Clean Water Act
Longstanding Issues Impact EPA's and States' Enforcement Efforts Gao ID: GAO-10-165T October 15, 2009Congress enacted the Clean Water Act to help reduce water pollution and improve the health of the nation's waterways. The Environmental Protection Agency (EPA) administers its enforcement responsibilities under the act through its Office of Enforcement and Compliance Assurance (OECA), as well as its 10 regional offices and the states. Over the last 9 years, GAO has undertaken a number of reviews of EPA's environmental enforcement activities, including for the Clean Water Act. For this testimony statement, GAO was asked to summarize the results of five prior reports on the effectiveness of EPA's enforcement program. Specifically, this statement includes information on the (1) factors that cause variations in enforcement activities and lead to inconsistencies across regions, (2) impact that inadequate resources and work force planning has had on enforcement, (3) efforts EPA has taken to improve priority planning, and (4) accuracy and transparency of measures of program effectiveness. GAO's prior recommendations have included the need for EPA to collect more complete and reliable data, develop improved guidance, and better performance measures. Although EPA has generally agreed with these recommendations, its implementation has been uneven. GAO is not making new recommendations in this statement.
In 2000, GAO found variations among EPA's regional offices in the actions they take to enforce environmental requirements. For example, the regions varied in the inspection coverage of facilities discharging pollutants, the number and type of enforcement actions taken, and the size of the penalties assessed and the criteria used in determining penalties. GAO also found that variations in the regions' strategies for overseeing state programs may have resulted in more in-depth reviews in some regional programs than in others. Several factors contributed to these variations including differences in the philosophical approaches among enforcement staff about how best to achieve compliance with environmental requirements, differences in state laws and enforcement authorities and how the regions respond to these differences, variations in resources available to state and regional offices, the flexibility afforded by EPA policies and guidance that allow latitude in state enforcement programs, and incomplete and inadequate enforcement data that hampered EPA's ability to accurately characterize the extent of variations. In 2007, GAO reported improvements in EPA's oversight of state enforcement activities with the implementation of a state review framework. However, while this framework helped identify several weaknesses in state programs, the agency had not developed a plan for how it would uniformly address these weaknesses or identify the root causes of these weaknesses. In 2005, GAO reported that the scope of EPA's responsibilities under the Clean Water Act along with workload associated with implementing and enforcing the act's requirements had increased significantly. At the same time, EPA had authorized states to take on more responsibilities, shifting the agency's workload from direct implementation to oversight. In 2007, GAO reported that while overall funding for enforcement activities had increased from $288 million in fiscal year 1997 to $322 million in fiscal year 2006, resources had not kept pace with inflation or the increased responsibilities. Both EPA and state officials told GAO that they found it difficult to respond to new requirements while carrying out previous responsibilities and regional offices had reduced enforcement staff by about 5 percent. In 2005, GAO also reported that EPA's process for budgeting and allocating resources did not fully consider the agency's workload, either for specific statutory requirements such as those included in the Clean Water Act or the broader goals and objectives in the agency's strategic plan. Any efforts made by the agency to develop a more systematic process would be hampered by the lack of comprehensive and accurate workload data. In 2007, GAO reported that EPA had made substantial progress in improving priority setting and enforcement planning with states through its system for setting national enforcement priorities and this had fostered a more cooperative relationship with the states. Finally, in 2008, GAO reported that EPA could improve the accuracy and transparency of some of the measures that it uses to assess and report on the effectiveness of its civil and criminal enforcement programs. GAO identified shortcomings in how EPA calculates and reports these data that may prevent the agency from providing Congress and the public with a fair assessment of the programs.
GAO-10-165T, Clean Water Act: Longstanding Issues Impact EPA's and States' Enforcement Efforts
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Testimony:
Before the Committee on Transportation and Infrastructure, U.S. House
of Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery:
Expected at 10:00 a.m. EDT:
October 15, 2009:
Clean Water Act:
Longstanding Issues Impact EPA's and States' Enforcement Efforts:
Statement of Anu K. Mittal, Director:
Natural Resources and Environment Team:
GAO-10-165T:
GAO Highlights:
Highlights of GAO-10-165T, a testimony before the Committee on
Transportation and Infrastructure, U.S. House of Representatives.
Why GAO Did This Study:
Congress enacted the Clean Water Act to help reduce water pollution and
improve the health of the nation‘s waterways. The Environmental
Protection Agency (EPA) administers its enforcement responsibilities
under the act through its Office of Enforcement and Compliance
Assurance (OECA), as well as its 10 regional offices and the states.
