By Timothy B. Wheeler
Maryland regulators have been taking significantly fewer enforcement actions for water pollution violations lately, a drop that environmentalists call part of a worsening nationwide trend. State officials, though, say the decrease reflects an increased effort to work with violators and prevent minor infractions from becoming major ones.
In a report submitted earlier this year to lawmakers, the Maryland Department of the Environment said that in fiscal year 2017, its water and science administration took 771 enforcement actions. That’s a 46% decline from the number reported the previous year, and the fewest since fiscal year 2008.
Evan Isaacson, a Chesapeake Bay policy analyst for the Center for Progressive Reform, a Washington, D.C.-based environmental advocacy group, said in a blog post reviewing the MDE report that he was “dismayed by the extent of the recent decline in the agency’s pursuit of violations.”
Isaacson and others have been critical the last two years of the MDE’s enforcement approach under Gov. Larry Hogan, a Republican who campaigned on a pledge to make Maryland more business-friendly. Environment Secretary Ben Grumbles has said his department puts “a priority on collaboration over confrontation,” but insisted that he’s still committed to “using our enforcement tools when we need to.”
Settling big, ongoing cases
In an interview, Grumbles acknowledged the decline in cases but said that “our focus in 2017 has been on resolving ongoing actions and bringing some big cases to closure.” He mentioned as examples the revision of the long-standing consent decree requiring Baltimore city to reduce sewage overflows and the settlement after nearly two years of a case alleging stormwater pollution violations at Baltimore Scrap Corp., a metal recycling business near the harbor. He called those cases “important and time-consuming.”
Overall, the MDE reported taking 8,249 enforcement actions in 2017 for all categories of environmental violation, including water pollution, air pollution, hazardous wastes and oil spills. That, after 2016, was the second highest number on record, but it is largely a reflection that the department’s overall enforcement figures have been inflated the last three years by a program begun under Hogan’s Democratic predecessor, Gov. Martin O’Malley, to crack down on violations of the state’s lead poisoning prevention laws and regulations.
Thousands of citations have been issued annually for failure to register rental properties or take required steps before each occupancy to reduce the risks of children’s exposure to lead paint dust.
Lowest in a decade
Excluding the lead paint violations, the MDE’s overall enforcement activity in 2017 was the lowest in a decade, the agency’s report shows.
Isaacson said he was particularly troubled by an across-the-board drop in new cases in the MDE’s “core” water pollution programs, which oversee discharges of industrial wastes, municipal sewage and stormwater, as well as the disturbance of tidal and freshwater wetlands.
The MDE took 36 administrative and civil judicial actions in fiscal year 2017 for violations of water pollution discharge permits, according to the report. That is the second lowest number since the agency began reporting its enforcement activity in 1997. Dips were also recorded for sediment, erosion, stormwater and wetlands violations. One category saw an increase: 52 enforcement actions against farm animal feeding operations, up from 10 the year before.
“Enforcement is a priority for us,” Grumbles said. “We’re going to continue to bring actions that result in formal settlements and penalties, but also we recognize that one of the best ways to continue progress on environmental results is to help prevent minor violations from becoming major violations.”
In many cases, that has meant the MDE counseled rather than cited violators, an approach Grumbles dubbed “compliance assurance.” According to the annual report, the MDE last year rendered “compliance assistance” — the same thing — roughly twice as often as it took formal enforcement action. That number also declined slightly from the previous year. Grumbles said the dip indicated a need to stress compliance assistance even more.
Grumbles pointed out that the MDE reported making more inspections, audits and spot checks of regulated facilities in 2017. That didn’t necessarily result in more violations being found, though.
For example, the MDE stepped up inspection of public drinking water systems in the wake of the scandal in Flint, Mich., where regulators failed to protect children from being poisoned by drinking water containing harmful levels of lead. The agency found no significant violations, but took 343 enforcement actions for lesser infractions; but that’s still less than half of the 714 water system enforcement actions taken in 2016, before the dragnet.
The MDE can issue corrective orders, levy penalties and sue alleged violators civilly in court. It also can refer egregious cases for criminal investigation and prosecution if deemed warranted. The attorney general’s environmental crimes unit brought 11 cases in fiscal year 2017, a slight uptick from nine the previous year but well below the number filed in each of the three years before that.
Isaacson said that he was also disappointed by the low number of prosecutions, because Attorney General Brian Frosh had been a leading proponent of environmental protections in his legislative career before being elected the state’s top lawyer in 2014.
Frosh, in an interview, acknowledged the number of environmental prosecutions brought by his office was “not impressive.” He said the environmental crimes unit had been hamstrung by a lack of staff, especially state troopers assigned to investigate cases, as well as a limited number of cases being referred to his office by the MDE.
The MDE referred 14 cases to the attorney general’s office for possible prosecution in 2017, the same number as the year before, but significantly fewer than were referred before 2015, Frosh said. The environmental crimes unit gets many more tips and referrals from other agencies or individuals, the MDE report shows.
“I think it’s highly unlikely that actual pollution from permittees has dropped significantly,” Frosh said.
Grumbles pointed out that there are signs that Chesapeake Bay water quality and Maryland’s air quality have improved of late, saying “results really do matter.”
But he added, “that’s not to justify a lack of enforcement.” He said his department has been working on some significant cases and expects to announce their resolution before the year is out.
Environmental enforcement on the decline
Isaacson said environmental enforcement appears to be on the decline generally. A February report by the Environmental Integrity Project, another DC-based advocacy group, found that the Trump administration, in its first year, lodged 44% fewer consent decrees in court for civil pollution violations and collected 49% less in penalties than the average for the three previous administrations.
The advocacy group Environment America also reported recently that EPA data found that major industrial facilities nationwide discharged more pollution into waterways than their permits allowed more than 8,100 times from January 2016 to September 2017, a period spanning the end of the Obama administration and the beginning of Trump’s.
“Unfortunately, it isn’t [just] a Maryland thing,” Isaacson said. “Red states, blue states, everywhere you look, enforcement is dropping off… Clearly compliance is not where we want it to be.”
To see Maryland’s environmental compliance and enforcement reports, visit mde.maryland.gov/Pages/enfcomp.aspx.