Environmental Protection: Additional Action Needed to Improve EPA Data on Informal Enforcement and Compliance Assistance Activities
Released: 2020-03-02T00:00:00

Letter

Background

OECA has a range of compliance monitoring, compliance assistance, and enforcement tools available to elicit compliance with laws and regulations from regulated entities, as shown in table 1.

Enforcement actions can result in, among other things, the imposition of penalties, requirements to remedy the violation of law or regulation, or both. OECA has developed policies and guidance for EPA staff that describe the agency’s recommended responses to noncompliance based on a number of factors and the escalation of enforcement responses to continuing noncompliance. EPA guidance on informal and formal enforcement actions provides an example related to the Resource Conservation and Recovery Act. In that example, if a regulated entity does not return to compliance or notify the state or EPA that it cannot return to compliance within a certain number of days after an informal enforcement action, the state or EPA may take a formal enforcement action. Generally, according to this same 2010 EPA guidance, informal enforcement actions address small or isolated problems, and formal enforcement actions can address bigger problems.

OECA stores and manages a range of compliance monitoring and enforcement data in ICIS. For example, ICIS includes descriptive information about regulated entities, violations, and the outcome of enforcement actions. ECHO, the public access website that integrates data from multiple agency databases, has an internal component for staff and other federal agencies and publicly available components. Staff in EPA’s 10 regional offices, OECA headquarters staff, and states input data into ICIS, which feeds data into ECHO. Regional office staff and OECA headquarters staff also use statute-specific databases to maintain data on compliance with a particular law or office-specific databases built to maintain data, according to the preferences of a particular regional or headquarters office.

EPA Collects a Range of Compliance Monitoring and Enforcement Data, but Does Not Maintain Data on Informal Enforcement Actions and Compliance Assistance

EPA requires regional offices to collect and enter a range of information on its compliance monitoring and enforcement activities—such as permit, inspection, and violations data—into the agency’s national databases. The agency uses these data to manage its oversight efforts and assess how well the efforts are meeting the agency’s strategic objectives. In addition, EPA is piloting an effort to collect data on coordination with states. However, EPA regional offices do not consistently collect or maintain data on informal enforcement actions. In addition, EPA does not require regional offices to collect and maintain data on their compliance assistance activities; therefore, it has no requirements for regional offices to enter data into the agency’s national databases.

EPA Requires Regional Offices to Collect Some Data to Manage and Assess Its Oversight Efforts

EPA requires regional offices to collect information from various data sources and enter it into national databases to monitor regulated entities’ compliance with environmental laws and track the agency’s enforcement actions. The information generally includes permit data on limits on emissions or for discharge of pollutants into waters, inspection or other evaluation data, violations data (e.g., failure to take or submit results for drinking water samples); informal enforcement actions, and formal enforcement actions, as shown in figure 1.

OECA uses the data in its databases to manage the overall enforcement and compliance program and assess how well its efforts are meeting the objectives outlined in the agency’s strategic plan, according to EPA officials. For example, officials in one regional office told us that regional managers typically review ICIS data (for example, the number of inspections conducted) to monitor their progress toward meeting strategic objectives at the regional level. These regional officials said that staff in their office conduct monthly reviews of ICIS data to understand how their current efforts on certain indicators compare to prior years.

OECA headquarters officials told us that the agency had begun to pilot a mechanism to collect data that can help measure agency progress in coordinating with states, one of the agency’s strategic objectives. Specifically, OECA officials told us that in 2018 the agency began a pilot effort to track instances in which regional office staff provide assistance with state enforcement actions, also characterized as “state assists.” According to agency guidance issued in June 2019, a state assist is defined as any instance in which the state could not or would not take the action without OECA’s help or any instance in which a state explicitly requests that OECA take over a case after OECA has identified a violation. During the pilot effort, state assists are documented as such when a regional office has expended substantial resources to identify a violation, develop the injunctive relief, or help the state take an action to obtain a remedy for the violation.

