Prime Suspects

7/29/2019 Prime Suspects

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The Law Breaking PollutersThe Law Breaking PollutersThe Law Breaking PollutersThe Law Breaking PollutersThe Law Breaking Polluters

America Fails to InspectAmerica Fails to InspectAmerica Fails to InspectAmerica Fails to InspectAmerica Fails to Inspect

John CoequytJohn CoequytJohn CoequytJohn CoequytJohn Coequyt

Richard WilesRichard WilesRichard WilesRichard WilesRichard Wiles W O R K I N G G R O U P

T M

E N V I R O N M E N T A L


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Acknowledgments

This repo rt was written by John Coe quyt and Richard Wiles of the Environm ental Working Group . I t is the 10 th

in a series of studies pu blished by the Environm ental Working Group on the s tatus of enforcemen t of Ame ricas

major environmental laws.

This report was made possible by grants from the Beldon Fund, the Turner Foundation, the Joyce Foundation,

and Working Assets Funding Service.

Cop yright July 2000 by Environ me ntal Working Group . All rights reserved . Manufactured in the United

States of America. Prin ted on recycled paper.

Environm ental W orking G roup

The Environmental Working Group (EWG) is a nonprofit environmental research organization based in Wash-

ington, D.C. Through an alysis of governmen t and private sector databases, environm ental mon itoring programs,

and scientifically groun ded research, EWG develop s high-profile pu blications, com pu ter databases an d Internet

resources that consistently create public awareness and concern about high priority environmental problems and

solutions.

Kenneth A. Cook, Presiden t

Richard Wiles, Vice President for Research

Mike Casey, Vice President for Public Affairs

To order a copyCopies of this report may be ordered for $25.00 each (plus 6% sales tax or $1.50 for Washington, DC residents)

and $3.00 for postage a nd han dling. State versions of this repo rt are $5.00 each (p lus 6% sales tax or $0.30 for

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w w w .ew g .o r g

This and many other EWG publications are available on the World Wide Web at www.ewg.org.


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1EN V I R O N M E N T A L W O R K I N G G R O U P

Executive Summary

Prime Suspects

Federal environm ental law swe re created through bipartisanefforts in the 1970s to tough enand standardize a patchwork ofinconsisten t state p ollutioncon trol laws. The establishm en tof environm ental stand ards

across state lines produced adramatic improvem ent in thenations en viron me nt. Yetalmo st unno ticed during the1990s, there wa s a fundam entalshift in environmental law en-forcement authority away fromU.S. EPA and back to the states.Now, three d ecade s after pas-sage of the nations clean air andwater laws, major polluters are

slipp ing through the grow inggaps in e nvironme ntal enforce-ment .

In p assing the nations ma jorpollution control statutes, Con-gress sp ecifically autho rized theU.S. EPA to gran t implem en ta-tion and enforcement power toqu alified states. The delegationof this authority, however, has

not bee n accom pan ied b y suffi-cient oversight of state programsor by regulation s adeq uate toen sure their pe rform ance . As aresult, ma ny o f the interstatedisparities of the 1970s havereeme rged in the form o f sub-stantial discrepancies betweenstate en forceme nt of federal

environmental statutes (GAO2000, IG 1998). The se vastdifferences have created pollu-tion havens in some states whe remajor polluters are not inspected,fines are incredibly low, and lawbreakers are p rotected by secrecy

policies that shield their viola-tion s from pu blic scrutiny an dlegal pe nalties.

Before granting enforcemen tpowers to a state, EPA requiresby regu lation that states haveadequate authority to seek civiland criminal pe nalties. But theagency do es no t requ ire that thestate have administrative penalty

po we r, nor d oes the EPA requireany m inimum freque ncy of air orwater inspections, ba se p enaltyamo unts for major lawbreak ers,or even that states report to themthe w orst violators of the law(GAO 2000).

Although the states wereslow ly granted environm entalenforcemen t authority throughou t

the 1970s and 80s, in the 1990sthis process accelerated as man ygovernors and their politicalappointees, nearly all of themRepublican, aggressively pursuedthis reversal of po we r. Und ermounting political pressure todevolve authority to the states,the EPA was only too eager to

Alm ost u nnoticed

during the 199 0s,

there w as a

fundam ental shift in

environmental law

enforcement authority

aw ay from U .S. EPAand back to the states.

As the state s gained

authority to enforcefederal pollution

control law s, m any

also im plemented a

series of par allel

polices that severely

undermined

enforcement.


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2 PR IM E SU SPECTS

com ply. In 1993, for exam ple,just 19 sta te s w ere in charg e o fen forcing th e Clea n Air Actscritical new source review re-quirements, where inspectors

certify whether changes to apolluting facility qualify it as anew source of po llution. In1998, all 50 states were in chargeof this p rogra m. In 1993, 20states enforced industrial pollu-tion pretreatment programs,w hich regu late ind ustrial dis-charges to p ublic sew age treat-m en t facilities. In 1998, 32 stateswere running these programs.

Today, the vast majority of allfield level enforcement of federalenvironmental statutes is out ofthe h and s of the EPA, and firmlyun de r the co ntrol of state o ffi-cials.

As the states gained autho rityto enforce federal pollutioncontrol laws, many also imple-me nted a series of parallel po-

lices that severely underminedenvironm ental law enforcemen t.The two mo st imp ortant are, 1)the replacement of traditionaldeterrence-based enforcementwith a new compliance assis-tance approach where majorlawbreaking polluters negotiatetheir pe nalties and clean upmeasures with cooperative stateenvironmental officials, often

behind closed doors; and 2)aud it privilege law s that allowpolluters to police themselvesand receive immunity fromprosecution and secrecy protec-tion for any violations the ydiscove r. Since 1993, 25 stateshave imp leme nted aud it privi-

lege/ imm unity law s and e levenmo re have ado pted a udit privi-lege p olicies.

The convergen ce of these

forces has produced a fundam en-tal breakdown in enforcement ofthe nations environmental laws.The U.S. EPA has lost control ofenvironm ental law enforcemen t,and in the ab sence of strongfederal oversight many stateshave gutted enforcement pro-grams. As just on e examp le,more than 40 percent of all CleanWater Act inspections reported to

the U.S. EPA in the mo st recenttwo year p eriod, did no t requ ireinspectors to get out of their cars.

Due to bud get cuts in the1990s, EPA has be en forced tochoose between its own targetedinspe ction initiatives an d o ver-sight of state program s. Theagency has o pted for targetedinspe ctions that have bee n very

successful, however, in the pro-cess, oversight of state e nforce-ment efforts has languished.

On June 22, 2000, the Houseof Representatives passed furthercuts to EPAs en forcem en t bud -get. If en acted by the full Con-gress, these cuts would obliterateany p rospect that the inspectionprocess could be restored to

levels that a ctually de ter en viron-me ntal crime s. According to theEPA, if enacted, the budgetreductions passed by the Housewould eliminate 3,000 inspec-tions, 200 criminal investigationand 400 enforcement cases peryear.

The convergence of

these forces has

produced a fundamental

breakdow n in

enforcement of the

nations environmental

law s. EPA has lost

control of environmental

law enforcem ent, and in

the absence of strong

federal oversight man y

states have gut ted

enforcement programs.


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Inspections N ot EnoughCop s on the Beat

Thorough inspe ctions are aneffective de terrent aga inst envi-

ronmental crime (ELR 2000), andthe core of any good e nforce-me nt pro gram. A Jun e 2000report from the U.S. GeneralAccounting Office lists inspec-tion frequency as the numberone indicator of an enforcemen tprograms effectiveness (GAO2000).

There is no eviden ce, on the

other h and, that the comp lianceassistance approach to enforce-ment increases deterrence orreduces p ollution, an d sub stan-tial evidence that it does not(NCSL 1998, Ohio Citizen Action,Rivers Unlimited, Ohio SierraClub, and Ohio PIRG 1999, EWG1999, EWG 2000). An Environ -men tal Working Group analysisof the most recent validated data

from the states shows that re-placing a pu nitive en forceme ntsystem with one based onworking with law breakers haslead to a free ride for som e o fthe nations worst polluters, whoin many cases are not evenbe ing inspe cted. In fact, thestates tha t mo st stride ntly advo-cate the compliance assistanceapp roach to e nforcement

Ohio, Michigan and Texas have som e of the low est inspe c-tion rates in the country forprecisely the polluters whoshould be inspe cted m ost often:those classified by the U.S. EPAas high priority violators of thelaw (Table 1).

