American Geological Institute

Government Affairs Program


Enforcement of Environmental Laws: Federal State Relations 

The Government Performance and Results Act of 1993 has forced many federal agencies to restructure program and streamline processes.  In 1995, Environmental Protection Agency (EPA) Administrator Carol Browner announced the Planning, Budgeting, Analysis and Accountability (PBAA) campaign, a series of reforms for the agency to improve performance.  This campaign helped establish state-lead alternative compliance programs designed to increase voluntary industrial compliance to environmental regulations.  Prior to these changes EPA was often accused of micro-managing state plans and programs, especially enforcement.  EPA has worked with many states to set up programs suited for local needs under the Performance Partnership System, but the transfer of power and authorization has been difficult. Congress has held two major hearings on the issue of enforcement of environmental laws in the new state-lead system:  

House Commerce Subcommittee on Oversight and Investigations Hearing on States' Alternative Environmental Compliance Strategies

June 23, 1998

Once again the Environmental Protection Agency (EPA) was scrutinized by Congress over its unwillingness to work with state and local agencies to develop more effective compliance programs.  Last summer the National Academy of Public Administration (NAPA)  held a briefing on its report entitled "Resolving the Paradox of Environmental Protection: An Agenda for Congress, EPA, and the States" which was a two year follow up to a 1995 report that made recommendations on improving the nation's environmental protection system.  In response to the initial report many states have experimented with alternative strategies and programs to enforce and encourage voluntary compliance of federal policy, especially focusing on small- and medium-size businesses .  EPA national headquarters, according to different states' agencies, has not been supportive of these alternative strategies.  Many state environmental agencies have complained about the inconsistent messages they receive from the regional EPA offices and the main office in Washington DC.

On Tuesday June 23, 1998, the House Commerce Subcommittee on Oversight and Investigations  held a three panel hearing on alternative state plans for environmental compliance under EPA guidelines.  The Subcommittee requested the General Accounting Office (GAO) to investigate the inconsistencies in the EPA's response to state programs, to review the methods used in many alternative programs, and to assess the effectiveness of these  innovative programs in meeting environmental requirements.  Witnesses from the state level environmental agencies and the EPA testified in response to the findings of the GAO report.

Members of the panel often referred to "traditional" enforcement strategies as the system that records the number of "significant violators" reported in a state of region as a method to measure compliance to environmental regulations.  The Acting Inspector General, Nikki Tinsley, defined significant violators as "any major stationary source of air pollution that violates emission, monitoring, or substantial procedural requirements; is a repeat or chronic violator; violates federal or state orders; or makes major modifications without permit."  Many officials at the state and federal level want to move away from this "bean counting" method to a results-oriented measurement of environmental compliance.

Panel I
Mr. Michael Gryszkowiec, Director of Planning and Reporting for the GAO, testified regarding the GAO report entitled "Environmental Protection: EPA's and States' Efforts to Focus State Enforcement Programs on Results."  Issued at the end of May 1998, the report answers the questions: (1) what types of alternative strategies are states using, (2) how states are measuring the success of these programs, and (3) "how EPA has responded to these states' efforts, focusing in particular on the agency's objective of holding the states accountable for achieving environmental results, rather than focusing solely on enforcement processes."

Of the ten state programs contacted by the GAO, most programs used two general techniques: "compliance assistance" and "audit privilege/immunity."  Most compliance assistance programs include seminars, "plain-English" guides to regulations, and visits from technical assistants as methods to help small and medium size companies to understand and comply to regulations.  The audit privilege/immunity programs used by many states "generally encourage facilities to use environmental auditing to asses their environmental performance and correct the problems identified" before any official violation or fine is issued by the state agency.  EPA, referring to noted decreased enforcement actions in the states using these alternative programs, "objects on legal and policy grounds" to the immunity programs, indicating that these programs compromise environmental policies by allowing polluters to go unpunished.  At the root of differing legal and policy views held by the states' environmental agencies and EPA are the questions: who determines if a state's alternative compliance program compromises the agencies authority to enforce federal environmental law? and what is the proper EPA role in oversight of states' enforcement programs?

Gryszkowiec indicated officials at the state and federal levels agree that the effectiveness of any new strategy should be measured and assessed, but efforts to measure the effectiveness of these programs has proven to be "more difficult than counting and reporting traditional enforcement 'outputs'." Officials have requested the states and EPA to develop a results-oriented performance method to measure these innovative programs.  Detaining this new effort is the absence of a baseline to determine changes in compliance under the new strategies, and the increased expense and complexity of "quantifying outcomes as compared with counting and reporting enforcement activities."

