The U.S. Environmental Protection Agency (EPA) recently released its enforcement results for fiscal year (FY) 2009. Legal experts report that the federal agencies' budget justifications and appropriation levels for FY 2010 provides a warning for regulated companies that they are likely to see a significant increase in the federal government's enforcement efforts this year. President Obama's proposed federal budget for FY2011 released Feb. 1 would
add $18 million to EPA's enforcement and compliance assurance program.
At the end of 2009, President Obama signed the fiscal year (FY) 2010 Consolidated Appropriations Act, which includes the FY2010 budget for the Department of Justice and other enforcement agencies. The
FY 2010 Budget Justification for the Justice Department's Environment and Natural Resources Division (ENRD) sought a budget increase of $4.2 million, which includes funding for 10 new attorneys - two for civil enforcement and one for criminal enforcement. The document includes the following description of its criminal enforcement efforts:
Criminal litigating activities focus on identifying and prosecuting violators of laws protecting wildlife, the environment, and public health. ... ENRD enforces criminal statutes designed to punish those who pollute the nation's air and water; illegally store, transport and dispose of hazardous wastes; illegally transport hazardous materials; unlawfully deal in ozone-depleting substances; and lie to officials to cover up illegal conduct.
The document also explains that in FY 2008, ENRD's Environmental Crimes Section "successfully prosecuted 109 defendants, achieving a 95% success rate, and imposing criminal fines and penalties over $68 million."
The
Managers' Statement from the conference version of the Department of Justice appropriation bill indicates that ENRD's request for a total budget of $109,785,000 was matched.
EPA's
Budget Summary sought a criminal enforcement budget of $57.7 million "to complete its three-year hiring strategy of raising its special agent workforce to 200 criminal investigators." EPA's
FY 2010 Budget Justification (at p. 548 of 944) states that the six priority areas of the criminal enforcement program are as follows:
- National compliance and enforcement priorities,
- Regional enforcement priorities,
- Stationary source air cases,
- High impact cases based upon specific criteria,
- Repeat or chronic civil noncompliance and
- Import/export violations.
It also states EPA's intention to coordinate its criminal and civil enforcement programs through a regional case screening process to determine whether to pursue civil or criminal enforcement options.
The EPA appropriation's
conference summary indicates that the Agency's $10.5 billion budget is $2.7 billion above its 2009 level. This includes approximately
$600 million for the EPA's Enforcement and Compliance Assurance Program, the largest allocation in the agency's 39-year history. A
summary of the House-passed version of the bill mirrors EPA's enforcement language and includes $601 million (equal to the President's request and $34 million above 2009) "for effective criminal and civil enforcement, and to fund additional staff to allow EPA to meet its statutory requirement to have 200 criminal investigators."
With the increased attention to environmental compliance and enforcement, AGC members may find state and federal agency inspectors taking a close look at current environmental practices.
Source: Holland & Knight Environment Alert, December 18, 2009 - http://www.hklaw.com.
FY2009 Enforcement Results
EPA recently released its
enforcement results for fiscal year 2009 and announced that the Agency has developed a new Web-based tool and interactive map that allows the public to get detailed information by location about the enforcement actions taken at approximately 4,600 facilities. The new mapping tools shows facilities where civil enforcement actions were taken for environmental laws for air, water and land pollution, and a separate map shows criminal enforcement actions. Viewers can click on specific facilities to find historical information about specific enforcement actions, such as violations and monetary penalties. In addition, you can use the zoom function to find out which facilities are located near water bodies that are listed as "impaired" because they do not meet federal water quality standards. Visit
Compliance and Enforcement Annual Results 2009 Fiscal Year for more information.
Budget Background & 2011 Outlook
EPA develops a proposed budget each February for the upcoming fiscal year (
e.g., the FY 2011 budget was just developed and released Feb. 1). The budget defines the goals and objectives towards which the Agency intends to work within the fiscal year and the funding the Agency believes is necessary to accomplish these goals and objectives. This budget is combined with the budgets of the rest of the Executive Branch and is then sent by the President to the Congress (this occurs in the first quarter of the calendar year). The Congress acts on the various budgets by developing, amending and, ultimately, passing bills which enact the budgets into law (normally prior to the start of the fiscal year covered by the budget). The enacted budget then becomes the blueprint for the Agency's activities during the next fiscal year.
On Feb. 1, President Obama proposed that EPA receive approximately $10 billion for FY2011, a decline of $300 million from FY2010 enacted levels. Obama's budget proposal would trim EPA's operating budget, water infrastructure loan programs, Superfund cleanup and some other programs. The budget would
add $18 million to EPA's enforcement and compliance assurance program. The increased funding would be coupled with "environmental justice" efforts. In addition, Obama proposed $56 million - including $43 million in new funding - for EPA and states to curb greenhouse gas emissions through regulatory programs. The proposed budget would continue to supply billions of dollars worth of grants to states and local governments to improve sewage treatment plants and drinking water systems, although the total is slightly less than last year.
For more information, please contact Leah Pilconis at pilconisl@agc.org or (703) 837-5332. The proposed 2011 spending plan and other recent EPA budgets are available online at http://www.epa.gov/budget/.