Over the last 9 years, GAO has undertaken a number of reviews of EPA‘s
environmental enforcement activities, including for the Clean Water
Act. For this testimony statement, GAO was asked to summarize the
results of five prior reports on the effectiveness of EPA‘s enforcement
program. Specifically, this statement includes information on the (1)
factors that cause variations in enforcement activities and lead to
inconsistencies across regions, (2) impact that inadequate resources
and work force planning has had on enforcement, (3) efforts EPA has
taken to improve priority planning, and (4) accuracy and transparency
of measures of program effectiveness.
GAO‘s prior recommendations have included the need for EPA to collect
more complete and reliable data, develop improved guidance, and better
performance measures. Although EPA has generally agreed with these
recommendations, its implementation has been uneven. GAO is not making
new recommendations in this statement.
What GAO Found:
In 2000, GAO found variations among EPA‘s regional offices in the
actions they take to enforce environmental requirements. For example,
the regions varied in the inspection coverage of facilities discharging
pollutants, the number and type of enforcement actions taken, and the
size of the penalties assessed and the criteria used in determining
penalties. GAO also found that variations in the regions‘ strategies
for overseeing state programs may have resulted in more in-depth
reviews in some regional programs than in others. Several factors
contributed to these variations including differences in the
philosophical approaches among enforcement staff about how best to
achieve compliance with environmental requirements, differences in
state laws and enforcement authorities and how the regions respond to
these differences, variations in resources available to state and
regional offices, the flexibility afforded by EPA policies and guidance
that allow latitude in state enforcement programs, and incomplete and
inadequate enforcement data that hampered EPA‘s ability to accurately
characterize the extent of variations. In 2007, GAO reported
improvements in EPA‘s oversight of state enforcement activities with
the implementation of a state review framework. However, while this
framework helped identify several weaknesses in state programs, the
agency had not developed a plan for how it would uniformly address
these weaknesses or identify the root causes of these weaknesses.
In 2005, GAO reported that the scope of EPA‘s responsibilities under
the Clean Water Act along with workload associated with implementing
and enforcing the act‘s requirements had increased significantly. At
the same time, EPA had authorized states to take on more
responsibilities, shifting the agency‘s workload from direct
implementation to oversight. In 2007, GAO reported that while overall
funding for enforcement activities had increased from $288 million in
fiscal year 1997 to $322 million in fiscal year 2006, resources had not
kept pace with inflation or the increased responsibilities. Both EPA
and state officials told GAO that they found it difficult to respond to
new requirements while carrying out previous responsibilities and
regional offices had reduced enforcement staff by about 5 percent. In
2005, GAO also reported that EPA‘s process for budgeting and allocating
resources did not fully consider the agency‘s workload, either for
specific statutory requirements such as those included in the Clean
Water Act or the broader goals and objectives in the agency‘s strategic
plan. Any efforts made by the agency to develop a more systematic
process would be hampered by the lack of comprehensive and accurate
workload data.
In 2007, GAO reported that EPA had made substantial progress in
improving priority setting and enforcement planning with states through
its system for setting national enforcement priorities and this had
fostered a more cooperative relationship with the states. Finally, in
2008, GAO reported that EPA could improve the accuracy and transparency
of some of the measures that it uses to assess and report on the
effectiveness of its civil and criminal enforcement programs. GAO
identified shortcomings in how EPA calculates and reports these data
that may prevent the agency from providing Congress and the public with
a fair assessment of the programs.
View [hyperlink, http://www.gao.gov/products/GAO-10-165T] or key
components. For more information, contact Anu Mittal, (202) 512-3841,
mittala@gao.gov.
[End of section]
Mr. Chairman and Members of the Committee:
We are pleased to be here today to participate in your hearing on the
37TH anniversary of the Clean Water Act. As you know, the Clean Water
Act has played a critical role in reducing water pollution and
improving the health of the nation's waterways. The Environmental
Protection Agency (EPA) administers its environmental enforcement
responsibilities under the Clean Water Act and other environmental
statutes, through its headquarters Office of Enforcement and Compliance
Assurance (OECA). OECA monitors the compliance of regulated facilities,
identifies national enforcement concerns and sets priorities, and
provides overall direction on enforcement policies. While OECA
headquarters occasionally takes direct enforcement action, much of
EPA's enforcement responsibilities are carried out by its 10 regional
offices. These offices are responsible for carrying out core program
activities under each of the major federal environmental statutes, as
well as significant involvement in implementing EPA's national
enforcement priorities and taking direct enforcement action. In
addition, the Clean Water Act directs EPA to authorize qualified states
to implement and enforce environmental programs consistent with federal
requirements. EPA expects its 10 regional offices to take a systematic
and generally consistent approach in overseeing the state enforcement
programs and, in doing so, to follow EPA's regulations, policies, and
guidance.