Failing to inspect knownviolators of en vironm en tal law s isthe p olicy eq uivalen t of lettingcriminals out o n p arole, bu t notrequiring them to check with

their p arole officers. If the w orstenvironm ental law-breakingfactories are not even inspe cted,there is no way that the nationsenvironm ental law s can ever beenforced.

EWGs analysis of the mostrecent data available shows:

For the Clean Air Act:

A to tal of 560 large factoriesofficially listed as highp riority violators of theClean Air Act (CAA) werenot inspected du ring thetwo-year period endingOctobe r 1999, the mo st

Failure to Failure to

conduct clean conduct cleana ir in sp e ct io n s o f w a t e r i n sp e ct i on sknow n violators of know n violators C om bined

State (rank) (rank) Rank

O h i o 1 2 1M i c h i gan 5 3 2Tex as 8 1 3Il l i n o i s 4 8 4M i sso u ri 1 0 4 5M assach u setts 1 1 5 6N ew Yo rk 1 3 1 0 7G eo rgi a 1 6 8 8Ten n essee 5 2 2 9C o l o rad o 2 3 7 1 0M ai n e 2 1 1 0 1 1

M i ssi ssi p p i 1 2 2 3 1 2Pen n sy l van i a 1 3 2 2 1 2C al i fo rn i a 9 2 7 1 4N o r th C aro l i n a 1 3 2 7 1 5

Table 1. O hio, M ichigan and Texas lead the country infailure to inspect facto ries w ith past records ofenvironmental law violat ions.

So u r c e : C o m p i l e d b y t h e En v i r o n m e n t al W o r k i n g G r o u p f ro m EP A d a t a.

The states that most

stridently advo cate the

compliance assistance

approach to

enforcement O hio ,

M ichigan and Texas

have som e of the

low est inspection r ates

in the country.


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4 PR IM E SU SPECTS

recent period with reliableinform ation . High priorityviolators are defined as majorindu strial facilities p reviou slycaught with major emissions

infractions, significant pollu-tion monitoring errors, orserious procedural violationsof the law . Soo t from thesefactories an d other sou rceskill tens of thousands ofpe op le ann ually. O zonepollution, to which they alsocontribute, p uts nearly onemillion ch ildren and adu lts inemergency rooms with acute

asthm a attacks each year(Clea r the Air, 1999).

H a lf o f th e se u n in sp e c te dviolators we re con cen-trated in five industrialstates (Tab le 2). O fficialsfrom three of these states

Ohio, Wisconsin, andMichigan have bee noutspoken advocates of asofter, less punitive style ofenforcement.

In these top five s ta tes ,from 21 percent (Michigan)to 48 percent (Ohio) of allhigh p riority Clea n Air Actviolators were not in-

spected from Octobe r 1,1997 through Septemb er30, 1999.

For the Clean Water Act:

Tw o h u nd re d an d e igh tythree (283) significantviolators of the CleanWater Act (CWA) w ere no tinspected during the same

two-year pe riod (Table 2).Due to weak pollutionrules and shoddy enforce-me nt, 40 pe rcent of thenations w aters rem ainunfishable and/orunsw imm able nearly 30years after the passage ofthe Clean Water Act.

H a lf o f th e se u n in sp e c te d

violators we re con cen-trated in just four states Texas, Ohio, Michigan, andMissouri, all of whichop enly advocate assistance,as opposed to punishmentof environmental lawbreakers (Table 3).

Table 2. Five states account for mor e than half of the highpriority violators of the Clean Air Act not inspected inf iscal year 199 8 or 1 99 9.

N u m b e r o f m a jo r

pollute rs listed a s highpriority violators of theCAA and not inspected

Rank State FY 1 9 9 8 - 1 9 9 9

1 O h io 8 62 In d ian a 8 13 W isc o n sin 5 24 Il l i n o i s 4 9

5 (ti e) M i ch i gan 3 75 (ti e) Ten n essee 3 7

7 N ew Jersey 2 38 Tex as 2 19 C al i fo rn i a 2 0

1 0 M i sso u r i 1 61 1 M assach u setts 1 51 2 M i ssi ssi p p i 1 1

1 3 (ti e) N ew Yo rk 1 01 3 (ti e) N o rth Caro l i n a 1 01 3 (ti e) Pen n sy l v an ia 1 0

A l l O th er States 8 2

N ati o n al To tal 5 6 0

So u r c e : C o m p i l e d b y t h e En v i r o n m e n t al W o r k i n g G r o u p f r o m E PA d a t a .

I f the w orst

environmental law-

breaking factories are

not even inspected,

there is no way that

the nat ions

environmental laws

can ever be enforced.


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Te x as , Mic h ig an a n d O h iofailed to inspe ct 25, 20 and16 pe rcent, respe ctively, ofall high priority violators ofthe Clean Wa ter Act during

the two-year period ana-lyzed.

All Inspections

The abo ve figures do n otinclude all inspections butinstead are limited to violatorsthat EPA classifies as signifi-cant or high priority and toinspe ction s that me et m inimum

federal requirements so-calledlevel 2 inspections under theClean Air Act, and com plianceevaluations under the CleanWater Act. Many states, ho w -ever, also reported a substantialnumber of superficial inspec-tion s to the U.S. EPA. The secursory inspections reveal apervasive cynicism in environ-men tal enforcemen t that p oints

to a d eepe r problem in manystates than just a failure toinspect the worst polluters.

According to data submittedby the states to the U.S. EPA:

Fo rty-tw o (42) p e rc en t o f all Clean Water Act inspec-tions were so called re-connaissance inspections

where inspectors are noteven req uired to get ou t ofthe ir cars. U.S. EPA do esnot consider drive-by orfly-over inspections suffi-cient to e nsure com pliancew ith fed eral po llutioncon trol rules.

In some heavily indus tr ia l-ized states, almost all CleanWater Act inspections weredrive-bys or fly-overs.Delaware top pe d all statesw ith 95 pe rcent o f all CWAinspections falling into thiscategory, followed byIllinois with 89 percent,

Pennsylvania with 88 per-cent, and Indiana w ith 86percent (Table 4).

The U.S. EPA has contributedsignificantly to weak state-levelenforcement of the nationsen viron me ntal law s, by failing to

N umber of major pol lu ters

listed in significan t

non-compliance of theCW A and not inspected

Rank State FY 1 9 9 8 - 1 9 9 9

1 Texas 7 32 O h i o 3 13 M i c h i gan 2 04 M i sso u ri 1 8

5 (t i e) M assac h u setts* 1 15 (t i e) M i n n eso ta 1 1

7 Co l o rad o 1 08 (t i e) G eo rgi a 98 (t i e) Il l i n o i s 98 (t i e) W ash i n gto n 9

1 1 (t i e) M ai n e* 81 1 (t i e) N ew Yo rk 81 1 (t i e) Pu er to Ric o 81 4 (t i e) V erm o n t 71 4 (t i e) W est V i rg i n i a 7

A l l O th er States 4 4

N ati o n al To tal 2 8 3

Table 3. Texas, O hio, M ichigan and M issouri account forhalf of all significant violators of the Clean W ater Act no tinspected in f iscal years 19 98 and 1 99 9.

* C W A / N P D ES p e r m i t p r o g r am r u n b y U . S. EP A .


The U .S. EPA has

contribu ted significantly

to weak state-level

enforcement of thenations environmental

law s, by failing to

promulgate strict rules

delineating minim um

acceptable enforcem ent

practices.


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6 PR IM E SU SPECTS

pro mu lgate strict rules d eline at-ing m inimum acceptable enforce-me nt p ractices. There are qu iteliterally no binding minimu mstand ards for the frequen cy ofinspe ctions und er either fede ralclean water or clean air laws.