Commenting on the reaction of EPA to state alternative programs and efforts to improve compliance using nontraditional approaches, Gryszkowiec said, "These programs have complemented and facilitated states' efforts, but the agency [EPA] also maintained a continued emphasis on strong enforcement, noting that the deterrent effect achieved through enforcement actions motivates regulated entities to seek compliance assistance and use incentive policies."  Also, he expressed concern that difficulty between state agencies and EPA was "exacerbated by inconsistent approaches by different EPA offices."

Subcommittee Chairman Joe Barton (R-TX) lead off the question period by asking Mr. Gryszkowiec and his accompanying staff a series of questions regarding the difficulty in establishing a baseline, the use of water and air samples to establish a baseline, and what factors should be tracked to establish a baseline.  The panel responded that the difficulty in establishing a baseline is partially due to the lack, at the state and federal levels, of accurate data and results on current compliance.  To the question of what indicators should be tracked, the panel members agreed it is a question the EPA has been working on for years that cannot be easily answered with water and air samples.  Mr. Steve Elstein, Assistant Director of the GAO, responded that it is an issue of what level of compliance is adequate.

Ranking Minority Member Ron Klink (D-PA) stated that the federal and state agencies need to make their presence clear to industries in order to increase compliance.  He continued by questioning the panel on the findings in the report of decreased compliance in larger industries which are not the focus of these alternative strategies.

Members of the committee continued to question the panel on different aspects of the report and programs used by states to focus on small- and medium-size industries.  Referring to the report and EPA actions over the past year, the panel responded that steps are being made for the EPA to work more closely with state agencies to meet local needs, increase compliance, and decrease confusion on all sides.
 

Panel II
Florida and Massachusetts, two of the ten states contacted by GAO in preparing the May report,  established alternative strategies a few years ago with help from the regional EPA offices.  Both states use a combination of the "compliance assistance" and "audit privilage/immunity" along with methods tailored for local needs.  One of the complaints from these two states and many other is the mixed message the state agency received from EPA regional offices and the headquarters in Washington.

Michael Phillips, Director of the Office of Strategic Projects and Planning for the Florida Department of Environmental Protection (DEP), testified regarding Florida's experience in alternative compliance strategies.  Noting that states are becoming the "laboratories for experiments," he said that many of the programs developed by state agencies "show great merit for application in other jurisdictions as well as at the national level."  Over four years ago Florida began the process of reforming its governmental agencies to better meet departmental goals and serve the public.  The DEP realized that balance of compliance resources and enforcement resources needed to be re-evaluated.  After talking with Dr. Malcolm Sparrow, a lecturer in public policy at Harvard University's Kennedy School of Government, author of "Regulatory Agencies, Searching for Performance Measures that Count," a report that stresses the integration of compliance and enforcement resources and the need for agencies to focus on achieving the desired results.  Mr. Phillips stressed the importance of measurement in a results-oriented program, and that the current "national databases are unable to provide any data other than activity counts."  In his opinion for alternative strategies and programs to be successful the EPA and states must work together to establish databases that are equipped to answer the new questions of a results-oriented system.

David Struhs, Commissioner of the Massachusetts Department of Environmental Protection (DEP), testified before the subcommittee on the Massachusetts alternative compliance strategies.  Opening with a quick statement to clarify the meaning of "alternative compliance strategies,"  Mr. Struhs said there is only one way to comply to federal regulations but there are many ways to enforce these regulations.  The Massachusetts DEP approached the regional EPA office for approval "to reduce the number of federally required inspections of the same few sources so [they] could redeploy [their] resources to visit facilities that in some cases had never before been inspected."  The regional office not only okayed the idea, but also awarded the DEP a grant to help pay for the inspections of previously uninspected facilities.  To the agency's surprise, last year the EPA's Inspector General audited the state agency because of a record low in statistics for traditional air permit inspections.  Mr. Struhs explained the confusion and repercussions of this inconsistent message from the EPA, where one part of the agency is supporting the new programs and another part is trying to penalize the state for alternative programs.  Echoing Mr. Phillips' comments on the need for measurements and a reliable database, Mr. Struhs suggested the EPA go on an "information diet" where only the information needed for the databases is collected, it is collected once from each source, the information is used productively, and the information is readily available to the public.  In closing he said, an information diet "doesn't mean that we are going to eat less; it means we are going to eat better."
 