Over the last 9 years, GAO has reviewed various aspects of EPA's
enforcement activities and has made several recommendations to enhance
its enforcement program. Our testimony today is based on the findings
and conclusions contained in five of these reports and will
specifically focus on the following:[Footnote 1]
* Factors that cause variations in EPA's enforcement activities and
lead to inconsistencies across its regional offices,
* The impact that inadequate resources and workforce planning has had
on EPA's ability to meet changing enforcement needs,
* EPA's efforts to improve priority planning and enforcement planning
as well as oversight of state programs, and:
* Improvements that are needed to improve the accuracy and transparency
of measures of program effectiveness.
For the reports used to support this testimony statement, we conducted
our work in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient and appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
the findings and conclusions in these reports. We discussed the
contents of this testimony with an EPA official.
Background:
Since EPA was created in 1970, the agency has been responsible for
enforcing the nation's environmental laws. This responsibility has
traditionally involved monitoring compliance by those in the regulated
community (such as factories or small businesses that release
pollutants into the environment or use hazardous chemicals), ensuring
that violations are properly identified and reported, and ensuring that
timely and appropriate enforcement actions are taken against violators
when necessary. Most major federal environmental statutes, including
the Clean Water Act, permit EPA to allow states under certain
circumstances to implement key programs and to enforce their
requirements. EPA establishes by regulation the requirements for state
enforcement authority, such as the authority to seek injunctive relief
and civil and criminal penalties.
EPA also outlines by policy and guidance its views as to the elements
of an acceptable state enforcement program, such as necessary
legislative authorities and the type and timing of the action for
various violations, and tracks how well states comply. Environmental
statutes generally provide authority for EPA to take appropriate
enforcement action against violators in states that have been delegated
authority for these programs when states fail to initiate enforcement
action. The statutes also provide that EPA may withdraw approval of a
state's program if the program is not administered or enforced
adequately.
EPA administers its environmental enforcement responsibilities through
its headquarters Office of Enforcement and Compliance Assurance (OECA).
While OECA provides overall direction on enforcement policies, and
sometimes takes direct enforcement action, it carries out much of its
enforcement responsibilities through its 10 regional offices. These
offices are responsible for taking direct enforcement action and for
overseeing the enforcement programs of state agencies in those
instances in which the state has been delegated such enforcement
authority.
EPA has established principles for its enforcement and compliance
program. State guidance, providing the framework for state/EPA
enforcement agreements, has been in place since 1986. According to EPA,
this state guidance, together with statute-specific guidance, is the
blueprint for both EPA and state enforcement and compliance programs
and serves as the basis for both authorizing and reviewing state
programs.
OECA expects the regions to take a systematic approach to administering
and overseeing the enforcement programs among delegated and
nondelegated programs and, in doing so, to follow the policies and
guidance issued for this purpose. While federal and state enforcement
officials agree that core enforcement requirements should be generally
implemented consistently, according to EPA some variation is to be
expected--and, in some cases, encouraged. For example, EPA expects some
variation in how regions target resources to the most significant
compliance issues in different regions and states, the level of
enforcement activity--which should vary with the severity of the
problem, and the level of regional oversight of state enforcement
programs--with the greater oversight provided for weaker programs.
Variations in Enforcement By EPA's Regions Have Resulted in
Inconsistencies in Program Implementation:
As we noted in our 2000 report on the consistency of EPA's regions in
enforcing environmental requirements, some variation in environmental
enforcement is necessary to take into account local conditions and
local concerns.[Footnote 2] At the same time, EPA enforcement officials
readily acknowledged that core enforcement requirements must be
consistently implemented, and to ensure fairness and equitable
treatment, similar violations should be met with similar enforcement
responses, regardless of geographic location. However, when we reviewed
EPA's enforcement efforts we found that variations among EPA's regional
offices had led to inconsistencies in the actions they take to enforce
environmental requirements. For example, we found that:
* inspection coverage by EPA and state enforcement staff varied for
facilities discharging pollutants within each region,
* the number and type of enforcement actions taken by EPA's regions
also varied,
* the size of the penalties assessed and the criteria used in
determining penalties assessed varied by region, and:
* the regions' overall strategies in overseeing the states within their
jurisdiction varied, which may have resulted in more in-depth reviews
in some regional programs than in others.