According to OECA guidance, the pilot effort, which OECA officials expect to continue through 2021, will help the agency better track its efforts in this area. As of June 2019, according to our analysis of written responses, officials in eight of the 10 regional offices described having documented a state assist as defined by OECA. For example, officials in one regional office stated in their written response to our questions that one specific case against a company located in three different states would have been handled by the regional office. Instead, the regional office agreed to let two of the states take the lead for the cases in those states, and the regional office handled the case in the third state and documented this as two state assists.

EPA’s Regional Offices Do Not Consistently Collect or Maintain Data on Informal Enforcement Actions

OECA collects data on some informal enforcement actions, such as the number of warning letters sent to regulated entities, but EPA regions do not always collect data about these actions, according to EPA headquarters officials. As a result, the data do not tell the full story of OECA’s enforcement efforts, according to OECA’s Assistant Administrator in testimony during a February 26, 2019, congressional hearing.

Furthermore, OECA headquarters officials we interviewed said that data on EPA and state informal enforcement actions are incomplete in EPA’s ECHO website in part because EPA policy and related guidance for each of the various programs defines informal enforcement differently and these definitions can differ from the definitions in ECHO. In a 2010 document, EPA explained how the various agency policy guidance and ECHO define formal and informal enforcement actions differently. For example, the document states that policy guidance for the Clean Air Act defines notices of violation as formal enforcement actions, but that policy guidance for the Clean Water Act and the Resource Conservation and Recovery Act defines notices of violation as informal enforcement actions. Similarly, this same 2010 document states that administrative penalty orders of field citations are considered informal enforcement actions in the policy guidance for the Clean Water Act, but formal enforcement actions in the policy guidance for the Clean Air Act and Resource Conservation and Recovery Act. In addition, the document states that ECHO characterizes notices of violations under the Clean Air Act as informal enforcement actions even though the policy guidance defines them as formal enforcement actions.

OECA headquarters officials highlighted two issues that affect the agency’s ability to consistently maintain data on informal enforcement actions: (1) using different definitions of informal enforcement actions across programs and (2) maintaining data on such actions inconsistently. OECA headquarters officials said that they were addressing the first issue of not having one clear definition of informal enforcement actions that applies across all of the air, water, and hazardous waste programs. In September 2019, OECA headquarters officials said EPA was finalizing a single definition of informal enforcement actions for the purpose of collecting more consistent information. In January 2020, EPA provided us with a September 30, 2019, memorandum that defines enforcement response tools, including a definition of informal enforcement action across all programs.

Regarding maintaining data inconsistently, while most of the regional offices collect data on some informal enforcement actions, they use different mechanisms to maintain these data. According to our analysis of written responses, officials in nine of the 10 regional offices stated that their offices collect data on some informal enforcement actions such as warning letters, notices of noncompliance, notices of violation, and notices of determination. However, the officials described using different mechanisms for maintaining the data they collect on informal enforcement. For example, officials in five of the nine regional offices that collect data on some informal enforcement actions stated that they maintain the data in ICIS. As we described, ICIS data feeds into ECHO, which has components available to the public. In three of the nine regional offices that collect data on some informal enforcement actions, staff collect data on such actions in a database other than ICIS, such as a statute- or office-specific database, according to our analysis of written responses. Finally, one of the nine regional offices that collect data on some informal enforcement actions maintains those data in paper records, according to an official in that office.

In our October 2017 report on key considerations for agency enforcement decisions, we reported that transparency and availability of data are important to promoting compliance and achieving regulatory objectives. As described earlier, EPA changed the focus of its national priorities from enforcement to compliance and increased its use of informal enforcement actions to achieve its regulatory objectives. Having complete information about informal enforcement actions is essential because EPA has elevated the role of such activities in its overall enforcement efforts. EPA often works informally with regulated entities to help them comply with environmental laws and regulations, according to its 2018 EPA Enforcement Annual Results report. However, the agency does not have complete information on those actions for evaluating its compliance monitoring and enforcement performance. Moreover, more complete and consistent information about OECA’s informal enforcement actions would provide a fuller picture of EPA’s overall enforcement efforts. This, in turn, would better enable EPA and OECA to assess whether they are achieving the agency’s regulatory objectives and improve the transparency of OECA’s informal enforcement actions for Congress and the public.