With no o ne minding the store,ma ny h eavily indu strialized statesare letting environmental enforce-me nt programs de teriorate dra-m atically. As evide nce of theprob lem our an alysis show s that:

Overa ll, one th ird o f a ll thenations major air polluters(as op po sed to just highp riority violators) have no t

bee n inspected in the lastthree years.

Recommendations

State control of environmentallaw enforcemen t has taken envi-ronm ental protection back aqua rter century to a t ime wh en

state level po litics de terminedthe degree of environmentalprotection provided to commu-nities across the coun try. Rece ntbud get cuts, passed in June ,2000 by the H ouse of Rep resen-tatives would practically elimi-

nate all EPA oversight of stateen forcem en t activities.

EPA will never regain theprimary enforcement role it hadten years ago, nor sho uld i tne cessarily seek to do so. But tomake the current state-leadsystem accou ntable to the pu blicand to the goals of the law,several major changes in current

policy are needed:

EPAs en forcem en t budget

must be restored to 1996

levels.

Budget cuts passed by theHouse of Representatives inJune, 2000 would slash EPAs

Reconnaissance Percent

or "dr ive-by" Total "dr ive-by"Rank State inspections inspections inspections

1 D el aw are 1 ,1 5 4 1 ,2 2 0 9 4 .6 %2 Il l i n o i s 8 ,2 7 9 9 ,2 9 4 8 9 .1 %3 Pen n sy l van i a 6 ,8 1 0 7 ,7 8 3 8 7 .5 %4 In d i an a 3 ,2 1 0 3 ,7 3 0 8 6 .1 %5 M ai n e 3 7 1 5 4 2 6 8 .5 %6 So u th D ako ta 2 4 3 3 8 5 6 3 .1 %7 So u th Caro l i n a 1 ,8 9 2 3 ,0 4 6 6 2 .1 %8 N ew Yo rk 2 ,5 6 3 5 ,0 7 4 5 0 .5 %9 M i ch igan 3 7 0 7 8 4 4 7 .2 %

1 0 M i ssi ssi p p i 5 9 4 1 ,3 5 9 4 3 .7 %

Table 4. In ten states over 40 percent of Clean W ater Act inspectionsconducted in 19 98 and 19 99 did not require inspectors to get out oftheir cars.


State contr ol of

environmental law

enforcement has taken

environmental

protect ion back a

quarter century to a

t ime w hen state level

politics determined

the degree of

environmental

protect ion provided to

communities across

the country.


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enforcement budget by 70pe rcent from $51 in fiscal year1996 to $15 m illion . The se cutswould eliminate 3,000 inspec-tions e ach year an d d erail any

hop e that much ne eded o ver-sight of state enforcement pro-grams cou ld take p lace. Insteadof these cuts, fund ing sho uld berestored to FY 1996 levels.

EPA mus t imm ediately iss ue

regulations defining m ini-

mum performance s tandards

for state agen cies en forcing

the nation s environ mental

laws.

Currently there are no bind-ing m inimum requiremen ts thatstate agencies must follow whenenforcing the nations environ-me ntal laws. EPA has deve l-oped guidance for many aspectsof state enforcement, but thatguidance has no teeth w henstates choo se to igno re it. Until

enforcement regulations are inplace, there is no h op e that thelaw w ill be co nsisten tly andeffectively enforced nationwide.

As a part of these standards,

high priority violators m ust

be inspected every year.

At a minimum, state enforce-men t agencies mu st pe rform a

full compliance evaluation everyyear at all facilities classified ashigh priority violators of theClean Air Act or the Clean WaterAct.

The U.S. EPA Inspector General

must audit state enforcement

programs to determine what

full comp liance w ith environ-

men tal laws means in each

state.

Clearly, states need to step upenforcement activity, particularlyfor the known violators of thelaw. But be yon d that, EPA ne ed sto investigate state enforcementprograms for consistency, and tode termine that a states claim offull compliance with the law islegitimate.

EPA and the states must make

information about violation s

readily available to the public.

To e nsure the pu blics right tokno w , the U.S. EPA and the statesmu st po st all violation s of federaland state en vironm ental laws o nthe we b. The information mustinclude the type and severity of

the violation at sp ecific facilities,any en forceme nt action taken,and the m agnitude of any fines ifand when they are levied.

Ensure that inspectors get

adequate recogn ition for their

work.

Too often the good w ork of inspe ctors is throw n aw ay wh en

cases are dropped as the casesmove u p the enforcement ladder .There needs to be more consistentfollow-up on violations to ensurethat inspections are seen as animportant first step in the law andorder process and not a completewaste of time.

U nt i l federal

enforcement regulat ions

are in place , there is no

hope that the law w il l be

consistently and

effectively enforced

nat ionwide.


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8 PR IM E SU SPECTS

Emp ow er inspectors to issue

field citations.

Inspectors shou ld b e given thepo w er to issue field citation s. By

em po we ring inspectors to issuetickets for clear-cut cases, EPAwo uld streamline the en force-ment process and focus thesystem o n larger problems thatcannot be addressed imme di-ately.


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The State Takeover of

Environm ental Law Enforcem ent

Chapter 1

D evolut ion of Power

When the local river is pol-luted or the air is unfit tobreathe, most people still blamethe U.S. EPA. And w hile that is

partly justified, in large measuretheir own state officials are toblame for failure to improve theenvironment.

The p assage of nationalenvironmental laws in the 1970screated consistency out o f chaosacross state lines, and an almostimm ediate imp rovemen t in thenations en viron me nt. Few

pe op le realize, how ever, that theCon gress intende d m ost environ-men tal law s to be adm inisteredby the states. Few er still rea lizethat the devolution of authorityto the states accelerated rapidlyin the 1990s as Repu blicangovernors and a Democraticadministration jockeyed forpolitical advantage in the rhe-torical race to curb the excesses

of big governmen t in Washing-ton.

According to a 1999 report ofthe Environmental Committee ofthe States (ECOS), a nationalno n-pro fit association of stateand territorial environmentalcommissioners, the number of

environm ental regulatory p ro-grams delegated to the statesincreased 73 percent from 1993to 1999. Am on g Clean Air Actand Clean Water Act programsthe number of delegated pro-

grams increased 50 percent overthat time (se e Table 5). In thewords of the report: A remark-able, and largely un noticed,change in e nvironm ental protec-

Percent

D elegated Program 1 9 9 3 1 9 9 8 C hange

C A A - N SPS 3 4 4 1 2 1 %C A A - N ESH A PS 2 7 4 1 5 2 %C A A - PSD 2 7 4 6 7 0 %C A A - N ew So u rc e Rev i ew 1 9 5 0 1 6 3 %C W A - C o n stru c t i o n G ran ts 3 7 4 5 2 2 %C W A - N PD ES 3 8 4 3 1 3 %C W A - Pretreatm en t 2 0 3 2 6 0 %C W A - Sl u d ge M an agem en t 0 3 N /AC W A - Sec 6 0 4 (b ) 1 5 2 5 6 7 %C W A - W etlan d s 1 2 1 0 0 %

C lean A i r A c t & C lean W ater A c t 2 1 8 3 2 8 5 0 %

Table 5 . The states have taken co ntrol o f nearly allenvironmental programs.

Sour ce : Env i r on m en t a l W or k i ng G r oup1. U .S. EPA, O f f i ce o f Region a l O perat i on s & Sta te/Loca l Re la t i ons , Februa199 3 , as repo r t ed i n R esou r ce G u i de t o St a te Env i r on m en t a l M anagemen t ,

Ed i t i on . (Lex i ng t on , K Y : The C ou nc i l o f St a te G ove r nm en t s)2 . Env i ron m enta l Co un c i l o f t he Sta tes (data i n p ress) , Jun e 25 , 199 8

A b br ev i a t i ons: C A A - C l ean A i r A c t ; N SP S - N ew Sour ce P e rf o r mance St a

N ESH APS - N at i ona l Em ission Standards for Haz ardou s A i r Po l l u tants; PSDP reven t i on o f Si gn i f i can t D e t er i o r a ti on ; C W A - C l ean W at er A c t ; N P D E S N a t i ona l P o l l u t i on D i scha r ge El i m i na t i on Syst em


12/34

1 0 PR IM E SU SPECTS

t ion h as occurred o ver the p astfive to 10 yea rs. The States havebecome the p rimary environmen-tal protection agencies across thena tion (ECO S 1999). O nce the

authority to run an environm entalpro gram is transferred to a state itis virtually never recalled, nomatter how po orly the p rogram isrun .

