The Trump Administration has made it a priority to shift more responsibility to the states on enforcement.  On July 11, 2019, U.S. EPA released a memorandum to the Regional Administrators regarding federal and state enforcement.   The latest policy memorandum was a collaboration between U.S. EPA and State EPA Administrators.  The memorandum includes:

  • Best Practices for Coordination between U.S. EPA and the states on enforcement; and
  • Emphasizes the states primary role in performing inspections and taking enforcement

The first part of the memorandum discusses joint planning between U.S. EPA and the States to avoid duplicative inspections and enforcement.  The second part of the memorandum emphasizes a Trump Administrative priority that the states should be in the primary role of implementing programs under the Clean Air Act, Clean Water Act, Safe Drinking Water Act and hazardous waste regulation (i.e. RCRA).  The memorandum indicates that U.S. EPA will step in to take enforcement when “a state lacks economic or technical capability or the will to take timely an appropriate action.”

The memorandum identifies specific instances when it may be appropriate for U.S. EPA to take the lead on inspections or enforcement, including:

  1. When States request U.S. EPA take the lead;
  2. Violations that are part of the National Compliance Initiative (i.e. federal enforcement priorities);
  3. Emergency situations or where there is a substantial risk to human health or the environment;
  4. States lack the resources;
  5. Situations involving multi-state issues;
  6. Significant violations that a state has not timely or appropriately addressed;
  7. Situations where U.S. EPA criminal enforcement may be needed;
  8. When reviewing the effectiveness of a state’s enforcement program; and
  9. Enforcement at state owned or operated facilities

With a federal decrease in enforcement has there been an increase at the state level?

As reported in the Washington Post, in 2018 U.S. EPA inspected around 10,600 industrial facilities.  This amounts to about half as many inspections as U.S. EPA performed in 2010.  U.S. EPA assessed approximately $69 million in civil penalties which is the lowest in almost twenty-five years.  These statistics are based on data released by U.S. EPA.  While there has been a steady decline in enforcement over the last decade, the drop is more significant since the Trump Administration announced its policy that states will take the lead on enforcement.

Has there been a corresponding increase in the number of inspections and enforcement in the states?  It is very difficult to tell.  There a lack of consistency among the states in reporting enforcement statistics. Therefore, it is very difficult to determine if there has been an increase in recent years to correspond with the increased reliance on state enforcement by U.S. EPA.

Ohio is a good example of the difficulty in tracking whether states have increased enforcement in the past two years.  Ohio EPA no longer maintains a comprehensive enforcement report which annually reports its enforcement statistics.  Instead, each division publishes, in different locations on their webpages, links to each enforcement action taken sorted by calendar year.  A review of the number of enforcement actions taken over the last five years shows the difficulty in making any conclusions regarding Ohio EPA’s overall enforcement record.

    Air     Surface Water Hazardous Waste Drinking Water  Solid Waste/C&DD
2018  Not reported            69            11  Not reported                17
2017 Not reported            31            13 Not reported                16
2016 Not reported            39            17 Not reported                22
2015 Not reported            31            15 Not reported                12
2014 Not reported            33            18 Not reported                16

With the exception of a significant increase in enforcement actions in 2018 for the Division of Surface Water, the other divisions at Ohio EPA have not seen a significant increase in enforcement.  Two of the divisions do not publish issued enforcement actions on their webpages.  The Division of Air Pollution Control stopped listing the enforcement actions taken by calendar year in 2012.  No listing of enforcement actions taken could be found on the Division of Drinking and Groundwater webpage.

Some debate whether states should be required to report enforcement statistics.  During a time when there is major shift toward prioritizing state enforcement by the Trump Administration transparency is even more critical.