[Senate Hearing 105-173]
[From the U.S. Government Publishing Office]
S. Hrg. 105-173
ENFORCEMENT OF ENVIRONMENTAL LAWS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
on
THE RELATIONSHIP BETWEEN THE FEDERAL AND STATE GOVERNMENTS IN THE
ENFORCEMENT OF ENVIRONMENTAL LAWS
__________
JUNE 10, 1997
__________
Printed for the use of the Committee on Environment and Public Works
U.S. GOVERNMENT PRINING OFFICE
43-045 CC WASHINGTON : 1997
_______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC
20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FIFTH CONGRESS
JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire DANIEL PATRICK MOYNIHAN, New York
DIRK KEMPTHORNE, Idaho FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma HARRY REID, Nevada
CRAIG THOMAS, Wyoming BOB GRAHAM, Florida
CHRISTOPHER S. BOND, Missouri JOSEPH I. LIEBERMAN, Connecticut
TIM HUTCHINSON, Arkansas BARBARA BOXER, California
WAYNE ALLARD, Colorado RON WYDEN, Oregon
JEFF SESSIONS, Alabama
Jimmie Powell, Staff Director
J. Thomas Sliter, Minority Staff Director
(ii)
C O N T E N T S
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Page
JUNE 10, 1997
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 12
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island 1
Inhofe, James M., U.S. Senator from the State of Oklahoma........ 14
Letter, Superfund cleanup sites, Environmental Protection
Agency..................................................... 15
Letter, Response to EPA's letter on Sand Springs and Vinita
sites, ARCO................................................ 17
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 22
Articles from the Washington Post............................ 23
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama...... 24
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 10
Warner, Hon. John W., U.S. Senator from the Commonwealth of
Virginia....................................................... 26
WITNESSES
Bangert, Patricia S., Director of Legal Policy, Office of the
Attorney General for the State of Colorado..................... 34
Prepared statement........................................... 198
Coleman, Mark, Executive Director, Oklahoma Department of
Environmental Quality, on behalf of the Environment Council of
States......................................................... 29
Prepared statement........................................... 188
Dunlop, Hon. Becky Norton, Secretary of Natural Resources,
Commonwealth of Virginia....................................... 32
Prepared statement........................................... 190
Supplemental testimony....................................... 42
Harmon, Robert E., chairman, Harmon Industries, Inc.............. 52
Prepared statement........................................... 204
Herman, Hon. Steven A., Assistant Administrator, Office of
Enforcement and Compliance Assurance, U.S. Environmental
Protection Agency.............................................. 4
Prepared statement........................................... 156
Responses to additional questions from:
Senator Allard........................................... 168
Senator Baucus........................................... 174
Senator Reid............................................. 163
Kuehn, Robert R., professor, Tulane Law School, New Orleans, LA.. 53
Prepared statement........................................... 207
Robins, Todd E., attorney, U.S. Public Interest Research Group... 55
Prepared statement........................................... 218
Rubin, Hon. Joseph, Assistant Attorney General, State of
Connecticut.................................................... 39
Prepared statement........................................... 203
Response to questions from Senator Warner.................... 44
Schiffer, Hon. Lois J., Assistant Attorney General, Environmental
and Natural Resources Division, U.S. Department of Justice..... 2
Court decision, United States vs. Smithfield Foods, Inc...... 82
Policy, Penalty Mitigation for Small Business, U.S.
Department of Justice...................................... 79
Prepared statement........................................... 61
Reponses to additional questions from:
Senator Allard............................................... 72
Senator Baucus........................................... 74
Senator Chafee........................................... 72
Senator Reid............................................. 75
Tinsley, Hon. Nikki L., Acting Inspector General, U.S.
Environmental Protection Agency................................ 7
Prepared statement........................................... 186
Tulou, Christophe A.G., Secretary, Delaware Department of Natural
Resources and Environmental Control............................ 36
Prepared statement........................................... 201
ADDITIONAL MATERIAL
Articles:
Clean Water, Political Hogwash, Washington Post.............. 23
Smithfield Foods Liable for Dumping Hog Wash, Washington Post 24
Court decision, United States vs. Smithfield Foods, Inc.......... 82
Interim Policy on Penalty Mitigation for Small Business,
Department of Justice.......................................... 79
Statements:
Burr & Forman................................................ 229
Smithfield Foods, Inc........................................ 233
ENFORCEMENT OF ENVIRONMENTAL LAWS
----------
TUESDAY, JUNE 10, 1997
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:30 a.m. in room
406, Senate Dirksen Building, Hon. John H. Chafee (chairman of
the committee) presiding.
Present: Senators Chafee, Warner, Inhofe, Thomas, Sessions,
Baucus, and Lautenberg.
OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator Chafee. Good morning. As chairman of the
Environment and Public Works Committee, I'd like to welcome
everyone here to the committee's oversight hearing this morning
on the relationship between the Federal and State governments
in the enforcement of environmental laws.
A little over 4 years ago, the committee held an oversight
hearing to examine the respective roles different levels of
government should play in the implementation and enforcement of
environmental laws. That was the first hearing at which
Administrator Carol Browner testified as administrator of the
EPA.
At that hearing, she emphasized the essential role States
have to play in environmental enforcement. Since then, there
have been other reports on the need for greater cooperation and
communication between the States and EPA in implementation of
the Nation's environmental laws.
In 1995, a report from the GAO found that while the
relationship between EPA and the States was then on the
upswing, it still had plenty of room for improvement. That same
year, that was the GAO report, 1995, that same year, the
National Academy of Public Administration issued a report
calling for a redefining of the division of labor between EPA
and the States.
Among other things, the Academy recommended that States
which demonstrate superior environmental performance should be
granted greater flexibility and autonomy in carrying out
environmental programs. That recommendation, of course, leads
to the question of how to assess the level of environmental for
which a State is providing, in other words, how do you tell
whether a State is doing a good job. It's more difficult than
it seems.
That's because there's growing recognition that the more
traditional methods of assessing State enforcement, such as by
counting up the number of enforcement actions that have been
filed, or the number of penalties imposed, are not adequate.
States that are trying to attain better results in
administering environmental programs increasingly are
experimenting with more carrots and fewer sticks.
During this transition period, the challenge is to derive
new methods by which to evaluate, in a better fashion, whether
innovative approaches--those undertaken by EPA or by the
States--are working to achieve better results. To the extent
the EPA and States are working on new modes of measurement
toward this end, they're to be commended.
Now, there are several matters pending in which the EPA or
the Department of Justice has overfiled against a particular
company. So I'd like to say a word about pending actions. I
would simply remind members who will hear the witnesses as the
day goes on, that they should refrain from inquiring into
details of any pending matters. The result of this hearing
should not compromise the rights of parties to a pending
matter, or to influence the outcome of any matter.