After gaining the power toenforce the nations en vironme n-tal laws many states then imple-mented a series of related poli-cies that virtually guaran teed that

no enforcement would takep lace. U.S. EPA ha s no t effec-tively used its oversight authorityto ensure that increased stateauthority does not translate intothe creation of po llution havensin states that choose not to e n-force the law .

The three strategies that aremost common ly used to un dercut

environm ental enforceme nt arecomp liance assistance programs,audit privilege/immunity laws,and budget cutbacks or thefailure to adequately use existingfee au thority.

Compliance Assistance

In the early 1990s many gover-no rs and their high level po litical

app ointees be gan to articulateand implement a new compli-ance assistance philosophy ofenvironmental enforcement.These p olicies assume that en-forceme nt of en vironm ental lawswill be more effective if tradi-tional strategies based on fines

and penalties are scrapped.Instead, sup po rters argue, regu-lators should assist, nudge andnegotiate with the worst pollut-ers, wh o in man y cases are

overtly referred to as custom-ers (EWG 2000).

This new approach is basedlargely on small-business com-pliance assistance programsdevised to mee t the n eed s of drycleaners and gas stations facedwith unp recedented en viron-me ntal regulation s. Whe nap plied to large ind ustrial po llut-

ers, however, the rationale forthe strategy that the p olluter inquestion actually needs technicalassistance no longer applies.

In spite o f the widesp readadoption of this policy, there isno eviden ce that complianceassistance works better thantraditional punitive enforcementstrategies, when applied to large

indu strial po lluters. Inde ed , thenear com plete absence o f finesand penalties issued by the mostvocal supp orters of com plianceassistance a t the state level hasprompted the U.S. EPA to launchan investigation into the effec-tiveness of these programs.

Politicians and their appoin-tees in Ohio, Michigan and

Penn sylvania are some of themost ardent p roponen ts of helping po lluters who b reak thelaw as opposed to punishingthem . These states are alsoamong those with the lowestfines and inspection rates in thenation.

O nce the authority to

run an environmental

program is transferred

to a state it is virtually

never recalled, no

matter how poor ly the

program is run.

U .S. EPA has not

effectively used its

oversight authority to

ensure that increased

state author ity does

not tran slate into thecreat ion of pollut ion

have ns in states that

choose not to enfor ce

the law .


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1 1EN V I R O N M E N T A L W O R K I N G G R O U P

In 1999, an Ohio EPA officialcandidly characterized theagen cys flaccid ap pro ach toenforcement w hen he to ld agathering of the Bar Association

in Cincinnati, we are not anenforcemen t agency (Oh ioCitizen Action, Rivers un limited ,Ohio Sierra Club & Ohio PIRG,1999).

Not surp risingly, the O hio EPAconsistently ranks at the bottomof any measure o f agency p erfor-ma nce (EWG 1999, EWG 2000).In fact, the states en vironm en tal

record is so a bysma l that inrespon se to a p etit ion from O hiopublic interest groups, EPARegion 5 has taken the unp rec-edented step of comprehensivelyreview ing O hio EPAs e xecu tionof environmental laws (RandallEdwards, The Columbus Dis-patch, U.S. Probe Aimed At OhioEPA Complain ts Say En forcem ent

Is Lax , January 31,2000).

In Michigan (and in manyothe r states) au dit privilege andimm unity laws (see below ), havebeen repeatedly touted as a keycomp one nt of comp liance assis-tance strategies because theyneutralize the threat of punish-ment for polluters that volunteerinform ation on their illegal p rac-tices. Russell Hard ing the hea d

of the Michigan Dep artme nt ofEnvironm en tal Qu ality pu t it thisway:

The prospect of trigger-

ing federal en forcement

action had a chilling effect

on many businesses. They

can now enjoy a high

degree of confidence that

participatin g in the audit

program will not subject them

to federal enforcement ac-

tion (Russell J. Hardin g,

Audit Law EncouragesImprovem en t, Ethn ic News

Watch. December 22, 1998).

Instead, the state w ill use thisprivileged inform ation , revealed inthe a ud it, to assist the e rstw hileviolator in complying with the law.Citizens will never know anythingabou t the occurrence o r severity ofthe violations, even if the illegal

po llution in q ue stion directlycompromised their health and wellbeing.

In Pennsylvania, Governor TomRidge too k o ffice p rom ising tooverhaul the job-crushing, com-mu nity-harassing, re gulatory night-mare of a Department of Environ-me ntal Reso urce s (DER). Aspromised, Ridge split the DER into

two new agencies, with the De-partment of Environmental Protec-tion (DEP) taking over a ll po llu-tion pe rmitting an d e nforcem entfunctions, wh ile the Dep artme nt ofConservation and Natural Re-sources has responsibility for parksand forestry.

According to Ridge, the newlyformed DEP has actively pur-

sued an agenda that moves awayfrom the ph ilosop hy of heavy-hand ed regulation and pu nitivesanction s. (Rem arks given atPennsylvania Environmental Coun-cil Annual Dinner in Philadelphia,May 31, 1995). The record b earsou t the govern ors claim. Fine s forbig Pen nsylvania p olluters are

There is no evidence

that compliance

assistance works

better than tradit ional

punit ive enforcement

strategies, when

applied to large

industrial polluters.


14/34


incredibly low or non-existent(EWG 1999, EWG 2000).

Audit Pr ivi lege/Immunity LawsProtect Polluters, not the

Environment

Environmental audits arevoluntary internal evaluation s ofcompan y op erating procedures .In theory, they are used to mea-sure com pliance with environ-me ntal regulation s, to iden tifyprob lems early, and co rrect themquickly. When used app ropri-ately an environmental audit can

help a company comply with thelaw and shift a states limitedenforcemen t resources into areasof greater con cern. In con trast,most audit privilege/immunitylaws on the b ooks seek to pro-mo te se lf-audits by insulatingcom pa nies from the liability theywo uld o therwise incur when theydocument violations of environ-me ntal law .

The audit privilege laws thathave been passed in many statesdo not require, and often pro-hibit, the disclosure of an y viola-tion s identified d uring the aud it,no matter how serious. Som e donot even require that the prob-lems identified be corrected.Instead of prom oting respon siblecorporate behavior, laws like

these create a me chanism forcorporations to shield themselvesfrom the release o f damaginginform ation on illegal po llutionpractices.

Indu stry ha s effectively advo-cated audit privilege laws byarguing that w ithout them, com -

panies will not perform voluntarycompliance audits because theywill be subject to penalties forany violation revealed by theaud it. In theo ry, on ce the fear of

self-inflicted govern me nt p en al-ties is rem oved , self-audits andcomp liance with the law w illincrease. There is little evide nceto sup po rt these claims.

Twenty-five states have insti-tuted audit privilege/immunitylaws since 1993; an ad dition al 11states have instituted environ-me ntal aud it p olicies since 1994.

According to a recent study bythe Nation al Conference of StateLegislatures (NCSL 1998), facili-ties in states with audit privilegelaws or policies did not audittheir environmental practicesmo re freque ntly than otherstates. The stud y also found thatthe ma jority of the voluntarydisclosures made were minor.These findings are consistent

with the results of the first disclo-sures from Michigan, where only33 violations were reported in554 audits through March 31,1999. In short, there is no e vi-dence that audit privilege lawsare producing more self-audits,eliminating p olluting p ractices a tthe worst facilities, or increasingcompliance with the law (NCSL1998).

States get fee author ity bu trefuse to use it to generateenforcement funds.

