Late last month, the Trump administration announced that it would ease up on requirements for facilities to monitor and report their pollution during the COVID-19 pandemic.
A memo issued by the U.S. Environmental Protection Agency’s enforcement chief, Susan Bodine, laid out what the agency called a “temporary enforcement discretion policy.” It states that EPA won’t penalize polluters for failing to comply with monitoring and reporting rules in situations where EPA agrees that the COVID-19 crisis was the cause of the noncompliance.
“EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements,” said EPA Administrator Andrew Wheeler.
But the policy sparked an immediate backlash from critics including lawmakers, former EPA officials and advocacy groups who warn that relaxing the enforcement of environmental rules during a pandemic could exacerbate public health problems. In Maryland, advocates are concerned that the new policy could harm the Chesapeake Bay, and the health of those who rely on it for their drinking water and their livelihood.
“Look at the track record of this administration. They use every reason in the world to cut back on regulations to protect our environment, to deal with public health issues, whether it’s clean water or clean air,” U.S. Sen. Benjamin L. Cardin (D-Md.) told Maryland Matters.
“Now they’re using a very serious public health reason to try to carry out an agenda that’s unrelated to the public health,” he added.
Cardin and Maryland’s other U.S. senator, Chris Van Hollen (D), both serve on the Senate Environment and Public Works Committee, which oversees the EPA.
The Maryland senators joined their colleagues in sending a letter to EPA this month warning that the agency “must not allow enforcement discretion to be used as a license to pollute freely. EPA must also ensure that these measures are taken only as necessary, and with full transparency.”
Van Hollen told Maryland Matters he’s concerned about the implications of the EPA memorandum because “there was already a pattern from the Trump administration of giving free license to big polluters.”
States take case-by-case approach
Former Obama EPA officials have also slammed the Trump administration’s announcement.
Cynthia Giles, who led EPA’s enforcement shop under the Obama administration, signed on to a letter to the agency that opposes any blanket or advance waiver of environmental rules.
The suspension of monitoring and reporting requirements would directly impact public health and safety, they wrote. “Actions that obscure the release [of] toxins or other air pollutants that exacerbate asthma, breathing difficulty, and cardiovascular problems in the midst of a pandemic that can cause respiratory failure is irresponsible from a public health perspective.”
Former Obama EPA administrator Gina McCarthy, who’s now the head of the Natural Resources Defense Council, called the EPA order an “open license to pollute,” and said the Trump administration is taking advantage of the COVID-19 crisis to “do favors for polluters that threaten public health.”
EPA’s policy could have a limited impact for states that aren’t under the agency’s enforcement jurisdiction. That includes Maryland, where Secretary of the Environment Ben Grumbles said the state wouldn’t be following EPA’s lead.
“We understand we may need to exercise discretion in enforcement of environmental regulations on a limited, case-by-case basis during a disaster, but Maryland is not issuing a broad upfront policy as EPA is doing,” Grumbles said in a statement.
He added, “We have concerns about aspects of the national memo on enforcement discretion but are in daily discussions with EPA, states, and communities to ensure states have the ability to adopt stronger, more customized approaches. That’s the best way to keep making historic progress on one of Governor [Lawrence J.] Hogan’s top priorities: restoring the Chesapeake.”
Other states in the region have pledged a similar approach.
Virginia Department of Environmental Quality Director David Paylor issued a statement after EPA’s announcement saying that all “regulated entities are expected to make every effort to comply with environmental compliance obligations, adhere to permit limits, and maintain the safe and environmentally protective operation of their facilities.” State officials would consider making exceptions on a case-by-case basis, he said, “but by no means does this crisis equal a free pass for the regulated community.”
In Pennsylvania, the Department of Environmental Protection “is continuing to enforce environmental law and regulations that have been delegated to Pennsylvania from the federal government, as well as relevant state laws,” said department spokesman Neil Shader.
The state will review requests to waive certain requirements, he added, but those “would be considered only on a case-by-case basis, not a blanket policy.”
