State Cutbacks, Recalcitrance Hinder Clean Air Act Enforcement

Researchers, former EPA officials, state regulators and others interviewed by the Center said it’s impossible for states to maintain vigorous enforcement amid significant cutbacks. Joel Mintz, a law professor at Nova Southeastern University and a member of the left-leaning Center for Progressive Reform, said states are in a “squeeze.”  Understaffed agencies are unable to revise weak, outdated permits, which cap facilities’ emissions. As a result, he said, “there’s no progress made in the control of pollution.”

The Clean Air Act itself remains contentious. A  2015 federal report found that nearly 60 percent of all lawsuits against the EPA from 1995 to 2010 were filed under the act — far more than under any other program. In fact, 27 states are suing the EPA to block the Clean Power Plan, a cornerstone of President Obama’s climate policy that would use the act to curb emissions at coal-fired power plants. Other state-led litigation claims that recently tightened ozone limits are too costly for industry.

South End residents watched with skepticism as New York officials suddenly sprang into action late this summer. Along with local activists and environmental groups, the residents had filed a lawsuit against Global in February, alleging the company mischaracterized its emissions when it applied for state approval in 2012 to increase fivefold the amount of petroleum products it handles — from 450 million to 2.3 billion gallons a year. (In a court filing, Global called the lawsuit “nothing more than an improper collateral attack on a permit that [the plaintiffs] do not like.”)

Residents also began gathering their own data — donning face masks to count diesel truck traffic and knocking on dozens of tenants’ doors to survey for chronic conditions like emphysema and asthma. Their efforts caught the attention of Judith Enck, the EPA’s top regional official, who met with members of the community in August. The month before, her office had filed a Clean Air Act violation notice against Global dating to the 2012 expansion. Activists had long argued that the terminal was releasing excessive amounts of volatile organic compounds, such as cancer-causing benzene.

The state has yet to allege a comparable violation but made news of its own. On the same day as Enck’s visit in August, the DEC announced plans to increase air monitoring in the South End, marking a departure from two years earlier, when it rebuffed residents’ concerns. The day before, DEC Commissioner Basil Seggos urged the EPA to make “a stronger federal response to the concerns of the residents of South Albany.” A few days later, Seggos denounced EPA’s oversight of longstanding efforts to remove polychlorinated biphenyls — man-made chemicals linked to neurological and other health problems — released into the Hudson River by General Electric Co.

Some chalked up the DEC’s string of announcements as petty attempts to divert attention from unwelcome federal intervention. “Instead of buckling down and saying ‘Oops, looks like we made a mistake,’ they turn it into a retribution war,” said Chris Amato, an attorney with the public-interest law firm Earthjustice, who is litigating the case against Global.  “The only time you see [the DEC] doing something is when a lawsuit is filed or they get embarrassed because EPA came in and took the lead.”

State officials maintain that the DEC “has been actively engaged” with the community from the start. In a statement to the Center in early September, the agency wrote that it understood the community’s concerns, but said testing showed the air was improving and meets federal standards.

However, a week later, the DEC notified Global it would face stricter oversight in light of “higher-than-expected benzene levels.” DEC air-sampling results released in late September showed the South End’s average benzene levels for the past year were comparable to those of the Buffalo-area neighborhood near Tonawanda Coke, which is shelling out a combined $36 million in criminal and civil lawsuits stemming from years of Clean Air Act violations for uncontrolled benzene emissions.

Global declined an interview request, but wrote in a statement that it plans “to prove to the EPA, the DEC and our neighbors that our Albany facility remains in compliance with federal and state emission standards.”

Cleaner air can’t come soon enough for Carter-El, who was recently diagnosed with asthma and spends her days juggling medical appointments.  “I want to be able to grow old and see them,” she said of her four children, who appear to be in good health. “I don’t want them to come over here and be planning my funeral.” She turns 50 this year.

A medley of caution signs is posted on a barbed-wire fence near the Global Partners Albany Terminal, where crude oil from trains is offloaded for transport on the Hudson River. The oil’s volatile nature has caused worries in Albany’s South End.

