Environmental Enforcement in the COVID-19 Era

Katlyn Schmitt

Dec. 10, 2020

Ever since the U.S. Environmental Protection Agency (EPA) issued a dangerous (and now-rescinded) policy relaxing enforcement of environmental protections in March, the Center for Progressive Reform has watchdogged responses from state environmental agencies in three states in the Chesapeake Bay Region — Maryland, Virginia, and Pennsylvania.

While the EPA essentially gave companies a free pass to hide pollution violations during the pandemic, most states set up processes to handle COVID-19-related noncompliance. Environmental agencies in Maryland, Virginia, and Pennsylvania received dozens of waiver requests related to water, land, and air quality protections, pollution controls, sampling and monitoring, inspections, and critical infrastructure deadlines.

A majority of these requests were related to the pandemic. But others, such as those seeking to delay important deadlines for construction projects, were not. This suggests that some polluters are using COVID-19 as an excuse to subvert or delay deadlines that prevent further air or water pollution.

Some companies requesting waivers violated environmental standards before the pandemic —highlighting a track record of noncompliance. This could be due to lagging enforcement trends; without fines or penalties, companies have little incentive to abide by environmental laws.

How will states address noncompliance during the pandemic, especially when violations occurred and waiver requests were denied? This question remains unanswered in several states in the region.

On a broader scale, waiving environmental requirements has undoubtedly had negative impacts during this public health crisis. A glaring example: increased air pollution from industrial facilities exacerbates the risk of contracting COVID-19 and other respiratory infections.

Long-term exposure to air pollution may also worsen symptoms and chances of death from COVID-19. This is especially true for those with underlying respiratory conditions, which are often caused by breathing polluted air over extended periods. Some health problems are more common in communities with poor air quality, and Black and Latino families are more likely to live in these communities due to “redlining” and other forms of systemic racism. This is one reason why people of color are contracting COVID-19 at a much greater rate than the rest of the population.

An even bigger question: Have any companies ignored legal requirements to self-report violations altogether, even when they may have had a legitimate, pandemic-related excuse to do so?

An environmental advocacy group found that factories with smokestacks conducted 40 percent fewer emissions tests during the pandemic than they did over the same period in 2019. It also found that facilities failed to file more than 350,000 pollution discharge monitoring reports required under the Clean Water Act. This comes at a time when violations of environmental laws are already widespread — with noncompliance rates as high as 70 percent for some federal programs.

Failing to monitor pollution levels or report violations anytime, let alone during a pandemic, does a serious disservice to the public. Communities must be notified when nearby facilities are or may be polluting at unusual levels so they're aware of the associated hazards and potential health impacts.

It’s unclear whether any Chesapeake Bay state proactively informed or educated communities about unusual amounts of nearby pollution after a facility was granted an environmental compliance waiver. It's also unclear that any state proactively informed industry of its obligations, as EPA’s policy suggested.

Below is an overview of how Maryland, Pennsylvania, and Virginia responded to EPA’s enforcement discretion policy and handled case-specific requests for environmental noncompliance.


Maryland

The Maryland Department of the Environment (MDE) received 71 requests from companies to waive environmental laws, regulations, or permits for purposes allegedly related to the pandemic.

  • Thirty-six waiver requests related to land, 19 to air, and 16 to water.
  • Of those, only 10 were denied; decisions about eight others are pending.
  • Of the remaining 53 requests, 33 (62 percent) were for time extensions of permit or other legal requirements, such as delayed monitoring or construction timelines.
    • 14 (27 percent) were minor, such as requests to move from paper to electronic reporting or to change operating hours.
    • The remaining six (11 percent) involved changes to permit requirements regarding sterilized medical waste, as well as the type of cover material used at a landfill.
  • Many pending requests involve various consent decrees, including Baltimore City's Department of Public Works' much-needed sewage infrastructure upgrades.
  • The state has not taken any enforcement actions or issued any fines or penalties against facilities whose requests were denied, even when there may have been a violation of permit terms.

When EPA’s enforcement discretion policy expired at the end of August, the state still had not (a) published any waivers concerning the pandemic online; (b) stated a clear decision-making policy for waiver determinations or permittee obligations on its website; (c) notified all permit holders of legal requirements to provide immediate notice to the state of noncompliance related to the COVID-19; (d) suspended or taken an official position on non-emergency proceedings; or (e) extended comment periods during the declared emergency.

In September, MDE updated its website to include a list of all the waiver requests it had received from regulated entities. It also added new language clarifying permittees’ obligations during the pandemic and listing a point of contact for compliance and enforcement inquiries.

Pennsylvania

The Pennsylvania Department of Environmental Protection (DEP) granted 43 waiver requests from regulated entities. The total number of requests received was not made public, so it’s unclear how the department enforced violations or whether it issued any fines or penalties for noncompliance.

  • Twenty-two air-related requests, 16 land-related requests, and five water-related requests were granted.
    • Twenty-nine (67 percent) were for time extensions of permit or other legal requirements, such as delayed monitoring, permit renewal, testing or construction timelines.
    • Eight (18 percent) allowed permittees to pollute above permit limits.
    • The remaining six (15 percent) were minor, such as requests to change operating hours at facilities.
  • The department stopped accepting requests for temporary suspension of regulations or permit conditions on July 1.

By the time EPA’s enforcement discretion policy expired at the end of August, DEP had (a) made granted environmental waivers along with its decision letters publicly available (but not denied or pending waivers); (b) stated a clear decision-making policy for waiver determinations on its website; and (c) included language on its website reminding permit holders of legal requirements to immediately notify the department of any noncompliance related to COVID-19. The department has not, however, suspended or taken an official position on non-emergency proceedings, nor has it extended open comment periods.

While the department did not make public any of the denied or pending waivers, it did respond to EPA’s policy in an expeditious and clear manner by including comprehensive information on its website shortly after the policy was issued. Decision letters for the granted waivers also included information about the environmental and health impacts associated with noncompliance, demonstrating that the agency at least considered the effects of its decisions. It’s unclear whether DEP actively notified all permit holders of their obligations.

Virginia

The Virginia Department of Environmental Quality (DEQ) received 115 waiver requests from regulated entities.

  • Seventy related to water, 24 related to air, and 14 to land. Seven enforcement-related waiver requests were submitted.
  • Of those, 58 were denied and five were dismissed due to a lack of violation or agency authority. Decisions about 29 are pending. For a substantial majority of requests it denied, the agency chose to register only the violation in its database; it did not assign points or other fines or penalties to most permittees in violation.
  • Eighteen (78 percent) of the remaining 23 requests were for time extensions of permit or other legal requirements, such as delayed monitoring or construction timelines.
    • Two (9 percent) dealt with pollution exceeding the facility's permit terms. Three (13 percent) were minor, such as requests to move from paper to electronic reporting or to change operating hours at facilities.

By the time EPA’s enforcement discretion policy expired, the department still had not (a) made any waivers concerning the pandemic publicly available online; (b) actively notified all permit holders of legal requirements to immediately notify the department of non-compliance related to the COVID-19; (c) suspended non-emergency proceedings; (d) coordinated with other state agencies to achieve enhanced whistleblower protections; or (e) extended open comment periods. In June, the department issued guidance that requires “regulated entities communicate early and often regarding compliance issues that arise due to COVID-19 disruptions.” Unlike Maryland and Pennsylvania, Virginia’s environmental department still has not publicly posted any case-specific information related to COVID-19 waiver requests.

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