Chemical industry welcomes leniency from US EPA during coronavirus response

The US chemical industry is endorsing the Environmental Protection Agency’s sweeping new policy to go easy on companies for all but criminal violations because of the COVID-19 pandemic caused by the virus SARS-CoV-2.

But environmentalists and others criticize the new EPA policy as too expansive. They say it endangers the safety of workers, the public, and chemical plants.

The EPA’s temporary enforcement policy, unveiled March 26, is broad yet does not treat all violations the same. For example, the agency says it likely won’t seek fines if, because of the pandemic, companies violate routine monitoring and reporting obligations. The EPA says it expects facilities to adhere to environmental requirements “where reasonably practicable and to return to compliance as quickly as possible.” The agency says it won’t offer leniency to companies that intentionally commit environmental crimes.

To qualify for the EPA’s grace for violations, facilities must document “how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response,” says the policy, which is retroactive to March 13.

Chemical plants are busy cranking out key products—including sanitizers, disinfectants, and plastic goods—to fight COVID-19, says Chris Jahn, CEO of the American Chemistry Council, the US chemical industry’s largest lobbying group. These facilities are also complying with government requests for employees to work from home.

“While some manufacturing plant personnel have been designated as essential to allow for continued operations, the vast majority of other company employees are subject to telework requirements, travel restrictions, and stay-at-home orders,” Jahn says in a blog post. “Because of this, many administrative activities such as regulatory filings and inspections simply may not [be] feasible during this period.”

Before the EPA announced the policy, small and mid-size companies that are members of the Society of Chemical Manufacturers and Affiliates (SOCMA) were wrestling with how they would comply with routine audits, inspections, and compliance monitoring. “With significant travel restrictions in effect and companies managing a reduced workforce, facilities are facing greater practical difficulty in meeting these requirements,” says Robert Helminiak, SOCMA’s vice president for legal and government relations.

“The temporary policy should help minimize civil penalties caused by the COVID-19 outbreak while providing a means for regulated facilities to demonstrate that they qualify for enforcement discretion,” Helminiak says in a statement provided to C&EN.

While industry is welcoming the policy, environmental groups and former EPA officials are questioning why the agency took such an expansive move on violations instead of a more targeted one.

“While it may be reasonable in limited circumstances for EPA to exercise discretion on a case-by-case basis to temporarily refrain from enforcement where the pandemic has clearly undermined a facility’s ability to comply, we oppose any blanket or advance waiver of environmental requirements,” they say in a letter to Susan Bodine, the head of the EPA’s enforcement office.

“The suspension of monitoring and reporting requirements would have a very specific impact on public health and safety in many cases,” says the letter, which was spearheaded by the watchdog group Environmental Integrity Project. For instance, allowing a company to postpone fixing a leak of volatile, toxic chemicals could increase the risk of fire and explosion as well as expose workers and nearby communities to those pollutants for longer periods of time.

Others are assailing the EPA’s leadership for taking opportunistic advantage of the global health crisis to advance the Trump administration’s deregulatory agenda.

“While EPA says this unprecedented step back from generations of protections is somehow related to the [COVID-19] crisis, it has offered little evidence to back that up,” says Thomas Oppel, executive vice president of the American Sustainable Business Council. “Polluters profiting at the expense of our health and safety lobbied for these actions.”