‘Stripped from the bones’

After decades as an assemblyman from Manhattan’s Upper East Side, Pete Grannis was ready to trade in politics for what he called his “dream job.” In 2007, he was sworn in as DEC commissioner, putting him in charge of the same agency that had hired him as a young lawyer in the 1970s.

But his triumphant return was cut short by the financial crash. In his first three years on the job, the DEC lost more than 300 staffers — a nearly 9 percent cut. In 2010, another 135 positions were eliminated. “I pushed back and I pushed back as hard as I could,” Grannis said of the reductions, which he felt singled out the department.

He sent memos to then-Gov. David Paterson warning that further cuts to the DEC’s air division could have lasting effects since enforcement relies on a “cops-on-the-road” presence. “All the meat has been stripped from the bones, and some of the bones have disappeared,” Grannis wrote.

Soon after the memos were leaked to the press, Paterson’s secretary gave Grannis two options: submit a letter of resignation or be fired immediately. He chose the latter; news of his dismissal caused an uproar among environmentalists who saw him as an ally struck down by pro-business politics.

Grannis now works as a top administrator for the New York State Comptroller, whose office criticized the DEC’s flat-lining budget and inadequate staffing despite expanding responsibilities in a 2014 report. The report warned that unchecked air emissions would put state residents at greater risk of death and illnesses such as cancer and asthma.

The DEC has fewer than 2,900 full-time employees, down from 3,775 in 2007. Over the past decade, air-enforcement positions have also been cut by nearly a quarter. Last year, the agency referred just 85 air-related cases for civil enforcement, compared to 467 in 2007.

“It’s pretty clear they’re doing less with less,” said Peter Iwanowicz, a former DEC acting commissioner who now heads Albany-based Environmental Advocates of New York.

Iwanowicz said overburdened regulators often lose sight of communities like the South End. He said he wasn’t aware of the severity of the area’s air-quality problems until oil-train traffic began spiking in 2013 — three years after he left the DEC.

Carter-El said the neighborhood has long been overlooked. It wasn’t until after the death of a second-grader in 2013 that officials outfitted South Pearl Street, the main road leading to Interstate 787, with proper traffic signals and signs, even though at least 10 children had been struck in previous accidents there. Earlier this year, South End residents celebrated the opening of a Family Dollar, the only convenience store nearby besides a small corner bodega.

New York Gov. Andrew Cuomo, a Democrat, has embraced climate-change initiatives but also supports expanding the Port of Albany — straining relations with activists who question his commitment to the environment.  “The governor wants to view New York as open for business, even if it’s dirty business,” Iwanowicz said.

Known for his micro-management, Cuomo has clashed repeatedly with the EPA. The agency quashed his attempts in 2014 to use $511 million in federal water funds for bridge reconstruction. In August, Cuomo threatened to sue the EPA if plans to allow the dumping of dredged sediment from harbors and rivers into the Long Island Sound are approved.

Over the past year, Cuomo’s administration also has taken heat for allegedly ignoring EPA warnings about drinking water tainted with perfluorooctanoic acid (PFOA), a suspected carcinogen, in the upstate community of Hoosick Falls. In early September, EPA Administrator Gina McCarthy urged the state to “move beyond accusatory letters and, rather, work cooperatively” with EPA regional officials.

Cuomo’s office declined to respond to questions from the Center, referring it to the DEC. The agency reiterated its commitment to the South End and wrote that “like any other industrial area that is in the vicinity of residences, utilization of the Port [of Albany] can be done in a manner that is consistent with the Governor’s climate and environmental priorities.”

Deep cuts in Pennsylvania, Florida

Heads of state agencies are typically nominated by governors, while budgets are subject to gubernatorial approval — throwing regulators into the political fray. John Quigley was forced out as chief of Pennsylvania’s Department of Environmental Protection (DEP) in May after a profanity-filled email he sent to activists raised questions about his objectivity in a big oil and gas state. Though handpicked for the position by Gov. Tom Wolf, a Democrat, Quigley barely lasted a year and a half on the job.

Like Grannis, Quigley was vocal about deep cutbacks at his agency. Last year, the EPA flagged the DEP for inadequate air-enforcement staffing.

