Enforcement metrics declined markedly under the Trump administration. While the EPA did not acknowledge this publicly, it did in internal documents. In this document, the Office of Enforcement and Compliance Assistance leadership considered various reasons for the decline in enforcement. These included: lack of resources (staff and budget); increased industry influence and pushback; intervention from leadership that is slowing work; uncertainty about regulatory changes; and a general perception among staff that enforcement, or certain types of enforcement, are not appropriate, not welcome by the leadership, or are unlikely to be successful under the new administration’s approach (a “chilling effect,” as the document put it).
LINK TO THIS ARTICLE
https://apeoplesepa.org/modules/possible-reasons-for-declinesSOURCE
Anonymous Source
CITATION
EPA, “Possible Reasons for Declines in Inspection, Enforcement and Ideas for Reversing,” (Internal Deliberative Draft), June 14, 2018.
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Possible Reasons for Declines in Inspection/Enforcement and ldeas for Reversingf nternal Deliberative Draft as of June L4,2OL8OVERVIEW:Our analysis of midyear FY18 enforcement initiations, conclusions and inspections show large declines inalmost all programs and almost all regions. There are likely a variety of reason for these declines, andwhile no single reason may be the main driver, the cumulative impact should be considered. Our focusnow is what could we do to reverse these declines.POSSIBLE REASONS FOR DECLINE1) State deferral:a) The FY18 and FY19 President Budget contains multiple statements that EPA will "focuscompliance assurance and enforcement resources on direct implementation responsibilities."b) Regions are appropriately deferring more to states in delegated programs, due to state requestsand in accord with January 2018 Interim Guidance.c) Interim Guidance is being incorrectly interpreted by some as meaning EPA should do noinspections and enforcement in authorized states; inconsistent messaging on this by some RAs.d) Even correct interpretation on Interim Guidance that there should be specific discussion byregions with its state whenever EPA is considering an inspection and enforcement action in thestate takes effo6 and slows the work.e) Defendants in EPA cases are approaching states and asking the state to take over the case.Some staff may be less motivated to go the extra mile if they know that their hard work indeveloping a case could be turned over to the state, and perceive the state may not resolve theviolations as effectively as EPA would have.While this information is only anecdotal, it becomes more powerful as it spreads amongregional enforcement ma nagers.g) Establishment of pilot measure for "state assists" in FY2018 could lead to further reductions intraditiona I EPA enforcement.0i)2l Resources: Gradual impact of declining EPA enacted budgets from Congress over the past 8 years,plus loss of expertise due to buyouts and extremely limited new hiring, has reduced resources forinspections a nd enforcement.a) VERA,/VSIP in August 2017 specifically impacts FY 18 resultsb) Agency was operating under a CR for more than half of FY L7, with the prospect that the finalbudget could be much lower than the CR budget - specifically impacted spending travel andcontract dollars to develop cases.3) Chilling effect of various actions/perceptions of shifts in enforcement direction, particularly duringfirst 5 months in new Administration:a) Consistent message in the first 6 months of the new Administration was to slow enforcementPage 1 of 2b) Landing Team wanted to pause all enforcement, which then evolved to reviewing all caseq andthe Green Red Blue charts.c) While very few cases were intentionally stopped, the compilation of information and thereviews took resources, and made staff and managers in the regions very cautious on movingforward with inspections and enforcement.d) euestions and emails from senior Agency leadership passing on regulated entity complaintsabout EPA enforcement, with perception that EPA was at faulte) Spring 2017 request for HQ review of all regional information requests was perceived asindicating should be less of these.4l He is asking more detailed questions about the nature of specific enforcement cases earlier in theprocess than historically has been done. While this has legitimate purpose, it may sendunintentional signal that certain types of cases are not appropriate.5) Anticipated changes in program direction may result in less enforcement now - €.8., WOTUS, airpolicy changes.6) perception of industry that new Administration would reduce enforcement or become friendlier, asamplified by willingness of some senior political leaders to meet directly with defendants, led somecompanies to believe that they have more leverage to push back on EPA settlement demands. Thus,some settlements are taking longer to conclude.7l Decline over past few years in HQ interest in ACS measures and regional performance may havefacilitated regional declines in inspections, especially since ACS targets have become low floors.POSSIBLE IDEAS FOR RESPONDING1) June 2018:a) Strong M memo to the RAs highlighting the important role of federal inspections andenforcement actions.b) Share detailed mid-year analysis with regions and ask for QA, explanation and projections'2l Early July: AA Memo announcing the conversion from NEls to NCls with strong message that EPA'srole in NEls as they convert to NCls is still important and enforcement remains an important tool.3) carve out a set of violations that are considered both a priority and "bread and butte/' and thatprior OECA HQ review is not needed unless NSI kicks in'4) Revise the ACS measures for FY2019 to ensure they are focused on setting forth consistent nationalexpectations for inspections and NEI/NCI work, as well as a few other things'Page2 of 2