FY 2019 EPA Enforcement Results Spotlight an Increase in Voluntary Self-Disclosed Violations

Author: George Colvin, CPG, CHMM

Published in the March 2020 Focus on the Environment Newsletter

On February 13, 2019, U.S. EPA (EPA) announced its annual enforcement and compliance results for fiscal year (FY) 2019 ending September 30, 2019.  The FY 2019 report is presented online in two ways: as a “story map” and as a series of graphs.  Both the story map and press release highlight an increase from last year in civil and administrative penalties, criminal prosecutions, and self-audits by industry.  Overall, however, most of the enforcement metrics are down relative to last year and prior years.

The greatest decreases were on the cleanup front where:

  • Commitments, through enforcement actions, for future cleanup of contaminated soil and water decreased by approximately 95 percent from 2018, to the lowest amount since tracking of this metric began.
  • Commitments, through enforcement actions, to treat, minimize, or properly dispose of hazardous and non-hazardous waste decreased more than 90 percent from 2018, to the lowest amount since tracking of this metric began.

One of the more telling of the enforcement metrics provided in the report is the number of facility inspections and evaluations conducted by EPA in a given year. Since most enforcement actions begin with an inspection, this metric serves as a leading indicator and unlike most of the metrics presented in the report, the number of facility inspections and evaluations conducted in a given year is relatively free of spin and is easy to track and understand.  This is due in part to the fact that facility inspections do not take years to conclude as major enforcement actions often do.  In FY 2019, EPA conducted approximately 10,320 inspections and evaluations, a reduction of approximately 4 percent.  This follows a 13 percent reduction during FY 2018. It should be noted, however, that this decrease in the number of inspections/evaluations began in FY 2010 and has continued each year since then.  To some degree, this decrease in Federal inspections and evaluations is due in part to increasing delegation of programs to states.  On the whole, the number of federal inspections and evaluations conducted each year is a fraction of that conducted by the States. For example, based on EPA’s Enforcement and Compliance History Online (ECHO) website, EPA conducted 968 hazardous waste inspections in FY 2019 while the combined state programs conducted over 15,106 hazardous waste inspections.

Clearly, the single metric the Trump admiration is most proud of is the increase in the use of the self-auditing program that allows facilities to voluntarily report violations and return to compliance possibly in return for lighter penalties.  According to the 2019 story map, “In 2019 OECA (Office of Enforcement and Compliance Assurance) continued to see an increase in the number of entities, including new owners, utilizing its self-disclosed violation policies that encourage regulated entities to voluntarily discover, disclose, and correct violations of federal environmental laws and regulations. Specifically, in FY 2019, 635 entities with over 1,900 facilities voluntarily disclosed violation pursuant to self-disclosure polices, expediting return to compliance, an estimated 20% increase compared to FY 2018.” Unfortunately, the true environmental benefits of self-disclosure and informal enforcement actions (e.g. warning letters) have proven difficult to track as indicated by the March 2, 2020 Government Accountability Office (GAO) Report titled “Additional Action Needed to Improve EPA Data on Informal Enforcement and Compliance Assistance Activities.”

George H. Colvin is a hydrogeologist with over 30 years of consulting experience. Much of his experience has focused on RCRA Corrective Action, RCRA closure, and groundwater investigation, monitoring, and cleanup. He holds a BS in Geology from Ohio University and MS in geology and hydrology from Vanderbilt University. He is a Certified Professional Geologist with the American Institute of Professional Geologists, a registered geologist in Kentucky, Pennsylvania, and Tennessee, and a Certified Hazardous Materials Manager.