Florida’s Department of Environmental Protection has faced a slide nearly identical to New York’s, even as the state’s economy has grown. The agency employs just over 2,900 people, compared to 3,600 in 2007. Republican Governor Rick Scott — who reportedly prohibited state workers from using the terms “climate change” or “global warming” — has touted reduced processing times for permits as a sign of greater efficiency.

But Florida’s chapter of Public Employees for Environmental Responsibility, which advocates for stronger enforcement, blamed Scott’s business-friendly politics for a “severely crippled” department that allows polluters to skirt citations. The group’s annual report found that 18 air enforcement cases were opened in 2015, compared to an annual average of 93 in previous decades. The state has filed only one asbestos case since 2013 — compared to a past annual average of 13.

Bill Becker, director of the National Association of Clean Air Agencies, testified before Congress in March that states have borne the brunt of an annual $550 million federal funding shortfall. The Clean Air Act calls for federal grants to cover up to 60 percent of state air enforcement programs. In fact, states today are shouldering 75 percent of costs. The gap has caused “agencies to reduce or eliminate important air pollution programs, postpone necessary air monitoring expenditures and even reduce their workforces,” Becker said.

The Center surveyed all 50 states and the District of Columbia, seeking a decade of agency staffing data. Forty-one provided those numbers; for the remaining 10, the Center used six years of data obtained from the Census Bureau. From 2009 to 2014, agencies that shed employees reported a typical decline of nearly 7 percent, though some took far bigger hits.

Shari Wilson, deputy assistant administrator in the EPA’s enforcement division, said in an interview that the impacts of state budget shortfalls are magnified by increasing numbers of facilities and regulations. “The system gets stretched thinner and thinner and thinner,” she said.

The EPA itself has been pared down. Its full-time workforce is under 14,400 employees, down from 16,600 a decade ago. Staffing across all 10 regional EPA offices — which work directly with states — has also declined.

The cutbacks are especially severe since the agency has been inadequately funded from the start, said Mintz, the law professor. In a paper this year, he pointed out that EPA funding in 2014, when adjusted for inflation, was the lowest since 1977.

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.

Empty threat

When enforcement falls short of the EPA’s expectations, the agency often resorts to cajoling states into improving, former EPA officials said. Phone calls or sternly worded letters are preferred over formal intervention, which requires the EPA to take on added responsibilities.

Mounting pressure from the public and the EPA persuaded New York regulators to rethink Global’s 2013 plans to install seven natural-gas-fired boilers at its Albany Terminal. The DEC originally concluded that the proposal, which would allow Global to handle thicker fuels like tar sands, wouldn’t have “significant adverse impacts on the environment,” only to backtrack two years later.

A big factor in the reversal was a 12-page letter the EPA sent to the state in April 2014, pointing out several missteps by the DEC. A week after the EPA sent a follow-up letter in May 2015, the DEC conceded that it hadn’t considered whether Global’s proposal would increase unintended releases known as fugitive emissions, worsenAlbany’s persistent ozone problem or raise levels of hydrogen sulfide.

The state also failed to catch an error. While Global estimated its plan would increase emissions of volatile organic compounds by 39.5 tons per year — just shy of a 40-ton threshold that triggers additional review and pollution controls — the EPA found the figure was closer to 44 tons.

“For whatever reason, DEC seems intent on giving this company the benefit of every doubt and overlook what we believe are clear red flags about how they’re calculating their emissions,” Earthjustice’s Amato said.

Regional EPA officials played down their involvement in the Global case, denying that the violation notice they filed against the company in July reflected unhappiness with the DEC’s performance. The officials declined to be interviewed, writing in an email to the Center that they were in discussions with their state counterparts and that such discussions were “not unusual.”

Experts say the EPA must tread carefully when it comes to intervening in state matters or risk worsening tensions. Outside of persuasion, the EPA has few methods to spur improvement.

The harshest is withdrawal, or taking back a program, which strips enforcement authority from the state and puts it in federal hands. Because of the drain it puts on the EPA, some call the option an empty threat — likely to cause more problems than it would solve.