Historically, the U.S. EPA hasbeen able to use the p ow er of the purse as a means to ensureminimu m state pe rforman ce in

M ost audit pr ivi lege/

imm unity law s on the

books seek to pr om ote

self-au dits by

insulating com panies

from the l iabi l ity they

w ould otherw ise incur

w hen they document

violations of

environmental law.

There is no evidence

that audit privilege

law s are producingm ore self-audits,

eliminating polluting

practices at the w orst

facilities, or increasing

compliance with the

law.


15/34


imp lem enting federal environ-me ntal directives. Whe n statesfailed to implement regulations,EPA could withhold funds forvarious environm ental programs.

Today, this power is substan-tially diminished as the Congresshas d iverted a significant po rtionof its permitting and fee generat-ing auth ority to the state level.A good exam ple is Title V of theClean Air Act.

The 1990 amen dm ents to theClean Air Act replaced thesystem of multiple CAA permits

for different parts of one facility,with one consolidated Title Vp erm it. Title V, w hich ap p lies toall large sources of air pollutionand man y smaller sources ofhazardous air pollutants, alsoprovides a potential majorsource of funds for state envi-ronmental enforcement byauthorizing state officials tocharge pe rmit holders a p er ton

po llution fee that is set by thestate. The pe r ton po llution feeis specifically designed to re-cover a ll costs of pe rmitting an denforcing the conditions of thene w Title V p ermits.

In man y states, the fee p ro-cess has not wo rked. Som estates are simp ly hostile to thenotion of assessing a fee on

pollution to cover the costs ofregulating these same pollutingindustries. Inde ed , several statelegislatures have required thatthe fees be used solely for thepe rmitting p rocess and not foran increase in funds o r person-ne l for inspe ction function s (EPA1999). In others states, agen cies

have simply failed to set the feesat a level that will provideeno ugh fund s to run an effectiveenforcement program.

A 1999 U.S. EPA analysisfound that half the states haveinsufficient fund s to m ee t theirinspection com mitmen ts. Sp ecifi-cally, these states reported thatTitle V fees are insufficient toenforce Clean Air Act rules atTitle V facilities. Other statesreported a shifting of resourceswithin the state budgets thatresulted in no net gain for the

state environmental agenciesfrom Title V fees. Clea rly, statesare n ot u sing Title V fun dingauthority to ensure that there areenough environmental cops o nthe beat.

Environmental enforcementactions can greatly im prove theenvironment.

Empirical studies of the effectof environme ntal enforcemen thave con sistently show n w hatcommon sense and o ther lawenforcemen t experience suggest:crime and po llution are reduce dwh en inspections are increased.Studies of Coast Guard monitor-ing activities fou nd that bo th thefreque ncy and volum e o f oilspills de creased w ith stepp ed-up

inspe ctions. Othe r studies docu -men ted a strong de terrent effectof environmental inspections atpulp and paper mills (ELR April2000).

These studies also foundevidence that targeted enforce-ment may have an even greater

A 1 99 9 U .S. EPA

analysis found that

half the states have

insufficient funds to

meet their inspection

commitments.


16/34


de terren t effect. EPAs targetingof indu stry-wide p ollution viola-tions at po we r plants and e ngineman ufacturers p rovide dramaticevidence of the effectiveness of

this approach.

In 1998 seven diesel enginemanufacturers agreed to pay outmo re than $1 billion , including$83.4 million in fines, to settlecharge s that their prod ucts ille-gally spewed tons of pollutioninto the air. They also agreed tomake future engines muchcleaner.

The sett leme nt w as the resultof a targeted investigation by EPAand the Justice De partmen t,alleging that the seven largesttruck engine companies cheatedon the Clean Air Act requ ire-ments by equipping diesel en-gines w ith de feat devices.These computerized deviceswere programme d to p ass federal

emissions tests, but subsequentlyshu t off p ollution co ntrols afterthe en gines w ere in service,causing them to burn dirtier.

The companies committed$835 million to produce cleanerengines and $100 million forother environmental efforts.They also agreed to build e n-gines by October 2002 that will

me et em ission stand ards that arenot sched uled to go into e ffectun til 2004.

In p revious cases, three otherauto-makers settled with EPA onsimilar charges that stemmedfrom targeted EPA investigations.Honda agreed to pay $17 million

in 1998 to settle both Californiastate and federal charges thatinvolved pollution monitoringsystem s. Gen eral Motors pa idan $11 million fine and agreed

to spend $34 million on anti-pollution initiatives and recall470,000 Cadillacs in 1995 tosettle charges that it tamperedwith pollution-control computerson cars sold b etwee n 1991 and1995. And in 1998 Ford agreedto pay $6.3 million in fines andcosts for pollution-control prob-lems on 60,000 of its 1997 vans.Toyota h as no t settled its suits

w ith EPA.

Coal Power Plant Suits

In the largest environmentallawsuit in the nations history,the governmen t sued seven of the largest electric companies fordefying pollution control re-qu irem en ts and illegally po llut-ing the air.

The suits, against 32 coal firedpo we r plants in ten states,accuse utilities of illegally modi-fying their plants without install-ing m ode rn po llution controldevices in other words, thecompanies cheated on theirrequiremen ts und er the CleanAir Act. Accord ing to U.S. EPA,the efforts, if succe ssful, will

have the same effect as taking26 million cars off the road.

Again, the p roblem w asdiscovered o nly wh en o ne o f EPAs targeted en forceme ntinitiatives found similar prob-lems with other ind ustries. BothEPA and State inspectors failed

Empirical studies of the

effect of environm ental

enforcement have

consistently show n w hat

com m on sense and

other law enforcement

expe rien ce suggest:

cr ime and pollut ion are

reduced w hen

inspections are

increased.


17/34


to identify the dramatic expan-sion in generating capacity atold power plants as a newsource of pollution that requiredne w em ission con trols. At the

same time, the utilities failed,apparently deliberately, to in-quire of states w hether n ewpermits would be required forthe sub stantial upgrade s theymad e at these plants.

To date , one compan y,Tampa Electric Company(TECO) of Florida has settled

with the governmen t. Thesettlement includes a $3.5million fine, an agreement toswitch on e p lant from coa loperation to natural gas at a

cost of $1 billion, and acomm itment to cond uct $10million in po llution co ntrolresearch and experimentation.The utility, as usual, admittedno wrongdoing and statedthat the decision was drivenentirely by economic consid-erations.


18/34



19/34


EPA has failed to implementconsistent, mandatory baselinerequiremen ts for en forceme nt ofenvironm ental laws, even asthey have de legated just aboutall enforcement authority to the

states. As a result, p rogramsvary wide ly from state to state,and the U.S. EPA has limitedability to ensure that minimumperformance standards are met.

The EPA has pub lished d e-tailed guidance on targeting andother enforcement strategies, butthese strategies are just guide -lines and carry no weight with

states that choose to ignorethem . A Jun e, 2000 rep ort fromthe GAO found that half of theEPA regional offices had no ttaken any action to imp leme ntheadqu arters guidance o n e n-forcem en t. These five regions,did not implement the strategyand engage in only minimalinspe ction planning and over-sight with their states (GAO2000, p. 24).

If a state is completely failingto en force a p articular statute,U.S. EPA can revoke the statesauthority to enforce the law.This drastic action, however, hasnever been taken without stateconsent, and will not likely be

Th e I nspection Process

Chapter 2

con temp lated in the future. Sho rtof that, the federal governmen thas virtually no m ean s to reign instate auth orities that simp lychoose to stop meaningful en-forcement activities.

The Recomm ended InspectionPlanning Process

The EPA recomm end s thatevery year the states d evelop a ninspection plan based upon theagencys air quality ComplianceMon itoring Strate gy (CMS). Thisrecommendation is entirelyoptional and in general states are

not following it (GAO 2000).

A 1998 Clean Air Act audit bythe EPAs Office of InspectorGen eral (OIG) foun d that moststates were not complying withthe CMS as a m ean s for system-atically targeting inspections,p articularly for sign ificant viola-tors. Acco rding to the O IG, it isgenerally perceived outside the

agency that EPA has aban don edits CMS.

