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February 17, 2014
EPA enforcement takes sharp turn to big cases

EPA’s Fiscal Year 2013 Enforcement and Compliance Results offered a mixed bag in terms of actions taken, fines collected, and measurable environmental results.  Two factors strongly influenced the Agency’s 2013 enforcement performance—settlement of claims against Transocean for its liability in the Deepwater Horizon spill, which resulted in total monetary penalties in 2013 that were more than five times those collected in 2012; and a decrease in EPA’s budget, which resulted in a drop from 2012, as well as from each year from 2009 to 2011, in the total number of inspections conducted.  

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In reviewing the EPA 2013 inspection/enforcement statistics, it is important to bear in mind that 90 percent of all environmental inspections and enforcement actions are undertaken by the states.  However, for large facilities that difference may not be significant since the EPA has traditionally sent its inspectors to those sites, a tactic the Agency says received increased emphasis in 2013 because of the smaller budget.  But, based on the results and even with that emphasis, it appears that many large facilities that the EPA would have inspected in previous years were passed over. 

Civil investigations down

For example, in 2013 the Agency conducted only 103 civil investigations, less than half the 237 conducted in 2012 and also well under the totals in each year from 2009 to 2011.   Civil investigations are “extraordinary, detailed assessments of a regulated entity’s compliance status,” according to the EPA.  These inspections require significantly more time to complete than a typical compliance inspection (i.e., several weeks as compared with one or a few days). 

Investigations may be warranted when an earlier inspection or record review suggests the potential for serious, widespread, and/or continuing civil or criminal violations, from a continuing pattern of citizen complaints, or from referrals from another agency.  It is important for companies to consider the implications of the decrease in EPA civil inspections.  For example, if a facility was not subjected to an EPA civil inspection even though it was the object of citizen complaints, does this increase the likelihood of a state inspection or a civil investigation by the EPA in 2014? 

Deepwater settlement

Not counting civil investigations, in 2013, the EPA conducted about 18,000 inspections/evaluations, down from about 20,000 in 2012.  Of the $1.1 billion in administrative and civil judicial penalties the EPA collected in 2013, $1 billion came from the Transocean settlement.  Under the RESTORE Act, $800 million of that settlement went to the Gulf Coast Restoration Trust Fund.  In addition, Deepwater Horizon generated $4 billion in criminal fines and restitution, of which $3 billion will fund coastal protection/restoration and spill prevention work.  Apart from Deepwater Horizon, criminal fines and restitution totaled $187 million in 2013. 

More stats

Here are additional statistics reported by the EPA for 2013:

  • 2,418 civil enforcement cases were initiated and 2,489 concluded.  This compares to about 3,000 cases initiated/concluded in 2012.  Again, the EPA says its emphasis in 2013 was on “larger, more complex, risk based enforcement cases, leading to significant environmental and health gains.”
  • Under Superfund, private parties committed to more than $1.2 billion for cleanup, compared to $668 million in 2012 and $3.1 billion in 2011.
  • As a result of enforcement, companies were required to invest more than $7 billion in actions and equipment to control pollution, about $1 billion less than in 2012.
  • Supplemental environmental projects (SEPs) were valued at $22 million, compared to $44 million in 2012.
  • Pollution reduced as a result of enforcement totaled 1.3 billion pounds (lb), a 40 percent drop from 2012.  The EPA explains that it increased its enforcement focus on air toxic pollution, which weighs less than raw sewage discharges but which produces equal environmental and health benefits.
  • Companies were required to treat, minimize, or properly dispose of 148 million lb of hazardous waste.  This is a small fraction of the more than        4 billion lb claimed in 2012.  The EPA explains that the hazardous waste metric is generally dominated by one or two “very big cases,” which results in substantial variability from year to year.  The Agency says it expects to conclude several cases in 2014, which could result in billions of pounds of hazardous waste treated, minimized, or properly disposed of.

Results of the EPA 2013 enforcement and compliance activity

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