IG Office Comments on EPA's Enforcement

[NaepcA1]

Lax state oversight has led to 'weak and inconsistent' enforcement -- IG
Jeremy P. Jacobs, E&E reporter
Published: Tuesday, December 13, 2011
U.S. EPA has failed to provide adequate oversight of state regulatory programs, leading to inconsistent environmental protections, the agency's inspector general said in an unusually pointed audit.
"State enforcement programs frequently do not meet national goals and states do not always take necessary enforcement actions," the Office of Inspector General said in the report released Friday. "State enforcement programs are underperforming: EPA data indicate that noncompliance is high and the level of enforcement is low."
The report examined enforcement of the Clean Air Act, Clean Water Act and Resource Conservation and Recovery Act (RCRA). While EPA sets the standards for these programs, it relies on states to enforce them.
"EPA does not consistently hold states accountable for meeting enforcement standards, has not set clear and consistent national benchmarks, and does not act effectively to curtail weak and inconsistent enforcement by states," the report says.
The report acknowledges that the Office of Enforcement and Compliance Assurance (OECA) has taken steps to improve its efforts. In 2004, for example, EPA established the State Review Framework to evaluate state regulatory performance. And in 2009, OECA began a new Clean Water Act reporting procedure and developed the Clean Water Act Action Plan.
But the inspector general said EPA has not fully supported those efforts.
"OECA has made efforts to improve state performance and oversight consistency," the report says, "but EPA does not manage or allocate enforcement resources nationally to allow it to intervene in states where practices result in significantly unequal enforcement.
"As a result, state performance remains inconsistent across the country, providing unequal environmental benefits to the public and an un-level playing field for regulated industries."
For example, the report says that EPA set a national goal that all Clean Air Act emitters be inspected by states every two years. But, it says, states inspected -- on average -- 89 percent of these facilities in the two-year period; only eight states met the 100 percent goal.
Further, the report says, all "high-priority" Clean Air Act violations are supposed to be reported to EPA within 60 days, but states report 35 percent of those violations within that time. Two states met the 100 percent goal.
Enforcement is also inconsistent at the state level. After compiling an average score based on their calculations of enforcement actions, OIG found that states' performance varies by as much as 50 percent .
"This range in state enforcement activity," the report says, "illustrates that some states inspected facilities, identified violations, and/or assessed penalties for violations at a much higher rate than other states."
The report urges EPA to establish clear lines of authority for enforcement and develop "centralized authority over resources." It also suggests canceling outdated guidance and clarifying the remaining policies.
It also recommends that EPA set clear benchmarks for state performance and a policy describing how to intervene in states.
"EPA could make more effective use of its $372 million in regional enforcement," the report says.
The watchdog also suggested developing a state scorecard to publicly track state action from year to year.
Agency's response
EPA agreed with the inspector general's conclusions about how state enforcement varies significantly. But the agency pushed back on the metrics used to evaluate its performance.
"The agency was concerned that our evaluation relied too heavily on the state enforcement activity metrics we collected from EPA to compare state performance," the report says of EPA's response. "The agency argued that enforcement is a complicated process that ideally relies on analysis of multiple factors related to state goals and performance."
By choosing the metrics, EPA argued, a state may choose to only focus on those factors -- inspection coverage, identification of high-priority violations and assessing penalties -- to boost its performance score in the eyes of OIG.
Notably, Thursday, the day before the inspector general released the report, EPA announced that its enforcement actions in fiscal 2011 had led to more than 1.8 billion pounds of pollution prevented, an estimated $19 billion in required pollution controls and approximately $168 million in civil penalties.
"Our annual results reflect the fact that a strong and effective enforcement program is good for responsible businesses, public health and communities across the country," said Cynthia Giles, assistant administrator for OECA, in a statement.