Guidance can help agencies communicate expectations and ensure consistency with a standard. While EPA has issued guidance on how various agency policies and ECHO define formal and informal enforcement actions, the agency has not provided guidance to regional offices on how they should collect or maintain data on informal enforcement actions. According to federal standards for internal control, management should design control activities to achieve objectives and respond to risks, such as by clearly documenting internal control in management directives, administrative policies, or operating manuals. On September 30, 2019, EPA issued a memorandum that provides definitions for enforcement response tools, including informal enforcement actions, and instructions on how to report such actions. Now that the agency has finalized its definition of informal enforcement actions and specified which mechanisms to use to maintain data on such actions, by clearly documenting in guidance to the regional offices how they should use the definition to collect data on these actions, EPA would have better assurance that the regional offices consistently collect and maintain these data.

EPA Does Not Require Its Regional Offices to Collect and Maintain Data on Compliance Assistance Activities

According to EPA headquarters officials, OECA stopped requiring regional offices to collect data and report on their compliance assistance activities around 2012. Prior to that time, each regional office had a full- time staff member dedicated to coordinating compliance assistance activities, according to these officials. However, the staff member’s activities were the only compliance assistance data that regional offices collected and maintained. EPA officials stated that the regional offices stopped collecting the compliance assistance activities associated with this position when the agency redirected the funding for the full-time staff position to compliance monitoring and other enforcement efforts. As a result, EPA officials told us that the agency does not have consistent data about its compliance assistance activities.

EPA officials told us that the agency made a policy decision to stop dedicating funding to compliance assistance but encouraged staff to continue conducting compliance assistance activities as part of the agency’s outreach for other programs. EPA headquarters officials said that as of September 2019, the agency had no plans to require regional offices to collect and report data on compliance assistance. However, according to these officials, although the agency stopped funding the compliance assistance coordinator position, regional staff continue to conduct a range of compliance assistance activities as part of their regular enforcement duties. Figure 2 shows the types of compliance and enforcement data that EPA collects, including that the agency does not require regional offices to collect information about compliance assistance.

According to our analysis of written responses, officials in nine of the 10 regional offices reported that they collect some data on the compliance assistance activities their offices conduct. Officials in one office said that they do not collect data on compliance assistance activities because it is not required. The types of data on compliance assistance that the nine regional offices collect and the methods those offices use for maintaining the data differ, according to our analysis of written responses. For example, some regional officials described collecting data on compliance assistance provided over the telephone, and other officials described collecting data on on-site compliance assistance provided during inspections. According to our analysis of written responses, officials in two regional offices described providing on-site compliance assistance for minor issues during inspections and tracking the number of times such assistance was provided. Officials in the nine regional offices that still collect data on some compliance assistance activities described storing the data differently, either in region-specific databases or in paper files. Officials in two of these regional offices said that regional staff decide how to document telephone calls from regulated entities for assistance. Officials in one region stated that they no longer conduct large-scale compliance assistance activities such as conducting workshops or developing informational materials because EPA eliminated the reporting requirement.

Having complete information about its compliance assistance activities is essential because EPA has elevated the role of such activities in its overall enforcement efforts. However, EPA does not have complete information on its compliance monitoring and enforcement activities, partly because the agency does not require the collection of data on compliance assistance activities. EPA’s lack of complete information on its compliance assistance activities is inconsistent with its change in policy. In addition, in our October 2017 report on key considerations for agency enforcement decisions, we reported that transparency and availability of data are important to promoting compliance and achieving regulatory objectives. Having complete information about its compliance assistance activities may provide more complete information on those activities for evaluating its compliance monitoring and enforcement performance.

