Green Crime and Punishment

On the front lines in the fight against polluters, the top cops are the enforcement branch of the U.S. Environmental Protection Agency (EPA). Working together with the U.S. Department of Justice (DOJ) EPA's Office of Enforcement and Compliance Assurance (OECA)  administers a variety of enforcement programs that are broken down by media. These programs encompass issues related to air quality, water quality, solid/hazardous waste management, toxic substances and pesticide management and programs relating to emergency preparedness and community protection.

EPA has begun taking a multiprong approach to compliance and enforcement. It manages programs that deal with compliance assistance, compliance monitoring, compliance incentives, cleanup enforcement, civil enforcement and criminal enforcement. For example, EPA's civil enforcement program involves the investigations and cases brought to address many of the most significant violations, including EPA administrative actions and judicial cases referred to DOJ. Additionally, EPA works closely with states to implement federal programs.

Probably the most high profile of the EPA enforcement efforts is its criminal enforcement program and its role in identifying, apprehending and assisting prosecutors in successfully convicting those who are responsible for the most egregious violations that pose substantial risks to human health and the environment. Examples of significant violations across all major environmental statutes include data fraud cases involving private laboratories submitting false data to state and federal regulatory agencies, indiscriminate waste dumping, industry-wide ocean dumping by cruise ships, oil spills and illegal handling of hazardous substances, such as pesticides and asbestos.

In recent years, several positive developments have emerged at the agency. One includes the move toward more multimedia enforcement. This approach is being employed in the context of three basic types of enforcement actions: against single facilities where entire industrial processes may be examined as a whole; against entire companies, where violations of different statutes occur at various facilities; and geographically based enforcement efforts arising from a comprehensive multimedia analysis of environmental problems in a given area. Multimedia enforcement actions reduce and streamline the resource burden otherwise required by the numerous single-statute cases brought to resolve complex environmental problems.

Another promising direction that EPA has recently taken is a new pilot program that allows public direct access to the environmental compliance records of more than 80,000 regulated facilities. Called Enforcement and Compliance History Online (ECHO), the system became operation on the EPA Web site for a 60-day period beginning November 20, 2002. Users have been able to obtain the names and addresses of regulated facilities, permitting information, inspection history covering the past two years and compliance status of violations occurring during the past two years. Besides increasing public awareness, EPA hopes the new system will exert pressure on the regulated facilities to stay in compliance.

Even though EPA is scoring high marks for several of its innovative new programs, some groups complain about the overall manner in which the Bush administration is handling EPA enforcement efforts. According to a report by the Rockefeller Family Fund's Environmental Integrity Project (EIP) released in November 2002, civil penalties paid by polluters during the Bush administration plunged to $51 million in the past fiscal year, which was about half the average collected during the last three years of the Clinton administration. Eric Schaeffer, EIP director and former head of OACE, compiled the report.

The report also cited that the value of supplemental projects declined "from a three-year average of $111 million from FY 1999 and FY 2001 to only about $44 million in 2002." These supplemental environmental projects go beyond what is required for compliance with an environmental law. When a company in violation of the law takes on a project, such as the financing the purchase and preservation of wetlands and greenspace, EPA may reduce penalties for that company.

When asked about the findings of the EIP report in November 2002, EPA spokesperson Joe Martyak stated that "enforcement is going on and we are vigorously trying to keep that momentum up." He also said that in order to compare effectively enforcement activities in the Bush and Clinton administrations, the report should have looked at the first two years of the Clinton Administration, rather than the last three.

At press time, Congress has yet to act upon the Bush Administration's proposed EPA budget for Fiscal Year (FY) 2003, which is set at $7.7 billion. The budget plan includes a request to cut 146 full-time positions from EPA's enforcement staff and transfer part of the agency funds to the states in the form of enforcement grants totaling $15 million. Some adversaries of the plan point out that inflation amplifies the effect of the reduction in enforcement spending at EPA.

If these budget cuts concerning EPA staff are adopted this year, such action will probably cause the agency to bring increasingly fewer enforcement actions. This will only further fuel the critics who complain that the Bush administration is deliberlately hamstringing EPA's ability to go after polluters.

This article originally appeared in the 03/01/2003 issue of Environmental Protection.

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