Dive Brief:

• The U.S. Environmental Protection Agency modified their its enforcement policies on Thursday to give power plants and other EPA-regulated entities more leeway on pollution control measures, citing potential coronavirus-related disruptions.
• "On its face, it's saying that we are trying to understand that because of social distancing rules and lack of manpower, there may be situations where it's not reasonable to expect perfect compliance," David Spence, professor of business, government and society at the University of Texas at Austin School of Law, told Utility Dive.
• Environmentalists worry the relaxed enforcement could allow facilities to be less diligent about compliance with air and water pollution standards. "This is an open license to pollute. Plain and simple," Gina McCarthy, president and CEO of the Natural Resources Defense Council, said in a statement. "We can all appreciate the need for additional caution and flexibility in a time of crisis, but this brazen directive is an abdication of the EPA’s responsibility to protect our health."

Dive Insight:

The modified rules are not specific to any one industry, and could apply to gas- or coal-fired plants, as well as oil refineries or any other regulated entity. Under the relaxed standards, a power plant operator would have to prove that any violations of current water or air quality regulations was directly tied to a lack of manpower or some other disruption due to the novel coronavirus.

"If that's the case, and we agree to make the claim that's the case in response to a violation … we will be more lenient than we would have been in the past. [The EPA] may not even impose penalties," said Spence.

Most power plant owners and operators expect to need such changes only in a worst case scenario.

"We appreciate the consideration from the EPA to ensure reliable delivery of power to consumers," Todd Snitchler, president and CEO of the Electric Power Supply Association said in a statement. "For now, and until needed, we will continue to operate within our existing permits and hope that we don’t need to consider any of the other options."

"Electric cooperatives will continue meeting their environmental obligations and [the National Rural Electric Cooperative Association (NRECA)] appreciates EPA’s guidance, which will provide some relief to the regulated community during the COVID-19 pandemic," Stephen Bell, senior director of media and public relations at NRECA, said in a statement. "At this point, cooperatives are not encountering significant challenges from COVID-19 and they continue assessing long-term needs should the pandemic stretch on."

The rules will largely apply to air and water permits, said Spence, and in the case of water permits, those are already largely self-regulated. 

"In the air case, it's a little bit more complicated to monitor your own emissions," he said.

One place where the changes will make a larger difference concern hazardous waste — if a facility is generating something considered hazardous waste under the law, previous regulations said that waste could not be stored on site for longer than 90 days. Under these modified rules, if transport to remove the waste doesn’t show up for COVID-19-related reasons, the facility can technically be considered a disposal facility. 

Normally that would be "extremely against the rules, and often results in really heavy fines," he said. "And so these are the kinds of situations I think they're aiming at."

A group of 15 environmental organizations decried the regulations in a letter sent to the EPA. 

"It is not clear why refineries, chemical plants, and other facilities that continue to operate and keep their employees on the production line will no longer have the staff or time they need to comply with environmental laws," the groups wrote.

"We ask that EPA post online any agreements with regulated sources to delay or reduce environmental requirements, with a clear explanation of how the coronavirus pandemic made such decisions necessary and what steps facilities will take to reduce their health impacts."

The policy applies retroactively beginning March 13.