EPA enforcement is down while industry violations across the Midwest are up, new report says

Industries across the Midwest are violating their permits and environmental regulations at an increasing rate, while enforcement of such polluters is on the decline, according to a new report out today by the Environmental Law and Policy Center. 

After a nearly four-year downturn, the number of facilities across the Great Lakes region in significant noncompliance — or serious violations that pose a severe level of concern — of the Clean Water Act have nearly doubled since 2017. On the other hand, the average penalties and costs assessed by the U.S. Environmental Protection Agency against such violators is less than a third of what they once were, according to the report. 

EPA said that it has not been provided with a copy of ELPC's report and therefore can't comment on their analysis. 

Still, "EPA Region 5 maintains a robust compliance assurance and enforcement program," an agency spokesman said. "EPA’s enforcement program is concerned with outcomes, not outputs."

The report's release comes at a time when the nation is grappling with the novel coronavirus pandemic, which has sickened more than 75,000 people and taken the lives of more than 4,000 across Indiana, Illinois, Michigan, Ohio, Minnesota and Wisconsin — the region analyzed in the report. 

Studies have already shown that individuals living in areas with greater levels of pollution are more vulnerable to the disease, and having clean water is critical to washing hands and staying healthy, experts point out. 

"What this report shows is that the Trump administration is pulling back from fair and reasonable enforcement of environmental laws that are meant to protect clean air and water," said Howard Learner, executive director of the ELPC, a non-profit environmental advocacy organization in Chicago. "These are things that will make a bad public health crisis worse." 

Late last week, President Trump's Administration also announced it was rolling back the foundation for the Mercury and Air Toxics Standards, or the MATS rule — a 2012 rule that established regulatory limits on the emissions of mercury and other hazardous pollutants from coal-burning power plants. 

In its announcement, the EPA said that benefits to public health from reducing mercury — a pollutant linked to severe damage to the lungs, brain, and other organs, as well as causing developmental disorders — do not justify the "unnecessary" costs to industry. 

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It's moves like these, Kiana Courtney said, that leave her disappointed but not surprised by the findings of the report. 

Courtney, a staff attorney at ELPC and one of the lead authors of the report, said the group had been keeping an eye on several facilities and started to notice a lack of enforcement. That is when they decided to take a larger look across EPA's region 5, or the Great Lakes states. 

All of the data in the report is compiled from EPA's own compliance database, as well as staffing and budget numbers from its budgeting reports. Some of the main findings include: 

• Since 2015, the number of enforcement cases initiated and concluded in the region have dropped by about a third. 
• Since 2016, the average penalties assessed for Clean Water Act violations have dropped by nearly two-thirds. The average compliance costs have dropped by about the same amount. 
• Since 2017, the number of facilities in significant noncompliance have nearly doubled. 

Courtney said she might expect the average penalties and compliance costs that violators face would go down if there were fewer violators, but that has not been the case. 

Civil penalties are monetary payments used to punish violations of environmental laws, as well as allow the government to recover the economic benefit of noncompliance. Compliance costs, on the other hand, are meant to help the facility function better and cleaner. 

"Less penalties means less deterrence for Clean Water Act violations," the report says, "and less deterrence results in less compliance."

Learner compared it to speed limits. If drivers know there is a police officer on the road, it's likely they will follow the speed limit. But if they feel confident there isn't an enforcer, they will push their speed and things aren't safe. 

"If the regulated industry knows that the EPA sheriff isn’t in town to do tough but fair enforcement of the Clean Water Act, there will be more pollution and potentially harmful contamination," Learner said.

The agency said that there are some data reporting issues in certain states, including some from Region 5, that could be a "key reason" for recent increases in reported rates of noncompliance. 

The report did not speak to levels of noncompliance across the different states, the organization is still working to get details on individual facilities. But Courtney did say that there were many noncompliant facilities in Indiana and Ohio — though that could also be because there are a higher number of facilities in those states. 

The reductions can largely be attributed to cuts in budgets and staffing at the EPA level, according to Courtney. Across the agency and in Midwest region, staffing levels have dropped by more than 20%. The EPA's enforcement and compliance budget has also been on the decline, though last year the agency spent $16 million less than what Congress appropriated. 

"When there aren't enough resources, it's hard to engage in enforcement," Courtney said. "But the agenda of an agency is set pretty high up." 

"The trends reflects the priority of an agency," she added," and it's definitely concerning and shows that it might be more than just how the resources are allocated." 

When the Trump administration was pressed on the topic of declining enforcement as early as 2017, the EPA's response was: "There is not only no reduction in EPA’s commitment to ensure compliance with our nation’s environmental laws, but a greater emphasis on compliance in the first place.”

But compliance doesn't not come without enforcement, Courtney noted. The administration also said at that time that they are working to shift power away from the federal level and into the hands of the states. 

Yet the states don't have the resources to pick up that slack, either, the report said. Staffing within the state environmental agencies as well as budgets — including from state-level and federal appropriations have been declining. In Indiana, the Department of Environmental Management's staff has decreased by 16% and its budget by nearly 20% in the last 10 years. 

IDEM said that is is charged with implementing and enforcing the provisions of the Clean Water Act and other regulations and does not rely on EPA to implement or engage in enforcement. Indiana's agency maintains a good working relationship with EPA's region 5, according to an IDEM spokesman. 

"IDEM will continue to enforce all aspects of its delegated programs, including the Clean Water Act, and continue to work to assure that Hoosiers have clean and safe water," IDEM spokesman Barry Sneed said, "regardless of how EPA resources and priorities may shift."

The ELPC plans to share its findings with the EPA on Monday, including it's recommendations in the report. Those include increasing its enforcement funds as well as fully spending those that are appropriated to the agency.

Call IndyStar reporter Sarah Bowman at 317-444-6129 or email at sarah.bowman@indystar.com. Follow her on Twitter and Facebook: @IndyStarSarah. Connect with IndyStar’s environmental reporters: Join The Scrub on Facebook.

IndyStar's environmental reporting project is made possible through the generous support of the nonprofit Nina Mason Pulliam Charitable Trust.