EPAs own review followingthe O IG report foun d that only16 of 22 states examined pro-duced an annual list of facilitiesto be inspected; only eight of 22states gave a rationale for the ir

The EPA h as pub lished

detailed guidance on

targeting and other

enforcement

strat egies, b ut these

strategies are justguidelines and carry

no w eight w ith states

that cho ose to ignore

them.

EPAs review found

that only 16 of 22states examined

produced an annual

list of fa cilitie s to b e

inspected; only eight

of 22 states gave a

rationale for their

selections.


20/34


selections o r explained ho w EPApriorit ies w ere ad dressed b y thelist.

The report further details thatfor variou s reaso ns, includingcircumstances involving state-EPArelation s, past region al practices,and current regional priorities,the [EPA region al o ffices] ten d topursue other strategies, includingminimal or no interaction withStates in th e se lection o f sou rcesfor insp ection . (EPA 1999.)

Currently many states claimthat they do not have sufficientfunds to inspe ct all of the ma jorfacilities they regulate and stillmaintain a reason able presenceat oth er p olluting (mino r)facilities. To com p en sate for thisdeficit and in response to thestates de ma nd for gre ater flex-ibility, EPA allow s the states tosubstitute some inspe ction s at

other higher risk smaller facto-ries for inspections at many majorfacilities

This flexibility, however, is notme ant to app ly to rep eat offend -ers, or the so-called high p riorityviolators of the law . The shift

away from major polluters isintend ed to ap ply only to com-pan ies that have strong recordsof compliance w ith environm en-tal law. O ur analysis ind icates

that often this is no t the caseand that many facilities withpoor compliance records are notbeing inspected at all.

Clean A ir Act Inspections

U.S. EPA only counts level 2inspections or higher (there are5 levels) in its review of CAAinspe ction s. A level 2 inspe ction

is considered a com pliancede termining inspection. Itincludes a review of existingrecords on source operation, butdoes not require stack tests.Tests can be required, however,if an inspector feels it is neces-sary to verify com p liance .

In addition to level 2 inspec-tion s the states also p erform

level 0 and 1 inspections. Level0 inspections, which are oftencalled drive-by or windshieldinspe ctions, cann ot d eterminecompliance with the CAA andare used primarily to determinew he ther the factory is still op er-ating. Leve l 1 insp ection s areon -site visual inspections. Theyare u sed to detect malfunctionsor excess emissions under un-

usual o pe rating cond itions.Neithe r level 0 or level 1 insp ec-tion s satisfy minimu m federalrequiremen ts. They are notrepo rted to the EPA, and are n otinclud ed in this an alysis. (SeeApp end ix 1.)

I nspect ion Type Percent

Rec o n n ai ssan c e (d r i v e-b y ) 4 2 .0 %

C o m p l ian c e Ev al u ati o n (n o n -sam p l i n g) 3 8 .8 %C o m p l ian c e Ev al u ati o n (sam p l in g) 1 0 .7 %O th er 8 .5 %

Table 6 . Clean W ater Act Inspection Types 19 98 and 199 9.



21/34


Field citations em pow er inspectors and cut red tape

O ne p rom ising en fo rcem en t op t ion i s t heuse o f f ie ld c i ta t ions, t ra f fic t icket -sty led

ci tat ions issued on-si te by inspectors,genera l ly car ry ing a penal ty . F ie ld c i ta t ionsa re cu r ren tl y be ing u sed by a num ber o fenv i ronm en tal p rog ram s on the fede ra l ,sta te , and l oca l l eve ls, inc l ud ing U ST[U nd ergrou nd Storage Tank] p rograms. Inthe exper ience o f m any s ta te and lo ca l U STenforcem ent program s, f ie ld c i ta t ions areext remely u sefu l in add ressing m anypreva lent , c lear -cut v i o la t ion s that arerelat ively easy to correct . Addressing these

v io la t ions using estab l ished enforcem entm ethod s, requ i res a g rea te r com m i tmen tof sta ff tim e and resou rces, w h ic h m ay bed i f fi c u l t to o b t ai n o r w h i c h m u st c o m p e tew i th t im e and resou rces that sta ff d i rec tstow ard re leases or v io l a t ions that are notappro pr ia te ly addressed by the f ie ld c i ta t ionp rog ram . W hen a c i ta ti on p rog ram i sprop er ly d esigned, fac i l i t ies issued c i ta t ionsfor c lear -cut v i o la t io ns have greaterincen t i ve to co r rec t p rob lems and pay

penalt ies than to contest . Thus, inappro pr ia te c i rcum stances, fie ld c i ta t ionenforcement is less resource- intensive thant rad i t i ona l m e thod s o f en fo rcem en t .Resou rces are saved as ci tat ion s are issued

on the spo t and p reparation o f fo rm al lega ldocuments and procedures, such as

adm in ist ra ti ve app ea ls, a re m in im ized .

W h i le f i e ld c i t at i ons w ere deve loped toexpedi te the enforcem ent pro cess, they a lsoencourage ow ners and o perato rs to com e in tocom p l iance in an e f fec t i ve and resource -e ff i c ien t m anner . By rem ov in g the incen t i ve toexpend the i r t im e and resou rces l i t iga t ing thelarge penal t ies typ ic a l o f m ore form alen fo rcem en t ac t ions, ow ners and opera to rsw ho rece iv e f ield c i ta t ions sho u ld see a c lear

advantage in focu sing the i r energy andeconom ic resources on ach iev ing com p l iance .Thus, f ie ld c i ta t ions are a cr i t i ca l com po nentof O f f ice o f U nd ergrou nd Storage Tanks (O U ST) ef for ts to ach ieve h igh ra tes o fcom p l iance am ong regu la ted en t i ti es w i thm i n i m a l e x p en d i t u r e o f p u b l i c a n d p r i v a teresources.

Acc ord ing to EPA f i eld c i t at i ons shou ld on lybe u sed for :

Se l ec t v i o l a ti o n s t h at ar e c le ar -c u t a n deasi ly ver i f iab le . Se lec t v io la t i ons tha t a re easi l y co r rec tab le . Se l ec t f i rst -t i m e v i o l at o rs o n l y .

(U .S. EPA, O f f ice o f U nd ergrou nd Storage Tanks, G uid ance for Federal F ie ld Ci ta t ionEn fo rcemen t , O c tober 1993)


22/34


Clean W ater Act Inspections

Under the federal CleanWater Act, the U.S. EPA requiresa full compliance evaluation at a

factory be fore it considers thefacility insp ecte d. A full co mp li-ance inspe ction includes areview of comp any p ollutionand operation records and aninsp ection o f the facility. EPAdoe s not requ ire w ater testing o rpo llution effluent testing forthese inspe ctions.

Unlike the Clean Air Act,

inspections that do not qualify asa full compliance evaluationfreque ntly are rep orted to theEPA by the states. Inde ed , the

largest category of CWA in-spections rep orted to the EPAis so-called recon naissanceinspe ctions, w hich represent42 percent of all inspections

reported to the EPA (Table 6).These inspections can b e assimp le as a drive-by or e vena fly-over, and except in themo st unusual cases they donot allow for even basic com -p lian ce evaluation s. U.S. EPAdoes not count reconnaissanceas an inspection in their yearend evaluation of enforcementactivity. Som e states, ho w -

ever, rely heavily on thesedrive-by evaluations, includingDelaware, Illinois and Pennsyl-vania.

The lar gest category of

CW A inspections

repor ted to the EPA is

so-called

reconnaissance

inspections, w hich

represent 4 2 percent

of all inspections

reported to the EPA.

The se in spect ions can

be as simple as a

drive-by or even a

f ly-over.


23/34


Local health departmentsregularly inspe ct restaurants, andautomo biles are inspected rou-tinely for both safety and pollu-tion . But w he n it com es toenvironm ental crime by b ig

corporations, a different standardhas evolved.