Panel III
Eric Schaeffer, Director of the Office of Regulatory Enforcement of the United States Environmental Protection Agency, welcomed the change to discuss the actions EPA has undertaken since 1993 to work with states to develop and implement new approaches to increase compliance.  After an agency reorganization in 1993, EPA began to implement a few alternative compliance strategies, and began to "actively" support state agencies to develop compliance assistance tools through regional-state partnership programs.  Since 1995, three major policies have been issues by EPA: a policy to encourage environmental auditing, a policy on compliance incentives for small businesses, and a policy on flexible state enforcement responses to small community violations.  These policies establish "a penalty reduction program or policy for small entities" that were developed by EPA as models for states.

The EPA's alternative strategies, in many cases, differed from state programs which the EPA labeled too lenient.  "EPA firmly believes that alternative compliance strategies will be most effective when they are used as part of an integrated program which maintains a strong compliance and enforcement presence among regulated entities."  Expanding on this belief, Mr. Schaeffer continued by adding enforcement motivates regulated entities to comply, provides deterrence, and ensures economic fairness among regulated entities.

Mr. Schaeffer explained that the miscommunication between EPA offices and state agencies is due to the challenge of  "integrating assistance, incentives, monitoring, and enforcement."  The second challenge EPA and states face is the issue of measuring results of these alternative programs.  The Director stated that EPA plans to work with state agencies to setup a measuring system under its National Performance Measures Strategy.

He responded to the GAO's recommendations that the Measures Strategy is implemented "on schedule and in a collaborative effort with states," by saying that EPA plans to implement the new performance measures on schedule and has formed work groups with state agencies.  The report also recommended that EPA promote greater consistency in what the agency sees as an "appropriate balance" between enforcement and compliance assurance activities.  Mr. Schaeffer echoed the action already under way in the agency to carry out the recommendations of the GAO.

Nikki Tinsley, Acting  Inspector General (IG) of the United States Environmental Protection Agency, testified about the results of audits done last year of states' alternative strategy programs for the Clean Air Act.  She said that despite a directive requiring states to report "significant violators" within a month of the violation, many states did not report this information.  "Without information about significant violators, EPA could neither assess the adequacy of the states' enforcement programs, nor take action when a state did not enforce the Clean Air Act."

The IG supports partnerships between EPA, state agencies, and local industries to develop and implement alternative programs to meet environmental goals, but it cautions that key to effective enforcement is an accurate database of environmental violations.  "Without a good enforcement database, environmental regulatory agencies cannot do their hob, and the deterrent effect of the enforcement program is diminished."

Ms. Tinsley concluded by saying that EPA regional offices are working with state agencies to improve reporting and inspections as a response to the IG audits.  She again stressed the importance of accurate, complete, and timely "reporting of significant violators by states, using a commonly accepted definition of what constitutes such violations, is necessary for all partners to carry out their respective roles."


Senate Committee on Environment and Public Works; Full Committee

June 10, 1997

Witnesses present for the first panel included:
Lois J. Schiffer, Assistant Attorney General, Environment and Natural Resources Division, US Department of Justice
Steve Herman, Assistant Administrator, Office of Enforcement and Compliance Assistance, Environmental Protection Agency
Nikki L. Tinsley, Acting Inspector General, Environmental Protection Agency

Senators present
Chairman John H. Chafee (R-RI)
Sen. Craig Thomas (R-WY)
Sen. Jeff Sessions (R-AL)
Sen. John W. Warner (R-VA)
Sen. James M. Inhofe (R-OK)
Sen. Frank R. Lautenberg (D-NJ)
Sen. Max Baucus (D-MT)

To read the full testimony of the witnesses submitted to the committee, visit the Senate Environment and Public Works Committee website.

Introduction
Chairman Chafee introduced the proceedings as a "hearing on the relationship between the Federal and state governments in the enforcement of environmental laws." Chafee began with a brief history of recommendations in the area of enforcement, including a hearing held just over four years ago at which Carol Browner first testified as EPA administrator and a 1995 report of the General Accounting Office, both of which stressed the need for a strong collaboration between states and the Federal Government on issues of environmental enforcement. A report issued by the National Academy of Public Administration in 1995 recommended that states which "demonstrate superior environmental performance" should be granted greater flexibility in carrying out environmental programs. Chafee was quick to identify that the chief question to address would be the question of "how to assess the level of environmental protection for which a state is providing." He noted that the more traditional methods of assessing state enforcement are largely considered inadequate, although efforts by both states and the EPA to develop new modes of measurement are to be commended.

