An Analysis of the Failure to Enforce Clean Water Laws in Three States
Pollution Pays: Pennsylvania Report
Large industrial polluters in Pennsylvania are breaking the nation's cornerstone water pollution law and routinely getting away with it. Big water polluters are almost never fined and violations of the clean water laws continue largely unabated, according to U.S. Environmental Protection Agency (EPA) Clean Water Act enforcement records.
In 1995, Governor Tom Ridge took office promising to overhaul the "job-crushing, community-harassing, regulatory nightmare" of a Department of Environmental Resources (DER). As promised, Ridge split the DER into two new agencies, with the Department of Environmental Protection (DEP) taking over all permitting and enforcement functions, while the Department of Conservation and Natural Resources has responsibility for parks and forestry.
According to Ridge, the newly-formed DEP has ". . .actively pursued an agenda that moves away from the philosophy of heavy-handed regulation and punitive sanctions. Instead, we are moving toward a common sense, compliance driven, consumer oriented strategy." (Remarks given at Pennsylvania Environmental Council Annual Dinner in Philadelphia, May 31, 1995). As if to illustrate this point, Ridge created the "Office of Pollution Prevention and Compliance Assistance" rather than the more traditionally titled "Office of Enforcement."
Wary that this approach might appear soft on polluters, DEP director James Seif assured citizens on Earth Day 1996 that, "Even under the Department of Environmental Protection's new approach to achieving compliance with environmental rules and regulations, fines and penalties will remain an important and powerful tool for those who willfully disregard those laws." (James Seif, "Taking the Next Step: Thorough Enforcement". Published by DEP for Earth Day 1996).
EWG analyzed U.S. EPA Clean Water Act enforcement records from 23 Pennsylvania facilities for April 1997 through March 1999, the most recent two-year period available. These data, audited by industry and state regulators prior to their release, represent an important but limited number of industries. They include all permitted polluters in auto assembly, iron and steel, petroleum refining, pulp manufacturing, and metal smelting and refining industries in the state. They reveal a persistent pattern of violations of state and federal clean water laws by big polluters in Pennsylvania. The records further show that the law breaking is made possible by weak state enforcement efforts, and tiny or non-existent fines. Overall:
Five years after Governor Ridge entered office, breaking clean water laws is standard business practice for big industry in Pennsylvania.
- Nearly two-thirds (14 of the 23) major facilities inspected were in violation of the Clean Water Act at some time in the two-year period analyzed. Industrial facilities are designated as "major" based on an EPA classification system that reflects a combination of factors, including toxic pollution potential, streamflow volume, public health impacts, and proximity to coastal waters.
- These 14 violators broke the law regularly, accruing violations an average of three of the eight quarters in the two-year period analyzed.
- Even the most recalcitrant environmental law breakers are rarely if ever fined. The Sun Company in Philadelphia was in violation of the Clean Water Act in each of the past eight quarters analyzed, yet was not fined at all during this time.
Weak law enforcement makes environmental crime pay in Pennsylvania
- None of the 14 companies in violation of the Clean Water Act during the past two years were fined for their violations.
- Two facilities, Zinc Corporation of America and Bethlehem Steel Corporation, are currently considered "significant violators" of the Clean Water Act. These companies were not fined for their CWA violations during the two-year period analyzed.
Big business routinely claims that most regulatory actions are initiated by "overzealous big-government regulators" for minor paperwork violations that consume massive amounts of resources for little environmental gain. The facts are that few enforcement actions are brought in the first place and almost none are for recordkeeping violations. In both 1997 and 1996, less than two percent of all environmental enforcement actions nationwide were concluded with only recordkeeping changes. In contrast to the image of a crushing regulatory burden, this analysis clearly shows that there is barely any enforcement at all of existing clean water protections and virtually no pressure for water polluters to comply with current pollution control laws.
Imagine a drunk motorist racing down I-76 at 120 miles an hour. The state highway patrol wouldn't offer "compliance assistance" to this individual. He or she would be thrown in jail and fined for endangering the health of dozens of other Pennsylvanians.
However, if a large industrial facility is endangering thousands of Pennsylvanians by fouling waterways, it's operators are almost never even fined. They are instead considered customers of the Ridge Administration, who must be helped to be in compliance with the state's public health and environmental laws.
In spite of all the rhetoric to the contrary, 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 water pollution that continue to foul Pennsylvania's lakes and rivers.
Major improvements in water quality in Pennsylvania could be achieved just by strict enforcement of current laws and regulations. To achieve this goal however, both state and federal environmental enforcement agencies need to vastly improve their enforcement activities. Industry, in turn, needs to operate without such opportunistic disregard for environmental rules it typically helped to write.
To improve enforcement of the Clean Water Act:
- Pennsylvania should set strict limits on the discretion of its regulatory agencies. Facilities should not be allowed to be out of compliance with environmental laws for more than two quarters in any one-year period without facing mandatory penalties. A good example of a more effective state enforcement policy is the New Jersey law that is based on the popular "three strikes and you're out" model.
- The regional U.S. EPA office should exercise its authority and take over cases when Pennsylvania assesses insufficient fines or delays during the enforcement process.
- Citizens should be informed every quarter about the compliance status of Pennsylvania's major companies.