EPA Chief Faces Heat Over Compliance Relief Amid COVID-19

By Juan-Carlos Rodriguez
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Law360 (May 20, 2020, 6:37 PM EDT) -- Senate Democrats on Wednesday slammed U.S. Environmental Protection Agency Administrator Andrew Wheeler over the agency's decision to offer relief from some compliance obligations to entities affected by the coronavirus pandemic, saying it will put vulnerable communities at risk.

In March, the EPA issued a temporary policy for enforcing regulations when entities find themselves unable to comply due to COVID-19-related circumstances like personnel shortages or travel restrictions. The policy says the EPA may exercise enforcement discretion if the entity can show a violation is directly attributable to the pandemic. Sen. Tammy Duckworth, D-Ill., said she's worried the policy sends a message that industry can "operate without regulation."

"This non-enforcement policy is almost certain to hurt low-income communities and communities of color the hardest, where industries that operate without regulation are mostly located," she told Wheeler at a hearing of the Senate Environment and Public Works Committee.

But Wheeler forcefully defended the policy, saying no facility is simply allowed to start increasing their emissions and noting that the agency still maintains all its discretion to enforce when it sees fit.

"Since March 16, we have opened 52 criminal enforcement cases, we've charged 10 defendants, we've concluded 122 civil enforcement actions, we've initiated another 115 civil enforcement actions, we've secured $21.5 million in Superfund response commitments, we've billed more than $20 million in Superfund oversight costs, and we've obtained commitments from parties for cleanup of 68,000 cubic yards of contaminated soil and water," he told the senator.

Duckworth and several other senators at the hearing participated via a video conferencing system. Except for the committee's majority and minority leaders, lawmakers who attended in person had to appear one at a time and at a considerable distance from one another. Wheeler was positioned at the very back of the room, far from the chair's seat.

The Democrats and Republicans on the committee disputed the value of a Harvard University study that the Democrats said show there are connections between air quality and COVID-19, since those more at risk for respiratory diseases are made more vulnerable when they're exposed to poor air quality and the virus is known to affect the respiratory system. Democrats said it shows why the agency should not be rolling back air quality regulations, while Republicans and Wheeler cast doubt on the study's reliability.

Wheeler also faced tough questions from Sen. Sheldon Whitehouse, D-R.I., who asked him about any possible communications between him or his staff and representatives of Marathon Petroleum Corp. in the lead-up to the finalization of a rule rolling back fuel economy and greenhouse gas standards for automobiles.

The administrator denied having any contact with Marathon representatives.

Republicans congratulated Wheeler for several EPA regulatory measures, such as a new definition of the Clean Water Act's jurisdiction, but also pulled him two ways on a key issue to fossil fuel- and ethanol-producing states, the Renewable Fuel Standard program, which dictates how much biofuel must be mixed into the nation's gasoline supplies.

Committee Chair John Barrasso, R-Wyo., said he is "deeply troubled" with the EPA's Renewable Fuel Standard policy, especially in regard to small refineries, some of which are located in his home state. He also slammed the agency for its decisions in a recent Tenth Circuit case that voided three exemptions for small refiners that allowed them to dodge the Renewable Fuel Standard program's fuel-blending requirements.

"EPA's failure to challenge the standing claims of the biofuel producers in the Tenth Circuit to me is inexcusable. The EPA's failure to seek a rehearing on the recent Tenth Circuit ruling was inexplicable," Barrasso said.

Wheeler didn't directly address Barrasso's statements regarding the Tenth Circuit case but acknowledged that small refineries are facing difficulties. The administrator also faced tough comments from Sen. Joni Ernst, R-Iowa, who represented the ethanol industry's point of view that the ethanol industry is suffering just as much as the petroleum industry during the coronavirus outbreak.

"There is an attempt by some in the petroleum sector to blame renewable fuels for the recent downturn, turning to the severe economic harm waiver to argue that the RFS is the cause of their recent business troubles, not the COVID-19 pandemic," Ernst said. "This is frustrating to me and to my farmers in Iowa."

Wheeler was also asked by Sen. Roger Wicker, R-Miss., about the U.S. Supreme Court's recent ruling that Clean Water Act permits may be required when a source discharges pollutants into groundwater that then ends up in "navigable waters of the U.S."

"As EPA considers the implementation of this Supreme Court ruling, how can you ensure that the traditional role of states be preserved in regulating groundwater?" Wicker asked.

Wheeler responded that the agency is still reviewing the decision and determining whether or not it needs to issue new guidance to clarify the issue.

"While I'm always hesitant to say anything critical of the courts, they provided a new balancing test, basically, in the decision that's going to be a little difficult," Wheeler said. "We were hoping for more clear-cut direction, quite frankly, but we are reviewing the decision to see what flexibilities we do have to make sure the program can operate."

--Additional reporting by Keith Goldberg and Morgan Conley. Editing by Janice Carter Brown.

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