EPA relaxes enforcement because of COVID-19, but state and local governments do most oversight for major federal laws

This story originally appeared on StateImpact Pennsylvania.

The recent announcement by the Environmental Protection Agency that it will not enforce violations if a facility’s non-compliance results from the COVID-19 pandemic created swift condemnation from environmentalists and former EPA staffers. The EPA pushed back on Monday with a news release criticizing coverage of the new policy, accusing the media of giving in to “reckless propaganda.”

The agency said the new policy applies to routine monitoring and reporting, stressing the COVID-19 pandemic will not be an excuse for facilities to exceed permitted pollution discharges. The policy does not apply to drinking water treatment.

It’s important to note that states and local governments, however, do the vast majority of monitoring, inspections and enforcement of federal rules like the Clean Air Act, the Clean Water Act and the Safe Drinking Water Act.

“Pennsylvania DEP administers all the federal programs in Pennsylvania and they are the first to take any action,” said David Hess, who served as DEP secretary under Gov. Tom Ridge. “There are very few times that EPA gets involved in routine kinds of enforcement anyway.”

DEP spokesman Neil Shader said the state is developing guidance on how to evaluate requests from companies to waive permit conditions or requirements.

“But a company/operator/etc would have to make the case that it is necessary for COVID response, and only during the declared emergency,” Shader wrote in an email. “This would be considered only on a case-by-case basis, not a blanket policy.”

Shader said that during the corona virus pandemic, where many state employees are working from home and regional offices are closed, DEP is “prioritizing field inspections of critical infrastructure and inspections that are critical to public health and safety.”

Still, environmentalists like Maya Van Rossum with the Delaware Riverkeeper Network worry state and local governments could be overwhelmed dealing with the pandemic.

“The alarming part becomes the compilation of things,” van Rossum said. “To have an expectation that the state is going to continue to be the primary is really absurd.”

Federal pipeline safety regulators have also suspended some compliance enforcement, including operator qualification, control room management and drug-testing.

The Pipeline Hazardous Material Safety Administration said that does “not relieve operators of their safety responsibility to use trained, non-impaired workers to perform operation and maintenance tasks.”

Some environmental rules are enforced at the county level. Both Philadelphia and Allegheny counties, for example, regulate air pollution.

Officials in Allegheny County, which includes Pittsburgh, say the EPA policy will not impact its enforcement of air quality rules.

“Air quality in our region, particularly in the Mon Valley, continues to be one of our most pressing public health challenges,” said Dr. Debra Bogen, director of the health department, in a statement. “Even during this pandemic, with our attention focused on response and actions to deal with COVID-19 in our community, we are not losing sight of that need.”

Philadelphia public health department spokesman James Garrow said the city’s Air Management Service is taking a similar approach to the EPA, but said no “major impact is expected,” aside from “delays and loss of penalty.”

Garrow said that’s because the pandemic has resulted in closures at most of the city’s air pollution sources.

“In short, yes, we are enforcing all Federal, State, and local/AMS regulations for stationary sources,” wrote Garrow in an email, “but much of the activities that would require monitoring have stopped with the State’s stay-at-home order.”

Delaware’s Department of Natural Resources and Environmental Control said enforcement of environmental rules continues as usual. New Jersey DEP did not respond to questions.

Another layer of regulatory enforcement that maintains water quality includes regional water basin commissions. A spokesperson for the multi-state Delaware River Basin Commission said the commissioners are evaluating whether any changes are needed due to COVID-19.