I would note, the legitimate policy of EPA and the Justice
Department not to comment on pending matters. Their silence, or
that of any other parties, with respect to a pending matter
should not be construed as anything other than the exercise of
prudent discretion.
We have three panels today. History shows that the first
panel always gets lavish attention, the second panel gets a
little less so, and the third panel is subject to a hurry-up
because it's lunch time.
Now, I don't want that to occur. So with an attempt at
total fairness, I'm going to restrict this first panel to 35
minutes and the other panels similar thereto. So everybody will
get the same time.
The witnesses in the first panel are Ms. Lois Schiffer,
assistant attorney general, from the Department of Justice;
Steve Herman, assistant administrator for Enforcement at EPA;
and Nikki Tinsley, acting inspector general of EPA. We'll take
them in that order. Each will have 5 minutes, and then we'll
have a chance for a question. The lights will go on, you can
gauge by the lights. This means you've got a minute to go, when
the yellow goes on.
We welcome you, Ms. Schiffer, and I've had the privilege of
working with Ms. Schiffer for a good number of years. We're
glad to have you here. Go to it.
STATEMENT OF HON. LOIS J. SCHIFFER, ASSISTANT ATTORNEY GENERAL,
ENVIRONMENTAL AND NATURAL RESOURCES DIVISION, DEPARTMENT OF
JUSTICE
Ms. Schiffer. Thank you, Senator Chafee, for the
opportunity to provide this committee with information about
the environmental enforcement activities of our division.
As the Nation's Federal environmental law enforcement
officers, we are the cops on the beat to protect the quality of
our environment and the health of our communities. We carry out
our important task working closely with our partners in the EPA
and other Federal agencies, in the U.S. Attorneys' offices
throughout the country, and with State Attorneys General and
State environmental agencies. Today I will discuss the
importance of a strong and effective enforcement program
nationwide, and how we have worked to enhance cooperative
efforts with the States.
First, the importance of strong and effective enforcement:
we handle cases referred to us from other Federal agencies
including EPA, the FBI, the Coast Guard, and the Corps of
Engineers. We bring criminal prosecutions and civil court
enforcement actions to protect the environment, to remedy
environmental harm, to punish wrongdoers, and to deter future
violations. We support citizen suits as an important
enforcement tool. Without vigorous enforcement, the health of
our families, our community, our environment, and our economy,
would all be compromised.
Environmental enforcement protects the economy in several
ways. First, clean air, water and land are essential
ingredients for a healthy economy. Pollution decreases land
value and imposes serious health care costs and harms
industries, such as fishing, tourism and recreation. Second,
companies that fail to comply with our environmental laws put
law abiding businesses at a competitive disadvantage. A strong
enforcement program with penalties that recapture economic
benefit and more to deter the violator is essential to fair and
honest competition.
Environmental protection statutes promote and encourage
voluntary environmental compliance, and vigorous enforcement
drives such compliance. People comply with laws in part
because, if they do not, they will get caught and sanctioned.
As William Reilly, the Administrator of EPA between 1989 and
1993, stated while at EPA, ``Enforcement of environmental laws
is absolutely essential,'' and ``is at the very heart of the
integrity and commitment of our regulatory programs.''
Environmental violations have real victims. Polluting an
underground drinking water supply can threaten thousands of
people. An oil spill that damages an entire ecosystem such as
the Exxon Valdez spill in Alaska, may undermine the economic
foundation of surrounding communities. This division's job is
to ensure that the laws Congress has enacted to prevent such
harms are respected and obeyed, so that these harms do not
occur. This is a law and order program in a critical area. The
American public repeatedly has made clear that it wants and
expects environmental protection and strong enforcement.
Our environmental laws provide national minimum standards
so that people all over the country have a level of
environmental protection and health. These standards are
particularly important to assure that States do not seek to
attract industry by bidding for business through lower levels
of environmental protection, and to protect all our citizens,
because our Nation's air and water and contamination from our
land can easily travel across State borders. State enforcement
of environmental laws must be viewed in this context.
Third, cooperation with States: what steps have we
undertaken to promote cooperation with State and local
authorities? I'll mention eight.
First, several years ago, I appointed a counsel for State
and local government affairs to act as a liaison and to assure
better cooperation and communication with the States.
Second, we file and handle cases jointly with States. For
example, today we are commencing a joint trial with the State
of Ohio against a company that, for more than a decade, has
exceed air emissions limits on particulates in operation of its
boiler.
We work with Law Enforcement Coordinating Committees and
task forces organized through a number of U.S. Attorneys'
offices to use Federal, State, and local investigative and
prosecutive resources most efficiently to fight environmental
crime.
Fourth, we have a policy that our civil enforcers notify a
State in advance of filing a suit in that State, absent
exceptional circumstances, and invite the State's participation
or cooperation in the action.
Fifth, we participate in a senior forum with State
attorneys general, State environmental commissioners, tribal
representatives, EPA's Steve Herman and me, to discuss
environmental enforcement and compliance issues. Mark Coleman,
on a panel later today, is a member of the forum. We meet
regularly, and the meetings are productive.
Sixth, we work with State officials to train State and
local prosecutors, investigators, and technical personnel in
the development of environmental crimes cases.
Seventh, I meet often with State attorneys general, keep an
open door and an open phone to their concerns and problems, and
generally provide access and cooperation to discuss and address
their concerns regarding cases, including enforcement.
Finally, we have worked to improve and solidify our
relationship with the 94 U.S. Attorneys' offices across the
country, which in turn have ongoing coordination with State and
local agencies.
In conclusion, these steps help assure that we are using
our enforcement resources in coordination with States to
achieve effective environmental results. At the same time, we
must assure that in those States where enforcement is not
sufficiently vigorous--where the State does not obtain
effective protection through injunctions, does not obtain
penalties that recover economic benefit to assure a level
playing field, and does not obtain penalties with a gravity
component to assure deterrence--the Federal Government brings
enforcement actions. A recent example is the Smithfield case in
Virginia, which I'll talk about in the questions and answers,
since I can see I'm out of time.
Again, thank you for this opportunity to describe our
program as the Nation's environmental enforcement officers and
the ways we work with the States to carry out this important
mission. I welcome the opportunity to answer your questions.
Senator Chafee. Thank you, Ms. Schiffer. We'll finish the
panel and then have questions for all the members of the panel.
Mr. Herman, who is assistant administrator for enforcement
at EPA. Glad to see you, Mr. Herman. Go to it.
STATEMENT OF HON. STEVEN A. HERMAN, ASSISTANT ADMINISTRATOR,
OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE, ENVIRONMENTAL
PROTECTION AGENCY
Mr. Herman. Thank you, Mr. Chairman. It's an honor to be
here this morning, and thank you for the opportunity to testify
about how EPA is working to protect public health and the
environment through a strong and vigorous enforcement and
compliance program.
I would like to make three points in my testimony this
morning. First, the environmental laws this committee has
approved and the Congress has enacted are not worth much
without a strong Federal enforcement program in which both EPA
and the States do their part.