Too often, large-scale en vi-ronme ntal lawb reakers receivelittle or n o scrutiny b y en viron-mental law enforcement officials.The situation is espe cially egre-gious for major po lluters w ith arecord of past violations pre-cisely those facilities that warrant

the most careful monitoring andoversight. O ver the time pe riodexamined, hun dreds of knownhigh priority violators of thenations clean air and water lawswe re not even inspe cted. Ifstates are not ke ep ing track ofknow n violators, there is no waythat the nations environmentallaws can be properly enforced.

The States and EPA fail toinspect factor ies on a t im elybasis.

Overa ll, one th ird o f a ll thenations major air polluters(as op po sed to just highpriority violators) have no t

Findings

Chapter 3

bee n inspected in the lastthree years. EPA recom -mends that all major pollut-ers be inspe cted at leastonce a year.

H undreds of factories w ith ahistory o f violations are notinspected o n a tim ely basis.

Our analysis found that thestates have failed to inspecthu nd reds o f facilities that onEPAs list of high priority viola-tors of the clean air and wateracts

A to tal of 560 factoriesofficially listed as highpriority violators of theClean Air Act we re n otinspe cted during the twoyear period ending October1999, the most recent pe-riod w ith re liable informa-tion . Soo t from these facto-ries and other sources killstens of thousands of people

annu ally, while ozon epollution, to which theyalso contribute, puts nearlyone million people, manyof who m are children, inemergency rooms withacute asthma attacks eachyear (Clear the Air 1999).

O ver the time per iod

examined, hundreds of

know n high prior ity

violators of the

nations clean air and

w ater law s w ere noteven inspected.


24/34


H a lf o f th e se u n in sp e c te dviolators w ere co ncen-trated in five industrialstates (Tab le 2). O fficialsfrom three of these states

Ohio, Wisconsin, andMichigan have beenoutspoken advocates of asofter, less punitive style ofenforcement.

In t h es e to p f ive s ta te s,from 21 percent (Michigan)to 48 percent (Ohio) of allhigh p riority Clean Air Actviolators were not in-

spected from Octobe r 1,1997 through Septemb er30, 1999.

For the Clean Water Act

(CWA):

Tw o h u nd re d an d eigh tythree (283) significantviolators of the CleanWater Act (CWA) w ere n ot

inspected during the sametwo-year pe riod (Table 2).Due to weak pollutionrules and shoddy enforce-me nt, 40 pe rcent of thenations w aters rem ainunfishable and/orunsw imm able nea rly 30years after the passage ofthe Clean Water Act.

H a lf o f th e se u n in sp e c te dviolators w ere co ncen-trated in just four states Texas, Ohio, Michigan, andMassachusetts, all of whichop enly advocate assistance,as opposed to punishmentof environmental lawbreakers (Table 3).

Te x as, Mic h ig an a n d O h io ,failed to inspect 25, 20 and16 percent of percent of allhigh priority violators ofthe Clean Water Act during

the two-year period ana-lyzed.

All Inspections

The abo ve figures do n otinclude all inspections butinstead are limited to violatorsthat EPA classifies as signifi-cant or high priority and toinspe ctions that meet m inimum

federal requirements so-calledlevel 2 inspections under theClean Air Act, and com plianceevaluations under the CleanWate r Act. High priority an dsignificant violators are limitedto major emissions, monitoring,or major procedural violations ofthe law . Many states, ho w ever,also reported a substantialnumber of superficial inspec-

tion s to the U.S. EPA. The secursory inspections reveal ape rvasive cynicism in e nviron-me ntal enforceme nt that pointsto a deep er problem in manystates than just a failure toinspect the worst polluters.

According to data submitted bythe states to the U.S. EPA:

42 p e rc e nt o f a ll Cle a nWater Act inspections wereso called reconnaissanceinspe ctions w here inspec-tors are no t even requ iredto get o ut of their cars.U.S. EPA doe s no t con side rdrive-by or fly-over inspe c-tions sufficient to ensure

Cur sory inspections

reveal a pervasive

cynicism in

environmental

enforcement that

points to a deeper

problem in many

states than just a

failure to inspect the

w orst polluter s.

There are quite

literally no binding

minimum standardsfor the frequency of

inspections under

either federal clean

w ater or clean air

laws.


25/34


comp liance with fede ralpollution control rules.

In some heav ily indus tr ia l-ized states, almost all Clean

Water Act inspections weredrive-bys or fly-overs.Delaware top pe d all statesw ith 95 p ercen t of all CWAinspections falling into thiscategory, followed byIllinois with 89 percent,Pennsylvania with 88pe rcent, and Indiana w ith86 percent (Table 4).

The U.S. EPA has contributedsignificantly to weak state-levelenforcement of the nationsen vironm en tal law s, by failing topro mu lgate strict rules de line at-ing minimum acceptable en-forcem en t practices. There arequ ite literally no bind ing m ini-mu m standa rds for the fre-quency of inspections undereither federal clean water or

clean air laws. With no on eminding the store, many heavilyindustrialized states are lettingenvironmental enforcementprograms deteriorate d ramati-cally. As eviden ce of the pro b-lem our analysis shows that:

Overa ll, one th ird o f a ll thenations m ajor air po lluters(as op po sed to just high

priority violators) have no tbee n inspected in the lastthree years (Table 7).

Som e states have failed to re portinspections.

Several states have failed toaccurately report their compli-

Percent of

factor ies

not inspected

Rank State FY 1 9 9 7 - 1 9 9 9

1 Il l i n o i s 6 3 .2 %2 M assach u setts 5 8 .0 %3 A l aska 5 7 .1 %4 Id ah o 5 5 .1 %5 O h i o 5 4 .4 %6 N eb raska 5 3 .4 %7 N ew H am p sh i re 4 9 .5 %8 W isco n si n 4 8 .6 %9 N ew M ex ic o 4 2 .4 %

1 0 Co lo rad o 4 2 .0 %1 1 In d i an a 4 1 .5 %1 2 W yo m in g 3 9 .0 %1 3 N o rth D ako ta 3 8 .3 %

1 4 Tex as 3 8 .2 %1 5 N ew Yo rk 3 8 .0 %1 6 M ai n e 3 6 .5 %1 7 Kan sas 3 3 .5 %1 8 N ew Jersey 3 3 .5 %1 9 Ken tu cky 3 1 .9 %2 0 M o n tan a 3 1 .1 %2 1 Io w a 3 1 .1 %2 2 G eo rgia 2 9 .9 %2 3 Ten n essee 2 9 .0 %2 4 N evad a 2 8 .9 %2 5 U tah 2 7 .8 %2 6 Flo r id a 2 6 .2 %2 7 A r i zo n a 2 4 .1 %2 8 Lo u isian a 2 2 .5 %

2 9 O k lah o m a 2 1 .4 %3 0 M i c h i gan 2 1 .2 %3 1 H aw ai i 1 9 .6 %3 2 Cal i fo rn ia 1 8 .9 %3 3 W est V i rgin i a 1 8 .0 %3 4 Co n n ec ti c u t 1 7 .5 %3 5 Pu erto Ri co 1 7 .3 %3 6 M i sso u r i 1 5 .6 %3 7 So u th Caro l i n a 1 4 .5 %3 8 N o rth C aro l i n a 1 3 .8 %3 9 Pen n sy l van ia 1 3 .7 %4 0 M i ssi ssip p i 1 3 .5 %4 1 W ash in gto n 1 1 .8 %4 2 A rkan sas 1 1 .1 %4 3 A l ab am a 1 0 .4 %

4 4 D el aw are 8 .6 %4 5 V i rgi n ia 7 .2 %4 6 M ary l an d 5 .4 %4 7 O rego n 3 .4 %4 8 V erm o n t 0 .0 %4 9 Rh o d e Islan d 0 .0 %5 0 So u th D ak o ta 0 .0 %

N /A M in n eso ta N /A

A verage 3 1 .8 %

Table 7. N early one-third of al l m ajor air polluters w erenot inspected in the past thr ee years.



