The Law Breaking Polluters America Fails to Inspect
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Federal environmental laws were created through bipartisan efforts in the 1970s to toughen and standardize a patchwork of inconsistent state pollution control laws. The establishment of environmental standards across state lines produced a dramatic improvement in the nation's environment. Yet almost unnoticed during the 1990s, there was a fundamental shift in environmental law enforcement authority away from U.S. EPA and back to the states. Now, three decades after passage of the nation's clean air and water laws, major polluters are slipping through the growing gaps in environmental enforcement.
In passing the nation's major pollution control statutes, Congress specifically authorized the U.S. EPA to grant implementation and enforcement power to qualified states. The delegation of this authority, however, has not been accompanied by sufficient oversight of state programs or by regulations adequate to ensure their performance. As a result, many of the interstate disparities of the 1970s have reemerged in the form of substantial discrepancies between state enforcement of federal environmental statutes (GAO 2000, IG 1998). These vast differences have created pollution havens in some states where major polluters are not inspected, fines are incredibly low, and law breakers are protected by secrecy policies that shield their violations from public scrutiny and legal penalties.
Before granting enforcement powers to a state, EPA requires by regulation that states have adequate authority to seek civil and criminal penalties. But the agency does not require that the state have administrative penalty power, nor does the EPA require any minimum frequency of inspections, base penalty amounts for major lawbreakers, or even that states report to them the worst violators of the law (GAO 2000).
Although the states were slowly granted environmental enforcement authority throughout the 1970s and 80s, in the 1990s this process accelerated as many governors and their political appointees, nearly all of them Republican, aggressively pursued this reversal of power. Under mounting political pressure to devolve authority to the states, the EPA was only too eager to comply. In 1993, for example, just 19 states were in charge of enforcing the Clean Air Act's critical new source review requirements, where inspectors certify whether changes to a polluting facility qualify it as a new source of pollution. In 1998, all 50 states were in charge of this program. In 1993, 20 states enforced industrial pollution "pretreatment" programs, which regulate industrial discharges to public sewage treatment facilities. In 1998, 32 states were running these programs. Today, the vast majority of all field level enforcement of federal environmental statutes is out of the hands of the EPA, and firmly under the control of state officials.
As the states gained authority to enforce federal pollution control laws, many also implemented a series of parallel polices that severely undermined environmental law enforcement. The two most important are, 1) the replacement of traditional deterrence-based enforcement with a new "compliance assistance" approach where major lawbreaking polluters negotiate their penalties and clean up measures with cooperative state environmental officials, often behind closed doors; and 2) audit privilege laws that allow polluters to police themselves and receive immunity from prosecution and secrecy protection for any violations they discover. Since 1993, 25 states have implemented audit privilege/immunity laws and eleven more have adopted audit privilege policies.
The convergence of these forces has produced a fundamental breakdown in enforcement of the nation's environmental laws. The U.S. EPA has lost control of environmental law enforcement, and in the absence of strong federal oversight many states have gutted enforcement programs. As just one example, more than 40 percent of all Clean Water Act inspections reported to the U.S. EPA in the most recent two year period, did not require inspectors to get out of their cars.
Due to budget cuts in the 1990s, EPA has been forced to choose between its own targeted inspection initiatives and oversight of state programs. The agency has opted for targeted inspections that have been very successful, however, in the process, oversight of state enforcement efforts has languished.
On June 22, 2000, the House of Representatives passed further cuts to EPA's enforcement budget. If enacted by the full Congress, these cuts would obliterate any prospect that the inspection process could be restored to levels that actually deter environmental crimes. According to the EPA, if enacted, the budget reductions passed by the House would eliminate 3,000 inspections, 200 criminal investigation and 400 enforcement cases per year.
Inspections - Not Enough Cops on the Beat
Thorough inspections are an effective deterrent against environmental crime (ELR 2000), and the core of any good enforcement program. A June 2000 report from the U.S. General Accounting Office lists inspection frequency as the number one indicator of an enforcement program's effectiveness (GAO 2000).
There is no evidence, on the other hand, that the "compliance assistance" approach to enforcement increases deterrence or reduces pollution, and substantial evidence that it does not (NCSL 1998, Ohio Citizen Action, Rivers Unlimited, Ohio Sierra Club, and Ohio PIRG 1999, EWG 1999, EWG 2000). An Environmental Working Group analysis of the most recent validated data from the states shows that replacing a punitive enforcement system with one based on "working with" law breakers has lead to a free ride for some of the nation's worst polluters, who in many cases are not even being inspected. In fact, the states that most stridently advocate the compliance assistance approach to enforcement - Ohio, Michigan and Texas - have some of the lowest inspection rates in the country for precisely the polluters who should be inspected most often: those classified by the U.S. EPA as high priority violators of the law (Table 1).
Failing to inspect known violators of environmental laws is the policy equivalent of letting criminals out on parole, but not requiring them to check with their parole officers. If the worst environmental law-breaking factories are not even inspected, there is no way that the nation's environmental laws can ever be enforced.
EWG's analysis of the most recent data available shows:
For the Clean Air Act:
A total of 560 large factories officially listed as "high priority violators" of the Clean Air Act (CAA) were not inspected during the two-year period ending October 1999, the most recent period with reliable information. High priority violators are defined as major industrial facilities previously caught with major emissions infractions, significant pollution monitoring errors, or serious procedural violations of the law. Soot from these factories and other sources kill tens of thousands of people annually. Ozone pollution, to which they also contribute, puts nearly one million children and adults in emergency rooms with acute asthma attacks each year (Clear the Air, 1999).