Second, our enforcement and compliance program is balanced
and flexible. We have cut penalties that encourage
environmental auditing and obtained better environmental
results through settlements. Our compliance assistance services
to industry have won praise from trade associations and a
silver hammer award for their contribution to reinvention.
These efforts co-exist with and are supported by a strong,
aggressive and effective law enforcement program.
Third, we can and should give States more flexibility in
their management of Federal programs. But Federal environmental
law also requires States to assume certain responsibilities for
both enforcement and public accountability.
Congress has authorized us to enforce environmental law. It
is our responsibility to exercise that authority wisely but
firmly, without fear or favor. As with any other law, the
public, including responsible companies, expects that we will
sanction those who violate the environmental laws we are all
required to comply with.
Enforcement accomplishes three critical goals. First, it
protects public health and the environment by assuring a speedy
return to compliance, the elimination or prevention of
pollution, and cleanup of environmental damage. Last year,
polluters spent almost $1.5 billion correcting violations,
cleaning up hazardous waste sites, and taking steps to improve
the environment and prevent future problems.
Our settlements cut pollutant loading substantially,
reducing nearly 200 million pounds of carbon monoxide, 16.6
million pounds of lead, and 7.7 million pounds of asbestos.
Second, it seeks to ensure fairness to the regulated
community by ensuring that those who violate the law do not
profit at the expense of those who comply. Penalties for
serious non-compliance keep the playing field level. As the
General Accounting Office pointed out in a 1996 report, which
found that ``penalties play a key role in environmental
enforcement by deterring violators and by ensuring that
regulated entities are treated fairly and consistently, so that
no one gains a competitive advantage by violating environmental
law.''
Finally, it is universally accepted that the threat of
enforcement sanctions does deter violations and encourages
responsible self-policing. Ninety-six percent of respondents to
a 1995 Price Waterhouse survey identified fear of inspections
as a primary motivator for environmental auditing. Perhaps more
surprising, enforcement pressure was cited as one of the most
important drivers of pollution prevention among both large and
small businesses in a 1996 study, sponsored by EPA.
A meaningful enforcement program, therefore, not only
punishes, but also prevents harm. These are the reasons why we
think it is essential for the Federal Government to maintain a
vigorous and aggressive enforcement presence, and why we are
committed to doing so.
However, those who believe EPA's enforcement is solely
preoccupied with counting of penalty dollars are fighting law
year's war. We are proud of our innovations which fuse
compliance assistance, auditing incentives and more traditional
enforcement into a dynamic enforcement and compliance assurance
program.
Let me give you four examples. First, we have established
national compliance service centers to provide plain English
assistance to printers, auto service stations, agricultural
businesses and metal finishers. These centers are managed in
partnership with trade associations and have earned a silver
hammer award from the Vice President's National Performance
Review.
Second, we have slashed and in most cases eliminated
penalties for companies that audit and promptly disclose and
correct violations. More than 150 companies and 400 facilities
have disclosed violations already under this program. We've
done this in the sunshine, without privileges for polluters,
without indiscriminate amnesties, and without tying the hands
of law enforcement officials.
Third, it is our policy to reduce penalties for companies
that agree to innovative environmental projects as part of
their settlement for non-compliance. These efforts have yielded
more than $100 million in environmental projects that benefit
local communities in fiscal year 1995.
And last but not least, we are working hard to tie all
these efforts together by launching a national effort, and this
addresses the point that you made, Mr. Chairman, that will
culminate this fall to develop new measures of enforcement and
compliance success. We are including the States, trade
associations, industry and public interest groups in this
effort. This is really a ``put-up'' or ``shut-up'' time for
everybody to come forward with their ideas on the best ways to
measure our success in this program, and for measuring
compliance also.
Let me just conclude with a couple of words about the State
partnership, since my time has expired. We share responsibility
for environmental enforcement under the law. While that
partnership, the State-Federal partnership is challenging, we
believe joint jurisdiction is fundamentally sound and serves
the public well. States conduct the lion's share of
inspections, and are essential to maintaining an enforcement
presence.
The Federal Government is needed where States lack
authority, problems that transcend State boundaries or are
particularly complex, and to discourage forum shopping by
irresponsible companies, and to maintain level playing fields
across the Nation.
We have taken a more flexible approach to our national
environmental performance partnership grants and our
performance partnership agreements, which we are working
through. Occasional conflicts should not obscure the fact that
our day-to-day working relationships with States on almost all
matters is generally very good.
Federal law does establish certain responsibilities for
States that manage Federal programs, just as they do for EPA.
First, under Federal statutes and regulations, States must have
the authority to enforce the requirements of any Federal
programs it administers. This includes the ability to obtain--
--
Senator Chafee. Now, Mr. Herman, in keeping with my stern
injunction as we opened, we're going to have to wind up here.
Mr. Herman. I will conclude, then, and incorporate the rest
of my information into answers to questions.
But I would say, though, Mr. Chairman, and I apologize for
going over my time limit, is that in all partnerships, EPA and
the States may have diverse views on issues. In fact, many
States have diverse views. We need each other, we have to work
together, and I think we are in fact trying to overcome these
problems. Where there is a philosophical difference, figure out
how we overcome that and do our job for the American public.
We are continuing to do that and will continue to do that.
Senator Chafee. Fine. Thank you very much.
Ms. Nikki Tinsley, Acting Inspector General of the EPA. We
welcome you here.
STATEMENT OF HON. NIKKI L. TINSLEY, ACTING INSPECTOR GENERAL,
ENVIRONMENTAL PROTECTION AGENCY
Ms. Tinsley. Thank you. Good morning, Mr. Chairman and
members of the committee.
I'm pleased to have the opportunity to discuss independent
audits conducted by the Office of Inspector General dealing
with issues related to environmental enforcement. EPA is
working in partnership with States and sometimes local agencies
to achieve environmental goals. I will discuss three aspects of
a partnership that are essential if it is to work well.
First, mutually agreed-upon enforcement approaches. Second,
clear agreement on responsibilities. And third, complete and
accurate reporting of environmental data. I'll discuss these
areas in light of our recent audits in the air and hazardous
waste programs.
One generally accepted enforcement approach is that of
escalating enforcement actions for repeat violations. A
violator may initially be required to comply with an
administrative order or be assessed a relatively small monetary
penalty. If these actions don't bring about compliance, the
violator could face civil or criminal judicial actions and
progressively higher penalties.
We found numerous instances where this progressive
enforcement approach was not employed. For example, during a 2-
year period, a California glass manufacturing company was fined
$1,000 18 times for excess particulate matter emissions. The
fines were not increased, and the company did not move into
compliance.
The second enforcement approach is that penalties should be
large enough to negate any economic benefits of noncompliance.
