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Saturday, May 1, 1999

Above the Law

How The Government Lets Major Air Polluters Off The Hook

View and Download our report here: Above the Law

An Environmental Working Group analysis of recently released enforcement records from the U.S. Environmental Protection Agency (U.S. EPA) reveals a persistent pattern of “significant violations” of the Clean Air Act (CAA) in five major industries. Hundreds of large facilities in auto assembly, iron and steel, petroleum refining, pulp manufacturing, and metal smelting and refining are threatening the public health by their repeated failure to comply with federal clean air safeguards. Worse, there has been little effort by state or federal officials to bring even the most flagrant offenders into compliance with current statutory requirements.

The EWG analysis is based upon records of compliance with air pollution standards at nearly 600 facilities in five major industries across the United States during the past two years. These records, which were audited by polluters and state and federal enforcement agencies, have just recently been released to the public.

  • More than 39 percent (227 out of 575) of all major U.S. facilities in auto assembly, iron and steel, petroleum refining, pulp manufacturing, and the metal smelting and refining industries violated the CAA between January 1997 and December 1998. On average, these facilities violated the Act four out of the eight quarters during the two-year period analyzed. All of these infractions fit the U.S. EPA definition of “significant” violations of the law. Only about one-third (36 percent) of the 227 facilities violating the law have been fined by the U.S. EPA or state environmental regulators. According to EPA, only two percent of the violations reported are paperwork violations (EPA 1997a).
  • Fifty-three (53) of these major polluters were out of compliance with the CAA every quarter during the 2- year period analyzed (Table 1). Just 20 of these 53 facilities were subject to fines or penalties during that time.
  • When fines were levied, they were almost always too small to have any deterrent effect. The average fines for a “significant violator” of the CAA for the past two years nationwide was $318,290. The average net earnings of the corporations that owned these facilities in 1998 were $24.2 billion
  • In thirteen of the nineteen states with five or more violators, more than 50 percent of all facilities violating the Clean Air Act in the past two years escaped with no fines.

The industries with highest violation rates are petroleum refining and iron and steel, where 41 and 31 percent of all facilities respectively are currently classified as “significant violators” of the Clean Air Act. Twenty-five (25) percent of metal smelting and refining facilities, 20 percent of pulp manufacturing facilities and ten percent of auto assembly plants are also currently classified as “significant violators” as of April 1999.

Without question, the Clean Air Act is not being effectively enforced by state environmental agencies. In turn, EPA oversight of state enforcement is virtually non-existent. Large industrial companies are taking advantage of the situation and the public is suffering direct health consequences as a result. It is no wonder that year after year, the air in many major metropolitan areas fails to meet federal health standards. In the five industries analyzed, which represent just a fraction of all American industry:

  • Forty-three (43) facilities, located in metropolitan regions that are out of compliance with the CAA, emitted illegal levels of the very pollutant for which the community failed to meet federal health standards (Table 3). Only half of these facilities had been fined in the past two years by either state or federal authorities.

Industry is Pressing for Further Rollbacks of Health Safeguards

Major progress toward existing clean air goals could be achieved with strict enforcement of current laws and regulations. Instead, lax enforcement encourages unsafe amounts of pollution even as major polluting industries work for rollbacks of federal clean air standards under the guise of “regulatory reform.”

In the halls of Congress, industry portrays itself as living in fear of onerous federal environmental regulations. Regulatory reform legislation is offered in this context as a means to relieve the so-called burden of big government. In truth, most of these proposals would further relax already slack enforcement of environmental safeguards by erecting a series of bureaucratic roadblocks in the path of nearly all federal rules to protect the public health.

Companies will never comply with the Clean Air Act, or any environmental law, without a real threat of punishment. There is little factual evidence that anything other than stepped-up enforcement, larger fines, and tougher federal government oversight will increase compliance with environmental laws, and reduce the serious levels of air pollution that continue to plague most metropolitan areas in the United States.

Conclusions and Recommendations

EWG’s first ever analysis of enforcement records audited by federal and state officials and the polluters themselves, reveals a disturbing disregard for public health safeguards and pollution standards that have been adopted to protect the public health from serious environmental threats. Enforcement of the Clean Air Act is feckless and the health protections already promised to the public by the Congress are nowhere near being met. It is inconceivable that this level of illegal activity would be tolerated under statutes applied to other areas of society or commerce. The primary reason that this situation has been allowed to continue, we believe, is that the public has not had any way to know that the nation’s clean air laws were so poorly enforced and routinely violated. This report is a first step in what we hope is a longterm effort to educate and involve the public in enforcement of the nation’s environmental laws.

In the five industries examined, the record of compliance with the Clean Air Act is abysmal. To remedy the problem, state and federal environmental enforcement agencies need to vastly improve their enforcement activities. Industry, in turn, should not operate with such an opportunistic disregard for what it clearly knows to be rules and regulations that were designed, with its input, to protect the public health.

Specifically, to improve compliance with the CAA:

  • The Congress must not pass legislation that in any way slows the implementation and enforcement of public health standards or pollution controls mandated under the Clean Air Act or any other environmental law.
  • State legislatures must limit the enforcement discretion of regulatory agencies so that repeat violators cannot escape unpunished. Penalties for repeat violators must be mandatory and large enough to curtail future violations. A good example is the state of New Jersey where a “three strikes” style environmental law has been passed to solve this problem.
  • Regional EPA offices should exercise their authority and intervene in cases where state regulators don’t follow EPA’s new guidance on “Timely and Appropriate Enforcement Response to High Priority Violators” and bring persistent violators back into compliance with the CAA.
  • U.S. EPA should help concerned citizens participate in the development and enforcement of air pollution permits issued under Title V of the CAA. Regional EPA offices should monitor state implementation of Title V programs to ensure that the compliance-related information is readily understandable by and available to the public.
  • To assure that so-called audit privilege laws do not allow polluters to avoid or delay environmental compliance and hide their records from the public, the audit privilege laws that exist in 24 states should be repealed and replaced with U.S. EPA’s audit policy.
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