OMB Watch - States Slack Off Environmental Enforcement

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: STATES SLACK OFF ON ENVIRONMENTAL ENFORCEMENT

:

: Date: 020221

: From: http://www.ombwatch.org/

:

: OMB Watch Executive Report

: February 20, 2002

: Vol. I No. II

:

: States have always played a crucial role in enforcing environmental

: standards, yet during the 1990s this role expanded even more

: dramatically as " devolution " became the vogue. At the same time, state

: inspections and enforcement actions have declined precipitously.

:

: For instance 41 percent of all state clean water inspections in 1998-

: 1999 were labeled " reconnaissance, " flyovers or drive-bys in which

: inspectors never even enter the facility. In several states the

: numbers are particularly disturbing: in Delaware, 95 percent of its

: water inspections fell into this category, in Illinois 89 percent, in

: Pennsylvania 88 percent, and in Indiana 86 percent. Also, 39 percent

: of state water inspections included no sample of the water - which is

: on top of the drive-bys - while only 11 percent of inspections

: actually involved taking a sample of the water.

:

: Where violations are detected, states frequently refuse to take any

: enforcement action or fail to levy a fine that could actually serve as

: a deterrent. For instance, internal EPA evaluations, reported by

: Inside EPA, found dramatic decreases in state enforcement actions

: across federal environmental programs - in some cases as much as a 75

: to 95 percent drop - during the 1990s.

:

: In Baytown, Texas, there sits an Exxon Mobil oil refinery - the

: nation's largest - with one pitiful environmental record. As

: documented in this report from the SEED Coalition, the plant has

: repeatedly violated state and federal laws - frequently releasing

: large volumes of pollution on an unsuspecting public without reporting

: plant problems to the proper authorities. Over the last several years,

: the refinery has been guilty of dozens of incidents resulting in

: excessive emissions. During one maintenance episode in 1999, the plant

: was improperly operated for 26 days, releasing 485 tons of sulfur

: dioxide, 48 tons of volatile organic compounds and 5.56 tons of

: hydrogen sulfide - all well over legally allowable limits.

:

: What actions were taken against this major-league polluter?

: Amazingly, the incident described above, as well as many others, drew

: no enforcement interest from the Texas Natural Resource Conservation

: Commission or a citation of any kind. Since 1984, TNRCC did issue

: citations to the refinery on 28 other occasions for violations of 72

: different standards. Yet of these 28 citations, the TNRCC issued only

: six legally binding orders to correct violations and imposed a paltry

: $64,000 in penalties.

:

: This " business friendly " approach may seem shocking, yet

: unfortunately it is not unique to Texas. Rather, it's part of a larger

: philosophical shift at the state level away from " deterrence-based

: enforcement " - which seeks to punish violators of the law with

: monetary or criminal penalties (the method used to regulate most other

: unlawful conduct, from murder to parking violations). Instead, states

: have chosen to rely almost exclusively on " compliance assistance

: programs, " which include everything from voluntary guidelines to

: educational outreach to technical assistance. Such programs can be

: constructive, but when used as a replacement to deterrence-based

: enforcement rather than a supplementary tool, must rely totally on the

: goodwill of polluters. Yet this is the direction states are headed.

: Emphasizing this point, Becky Norton Dunlop, Virginia's former

: Secretary of Natural Resources, told Congress, " The truth is that

: enforcement action means 'failure' not success. "

:

: Not surprisingly, the number of enforcement actions has declined

: precipitously at the state level. Between 1993 and 1997, for instance,

: there was a 50 percent decline in the number of state enforcement

: actions under the Resource Conservation and Recovery Act, according to

: an internal EPA evaluation reported by Inside EPA. Other internal

: evaluations found dramatic decreases in state enforcement actions

: across federal environmental programs - in some cases as much as a 75

: to 95 percent drop - over several years during the 1990s, as pointed

: out in an excellent article by Clifford Rechtschaffen in the October

: 2000 Environmental Law Review.

:

: Adding further support to this, two separate audits from EPA's

: Inspector General recently found inadequate state enforcement of clean

: air standards and the Clean Water Act, noting that nearly 40 percent

: of the nation's waters do not meet CWA standards. A closer look at

: individual states is even more telling. For instance, as Rechtscaffen

: points out, a 1996 state audit found that Virginia's Department of

: Environmental Quality repeatedly failed to take meaningful enforcement

: actions against chronic and serious lawbreakers; in separate audits,

: EPA's Inspector General found that Arkansas, Idaho, Louisiana, New

: Mexico, Pennsylvania, and Texas repeatedly failed to take timely

: action against significant violators; and California failed to

: escalate enforcement actions against repeat violators, according to a

: 1997 audit.

:

: States are hardly ashamed of this leniency, as Norton's statement

: above suggests. Indeed, the Environmental Council of States (which

: represents the 50 state environmental commissioners) recently produced

: a-first-of-its-kind report, funded by Congress, extolling the states'

: lax approach to enforcement - an approach that could have very severe

: consequences for the environment, especially given the states

: increasing authority.

:

: States have always played a crucial role in enforcing environmental

: standards, yet during the 1990s this role expanded even more

: dramatically as " devolution " became the vogue. Today, states are

: responsible for administering 75 percent of major federal

: environmental programs compared to 40 percent in 1993. Yet despite

: this central responsibility, states collected $8 million in criminal

: penalties during 1998, according to ECOS, compared to $92.8 million

: collected by federal EPA. In 1999, states collected only $275,003 in

: criminal penalties compared to $61 million for EPA.

:

: Advocates of compliance assistance say there is no reason to worry

: about these numbers. They argue that the number of enforcement actions

: is beside the point, that really it's about pollution reduction. And

: indeed, they have a point. If compliance assistance to the virtual

: exclusion of enforcement is truly more successful at reducing

: pollution, then it should be embraced.

:

: Yet frighteningly, states are not even attempting to determine

: whether this is true; research on the effectiveness of compliance

: assistance programs is scant. Instead, states have preferred to remain

: in a state of ignorance, as inspections have plummeted. From 1996 to

: 1998, state inspections declined by about 12 percent across programs,

: according to EPA data obtained by Inside EPA, and 50 percent under

: RCRA. In addition, a number of recent audits by EPA and GAO found

: serious deficiencies in state monitoring and inspections. For example,

: as Rechtschaffen points out, New Mexico failed to inspect one-third of

: its major air facilities over a seven-year period.

:

: Where inspections do occur, they are frequently of poor quality.

: According to data submitted to EPA - and reported here by the

: Environmental Working Group - almost 42 percent of all state clean

: water inspections were labeled " reconnaissance, " flyovers or drive-bys

: in which inspectors never even enter the facility. Needless to say,

: federal EPA does not consider this type of inspection sufficient to

: determine compliance with pollution control laws. In some heavily

: industrialized states, almost all clean water inspections were

: flyovers or drive-bys. In several states the numbers are particularly

: disturbing: in Delaware, 95 percent of its CWA inspections fell into

: this category, in Illinois 89 percent, in Pennsylvania 88 percent, and

: in Indiana 86 percent.

:

: Given this dramatic drop in inspections, along with the dearth of

: research - both governmental and academic - on the effectiveness of

: specific compliance assistance programs, states have no data to

: measure whether compliance assistance is actually working as a

: replacement to deterrence-based enforcement, as much as they insist

: that it is. And indeed, there is good reason to be skeptical that

: compliance assistance can work all by itself.

:

: As pointed out by Rechtschaffen, a handful of studies have compared

: deterrence-based enforcement to compliance assistance programs, all

: finding the same result - that deterence-based strategies are more

: effective than heavy reliance on compliance assistance programs. One

: study, for instance, compared compliance of the pulp and paper

: industries in the United States, which traditionally has relied on

: deterrence-based enforcement, to Canada, which uses a more cooperative

: approach. The rate of compliance with various regulations, the study

: found, was much higher in the United States despite similar regulatory

: systems. For instance, the compliance rate for total suspended solids

: (TSS) requirements was 59 percent in Canada and 92 percent in the

: United States. Similarly, another study by Environment Canada -

: Canada's environmental regulatory agency - found that a period of

: voluntary compliance for three forest sector industries found

: " negligible or unsatisfactory changes in the quantity of pollutants

: discharged " ; when a traditional approach was employed, with penalties

: for violations, discharges declined dramatically.

:

: This is not to suggest there should be no compliance assistance.

: Indeed, businesses deserve good information on what regulations they

: are subject to and how to comply with them. Technical assistance and

: educational outreach can be important tools to increase compliance.

: But this doesn't mean we should drop the deterrent incentive of

: enforcement, which unlike compliance assistance, is a well- documented

: success. The two approaches are not mutually exclusive, as recent

: debate seems to imply.

:

: There is no question where President Bush comes down on this matter.

: After all, he presided as governor of Texas when the state looked the

: other way as Exxon Mobil racked up environmental violations. In the

: president's first budget he proposed to slash EPA's enforcement budget

: by 8 percent - eliminating 270 employees from EPA's Office of

: Enforcement and Compliance Assistance - while giving $25 million in

: grants to states. The Senate restored EPA's enforcement funding, but

: the House upheld the president's recommendation. Finally, the funds

: were restored in a conference committee. In his budget proposal for FY

: 2003, President Bush proposed similar cuts to the federal enforcement

: budget.

:

: A recent report from the General Accounting Office - the research arm

: of Congress - seemed to deal a blow to the president's plan, pointing

: out that EPA has not collected adequate information about regional

: enforcement to know whether such " devolving " of responsibility can be

: done without harming environmental protection. Indeed, last April, GAO

: advised closer EPA oversight of state inspection programs for

: industrial emissions, which it found inadequate. Perhaps not

: surprisingly, this hasn't seemed to deter the Bush administration. The

: drum beat for devolution and compliance assistance (coupled with a

: gutting of enforcement) continues.

:

: * * *

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