Polluters may ‘take advantage’
Van Hollen called it “good news” that Maryland has indicated it will continue its enforcement activities, but he’s still concerned about how the federal policy will impact the state.
For example, enforcement in Washington, D.C., falls under federal jurisdiction. “I definitely have concerns there,” Van Hollen said.
The Chesapeake Bay Foundation sent a letter to EPA in March warning that, for example, the policy could impact a wastewater treatment plant under federal enforcement jurisdiction, like Blue Plains in southeast D.C.
The massive plant treats wastewater from Washington as well as several counties in Maryland and Virginia and returns water to the Potomac River — a Chesapeake Bay tributary — after it’s cleaned. The plant is the largest single point source discharger to the Bay.
If a large wastewater treatment plant like Blue Plains “were to stop complying with its permit terms, millions of citizens would be at risk for waterborne disease including COVID-19,” the Chesapeake Bay Foundation told EPA.
Van Hollen said officials have worked for years to improve technology at that plant, “so I don’t expect them to be noncompliant.” But, he said, “there may be others that take advantage or exploit this opportunity.”
An EPA spokesperson said the temporary enforcement policy does not excuse compliance with any water discharge limitations.
If Blue Plains, for example, were unable to meet its discharge limitations as a result of the COVID-19 public health emergency, “EPA would consider that a factor in determining the appropriate enforcement response only if Blue Plains made every effort to comply with their permit limits, notified its regulators, and provided the information requested in the policy,” the spokesperson said in an email.
Lisa Feldt, vice president for environmental protection and restoration at the Chesapeake Bay Foundation, said her organization is particularly concerned that EPA’s memorandum doesn’t require facilities to notify the public when they’re seeking enforcement waivers.
“The concept of public disclosure and public notice when you have a release is incredibly fundamental and a right and a requirement under the Clean Water Act,” Feldt said in an interview. “I think the longer this goes on, the possibility in this watershed or in any watershed, a violation occurring that impacts human health and the environment and the health and safety of the public is very problematic without full disclosure.”
Angela Haren, director of legal innovation for the Chesapeake Legal Alliance, said a consent decree to repair Baltimore’s sewer system and stop wastewater from leaking into the Inner Harbor by 2030 could also be impacted by EPA’s enforcement policy. Baltimore City informed the Maryland Department of the Environment and EPA they expect to have delays of their milestones under the consent decree due to the pandemic, Haren said, but she hasn’t seen the specifics of the request, and advocates are hoping to get more details.
MDE spokesman Jay Apperson confirmed that the department had been contacted by Baltimore City, which expressed concerns about meeting schedules in the consent decree due to COVID-19.
“We hope that the City is transparent about the efforts it is undertaking to protect residents from untreated wastewater,” Haren said.
‘A bad signal’
EPA has the authority to use its enforcement discretion during crises, and the agency has done so in the past.
In the aftermath of Hurricane Katrina, for example, lawmakers questioned whether environmental regulations could hamper response efforts, A 2005 report from the Congressional Research Service found that “environmental regulations do not appear to have posed an obstacle to local, state, federal, or private response efforts, in part because existing waiver or flexibility provisions were used in certain cases.”
Still, some question whether the agency should have publicized its enforcement shift during the COVID-19 pandemic.
The administration’s memo is “technically unnecessary and merely sends the wrong message at the wrong time: that environmental compliance is not a priority, and those in charge of safely operating facilities that pollute are no longer required to protect public health and the environment,” according to an explanation from the Chesapeake Legal Alliance about what the policy means for the Bay.
Haren compared it to law enforcement deciding it wasn’t going to issue speeding tickets. “It’s one thing” if they decide to do it quietly, she said, but another thing to broadcast the move publicly.
“There’s no reason that they had to publicize that they had the authority to not enforce the law,” said Evan Isaacson, the Chesapeake Legal Alliance’s director of policy and research. “It was a bad signal.”