EPA headquarters officials responsible for the water program explained
that such variation was fairly commonplace and has posed problems. The
director of OECA's water enforcement division, for example, said that
in reacting to similar violations, enforcement responses in certain
regions were weaker than in others, and that such inconsistencies had
increased.
We identified a number of factors that contributed to variations in
EPA's enforcement that included the following:
* differences in the philosophical approaches among enforcement staff
about how to best achieve compliance with environmental requirements,
* differences in state laws and enforcement authorities, and in the
manner in which regions respond to these differences,
* variations in resources available to both state and regional
enforcement offices,
* the flexibility afforded by EPA policies and guidance that allow
states a degree of latitude in their enforcement programs, and:
* incomplete and inadequate enforcement data which, among other things,
hamper EPA's ability to accurately characterize the extent of
variations.
We also noted in our 2000 report that EPA headquarters enforcement
officials were developing performance information that would allow for
comparisons among both regions and states in their conduct of key
enforcement responsibilities. Such assessments were expected to
highlight any major program variations and would be communicated
through the issuance of periodic status reports. A number of EPA
regional offices were also developing and applying new audit protocols
in their state reviews and encouraging more effective communication
between and among regional and state enforcement staff. But we also
concluded that a number of factors would continue to challenge EPA's
ability to ensure reasonably consistent enforcement across its regions.
Among the most important of these factors was the absence of reliable
data on how both states and regions are performing their enforcement
responsibilities.
In 2007, we again examined EPA's efforts to improve oversight of state
enforcement activities. At that time, we reported that EPA had improved
its oversight of state enforcement programs by implementing the State
Review Framework (SRF). We noted that EPA's implementation of the SRF
gave it the potential to provide for the first time a consistent
approach for overseeing authorized states' compliance and enforcement
programs. Nonetheless, we also reported that the SRF had identified
several significant weaknesses in how states enforce their
environmental laws in accordance with federal requirements. For
example, reviews conducted under the framework found that the states
were not properly documenting inspection findings or how they calculate
or assess penalties, as provided by EPA's enforcement policy and
guidance, that the states were not adequately entering significant
violations noted in their inspection reports into EPA databases, and
that the states lacked adequate or appropriate penalty authority or
policies. While we recognized the value in EPA's identification and
documentation of these findings, we also reported that EPA had not
developed a plan for how it would uniformly address them in a timely
manner, nor had the agency identified the root causes of the
weaknesses, although some EPA and state officials attributed the
weaknesses to causes such as increased workloads concomitant with
budgetary reductions. We concluded that, until EPA addressed
enforcement weaknesses and their causes, it faced limitations in
determining whether the states are performing timely and appropriate
enforcement, and whether they are applying penalties to environmental
violators in a fair and consistent manner within and among the states.
In 2000 and in 2007, GAO made several recommendations to EPA to address
the concerns that we identified with the agency's enforcement programs.
For example, in 2000, we recommended that EPA develop a comprehensive
strategy to adequately address problems with the quality of the
agency's enforcement data and issue guidance to the regions describing
the required elements of audit protocols to be used in overseeing state
enforcement programs. In 2007, we recommended that to enhance EPA's
oversight of regional and state enforcement activities consistent with
federal requirements that the agency should (1) identify lessons
learned and develop an action plan to address significant issues, (2)
address resource issues such as state staffing levels and resource
requirements, (3) publish the results of the SRF reviews so that the
public and others will know how well state enforcement programs are
working, and (4) conduct a performance assessment of regional
enforcement programs similar to the SRF. EPA generally agreed with most
of the recommendations we made in 2007, but did not specifically
comment on the recommendations we made in 2000. Although EPA has taken
steps to address the recommendations in our 2000 report, it has not yet
implemented the recommendations in our 2007 report.
Enforcement Resources Have Not Kept Pace with Increased
Responsibilities and Better Resource Planning Would Enhance Enforcement
Activities:
[End of section]
In 2005, we reported that the scope of EPA's responsibilities under the
Clean Water Act had increased significantly since 1972, along with the
workload associated with implementing and enforcing the act's
requirements.[Footnote 3] For example, EPA's implementation of the 1987
amendments which expanded the scope of the act by regulating storm
water runoff resulted in (1) increasing the number of regulated
industrial and municipal facilities by an estimated 186,000 facilities
and (2) adding hundreds of thousands of construction projects to
states' and regions' workloads for the storm water program. At the same
time, EPA had authorized states to take on more responsibilities,
shifting the agency's workload from direct implementation to oversight.