EPA regions we reviewed generally included an economic benefit
component in their penalty assessment. But States generally did
not. When economic benefits are not consistently calculated and
collected, violators gain an economic advantage over those who
comply with the law.
A third enforcement approach is that in order to be fair,
penalties must be consistent relative to the seriousness of the
violation. We found a great variance when we compared EPA and
State penalties and when we compared penalties between States.
For example, penalties assessed against hazardous waste
violators in a sample of 13 States varied from an average of
about $7,000 in Maryland to almost $60,000 in Texas.
Inconsistencies in enforcement can result in varied levels
of environmental protection that put public health and the
environment at risk. The inconsistencies we identified were
caused by factors such as limited State and local resources,
State and local concerns that large penalties would result in
industry relocating, and State and local preferences for
different enforcement approaches.
For a partnership between EPA and a State agency to be
successful, there must be common agreement about the activities
each will perform. Our audits showed that EPA and the States
frequently did not agree on program requirements. To
illustrate, I'll discuss our audit of EPA and the Pennsylvania
Air Enforcement program.
EPA expected Pennsylvania to report significant violators
that it identified during inspections. In comparison to EPA,
the State placed less emphasis on reporting violators. While
Pennsylvania performed 2,000 inspections at major facilities in
fiscal year 1995, it reported only 6 significant violators to
EPA. We reviewed 270 of the inspections and identified 64
additional facilities that should have been reported.
Not reporting allowed the State to work with violators to
achieve compliance without EPA involvement. Unfortunately,
achieving compliance sometimes took years, during which the
violators were emitting excessive pollution into the
atmosphere. Because EPA was unaware of these violations, it was
not able to exercise appropriate oversight.
Accurate and complete enforcement data is vital so that we
as a Nation can judge the extent that industry complies with
environmental laws, and so that States and EPA can target areas
for increased enforcement. We found major omissions and
inaccuracies in both the air and hazardous waste enforcement
data systems. The Pennsylvania example I just described
illustrates a data emission problem, along with the problem of
EPA and the State not agreeing on responsibilities.
I've discussed three elements we believe are necessary for
effective partnerships between EPA and the States. First, when
voluntary compliance cannot be achieved, partners must agree on
an enforcement approach that includes escalating penalties and
considers economic benefit and the seriousness of the
violations. Second, all partners must understand and accept
their responsibilities. And third, data systems must contain
complete, accurate and timely information on enforcement
activities.
That concludes my remarks, and I'd be happy to answer
questions.
Senator Chafee. Thank you very much, Ms. Tinsley.
I must say, I'm sympathetic to the problems you face. It's
not easy.
First of all, we've got to consider that each State
obviously supports the industries within its borders, and
doesn't want to come down too hard on these industries. At the
same time, if they do levy a fine, one of the problems that
constantly comes up is, is the fine really fair and does it
make up for the advantage that that company had over an out-of-
State competitor who was abiding with the rules the whole time,
while enduring any extra costs that go with it.
In other words, did the offender get a competitive
advantage that produced profits.
I don't understand the case you cited--that 18 times in a
row the California company was only fined $1,000.
One of the things you mentioned, Mr. Herman, was
experimentation--maybe have the States be laboratories for the
enforcement of environmental laws. How do you do that, when
there's the chill of the Federal Government coming in and
overfiling, coming in on top?
Mr. Herman. I think, Senator, there's a couple of parts to
it. I think it is very important for the States to have the
opportunity to experiment, to try different approaches, to gear
approaches to the situations in their own States. I think
that's part of the framework that Congress in its wisdom has
established.
In doing that, however, there are certain minimum standards
which are in the Federal statutes, and which have to be
maintained to guarantee that citizens all over the country have
a minimum level of protection. So any experimentation has to go
on within certain boundaries.
With regard to overfiling, in fact, we recognize that
overfiling is something of an extraordinary action to take.
Senator Chafee. How many times do you think you overfile a
year?
Mr. Herman. Last year, we had four overfiles.
Senator Chafee. In other words, you came in on top of--a
State court action was proceeding, and you came in on top of
that in the Federal Court?
Mr. Herman. That's correct. It's a little more interesting
than that, actually. The State action is finished. My
understanding is that in two of those four cases, we actually
were invited in because the State was not able to get adequate
relief from their statutes.
But in the previous 2 years, there were 15 overfiles.
Again----
Senator Chafee. Per year?
Mr. Herman. No, total. Prior to that, there was an ECOS
study which ECOS commissioned among the States, which showed
that the States basically were not overrun by overfiles. We
used that enforcement tool only when the result that the State
got was insufficient or was not taken in timely fashion, where
statute of limitations was going to run out, or the relief they
got was insufficient. Recently, you may have read about a
fairly extraordinarily overfiling case, which I'll----
Senator Chafee. Why don't you touch on that briefly.
Mr. Herman. That was the Smithfield Ham case, in Virginia.
There were thousands of violations--horrible discharges into
the water. The State was willing to settle for a very modest
amount. EPA overfiled. We were challenged in Federal Court.
Last week, a Federal district judge in a 75-page opinion upheld
us on all points. Now the only issue is the amount of the
penalty. All of the overfiling cases really have been where
there's been gross disparity in the relief that is sought.
Senator Chafee. Let me just briefly ask a question of Ms.
Schiffer. I was interested, Mr. Coleman, who's coming up in the
next panel, is chairman of a council you have. Is he with the
Attorney General in some State?
Ms. Schiffer. He's head of the environment agency in the
State of Oklahoma.
Senator Chafee. OK. Well, he must be all right.
[Laughter.]
Senator Chafee. So, this group, this Environmental Council
of States, is what--an organization of the enforcement people
from the States?
Ms. Schiffer. I want to separate out two different groups.
Mr. Coleman has been chair of something called ECOS, which is
the acronym for the Environmental Council of the States. Mr.
Herman can probably better address the operation and Mr.
Coleman's role in ECOS.
We also have an informal group of people who are primarily
enforcers, Federal and State. This group includes State
attorneys general, and personnel from the Justice Department,
and U.S. Attorneys' Offices.
Senator Chafee. So you're a member of that group?
Ms. Schiffer. I'm a member of that group.
Senator Chafee. And they come to what, advise you on
whether these overfilings are creating chaos?
Ms. Schiffer. No. It's a group that's designed to just
discuss issues that arise in enforcement. It's very informal
and we discuss a range of issues on and off the record. It is
an informal way to help us all be better enforcers.
Of course, one of the issues that we do discuss is
overfilings. And I'd like to underscore what Mr. Herman has
said, about the fact that they are few in number, the
Smithfield case that Mr. Herman mentioned being a very good
example of an overfiling where a company was discharging----
Senator Chafee. Well, I don't want to get into details of
that.
Senator Thomas.
OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
STATE OF WYOMING
Senator Thomas. Thank you, sir.
It seemed to me part of your message was that the rules
need to be enforced. I don't think anybody objects to that
idea. The question is, how do we best work with the local and
State governments. Now, frankly, I wouldn't have guessed that
was the topic from your conversations. You talked about what
you needed to do and so on.
