New Watchdog Reports Highlight Insufficient EPA Enforcement Ahead Of Shutdown

EPA regulation of refineries and water quality is already woefully inadequate. It will only get worse when MAGA shuts down the government.

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Sep 27, 2023

Corporate greed and emaciated federal regulatory capacity means people are needlessly suffering physically, and sometimes even dying. That’s the upshot of two recent reports from the EPA’s Office of the Inspector General (OIG). These reports illustrate the concerning state of environmental regulation and enforcement in regards to water quality and refinery emissions.

In July, the OIG issued its preliminary findings of an audit of the EPA’s compliance with the Water Infrastructure Improvements for the Nation Act, the piece of legislation that aims to improve the quality of the country’s drinking water. They found that the Agency was failing to promptly notify the public of lead-contaminated water. As a result, approximately 3.8 million people are unwittingly using water systems containing lead levels that could cause “serious adverse effects on human health.”

Early this September, the OIG released another concerning report highlighting a lack of oversight of petroleum refineries emissions. The report found that refineries routinely had levels of benzene, a carcinogen, that exceeded action levels — the threshold beyond which companies must take corrective action to reduce emissions and inform the public of the health risk. As with lead levels in water, the OIG found that the EPA failed to ensure that communities were notified, and refineries failed to reduce their toxic emissions.

EPA Enforcement: Inadequate Funding, Urgency And Oversight

Cases of lead-poisoned water have made headlines in recent years following the Flint water crisis, but, as the OIG’s findings show, regulators are still ill equipped to grapple with the issue. To be clear, the Biden Administration has taken steps to improve the situation. In 2021, the EPA revised its drinking water regulations to require immediate public notices when lead contaminants surpass the action level. However, this is a reactive policy which does not address the causes of lead contamination. Furthermore, the public notice regulations do not take effect until October 2024, so millions of people are unknowingly being subjected to unsafe drinking water in the meantime.

While the Biden administration has expressed an intent to replace the some 10 million lead pipes, Congress has failed to fund such an undertaking. Estimates suggest that only one fourth of the necessary $60 billion has been appropriated for lead pipe replacement. If one treats intentional sins of omission as seriously as sins of commission… there is blood on the hands of austerity lovers on the Hill.

While the EPA could be doing better in alleviating the consequences of lead in drinking water, it is an infrastructural problem that will take a decade at best to fully remedy. In the case of petroleum refineries, the problem is simply a lack of regulatory vigor. According to the OIG report, 13 of the 18 refineries reviewed had benzene levels above action levels for 20 or more weeks after exceedance. The EPA has effectively outsourced oversight to the refineries themselves while simultaneously allowing refineries to fall short of legally required data submissions. It’s been an unmitigated disaster.

The leniency towards refineries has two facets: the EPA approved monitoring plans based on modeling alone, rather than having additional monitoring that provides a more accurate estimate of actual benzene emissions. According to the OIG, the EPA's modeling system takes for granted that refineries are complying with all pollution control requirements. Unsurprisingly to anyone who has observed how corporate America acts under lax regulators, that is clearly not the case, leading to stark discrepancies between the emissions predicted by models and reality. Furthermore, the OIG determined this system “[did] not adhere to the regulations.” Compounding this regulatory failure, five refineries failed to report data, leaving regulators in the dark as to whether nearby communities are being poisoned.

The analysis does not make a determination as to why the refineries failed to submit data, but presumably refineries could be attempting to hide their lack of compliance. The Agency cannot continue to effectively sanction law-breaking refineries to go both unregulated and subsequently unpunished for blatant violations. It should be noted that many of the refineries in question are subsidiaries of oil and gas giants including Chevron, Marathon, and ExxonMobile — corporations that have shown a disregard for clean air standards. Pernicious oil conglomerates with an unwillingness to comply with basic regulations do not deserve the benefit of the doubt.

As mentioned above, there are regulations in place that ostensibly protect communities from benzene pollution and lead contaminants in drinking water. But these regulations are only as good as the enforcement mechanisms that ensure compliance. When communities are unaware of toxic chemicals permeating their environment, the consequences, frankly, are deadly. And, as is often the case, these chemicals are not equally dispersed across the public — they plague majority low income and minority communities.

