June 15, 2020 Recent Trends in EPA-Manufacturing Enforcement Actions

EPA activities have tailed off over the past decade, although examination of three major environmental statutes paints a different picture.

EPA monitoring under the Clean Water Act increased from 2011-2018, while enforcement had no clear trend.

As most people know, the U.S. Environmental Protection Agency (“EPA”) is the federal agency charged with enforcing the nation’s environmental laws and monitoring regulated businesses and facilities for compliance with those laws. EPA enforces three particular laws that have an outsized effect on the operation of manufacturing plants and facilities: (1) the Clean Water Act (“CWA”), which regulates discharged wastewater from manufacturing facilities, (2) the Clean Air Act (“CAA”), which regulates airborne emissions from manufacturing facilities, and (3) the Resource Conservation and Control Act (“RCRA”), which regulates any hazardous or non-hazardous waste that results from manufacturing processes.

A recent report from the EPA’s Office of Inspector General (“OIG”) suggests that EPA compliance monitoring and enforcement has sharply decreased across the board in the last decade and a half. At first blush, the report, available here, appears to be positive news for regulated industry, given its conclusion that EPA’s annual level of compliance monitoring activities, enforcement actions, and enforcement results dramatically declined from fiscal years 2006 through 2018. Specifically, the report concluded, among other things, that:

• The number of inspections of regulated facilities conducted by EPA decreased by 33 percent;
• The number of enforcement actions initiated and concluded by the EPA decreased by 52 and 51 percent, respectively; and
• The number of enforcement actions with monetary penalties declined by 53 percent.

Perhaps most surprising – at least to those who would write off the trend as a consequence of the current Administration – is that the downward trend in the number of environmental enforcement proceedings began occurring long before President Trump took office, and long before the current COVID-19 pandemic.

The report does not analyze EPA’s enforcement and monitoring trends by statute. However, an analysis of EPA’s publicly available data of enforcement and monitoring under the CWA, CAA, and RCRA from 2011-2018 paints a murkier picture for manufacturers.

From 2011-2018, the trend in monitoring facilities through inspection under the CWA has not followed the general decline outlined in the report. In contrast to the overall trend, the number of facilities inspected by the EPA steadily increased from 895 facilities inspected in 2011 to 1,074 facilities inspected in 2018. The number of enforcement actions under the CWA in that time period had a less discernable trend, with 394 formal enforcement actions in 2011 and 289 formal enforcement actions in 2018, complicated by a high-water mark of 618 formal actions in 2015 and a robust 471 formal actions in 2017.

On the other hand, the overall decrease is reflected in the number of monitoring and enforcement activities under the CAA. After a high of over 3,000 instances in 2012 and 2013, CAA monitoring activities decreased to 2,365 instances in 2014 and continually dropped to a low of 1,734 instances in 2018. After averaging 540 formal actions from 2011-2014 with no decreasing trend, enforcement actions under the CAA decreased sharply to 134 formal actions in 2015, and continued to decrease to a low of 101 formal actions in 2018.

Facility inspections under RCRA have similarly decreased, from 1,454 inspections in 2011 to 991 inspections in 2018. However, enforcement actions under RCRA have stayed relatively steady, with 535 actions in 2011 and 456 actions in 2018, and with a low of 454 actions in 2013 and a high of 568 actions in 2016.

It’s worth noting that EPA-led monitoring and enforcement doesn’t tell the whole story, as the majority of inspections and enforcement actions against regulated industry occurs at the state or local level. However, even accounting for state and local agencies, inspections under the CWA rose from 2011-2018, while enforcement slightly increased. Over the same time period, total monitoring and enforcement under the CAA decreased. Inspections under RCRA decreased, while enforcement actions decreased from 2011-2013, before sharply increasing in 2014, and then steadily decreasing again through 2018.

Though it may be tempting to treat the OIG’s report as a signal that inspections of and enforcement against manufacturing facilities are on the downswing, the data for specific statutes most relevant to the industry require pause. While CAA monitoring and enforcement is down across the board, CWA inspections and enforcement have clearly increased. Trends under RCRA are less dramatic, but even as inspections appear to be decreasing, enforcement actions have stayed relatively constant. In sum, manufacturers hoping that OIG’s report signals that the EPA is trending towards more lax regulation of the industry would be wise to note that the agency still has a seemingly strong appetite to vigorously enforce the CWA and RCRA.

Davina Pujari

Davina Pujari is a partner at Hanson Bridgett LLP and co-chair of the firm’s Environment and Natural Resources Group. You can reach her at DPujari@hansonbridgett.com.

Niran Somasundaram

Niran Somasundaram is an associate at Hanson Bridgett LLP and a member of the firm’s Environment and Natural Resources Group. NSomasundaram@hansonbridgett.com

Cole Benbow

Cole Benbow is an associate at Hanson Bridgett LLP and a member of the firm’s Environment and Natural Resources Group. You can reach him at CBenbow@hansonbridgett.com.

www.hansonbridgett.com

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