Las Vegas Sun

March 28, 2024

State officials, environmentalists split on local impacts of EPA enforcement change

Searchlight Community Center

Steve Marcus

Mining equipment is displayed outside the Searchlight Community Center Thursday, March 7, 2019.

While the Environmental Protection Agency will not administer all environmental regulations during the COVID-19 pandemic, the Nevada Division of Environmental Protection says it will continue to enforce environmental law and protect ecological resources and public health.

But environmental groups have concerns about the enforcement of environmental regulations and continued permitting processes for mines in Nevada during the pandemic.

The EPA announced on March 26 a new “enforcement discretion policy” that will last for the duration of the pandemic, whereby the agency will not seek penalties for environmental noncompliance resulting from decisions made due to COVID-19. The agency expects EPA-regulated facilities to obey environmental rules “where reasonably practicable, and to return to compliance as quickly as possible,” it said in a news release.

Environmentalists and former EPA staff under the Obama administration have criticized the new rule, which has no set end date, saying it will allow industry and agriculture to operate unchecked during the pandemic. Nevada conservation groups have echoed these concerns and condemned the Nevada division for seeming to back the policy.

Nevada Department of Conservation and Natural Resources Director Brad Crowell said in a statement that his department — which includes the Nevada division — expects Nevada’s regulated entities to “maintain full compliance with all applicable environmental requirements” during the pandemic.

“Given the unique and rapidly changing circumstances surrounding COVID-19, EPA’s March 26 policy recognizes Nevada’s capabilities to carry out critical and essential regulatory and enforcement operations based on the unique needs and resources of our state,” he said.

Crowell said his statement was not an endorsement of the EPA’s enforcement discretion policy. Rather, he was explaining that Nevada is capable of enforcing environmental laws that protect waterways, air and natural resources despite the EPA decision, he said.

“Nevada is continuing to do the people’s business and all our regulatory functions regardless of the EPA’s directive,” Crowell said.

Although staff are being increasingly “selective” about inspections in light of the pandemic, the division continues to implement roughly 96% of federal environmental statutes in Nevada, said Greg Lovato, Nevada Division of Environmental Protection administrator. The division is also developing a system for conducting virtual inspections to reduce the need for in-person contact, Lovato said.

But Patrick Donnelly, Nevada state director for the Center for Biological Diversity, said he was troubled by the Nevada division’s choice not to condemn the EPA’s suspension of regulatory enforcement.

“Every environmental group in the country is decrying this right now,” Donnelly said. “This is the state of Nevada supporting the worst of the Trump administration’s attacks on the environment.”

Contrary to the division’s position on the EPA decision, the Center for Biological Diversity and other environmental groups say the suspension of federal regulatory enforcement could greatly impact Nevada, particularly since the state’s mines can continue operating during the pandemic. Along with grocery stores, food production facilities, hospitals and other select businesses, mining is considered an essential business under Gov. Steve Sisolak’s emergency declaration.

The Nevada division oversees the permitting process for mines, but the EPA monitors mining spills and chemical releases and makes that information public through the federal Toxics Release Inventory. If that monitoring falls by the wayside, it could leave communities impacted by mining pollution without tools to quantify or address those impacts, said Ian Bigley, mining justice organizer with Progressive Leadership Alliance of Nevada (PLAN).

“If you’re not monitoring that, down the road when you’re trying to mitigate those impacts, you don’t have the appropriate data to do so,” Bigley said.

Not only are mines allowed to stay open, but the Nevada division and other state regulatory boards can continue to review and approve mining proposals during the state of emergency while the public might not be paying attention, Bigley said. That’s why PLAN, the Center for Biological Diversity and Great Basin Resource Watch say ongoing permitting and public comment processes for mines should be suspended.

“Amid this global crisis, permitting of mines has continued unhindered despite the fact that the public cannot be reasonably expected to engage in ongoing public comment periods,” the three organizations wrote in a letter to Sisolak on Friday. “Many who would normally engage in commenting are in crisis as infection rates rise, and we reach record levels of unemployment.”

Without all relevant mining records available online, the organizations say even members of the public who are still paying attention to these decisions cannot meaningfully participate in the process. Those without sufficient internet access are barred entirely, they added.

Sisolak’s office did not respond to a request for comment about the letter.

Since the state of emergency began on March 12, the Nevada Division of Environmental Protection has received the usual volume of permit applications, with the exception of applications for proposed new developments, Lovato said. The division is making meetings, supplementary materials and records available online, but Lovato acknowledged that the agency is still working out some logistics.

However, there are other ways for members of the public as well as nongovernmental organizations to stay in the loop, he said.

“We have email listservs and things like that for people who subscribe to all of our permitting proposed decisions,” Lovato said.

Regardless of the EPA’s suspension of regulatory enforcement and whether mines stay open, the Nevada division remains committed to ensuring environmental compliance across industries, Crowell said.

“In some states that have a less aggressive or robust state-based compliance and enforcement efforts, the EPA can often be a safety net to make sure enforcement and compliance is happening,” he said. “In this case, the only thing that changes for Nevada is if, potentially, we weren’t doing our job as robustly as we do and continue to do under COVID-19.”

John Hadder, executive director of Great Basin Resource Watch, remains skeptical.

“There have been incidents in the past where it was the EPA that stepped in, and they’re not going to do that now,” Hadder said.