A level playing field
It’s hard to know, by any objective measure, which states are doing a good job of enforcing the Clean Air Act. Of the dozens of people interviewed for this story, no two could agree on which states or EPA regions were excelling or failing.
Annual enforcement metrics provided by states — such as inspections, violations, penalties — are riddled with “widespread and persistent data inaccuracy and incompleteness … which make it hard to identify when serious problems exist or to track state actions,” the EPA wrote in a 2013 memo.
The EPA’s Office of Inspector General has repeatedly raised concerns over uneven enforcement. In a 2011 audit, the office found that even top-performing state agencies failed to meet national goals for basic duties like inspections and wrote that the EPA “cannot assure that Americans in all states are equally protected from the health effects of pollution.”
Auditor Kathlene Butler said in an interview that the differences among the states were stark. “It seemed some states were very clear on what was expected of them in terms of performance from the [EPA] region,” she said. “Other states knew there was an ability to negotiate.”
Wilson said the EPA has a better understanding now of how states are faring than it did at the time of the audit. In a statement to the Center, the agency wrote that its “relationship with the states is strong,” and called building state partnerships a priority under McCarthy. But the EPA has resisted calls by the inspector general for enforcement reform.
Eddie Terrill, air director at Oklahoma’s Department of Environmental Quality, said he and other members of the National Association of Clean Air Agencies are eager for stronger EPA guidance but don’t always get it. As a result, he said, “Every state has a different perspective on how things ought to be done.”
Mintz said tension between states and the EPA goes back to the agency’s creation in 1970. Before that, states were responsible for their own environmental programs. Today’s imperfect system reflects a compromise between those who wanted nationwide pollution standards and those who wanted states to retain individual control, he said.
The EPA provided few internal records on state performance requested by the Center. Most forthcoming was the Southeast regional office in Atlanta, which has ramped up oversight of North Carolina’s Department of Environmental Quality (DEQ) after years of significantly fewer state-issued violations, paltry fines and failure to go after repeat offenders.
From 2011 to 2014, air-related penalties in North Carolina dropped by 93 percent while overall enforcement actions decreased by 51 percent. “This raises concerns about effective deterrence and providing a ‘level playing field,’” the EPA wrote to DEQ Secretary Donald van der Vaart in a May letter obtained by the Center under the Freedom of Information Act. It was the latest attempt to get the DEQ to correct problems federal officials attribute to 2011 policies that made it easier for polluters to resolve violations informally and resulted in fewer penalties.
The Domtar pulp and paper mill in Plymouth, North Carolina, was among more than a dozen facilities flagged by the EPA for “chronic noncompliance.” Company officials claimed the addition of a new biofuel plant in early 2013 wouldn’t significantly increase air pollution, but waited until mid-2014 to notify regulators that emissions of hydrogen sulfide — a gas that can cause instant death in high concentrations and loss of smell and memory problems at lower levels — were heavier than projected.
The state fined Domtar $100,000 in June 2015 but allowed the company to continue operating its new plant without the proper permit. A Domtar spokesman said the company is “working diligently with the state” on a new permit and installing a monitoring system.
The DEQ’s Stephanie Hawco declined to respond to questions from the Center and said the agency will reply to the EPA’s May letter later this fall. Hawco also declined to answer questions about Domtar, saying only that “DEQ has protected public health by … ensuring [Domtar is] on a path toward getting into compliance.”
The DEQ’s 2014 environmental staffing levels were down by a third of what they were in 2008, according to state officials who provided the Center with detailed figures. Over the same period, the air-enforcement staff was reduced by nearly a quarter.
North Carolina is among the states suing the EPA to try to block the Clean Power Plan. Secretary van der Vaart has been vocal about his opposition to the plan, calling it a federal “takeover.” Three of the state’s coal-fired power plants were among the nation’s top 100 emitters of greenhouse gases in 2014, a Center analysis found.
It’s not uncommon for enforcement inadequacies to go unresolved long after they’ve been identified. Since 2009, the EPA has carried out enforcement of federal asbestos regulations on Georgia’s behalf because of state budget reductions. In May, the EPA wrote in a separate internal review that Georgia officials had also blocked the agency from reviewing state air penalty records — an allegation a spokesperson for Georgia’s Department of Natural Resources denied.
A 2013 EPA review of the Ohio Environmental Protection Agency found state regulators improperly modified permits after pollution incidents instead of issuing violations. They also failed to report critical violations to the EPA as required — so “it appears to EPA and the public that these things are not being done.” No updates were provided in subsequent annual reports.
The EPA’s New England office flagged “the loss of key enforcement staff in recent years” among the six states in its region as a major concern in March. The agency has shouldered enforcement duties on Rhode Island’s behalf, records show. Similar to its counterpart in Georgia, Connecticut’s Department of Energy and Environmental Protection notified the EPA it may no longer carry out asbestos enforcement.