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ance information to U.S. EPA.Without complete enforcementda ta its imp ossible for EPA tooversee the states execution ofen vironm en tal laws. Two states

Virginia and Wisconsin have

not accurately reported theirClean Wa ter Act data. Minne -sota has also failed to reporttheir Clean Air Act compliancedata to U.S. EPA.


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M ethodology

Chapter 4

The analysis in this report isbased on data from Pe rmit Com -pliance System (PCS) d atabasefor Clean Water Act information.The Clean Air Act data is takenfrom U.S. EPAs Air Facility Sys-

tem (AFS) database. In bo thcases the da ta was e xtractedusing U.S. EPAs IDEA Database

Both the PCS and AFS data-bases contain information submit-ted by the states (or EPA regionaloffices) to the U.S. EPA. U.S.EPA in turn compiles the datainto a national datab ase. Werestricted the a nalysis to p erm its

that are categorized by the statesand regions as major for b othClean Air Act and Clean WaterAct facilities a designation thatis based upon a combination offactors including toxic pollutionpotential, pollution volume, andpu blic he ath impacts.

The states and U.S. EPA re-gions submit their inspection datato U.S. EPA prior to the en d o fEPAs fiscal yea r (Sep tem be r 30)for accou nting pu rpo ses. Afterlengthy conversations with EPA

staff, it wa s de termined that thesefiscal year end data were by farthe m ost reliable d ata available.Thus, w e limited ou r ana lysis toinspection d ata for the fiscalyears 1999, 1998 and 1997.

The analysis is targeted tofacilities that were listed on theCAA high priority violators listor CWA significant non-compli-

ance list in fiscal year 1997, 1998or 1999. We then iden tifiedthose ma jor facilities tha t had no treceived a full compliance in-spection in either fiscal year 1998or 1999 in the analysis.


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C lean A ir Act I nspection Types

Appendix

Level 0

Level 0 consists of a determination of the continued operation ofthe sou rce and ma y not involve an on -site visit. It techn ically is notan inspection and the Agency does not consider a Level 0 inspectionto be an accep table com pliance assurance me thod. A Level 0 inspe c-

tion typically has be en characterized as a drive-by or w indshieldinspection.

Level 1

The Agency does not consider a Level 1 inspection, in most cases,to be a bo nafide com p liance insp ection. A Level 1 inspection is anon-site inspection that is usually limited to the evaluation of visibleemissions from process vents, fuel combustion sources, incinerators,and fugitive em ission so urces. This type of inspection shou ld only

be used to enforce op acity standa rds or particulate standards wh en acorrelation betwe en op acity and mass em ission rates has be en estab-lished.

This inspe ction req uires a minimu m o f t ime and man po we r andplaces limited regulatory p ressure or involvem en t on the sou rce. ALevel 1 inspection should be restricted to sources where there is aminimu m po tential for m alfunction or excess em issions u nde r non -representative, operating conditions.

Level 2

Level 2 is considered a compliance determining inspection inwh ich current control device an d p rocess ope rating con ditions m aybe recorded as part of the source evaluation in addition to visibleem ission ob servation s. This level of inspe ction , ho w ever, do es notinclude the m easureme nt of ope rating con ditions b y the inspe ctor orthe com pletion of a detailed e nginee ring ana lysis. It do es include a


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review of existing records an d log bo oks on source op erations, pa r-ticularly for the interven ing p eriod follow ing the last inspection.

In a typical application, the inspector may record such processitems as feed rates, temperatures, raw material compositions, process

rates, and such con trol equipm ent pe rforman ce pa rameters as waterflow rates, water pressure, static pressure drop, and electrostaticpre cip itator (ESP) pow er levels. The insp ector could the n use thesevalues to determine any significant change since the last inspection orany p rocess ope rations o utside norma l or permitted cond itions, par-ticularly wh en coup led with the aforeme ntione d records che ck.

A significant change in operating conditions could require that theinspector upgrades the inspection to a Level 3 or that a stack test becond ucted to verify com pliance.

Level 3

Level 3, a thorough and time-consuming inspection, is designed toprovide a detailed engineering analysis of source compliance usingme asured o pe rating p arameters such as p ressure d rop, fan staticpressure and current, gas stream temperature, ESP power levels, fluegas con dition s, oxygen level, and w ater flow rates. The me asureddata are reduced and used to calculate flue gas volume, superficialvelocity, specific collection area, inlet velocity, air-to-cloth ratio, hoodinlet volume and velocity, liquid-to-gas ratio, throat velocity, etc.Because m any o f these are con trol device and source spe cific, they

mu st be ad justed to the individua l source be ing inspected.

There are three major purposes for this type of inspection:

To establish baseline op erating condit ions;

To suppor t case deve lopmen t ac tiv ity ; and

To verify whether the source is experiencing O&M problemsthat result in less than continuing compliance with the emissionstandards.

Level 4

The Level 4 inspection prepares an actual emissions baseline forthe source throu gh the use of a stack test. This inspection requ iresthat the inspector monitor all process and control device-operatingpa rame ters du ring a stack test for use du ring future insp ections. TheLevel 4 inspection is typically applied to sources with ESPs or high-ene rgy we t scrubb ers. The inspe ction m ay requ ire docum entation of


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control equipme nt cond itions through the use of an internal inspe c-tion before the stack test or a chemical analysis of process material orfuel that is being burned (e.g., percent sulfur, percent ash, heat con-tent, or pe rcent mo isture).

The purpose of the increasing level of inspection is to concentratethe resources o n those sou rces that have the greatest po tential toexc ee d the e mission lim its. For instan ce, initial resu lts of the Leve l 3inspection may indicate that specific sources are not experiencingdeficiencies in p erforman ce an d, therefore, do not w arrant a h igherlevel of insp ection. In the se cases, the freq ue ncy or level of inspec-tion may b e ad justed do wn ward consistent with the results of theLevel 3 inspection.

Source: U.S. Environm ental Protection Agency. The Clean Air Act:

Compliance Enforcement Guidance Manual.


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References

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Brown , Steven R. Environm en tal Coun cil of the States. Sum me r1999. The States Protect the Environm en t.

Clea r the Air. O ctob er 1999. O ut of Breath : He alth Effects fromOzone in the Eastern United States.

Coh en , Mark A. Environm en tal Law Rep orte r. April 2000. Emp iri-cal Resea rch o n the De terrent Effect of Environm en tal Mon itoring an dEnforcement.

Environm en tal Working Group . 2000. Pollution Pays: Failure toEnforce Clean Water Law s.

Environm en tal Working Group and Frien ds of the Earth. 2000.Clean Water Act Report Card: How the regulators are keeping ourwater clean.

Environm en tal Working Grou p. 1999. Abo ve the Law : Ho w thegovernment lets major air polluters off the hook.

Michigan De pa rtmen t of Environm en tal Q uality. 1999. Ann ualReport of Voluntary Disclosure Submittals.

Nationa l Con feren ce of state Legislatures. O ctob er 1998. StateEnvironm en tal Aud it law s an d Policies: An Evaluation .

Ohio Citizen Action, Rivers Unlimited, Ohio Sierra Club, and OhioPIRG. Aug ust 5, 1999. Hidd en from th e Pub lic: The D istortion o f the

Ohio EPAs Mission.

Pub lic Employee s for Environm en tal Resp on sibility (PEER). De cem -be r 1998. Une ven Justice: Environ me ntal Prosecu tion s in the ClintonAdm inistration and U.S. Attorney Environm en tal Rep ort Card.

U.S. Environm en tal Prote ction Agen cy. July 26, 1999. A Review o fthe Comp liance Mon itoring Strategy.


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U.S. Environm en tal Protection Agency, O ffice of Inspe ctor Ge ne ral.Sep temb er 25, 1998. Consolidated Repo rt on O ECAs Oversight ofRegion al and State Air Enforcem en t Programs.

U.S. Environm en tal Prote ction Agen cy. 1987. The Clea n Air Act

Compliance/ Enforcem ent Gu idance Manu al.

U.S. Ge ne ral Accoun ting O ffice. Jun e 1, 2000. Environm en talProtection : More Consistency Nee de d Amo ng EPA Regions in Ap-proach to Enforcement.

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