What do you think about moving more of the activities to
the States on the premise that they are closer to it and can
indeed do it better within the framework of the Federal
legislation? I didn't think you talked much about that. Aren't
we seeking to try and involve the State more? I got the
impression you think things are great the way they are.
Mr. Herman. I think on many fronts, Senator, we are trying
to do more. There are several things that have to be looked at,
which I think most of the States would agree with. What are the
States' capabilities in different areas. Some States, there's a
wide range of capability among the States, as everywhere.
Different States have different strengths and different
interests.
Where States can handle more, they are in fact handling
more. And we see it all the time. States do most of the
enforcement in our area, so I'll address enforcement. The
overwhelming number of enforcement actions are taken by States
in the country. In our criminal enforcement programs, a great
portion of our resources and time are spent building capacity
among State officials. The response of State, local sheriffs
and district attorneys has been overwhelming--they want to get
the resources and the support we provide.
Senator Thomas. One of the difficulties with hearings,
generally, is that you are the first panel and then by the time
the other witnesses come, you may be gone. I think one of the
future witnesses will say the crisis of environmental
enforcement is now. Do you agree with that?
Mr. Herman. I don't know what that means.
Senator Thomas. Well, it means that there's a crisis in
environmental enforcement.
Mr. Herman. I think it's critical that we have strong----
Senator Thomas. No, that's not what it means. It means
there's a crisis in getting the job done, I believe.
Mr. Herman. I don't know if there's a crisis in getting the
job done. I think some people question whether we should do it.
Senator Thomas. No, this person will not question that, I
am sure. I think he's saying it isn't being done properly.
Ms. Schiffer. Senator Thomas, I believe that all of us feel
that we are working very hard to assure that companies and
people in America comply with our environmental laws, and that
enforcement is a very important and effective tool to helping
move that along.
We are working cooperatively with States, but it really
needs to be done in a combination with Federal and State
enforcement in order to be effective. It is true that resources
have been cut back with both some State agencies and all of us
in the Federal Government are operating under some limited
resources now. So that we don't always have complete resources
to do the very most enforcement that we would like to.
But I think in terms of a crisis of environmental
enforcement, what we have is many companies who will at least
in private tell you that it is important that we enforce so
that the companies that are stepping up to the plate and doing
a good job aren't at a competitive disadvantage vis-a-vis
companies that are not taking care of their pollution control
obligations.
Senator Thomas. These are folks who will say something
later, when you all don't have a chance to respond. This one, I
paraphrase, says, I think there is no EPA-State partnership in
some areas. EPA's perspective seems to be they own the ranch
and we're the hired hands. How do you respond to that?
Mr. Herman. My perspective is very different. We have
reached out more toward the States than any other prior
administration. We have brought the States into the planning of
enforcement, trying to incorporate State and Federal priorities
in all our regions.
We are dealing with some philosophical problems that we
have to work through. So though I think there are problems, I
also am absolutely confident that we are working them through.
We have had some serious problems, as you know, with regard to
the question of State audit laws. We have been negotiating and
talking to States, we've reached agreements with States like
Texas, Utah, Michigan and others, in terms of how we proceed,
even though there is some disagreement.
We are doing the training of local people. We are trying to
negotiate performance partnership agreements, specifically with
regard to enforcement. Administrator Browner and Deputy
Administrator Hanson are both former commissioners. They both
welcome meeting with the commissioners and have had some very
serious talks. I think we're going through some periods of
major changes and looking at new ways of doing things.
I think as we do them, you don't get instant agreement.
These are very, very tough problems and they're tough issues in
terms of balancing different interests and different
approaches. There are people who see the light and know the
absolute right way to go. I think it's much more complicated
than that, and that's what we have to have patience to work
through with each other.
Senator Thomas. Thank you.
Senator Chafee. Senator Baucus.
OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE
STATE OF MONTANA
Senator Baucus. Thank you, Chairman.
One of the questions that concerns me is letting States and
companies know generally when and under what circumstances the
Federal Government will overfile. That is, even though the
State is proceeding at one level or another, that EPA, the
Federal Government believes that the State enforcement action
is inadequate.
It seems to me it would be helpful if there's a general
understanding as to how the Federal Government decides to step
in, and under what circumstances and when, etc., so that
everyone tends to know when that might or might not happen.
So how do you decide when to step in? What are the rules
and what are the guidelines? How well publicized are they, how
well known are they? Are they agreed upon? Do they vary
significantly so people don't know what the rules, standards,
guidelines are? I'd like you to discuss that, please.
Mr. Herman. I'll start. Good morning, Senator Baucus.
There are guidelines. We have guidance called timely and
appropriate guidance, which sets out sort of the reasonable
amount of time within which an action should be brought and
guidelines for penalties that should be given.
Senator Baucus. And these are well known?
Mr. Herman. They should be, yes. They've been out there for
quite some time. And I think if you ask the State
representatives that are going to testify after me, and I
believe they were worked through with them in the late 1980's.
But let me say two other things. One is, in every case as
far as I know that we overfile, we talk to the State first. We
try not to have a surprise. We try and tell them what exactly
is our problem with what they're doing. And they will tell us
why they think you shouldn't have a problem, or what the
situation is, why what they're doing is fair.
Second, or third, the problem of overfiling, I think it's a
small blip when you look at the numbers of actions that are
taken by both the Federal Government and all of the States. The
percentage of overfiles is absolutely infinitesimal. Last year,
there were four. In 1994 and 1995, there were 15.
Prior to that, according to an ECOS survey, it was under 30
for several years. It's just not a large universe.
Now, we realize the seriousness of it. And as I said prior
to your coming in, in some cases that I've mentioned, the
States have actually asked us to come in, because they weren't
able to get adequate relief under their laws.
But both Ms. Schiffer and I are firm believers in giving
the States advance notice, trying to talk to them about it.
Certainly if there's time, engaging in some serious discussions
about whether we have to do it, do they want to join us, do
they want to change course.
Senator Baucus. Ms. Schiffer.
Ms. Schiffer. Thank you, Senator Baucus.
I think the Smithfield case, which was ruled on last week
by the district court in Virginia, is a very instructive
example. There we had a company that was discharging wastewater
from its meat packing operations into a tributary of the
Chesapeake Bay over 5 years in complete violation of its permit
limits. Its wastes included cyanide, excess nitrogen, and a
variety of other extremely harmful things, including fecal
coliform.
We talked to the State of Virginia about enforcement. The
State of Virginia really took no real enforcement action. Then
we notified the State of Virginia that we were going to file an
enforcement action against this extremely serious violator, and
3 days later, without telling us, the State of Virginia filed a
case in court asking for what were relatively modest penalties
in the face of these enormous violations.
