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.
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.
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.
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Naveena Sadasivam | Radio Free (2020-04-14T07:59:45+00:00) Will state-level environmental enforcement survive the pandemic?. Retrieved from https://www.radiofree.org/2020/04/14/will-state-level-environmental-enforcement-survive-the-pandemic/
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