In 2007, we reported that while overall funding for carrying out
enforcement activities to regions and authorized states had increased
from fiscal years 1997 through 2006, these increases had not kept pace
with inflation and the growth in enforcement responsibilities.[Footnote
4] Over the 10-year period we reviewed, EPA's enforcement funding to
the regions increased from $288 million in fiscal year 1997 to $322
million in fiscal year 2006, but declined in real terms by 8 percent.
Both EPA and state officials told us they found it difficult to respond
to new requirements while carrying out their previous responsibilities.
In 2007, officials in OECA and EPA's Office of the Chief Financial
Officer told us that in recent years OECA headquarters absorbed
decreases in OECA's total enforcement funding to prevent further
reductions to the regions. We determined that enforcement funding for
OECA headquarters increased from $197 million in fiscal year 2002 to
$200 million in fiscal year 2006--a 9 percent decline in real terms.
During the same time, regional enforcement funding increased from $279
million to $322 million--a 4 percent increase in real terms. EPA also
reduced the size of the regional enforcement workforce by about 5
percent over the 10 year period between fiscal years 1997 and 2006.
During this 10-year period, the regional workforce was reduced from
2,568 full-time equivalent (FTE) staff in fiscal year 1997 to 2,434
FTEs in fiscal year 2006. In comparison, the OECA headquarters
workforce declined 1 percent, and the EPA total workforce increased 1
percent during the same period. However, the change in FTEs was not
uniform across the 10 regions over the period. For example, two
regions--Region 9 (San Francisco) and Region 10 (Seattle)--experienced
increases in their workforce: Region 9 increased 5 percent, from 229 to
242 FTEs, and Region 10 increased 6 percent, from 161 to 170 FTEs. In
contrast, two regions--Region 1 (Boston) and Region 2 (New York)
experienced the largest declines: Region 1 experienced a 15 percent
decline, from 195 to 166 FTEs, and Region 2 had a 13 percent decline,
from 291 to 254 FTEs.
Although we recognized that resources had not kept pace with EPA's
responsibilities under the Clean Water Act, we also found that EPA's
process for budgeting and allocating resources did not fully consider
the agency's current workload, either for specific statutory
requirements, such as those included in the Clean Water Act, or for the
broader goals and objectives in the agency's strategic plan. Instead,
EPA made incremental adjustments and relied primarily on historical
precedent when making resource allocations. In 2005, we concluded that
changes at the margin may not be sufficient because both the nature and
distribution of the Clean Water Act workload had changed, the scope of
activities regulated under the act had increased, and EPA had taken on
new responsibilities while shifting others to the state.
While we reported in 2005 that EPA had taken some actions to improve
resource planning, we also found that it faced a number of challenges
that hindered comprehensive reform in this area. Specifically, we
identified several efforts that EPA had initiated to improve the
agency's ability to strategically plan its workforce and other
resources. While some of these efforts were not directly related to
workforce planning, we found that they had the potential to give the
agency some of the information it needed to support a systematic, data-
driven method for budgeting and allocating resources. In addition, we
identified two initiatives within the Office of Water that we believed
had the potential to provide relevant and useful information for a data-
driven approach to budgeting and allocating resources. First, beginning
in December 1998, EPA and the states collaborated on a state resource
analysis for water quality management to develop an estimate of the
resources that states needed to fully implement the Clean Water Act.
The primary focus of the project was identifying the gap between
states' needs and available resources. To develop the estimates of the
gap, EPA and the states created a detailed model of activities
associated with implementing the Clean Water Act, the average time it
took to complete such activities, and the costs of performing them. The
National Academy of Public Administration subsequently reviewed the
model and determined that the underlying methodology was sound, and
recommended that EPA and the states refine the model to support data-
driven grant allocation decisions. However, as we reported, the agency
did not implement the recommendation, citing resource constraints and
reluctance on the part of some states. Second, in 2003, the Office of
Water implemented an initiative called the Permitting for Environmental
Results Strategy to respond to circumstances that were making it
increasingly difficult for EPA and the states to meet their
responsibilities under the Clean Water Act. According to EPA, in
addition to the scope and complexity of the act expanding over time,
the states were also facing an increasing number of lawsuits and
petitions to withdraw their authorization to administer some Clean
Water Act programs. As part of its effort to identify and resolve
performance problems in individual states, EPA and the states were
developing profiles containing detailed data on the responsibilities,
resources, and workload demands of each state and region. We concluded
that this information would be useful to any comprehensive and
systematic resource planning method adopted by the agency.
