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EPA enforcement actions, under Trump, are declining at historically steep pace

The total of civil penalties collected from polluters “was the lowest in both actual and inflation-adjusted dollars since at least 1994.”

photo of empty lectern with EPA logo
During the 2018 fiscal year, inspections and evaluations by the U.S. Environmental Protection Agency fell to less than 60 percent of the annual average since 2001.

Everybody understands that enforcement of the nation’s bedrock laws on air and water quality has been withering since Donald Trump’s inauguration, as the president promised it would.

Still, it is stunning to see the extent of the decline: During the 2018 fiscal year, inspections and evaluations by the U.S. Environmental Protection Agency fell to less than 60 percent of the annual average since 2001.

These are just the first stages of an enforcement process, of course. Similar declines show up in statistics on civil actions and criminal cases brought against polluters, in fines and other penalties collected, in corporate payments negotiated to mitigate past damage and avert future harm.

And among 10 cases nationwide cited as examples of EPA’s inattention to serious and ongoing pollution violations are two from Minnesota, one involving a lead smelter in the metro area and the other a taconite plant on the Iron Range.

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There can be no quibbling about the credibility of the numbers here: The data on EPA’s performance last year are from the agency itself, which rolled them out in early February with a fanfare of self-congratulation about the great job it’s doing.

The historical analysis, on the other hand, comes in a straightforward and transparent review issued last week by the Environmental Integrity Project, a watchdog group whose monitoring of EPA effort is widely respected. EIP simply laid the 2018 numbers alongside EPA’s past releases, as well as statistics from court documents and other official records.

As for credentials, EIP’s founder and executive director, Eric Schaeffer, is a lawyer with a specialty in environmental law who worked at EPA from 1990 to 2002; among his roles was director of the Office of Civil Enforcement for five years bridging the Clinton and second Bush administrations. So you could say he knows the territory.

Occasionally the report acknowledges that some praiseworthy aspects of EPA’s performance lie beyond numbers like these. Still, the overall statistical picture is grim.

Prosecutions and penalties fall

In the area of civil enforcement by the Justice Department, the analysis finds that EPA’s referral of 123 cases for action in fiscal 2018 was actually up a bit from 2017. Compared to the past two administrations, however, it was quite low: Under Barack Obama, the annual average was 211; it was considerably higher under George W. Bush, at 304.

As for fines and other penalties, EIP found that the agency’s recovery of $69.5 million in total civil penalties in fiscal 2018 was “the lowest in both actual and inflation-adjusted dollars since at least 1994.”

As for criminal prosecutions, EPA says it opened 129 criminal cases in 2018  — also a bit better than 2017, says EIP. “However, the number of criminal cases opened and the number of defendants charged dropped in 2017 and 2018 to their lowest levels in nearly two decades.”

Criminal fines collected ran to $86 million last year, which EIP finds was “significantly lower than recent years but comparable to amounts reported between 2008 and 2012. EPA also reported that the courts handed out sentences that, for all cases combined, will require a total of 73 years behind bars for defendants pleading guilty or convicted of environmental crimes.”

EPA enforcement can result in other payments from polluters, too, either for upgrades to bring facilities into compliance with the law, or to clean up past damage. EPA’s estimate that violators will spend $3.95 billion to comply with enforcement actions concluded in 2018 is, according to EIP,  “the lowest amount since 2003, after adjusting for inflation.”

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As for the volumes of air and water pollution that will be treated, reduced or eliminated as a result of EPA action, EIP finds that the 268 million pounds claimed by the agency “was slightly more than the amount reported in 2017 but less than half the results reported for each fiscal year from 2012 through 2016.” Furthermore:

Another way of measuring pollution reductions is by looking at civil enforcement cases lodged in court against polluters. The Environmental Integrity Project examined the Federal Register for consent decrees lodged during the first two full years of the Trump Administration, and compared them to the first two years of the Obama and George W. Bush administrations.

