Enforcement-related penalties plummeted in fiscal 2009

U.S. EPA during the first year of the Obama administration saw deep declines in the amount of penalties assessed against polluters and pounds of pollution slashed through enforcement activities compared with the previous year, according to data released by the agency last month.

In fiscal 2009, EPA enforcement required polluters to invest more than $5 billion on cleanup and emission controls, a drop from about $11.8 billion the previous year. Defendants in EPA enforcement cases committed to reduce pollution by about 580 million pounds annually in 2009, which fell from 3.9 billion pounds in 2008.

Some enforcement efforts rose in 2009, EPA said, including the numbers of criminal cases opened, criminal fines collected and cash secured to clean up Superfund sites.

Enforcement numbers can vary significantly from year to year, the agency said, and depend upon the number of large cases that settle. Nearly half the pollution reductions in 2008 were the result of an enforcement action taken against a coal-fired electric utility, American Electric Power Co. Inc., for one of the largest historical environmental settlements.

Under that settlement, AEP agreed to reduce air pollution by 1.6 billion pounds, pay a $15 million penalty and spend $60 million on cleanup projects. EPA estimated that the company would pay more than $4.6 billion to comply with the terms of the consent decree (Greenwire, Oct. 9, 2007).


John Walke, clean air director at the Natural Resources Defense Council, said the AEP settlement was the most obvious explanation for the decline in 2009. "The lower figures were probably a source of some chagrin, but I think there were real explanations -- at least as far as air enforcement is concerned -- relating to some historic settlements that you had last year that were not replicated this year," he said.

Excluding the 2008 data, the 2009 enforcement numbers are still below the average numbers achieved in previous years. Between 2004 and 2007, settlements required polluters to invest an average of $8.3 billion in pollution cleanup and controls each year, and defendants committed to reduce pollution by about 970 million pounds annually.

Other factors were also likely contributors to the decline, said Granta Nakayama, the EPA enforcement chief during the George W. Bush administration, including a delay in confirming a new enforcement chief and an emphasis on targeting smaller polluters over environmental justice concerns.

President Obama nominated Cynthia Giles to lead the agency's enforcement office in March, but she was not confirmed by the Senate until May. Without having a political appointee in place, Nakayama said, defendants are generally less willing to settle, because they want to know who is in charge before reaching an agreement.

Another possible factor is the Obama administration's emphasis on prioritizing environmental justice in its enforcement efforts, Nakayama said. While that is an important goal, he said, focusing on community-based issues may not result in tackling the biggest polluters and can result in fewer pounds of pollution reductions.

EPA said in a statement that although the large enforcement cases are a vital part of its work, "the vast majority of smaller, local cases we do -- to protect drinking water, to reduce air pollution locally, to clean up waste sites -- are not only essential to the health and vitality of communities, but also demonstrate that the EPA cop is on the beat."

The fact that the numbers are down at EPA should not be an indictment, Nakayama said, but he noted that it was interesting that the agency released the numbers on Dec. 23, in the thick of the pre-Christmas rush. Under his watch, he said, the numbers were released in mid-November every year.

Click here to view EPA's 2009 enforcement and compliance report.

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