A controversial new policy from the Environmental Protection Agency not to enforce certain environmental laws and rules because of the coronavirus crisis will have little impact on how some of the highest profile federal environmental laws are enforced in Arizona.
That’s because the Arizona Department of Environmental Quality already doesn’t take much formal enforcement action in cases like those that would be covered by the EPA’s new policy — and it controls the enforcement of several major environmental laws in Arizona.
Across the country, the EPA drew criticism from environmentalists when it announced on March 26 that, for now, it won’t seek penalties for violations of what it calls “routine” requirements that companies monitor and report whether they’re in compliance with federal rules for such activities as air emissions and discharges into water.
Environmentalists said the change granted businesses an unprecedented “license to pollute” – a charge the EPA disputes.
But in Arizona, the ADEQ already reserves fines and other penalties for the most severe cases, the agency told the Star.
The ADEQ has long handled enforcement of the Clean Water and Clean Air acts, the Safe Drinking Water Act and the Resource Conservation and Recovery Act, which regulates storage and disposal of hazardous wastes.
The EPA turned over implementation and enforcement of most provisions of those laws to Arizona at the state’s request.
But the EPA continues enforcing the Clean Air Act here at times, including a recent $33,000 fine against Asarco for violating dust emission requirements at the mining company’s Hayden smelter.
In Arizona, the EPA continues to enforce the Toxic Substances Control Act and the Emergency Planning and Community Right-to-Know Act, which requires companies to disclose how many pounds of toxic materials they release into the air, water and land.
It also enforces certain Clean Water Act cases in Arizona involving wetlands and the Comprehensive Environmental Response, Compensation and Liability Act, which requires cleanups of Superfund toxic waste dump sites.
Enforcement of those laws, except for the Superfund law, will be affected by the EPA’s latest decision to halt slapping fines and on violators of them in certain cases.
The ADEQ contrasted its attitude toward enforcement with the EPA’s, which the state agency said “measured their success by how many orders and penalties they issued” under previous administrations.
“We view this as analogous to measuring the success of a police force by measuring only the number of tickets and incarcerations instead of focusing on reducing the crime rate,” a statement from the agency said.
The ADEQ focuses on the rate of environmental compliance achieved by businesses being inspected.
Since 2012, the compliance rate has risen 13%, and the time a business takes to come into compliance is down 56%, the ADEQ said.
In the same period, inspections of regulated companies are up 68%, the ADEQ said.
How violations are addressed
When a violation occurs, the ADEQ gives businesses a chance to address their problem promptly, the agency said. If they don’t, more formal action can be taken.
“Simply put, the environment benefits if a violation never happens in the first place,” the agency said.
Violations can be serious enough to merit enforcement action.
For example, last May the ADEQ sued Johnson Utilities, seeking more than $100 million in penalties for what the agency said was the utility company’s illegal actions in the San Tan area of Pinal County.
Violations included overflows of its sewer system; discharges without a permit; monitoring and reporting violations; and offensive odor.
Since then, Johnson Utilities has worked with the Arizona Corporation Commission to develop a formal order requiring the utility to develop a schedule for making improvements to fix the violations, ADEQ said.
Environmentalist Sandy Bahr took strong exception to what she sees as the state’s policy of only citing the most extreme polluters — the ADEQ said Johnson Utiities has been cited more times by the state since 2017 than any other company.
“I don’t think anyone would say there shouldn’t ever be a situation where there are extenuating circumstances and such, that they shouldn’t enforce,” said Bahr, director of the Sierra Club’s Grand Canyon Chapter.
“But the fact that it really takes something so serious, something that causes an acute health issue, that says a lot about who comes first at the ADEQ. It’s been pretty clear for a while the director has made it clear that business interests are the customers and ADEQ is there to serve them.
“Overall the message really is that any laws, any regulations, are only as strong as their enforcement. You can have something on the books, but what happens in reality is much different,” said Bahr.
Steve Brittle, director of Don’t Waste Arizona, a group that has crusaded for decades against toxic waste dumping, said he partly agrees with the state not seeking maximum fines in many cases.
Usually in federal cases, for instance, the penalty money goes to the U.S. Treasury — not to the enforcing agency, which usually needs the money badly, he said. He would rather see penalty funds diverted to support new environmental projects on the ground.
At the same time, he is dubious of policies like the EPA’s that eliminate enforcement altogether in certain cases. If police were to announce that “over this weekend, we will have no speeding enforcement, we’d have a lot of wrecks,” he said.
“EPA’s action is almost like a political thing, trying to reach out to more extreme polluter types,” he said. ‘I’m not sure it’s going to have a whole lot of effect, except on the people who want to cut corners.”
The role of coronavirus
In a memo announcing its new non-enforcement policy, the EPA said it recognizes that some companies may face worker shortages because of the COVID-19 pandemic and travel and social-distancing restrictions.
That could affect a facility’s operations, the availability of key staff and contractors and limit a company’s ability to meet federal reporting obligations .
Companies also could face challenges meeting limits on air emissions, water discharges and hazardous waste management requirements, the EPA said.
Because of all that, “in general, the EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of non-compliance” and the company can document that at the EPA’s request, the agency memo said.
Environmentalists: Monitoring isn’t routine
Environmentalists vehemently object to the EPA’s description of monitoring and reporting as “routine.”
“The operation and enforcement of many environmental laws, including the Clean Air Act, depends largely on mandatory self-monitoring and reporting by polluters. This information allows states and the EPA to identify facilities in noncompliance and respond as necessary,” said the Eugene, Ore.-based Western Environmental Law Center.
“Moreover, monitoring and reporting requirements are often the only way that communities can get any information at all about air pollution around them,” the center said in a statement.
“In its new policy, EPA’s policy interferes with the public’s right to know what is in the air, in the water and in the ground around them. The effect is that individuals and communities will be less able to identify risks, take actions to protect their health, and hold polluters accountable where EPA has not.”
But this temporary policy isn’t a blanket waiver of monitoring, sampling and reporting requirements, an EPA spokesman countered.
“We expect much will continue, including reporting to states or EPA as required under the applicable permit, regulation, agreement or statute,” the spokesman said.
But, “Diverting EPA staff time to respond to individual questions about routine monitoring and reporting would hinder EPA’s ability to focus on protection of human health and the environment during this critical period,” the spokesman said.
In Arizona, Brittle of Don’t Waste Arizona cited the importance of reporting pollution incidents, noting it took 10 years for his group to get final closure on a complaint it had filed in 2007 with EPA’s civil rights office against ADEQ and Maricopa County for what he said was the agencies’ failure to adequately track particulate emissions from sand and gravel companies operating in south Phoenix.
That’s an area heavily populated by people of color and low-income residents.
The EPA civil rights office, in closing the case in 2017, found the agencies weren’t violating any laws aimed at insuring equal treatment of minority groups.
But the office did note that the state and county had instituted a number of improvements since the complaint was filed in both tracking sand and gravel emissions and in coordinating enforcement responsibilities.
“It’s another example of no one doing their job,” said Brittle, the group’s founder and past president.
“The companies were filing reports saying there were zero emissions but there was a cloud of dust down there that you could see for miles.”