We found that the amount of air pollution reduced under Trump so far fell by 64 percent compared to the first two years of the Obama Administration, and was also 34 percent less than the amount during George W. Bush’s first two years.

Impacts of slowed enforcement

Among EIP’s leading illustrations of why EPA’s enforcement pace matters to public health is an initially confusing example of gasoline spills at a petroleum transfer and storage facility near Houston, when it got smacked in August 2017 by Hurricane Harvey  — certainly not the operators’ fault, right?

EIP acknowledges that “it is expected that storms will produce some uncontrolled pollution”; still, it faults Magellan Midstream Partners for not making storage tanks more storm-proof, and EPA for not responding to years of warnings about the risk. Further, the analysis points out that ongoing illegal emissions of benzene and other toxic compounds were being documented, but not addressed, well before the storm.

Be glad you don’t live near the Mountaire Farms chicken slaughterhouse in Shelbyville, Delaware, which “has had waste-discharge violations in every quarter since the beginning of 2016,” including an effluent discharge that contained “more than 14 times its permitted levels of enterococci bacteria in the third quarter of 2017, plus violations for oil and grease, and waste solids.”

Or near a couple of Indiana “pickle liquor” plants, just southeast of Chicago, that reprocess acid solutions after they’ve been used to clean iron, copper, aluminum and other metals. There were hundreds of violations of air quality standards between 2020 and 2016, along with failures to follow requirements of a 2006 consent decree that it report releases of hydrochloric acid and chlorine. These are vapors that, at sufficiently high doses, cause respiratory irritation in the case of chlorine, as well as harm to the eyes, skin, mucous membranes and also, in the case of hydrochloric acid, the lungs,

Lest the smug index get too high here in Minnesota, consider the situation of United Taconite, at Forbes, and its multiple violations of air pollution standards between 2008 and 2013 because of “widespread failure” to operate pollution control equipment correctly.

For example, between July 2012 and June 3013, the furnaces released soot (also known as particulates, which can trigger asthma and heart attacks) directly to the atmosphere for nearly 600 hours, bypassing the pollution control systems (called baghouses) that ordinarily should be able to remove 90 percent of these pollutants.  The plant also frequently bypassed pollution controls for sulfur dioxide and nitrogen dioxide, e.g., for more than 200 hours between April 4 and June 26, 2013, releasing these pollutants directly to the atmosphere instead of scrubbing them out of stack gases.

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These emissions could be expected to raise the risk of respiratory ailments, heart disease, cancer and neurological damage among the 400 or so people living within three miles of the plant’s downwind side, the report found.

(Though EIP found that EPA had failed to address the issues, it got a confounding call on the evening before the report’s release from United Taconite’s owner, Cleveland Cliffs, saying that “the company had agreed to pay EPA $60,000 in civil penalties and complete $150,000 in environmental projects to address the violations.” However, EIP said, the consent decree necessary to accomplish this had not yet been filed in court, so the Cliffs claim could not be confirmed. )

In the other Minnesota example, involving Gopher Resource’s lead smelter in Eagan, the report says  EPA had notified the company in November 2015 that its operation was violating discharge limits on lead, dioxins and furans, as well as “organic combustion byproducts of coke, natural gas, or plastics (e.g., battery casings).”

Part of the problem was a failure to maintain “negative pressure” in the plant for 8.8 percent of its operating time in 2014; part was a failure to keep a pledge to boost combustion temperatures, by feeding natural gas to its furnaces, for 10.9 percent of a 14-month operating period from January 2014 to March 2015.

The downwinders in this case were far more numerous than at Forbes: about 38,000 people.

In 2009, Minnesota determined that airborne lead concentrations in the neighborhoods downwind from the plant were likely to be higher than allowed under the federal health-based standard of 0.15 micrograms, averaged over three months.

While more recent  monitoring data suggests that area lead levels have fallen below that limit, the failure to keep  this deadly pollutant from leaking out of the plant’s enclosure or to measure lead emissions  based on accurate sampling could undermine that recent progress.

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The full report, “Less Enforcement: Communities at Risk,” can be read here.