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Regulating While Sheltering

State agencies are on the front lines of environmental protection. Will their work survive the pandemic?

on Apr 14, 2020

About a week after Pennsylvania Governor Tom Wolf announced a statewide shutdown, a journalist and activist in the western part of the state obtained video that appeared to show a large nearby storage tank leaking reddish-brown fracking wastewater.

Melissa Troutman, who co-founded a local muckraking publication and also works for the environmental nonprofit Earthworks, knew that fracking waste could be radioactive and toxic, so she filed a complaint with the state Department of Environmental Protection (DEP). Within a few hours, she received a surprising response: The agency would “look into the leak at the tank farm after the shutdown concludes.” With no end in sight to the nation’s coronavirus outbreak, Troutman was alarmed that the tank would leak indefinitely, potentially poisoning the surrounding land.

Troutman decided to share screenshots of the video with Grist. After Grist contacted the DEP to confirm Troutman’s account, the environmental agency sent an inspector to investigate. They found that what initially appeared to be a leak was, in fact, rust-colored staining from a previous leak that had been fixed. An agency spokesperson said that the DEP contacted JKLM Energy, the company that owns the storage tanks, after Grist contacted the agency. JKLM Energy provided photos to confirm the tanks weren’t leaking, and the agency concluded there was no evidence to suggest “the health of the local community [was] at imminent risk,” as Troutman suspected.

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But Troutman isn’t satisfied with the agency’s response.

“Because of the reporter attention, they’ve changed their tune,” she said. “They only do the bare minimum when it comes to public health. But when it comes to industry, they use discretion.”

The DEP, for its part, says that additional safety features of the facility would have prevented a spill from spreading to surrounding areas, even if one had occurred. In any case, the agency planned to inspect the facility in a few days, a spokesperson told Grist.

photo of tank farm leak
The discoloration surrounding one of the storage tanks, seen here in an image taken from drone footage, prompted Melissa Troutman to file a complaint with the Pennsylvania Department of Environmental Protection. Courtesy of Public Herald

The incident highlights a key challenge that state environmental agencies are facing as local leaders across the U.S. announce shelter-in-place orders and social distancing measures. Regulatory agencies still have to enforce statutorily-mandated environmental requirements — which often require travel and human contact — while at the same time minimizing risks for their employees and doing their part to help contain the virus.

In states where many residents already consider environmental regulators too cozy with the polluting industries that form the bedrock of local economies, the balancing act could further erode public trust at a critical time — no matter how well it’s pulled off. The stakes are high: Research is beginning to show that poor air quality is linked to a higher rate of fatality among those who contract COVID-19, and people of color who are disproportionately exposed to pollution are among the worst hit by the virus.

The Environmental Protection Agency (EPA) has delegated states substantial authority to enforce several major environmental programs under the Clean Air Act, Clean Water Act, and other federal laws. As a result, state agencies are primarily responsible for assessing when companies violate those laws.

“Typically the state is presumed to have the lead role for most enforcement matters,” said Tracy Hester, an environmental law professor at the University of Houston. “If it’s delegated [to the] state, state carries water.”

In order to better understand how state environmental regulators are adapting to the crisis, Grist contacted six agencies representing Texas, Pennsylvania, Colorado, New Mexico, Washington state, and New York. We found that most states have scaled back field inspections to some degree, set up processes to receive documents online, and asked companies to submit requests for enforcement discretion if they want to claim that they’re unable to meet regulatory requirements due to the pandemic. When inspectors go out into the field, they’ve been instructed to wear protective gear and call ahead to determine whether there have been COVID-19 cases at the facilities they’re inspecting.

“The worst-case scenario for us would be if we have our folks exposed as well as the people in drinking water plants or sewage treatment plants,” said John Putnam, director of environmental programs at the Colorado Department of Public Health and Environment. “If too many of them get sick, we’re going to have a hard time protecting the environment in the weeks to come. So we’re trying to look at the long game.”

Ongoing Fieldwork

Field inspections are a critical part of an environmental agency’s mission. Broadly, agency inspectors are out in the field to either conduct routine inspections of industrial facilities or to investigate a complaint. Many states have halted routine inspections, particularly those that require company representatives to be present during the inspection.

Though Putnam’s concern for employees’ safety was echoed across all six agencies surveyed by Grist, differences in enforcement approaches did emerge. Some states are suspending all inspections, others are continuing with business as usual, and many fall somewhere in between based on their analysis of the risks and benefits of sending inspectors into the field.

After Washington Governor Jay Inslee issued a shutdown order, the state Department of Ecology suspended all routine inspections and audits, except for cases where inspections are necessary for the imminent protection of public health or safety, such as during dam construction and repair. In New Mexico, the oil and gas regulatory agency has also announced that its inspectors “will not be performing any inspections that require other parties to be on site.”

Other states, however, are assessing risk on a case-by-case basis to give themselves more flexibility to potentially continue their normal work. The Colorado agency’s field inspection team went on a two-week hiatus while staff received training and the agency secured personal protective equipment. Before inspectors visit a facility, they now call the employee they expect to meet to ask if they’re exhibiting any symptoms of COVID-19 or have been in contact with anyone who has tested positive.

Texas, too, is continuing routine investigations “as circumstances allow.” The state is also permitting companies to substitute photographs and documentation in place of physical inspections wherever possible. Brian McGovern, a spokesperson for the Texas Commission on Environmental Quality, said that staff have also offered companies the option to meet by video instead of in person.