As discussed earlier, most of the regional offices continue to collect some information on compliance assistance even though they are not required to do so and use varying mechanisms to maintain the information. Because EPA does not direct the regional offices to collect data on compliance assistance activities, the agency would not have issued guidance instructing regional offices to collect such data and specifying which mechanism to use to maintain them. However, according to federal standards for internal control, management should design control activities to achieve objectives and respond to risks, such as by clearly documenting internal control in management directives, administrative policies, or operating manuals. Without clearly documenting in guidance to the regional offices that they should collect data on compliance assistance activities and specifying which mechanism to use to maintain the data, such as ICIS, EPA will not have the information it needs to track progress toward its strategic objective of increasing the agency’s use of compliance assistance activities to help regulated entities comply with laws and regulations.

EPA Communicates the Results of Its Compliance Monitoring Activities and Enforcement Actions to the Public and Congress through a Website and Annual Reports

EPA communicates the results of its compliance monitoring activities and enforcement actions by making data available to the public and Congress through its website and annual reports. EPA’s ECHO website allows the public to view data over time, such as the number of facilities inspected by an authorized state or EPA from fiscal years 2011 to 2019. To help the public understand the data presented on its ECHO and other websites, EPA websites list a number of national and state-specific known data limitations concerning the data collected for its environmental programs. For example, the ECHO website identifies whether certain years of data are not appropriate for analyzing trends, such as its data on penalties under the Clean Water Act prior to 2015.

EPA issues annual performance reports that include data on compliance monitoring and enforcement to fulfill requirements under the Government Performance and Results Act and other requirements. These reports describe progress toward the three strategic goals and related objectives in EPA’s Fiscal Year 2018-2022 Strategic Plan. In addition, since 2017, EPA has published a Year in Review report that outlines the agency’s accomplishments, including in the area of enforcement, using data on its compliance and enforcement actions to present the results of its efforts. In addition, at the end of each fiscal year, OECA publishes a Fiscal Year EPA Enforcement and Compliance Annual Results report and companion data graphs that provide enforcement data over a selected time period on such topics as the number of EPA inspections conducted, cases initiated, and value of fines and penalties collected. Environmental groups and media outlets have used EPA’s data to develop analyses, conclusions, and inferences about changes in EPA’s enforcement results.

In December 2018, we reported that providing information about a dataset—for example, known limitations of the data in that dataset— allows users to determine whether the database is suitable for their intended purpose and make informed decisions about whether and how to use it. For example, EPA’s 2000 EPA Quality Manual for Environmental Programs states that published reports with environmental data shall be accompanied by a readily identifiable section or appendix that discusses the quality of the data and any limitations on the use of the data with respect to their original intended application. It also states that the agency’s reports should include applicable statements about possible misuse of the data for other purposes.

EPA’s Fiscal Year 2018 Annual Performance Report includes a link to companion reports on its website that describe, among other things, the sources of the data used in the report and the known limitations of those data. Specifically, the companion reports include information such as the definition of terms used, units of measurement, data sources, method for analyzing the data, and the known limitations of the data.

However, neither of EPA’s other 2018 annual reports we reviewed fully disclosed known limitations to the data the agency included in each report:

Year in Review 2018. OECA’s Year in Review 2018 report, the most recent report available at the time of our review, includes a range of data—such as number of actions taken, monetary results, the reduction of emissions in tons, and data over selected time periods— to accompany its statements about the agency’s accomplishments. However, the report does not include any information about data sources or known limitations of the data.

Fiscal Year 2018 EPA Enforcement and Compliance Annual Results. EPA’s Fiscal Year 2018 EPA Enforcement and Compliance Annual Results report, also the most recent at the time of our review, includes data sources and some known limitations of the data. For example, the report states that the data on results do not include state and local inspections or enforcement actions. Additionally, the report includes statements about changes in how the agency stores data that may prevent the data from being comparable across years. The report lists the various sources of the data used to create the report’s charts and graphs. EPA has published known limitations of these data on its ECHO website and indicated that broad data issues may affect the completeness, timeliness, or accuracy of the data in its various systems. However, based on our review of the report, it does not include information about known limitations of all of the data in the report.