Nonetheless, we also identified a number of larger challenges that EPA
would face as it tried to adopt a more systematic process for budgeting
and resource allocation. Specifically, we found that EPA would be
challenged in obtaining complete and reliable data on key workload
indicators, which we concluded would be the most significant obstacle
to developing a systematic, data-driven approach to resource
allocation. Without comprehensive and reliable data on workload, EPA
cannot accurately identify where agency resources, such as staff with
particular skills, are most needed. EPA officials told us that some of
the key workload factors related to controlling point and nonpoint
source pollution include the number of point source dischargers, the
number of wet weather dischargers, and the quantity and quality of
water in particular areas. However, we reported that for some of this
information, the relevant databases may not have the comprehensive,
accurate, and reliable information that is needed by the agency.
Even with better workload data, we found in 2005 that EPA would also
find it difficult to implement a systematic, data-driven approach to
resource allocation without staff support for such a process. Support
might not be easily forthcoming because, according to EPA officials in
several offices and regions, staff were reluctant to accept a data-
driven approach after their experience in using workload models during
the 1980s. At that time, each major program office used a model to
allocate resources to the agency's regional offices. When the models
were initially developed, agency officials believed they were useful
because EPA's programs were rapidly expanding as the Congress passed
new environmental laws. Over time, however, the expansion of EPA's
responsibilities leveled off, and its impact on the relative workload
of regions was not as significant. The change in the rate of the
workload expansion, combined with increasingly constrained federal
resources during the late 1980s, meant that the workload models were
only being used to allocate changes at the margins. The agency stopped
using the models in the early 1990s because, according to officials,
staff spent an unreasonable amount of time negotiating relatively minor
changes in regional resources.
To address the concerns that we identified with EPA's resource
allocation and planning processes for the enforcement programs, in
2005, we made several recommendations to the agency. Specifically, we
recommended that EPA identify relevant workload indicators that drive
resource needs, ensure that relevant data are complete and reliable,
and use the results to inform budgeting and resource allocation
decisions. In responding to our recommendations, EPA voiced concerns
that a bottom-up workload assessment contrasts with its approach, which
links budgeting and resource allocation to performance goals and
results. However, we reiterated our belief that assessing workload and
how it drives resources was fully compatible with EPA's approach. In
2008,[Footnote 5] when we again reported on EPA's resource allocation
process, we found that the process was essentially the same as we
reported in 2005 and that the agency had not made progress on
implementing our recommendations.
EPA Has Improved Its Process for Collaborating with States to Set
Priorities:
In 2007, we reported that, despite the interdependence between EPA and
the states in carrying out enforcement responsibilities, effective
working relationships have historically been difficult to establish and
maintain, based on reports by GAO, EPA's Office of Inspector General,
the National Academy of Public Administration, and others.[Footnote 6]
We identified the following three key issues that have affected EPA and
state relationships in the past:
* EPA's funding allocations to the states did not fully reflect the
differences among the states' enforcement workload and their relative
ability to enforce state environmental programs consistent with federal
requirements. In this regard, EPA lacked information on the capacity of
both the states and EPA's regions to effectively carry out their
enforcement programs, because the agency had done little to assess the
overall enforcement workload of the states and regions and the number
and skills of people needed to implement enforcement tasks, duties, and
responsibilities. Furthermore, the states' capacity continued to evolve
as they assumed a greater role in the day-to-day management of
enforcement activities, workload changes occurred as a result of new
environmental legislation, new technologies were introduced, and state
populations shifted.
* Problems in EPA's enforcement planning and priority setting processes
resulted in misunderstandings between OECA, regional offices, and the
states regarding their respective enforcement roles, responsibilities,
and priorities. States raised concerns that EPA sometimes
"micromanaged" state programs without explaining its reasons for doing
so and often did not adequately consult the states before making
decisions affecting them.
* OECA had not established a consistent national strategy for
overseeing states' enforcement of EPA programs. Consequently, the
regional offices were not consistent in how they oversaw the states.
Some regional offices conducted more in-depth state reviews than
others, and states in these regions raised concerns that their
regulated facilities were being held to differing standards of
compliance than facilities in states located in other regions.
