Carper Asks EPA to Explain Trump Administration’s Consideration of Easing Critical Environmental Requirements amid the COVID-19 Pandemic

WASHINGTON, D.C. – As ongoing press reports indicate the Trump Administration is considering exploiting the federal response to the COVID-19 pandemic to make permanent deregulatory measures, today, U.S. Senator Tom Carper (D-Del.), top Democrat on the Senate Environment and Public Works Committee, asked Environmental Protection Agency (EPA) Administrator Wheeler whether the private sector or others in the government are seeking relief from environmental rules that would last beyond the COVID-19 pandemic.

On April 17, EPA finalized an interim rule that provides temporary relief from some air emissions monitoring requirements during the current COVID-19 national emergency, where regulated sources may be experiencing issues of travel, plant access or other safety restrictions.

However, a review of the rulemaking records in the docket indicate that, at one point, EPA proposed that the enforcement relaxations would apply in any national emergency – irrespective of whether the national emergency required social distancing or other measures that would hinder industry from complying with environmental laws.

For context, there are many ongoing national emergencies, including one first imposed by President Carter in 1979 related to the Iran hostage crisis that has never been lifted. Given many ongoing national emergencies, this means that the rule, as EPA initially proposed it, would have been made essentially permanent.

“Although the April 17 interim final rule does not on its face raise significant concerns, a review of the materials in the rulemaking docket indicate that EPA originally proposed to make the rule a permanent final rule rather than an interim final rule. EPA also wanted to propose that the amended reporting requirements would apply during all national emergencies rather than just the current COVID-19 pandemic, irrespective of whether ongoing or future national emergencies present similar challenges,” Senator Carper wrote. “According to the interagency materials in the docket, this language was removed after some interagency commenters raised concerns that ‘the interim final rule does not provide any justification or explanation for why this temporary exemption should be made permanent.’”

“I would be very concerned if permanent relaxations of environmental requirements were ultimately finalized using COVID-19 as a pretext,” Senator Carper said.

The letter can be found here or below.

April 29, 2020

The Honorable Andrew Wheeler
Administrator
U.S. Environmental Protection Agency
1301 Constitution Ave. NW
Washington, DC 20460

Dear Administrator Wheeler:

I write to request information regarding the April 17, 2020 interim final rule on “Continuous Emissions Monitoring; Quality Assurance Requirements During the COVID-19 National Emergency.”[2] Specifically, I seek more information about any proposals to make this or other EPA rules permanent (rather than temporary) or otherwise applicable beyond the needs of the COVID-19 pandemic. Materials that appear in the docket for this rule seem to indicate that, at one point during the rulemaking process, EPA had the intent to make this interim rule permanent. Though some adjustments may need to be made to the manner in which the Environmental Protection Agency (EPA) expects the regulated community to collect information in order to prevent the spread of COVID-19, such adjustments must be temporary, targeted and transparent.

On April 1, 2020, I wrote you a letter that that was co-signed by ten other Senators.[3] The letter requested information about how EPA was adjusting its operations in light of the pandemic and it expressed concern with the deregulatory atmosphere at EPA. Agency sources have described this atmosphere as “relentless,” a characterization borne out by recent EPA rules that will erode protections from vehicle emissions,[4] mercury and air toxic emissions,[5] particulate matter emissions,[6] and diminish protections for clean water.[7] I still await EPA’s response to that correspondence. Moreover, the Washington Post reported on April 21, 2020 that senior administration officials are planning more regulatory rollbacks in order to boost the economy at the expense of environmental protection, stating that the administration is “likely to seek to make permanent some temporary regulations issued by agencies over the past few weeks to respond to the coronavirus pandemic.”[8]

The EPA’s April 17 interim final rule amends the regulations applicable to sources that monitor and report emissions under the Acid Rain Program, the Cross-State Air Pollution Rule (CSAPR), and/or the NOx SIP Call. It provides that “if an affected unit fails to complete a required quality-assurance, certification or recertification, fuel analysis, or emission rate test by the applicable deadline under the regulations because of travel, plant access, or other safety restrictions implemented to address the current COVID–19 national emergency and if the unit’s actual monitored data would be considered valid if not for the delayed test, the unit may temporarily continue to report actual monitored data instead of substitute data.”[9] The interim final rule also states that, “To provide transparency regarding the use of the amended procedures, EPA will prepare summaries of the units and states, the delayed tests and test deadlines, and the completed tests and completion dates and will post the summaries on a publicly accessible website.”[10]

Although the April 17 interim final rule does not on its face raise significant concerns, a review of the materials in the rulemaking docket indicate that EPA originally[11] proposed to make the rule a permanent final rule rather than an interim final rule. EPA also wanted to propose that the amended reporting requirements would apply during all national emergencies rather than just the current COVID-19 pandemic, irrespective of whether ongoing[12] or future national emergencies present similar challenges. According to the interagency materials in the docket[13], this language was removed after some interagency commenters raised concerns that “the interim final rule does not provide any justification or explanation for why this temporary exemption should be made permanent.” 

I would be very concerned if permanent relaxations of environmental requirements were ultimately finalized using COVID-19 as a pretext. So that I can better understand EPA’s intentions for this and other environmental reporting and enforcement rules during the COVID-19 pandemic, I ask that you provide the following:

1. Copies of all requests, recommendations, emails, memos or other documents prepared by EPA officials or submitted to EPA by private sector, state or other federal governmental entities to provide any relief from environmental compliance obligations that extend beyond the duration of the COVID-19 pandemic. 

1. A commitment that EPA will not make any compliance, monitoring or enforcement waivers, exemptions, rules, or other actions taken in response to the COVID-19 pandemic permanent or otherwise extend beyond the timeframe of this national emergency. If you cannot make such a commitment, please state why not, and identify the specific rules or other actions for which you are considering making COVID-19 relief permanent or otherwise extending beyond the timeframe of this national emergency.

Please provide answers to these questions and records responsive to these document requests by May 19, 2020. If you have any questions, please feel free to ask the appropriate member of your staff to contact Michal Freedhoff (Michal_Freedhoff@epw.senate.gov) of the Environment and Public Works Committee staff. Thank you for your attention to this matter.

With best regards, I am

Sincerely yours,

Thomas R. Carper

Ranking Member

Committee on Environment and

Public Works

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