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Bay Journal: How EPA, State Environmental Regulators Loosened Pollution Reins During Early Days Of COVID Pandemic

By Jeremy Cox & Timothy B. Wheeler, Chesapeake Bay Journal

Dozens of power plants, factories and other facilities across the Chesapeake Bay watershed were given latitude to skip pollution-monitoring deadlines, file late reports or release more pollutants during the early days of the COVID-19 pandemic, a review of public documents shows.

In March, the U.S. Environmental Protection Agency announced a controversial policy, suspending the enforcement of a swath of environmental laws. [Read more here.]

Top officials at the agency said that the “enforcement discretion” strategy was necessary to allow industries to safely comply with social-distancing rules and lockdowns.

Several environmental groups and states sued to undo the agency’s action. The EPA quietly ended the policy on Aug. 31.

In the Bay region, most of the compliance is handled by the states rather than the EPA. They, to varying degrees, followed the federal agency’s lead.

But the advice that the Virginia Department of Environmental Quality air regulators provided power plants and industries illustrated the uncertainty about how to handle oversight in the early days of the pandemic: “Do the best you can and stay tuned.”

Public records show that state agencies denied the majority of the requests for leniency, though some — including one for a manufacturer of toilet paper — were granted.

Some environmentalists and public health advocates fear that the allowed suspensions undertaken during those five months in the spring and summer inflicted lasting damage.

In the spring, when stay-at-home orders emptied workplaces and cleared roads of traffic, air pollution dropped dramatically. But experts warned those gains would be short-lived, and by summer restrictions had eased.

In some places, conditions worsened. One widely cited study found that in U.S. counties with six or more EPA-monitored facilities, air pollution increased 13 percent after the policy was enacted.

The American University study, released in July though still undergoing peer review, also showed that those counties reported nearly 40 percent more COVID-19 cases and 20 percent more deaths from the virus compared with counties with fewer facilities.

“This suggests that increases in pollution have relatively large effects on COVID outcomes, probably because it causes COVID symptoms to worsen,” said Claudia Persico, the study’s lead author. “So, some people with severe cases might end up dying because of exposure to pollution.”

And even though most waivers dealt with reporting and monitoring requirements rather than pollution limits, environmentalists said those also could have led to significant pollution.

Katlyn Schmitt, an analyst with the nonprofit Center for Progressive Reform, said that “all those extensions of testing, monitoring and reporting really go to whether our facilities are in compliance with permit terms … You could arguably say facilities have no way of knowing if they’re in compliance if they’re not monitoring.”

The Bay Journal sought public records in each of the Bay region’s six states as well as the District of Columbia, showing how many enforcement waivers they had received and how many were approved or denied.

The agencies’ information-gathering and reporting methods were too spotty to paint a full picture of the policy’s impact. Here is a state-by-state breakdown.

Pennsylvania

During the first wave of the pandemic, the Pennsylvania Department of Environmental Protection approved 43 requests for temporary suspension of regulations or permit conditions, but officials denied 200. [Read more here.]

Many granted requests sought extensions on filing required reports or checking pollution controls because businesses were temporarily shut down or staff reduced. But some said they needed waivers to maintain production or operations deemed “life-sustaining” under Gov. Tom Wolf’s orders.

The Kimberly Clark Corp. asked the DEP to let it exceed air pollution limits for boilers at its Chester Mill plant, which makes toilet paper — a commodity that flew off retail store shelves early in the pandemic.

The company said it had been in the process of replacing the old boilers with a new, cleaner cogeneration unit but had to suspend construction during the pandemic. If not granted a waiver on its permit, Kimberly Clark said it would have to cease its efforts to ease the toilet paper shortage.

Several requests came from health-care facilities and pharmaceutical manufacturers, including Sanofi Pasteur, which produces vaccines at a sprawling 600-acre facility in Swiftwater in Monroe County.

The company said it needed to make immediate changes to its operations to join the fight against the coronavirus and couldn’t wait for the DEP to process the needed permits.

“Not being able to secure suspension of the applicable regulations will likely delay and/or lead to greater risks in the anticipated COVID-19 vaccine development research activities,” the company informed the DEP.

In the Bay watershed, candy and food maker Mars, which is headquartered in Elizabethtown, asked to skip testing emissions from its factory smokestacks because it had limited the number of personnel onsite during the early months of the pandemic.

And Sterman Masser, Inc., one of the nation’s leading potato producers, asked for a waiver from sediment and erosion control plans on four Pennsylvania farms to plant 1,000 acres in spuds this year.

Pandemic-fueled consumer demand, coupled with a poor harvest last year, had depleted its reserves. Without that approval, it warned of a potato shortage.

The DEP’s website says it stopped accepting requests July 1.