In addition, neither the Year in Review 2018 report nor the Fiscal Year 2018 EPA Enforcement and Compliance Annual Results report includes a readily identifiable section or appendix that discusses the known limitations of the data, as called for by leading practices for transparently reporting government data and as exemplified in EPA’s manual governing environmental data quality. In commenting on our assessment of the annual reports, EPA officials did not provide a reason why the reports do not discuss known data limitations but told us in a prior meeting that the current documentation on the ECHO website includes the current known data limitations.

Furthermore, EPA’s Fiscal Year 2018 EPA Enforcement and Compliance Annual Results report does not fully describe how the data in the report should be interpreted given the known data limitations the report contains. For example, the 2018 annual results report provides a partial picture of overall enforcement of environmental laws because the data exclude state enforcement actions. In addition, for the yearly data across years (2008 through 2018 or 2012 through 2018), EPA does not fully provide information on any limitations in how the data should be analyzed; for example, whether the data are appropriate for the purpose of identifying trends or providing a snapshot of an activity for a single year. EPA does, however, include information on the impact of one or two large cases on the data presented for some data in the report such as the volume of contaminated soil and water to be cleaned up or the treatment and disposal of hazardous and nonhazardous waste.

In our November 2019 report on data transparency, we concluded that without the transparent disclosure of known data limitations, users may view or analyze data without full knowledge of the extent to which the data are timely, complete, accurate, or comparable over time. Our November 2019 report also concluded that this could lead users to inadvertently draw inaccurate information or conclusions from the data. OECA’s Assistant Administrator has discussed the known limitations of EPA’s data in the annual reports. In a February 26, 2019, testimony before Congress, OECA’s Assistant Administrator stated that the averages for some of the metrics used in EPA’s annual results report cannot be interpreted to represent a statistical trend. OECA’s Assistant Administrator also stated that changes in the number of enforcement actions may be a function of changes in programmatic decisions and may not be reflective of changes in the underlying compliance of regulated entities with environmental statutes. By including the known limitations of data in its annual reports and providing information on the intended use of EPA’s data, as called for by leading practices for transparently reporting government data and as exemplified in existing EPA guidance for environmental data, EPA would have better assurance that Congress and the public are informed about the data presented and how the data should be interpreted.

Conclusions

EPA collects a range of information and uses the information to manage its enforcement and compliance program and assess how well its efforts are meeting the objectives outlined in the agency’s strategic plan and other documents. However, while most of the regional offices collect data on some informal enforcement actions, they use different mechanisms to maintain these data, and the agency has not provided guidance to regional offices on how they should collect or maintain the data. Without documenting in guidance to the regional offices how they should collect data on informal enforcement actions and specifying which mechanism to use to maintain the data, EPA lacks assurance that the regional offices will consistently collect and maintain these data. On September 30, 2019, EPA issued a memorandum that provides definitions for enforcement response tools, including informal enforcement actions and instructions on how to report such actions. We view this as a step in the right direction. Now that the agency has finalized its definition of informal enforcement actions and provided instructions on how regional offices should report such actions, by clearly documenting in guidance on how regional offices should use the definition to collect data on these actions, EPA would have better assurance that the regional offices consistently collect and maintain these data.

Similarly, EPA does not have complete information on its compliance monitoring and enforcement activities because the agency does not require the collection of data on compliance assistance activities. As a result, the agency has not issued guidance instructing regional offices to collect such data and specifying which mechanism to use to maintain them. Without clearly documenting in guidance to the regional offices that they should collect data on compliance assistance activities and specifying which mechanism to use to maintain the data, such as ICIS, EPA will lack key information. Such information is needed to track progress toward its strategic objective of increasing the agency’s use of compliance assistance activities to help regulated entities comply with laws and regulations.

While EPA communicates the results of its compliance monitoring activities and enforcement actions through its website and annual reports, neither of its 2018 annual reports includes a readily identifiable section or appendix that discusses the known limitations of the data. The 2018 annual results report also does not fully describe how the data in the report should be interpreted, given the known data limitations the report contains. By including the known limitations of the data in its annual reports and providing information on the intended use of EPA’s data, EPA would have better assurance that Congress and the public are informed about the data presented and how the data should be interpreted.