Half of these uninspected violators were concentrated in five industrial states (Table 2). Officials from three of these states - Ohio, Wisconsin, and Michigan - have been outspoken advocates of a softer, less punitive style of enforcement.
- In these top five states, from 21 percent (Michigan) to 48 percent (Ohio) of all high priority Clean Air Act violators were not inspected from October 1, 1997 through September 30, 1999.
For the Clean Water Act:
Two hundred and eighty three (283) significant violators of the Clean Water Act (CWA) were not inspected during the same two-year period (Table 2). Due to weak pollution rules and shoddy enforcement, 40 percent of the nation's waters remain unfishable and/or unswimmable nearly 30 years after the passage of the Clean Water Act.
Half of these uninspected violators were concentrated in just four states - Texas, Ohio, Michigan, and Missouri, all of which openly advocate assistance, as opposed to punishment of environmental law breakers (Table 3).
- Texas, Michigan and Ohio failed to inspect 25, 20 and 16 percent, respectively, of all high priority violators of the Clean Water Act during the two-year period analyzed.
The above figures do not include all inspections but instead are limited to violators that EPA classifies as "significant" or "high priority" and to inspections that meet minimum federal requirements - so-called level 2 inspections under the Clean Air Act, and compliance evaluations under the Clean Water Act. Many states, however, also reported a substantial number of superficial inspections to the U.S. EPA. These cursory inspections reveal a pervasive cynicism in environmental enforcement that points to a deeper problem in many states than just a failure to inspect the worst polluters.
According to data submitted by the states to the U.S. EPA:
Forty-two (42) percent of all Clean Water Act inspections were so called "reconnaissance" inspections where inspectors are not even required to get out of their cars. U.S. EPA does not consider drive-by or fly-over inspections sufficient to ensure compliance with federal pollution control rules.
In some heavily industrialized states, almost all Clean Water Act inspections were drive-bys or fly-overs. Delaware topped all states with 95 percent of all CWA inspections falling into this category, followed by Illinois with 89 percent, Pennsylvania with 88 percent, and Indiana with 86 percent (Table 4).
The U.S. EPA has contributed significantly to weak state-level enforcement of the nation's environmental laws, by failing to promulgate strict rules delineating minimum acceptable enforcement practices. There are quite literally no binding minimum standards for the frequency of inspections under either federal clean water or clean air laws. With no one minding the store, many heavily industrialized states are letting environmental enforcement programs deteriorate dramatically. As evidence of the problem our analysis shows that:
- Overall, one third of all the nation's major air polluters (as opposed to just high priority violators) have not been inspected in the last three years.
State control of environmental law enforcement has taken environmental protection back a quarter century to a time when state level politics determined the degree of environmental protection provided to communities across the country. Recent budget cuts, passed in June, 2000 by the House of Representatives would practically eliminate all EPA oversight of state enforcement activities.
EPA will never regain the primary enforcement role it had ten years ago, nor should it necessarily seek to do so. But to make the current state-lead system accountable to the public and to the goals of the law, several major changes in current policy are needed:
EPA's enforcement budget must be restored to 1996 levels.
Budget cuts passed by the House of Representatives in June, 2000 would slash EPA's enforcement budget by 70 percent from $51 in fiscal year 1996 to $15 million. These cuts would eliminate 3,000 inspections each year and derail any hope that much needed oversight of state enforcement programs could take place. Instead of these cuts, funding should be restored to FY 1996 levels.
EPA must immediately issue regulations defining minimum performance standards for state agencies enforcing the nation's environmental laws.
Currently there are no binding minimum requirements that state agencies must follow when enforcing the nation's environmental laws. EPA has developed guidance for many aspects of state enforcement, but that guidance has no teeth when states choose to ignore it. Until enforcement regulations are in place, there is no hope that the law will be consistently and effectively enforced nationwide.
As a part of these standards, high priority violators must be inspected every year.
At a minimum, state enforcement agencies must perform a full compliance evaluation every year at all facilities classified as high priority violators of the Clean Air Act or the Clean Water Act.
The U.S. EPA Inspector General must audit state enforcement programs to determine what full compliance with environmental laws means in each state.
Clearly, states need to step up enforcement activity, particularly for the known violators of the law. But beyond that, EPA needs to investigate state enforcement programs for consistency, and to determine that a state's claim of full compliance with the law is legitimate.
EPA and the states must make information about violations readily available to the public.
To ensure the public's right to know, the U.S. EPA and the states must post all violations of federal and state environmental laws on the web. The information must include the type and severity of the violation at specific facilities, any enforcement action taken, and the magnitude of any fines if and when they are levied.
Ensure that inspectors get adequate recognition for their work.
Too often the good work of inspectors is thrown away when cases are dropped as the cases move up the enforcement ladder. There needs to be more consistent follow-up on violations to ensure that inspections are seen as an important first step in the law and order process and not a complete waste of time.
Empower inspectors to issue field citations.
Inspectors should be given the power to issue field citations. By empowering inspectors to issue tickets for clear-cut cases, EPA would streamline the enforcement process and focus the system on larger problems that cannot be addressed immediately.
View and Download the report here: Prime Suspects