Companies that fail to meet their environmental monitoring or reporting requirements due to the coronavirus Covid-19 pandemic should be required to publicly disclose this, a coalition of environmental and public health groups have said in a lawsuit filed today.
More than a dozen NGOs have asked a federal court in New York to force the EPA to issue an emergency order to require companies that take advantage of the agency’s decision not to enforce "routine" requirements during the pandemic, to disclose in writing that they have stopped reporting or monitoring.
The EPA’s policy "creates a serious and immediate risk that industrial facilities and other regulated entities will stop monitoring and reporting for compliance with pollution limits, with no contemporaneous notice to EPA or to the public", the groups said in their lawsuit. "The programmes implicated by EPA’s non-enforcement policy provide vital protections and information to the public about hazardous air pollutants, toxic chemical releases, drinking water safety, and more."
While the agency said it would not comment on pending litigation, it called its enforcement policy "a lawful and proper exercise of the agency’s authority under extraordinary circumstances". Its "enforcement authority and responsibility remains active and the temporary guidance does not allow any increase in emissions. This is not a nationwide waiver of environmental rules," an EPA spokesperson said.
Previously, the EPA had told Chemical Watch that many requirements under TSCA – like the section 8(e) mandate for businesses to immediately inform the EPA if they learn a substance presents a ‘substantial risk’ – fall outside the confines of its enforcement discretion policy. Such events would still require "immediate reporting to the administrator of EPA", the agency said at the time.
The agency issued its temporary enforcement policy in March, after it said it was inundated with enquiries from regulated entities asking for guidance on how to comply with environmental requirements during the pandemic, which has shuttered many facilities. Since then, it has forcefully pushed back on criticism that its policy is a "licence to pollute".
In the lawsuit the NGOS, which include the National Resources Defense Council, the Environmental Justice Health Alliance and Public Citizen, said they asked the EPA to issue an emergency rule that would at least require companies to provide notice if they are unable to meet their routine environmental obligations.
The agency failed to respond to their request in a timely manner, prompting the lawsuit, the groups said.
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