Our 2007 report acknowledged that EPA had made substantial progress in
improving priority setting and enforcement planning with states through
its system for setting national enforcement priorities and the National
Environmental Performance Partnership System (NEPPS), which was
designed to give states demonstrating strong environmental performance
greater flexibility and autonomy in planning and operating their
environmental programs. We concluded that the NEPPS had fostered a more
cooperative relationship with the states and that EPA and the states
had also made some progress in using NEPPS for joint planning and
resource allocation. State participation in the partnership had grown
from 6 pilot states in fiscal year 1996 to 41 states in fiscal year
2006.
Measures Used to Report on the Effectiveness of Enforcement Efforts Can
Be Improved:
In 2008, we reported that EPA relies on a variety of measures to assess
and report on the effectiveness of its civil and criminal enforcement
programs.[Footnote 7] For example, EPA relies on assessed penalties
that result from enforcement efforts among its long-standing measurable
accomplishments. The agency uses its discretion to estimate the
appropriate penalty amount based on individual case circumstances. EPA
has developed penalty policies as guidance for determining appropriate
penalties in civil administrative cases and referring civil judicial
cases. The policies are based on environmental statutes and have an
important goal of deterring potential polluters from violating
environmental laws and regulations. The purpose of EPA's penalties is
to eliminate the economic benefit a violator gained from noncompliance
and to reflect the gravity of the alleged harm to the environment or
public health. In addition to penalties, EPA has also established what
it considers two major performance measures for its civil enforcement
program. These are (1) the value of injunctive relief--the monetary
value of future investments necessary for an alleged violator to come
into compliance, and (2) pollution reduction--the pounds of pollution
to be reduced, treated, or eliminated as a result of an enforcement
action. EPA relies on these measures, among others, in pursuing its
national enforcement priorities and overall strategy of fewer, but
higher impact, cases. However, unless these measures are meaningful,
the Congress and the public will not be able to determine the
effectiveness of the enforcement program.
When we reviewed EPA's assessed penalties data we determined that from
fiscal years 1998 to 2007 total inflation-adjusted penalties declined
when excluding major default judgments.[Footnote 8] When adjusted for
inflation, total assessed penalties were approximately $240.6 million
in fiscal year 1998 and $137.7 million in 2007. Moreover, we identified
three shortcomings in how EPA calculates and reports penalty
information to the Congress and the public that may result in an
inaccurate assessment of the program. Specifically, we reported that
EPA was:
* Overstating the impact of its enforcement programs by reporting
penalties assessed against violators rather than actual penalties
received by the U.S. Treasury.
* Reducing the precision of trend analyses by reporting nominal rather
than inflation-adjusted penalties, thereby understating past
accomplishments.
* Understating the influence of its enforcement programs by excluding
the portion of penalties awarded to states in federal cases.
In contrast to penalties, we found that both the value of estimated
injunctive relief and the amount of pollution reduction reported by EPA
generally increased. The estimated value of injunctive relief increased
from $4.4 billion in fiscal year 1999 to $10.9 billion in fiscal year
2007, in 2008 dollars. In addition, estimated pollution reduction
commitments amounted to 714 million pounds in fiscal year 2000 and
increased to 890 million pounds in fiscal year 2007. However, we
identified several shortcomings in how EPA calculates and reports this
information as well. We found that generally EPA's reports did not
clearly disclose the following:
* Annual amounts of injunctive relief and pollution reduction have not
yet been achieved. They are based on estimates of relief and reductions
to be realized when violators come into compliance.
* Estimates of the value of injunctive relief are based on case-by-case
analyses by EPA's technical experts, and in some cases the estimates
include information provided by the alleged violator.
* Pollution reduction estimates are understated because the agency
calculates pollution reduction for only 1 year at the anticipated time
of full compliance, though reductions may occur for many years into the
future.
In addition, we identified a number of factors that affected EPA's
process for achieving annual results in terms of penalties, estimated
value of injunctive relief, and amounts of pollution reduction. Some of
these factors that could affect the outcomes included:
* The Department of Justice (DOJ), not EPA, is primarily responsible
for prosecuting and settling civil judicial and criminal enforcement
cases.
* Executive Order 12988 directs DOJ, whenever feasible, to seek
settlements before pursuing civil judicial actions against alleged
violators.
* Unclear legal standards, as illustrated by the 2006 Supreme Court
decision, Rapanos v. United States have hindered EPA's enforcement
efforts. This case generally made it more difficult for EPA to take
enforcement actions because the legal standards for determining what is
a "water of the United States" were not clear.
