COVID-19 is already rewriting environmental law

If companies can’t comply with rules requiring the monitoring and reporting of the release of air pollutants—like benzene, chloromethane and volatile organic compounds—the order asks that they “act responsibly.” 

By Alexander Locksley

The Environmental Protection Agency has suspended enforcement of some rules and regulations in the wake of the ongoing COVID-19 pandemic. The decision — announced March 26 and retroactive to March 13— will allow businesses to determine for themselves if they are able to abide by laws regarding air and water pollution reporting. 

The new policy came in response to a deluge of requests from various businesses — including power plants and factories — to relax regulations as the companies face layoffs, the isolation/quarantine of personnel and other problems related to the epidemic. 

Susan P. Bodine, the EPA’s top compliance officer, issued the guidelines — which allow companies to police themselves for an unspecified amount of time during the outbreak. Bodine’s decision prohibits EPA employees from issuing fines for violations of air, water and certain hazardous waste reporting requirements. 

The EPA does not expect to seek penalties for violations of routine rules, such as compliance monitoring, integrity testing and reporting or certification obligations, according to the order. The agency plans to focus on “situations that may create acute risk or imminent threat to public health or the environment.” 

However, the EPA retains the ability to use its “discretion” when it comes to enforcing the various environmental regulations on the books. 

If companies can’t comply with rules requiring the monitoring and reporting of the release of air pollutants—like benzene, chloromethane and volatile organic compounds—the order asks that they “act responsibly.” 

Businesses should “minimize the effects and duration of any non-compliance” and keep records to report to the agency how pandemic restrictions prevented them from meeting environmental regulations, reads the order.

Although the EPA is “committed to protecting human health and the environment” the agency recognizes that challenges arising from COVID-19 may “directly impact the ability of regulated facilities to meet all federal regulatory requirements,” Andrew R. Wheeler, EPA administrator, said in a written statement. 

Despite protestations from environmentalists, the EPA is defending the decision by stating that the new order doesn’t give polluters a free pass. In an interview with the New York Times, EPA spokeswoman Andrea Woods said that the new ruling is not a “nationwide waiver of environmental rules.” 

“For situations outside of routine monitoring and reporting the agency has reserved its authorities,” Wood told the Times. “[It] will take the pandemic into account on a case-by-case basis.” 

Although this announcement is bad for the nation as a whole it’s particularly troubling for Texas. In 2018, the last year with data, industrial facilities in the Lone Star State released more than 135 million pounds of illegal air pollution. 

During 2018, approximately 270 companies, including household names like Dow Chemical, ExxonMobil and Chevron, had 4,590 unauthorized emission incidents. The illegal emissions resulted in the premature deaths of 42 people and $241 million in healthcare costs, according to a 2019 report by Environment Texas. 

The EPA’s decision to stop enforcing air quality regulations can only be a bad sign for Southeast, Texas, where petrochemical plant explosions are a way of life. In November 2019, a TPC Group plant in Port Neches, about 90 miles east of Houston, exploded and burned for two days. 

The explosion came after the plant’s operator racked up a long history of regulatory violations, including violations of consent agreement with the EPA. In 2017, TPC Group agreed to conduct fence-line air monitoring for 1,3 butadiene, a carcinogen. The company agreed to notify the public if butadiene levels exceed 25 parts per billion twice in one hour. 

In September 2019, months before the plant exploded and sent 60,000 people to shelters, butadiene levels reached 14,486 parts per billion. The company was not required to make any changes to their operating procedures.  

The Port Neches explosion was the fourth major petrochemical fire in 2019. The highest profile fire occurred in March, when a blaze at an ITC tank farm in the Houston suburb of Deer Park burned for four days. The plume of smoke could be seen more than 60 miles away. 

A month later, a fire at a KMCO LLC plant in the exurban community of Crosby, about 25 northeast of Houston, “obliterated the building’s entrance” and injured 30 people, according to a government report on the incident. 

One first responder described the plant’s entrance as being reduced to “shrapnel. There was nothing left of it. Wires, there was nothing there. There wasn’t a building there anymore.”

As devastating as the KMCO plant explosion was, it wasn’t the worst of 2019 — at least not in terms of injuries. A July 2019 fire at ExxonMobil’s Olefins Plant in Baytown— a town about 30 miles southeast of Houston. 

The Olefins Plant explosion injured 37 people and “resulted in the emission of multiple air pollutants, including propylene, LPG, propane, and associated products of combustion,” according to a lawsuit filed by Harris County against ExxonMobil. 

While those four explosions/fires grabbed headlines, they don’t tell the whole story. A 2016 investigation by the Houston Chronicle found that the Houston area averages one chemical fire or explosion every six weeks. 

When it comes to oversight of Texas’ petrochemical industry, “the U.S. regulatory system is poorly funded and has outdated, complex rules that go unenforced, leaving facilities that handle hazardous chemicals mostly to police themselves,” according to the Chronicle investigation.

The situation is so bad, and the regulations so lax, that even the Houston Fire Department doesn’t know what chemicals are being stored within the city. The lack of information became all too apparent in 2016 when a fire at a Houston warehouse burned 40,000 pounds of hazardous chemicals and turned one of the city’s waterways blood red. 

The fire, which occurred at Custom Packaging & Filling, was the first indication that hazardous materials were being stored in a residential neighborhood. Despite the Houston areas long, and tragic, history with industrial accidents nothing has changed. 

In January of this year, an early morning explosion at a manufacturing plant in Northwest Houston killed two people and damaged 400 homes. In the weeks and years since these events there hasn’t been a public outcry. 

Neither Houston Mayor Sylvester Turner nor Harris County Judge Lina Hidalgo have vowed to get to “the bottom” of anything. The state legislature hasn’t convened a special investigative commission to find out how many chemical plants and storage facilities are in Texas and what exactly those plants contain. 

It’s stayed business as usual and now some of the few regulations that the petrochemical industry has to abide are being waived with the vague hope that plant operators will “act responsibly.” 

No one seems to have asked EPA Administrator Andrew Wheeler if he knows the last time the petrochemical industry “acted responsibly.”  


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