By Joseph Flaherty | April 3, 2020 | Arkansas Democrat Gazette

The Arkansas Department of Energy and Environment is relaxing rules that require industries to monitor and control pollution during the coronavirus pandemic, following a similar step by the Trump administration that has alarmed environmental advocates nationwide.

The virus and the large number of people working remotely, or not working at all, affects “many of our regulated entities that require staff to maintain normal operations at their facilities,” the department said in guidance published this week.

Industries can request enforcement discretion or flexibility for situations where they are out of compliance, such as a facility not reporting emissions, as long as the coronavirus outbreak is ostensibly the cause. The department will review these requests on a case-by-case basis under the temporary policy.

The department and its Division of Environmental Quality have framed the new guidance as a response to Gov. Asa Hutchinson’s executive order March 17 directing state agencies to identify and suspend for 30 days any regulatory statutes, orders or rules preventing them from delivering “maximum assistance to the citizens of this state.”

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However, it’s unclear how the new Division of Environmental Quality guidance for regulated industries fits in with Hutchinson’s directive. The executive order appears to be geared toward agencies responsible for providing “benefits or services related to health, education, employment or any service rendered by the state in response to or to mitigate the spread of COVID-19.” Those services fall to agencies other than the Department of Energy and Environment.

A department spokesman, Jacob Harper, wrote in an email to the Arkansas Democrat-Gazette that the Division of Environmental Quality “will consider requests that are demonstrably linked to the COVID-19 public health emergency.”

“All regulated entities remain obligated to ensure compliance, to the best of their ability, with all orders, regulations, and permit requirements,” Harper wrote. “This is in an effort to continue our mission of protecting the health and safety of all Arkansans and properly administering all energy and environmental programs that we are responsible for maintaining.”

The department has no end date for the temporary policy, Harper said, but will publish a notice at least seven days before terminating the guidance.

The Arkansas chapter of the Sierra Club criticized the move and urged the department to reconsider, arguing that pulling back on enforcement may lead to more pollution as public health officials battle a respiratory virus.

“If you’ve got enough employees on-site to run the plant, you’ve got enough people on-site to run the pollution controls as well,” Glen Hooks, director of the Arkansas chapter of the Sierra Club, told the Democrat-Gazette on Thursday.

“This is not some sort of deal where everybody’s going to go home and there’s just a tiny skeleton staff, and all they can do is run the plant and can’t run their pollution control equipment,” Hooks said. “That’s ridiculous.”

The department’s guidance was published on its website Monday and retroactively applies to March 17, the date Hutchinson issued his executive order directing that state agencies identify statutes or rules hindering them from responding adequately to covid-19.

The governor’s office did not respond to requests for comment by phone and email Thursday.

The enforcement discretion described in the Division of Environmental Quality’s new provisional guidance, a copy of which the department provided to the Democrat-Gazette , does not apply to reckless, negligent or intentional disregard of the law, according to the department, and regulated entities are expected to “make every effort to comply with their environmental compliance obligations.”

Arkansas’ environmental agency announced the action four days after a similar decision by the Trump administration.

The U.S. Environmental Protection Agency said March 26 that it will use enforcement discretion to allow regulated entities to fall out of compliance with laws and regulations, if obeying the law becomes impractical because of the covid-19 outbreak. 

The EPA does not plan to seek penalties for compliance monitoring and reporting violations — such as stack emissions testing and stormwater inspections — “in situations where the EPA agrees that COVID-19 was the cause of the noncompliance” and supporting documentation can be provided, the agency’s memo said.

Facilities that experience a failure of pollution controls that lead to air, land or water pollution in excess of EPA limits should notify the agency immediately, according to the new policy.

The former head of the EPA during the Obama administration, Gina McCarthy, rebuked the EPA in a statement and called the policy “an open license to pollute.”

“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,” McCarthy, president and CEO of the Natural Resources Defense Council, said in a statement posted on the organization’s website.

The Arkansas department’s provisional guidance mirrors the EPA’s language on facility pollution-control breakdowns that cause the release of pollutants.

The new policy will be most helpful to smaller facilities in the state with limited personnel that are experiencing an absence of staffing ordinarily responsible for compliance programs, according to Walter Wright, an environmental lawyer with the firm Mitchell, Williams, Selig, Gates and Woodyard in Little Rock.

At a larger chemical facility or coal-fired power plant, “they’re going to have multiple people who’ve got familiarity with these programs,” Wright said.

“But, on the other hand, you have smaller facilities, less complex facilities, where they literally may just have one environmental person or a half-environmental person, half-safety person,” Wright added.

If that individual is out for 30 days, for instance, a facility will not be able to teach a replacement in one month to produce reliable environmental reporting documents or meet other requirements, Wright said.

The Division of Environmental Quality has unveiled the policy at the same time public health officials are scrambling to mitigate a viral respiratory disease that has infected more than 240,000 individuals nationwide and close to 700 in Arkansas.

Hooks suggested that the department’s policy, like the EPA guidance that preceded it, is merely an election-year stunt designed to generate goodwill with industry during the coronavirus pandemic.

“I can’t think of any good reason to do this on the state level other than to find some political points or currying favor with industry,” Hooks said. “It certainly doesn’t help average Arkansans to allow more pollution during a time of respiratory pandemic.”

At a time when public health officials have urged people to stay home to help curb the spread of the virus, people who live near polluting industries will have no escape from increased pollution, Hooks said. In particular, Hooks said, he is concerned about communities surrounding one of the five coal-fired power plants in Arkansas if those industries seek department approval to ratchet down pollution controls.

“Those communities are going to suffer,” he said. “And they shouldn’t, because there’s no net benefit to anybody to let that happen.”

Officials with the Arkansas chapter of the Sierra Club have not reached out to the Division of Environmental Quality yet regarding their views on the new policy, but Hooks said the environmental group will probably discuss it.

The Department of Energy and Environment has already scaled back some regulatory work when confronted with the growing coronavirus pandemic.

Last month, the department said it would pause for 30 days some routine regulatory inspections that involve public interaction. Environmental emergency response efforts and inspections taking place at unmanned sites or without public interaction would continue, a spokesman said at the time.

Wright said he believes increased irresponsible behavior by industry is unlikely to take place under the department’s latest guidance. He said bad actors that were flouting department regulations on pollution to begin with probably will not inform the department they are out of compliance because of the covid-19 outbreak.

“It just sort of puts you in the system, where at some point the state may look at this and say, ‘Well, we’ve never gotten anything from you anyway. Maybe we need to come inspect,’” Wright said.

Moreover, criminal environmental enforcement, especially at the federal level, often targets entities that submit false documentation, as opposed to violators who exceed emissions or wastewater limits, he said.

If an entity submits false documents to the department amid the coronavirus crisis, “you’re really putting yourself at risk there,” Wright said.