Ever since the U.S. Environmental Protection Agency (EPA) issued a dangerous (and now-rescinded) policy relaxing enforcement of environmental protections in March, the Center for Progressive Reform has watchdogged responses from state environmental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.
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.
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.
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.
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.
The Virginia Department of Environmental Quality (DEQ) received 115 waiver requests from regulated entities.
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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Katlyn Schmitt | December 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 the three states we monitored 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.
Darya Minovi, Rebecca Bratspies | December 9, 2020
On October 22, millions of Americans watched the final presidential debate, taking in each candidate's plan for oft-discussed issues like health care, the economy, and foreign policy. Toward the end, the moderator asked the candidates how they would address the disproportionate and harmful impacts of the oil and chemical industries on people of color. President Trump largely ignored the question. But former Vice President Joe Biden addressed it head on, sharing his own experience growing up near oil refineries and calling for restrictions on "fenceline emissions" -- the pollution levels observed at the boundary of a facility's property, which too often abuts a residential neighborhood. Less than three weeks later, Biden was elected president of the United States, making it possible for him to turn his campaign promises into action.
Laurie Ristino | December 8, 2020
At long last, we’ve reached “safe harbor” day, when states must resolve election-related disputes. Under federal law, Congress must count votes from states that meet today’s deadline. Donald Trump is essentially out of time to steal a second term; our democracy, it appears, will survive, at least for now. The last four years have been an urgent call to action to reclaim our democracy, to fix it, to reimagine it. The good news is we can use the tools of democracy to do so. The Center for Progressive Reform is launching Policy for a Just America, a major new initiative to repair and reimagine government. We’re developing a series of policy recommendations and other resources to advance justice and equity and create a sustainable future. We’re also using advocacy and media engagement tools to inform the public about the urgent need for reform and how to achieve it across all levels of government.
William Funk | December 7, 2020
Everyone who has studied what agencies in fact have done have concluded that agencies have largely failed in complying with varying retrospective review requirements. What is to be done? The Department of Health and Human Services (HHS) has a proposed answer: absent a retrospective review within a designated period, sunset the regulation.
Daniel Farber | November 20, 2020
It's clear that EPA has a central role to play in climate policy, but EPA does not stand alone. Other agencies also have important roles to play. Fortunately, the Biden transition team seems to have come to this realization.
Amy Sinden, James Goodwin | November 18, 2020
After taking their oaths of office in January, newly minted President Joe Biden and Vice President Kamala Harris will face a number of daunting challenges: the ongoing pandemic and economic downturn; structural racial and ethnic injustice; widening economic inequality; inadequate access to affordable health care; and climate change. And Congress, facing the prospect of divided control, is unlikely to respond with robust legislative solutions that the American people expect and deserve. The good news is that Biden and Harris will be able to meet these challenges head on by revitalizing governance and making effective use of the federal regulatory system. Better still, they can do so in a way that delivers justice and equity for all Americans.
Laurie Ristino | November 4, 2020
CPR is committed to meaningful public participation in all of America’s democratic institutions. We believe such participation is essential for ensuring more just and effective policies, but also for imbuing those policies with legitimacy and public confidence. Public participation is critical to empowering all Americans to have their say in our centuries-long project of forming a more perfect union.
David Flores | November 4, 2020
With the climate and COVID crises at the fore, state and local environmental regulation and decision-making in has taken on greater weight in Virginia. As CPR Policy Analyst Katlyn Schmitt points out in a new paper, there is still some low-hanging fruit to be picked before Virginians can be equitably served by and participate in the Commonwealth’s environmental decision-making process.
Matthew Freeman | October 30, 2020
After 17 years with CPR, media consultant Matt Freeman signs off.