Sen. Baucus echoed the chairman's emphasis on the need for sound enforcement policies, stating that national standards must be backed up by a national enforcement policy if the standards are to have any force at all. A national policy will prevent variations in state-imposed compliance policies which have had the effect of imposing competitive disadvantages for companies located in some states as opposed to others. Sen. Baucus closed his remarks by saying, "we have to remember that our objective is not enforcement for its own sake. Our objective is to improve the environment."

The witnesses of all three panels participating in the hearing agreed that there can be great value to federal-state cooperation in the implementation of environmental enforcement strategies. State and local authorities are closer to the problems that arise and often better equipped to deal with regional concerns. Still, national regulation is needed to assure that corporations are working on a "level playing field," and to equalize state penalties and regulations which can vary considerably. All participants also recognized the obstacles that make such cooperation difficult, and the need for both parties to communicate more effectively and actively pursue strengthening their partnership. While some state environmental authorities felt that the EPA-state relationship was working very well, others felt that EPA actions minimized their role. In addition, witnesses representing the private sector, an industry representative in particular, maintained that the current system actually penalizes those entities who strive to comply and keep their environmental practices on the up and up. Witnesses stressed that while some gains have been made, the overarching goal of environmental improvement must be emphasized over enforcement strategy.

Testimony
Schiffer characterized those individuals involved in environmental enforcement as the Nation's environmental "cops on the beat." She stressed the importance of an effective enforcement program, involving strict penalties when necessary. Without vigorous enforcement, "the health of our families and our communities is threatened." Schiffer also gave an economic rationale for strong enforcement policy, noting the decreased property values associated with environmental contamination and the damage done to industries such as tourism and fishing. She advocated continued cooperation between the states and the federal government and suggested that a liaison between the two entities might promote that cooperation. In describing some of the responsibilities of her position and referring back to the comments of Chairman Chafee, Ms. Schiffer stated, "one of this Division's jobs is to make sure that any company breaking the law is brought into compliance, that no competitor gets an unfair head start from illegal conduct, and that everyone is playing on a level economic field. A strong and effective compliance program is essential to even-handed application of the environmental laws and to fair and honest competition." Ms. Schiffer noted that a "working federalism" is "critical to successful environmental compliance." She characterized the overall relationship between the Department of Justice and their partners in the states as a "good" one.

Ms. Schiffer also offered a list of those actions that the Department of Justice has undertaken to promote successful cooperation between the states and the federal government on compliance issues. The actions undertaken include: creating a position, the Counselor for State and Local Environmental Affairs; establishing a policy that the environmental enforcement section will notify the state in advance of filing a suit in that state, absent exceptional circumstances, and inviting the state's participation or cooperation in the action; developing relationships with state and local law enforcement personnel through environmental crimes task forces and Law Enforcement Coordinating Committees across the country; establishing a senior forum for the discussion of environmental enforcement and compliance issues; Department Attorneys working with state officials to train state and local prosecutors and investigators; and working to improve and solidify relationships with the US Attorneys' Offices around the country. Overall, Ms. Schiffer was positive about current federal-state interaction, and was optimistic about the prospects of future cooperation.

Steve Herman began his remarks by emphasizing that the environmental laws enacted are not worth much without strong enforcement programs, both at the state and Federal level. Mr. Herman also stated agreement with the Chairman's earlier remarks, that states should be given more flexibility in the enforcement of federal programs, though he tempered this comment by stating that states must also recognize national standards and limits. Mr. Herman gave three reasons to support the position that maintenance of a vigorous enforcement presence is essential, including: prevention of major pollution hazards which result in cleanup efforts that break the bank; seeking to ensure fairness to the regulated community, i.e. those who violate are the ones who pay; and the threat of enforcement sanctions often does deter environmental damage. Referring to the state-federal partnership in environmental enforcement, he acknowledged that joint jurisdiction can often be challenging, however, it is "sound and it serves the public well." Herman stated that, while the EPA and the states often have diverse views, "we need each other and are trying to work together." He emphasized that a balance must exist between the two structures such that states have the needed authority to enforce federal initiatives.

