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Top Maryland environment official concerned about EPA coronavirus policy, state continues pollution inspections

The coronavirus pandemic has affected all aspects of daily life, and the monitoring and work that goes into ensuring businesses and states comply with air and water quality laws is no exception.

Through the federal Clean Water Act and Clean Air Act, the Environmental Protection Agency is tasked with monitoring and ensuring environmental compliance by states and facilities, including places like power plants, wastewater treatment centers and animal feeding operations, in the interest of public health.

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But because of the unprecedented crisis caused by the virus, EPA officials said they will not penalize entities who commit civil violations related to monitoring and reporting if the disturbance was caused by the virus.

The seven-page policy isn’t a license to pollute, Susan Bodine, assistant administrator for enforcement and compliance assurance, said in a letter to Congress last week, but rather a necessary step to ensure the continuing operations of the nation’s critical infrastructure and to safeguard workers.

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“It is in the public interest to allow critical infrastructure to remain operational while also allowing workers to exercise social distancing by moving to shift work and reducing the number of people at a facility at any one time,” Bodine said.

Maryland is not implementing such a policy, according to Secretary of Environment Ben Grumbles, who is concerned about the Environmental Protection Agency’s decision.

“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. "Maryland remains fully committed to requiring compliance and we will continue to use enforcement as needed to protect the quality of our air, water, and land throughout the state and the Chesapeake Bay region.”

Spokesman Jay Apperson said by email that inspections are continuing, and enforcement discretion will be used only after a case-by-case review. What happens out of state can make a big difference in the hearts and lungs of Marylanders, Grumbles said.

“We are always concerned about what happens upwind of us. With cutting-edge science to track air pollution and legal safeguards under the federal Clean Air Act, we continue to press EPA and others in federal court to increase control of ozone in five states and to press the 13-state regional Ozone Transport Commission to petition EPA to require PA to do as much as we do in Maryland on controlling smog pollution from power plants," he said in a statement.

The EPA, however, has said that it oversees too many states, sectors and facilities to make those decisions upfront during the crisis. To do so would overwhelm the federal agency and affect operations, Bodine said in a letter to Congress last week.

“Making facility-specific determinations at this time regarding the impact of the pandemic would truly shutdown EPA’s enforcement and compliance assurance program,” she wrote.

Instead, they are asking organizations to document any noncompliance issues caused by the virus, which they will look at on a case-by-case basis when the pandemic passes. Bodine said the policy will allow the agency to focus on imminent threats and risks.

“The temporary policy clearly states that EPA is not seeking penalties for noncompliance only in circumstances that involve routine monitoring and reporting requirement, if, on a case-by-case basis EPA agrees that such noncompliance was caused by the COVID-19 pandemic,” Bodine wrote.

In cases where the pandemic causes failure of pollution controls or other equipment resulting in excess pollution, the EPA said its willingness to consider waiving penalties is conditioned on whether or not the entity notifies regulators to mitigate the threat.

In a media release by EPA, Chuck Conner, president of the National Council on Farmer Cooperatives, said the move will help protect workers as governments encourage social distancing to fight the spread of the virus.

“Non-emergency compliance visits by EPA staff represents a real risk to the health of employees and should be treated as any other nonessential visit to the farm or facility,” he said.

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The EPA policy drew derision from environmental advocates such as the Chesapeake Bay Foundation, which sent a letter to expressing concern about the approach.

“There is no requirement for public notice of the non-compliance, the location of the pollutant discharge, the pollutant being discharged or its potential impact on human health and the environment,” the foundation wrote. “Thus, your memorandum fails to adequately protect public health and our natural resources.”

Through the Environmental Integrity Project, the Chesapeake Legal Alliance, Chesapeake Climate Action Network and Waterkeepers Chesapeake all signed a letter expressing concern to Bodine.

“We understand the coronavirus is a public health emergency that may require a flexible response from EPA. That response must be tailored to specific and appropriate circumstances and not offer a blanket waiver of requirements that many companies that are up and running may have no trouble meeting.”

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