The Biden Administration needs to not only make requests for greater funding – they need to be publicly furious at the “deficit hawks” who are killing off children of color in the name of “fiscal responsibility,” i.e., tax cuts for Republican (and Manchin and Sinema) donors.

Lax Enforcement Disproportionately Affects Low Income/Minority Communities

The OIG reports spotlight systemic deficiencies in the government’s addressing of environmental justice — the idea that people of all races, nationalities, and income have the right to environmental protections and input about policies that affect their communities. Of the 18 refineries sampled, 80% were located in communities with disproportionately high populations of low income workers and people of color. As a result of corporate negligence and passive enforcement, these communities have long-term risks of cancer and often experience and are at risk of both dizziness and headaches. These are just the impacts of airborne pollution — a recent report from the Environmental Integrity Project found that refineries also polluted waterways with dumps of toxic chemicals and metals.

Grist’s reporting shows the everyday implications of living near these facilities, with one environmental justice advocate stating, “[...] the smell is so powerful, people don’t want to get off the bus.” In Texas, where 9 refineries emitted excessive levels of benzene, cancer rates in the neighboring communities exceed the state average by 11%, with one metro region having 452 cancer cases per 100,000 people. Expounding this to the 6 million people living within a 3 mile radius of refineries across the country, tens of thousands of people will likely develop cancer as a direct result of these emissions. These communities need their government agencies to ensure their air quality is up to snuff with the laws on the books.

Until the OIG’s final report is published, we won’t know the specific environmental justice impact from lead-action-level exceedances. If previous studies are any indication, however, it’s safe to assume that low income, minority communities are similarly affected. A 2020 report from the Environmental Defense Fund (EDF) looked at the disparate impacts of lead pipes in Washington, DC. The EDF found a significant relationship between communities of color, low income households and the presence of lead service water lines. The effects can be long term and deadly. DC Water explains that lead exposure can lead to brain damage and learning disabilities in children, anemia and increased risk of miscarriages in adults, and, in high enough concentrations, death.

Lead and benzene presently have horrifying effects on people’s daily lives, and that’s with a fully functioning government and regulatory framework in place. With a government shutdown looming in just 4 days, the capacity of regulators to protect vulnerable populations from toxic chemicals will be virtually nonexistent.

A Government Shutdown Would Decimate EPA Enforcement Capacity

Regulations need a strong enforcement mechanism backing them up to be effective, but EPA staff and funding capacity is insufficient. We highlighted these deficits during Omnibus Awareness Month last September, showing that oversight staff had been thrashed by 20% over an 8 year span. The eventual budget for the current fiscal year contained an increase for the EPA, but still fell $1.7 billion short of the Agency’s request. While enforcement is clearly lacking as a result, the OIG reports and the EPA’s response signify a good faith effort to improve these shortcomings in spite of capacity issues. These steps will come to a screeching halt, however, with a government shutdown.

The EPA’s contingency plan for a shutdown paints a daunting picture for communities already under threat of toxic chemicals. An analysis from the Center for American Progress showed that most EPA inspections of drinking water facilities will stop, as a stunning 93% of staff are furloughed. We’ve been here before — during the 2019 shutdown, inspections of water treatment plants and petroleum refineries completely ceased a week after the shutdown began. The effects are not only felt in the immediate term, but pauses in oversight disrupts the entire process, leading to rescheduling and logjams that continue to affect the Agency after the government reopens.

There’s a cruel irony to the fact that these soon to be furloughed employees could actually reduce the deficit about which Republicans constantly hand wring. Enforcement agents have authority to levy massive fines against misbehaving corporations, and the cost of employing these agents is dwarfed on the balance sheet by the financial penalties paid to the government.

Communities across the country rely on the Environmental Protection Agency to keep a watchful eye on the corporations that have a contempt for the health of both people and the planet. Years of inadequate funding, and the resulting ramp down of enforcement, have left at risk groups defenseless against the harms of toxic chemicals in the water they drink and the air they breathe. The Republican project is, of course, to kneecap the regulatory capacity of the US government, and regulators are currently subject to the whims of House members that aim to slash their capacity, no matter the effects on vulnerable peoples. But absent government shutdowns, we need agencies to operate from a point of skepticism towards corporations and proactively protect fundamental rights to clean air and water.

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