EPA, the Enforcer of Federal Pollution Control Laws

“EPA promulgates national regulations and standards” with help from the Department of the Interior, Army Corps of Engineers, states, tribes, and NGO stakeholder groups. (CRS Report RL32240, The Federal Rulemaking Process: An Overview, Maeve P. Carey) EPA’s Office of Enforcement and Compliance Assurance in coordination with the Department of Justice and EPA’s 10 regional offices provide day-to-day federal enforcement activities, monitor compliance, provide incentives, and fines. Disagreements between the federal EPA and state governments occur in regards to environmental priorities and strategy, compliance assistance, and enforcement. Enforcement issues debated in congressional hearings and legislation:

• Constant increased compliance monitoring and reporting
• Environmental enforcement and penalties to the Department of Defense and the Department of Energy
• How to measure success – via measurable health and environmental benefits or via total dollar value of penalties
• Are penalties enough to deter polluting or too harsh, causing economic hardship? The EPA and environmentalists say that it is not enough while Americans believe that penalties not only cause hardship but actually harms business, freedom, and property rights.
• How effective is pollutant trading programs and enforcement?
• Are punishment and pollution deterrence effective through litigation?

“There is no readily available, current, comprehensive list and description of the complete universe of those who are regulated under all of the major pollution control statues. EPA has been criticized for not adequately defining the regulated universe, a step that the Government Accountability Office (GAO) determined to be a critical component necessary to evaluate the effectiveness of enforcement.” (p. 15, FAS.org) The EPA monitors 31 economic activities and industries: aerospace, agriculture, automotive, chemicals, computers/electronics, construction, dry cleaning, education, federal facilities, food processing, furniture, health care, local government operations, marinas, metals, minerals/mining/processing, paints and coatings, petroleum, pharmaceuticals, ports, power generators, printing, prisons and correctional institutions, pulp/paper/lumber, ready mix/crushed stone/sand and gravel, retail, rubber/plastics, shipbuilding and repair, textiles, transportation, and tribal. EPA monitoring is achieved by:

• Self-monitoring/reporting
• Review of records
• Full and partial inspection/evaluations
• Area monitoring of the vicinity of a facility

EPA enforcement includes:

• Notice of violation (the initial process)
• Requirement of a violator to take specific action
• Revocation of a violator’s permit to discharge
• Penalty for non-compliance
• Negotiated settlements through civil administration actions
• Civil judicial process (lawsuits filed in federal district court by DOJ on behalf of EPA and for states by State Attorney General)

The EPA’s criminal enforcement program had an estimated 191 investigators assigned in 2013. In 2009, the EPA built the “EPA Fugitives” website which contains “photographs and information about alleged violations of individuals who have avoided prosecution for allegedly committing environmental crimes.” (p. 26, CRS Report RL34384) Finally, some members of Congress showed interest in the sanctions and penalties imposed by EPA in settlements that require redress of environmental damages known as “injunctive relief,” fines, “permanent or temporary closing of facilities or specific operations, increased monitoring/reporting, revocation of existing permits, denial of future permits, and barring of receipt of federal contract funding or other federal assistance.” (CRS Report RL34384, p. 27) Fines collected by the EPA are deposited with the U.S. Treasury. But, under the Superfund and Clear Water Acts, money collected for replacing or restoring natural resources must be used to restore the resources. In the November 6, 2013 Federal Register, the EPA published the “Civil Monetary Penalty Inflation Adjustment (Final) Rule. EPA and DOJ use the following templates to calculate civil penalties:

• BEN, to calculate economic advantage/savings if the violator does not comply
• ABEL, to measure a corporation’s ability to afford compliance, cleanup, and civil penalties
• INDIPAY, to assess an individual’s ability to afford compliance, cleanup, and civil penalties
• MUNIPAY, to gauge a municipality’s ability to comply, to cleanup, and to pay civil penalties
• PROJECT, to evaluate a violator’s ability to fund instead a Supplemental Environmental Project (SEP) to mitigate pollution compliance such as a public health project, an emergency preparedness project, etc.

Waiving “sovereign immunity” the EPA assessed nearly $615 million in penalties in 2012 against 61 federal agencies. Regulated businesses and individuals were charged in 2012 $9 billion for judicially mandated pollution controls, cleanup and “beneficial” SEP projects. In 2012 EPA claims that 2.2 billion pounds of pollutants were removed from air and water, $208 million were levied in civil penalties (administrative and judicial) and $44 million in criminal fines and restitution. EPA issued 1,780 penalty orders and referred 215 civil cases to the DOJ. (Congressional Research Service, RL34384, December 16, 2013, Robert Esworthy, Federal Pollution Control Laws: How Are They Enforced?) To fund the EPA’s enforcement/compliance activities, the President FY 2014 budget request was $625 million, more than the previous year’s $615.9 million. Detailed allocations for the EPA were not available. The DOJ’s FY2014 budget request funding for its Environment and Natural Resources Division was $112.6 million and 520 FTEs. According to Robert Esworthy, one important issue for the 113th Congress regarding EPA should be “additional oversight hearings,” review of grants award process associated with EPA-states’ partnerships, and “statute-specific legislation to address long-standing concerns that affect certain aspects of EPA enforcement/compliance activities under the various pollution control laws.” American taxpayers, business owners, and some members of Congress are concerned about more legislation that would further expand the overreaching power of the EPA while environmental groups (NGOs) are upset about reining in and constraining the enforcement/compliance power of the EPA. EPA’s unchecked power has been blamed for destroying economic prosperity, the supply of food, Americans’ means of support, and preventing the exploration of much needed resources that fuel the economy, in an effort to protect the habitat of a small fish, a rare bird, a mouse, while wind and solar farms are given federal permission to chop and fry thousands of birds with their “green” wind turbines and solar panels, including the endangered bald eagle in California.