Mr. Herman concluded with four examples of what has been and is being done in conjunction with the EPA in order to strengthen and improve upon existing compliance protocols. First, national compliance service centers were established, involving partnerships with trade associations. Improvements in the way of incentives were also discussed, such as slashing the penalties imposed upon companies that promptly disclose their violations (without indiscriminate amnesties), and rewarding companies that comply with increased flexibility. Finally, Herman called for a national effort to develop new measures of compliance and success, expressing the viewpoint that the traditional method of tallying the cases referred to the Justice Department is not adequate.

Nikki Tinsley went straight to the heart of the matter and began her testimony with three conditions she feels are necessary for federal state cooperation. The first condition she referred to was mutual agreement upon enforcement approaches. For example, the economic benefits for compliance and the penalties for noncompliance, as well as the imposition of escalating penalties for repeat offenses, must be consistently applied. Secondly, both the federal and state entities must agree on their respective responsibilities. Finally, there must be accurate reporting on environmental data.

Tinsley noted that enforcement inconsistencies endanger the public by virtue of creating often widely varied levels of protection. She acknowledged that lower levels of enforcement are often caused by limited state resources and the fear of corporate relocation to areas with less stringent environmental requirements. Looking to the future, Tinsley stated that we need to be able to judge the extent of compliance so that areas in need of extra enforcement can be targeted by both state and federal entities.

Questions and Answers
Chairman Chafee expressed a viewpoint sympathetic to the difficulties of constructing a viable and successful partnership and stated his understanding of the state position in wanting to maintain the industries and corporations within state borders. To these comments, Mr. Herman responded that while we need to guarantee a minimum level of protection on a national basis, states also must be granted the flexibility to experiment and try new approaches to enforcement strategy. Sen. Thomas advanced the classic federalism argument that the states are closer to the problem; therefore, more control should be shifted in the direction of the states. Mr. Herman responded that we must look at the state capabilities in different areas, for they vary widely. He acknowledge that, as things are, the states do most of the enforcing. Ms. Schiffer added that state resources can present a problem. Sen. Thomas then asked Mr. Herman to address the submitted viewpoint of a state witness, that effectively, the EPA "owns the ranch" and the states are just "hired hands." Herman stated that the EPA has "reached out to the states more than others" and has "involved them in the planning process." He characterized the present time as one of major changes, when we're "finding new ways to do things and can't expect instant agreement."

In response to Sen. Baucus' questions concerning the rules of "stepping in," how well known they are, and how widely they vary, Mr. Herman stated that the guidelines for penalties have been "out for a while" and "should be well known." In response to general concern about instances of overfiling (Federal overfiling is the initiation of a federal enforcement action, either administrative or civil, following a state enforcement action. Federal overfiling is in addition to, not in replacement of, a state enforcement action for the same violation at the same facility.), Herman noted that the EPA attempts to avoid problems by speaking to the states first. He also characterized overfiling as infrequent, citing 4 cases last year, and 15 for the period of 1994-1995.

Sen. Inhofe commented about the effectiveness of state action, citing a Superfund example in which state cleanup was both cheaper and more rapid than its federal counterpart. Sen. Lautenberg stated his support for federal state cooperation in the area of environmental enforcement, however qualified his remarks by saying that the federal government should by no means step aside. "The EPA has no right to forget their assignment to protect the environment, whether they want to or not." Sen. Sessions drew a parallel between the structure of the FBI and the structure of the EPA, a limited number of people in each state. He also commented that he has observed great delays in getting site evaluation done, and suggested that the process would benefit from in-house chemical experts within the EPA being prepared to do such a job. Mr. Herman acknowledged this recommendation as a good idea.

To Sen. Warner's inquiries about the importance of consent orders in achieving compliance, Herman responded that "properly crafted ones are vital." Warner expressed concern that a company acting under a good-faith consent order under existing regulations, then faced with new regulations might incur added costs due to required changes for no good reason. Mr. Herman noted that in situations such as the one characterized by the Senator, some recognition would be given to former agreements just as a company's ability to pay is considered when penalties are imposed. For example, the prior arrangement might be "grandfathered in," or some sliding time scale of application would be in order. Schiffer concluded the question and answer portion of the first panel with the observation that, "as a practical matter, state and federal cooperation is going well."