All six state agencies Grist contacted said staff were responding to emergencies that put public health and safety at risk. In the last couple of weeks, the Texas and Pennsylvania environmental agencies have responded to more than two dozen complaints about fish kills, odor from a controlled burn at a wildlife preserve, drinking water supply concerns, and manure spills, among other issues.

A dead carp floats in water contaminated with manure spills and runoff from farm fields. Charlie Neibergall / AP Photo

Megan Lehman, a spokesperson for the Pennsylvania DEP, said that the agency’s “first responsibility” is to protect the health of its employees and the general public, given the severity of the pandemic. The agency is prioritizing inspections of critical infrastructure such as drinking water and sewage treatment facilities and cases where there’s an imminent threat to public health, she said. Field inspections can create risks under the current circumstances because staff now have limited access to offices, vehicles, equipment, and support services — all of which are helpful if inspectors find themselves having to navigate an emergency, such as a vehicle breakdown.

“Such a decision must be made carefully,” Lehman said.

Discretionary Enforcement

State agencies are poised to play a particularly important role during the pandemic. The EPA announced last month that it would not issue fines to companies that fail to meet certain monitoring and reporting requirements. Environmental advocates say that the federal agency’s new policy is too broad and essentially places a moratorium on enforcement while the crisis plays out. The rollback also comes at a time when many industries are facing enormous financial pressure, potentially providing an incentive for unscrupulous companies to cut corners.

“I can see a company trying to operate in oil and gas, where prices have cratered — they’re anxious and distracted,” said Eric Shaeffer, executive director of the Environmental Integrity Project and a former director of the EPA’s Office of Civil Enforcement. “That’s understandable, but it doesn’t let you off the hook. I don’t get to speed now because of coronavirus.”

Many state agencies are largely following the EPA’s lead in offering to exercise discretion in cases where companies say they are suddenly unable to comply with environmental rules. States have either set up email inboxes specifically to receive requests for enforcement discretion or posted points of contact for such requests.

The Oregon Department of Environmental Quality has said it will use “reasonable discretion” in deciding when to pursue enforcement. In New York, a spokesperson for the Department of Conservation said the agency expected companies to document compliance challenges with a “reasonably direct connection to the COVID-19 emergency.”

“We’ve tried to get really creative in our processes,” said Adrienne Sandoval, director of New Mexico’s oil conservation division, referring to systems her division has set up to accept online applications. “We’re just trying to act and make sure that we’re still doing our job … while also making sure that our staff is safe.”

Ultimately, whether exceptions are made during the pandemic depends on how state agencies respond to those requests. Schaeffer said that there are legitimate reasons why businesses may not be able to comply with environmental regulations during the crisis — and that such enforcement requests aren’t inherently a sign of companies trying to cut corners. But those requests need to be scrutinized carefully, he said, and should not be granted without careful consideration. “It creates a wider range of excuses for some companies who can be fairly confident that claims of coronavirus won’t be followed up,” he said.

The Texas Commission on Environmental Quality (TCEQ), for instance, said in an advisory email that if “noncompliance is unavoidable directly due to impact from the coronavirus,” it will consider requests for enforcement discretion. Such requests will be “expeditiously addressed” and companies will receive a response within 24 to 48 hours, it noted.

A Texas Commission on Environmental Quality mobile unit monitors air quality near Houston, before the COVID-19 pandemic. David J. Phillip / AP Images

McGovern, the TCEQ spokesperson, said that the agency has received 73 requests from 45 companies as of April 5. The majority of requests were to allow delays in submitting reports as outlined in their permits. Some companies use third-party contractors to collect and report data, and with the shelter-in-pace orders, contractors are either not able to travel or companies are choosing to limit access to protect their workers, he said.

In contrast, some state agencies have responded with strongly-worded guidance documents to drive home the point that the pandemic does not provide a pass to pollute. In a March 17 advisory, the Colorado Department of Public Health and Environment stated that “regulatory requirements remain in place and must be followed.” The agency also released a three-page document answering questions about requests for permit extensions and submitting documents electronically. After the EPA’s announcement, it followed up with a press release highlighting its enforcement work to hold an oil and gas company accountable for emitting pollutants in excess of its permit limits — even during the pandemic.

An agency spokesperson said that its air pollution division has granted 12 enforcement discretion requests so far. Ten of those were for delaying emissions tests or audits of emission monitors.

Schaeffer and other environmental advocates have good reason to be concerned about enforcement at the local level. A 2019 Environmental Integrity Report found that between 2008 and 2018, 30 states — including Texas, Louisiana, and Pennsylvania — slashed their environmental agencies’ budgets.

For instance, the Pennsylvania DEP’s funding decreased by 16 percent, even as the state budget grew 18 percent and oil and gas companies drilled more than 19,000 new wells. In 2016, the EPA warned the agency that its drinking water inspectors were overworked and were handling double the number of average cases nationwide. “This kind of excessive workload is not sustainable and program performance will continue to suffer,” it noted. (The DEP raised fees on public water systems to hire more inspectors in 2018.)

Environmental groups and community advocates say that, as the crisis unfolds, the lack of transparency from the EPA and some state agencies makes it challenging to assess how they’re responding to the energy industry’s requests for leniency.

Patrice Simms, vice president for healthy communities at the nonprofit Earthjustice, said that his group will “continue to keep an eye on both what EPA is doing and what we’re hearing from state enforcement authorities,” especially if it’s likely to increase the pollution burden for local communities. “The simple truth is that this is not the time to be cutting public health regulations — during a public health crisis.”

Grist senior staff writer Yvette Cabrera contributed reporting to this story.