In our 2008 report, we recommended that EPA take a number of actions to
improve the accuracy and transparency of the information that it
reports to the Congress and the public regarding penalties assessed,
value of injunctive relief, and estimates of pollution reduction. EPA
generally agreed with most of our recommendations and stated that it
would consider making these changes in the future.
In conclusion, our work over the past 9 years has shown that the Clean
Water Act has significantly increased EPA's and the states' enforcement
responsibilities, available resources have not kept pace with these
increased needs, and actions are needed to further strengthen the
enforcement program. To address these concerns, we have made several
recommendations to EPA, however, EPA's implementation of our
recommendations has been uneven and several of the issues that we have
identified over the last decade remain unaddressed today. The agency
still needs comprehensive, accurate, and reliable data that would allow
it to better target limited resources to those regions and potential
pollution problems of the greatest concern. The agency still needs
better processes to plan and allocate resources to ensure that the
greatest risks are being addressed. Finally, the agency needs accurate
and transparent measures to report on whether the Clean Water Act is
being consistently implemented across the country in all regions and
that like violations are being addressed in the same manner.
Mr. Chairman, this concludes our prepared statement, we would be happy
to respond to any questions that you or other committee Members might
have.
Contact and Staff Acknowledgments:
Contact points for our Offices of Congressional Relations and Public
Affairs may be found on the last page of this statement. For further
information about this testimony, please contact Anu Mittal at (202)
512-3841 or mittala@gao.gov. Key contributors to this testimony were
Steve Elstein, Diane Raynes, Ed Kratzer, Sherry McDonald, Antoinette
Capaccio, and Alison O'Neill.
[End of section]
Footnotes:
[1] GAO, Environmental Protection: More Consistency Needed Among EPA
Regions in Approach to Enforcement, [hyperlink,
http://www.gao.gov/products/GAO/RCED-00-108] (Washington, D.C.: June 2,
2000); GAO, Clean Water Act: Improved Resource Planning Would Help EPA
Better Respond to Changing Needs and Fiscal Constraints, [hyperlink,
http://www.gao.gov/products/GAO-05-721] (Washington, D.C.: July 22,
2005); GAO, Environmental Protection: EPA-State Enforcement Partnership
Has Improved, but EPA's Oversight Needs Further Enhancement,
[hyperlink, http://www.gao.gov/products/GAO-07-883] (Washington D.C.:
July 31, 2007); GAO, Environmental Enforcement: EPA Needs to Improve
the Accuracy and Transparency of Measures Used to Report on Program
Effectiveness, [hyperlink, http://www.gao.gov/products/GAO-08-1111R]
(Washington, D.C.: Sept.18, 2008); GAO, EPA's Execution of Its Fiscal
Year 2007 New Budget Authority for the Enforcement and Compliance
Assurance Program in the Regional Offices, [hyperlink,
http://www.gao.gov/products/GAO-08-1109R] (Washington, D.C.: Sept. 26,
2008).
[2] GAO, Environmental Protection: More Consistency Needed Among EPA
Regions in Approach to Enforcement, [hyperlink,
http://www.gao.gov/products/GAO/RCED-00-108] (Washington, D.C.: June 2,
2000).
[3] GAO, Clean Water Act: Improved Resource Planning Would Help EPA
Better Respond to Changing Needs and Fiscal Constraints, [hyperlink,
http://www.gao.gov/products/GAO-05-721] (Washington, D.C.: July 22,
2005).
[4] GAO, Environmental Protection: EPA-State Enforcement Partnership
has Improved, but EPA's Oversight Needs Further Enhancement,
[hyperlink, http://www.gao.gov/products/GAO-07-883] (Washington, D.C.:
July 31, 2007).
[5] GAO, EPA's Execution of Its Fiscal Year 2007 New Budget Authority
for the Enforcement and Compliance Assurance Program in Regional
Offices, [hyperlink, http://www.gao.gov/products/GAO-08-1109R]
(Washington, D.C., Sept. 26, 2008).
[6] GAO, Environmental Protection: EPA-State Enforcement Partnership
has Improved, but EPA's Oversight Needs Further Enhancement,
[hyperlink, http://www.gao.gov/products/GAO-07-883] (Washington, D.C.:
July 31, 2007).
[7] GAO, Environmental Enforcement: EPA Needs to Improve the Accuracy
and Transparency of Measures Used to Report on Program Effectiveness,
[hyperlink, http://www.gao.gov/products/GAO-08-1111R] (Washington,
D.C.: Sept. 18, 2008).
[8] A default judgment is a binding judgment in favor of the plaintiff
when the defendant has not responded to a civil complaint.
[End of section]
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