Politics & Government

State cutbacks, recalcitrance hinder Clean Air Act enforcement

Located in Plymouth, North Carolina, this mill is equipped with two pulp lines and has an annual pulp production capacity of 513,677 tons.
Located in Plymouth, North Carolina, this mill is equipped with two pulp lines and has an annual pulp production capacity of 513,677 tons. Domtar

Three years ago, a pulp and paper company called Domtar unveiled a “state-of-the-art” addition to its plant in Plymouth, North Carolina, where waste would be transformed into eco-friendly energy.

Domtar touted the facility as the only one of its kind in the United States and said it would produce 75 tons a day of a fossil-fuel alternative by refining a molasses-like mixture of processed pine chips. Company officials claimed it would do so without significantly increasing air pollution.

But it wasn’t until August 2014 that Domtar notified North Carolina’s Department of Environmental Quality (DEQ) about excessive emissions of hydrogen sulfide and other toxic compounds at the new plant, even though the company had begun noticing pollution spikes the year before.

Hydrogen sulfide is so dangerous that it can cause instant death in high concentrations; it skews the memory and dulls the sense of smell in lower amounts. In 2014, the Plymouth site released more than 130,000 pounds of the gas — up 78 percent from 2013, according to the U.S. Environmental Protection Agency.

Domtar was one of more than a dozen North Carolina facilities flagged by the EPA in a May letter to DEQ Secretary Donald van der Vaart. The letter, obtained by the Center for Public Integrity under the Freedom of Information Act, criticized the state agency for its reluctance to go after repeat offenders and its pattern of issuing few violation notices and paltry fines. The EPA blamed the DEQ’s lackluster performance on 2011 state laws that provide polluters with “greater opportunity for informally resolving” violations and a “tiered enforcement policy” that has led to fewer penalties.

Congress passed the Clean Air Act in 1970 with a pledge to protect public health, and the law has been largely successful at driving down emissions even as the economy has grown — reducing six common air pollutants by nearly 70 percent.

The act relies on cooperation between federal and state regulators. But experts, including some at the EPA, say its benefits aren’t being fully realized because enforcement remains wildly inconsistent.

The EPA has had trouble coordinating with recalcitrant states and territories, which are responsible for day-to-day policing despite significant federal and state cutbacks. Incomplete and inaccurate data supplied by states to the EPA complicates attempts to identify problem areas.

The scarcity of data prompted the Center for Public Integrity to file public-records requests with all 50 states, the EPA and the U.S. Census Bureau, to try to assess Clean Air Act enforcement nationwide.

The Center found that 40 state environmental agencies have reduced regulator head counts in recent years, even as federal and state responsibilities have proliferated. North Carolina’s DEQ has suffered some of the deepest cuts, its 2014 environmental workforce cut by a third from 2008 levels. In Illinois and Arizona, staffing has fallen by more than a third since 2007. New York’s workforce has been cut by nearly a quarter, Michigan’s by a fifth.


NC enforcement

The Clean Air Act itself remains contentious. North Carolina is among 27 states 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. Van der Vaart, known for continuing a business-friendly approach to regulation first fostered by his predecessor, has called the plan a federal “takeover.”

Three of North Carolina’s coal-fired power plants were among the nation’s top 100 emitters of greenhouse gases in 2014, a Center analysis found. Domtar’s Plymouth facility ranked in the top 200 for toxic air emitters nationwide.

Yet, by the EPA’s count, air-related penalties at the DEQ dropped 93 percent from 2011 to 2014, while enforcement actions decreased by 51 percent.

The DEQ fined Domtar $100,000 in June 2015 for air violations but the Plymouth biofuel plant has been allowed to continue to operate despite lacking the proper permit. Such a document would cap the facility’s emissions and set other operational conditions. This summer, state regulators gave Domtar another pass, giving the company until November to submit a permit application that was due in September.

A Domtar spokesman said the company is “working diligently with the state.”

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.”

Van der Vaart, in an opinion article published last year in The Charlotte Observer, defended the administration’s approach to regulating pollution.

He said success shouldn’t be measured in terms of how many restrictions are imposed. He said advancements in technology make it important to constantly review the science behind environmental protections and to make sure the public’s money is effectively spent.

Recent laws have made it easier for polluters to avoid penalties if they report violations to state regulators first.

Fewer cops on the beat

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 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.

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

New York’s Department of Environmental Conservation has fewer than 2,900 full-time employees, down from 3,775 in 2007. Last year, the DEC referred just 85 air-related cases for enforcement in civil courts, compared to 467 in 2007. Its flat-lining budget was the subject of a 2014 report by the state comptroller, who warned that unchecked emissions would put residents at greater risk of death and illnesses such as cancer and asthma.

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

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 Gov. Rick Scott — who reportedly prohibited state workers from using the terms “climate change” or “global warming” — has touted shorter turnaround 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-pollution enforcement cases were opened in 2015, compared to an annual average of 93 in previous decades.

Bill Becker, director of the National Association of Clean Air Agencies, testified before Congress in March that states have borne the brunt of reduced federal funding. While the Clean Air Act calls for federal grants to cover up to 60 percent of state air programs, in reality states have shouldered 75 percent of the 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.

Shari Wilson, deputy assistant administrator for 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.


Stark differences between states

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 and 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 EPA 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.”

In a written statement, the EPA said that its “relationship with the states is strong.” But it provided few internal records on state performance requested by the Center. The documents it produced show that it’s not uncommon for enforcement inadequacies to go unresolved long after they’ve been identified.

While the EPA has resisted recommendations to radically shake up oversight of states, it has tried other ways to improve. Its nascent Next Generation Compliance strategy is aimed at boosting enforcement with enhanced tracking that enables facilities to “identify and fix pollution problems before they become violations,” the EPA says.

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

Janice Nolen, an assistant vice president of national policy at the association, said underfunded states may not want to expand monitoring.

“When you put a monitor in a place and it shows a problem,” she said, “then something’s got to be done.”

Jie Jenny Zou is a reporter with the Center for Public Integrity, a nonprofit investigative news organization in Washington, D.C.