2020 has so far been defined almost entirely by the COVID-19 pandemic, and the public health crisis has affected environment, health, and safety (EHS) enforcement along with everything else. Let’s take a look at what’s been happening with enforcement at the U.S. Environmental Protection Agency (EPA), from the pandemic’s effect on policy to some recently settled enforcement cases.
There is some debate over the current efficacy of EPA enforcement efforts, even within the agency’s various offices. A recent report from the EPA’s Office of the Inspector General (OIG) stated that between 2007 and 2018, every major measure of the EPA’s enforcement and compliance activities declined, indicating a 12-year downward trend in enforcement. Among the findings reported by the OIG were:
The number of inspections the EPA conducted decreased by 33% when comparing fiscal years (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 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).
However, this document only describes the trends in the EPA’s national annual compliance monitoring activities, enforcement actions, and enforcement results—it doesn’t address factors that may explain the trends, which, according to the OIG, will be covered in a second report.
The EPA’s Office of Enforcement and Compliance Assurance (OECA) commented that the OIG did not capture all enforcement and/or compliance trends the Agency uses, including voluntarily self-disclosed violations, investments that achieve pollution control, and use of Superfund enforcement tools, measures that actually saw increases in 2019, according to the OECA.
What About During COVID-19?
The OECA issued a “temporary” policy on March 26, 2020, outlining the Agency’s approach to civil enforcement during the COVID-19 pandemic. Their policy caused concern among some lawmakers, mostly due to the EPA’s statement that it will exercise its “enforcement discretion” during the pandemic “if regulated entities take the steps applicable to their situations.”
Enforcement discretion is usually interpreted to suggest no or reduced enforcement of an alleged violation of environmental law or regulations and is typically contingent on the regulated entity’s meeting certain conditions—in this case, conditions created by the pandemic (e.g., a shortage of critical staff needed to achieve compliance).
The concerns led Susan Parker Bodine, the EPA’s assistant administrator for Enforcement and Compliance Assurance, to write a response that sought to assure lawmakers that “EPA continues to enforce the environmental laws and protect human Health and the environment nationwide.”
Some 2020 Enforcement Cases
In any case, Q1 2020 saw the EPA finalize 188 settlement agreements with companies small and large across the United States, a significant increase from the 71 penalties issued in Q4 for 2019.
The actions taken resulted in $4.1 million in fines, the largest of which was levied against a U.S. Army Medical Command installation in Maryland for violating the Resource Conservation and Recovery Act (RCRA) by failing to meet the appropriate generator requirements. Additionally, the company was penalized for Clean Air Act (CAA) violations when it failed to meet the conditions of the Title V operating permit. The company was assessed a penalty of $440,399.
The EPA also cited 58 different entities, including many towns and cities, for violations of the Clean Water Act (CWA), such as failing to comply with Storm Water Management Plan (SWMP) requirements and effluent permits. The fines totaled just over $500,300 and ranged individually from $2,000 to $150,000.
Significant fines were also assessed for violations of the Toxic Substances Control Act (TSCA), including an ammonia supplier in Georgia that was fined $22,500 for failing to submit a chemical data reporting (CDR) report for a chemical by a specific date.
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