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Erin Kesler

Dec. 12, 2009

U.S. EPA plans to conduct fewer in-person inspections and bring fewer cases against industrial rule-breakers over the next five years, the agency said in a recent document outlining its goals.

The agency aims to carry out 30 percent fewer inspections and evaluations than the past five years. It will seek to initiate 40 percent fewer civil cases, and it will keep criminal goals mostly static with 2012.

Officials have hinted at this shift in the past, but last month, it showed up in writing, when the agency released its draft strategic plan for 2014 through 2018. The 86-page document lays out all the expected goals -- address climate change, prevent pollution, protect waters -- with some new ideas for accomplishing them.

When it comes to enforcement, the agency wants to target the biggest problems first, which it argues will mean a decrease over time in "conventional performance measures" such as the pounds of pollution reduced. Instead, the plan prioritizes prevention, pushing new technology as a way to keep an eye on potential violators without using the resources of a full-throttle civil or criminal case.

Consequently, the agency plans to drastically reduce some of its enforcement goals.

For example, the draft plan estimates that the agency will clean up less than 2 billion pounds of waste each year via enforcement cases, down from 4.4 billion pounds last year and 6.5 billion pounds in 2008. For water pollutants, enforcement officials will aim to require the treatment of about 220 million pounds each year, down from an annual average of 320 million pounds.

As enforcement officials take on fewer cases, the agency will ramp up "Next Generation Compliance," focusing on making regulations "easier to implement" and using emissions technology to keep a real-time eye on discharges.

The Next Generation model also shifts the burden to industry, requiring regulated entities to report electronically, "saving time and money while improving effectiveness and public transparency."

Five months ago, Shell Oil Co. agreed to spend $115 million to control air pollution at a large refinery and chemical plant in Texas as part of a settlement over alleged Clean Water Act violations.

The investment -- which far outstripped its $2.6 million fine -- will enable EPA enforcers across the country to monitor the plant's gas and steam flow from their desk. In tight budget times, the agency hopes such technology will spread, leading to more electronic reporting and greater regulatory compliance.

Overall, EPA's Office of Enforcement and Compliance Assurance is trying to focus on the work "that makes the biggest difference," said Cynthia Giles, the EPA assistant administrator who oversees OECA.

"Obviously, necessarily with budget cuts, we have to make tough choices," Giles said in a recent interview. "The choice we made is to focus on the biggest cases. And we're going to invest in the future."

She pointed to the Drinking Water Program, where the agency developed an electronic formula in 2009 to prioritize noncompliant public water systems for enforcement. By last April, the number of systems classified as "priority" had dropped by 69 percent.

But even that depends on accurate reporting, which has been a problem in the past. In 2011, for example, the Government Accountability Office found that states reported inaccurate compliance data to EPA with numbers that did not reliably reflect violations under the Safe Drinking Water Act.

Critics say the cuts just mean less enforcement. EPA criminal agents -- who number far fewer than the 200 legal minimum -- are initiating fewer cases as a whole, and small violators now can become bigger ones in the future.

"It certainly is true that we are moving to smaller organization -- we're losing staff in all parts of the agency, not just criminal side," Giles said. So the agency is hoping technology will fill the gap. It is also focusing on prevention.

"We recognize that preventing problems is both cheaper and more effective than taking action after they happen; however, our traditional metrics do not adequately account for work to prevent pollution," EPA officials wrote in the strategic plan. "By focusing only on enforcement actions the measures can have the inadvertent effect of discouraging innovative approaches that could improve compliance, and undervalue strong work by states to improve compliance."

That sounds contradictory and optimistic -- or like "happy horseshit" -- to Jeff Ruch, who has been a constant critic of EPA enforcement as executive director of Public Employees for Environmental Responsibility.

"So they're suggesting that strong criminal enforcement can be counterproductive to pollution control, but they don't explain that statement," he said. "There appears to be much more of an attempt to induce polluters to invest in themselves and call it a penalty."

Instead of letting the enforcement side contract, Ruch wants EPA to cut out public education programs or other grants.

"Consumers don't look to EPA for education," he said. "They might want to rethink this."

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