EPA criminal enforcement suffers from sequestration

Posted: May 8, 2013

Written by

John McArdle, Greenwire
Water pollution

When a jury last week found a former suburban Chicago water department chief guilty of 11 charges related to mixing contaminated well water into a town's drinking water supply, the verdict represented an important victory for U.S. EPA's criminal enforcement efforts.

EPA officials hope the potential five-year prison terms that could accompany each of the 11 counts will send a strong message to penny-pinching authorities who put their own interests ahead of the people they are supposed to serve.

But the victory is also bigger than that.

Two months into sequestration -- when across-the-board budget cuts and staffing reductions are taking a toll on EPA's criminal enforcement efforts -- reminding environmental wrongdoers that the agency can still pack a punch may be more important than ever.

Doug Parker, the director of the agency's Criminal Investigation Division (CID), acknowledged last week that limitations on new hiring and furloughs mandated by sequestration are making the thin green line of EPA special agents even thinner.

"There are areas where there were boots on the ground where there are no longer boots on the ground," Parker said.

He declined to be more specific about where the holes in coverage have developed for fear of alerting the bad guys.

But "it's fair to say that there are significant geographic regions we can no longer cover," Parker said.

CID -- part of the Office of Criminal Enforcement, Forensics and Training -- is responsible for investigating environmental offenses. Notable recent cases have included efforts to combat fraud in the renewable fuels market and participation in a multi-agency effort to halt the smuggling and black-market sale of ozone depleting refrigerants.

Since 1990, when the Pollution Prosecution Act was signed into law, EPA has been required to maintain 200 special agents on its staff. But the agency has struggled for years to hit that number.

There are now 180 CID special agents, Parker said, but that number is expected to drop soon due to retirements. And because of hiring restrictions during a tight budget time, Parker can't backfill his loses.

Meanwhile, special agents who are on staff, whether they be preparing a case for trial or working an undercover operation, are subject to the mandatory furloughs that EPA has placed on all of its 17,000-plus employees.

EPA announced last month that agencywide furloughs wouldn't be as bad as the 13 days originally expected. But all staff will still be required to take 10 furlough days before the end of the fiscal year (Greenwire, April 22).

In light of those staffing challenges, Parker said CID has made a concerted effort to focus on the most egregious environmental crimes while also making sure that when a catastrophic event occurs, CID can respond.

EPA agents are currently on the ground in West, Texas, to aid the ongoing investigation into a massive explosion at a fertilizer plant there, which killed 15 people.

But Parker acknowledged that smaller cases aren't getting as much attention from his agents these days.

"There are tips and leads that come in every day, hundreds of them. And there are tips and leads we hope to get back to," he said.

Case prioritization is not new to CID. Last year, EPA began looking at specific areas where enforcement might be rolled back due to budget cuts.

"The areas of expected reduced effort include matters on which other agencies have effective criminal enforcement programs -- like the Coast Guard in vessel pollution cases -- or where civil enforcement tools may be effective to redress violations -- like stormwater violations," EPA's deputy assistant administrator in the Office of Enforcement and Compliance Assurance wrote in a memo last spring (E&ENews PM, April 4, 2012).

The impact of case prioritization was also apparent in last year's "Enforcement & Compliance Annual Results" report, which was released in December.

Anchored by a handful of major law-enforcement victories, EPA hit a five-year high in 2012 by levying $252 million in total civil and criminal penalties. But the report also shows that the total number of civil and criminal case initiations by EPA hit a five-year low in 2012.

"I would say, like any other agency, we're tightening our belt in a difficult fiscal climate, so it's even more important than it is normally to make sure we're making good choices on priorities," said Cynthia Giles, the EPA assistant administrator overseeing the Office of Enforcement and Compliance Assurance, in an interview after that report was released (Greenwire, Dec. 18, 2012).

For example, EPA's ongoing enforcement action against BP PLC over its role in the 2010 Deepwater Horizon disaster will be a major focus of Giles' office for years to come.

In the coming years, "in both the civil and criminal side, you're going to see larger, more complex cases, but fewer overall," Giles acknowledged.

But the problem with prioritization, critics argue, is that a small case that is ignored today may eventually balloon into a large case.

Questioning priorities

Michael Hubbard, the former special agent in charge of criminal enforcement in EPA's Region 1 office in Boston, said last week that sequestration has exacerbated a problem that has been going on for years at the agency.

Hubbard, who retired from EPA last month after 20 years at CID, said the agency's struggles to hit the 200-agent minimum are a clear sign that agency brass don't even take the criminal program as seriously as even Congress would like.

"Everything we've been doing in recent years, we had to do on a shoestring," Hubbard said. "I think it's a lack of either consciously or subconsciously understanding the importance of criminal deterrent" by senior EPA leadership, Hubbard said.

As for sequestration, Hubbard said it is "ludicrous" that EPA special agents, who represent the agency's "ultimate deterrent weapon," should have to worry about mandated furlough days as they try to make and work cases.

He noted that the Obama administration and officials at the Federal Aviation Administration worked hard to demonstrate that air traffic controllers were essential to the public safety and, as such, should be exempt from sequestration. Those efforts resulted in a pair of votes by Congress last week to exempt those air traffic controllers from furloughs.

"If EPA placed a high enough priority on its criminal program, they could do the same thing," Hubbard said.

But Jeff Ruch, executive director of the watchdog group Public Employees for Environmental Responsibility, said that any effort by EPA management to exempt one component of the agency from sequestration could prove to be a double-edged sword in today's highly partisan environment.

Ruch, whose nonprofit has kept close tabs on staffing numbers at CID in recent years, proposed another way EPA could move more resources to the criminal program (E&ENews PM, Feb 23, 2012).

"EPA does an awful lot of stuff that is fairly questionable in terms of being low-priority," he said. "Their public education programs are expensive but laughable. They don't really influence behavior.

"It would behoove the new administrator to take a look at what EPA does and figure out what's important."

When it comes to the criminal program, Ruch said, "we're talking about the people who respond to major pollution crimes."

Paul Larkin, another former CID staffer who now serves as a senior legal research fellow at the conservative Heritage Foundation think tank, maintains that if EPA leadership is unwilling to do the job right, perhaps EPA shouldn't do the job at all.

"The people that work [at CID] are committed to doing a good job, but one way to strangle a program in the crib is not to fund it," said Larkin, who left CID in 2004. "I think the EPA criminal program belongs in the FBI because the FBI will treat it as a serious law enforcement matter. When I was there, it was a Potemkin village."

Parker said he's proud of the work his agents have been able to do during sequestration and in the tight fiscal environment that has been the hallmark of recent budgets.

"It is a tough time to do this job," he acknowledged.

To use a farming metaphor, Parker said his agents are doing less planting, which he acknowledged will affect the crop of cases down the road.

"There will be fewer seeds planted, fewer leads followed up and fewer cases in some instances because of the resource posture," Parker said.

But he said that as the Chicago water case shows, "when the target is ripe, we can pack a wallop. ... That's what we're continuing to do even in some challenging times."

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