Recommendations for Executive Action

We are making the following three recommendations to EPA: The Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance should clearly document in guidance to the regional offices how they should use the definition of informal enforcement actions to collect data on these actions. (Recommendation 1)

The Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance should clearly document in guidance to the regional offices that they should collect data on compliance assistance activities and specify which mechanism to use to maintain the data, such as ICIS. (Recommendation 2)

The Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance should include the known limitations of data in its annual reports and provide information on the intended use of EPA’s data. (Recommendation 3)

Agency Comments and Our Evaluation

We provided a draft of this report to EPA for review and comment. In its written comments, reproduced in appendix I, EPA stated that it agreed with all three of our recommendations and many of our findings and conclusions. EPA also provided technical comments, which we incorporated into the report, as appropriate.

In response to our first recommendation to clearly document in guidance how regional offices should use the definition of informal enforcement to collect data on these actions and specify a mechanism to maintain the data, EPA said that the agency issued a September 30, 2019, memorandum for headquarters and regional enforcement offices to implement. This memorandum provides guidance on EPA definitions for enforcement response tools, to promote consistency and clarity in the use of enforcement terms, according to EPA. EPA also said that the guidance defines “informal enforcement action.” The guidance includes instructions on how to report such actions. The guidance states that, with two exceptions, headquarters and regional offices are expected to report, in ICIS, all informal enforcement actions across all programs that meet the new definition. In addition, the guidance states that because it is only a definitional document and does not include guidance on appropriate use of the enforcement response policy tools, the agency will work to identify the specific changes in practice needed (i.e., changes in use and reporting). The guidance states that EPA anticipates that informal enforcement actions meeting the new definition will be included in the agency’s certified annual enforcement results beginning in fiscal year 2020. We view EPA’s guidance as a step in the right direction, and the guidance states that EPA will provide training and additional guidance for enforcement staff to ensure consistent implementation across regional offices and headquarters. Additional guidance will provide EPA with an opportunity to specify how regional offices are to use the definition of informal enforcement to collect data on these actions. We modified our recommendation because EPA’s recent guidance specifies mechanisms for EPA employees to maintain data on informal enforcement actions.

In response to our second recommendation to clearly document in guidance that regional offices should collect data on compliance assistance activities and specify a mechanism to maintain the data, EPA said that it would collect data on compliance assistance for each of the National Compliance Initiatives and maintain those data in ICIS. In response to our third recommendation to include known data limitations in annual reports and provide information on intended use of its data, EPA stated that it acknowledges the importance of providing information about a dataset to facilitate proper interpretation. For that reason, EPA said that, in time for its fiscal year 2020 report, the agency will create a webpage to describe how best to interpret the data presented in the agency’s Fiscal Year EPA Enforcement and Compliance Annual Results report and include a reference to that webpage in the report itself as well as the Year in Review report.

In technical comments related to our third recommendation, EPA stated that several of the limitations we identified in the report do not affect the data included in its Fiscal Year EPA Enforcement and Compliance Annual Results report. In considering EPA’s technical comments, we modified the text of the report concerning examples of the annual report’s data limitations, as appropriate.

As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies of this report to the appropriate congressional committees, the Administrator of EPA, and other interested parties. In addition, the report is available at no charge on the GAO website at http://www.gao.gov.

If you or your staff members have any questions about this report, please contact me at (202) 512-3841 or gomezj@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors to this report are listed in appendix II.

Appendix I:Comments from the Environmental Protection Agency

Appendix II: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Chad M. Gorman (Assistant Director); Tahra Nichols (Analyst in Charge); Mark Braza; Courtney Carroux; Tara Congdon; Jazzmin Cooper; Matthew Hunter; Caroline Prado; Dan Royer; Jeanette Soares; Kiki Theodoropoulos, Sonya Vartivarian, and Michelle R. Wong made key contributions to this report.