Hunton Andrews Kurth LLP
J. Tom Boer, Samuel L. Brown, Todd S. Mikolop and Alexandra Hamilton
February 12, 2019
Last week, the US Environmental Protection Agency (EPA) released its annual enforcement results for the 2018 fiscal year (ranging from October 1, 2017, to September 30, 2018). The report, prepared by EPA’s Office of Enforcement and Compliance Assurance (OECA), highlights the results of the agency’s civil and criminal enforcement of the nation’s federal environmental laws over the past year. The 2018 results mark the first full fiscal year of enforcement results, including inspections and compliance evaluations, under the Trump administration. A statement in the report from Susan Bodine, the Assistant Administrator for OECA, summarizes EPA’s enforcement priorities, explaining “[i]n fiscal year 2018, we continued our focus on expediting site cleanup, deterring noncompliance, and returning facilities to compliance with the law, while respecting the cooperative federalism structure of our nation’s environmental laws.”
As we have written on this blog, EPA previously announced two policy shifts that were expected to influence enforcement results: (i) a shift from an enforcement emphasis to a focus on compliance assistance and, (ii) a return to Cooperative Federalism, whereby EPA will defer to states as the primary enforcement agencies for many federal environmental laws (where, for example, a state has received delegated authority to run particular programs). Under the current administration, EPA has also stated, for example, that compliance assistance will be reemphasized by the Agency in recognition that enforcement actions are not the only tool for improving environmental compliance and reducing pollution. The report itself explicitly discusses OECA’s approach during FY 2018:
We often work informally with regulated entities, again to achieve a return to compliance more promptly. We are expanding the use of expedited settlement tools to achieve compliance more efficiently. We encourage self-audits
and self-disclosures by providing incentives for regulated entities to voluntarily discover and fix violations of
federal environmental laws and regulations. We work with states to assist them in building their capacity to assure
compliance and take enforcement actions as needed. We make use of the full array of enforcement and
compliance tools, seeking to use the most effective tools for specific situations, with the end goal of achieving
greater and more expeditious compliance.
As a result of this shift in emphasis at OECA, we expected to see some departure from enforcement trends in prior years documented in this report. That change is, in fact, reflected in the report from EPA.
The 2018 report included the following results:
- EPA assessed approximately $69.5 million dollars in administrative and civil judicial penalties in FY 2018. This is a decrease from the total civil penalties in other recent years that were driven higher by the $5.7 billion civil settlement related to the BP Deepwater Horizon incident in FY 2016, and a $1.45 billion civil settlement with Volkswagen in FY 2017. Civil enforcement cases that result in penalties of that magnitude often take years to negotiate and develop (or, conversely, to proceed to a final judgment). In fact, the report notes that it typically takes 2.25 years to move civil cases referred by EPA to the Department of Justice resolved via settlement or to proceed towards litigation with the filing of a complaint. Lower total penalties in FY 2018, therefore, were associated with the lack of the resolution of any disproportionally large civil cases during the year.
- OECA’s shift to an emphasis on compliance assistance and encouragement of self-reporting is apparent in the voluntary disclosure statistics. In FY 2018, for example, over 1,560 facilities voluntarily disclosed violations pursuant to EPA’s self-disclosure policies. This represents a 47% increase in self-disclosures from FY 2017 and an even greater climb from earlier years (for example, there were only 666 facilities that self-disclosed in FY 2015). EPA attributes the increases in the self-disclosure of environmental compliance issues to increased use of the eDisclosure reporting that was launched two years ago and EPA’s introduction of the New Owner Audit Policy this past fiscal year.
- For FY 2018, EPA reported $88 million in criminal fines, restitution and court ordered environmental projects. As with civil cases, year to year results can vary significantly due to large enforcement cases. For example, FY 2017’s results were dominated by a criminal fine associated with vehicle emission testing bypasses. The fines and restitution imposed in FY 2018, however, were higher than at any point in the 2008 to 2012 period. The data also shows that EPA continues to pursue criminal enforcement cases. For example, while the number of defendants criminally charged declined in FY 2018, the number of environmental criminal cases opened increased from the year before (for the first time since FY 2011).
- EPA conducted about 10,600 inspections and compliance evaluations in FY 2018. Although this represents about a 10% decline from the prior year, it is consistent with a nearly decade-long continuing decline in EPA inspections and evaluations. Part of the decline, as reported by EPA in its annual report, is attributable to increased reliance on data analytics and other tools to improve inspection targeting. Although not directly addressed by EPA, it is likely that another reason for the decline is EPA’s reliance on cooperative federalism, whereby some states may be conducting more inspections without EPA’s direct involvement.
- For FY 2018, EPA reports that it initiated and concluded more than 1,800 civil judicial and administrative cases (note, there is not a direct correlation between the initiated cases and concluded cases because, as noted above, case development can take years). This continues a general downward trend in the number of case initiations and conclusions (which often closely track each other) that began in FY 2009 and continues to this day. Given the time that it takes to develop—and resolve—federal civil environmental cases, it would appear likely that many of the cases concluded in FY 2018 were developed, or referred to the Department of Justice, during the prior administration.
- EPA reported that private parties committed to spend roughly $453 million to cleanup new sites. Despite the agency’s stated focus on increasing Superfund enforcement, this amount is less than half of FY 2017’s approximately $1.26 billion total. The report explains, however, that a couple of significant cleanup cases can heavily impacted the annual totals.
Additionally, the total value of Supplemental Environmental Projects (SEP) (projects to benefit the environment voluntarily undertaken by parties facing civil enforcement) increased this year to more than $28 million. This indicates a continued commitment by EPA to using the SEP policy following the Justice Department’s changed policies related to third-party payments in settlement agreements to resolve federal claims or charges that we have previously noted.
The report recognizes that the shift towards cooperative federalism means that the full scope of EPA’s enforcement program may be obscured in the annual reporting metrics currently used. OECA notes that the Agency often provides assistance to states—for example, undertaking a portion of case work—that is then used to bring violators into compliance under state led enforcement and compliance programs. For future enforcement reports, EPA is developing a measure to clearly define and track assistance provided to the states.
Other indicators of enforcement activity, such as the issuance of information requests authorized by a number of federal environmental statutes but not captured in the report’s statistics, indicate that federal environmental enforcement will continue apace in the current fiscal year. Companies should continue to maintain robust compliance programs and consider approaching EPA for compliance assistance or self-reporting where deficiencies may be identified.
J. Tom Boer , Samuel L. Brown, Todd S. Mikolop, and Alexandra Hamilton are attorneys of Hunton Andrews Kurth LLP’s environmental enforcement defense team, which represents large corporations including those in energy, manufacturing and chemical industries, as well as individuals in environmental lawsuits, including defending governmental and citizen suit environmental enforcement actions, and in responding to catastrophic environmental emergencies and chemical releases, and with toxics cleanups and cost recoveries. This article is republished from The Nickel Report, the source for recent trends and developments in energy and environmental law from these authors and their colleagues.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Boer, Mr. Brown, Mr. Mikolop and Ms. Hamilton and may not reflect the opinions of Synergy Environmental, Inc., Hunton Andrews Kurth LLP or either of those firms’ clients.