In fact, the court ruled last week that the Government's
case was justified, and that there were serious violations
here. The penalty issue has been deferred. The court also ruled
that Virginia's program, which it may consider an example of
experimentation, did not have adequate opportunity for public
participation and had an administrative penalty system where
someone could be assessed a penalty only if they agreed to it.
The administrative process couldn't impose a penalty on people.
So the court said the State program was therefore not
comparable to a Federal program, and actions taken by the State
weren't going to get in the way of Federal action. That's an
example of where we had what I think of as the three things. We
needed serious injunctive relief here, so that the environment
wouldn't be harmed any more. We needed a serious penalty that
recovered economic benefit. That is what the company----
Senator Chafee. I tell you what. We just can't explore each
of these cases by themselves.
Senator Baucus. I want her to give us just a one sentence
summary of it, which she's doing right now.
Senator Chafee. Well, let's hear that one sentence, not too
many commas in it.
[Laughter.]
Ms. Schiffer. I'll try. The penalty needs to be high enough
to deter, so that a company doesn't think it can come in and
wait until it's caught by a Government authority and then pay
what it would have had to pay in the first instance.
Senator Chafee. That's a great sentence.
Senator Baucus. Thank you, Chairman.
[The prepared statement of Senator Baucus follows:]
Prepared Statement of Hon. Max Baucus, U.S. Senator from the State of
Montana
Thank you, Mr. Chairman. I'll cut right to the chase.
Twenty-five years ago, this committee made a profound decision. It
established national standards for clean water, clean air, and other
forms of environmental protection.
And measured by the improvements we see in our air and water, this
policy has been a huge success.
But unless national environmental standards are backed up by a
national enforcement policy, it's national in name only. Compliance can
vary widely. And companies that play by the rules will be placed at a
competitive disadvantage compared to companies in other states that
break the law and get away with it.
So I believe that it is critically important to maintain a strong
Federal enforcement backstop.
That said, we have to remember that our objective is not
enforcement for it's own sake. Our objective is compliance to improve
the environment.
So I remain interested in further steps that we can take to help
companies understand and comply with the law, especially small
businesses that can't afford lawyers, consultants, and audits.
I also am interested in trying to improve the balance between
Federal and State compliance efforts, so that we focus our resources
and use them as efficiently and effectively as possible.
It looks like we have good, balanced panels of witnesses and I look
forward to hearing from them.
Senator Chafee. Senator Inhofe.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Senator Chafee. I was just a
couple of minutes late, so I didn't get a chance to do an
opening statement. So I'd like to submit at the beginning of
this meeting my written statement into the record.
Senator Chafee. Let me just say, somewhere in here when I
started, we're under somewhat of a time constraint. And as I
mentioned, the first panel always gets a preferential amount of
time, and so I want to make sure that each panel gets----
Senator Inhofe. I'll stay within my time. But I'd like to
have that statement in the record, and also the two letters
that I referred to in my statement entered in the record
entered at the appropriate place.
Senator Chafee. Without objection, so ordered.
[The prepared statement of Senator Inhofe follows:]
Prepared Statement of Hon. James M. Inhofe, U.S. Senator from the State
of Oklahoma
Mr. Chairman, thank you for calling today's hearing on the
relationship between the Federal and State governments in the
enforcement of environmental laws. This is a very important area and I
am glad we are having this hearing today.
As the chairman of the Clean Air and Wetlands Subcommittee, I will
be looking at the enforcement of these programs very carefully in the
months to come. I am particularly concerned about the enforcement of
several of the Clean Air regulations particularly the new ``Credible
Evidence Rule,'' the planned enforcement activities for the ``enhanced
monitoring rule,'' and the manner in which the EPA has been threatening
to cutoff highway funds to the States. But these are issues I prefer to
address in separate Clean Air hearings or in the ISTEA reauthorization
process.
Today, I think it is important to address the overall enforcement
program of the Federal Government. I have two main concerns that reach
across all environmental laws.
(1) The States are in the best position to enforce the
environmental laws and regulations.
The EPA should be limited to an oversight role for consistency only
and for providing advice to the States. They should not be in the
business of second guessing States or playing the big bully on the
block. I realize that the majority of enforcement actions are taken by
States, but we are now 25 years into our Nation's environmental
programs and the States should take an even greater role. It is time
for us to acknowledge that the States can and should take a greater
role in environmental programs, and enforcement issues are an excellent
example. The States can often accomplish activities in a more efficient
manner.
I would like to highlight one example. While this is not an
enforcement case, it is a Superfund cleanup case that I mentioned at
our last Superfund hearing. It shows that the States are better
equipped to clean up sites faster and more efficiently than the Federal
Government, which in turn provides for a cleaner environment.
The example was two refinery waste sites in Oklahoma, Sand Springs
and Vinita. Both are owned by the same company. The clean up at Vinita
was directed by the State of Oklahoma, it cost almost one third as much
as the Federal site per cubic yard of waste ($92 verses $262 per cubic
yard) and only took 3 years verses 11 years at the Federal site in Sand
Springs.
After I used this example, the EPA responded with a letter to
members of the Committee explaining how I was wrong. I would like to
offer the EPA letter as well as a response by the company into the
record. As you can see by these letters, the EPA missed my point.
Comparing the cost of cubic yard to cubic yard for the same waste, the
State site was faster and cheaper. My point then, as it is today, is
that there are some activities the States do more efficiently which
should be left to the States.
(2) We should get away from enforcement action bean-counting.
I would like to hear some suggestions today on how to get away from
enforcement bean counting. Imposing large fines on someone for failure
to file a form properly does not help anyone including the environment,
except as another notch on the belt of the inspector. We need to change
the climate on enforcement-bean counting. I'm sure some of you will say
it is changing or it has changed; but I disagree. The well-publicized
news reports last fall about the Department of Justice complaining that
the EPA had not referred enough cases in 1996 is proof that it is the
quantity of cases that counts, not the quality. While this may very
well be a result of Congressional budget influences, we need to get
away from this.
If the Agency works out a program for the States to provide
assistance to the regulated community to ensure compliance with the
environmental laws, and quits measuring success by the number of cases
filed, fines collected, or people jailed; then our environment will be
protected and I will be the first to defend the Agency here in
Congress.
I am glad to see Mark Coleman from Oklahoma here today, I welcome
his testimony and that of the other witnesses.
______
U.S. Environmental Protection Agency,
Washington, DC, March 12, 1997.
Hon. James M. Inhofe,
U.S. Senate, Washington, DC.
Dear Senator Inhofe: At the March 5, 1997 Senate Environment and
Public Works Subcommittee on Superfund, Waste Control and Risk
Assessment Oversight Hearing on S. 8, the Superfund Cleanup
Acceleration Act of 1997, you raised a comparison of ARCO's cleanup
costs and timeframes for two Oklahoma sites in your opening remarks.
The Administrator promised we would follow up with you on this example.
