EPA Inspector General Targets Water and Air Enforcement

The U.S. Environmental Protection Agency's (EPA) Office of Inspector General (OIG) recently provided two assessments of EPA's weaknesses in enforcing water and air programs. The OIG cited management problems at the federal and regional levels that largely indict the Bush administration's lax approach to environmental enforcement.

On Oct. 14, the OIG released an evaluation report entitled EPA Oversight and Policy for High Priority Violations of Clean Air Act Need Improvement. High priority violations (HPVs) are significant violations of the Clean Air Act (CAA) by stationary sources like power plants and factories. These significant violations led the EPA to institute a high priority violation policy during the 1990s. The policy contains thresholds defining HPVs and steps the agency should take to address the violations. The steps may ultimately lead to EPA regional offices displacing states in pursuing violators if a state is unable or unwilling to act.

OIG's investigation of the HPV program focused on violations classified as HPVs between October 2005 and Dec. 31, 2007, from five regions with the highest number of unaddressed high priority violations. EPA's policy requires that these significant violations be addressed (either resolved or have formal enforcement actions taken) within 270 days after EPA or the states receive notice of the violations.

The report summarized the results of the reviews of more than 3,700 violations, concluding:

HPVs were not being addressed in a timely manner because regions and States did not follow the HPV policy, EPA Headquarters did not oversee regional and State HPV performance, and regions did not oversee State HPV performance. According to EPA data, about 30 percent of State-led HPVs and about 46 percent of EPA-led HPVs were unaddressed after 270 days.

The report cited several management problems throughout EPA. For example:

  • Polluters did not receive notices of violations within the time required
  • None of the states and regional offices met to review case strategies within the time required
  • States often employed voluntary approaches with the violators rather than imposing formal enforcement actions as required by agency policy
  • Regional offices did not take over enforcement of delinquent cases when states failed to act

The OIG report was directed to Cynthia Giles, Assistant Administrator of the Office of Enforcement and Compliance Assurance (OECA), and contains several recommendations for agency action. In her response to the OIG (contained in the report), Giles outlined several actions the agency has already taken or intends to take to remedy its poor performance. She noted, however, that EPA intends to review the HPV policy "to determine what revisions might be necessary to ensure the most effective implementation of an HPV policy" and whether the policy is the appropriate tool to address significant violations of the CAA. Until that review is complete, some of the OIG recommendations will not be implemented.

On Oct. 15, the House Committee on Transportation and Infrastructure held an oversight hearing entitled "The Clean Water Act after 37 Years: Recommitting to the Protection of the Nation's Waters." The focus of the hearing was to explore state and federal enforcement issues. Among the ten witnesses were Lisa Jackson, EPA Administrator, and Wade T. Najjum, Assistant Inspector General for Program Evaluation, of EPA's inspector general's office.

At the hearing, Jackson announced the creation of the Clean Water Action Enforcement Program, the "first step in revamping the compliance and enforcement program," according to the agency's press release. The plan had been under development by OECA since July. It outlines EPA's strategy to target its enforcement to the most significant water pollution problems, to provide better access by the public to water quality data in local communities, and to strengthen performance at both the federal and state levels.

The plan describes the challenges forcing EPA to focus on the most significant sources of pollution, noting, "Over the last 30 years, water enforcement focused mostly on pollution from the biggest individual sources, such as factories and sewage treatment plants. Now we face different challenges. The regulated universe has expanded from the roughly 100,000 traditional point sources to nearly one million far more dispersed sources such as animal feeding operations and storm water runoff. Many of the nation’s waters are not meeting water quality standards, and the threat to drinking water sources is growing."

Najjum's testimony focused on the challenges EPA faces in its management and enforcement. Each year, the OIG lists the major management issues that should be addressed agency-wide. For FY 2009, three issues on that list affected management and enforcement at the agency: EPA's organization and infrastructure, its oversight of states' responsibilities, and performance measurement.

In each of these areas, Najjum presented a range of problems similar to those described in the OIG report on air program enforcement. Reporting and data problems, for example, make it extremely difficult for the agency to oversee state activity to determine if the law is being adequately enforced. States and regional offices are inconsistent in their approaches to managing enforcement of violations and often interpret EPA guidance differently.

In addition, Najjum discussed problems resulting from the organizational structure of EPA, which has both functional offices (monitoring, research, enforcement, and standard-setting) and pollution media offices (air, water, radiation, pesticides, etc.) As a result, there is inadequate coordination between offices at the federal level and between headquarters and regional offices; the missions, goals, and performance measures across programs are not linked together; and inadequate resources force difficult allocation decisions.

Both OIG assessments of EPA's enforcement capabilities and challenges reinforce the arguments critics have leveled at EPA and presidential administrations for at least the last decade. Although the agency has been significantly underfunded to meet its responsibilities, it has not energetically enforced the law, its oversight of states has been lax, and it faces a continuous stream of new challenges.

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