounts of pollutants into the country’s waters. Effluent limits for myriad pollutants are set under the Clean Water Act’s point-source pollution control program. Regular sampling for heavy metals, bacteria and other pathogens, nutrients, and toxic chemicals enable states, tribes, and the federal government to ensure that discharge limits are not exceeded to the detriment of public health, drinking water supplies, wildlife and agricultural use.
The EPA had been reducing its inspections and enforcement even before the pandemic began. The US Chemical Safety and Hazard Investigation Board (CSB) “highlighted the need for greater and more consistent preventive maintenance” in 2018. Delaying preventive maintenance is the main cause of major chemical releases and explosions.
\ NRDC recently filed a lawsuit against the EPA because it failed to respond to a NRDC petition requesting that at a minimum the EPA require all facilities that have suspended or plan to suspend compliance monitoring and reporting to immediately notify the EPA of the location and type of monitoring suspended and in return for the EPA to make this information available to the public in a timely manner.
\ Also, NRDC, Sierra Club, Friends of the Earth, Greenpeace US, Earth Justice, Endangered Species Coalition, Public Citizen and 145 other concerned groups recently wrote a letter to the EPA and the Chairmen and Ranking Members of Senate and House environmental committees asking the EPA to:a rescind this policy or failing that b replace it with a narrower policy or c at a minimum require facilities to immediately disclose to the EPA any suspensions so the EPA can inform the public. (9) It was noted that this third possibility should include a mechanism for workers and the public to anonymously report specific concerns.
\ Many states have indicated that they will have to cut back on investments in clean energy as a result of the pandemic’s strain on their budgets. The stimulus necessary to recover from our COVID induced recession should include incentives for clean energy. This pandemic makes clear how important clean air and water are to our health.
\ Incentives for the clean energy industry should include:
Introduction of a battery storage tax credit for energy companies
An extension of the production tax credit for wind energy for another 5 years
A restoration of the solar tax credit for another 5 years
Extension of the full EV tax credit for more vehicle sales for another 5 years
(1) Bodine, Susan, Memorandum: “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program”, EPA, 3/26/20.
(2) EPA, “EPA Announces Enforcement Discretion Policy for COVID-19 Pandemic”, epa.org, 3/26/20
(3) Hollis, Adrienne, “While you were focused on COVID-19 EPA gave polluters free rein, threatening at-risk communities”, blog.ucsusa.org, 3/30/20.
(5) Milman, Oliver and Holden, Emily, “Trump Administration allows companies to break pollution laws during coronavirus pandemic”, theguardian.com, 3/27/20.
(7) NRDC vs EPA, US District Court for the Southern District of NY, Case No. 20-cv-3058, ECF Case, document 1, 4/16/20.