As outlined below, it is quite clear that these two sites are in no
way comparable other than the fact they are both in Oklahoma and are
currently owned by the same corporation. The Agency is very concerned
that ``old horror stories'' and the way the program was operated prior
to 1993 continue to dominate the Superfund debate. The Superfund
program is fundamentally different today--a point the Administrator
emphasized at the hearing. To that end, we are pleased that you have
given us the opportunity to demonstrate that not all sites are the same
and that States tend to undertake the cleanup only at lesser
contaminated sites. We have also included an example of how our
Superfund Administrative Improvements have impacted Oklahoma--which we
hope you will factor into any discussions of Superfund Reauthorization.
comparison of cleanups at sand springs and vinita, ok
Site Comparison
While both of these sites are former Sinclair refineries, several
differences exist that prevent a credible direct comparison of cleanup
costs and timeframes between the two sites. The Sand Springs site was
judged much more of a threat to public health and the environment and
was listed on the NPL. The Vinita site was evaluated by EPA and
referred to the State for action because it presented little health
risk. Key differences include the following:
Volume of Waste Cleaned Up--The Sand Springs cleanup addressed
nearly three-and-one-half times the volume of waste at Vinita.
Complexity of Wastes--After closing as a refinery, the Sand Springs
site was used by several other industries, including a chemical
recycler, resulting in a significant degree of contamination from
chlorinated solvents and other chlorinated hydrocarbons at the site. As
a result, 5000 cubic yards of Sand Springs waste had to be shipped
offsite to a commercial hazardous waste incinerator. In contrast, the
Vinita site contained refinery wastes only, which are much less
expensive to remediate than chlorinated wastes.
Proximity to Population--The Sand Springs site is located in a
populated area, adjacent to businesses, near to residences, and
adjacent to the Arkansas River, which is heavily used for recreational
purposes. Approximately 300 people work on, or adjacent to, the site.
There are four schools, a hospital, an orphanage, and numerous
restaurants within a mile of the Sand Springs site. The Vinita site is
in a relatively remote area, nearly two miles from the town of Vinita.
Ground Water Use--Ground water is used within one-half mile of the
Sand Springs site. There are no water wells within four miles of the
Vinita site.
Air Emissions Safeguards--Due to the proximity of population and
the chemical composition of the wastes, there was a major concern with
controlling air emissions at Sand Springs. For example, there was a
documented incident which indicated the presence of hydrofluoric acid
gases within the sludge pits. Prior to EPA involvement, earthwork
activities by the city of Sand Springs to construct a storm water
retention basin adjacent to the sludge pits caused a significant
release of gases which required the hospitalization of workers and the
evacuation of nearby businesses. Due to this potential for an off-site
release of air contaminants, EPA took extra precautions to protect the
health and welfare of surrounding businesses and residents, including
the Sand Springs Home for Orphans. EPA required extreme care to be
taken during excavation activities, including emission controls and
extensive air monitoring. Although expensive and time consuming, these
protective measures were necessary to ensure the safety of the
community. The more remote Vinita site, without the complications posed
by chemical plant wastes, did not require this degree of protection .
Priority of Site--Due to the types of waste present, the proximity
to population, and the sensitivity of ground water, the Sand Springs
site ranked for NPL listing under the HRS, while the Vinita site fell
far short.
Protectiveness of Disposal Cell--The Sand Springs site used a RCRA-
caliber vault for disposal of the stabilized waste, whereas a simple
clay-lined cell was used at Vinita.
Design Costs--Due to uncertainties as to whether the stabilization
process would work effectively on the Sand Springs wastes within
allowable air emission levels, ARCO proceeded with design of an
incineration system so that they would have a fall-back treatment
technology ready in case the stabilization did not work. This added
significantly to ARCO's design costs at Sand Springs but was not a
factor at Vinita. Furthermore, ARCO was able to utilize its extensive
(and costly) initial stabilization process studies from Sand Springs to
shortcut the design process at Vinita.
The following matrix compares some characteristics of the two
sites:
------------------------------------------------------------------------
Factor Vinita Sand Springs
------------------------------------------------------------------------
Size of site.................... 177 acres......... 200
Volume of waste................. 62,000 cu yds..... 213,000 cu yds
Volume of Chlorinated 0................. 5,000 cu yds
Hydrocarbons.
Population within 4 miles....... 6,582............. 15,000
Distance to nearest water well.. >4 miles.......... <\1/2\ miles
HRS Score....................... 0.94 (prescore)... 28.86
Drums of hazardous materials 0................. 400
removed.
------------------------------------------------------------------------
Sand Springs Touted as Ahead of Schedule and Under Budget
The Sand Springs remediation (construction) actually began in 1992
(not 1985) and took 4 years to complete. At an August 29, 1995 ribbon-
cutting to celebrate completion of construction, ARCO stated that the
remedy had been completed 1 year ahead of the Consent Decree schedule
and $10 million under budget.
Impact of Administrative Reforms
In addition to the differences above, it must also be pointed out
that the Sand Springs cleanup was conducted prior to the Superfund
Administrative reforms. A much better example of how EPA is currently
addressing the cleanup of abandoned refineries is the Fourth Street
site in Oklahoma City. The Fourth Street site utilized on-site
stabilization/solidification, neutralization, and off-site disposal as
the remedy. The waste at the site was an acidic sludge containing high
levels of lead. The remediation of approximately 43,000 cubic yards of
sludge was completed on schedule, under budget, and with no lost time
accidents, at a total cost of just under $5 million. The volume and
type of waste addressed make Fourth Street a much more credible point
of comparison to the Vinita site, even though Fourth Street is in a
much more populated area.
I hope that this clarifies the differences between the sites. If
you have any additional comments or questions please contact Kevin
Matthews (202-260-5188) in my office or Ed Curran (214-665-2172) at our
Regional Office in Dallas.
Sincerely,
Robert W. Hickmott,
Associate Administrator.
__________
ARCO,
Los Angeles, CA 90071, April 2, 1997.
Hon. James M. Inhofe,
U.S. Senate, Washington, DC.
Dear Senator Inhofe: Several weeks ago, you were kind enough to
forward to us a letter from EPA which responded to a comparison we had
discussed with you earlier of costs at two ARCO managed Oklahoma
remediation sites, Vinita and Sand Springs. The attached paper responds
to the EPA assertions in that letter.
As you will see, we feel that the substantial differences in per
cubic yard remediation costs at the two sites--$92 at Vinita, $263 at
Sand Springs--must be laid principally at the door of the CERCLA
statute itself. Roughly two thirds of the difference in cost was caused
by the procedural complexity and remedy selection decisions driven by
the law. One third of the difference, or less, is accounted for by
differences in site location and waste.
What we draw from this experience is that CERCLA's fundamental
design--the bones of the statute--are wrong. And as long as it remains
as is, we can expect extravagant costs and lengthy delays of the sort
we experienced at Sand Springs. Although EPA has recently made a strong
effort to do as much as it can administratively to rationalize the
process and choose more sensible remedies more quickly, it cannot alter
the basic structure and commands of the statute.