Witnesses present for the second panel included:
Mark Coleman, Oklahoma Department of Environmental Quality (Oklahoma City, OK), on behalf of the Environmental Council of States
Becky Norton Dunlop, Secretary of Natural Resources, State of Virginia
Patricia S. Bangert, Director of Legal Policy, Office of the Attorney General for the State of Colorado (Denver, CO)
Christophe A.G. Tulou, Secretary of Natural Resources and Environmental Control, State of Delaware (Dover, DE)
Joseph Rubin, Assistant Attorney General, Office of the Attorney General for the State of Connecticut (Hartford, CT)

Testimony
Mr. Coleman began by stating that a vast amount of environmental enforcement is being done by the states, with 9 out of 10 actions each year brought by the states. According to Mr. Coleman, there are strains on the federal state enforcement relationship, but it is overall a "strengthening partnership." He stated that the EPA has delegated the primary enforcement role to the states. However, the perceived pressure for direct EPA involvement adds to the problem of creating sound accountability. If the EPA measures its success by the number of actions brought, they are playing a conflicted role, partly leaving matters to the states and adopting an oversight role and partly playing the lead role themselves. Coleman placed the states in the role of direct enforcement, with the EPA handling oversight. He noted that the success of enforcement should be measured by the effectiveness of oversight.

Ms. Dunlop began her comments by remarking that she's "proud of what we've done in Virginia." She criticized the EPA focus on outcomes and stated that the measure of success should have little to do with reporting and enforcement and more to do with whether or not environmental improvement is taking place. Dunlop identified the "Virginia way" as "compliance first" and told of how they implement a science-based approach to help corporations reduce their emissions. She stated that enforcement is important when necessary, for example when dealing with a "bad actor" or repeat offender. Dunlop argued for an overall decentralized structure, organized by function as opposed to focal area. In closing, she identified the true issue as, "Is government to be a helpful servant, or a fearful master?" Dunlop expressed dismay at the relationship as it exists between Virginia and the EPA, placing it into the "fearful master" category.

Ms. Bangert, author of the aforementioned comment classifying the EPA as owning the ranch and the states as just hired hands, stated that the reality of the state EPA relationship is that "it's a total fiction in some areas." She maintained that the EPA wants the states to manage environmental enforcement just as they do, and leaves little room for the implementation of state-crafted strategies. Bangert cited an example in which the EPA engaged in a "program of intimidation" in attempting to dissuade the states from adopting a self-audit movement. In essence, "the EPA can dictate the content of state laws." Bangert noted a need for other compliance measures in addition to penalties, stating "when you focus on penalties, you do stupid things." Bangert concluded with three suggestions regarding the partnership. These included: establishing a short-term task force or commission to review the present laws and recommend changes, identifying better methods of measuring success, and establishing greater certainty about criteria used in overfiling.

Mr. Tulou began by characterizing the federal state cooperation as "greater than it ever has been." He classified the appropriate relationship as "partnership, not paternalism," noting that "we need the EPA just as much as the EPA needs the states...that is what partnership is all about." Tulou was careful to emphasize that enforcement is an important tool to achieve environmental goals, but should not be viewed as a goal in and of itself. He also cautioned that overly aggressive enforcement can be taken as a "dare," causing violators to pursue an adversarial relationship with authorities that hinders rather than advances the realization of environmental goals.

Mr. Rubin characterized the relationship between the EPA and the State of Connecticut as "cooperative and productive." He recommended replacing interagency competitiveness with cooperation and considering whose resources will do the best job to promote working together. Connecticut has done this through the establishment of a model state-federal working group on water enforcement efforts which operates without bureaucracy and "actually work[s] cooperatively." Rubin identified the EPA state program audits which occur on a periodic basis as an "excellent compromise" and a "sound approach to oversight." He maintained that the peer review process operating on a periodic basis helps state authorities to identify their strengths and weaknesses, and improve their performance in areas where problems are identified. Rubin concluded by emphasizing the need for maintenance of national standards, for "we have only one environment."