Maryland

In September, after receiving inquiries from the Bay Journal and others, the Maryland Department of the Environment posted on its website a list of requests it had received for pandemic-related regulatory relief. That list had grown to 71 by early November, when the MDE updated it.

Most of the requests were for extensions of time to file monitoring reports on water discharges or air emissions because facilities were either closed or staffing reduced. The MDE’s updated list shows that 50, or 70 percent were granted, while 10 were denied and 11 were pending.

Among those denied: Baltimore city, Baltimore County and the Washington Suburban Sanitary Commission, which operate the state’s largest drinking water and wastewater treatment systems.

They all asked for leniency on consent decrees that automatically penalize them for sewage overflows or failures to meet deadlines on mandated upgrades.

The MDE has not conducted reviews of those entities’ consent decree compliance since the pandemic began, said spokesman Jay Apperson, and so has not cited them to date for any violations during that period. “Moreover, MDE is not aware of any spills or increased emissions attributable to the pandemic,” Apperson said.

The MDE, like other Bay state regulators, sent its staff home and stopped field inspections of construction sites for several weeks at the height of the pandemic.

Some environmental activists contend that the state should have shut down construction during that time if it wasn’t able to monitor those projects, which frequently fail to prevent erosion and sediment pollution of streams.

“If you’re going to pull inspectors for public health reasons, we certainly understand that,” said Evan Isaacson, a policy analyst with the Chesapeake Legal Alliance. “But we can’t let construction continue given the frequency of violations.”

The MDE has since resumed site visits and field inspections, Apperson said.

Virginia

Mirroring the EPA’s language, the Virginia Department of Environmental Quality proclaimed it was using “reasonable enforcement discretion” with its oversight.

Ultimately, the state received 98 waiver requests through the end of August. It’s unclear from the records exactly how many were approved, but a good number were.

One was granted, for example, to S. B. Cox Ready Mix, a concrete supplier in Meherrin, after it was twice late in submitting routine discharge monitoring reports.

Another went to Cherrystone Family Camping Resort on the Eastern Shore, which blamed having twice as much pollution in its settling ponds on stagnation caused by shutting its doors to campers.

NASA’s Wallops Flight Facility, one of a handful of sites nationwide that launches rockets into space, also got a reprieve. NASA officials requested a 30-day extension on April 6 on the deadline to haul away hazardous waste, citing restrictions on interstate travel. The waste was removed May 27.

West Virginia

West Virginia’s Department of Environmental Protection didn’t provide a full account of waiver requests. But it relayed several examples, including a 30-day extension on a deadline to dispose of industrial waste at a Chemours chemical plant in Belle.

In another case, the agency allowed the Berkeley County Public Service Sewer District to accept nearly 50 percent more industrial wastewater, effective April 7, from a nearby Procter & Gamble plant.

The wastewater treatment plant attributed the higher flows to an increase in production amid the pandemic at the P&G facility, which manufactures cleaning supplies and dryer sheets.

The treatment plant receiving the additional waste empties into Opequon Creek, about 12 miles upstream from its outlet at the Potomac River. The waiver period ended July 1.

On March 27, the West Virginia Manufacturers Association had requested the state’s Department of Environmental Protection to extend all permits, regulations, renewals and compliance deadlines by at least 60 days beyond the lifting of the Gov. Jim Justice’s lockdown order. Not to be covered: reporting spills, discharges or other time-sensitive events.

No such blanket waiver was granted, said DEP spokesman Terry Fletcher. “If a company had a specific issue that was COVID-related, they were told to address it to the appropriate division director and those requests would be looked at on a case-by-case basis,” he said.

District of Columbia, Delaware & New York

As in other Bay states, inspections were put on hold in the spring in the District of Columbia, according to a spokesman for the Department of Energy and Environment. He said the department did not receive any requests for waivers but did not provide any further information.

In Delaware, environmental regulators said they had no reporting waiver requests for either stormwater or groundwater pollution related to the pandemic. The state recorded four late discharge monitoring reports through the first nine months of 2020, three of which were tied to one facility.

The New York Department of Environmental Conservation, in an April 15 memo from attorney Thomas Berkman, said that the EPA’s suspension had no bearing on the state’s enforcement of environmental laws.

He added, though, that the department would evaluate waiver requests in the context of the ongoing pandemic emergency.

The Bay Journal is awaiting records requested from the agency.

[PA Chesapeake Bay Plan

[For more information on how Pennsylvania plans to meet its Chesapeake Bay cleanup obligations, visit DEP’s PA’s Phase 3 Watershed Implementation Plan webpage.

[Click Here for a summary of the steps the Plan recommends.

[How Clean Is Your Stream?

[DEP’s Interactive Report Viewer allows you to zoom in on your own stream or watershed to find out how clean your stream is or if it has impaired water quality using the latest information in the draft 2020 Water Quality Report.]

(Photo: Kimberly Clark, Chester, Delaware County.)

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