Between 2007 and 2018, every major measure of the EPA’s enforcement and compliance activities declined, states the Agency’s Office of Inspector General (OIG) in a report.
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Moreover, the value of environmental benefit commitments violators made under the enforcement/compliance program to reduce, treat, or eliminate pollutants decreased by 64% when comparing fiscal years (FYs) 2012 and 2018. These benefits are calculated in terms of the number of pounds of pollutants generated and waste treated because entities corrected noncompliance. Looking closer at the period, the OIG found that the largest commitment occurred in FY 2013, when commitments reached 1,281 million pounds (lb), which was 71% higher than the second-highest weight commitment in FY 2012 (751 million lb). The overall decline in the 6-year span can be traced to 2018, when the median concluded-enforcement-action size involving pollutant commitments dropped to 1,212 lb from 1,920 lb in 2017.
Report Is Partial Picture, Says OECA
The OIG’s report describes the trends in the EPA’s national annual compliance monitoring activities, enforcement actions, and enforcement results. A trend is the upward, downward, or unchanged direction over a period of time in the number, amount, monetary value, or other measure of enforcement actions, penalties, and environmental benefits. The report does not address key factors that explain the trends, which, the OIG says, will be covered in a second report. It would seem that the current report is simply an unbiased listing of numbers. But, in commenting on a draft of the report, the EPA’s Office of Enforcement and Compliance Assurance (OECA) said the OIG did not capture all enforcement/compliance trends the Agency uses, including voluntarily self-disclosed violations, investments that achieve pollution control, and use of Superfund enforcement tools. These and other measures saw increases in 2019, the OECA said.
Drop in Enforcement Actions
In addition to data on environmental benefit commitments, the OIG reported the following:
- The number of inspections the EPA conducted decreased by 33% when comparing FYs 2007 and 2018.
- The numbers of enforcement actions initiated and concluded by the EPA decreased by 52 and 51%, respectively, when comparing FYs 2007 and 2018.
- The EPA concluded 58% fewer enforcement actions with injunctive relief in FY 2018 than in FY 2007. Over those 12 years, the EPA estimated the lowest value of injunctive relief in FY 2018 ($3.9 billion) and estimated the highest injunctive relief value in FY 2011 ($21 billion). (Much of that variability stemmed from concluded enforcement actions with at least $1 billion in injunctive relief. These high-dollar-value enforcement results comprised, on average, less than 1% of the total number of concluded enforcement actions but contributed 58% of the total injunctive relief dollar value. For example, the case settled with Volkswagen accounted for 80% of total injunctive relief dollars in FY 2017, but the Volkswagen case comprised just 2 of the 1,394 enforcement actions with injunctive relief concluded that year.)
- The EPA concluded 53% fewer enforcement actions with penalties in FY 2018 than in FY 2007. Over those 12 years, the EPA assessed the lowest penalty total in FY 2018 ($69 million) and assessed the highest penalty total in FY 2016 ($6.1 billion).
- The total number of supplemental environmental projects (SEPs) decreased by 48%. FY 2017 had the lowest total estimated value of SEPs ($18 million), whereas FY 2009 had the highest ($53 million).
- Also, overall funding for the EPA’s enforcement program generally declined from FYs 2006 through 2018, reported the OIG, as did the number of enforcement staff, also referred to as full-time equivalents (FTEs). Specifically:
- Comparing FY 2006 to FY 2010, annual funding for the EPA’s enforcement program increased by 6%, from $650 million to $686 million. However, funding decreased from FYs 2010 through 2018, reaching a low in FY 2018 at $534 million.
- The number of FTEs generally declined from 2012 through 2018 after being relatively steady from 2006 through 2011. Overall, the total number of enforcement FTEs dropped from 3,301 in FY 2006 to 2,605 in FY 2018—a 21% decrease.
Average vs. Median
The report includes both average and median enforcement trends. Large value settlements can misrepresent the average value of settlements. The median, or middle, value separates the higher half of the data from the lower half of the data. The median is not affected by a small number of very large or very small values, like an average may be, and provides a better idea of the typical value in the data set.
EPA Assists State Enforcement
“The report fails to note that our enforcement and compliance program focuses on achieving compliance using many tools, not limited to the number of individual enforcement actions taken,” the OECA wrote in its response to the OIG’s draft of the report. “Recognizing that states are the primary implementers of our nation’s environmental laws, the EPA will continue to focus where it can provide the most value, including on matters affecting multiple states or tribes, serving as a backstop when a state or tribe does not address serious noncompliance in a timely fashion, and assisting states and tribes when they lack the capability, resources, or will to address noncompliance.”
The OIG also met with OECA managers to receive technical comments on the report, which the OIG said it incorporated into the final report where appropriate.