Questions and Answers
Sen. Warner opened the questioning with an inquiry about the overall effectiveness of the consent order in implementing compliance. Ms. Bangert responded that the orders can be an effective tool, though they are alone inadequate to achieving improvement. Mr. Rubin added that consent orders have an inherent weakness. What is the incentive to comply if no deterrent or penalty is included? Warner concluded that is the EPA can circumvent state action, the orders don't have much value at all, and thus it comes down to a question of sovereignty. In response to Sen. Baucus' questioning, all witnesses agreed that overfiling is sometimes appropriate, though Ms. Dunlop stressed that the EPA should first consult with the states. Regarding the policy of measuring success by the number of fines and cases, Sen. Inhofe asked Mr. Coleman if this can be considered "last year's war." Coleman responded that, on the contrary, it remains an issue. When instructed by Sen. Baucus to give the enforcement partnership a grade, the state representatives responded as follows. Ms. Bangert submitted a C. Mr. Rubin submitted an A. Ms. Dunlop offered a B. Mr. Coleman submitted a B+, and Mr. Tulou graded a C.

Witnesses present for the third panel included:
Gene Harmon, Chairman of Harmon Industries (Blue Springs, MO)
Robert Kuehn, Law Professor, Tulane Law School (New Orleans, LA)
Todd Robins, Environmental Attorney, US Public Interest Research Groups

Testimony
Mr. Harmon began by characterizing his case as a good example of "the way in which conscientious regulated industries who are seeking in good faith to comply with their obligations under the environmental laws can be whipsawed by EPA's claimed 'overfiling' authority." Harmon then went on to tell the story of his company, Harmon Industries, Inc. They learned of a harmful disposal practice, immediately ordered it stopped, changed their assembly process in order to prevent the generation of hazardous waste, and reported the practice to the Missouri environmental authorities. Regulatory sanctions were imposed, but no monetary penalty was included because of the company's voluntary compliance. Then, the EPA entered the picture. After a state court ruling, the EPA continued to pursue a federal court action which has been ongoing for almost ten years and has cost Mr. Harmon a considerable amount of money.

Professor Kuehn, author of a study assessing the devolution of enforcement of federal environmental laws from federal agencies to the states, began with the assertion that the criteria of equity, efficiency, and effectiveness should be utilized to assess federal and state enforcement. He stated that dual enforcement can have significant benefits. The threat of federal involvement helps state efforts, though it is "tough to measure the efficiency and effectiveness of state action alone." Kuehn also stated that each citizen has a right to equal protection. Thus, we should maintain national standards and a strong federal presence in environmental enforcement. He concluded by encouraging both the EPA and the states to gather more information on ways to promote equity, efficiency, and effectiveness in enforcement programs.

Mr. Robins first stated the overall goal of enforcement efforts as "compliance in order to achieve environmental improvement." He added that a constructive partnership between the federal government and the states was needed to help establish a "genuine, firm, predictable" threat to potential violators. Overall, Robins was disappointed with the level of enforcement the federal-state partnership has been able to achieve. He commented that the "rates of noncompliance are persistently high," and "forty percent or our waters remain unsafe for swimming and fishing." In response to state authority complaints that the EPA presence was too strong in state affairs, Robins stated that the EPA could be and should be doing more. "Their influence, if anything, has dwindled."

Robins concluded his testimony with three specific points. First, the failure or unwillingness of states to enforce the law has encouraged widespread violations of our environmental laws. Also, the EPA is not doing enough to ensure compliance with existing laws. Finally, the approach to Clean Water Act enforcement that has been implemented in New Jersey should serve as a national model for enforcement of federal environmental statutes. This approach is "characterized by mandatory minimum penalties for serious violations, stronger citizen suit provisions, better monitoring and reporting, and adequate resources."

Questions and Answers
In response to Sen. Baucus' question about whether or not the federal government should ever step in, Mr. Harmon responded that in cases such as his own, in which a company voluntarily comes forward and initiates cleanup procedures, the federal government should not step in. Mr. Harmon also stated his understanding that the EPA actions in his case were also a surprise to the Missouri environmental authorities. His understanding was proved incorrect when it was revealed that the Missouri authorities had been contacted by the EPA, but did not inform Harmon industries. Sen. Lautenberg then addressed Mr. Robins, asking if mandatory minimums establishing penalties might serve to substitute the need for overfiling. In response, Robins stated that these mandatory minimums are an important substitute that the US PIRGs advocate. Still, they should be one of several tools, and should not be viewed as a complete substitute.

Sources: Hearing testimony, GAO website, Florida Department of Environmental Protection website, and Massachusetts Department of Environmental Protection website. 


Please send any comments or requests for information to the AGI Government Affairs Program at govt@agiweb.org.

Contributed by Jenna Minicucci and Margaret Baker, AGI Government Affairs Interns.

Last updated July 9, 1998


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