By Michael Mikulka
Law enforcement by the U.S. Environmental Protection Agency fell significantly in 2017. It’ll be worse in 2018. EPA is failing to conduct wide-ranging investigations to protect human health.
EPA initiated 20 percent fewer civil cases and 30 percent fewer criminal enforcement cases during fiscal 2017. The number of defendants charged, and inspections conducted have all hit the lowest point in a decade. That is not accidental. Pruitt seems to be putting up roadblocks to investigations. Under Trump, enforcers must navigate through a gauntlet of obstacles to bring an enforcement action across the finish line.
EPA is thwarting its own workforce’s efforts to determine compliance with environmental law by restricting the use of the most powerful investigative tools provided to EPA by Congress. Authorities that allow for investigations under the Clean Air Act, the Clean Water Act and the Resource Conservation and Recovery Act May compel polluters to test whether they are in compliance with those laws. But Pruitt has taken away much of this “testing” power from local EPA officials, who are insulated from political pressure, and given it to appointees loyal to Trump.
Use of these investigative tools has slowed to a standstill. In last years of the Obama administration, EPA’s Great Lakes Office sent requests for environmental testing to approximately 43 facilities per year. After political appointees took over the approval of environmental testing, only four requests were made by the Chicago office in eight months. In December 2017, the New York Times reported EPA similar decline at the Denver EPA office.
The enforcement slowdown has been compounded by the departure of 900 EPA employees since Trump’s election. EPA has blocked the hiring of enforcers to replace the staff who specialize in bringing environmental cases.
Without investigators, EPA cannot discover a violation of the law. Pruitt is refusing to use funds appropriated by Congress to hire new investigators. Enforcement is being starved of personnel.
Investigation and analysis of environmental data is crucial to the protection of public health. EPA tried to block the release of a report detailing the dangers of PFOA poisoning. Polytetrafluoroethylene, or PFOA, and associated compounds PFOS and PFAS, used for decades in the production of textiles, paper, metal-plating and semiconductors are linked to cancer, thyroid disease and weakened childhood immunity.
PFAS chemicals now contaminate the drinking water systems serving 16 million Americans in 33 states. EPA has dragged its feet on regulating PFAS chemicals, despite convincing evidence that they are hazardous at very low doses. EPA failed to set a PFAS legal limit in 2017. Instead, it proposed an ineffectual non-enforceable lifetime health advisory level.
As reported in Politico, the Agency for Toxic Substances and Disease Registry (ATSDR), prepared to publish a draft recommendation for “very, very low” minimal risk levels for the chemicals, ranging as low as 12 ppt, EPA political appointees quashed the action. If EPA thwarts the release of information about what is harming us, how will we ever stop the harm?
The bulk of EPA enforcement is conducted in 10 regional offices. Historically, those offices were allowed a measure of autonomy in pursuing local cases, only requiring consulting with EPA’s DC office on nationally significant cases.
Now, EPA’s Office of Enforcement and Compliance Assurance (OECA) headed by Susan Bodine, a longtime former lawyer for industry, has disrupted the initiation of local enforcement actions by personally reviewing case materials before they are submitted to DOJ.
Political appointees weigh in over whether EPA refers a case to the Department of Justice, or whether EPA files a case through DOJ in federal court. Political appointees dictate the terms EPA may use to settle enforcement cases, even in routine situations. At each turn, politics, not the facts, seem to tilt the scale towards polluters.
Further, EPA has now allowed states an unprecedented say over whether to bring an action against a violator in their state. Data showing a violation is often turned over to a state environmental agency, where the fines and compliance terms demanded are notoriously less stringent, or lawbreakers may not be penalized at all. When enforcement is ineffective, widespread disregard of compliance ensues, leading to immeasurably more pollution.
We can’t afford any more threats to the health of Americans. We must allow EPA to fulfill its intended mission, stop environmental polluters and provide all citizens with breathable air, drinkable water and safe land.
Michael Mikulka is president of American Federation of Government Employee Local 704, representing EPA Region 5 workers protecting Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin.