On eve of Earth Day, Higgins warns EPA rollbacks could unravel decades of progress in Western New York; EPA responds

Said ending enforcement 'threatens clean air & water'

Congressman Brian Higgins office said that, as the U.S. prepares to celebrate the 50th anniversary of Earth Day, he is deeply concerned the Environmental Protection Agency’s “lax policies” are a threat to the “incredible progress” made to improve Western New York’s air and water quality.

On March 26, the Environmental Protection Agency (EPA) issued a memo reporting it is ceasing all enforcement actions during the coronavirus pandemic. Higgins’ team said this is the latest in nearly 100 environmental rule rollbacks by the current administration. 

In a letter to the EPA administrator, Higgins wrote: “As a representative of a constituency which had experienced more than its share of the negative impacts of historically unchecked industrial pollution, including environmental, economic and public health impacts, it is outrageous to me that the administration would attempt to use one international public health emergency to pursue a dangerous, unwarranted and unlawful policy that, if sustained, could ultimately result in a cascade of new, local public health crises all across the nation.”

Western New York’s Dirty Past

Residents at Love Canal in Niagara Falls were exposed to toxic waste dumped by Hooker Chemical in the 1940s. Following years of public activism, in 1978 President Jimmy Carter responded by declaring a federal health emergency and, in 1980, Congress passed the Superfund Act, establishing an EPA program to manage the cleanup of hazardous sites, with Love Canal becoming the first project.

The EPA and Department of Justice held the company accountable, years later wining a lawsuit to recoup $129 million toward cleanup costs.

Higgins’ camp said, “Thanks to the national and community coordination over decades, incredible progress was made to improve the environmental and ecological conditions in the region leading to Niagara River Corridor being named as one of just 40 wetlands of national significance in 2019.

“For years, residents expressed concerns about improper environmental controls at Tonawanda Coke leading to air quality issues and health problems among neighbors. It was a criminal investigation by the EPA and New York State Department of Environmental Conservation that revealed Tonawanda Coke deliberately ignored environmental policies, leading to the release of benzene, which is a known carcinogen. In 2013, Tonawanda Coke was found guilty of violating the Clean Air Act, legislation first put in place shortly after the first Earth Day in 1970. Higgins credited an engaged, enraged and educated community in their relentless pursuit to expose these violations. Today, the air is cleaner and the site is undergoing a major cleanup.

“On Jan. 24, 1968, the Buffalo River caught fire due to contamination from heavy industrial development. The river was ‘devoid of oxygen and almost sterile,’ coated with a thick oil film from industrial waste, combined sewer overflow outfalls, and garbage. Environmental atrocities like this in Western New York and across the nation inspired a grassroots push for change which led to the first Earth Day in 1970.

“The Clean Water Act was subsequently approved in 1972 in response to the dumping of pollution into our waterways. At the time, two-thirds of the nation’s waterways were unsafe for fishing or swimming. The Buffalo River was declared an ‘Area of Concern,’ which led to massive federal cleanup efforts. 

Federal Rollbacks ‘Squander’ Federal Investments

Higgins said the rollbacks could squander millions of dollars in federal investments which have contributed to local economic revival, using the Buffalo River as an example. Since 2010, Great Lakes Restoration Initiative (GLRI) funding appropriated by Congress has led to the investment of over $72.672 million, supporting more than 125 projects, in Western New York. 

Higgins’ team said, “The Buffalo River has transformed from a public health hazard to a national model for waterway cleanup efforts and is on track to be delisted as an ‘Area of Concern.’ ”

In 2018, the University at Michigan released a study that found every dollar invested in the Great Lakes yields, on average, $3.35 in economic activity; in Buffalo, the rate of return is even higher, delivering $4 for each GLRI dollar invested in Western New York. Federal investments in Buffalo River cleanup have led to more than $428 million in private sector investments helping to drive Buffalo River revival.

EPA ‘Must be Held Accountable’

In a communication with New York State Attorney General Letitia James, Higgins backed the sentiments of the Clean Air Coalition of Western New York and 50 other organizations supporting efforts to hold the “federal administration to account for its lapses in the enforcement of federal environmental laws and its weakening of environmental regulations and their enforcement.”

Expands At-Risk Population

Higgins was also among 88 members writing to the EPA pointing out what they called “the failure to monitor clean air and water,” which “puts more Americans at risk during health emergencies, like the current COVID-19 outbreak.” They wrote: “All Americans count on these environmental protections to enjoy public spaces and ensure that their water, food, and air are clean. This reckless action puts all Americans’ health at risk and creates a dangerous precedent for future health crises and other national emergencies. This enforcement failure could in turn increase the risk of human harm, create new environmental crises, and most critically exacerbate the risk for future infectious diseases.”

EPA Responds

In an emailed response, the EPA stated, “The claims made by the Congressman are false. The EPA is not suspending enforcement of environmental laws during the pandemic and the temporary enforcement guidance does not allow any increases in emissions. The temporary enforcement policy is not a nationwide waiver of environmental rules. We will continue to work with federal, state and tribal partners to ensure that facilities are meeting regulatory requirements, while taking appropriate steps to protect the health of our staff and the public.”

The agency provided additional information on its policy:

“The policy says that EPA will not seek penalties for noncompliance with routine monitoring and reporting requirements, if, on a case-by-case basis, EPA agrees that such noncompliance was caused by the COVID-19 pandemic. Regulated parties must document the basis for any claim that the pandemic prevented them from conducting that routine monitoring and reporting and present it to EPA upon request. This action was necessary to avoid tying up EPA staff time with questions about routine monitoring and reporting requirements and instead allow EPA to focus on continued protection of human health and the environment. 

“The policy does not say that the COVID-19 pandemic will excuse exceedances of pollutant limitations in permits, regulations and statutes. EPA expects regulated entities to comply with all obligations and if they do not, the policy says that EPA will consider the pandemic, on a case-by-case basis, when determining an appropriate response. Further, in cases that may involve acute risks or imminent threats, or failure of pollution control or other equipment that may result in exceedances, EPA’s willingness to provide even that consideration is conditioned on the facility contacting the appropriate EPA region, or authorized state or tribe, to allow regulators to work with that facility to mitigate or eliminate such risks or threats. 

“EPA has been inundated with questions from both state regulators and the regulated community about how to handle the current extraordinary situation where contractors are not available because they cannot travel, state and local governments are imposing stay at home orders, and the number of people who have contracted COVID-19 and are in quarantine is rising. EPA developed the Temporary Policy to allow EPA to prioritize its resources to respond to acute risks and imminent threats, rather than making up front case-by-case determinations regarding routine monitoring and reporting. The development of the policy was a group effort, involving multiple calls and with and drafts shared among EPA staff and managers, both career and political, at both headquarters and in the regions.

“It is important to note EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible, once the COVID-19 threat is over. Additionally, the policy makes clear that EPA expects operators of public water systems to continue normal operations and maintenance during this time, as well as required sampling, to ensure the safety of vital drinking water supplies.

“The measures in this policy are temporary and will be lifted as soon as normal operations can resume, which may occur sooner in some locations than others. We take our environmental mandate to protect human health and the environment very seriously and will continue to carry it out during this time.”