An Analysis of the Failure to Enforce Clean Water Laws in Three States
Pollution Pays: Ohio Report
A new computer investigation by the Environmental Working Group shows that large industrial polluters in Ohio 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 analyzed by EWG.
In 1999, Governor Bob Taft took office, inheriting the environmental legacy of George Voinovich, who was often criticized for hobbling Ohio's environmental agencies and giving far too much access to powerful industry lobbyists in Columbus. The door was wide open for the new governor to improve environmental quality and the enforcement of environmental laws. So far, however, the past has been prologue.
Before Taft's election in November of 1998, he said, "I think we need to enforce existing environmental laws." But he then added the all-important disclaimer: "I think it's important the state enforce laws vigorously but to do so in a way where the state agencies are helpful rather than punitive in their approach to business." (Dan Crawford, "Where they stand." Business First Columbus, October 30, 1998).
Taft's new director of Ohio EPA, Chris Jones, is committed to his boss' approach. According to Jones 'the challenge of improving Ohio EPA's public image attracted him to the job'. (Troy May, "Ohio EPA needs image boost." Cincinnati Business Courier, November 5, 1999). Part of improving Ohio EPA's public image involves "telling the good news about the Ohio EPA, focusing attention on environmental successes." (Randall Edwards, "Ohio's new EPA director faces a host of messy issues." Columbus Dispatch, January 24, 1999). Also high on Jones' agenda "is making the agency work more efficiently for businesses...." (Troy May, "Ohio EPA needs image boost." Cincinnati Business Courier, November 5, 1999).
More bluntly, an Ohio EPA official reportedly told a recent gathering of the Bar Association in Cincinnati "we are not an enforcement agency." (Ohio Citizen Action, Rivers Unlimited, Ohio Chapter of the Sierra Club & Ohio PIRG, "Hidden from the Public: The Distortion of the Ohio EPA's mission." August 5, 1999).
EWG analyzed Clean Water Act enforcement records from 22 Ohio 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 Ohio. The records further show that the law breaking is made possible by weak state enforcement efforts, and tiny or non-existent fines. Overall:
Breaking clean water laws is standard business practice for big industry in Ohio
- Nearly two-thirds (14 of 22) of the "major" facilities inspected violated the Clean Water Act during 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 pollutant potential, streamflow volume, public health impacts, and proximity to coastal waters.
- Nine of the 14 violators broke the law in at least four of the eight quarters (two years) analyzed for this report.
- Two of these companies were in violation of the Clean Water Act in each of the past eight quarters analyzed.
Weak law enforcement makes environmental crime pay in Ohio
- Only two (Ormet Corporation and LTV Steel Company Inc) of the 14 major facilities violating the Clean Water Act during the past two years were fined by the state of Ohio or the U.S. EPA during that time (Table 1). Two facilities violated the Clean Water Act every quarter for the past two years yet incurred no penalties.
- Two so-called "minor" facilities, Chrysler Corporation in Toledo and Marion Steel Corporation in Marion, also violated the Clean Water Act eight straight quarters and were not fined at all. These facilities are not small, but are classified as minor due to a loophole in Clean Water Act reporting requirements (see sidebar page 4).
- Most major facilities were inspected only once a year for Clean Water Act violations. Violation rates would almost certainly be higher if these facilities were inspected more often.
- Six of the 22 facilities analyzed were listed as current "significant violators" of the Clean Water Act, of these only Ormet Corporation was fined for CWA violations during the two-year period analyzed.
Gutting Environmental Enforcement
Former Governor Voinovich pushed through several key legislative and administrative changes that contributed to a state of weak regulatory enforcement in Ohio. These polluter-friendly initiatives are supported by Governor Taft.
- In June 1994, Voinovich signed the Audit Privileges and Immunity Law which allows companies to investigate their environmental problems and fix them without civil penalty or public notification. The self-audits cannot be used as evidence in any civil or administrative proceeding.
Implementation was delayed until March 1997 after the U.S. EPA concluded that the statute provided too many protections for businesses that break the law.
Even after the changes required by the feds, Crain's Cleveland Business declared the law a victory for Ohio industry: "The good news for businesses is that the premise of the statute remains intact. Companies that investigate and discover environmental problems can correct the problems without fear of civil penalties and negative publicity." (Heather Aley Austin, "Audit law amended to suit U.S. EPA", Crain's Cleveland Business, August 17, 1998).
- Voinovich also instituted the Voluntary Action Program as a provision in Ohio's Brownfields law in September 1996. The law encourages companies to reclaim industrial sites with a promise not to be sued for environmental violations uncovered during the clean-up. Like audit privilege, citizens groups are not allowed to use the information in lawsuits against the companies, no matter how flagrant or serious the violations.
A coalition of Ohio environmental groups issued a report on the state of the Ohio EPA in August of 1999. The report described environmental enforcement in Ohio as "the weakest since 1972" and concluded the agency has "incrementally altered the mission and trained its personnel that they exist to satisfy a 'customer', the industrial permit seeker the Ohio EPA is supposed to be regulating." (Ohio Citizen Action, Rivers Unlimited, Ohio Chapter of the Sierra Club & Ohio PIRG, "Hidden from the Public: The Distortion of the Ohio EPA's mission." August 5, 1999).
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-71 at 120 miles an hour. The state highway patrol wouldn't help this "customer" comply with the law. He or she would be thrown in jail and fined for endangering the health of dozens of other Ohioans.
However, if a large industrial facility is endangering thousands of Ohioans by fouling waterways, it's operators are almost never even fined. They are instead considered "customers" of the Taft 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 Ohio's lakes and rivers.