Environmental groups worry EPA memo will lead to uptick in pollution

Apr. 12--President Donald Trump's administration has temporarily suspended routine monitoring and compliance of some environmental standards that the Environmental Protection Agency said could endanger enforcement workers during the COVID-19 pandemic.

But environmental groups in New Mexico, as elsewhere in the nation, say the new policy could give companies a blanket license to pollute.

Environmentalists worry that, in particular, the EPA's nonenforcement policy could lead to a spike in New Mexico's methane emissions despite a decline in drilling as rigs become paralyzed by the economic impasse of the new coronavirus and an oil trade war between Saudi Arabia and Russia.

"Relaxing those EPA enforcement requirements could mean a lot more methane emissions," said Jon Goldstein, an environmental policy expert for the Environmental Defense Fund.

The EPA's memo is "sending a message to the oil and gas industry that they're not going to have federal regulators looking as closely at their operations," Goldstein said.

The sweeping new policy leaves it to energy giants like Chevron and ExxonMobil or power plants and refineries to decide whether they continue complying with environmental regulations, such as submitting air monitoring data.

In other words, the EPA -- which is historically the watchdog and oversight body charged with protecting the country's environment -- is for now allowing companies to watch themselves.

Robert McEntyre, a spokesman for the New Mexico Oil and Gas Association, said in a written statement that the "flexibilities for this time period will allow us to continue to meet requirements under law while adapting to this temporary work environment."

The EPA memo says the agency during this time generally "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 the non-compliance and the entity provides supporting documentation to the EPA upon request."

Environmentalists worry that could lead to a spike in pollution.

"New Mexico will likely see increased impacts to public health," said Joro Walker, general counsel for Western Resource Advocates, an environmental nonprofit. "Essentially, this is sacrificing public health through one channel in the name of protecting public health through another."

For example, greenhouse gas emissions or the release of hazardous air pollutants can occur from leaky or malfunctioning equipment, Walker said. With that in mind, federal regulators require routine monitoring of emissions or pollutants in surface and groundwater in routine reports that can help identify and fix leaks or other problems.

Environmentalists say without regulators inspecting sites or looking through monitoring data, it could be difficult to know whether such leaks or worse are occurring.

"EPA has essentially tied its hands before it even began any inquiries," Walker said, thus "abdicating responsibility to protect public health."

One area to watch, she said, is companies that already were on the fence or in violation of environmental standards. One example is the HollyFrontier Navajo oil refinery in Artesia, Walker said.

The refinery was one of 10 across the nation flagged in a February report for emitting harmful levels of toxic benzene that exceed the federal limit.

The report from the Environmental Integrity Project -- a Washington D.C.-based environmental nonprofit -- found it was the second-worst benzene polluter in the nation at the end of the third quarter of monitoring in 2019. The plant emitted four times the EPA standard of 9 micrograms per cubic meter of air.

Earlier in 2019, the plant's annual average net benzene concentration exceeded 32 times the EPA action level and "had by far the highest measured benzene reported to the EPA," according to the report.

The company identified a failed seal on a tank as the source of the elevated emissions and has since found an average benzene emission level well below the EPA action limit.

But that data -- and the requirement to rein in benzene emissions accordingly -- might not have transpired if not for EPA enforcement.

It's unclear if HollyFrontier is asking to temporarily suspend air quality monitoring and reporting during the COVID-19 crisis. HollyFrontier did not return calls Friday.

Meanwhile, a spokeswoman for Chevron, Veronica Flores-Paniagua, said the company "continues to comply with EPA and state regulations, which are built into our normal operating procedures." She also forwarded a blog post from the American Petroleum Institute, which had originally asked the EPA for the monitoring flexibility, that claimed the "temporary relief for non-essential compliance requirements" does not constitute a rollback of environmental enforcement.

Julie King, a spokeswoman for ExxonMobil, also said the energy company complies "with all laws, rules and regulations applicable to our business."

Neither said, however, whether the two companies would voluntarily continue to submit emissions reports or other previous environmental requirements that can be temporarily waived by the EPA.

New Mexico Environment Secretary James Kenney said he consulted Susan Bodine, the author of the EPA memo and the agency's chief compliance regulator, for clarification on the new federal policy last week.

Kenney said the EPA does not intend to issue a blanket waiver for any one industry and added that the state Environment Department will evaluate companies' requests to suspend monitoring or environmental reporting on a case-by-case basis. He added that the department already offered that flexibility to companies in some cases.

For example, an undisclosed company in New Mexico told the department it would not be able to comply with quarterly groundwater monitoring regulations because the laboratory it normally uses to do so is shut down due to the coronavirus pandemic.

"Under our regs, that would be a violation. In light of the fact that we're in a COVID-19 situation where the lab is shut down, we can't send out multiple people, [and] you can't do sampling without maintaining social distancing -- that makes sense to us ... that we could not be punitive for missing a quarter of monitoring," Kenney said. "Am I going to turn around and say that everybody in the state can miss this quarter of monitoring? Absolutely not."

Kenney added that "if folks think that this memo gives them carte blanche to [skirt federal regulations] in New Mexico when 25 percent of my workforce is no longer dealing with COVID-19, we'll handle that through our enforcement authorities, and I believe EPA will be supportive of us."

EPA Administrator Andrew Wheeler wrote in an April 2 letter to U.S. Sen. Dianne Feinstein, D-Calif., that it's inaccurate to characterize the temporary flexibility as a suspension of environmental enforcement.

"EPA is operating in the best interest of all Americans, including those who are working to keep our infrastructure running and monitoring environmental compliance," Wheeler wrote. "These workers face immediate health risks from the global emergency. Irresponsible allegations that EPA is giving industry a license to pollute mischaracterizes the agency's repose to those risks and impugns the work that the dedicated agency officials continue to perform during this challenging time.

"To be clear, EPA continues to enforce our nation's environmental laws," Wheeler said.

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