“You’re basically undermining and weakening the system rather than strengthening it,” the EPA’s Wilson said.  “The way the system is set up and the way it functions most effectively is to have the strongest state program possible.”

The EPA did not respond to a Center request to provide records or figures on how many state programs the agency has withdrawn. Similarly, it did not provide statistics on how many withdrawal requests it had received from outside environmental groups like the Sierra Club, or how many times it had withheld federal grant money from state agencies — one of the more forceful oversight options.

The EPA’s inspector general recommended that the agency withdraw the Virgin Islands’ authority for several environmental programs in 2015, citing a plethora of problems, but the EPA refused to do so. Officials had taken the unusual step of temporarily blocking the U.S. territory from accessing $37 million in federal funds, citing concerns over poor financial oversight.

An audit the same year said inspectors in the Virgin Islands lacked certification to conduct air-quality tests and failed to report air-monitoring data, as required. In March, the EPA wrote that the territory was still “not taking adequate enforcement action when non-compliance is found” or “issuing penalties as appropriate.”

Butler, of the inspector general’s office, said the EPA’s inability or unwillingness to withdraw enforcement authority has hurt its leverage with states and territories. “EPA has had a big tool removed from its toolbox,” she said. “It becomes this back-and-forth game.”

A new paradigm

When the EPA urged New York regulators in 2014 to reconsider Global’s expansion, it also encouraged the DEC to start advanced air monitoring at the Albany terminal — installing sensors, for example, that detect volatile organic compounds like benzene.

The suggestion was part of the EPA’s nascent Next Generation Compliance strategy, aimed at boosting enforcement with “closer to real-time” monitoring. The enhanced tracking will enable facilities to “identify and fix pollution problems before they become violations,” the EPA says.

The EPA has visited 20 states to promote “Next Gen” and has given 11 money for infrared cameras that detect otherwise invisible pollution. Efforts to beef up monitoring are crucial, says the American Lung Association, because less than a third of U.S. counties have ozone or particle-pollution monitors, leaving many communities in the dark about basic air quality.

Next Gen “makes data more transparent and puts it in the hands of the public — we’re all for that,” said Eric Schaeffer, a former EPA enforcement director who now heads the Environmental Integrity Project, a research and advocacy group. But he said transparency means little if the public can’t easily distinguish significant pollution events from run-of-the-mill ones.

In 2014, the EPA narrowed its definition of “high priority” air violations, which trigger greater oversight. States can petition to remove the designation entirely if the EPA agrees a violation can’t be sufficiently proven or is no longer worth the extra effort.

Under the new policy, Schaeffer said, a major release of a carcinogen isn’t a high-priority violation unless it lasts at least a week or longer. “You got a definition that basically muffles a lot of violations.”

Since the revision, 51 violations nationwide have been dropped from the high-priority list. The EPA determined that in 70 percent of these cases, extra oversight was “not in the public interest,” records show. For the rest, states were “unlikely to prevail” if legally challenged.

The EPA refused to provide information about the violations — names of companies, even names of states — to the Center, citing unspecified privacy concerns. States still must resolve all violations regardless of priority, the EPA told the Center, adding that it is working to make it easier for the public to “see pollutant discharges, environmental conditions, and noncompliance.”

For people in the South End, things are still too opaque. Aside from glimpses of Global’s hulking blue and white tanks, few seem to know much about the crude oil terminal. Instead, they focus on the near-constant parade of screeching railcars and rumbling trucks that muffle the sounds of children playing basketball on a concrete court.

B.B. White’s 7-year-old son was among the neighborhood kids out on the playground on a hot July afternoon, riding a scooter as railcars passed by. The two live so close to the railyard that White, 60, sees trains parked feet away when he draws back his kitchen curtains to check on his vegetable garden. His son often wakes up at night, startled by the wall-rattling tremors.

They’ve lived at Ezra Prentice for about a decade and would relocate if they could afford to move. “I can hardly breathe,” White said. “A lot of people around here, you can tell they look sick. Something’s wrong with the air. I don’t know what it is.”

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