We would be happy to meet with you to discuss further our
experience at the Oklahoma sites or with Superfund generally. Again, we
appreciate your efforts in seeking reform of this well meant but badly
crafted program.
Very truly yours,
Kenneth R. Dickerson,
Senior Vice President.
______
ATTACHMENT
Comparison of Sand Springs and Vinita, Oklahoma Sites
The principal point we wish to make is that the wastes treated at
the Vinita and Sand Springs site were very similar, but the Sand
Springs waste cost more than three times as much per cubic yard to
remediate. Moreover, the Vinita project took 3 years to complete, the
Sand Springs project 11 years. These two comparisons speak volumes
about the CERCLA process. State remediation, in this instance, was far
more efficient, faster, cheaper, and protected the public health and
the environment. As we will outline below, the differences between the
two sites are far less significant than their similarities. Indeed, the
chief difference is that Sand Springs was listed on the National
Priorities List, and Vinita wasn't.
EPA's response to Senator Inhofe's March 5 hearing questions
justifies the differences in remediation cost and duration at the two
sites based upon a list of factors which at first blush seem a
reasonable basis for differentiation. However, we differ in many
respects with EPA's facts, characterizations, and conclusions:
Waste volumes--Sand Springs waste volume was about twice Vinita's
(not three and one half times). Apart from that discrepancy, the real
point here is that greater waste volumes should--and usually do--make
unit costs significantly cheaper, not more costly.
Waste complexity--The Vinita and Sand Springs wastes were quite
similar--refinery acid sludges--and the remedy eventually selected--
solidification--was also the same. Vinita waste cost $92 per cubic yard
to remediate; Sand Springs cost $263 per cubic yard. The cost
comparisons we have stated for cleaning up wastes at the two sites
include only refinery waste.
The chlorinated hydrocarbon wastes which EPA mentions were
deposited in a totally separate and physically distinct area--the so
called Glenn Wynn site. ARCO had placed no waste at the Glenn Wynn
site. Regardless of the lack of physical or legal relationship, EPA
combined the Sand Springs and Glenn Wynn sites and required ARCO to
sign a consent decree agreeing to clean up both, this despite the
existence of over 200 potentially responsible parties at the Glenn Wynn
site, many of which were large, financially solvent firms. ARCO
complied with the decree, cleaned up the Glenn Wynn waste, and was then
forced to sue the responsible companies. ARCO collected its remediation
costs, but lost $4 million in outside legal fees it was forced to
expend in the collection effort (The U.S. Supreme Court has held that
legal fees cannot be recovered in the absence of Congress amending
CERCLA). Nor did ARCO recover compensation for the considerable inhouse
management, legal, and executive time spent to recover the Glenn Wynn
costs.
While we didn't include an extended discussion of the Glenn Wynn
issues in our earlier paper, this matter raises collateral issues
(collateral, that is, to remediation cost and timing problems) pointing
to very serious statutory defects in CERCLA. These are, first, EPA's
unfettered discretion to define NPL sites and require clean ups which
unfairly burden individual parties and, second, the prohibition on
recovery of legal fees in contribution actions brought by private
parties who have done more than their share of the clean up.
Proximity to Population--It is true that the Vinita site is rural,
and the Sand Springs site is located in an industrial district of the
municipality, although both sites had people residing within one half
mile of the site operations. We agree that particular care needs to be
taken in clean ups where people, water or animals are close by. In
fact, ARCO took scrupulous care to limit exposure to workers and
releases to the surrounding environment in both clean ups, and happily
adopted additional safeguards at Sand Springs because of the proximity
to the community. The point the government seems to be making, though,
is that the difference in the setting of the site accounted for the
bulk of the difference in the remediation costs and timetables. We
don't agree with that view, nor with the implication that the State of
Oklahoma's program would inadequately protect its people and
resources--for a Vinita or Sand Springs site.
Ground Water--It's not clear what point the government is making
here. Protection of ground water was not a principal or express
determinant of the remedy selected at either Sand Springs or Vinita.
Each remedy was chosen for source control--keeping people from direct
contact with the waste. The remedy was the same at both sites
(solidification and capped containment). An additional target of the
remediation process at each location was to isolate the solidified
waste from surface runoff and ground water, and to ensure that if water
ever did reach the waste, nothing harmful would leach from it. However,
there is no drinking water well anywhere near the Sand Springs site
which could be affected by the waste (the well EPA describes as a half
mile away is crossgradient and more than a mile distant from any
waste). Moreover, the surface aquifer was contaminated by other
industrial sources upgradient of the Sand Springs site.
Sand Springs costs were boosted considerably by EPA's requirement
that the solidified (non-hazardous, non-leachable) waste be contained
in a RCRA vault, but this was, in our view, an inappropriate decision
justified by reference to CERCLA's statutory framework (requiring the
use of applicable, relevant and appropriate requirements--ARARs--from
other environmental laws and regulatory regimes), and not by
groundwater concerns. We discuss this issue in more detail below.
Air Emissions Safeguards--As we noted above, ARCO willingly employs
state of the art measures and safeguards to protect workers, nearby
people and the environment. While the Sand Springs waste was somewhat
more difficult to handle, and businesses were located immediately
adjacent to the site, the protections employed in the Sand Springs and
Vinita clean ups were quite similar, including air emissions controls,
protective equipment, and monitors. In fact, the principal exposures in
both projects were those presented to the remediation workers, who were
excavating the acidic waste which emitted sulfur dioxide fumes before
neutralization with lime. At both sites, perimeter air monitors were
installed; and concentrations of sulfur dioxide seldom reached levels
of concern at the property boundaries at either site.
It is true that Sand Springs city workers laying a sewer across the
site dug into a lens of refinery acidic waste, which liberated sulfur
dioxide--not hydrofluoric acid gases. This incident undoubtedly helped
to propel the Sand Springs site onto the Superfund list, but added
little to the cost differential between the sites--since both had
similar waste and required the same kind of safeguards. We estimate
that, at very most, the combined factors of more acidic waste and
closer proximity to people and businesses may have accounted for a
third or less of the difference in costs between the two sites.
Priority of Site--Whether a site qualifies under EPA's hazard
ranking system for listing should be irrelevant to remediation timing
and costs. Indeed, the fact that EPA regards a site as a priority
should accelerate action and drive EPA to quickly find the most cost
effective remedy that protects people and the environment--just the
sort of thing that didn't happen here. In our experience it rarely ever
happens in a CERCLA remediation setting.
Protectiveness of Disposal Cell--EPA required ARCO to construct a
RCRA vault at Sand Springs which cost substantially more than a clay
lined and capped cell of the sort which was used at Vinita. This
accounted for about one third of the difference in costs. RCRA
facilities are designed to be used for the containment of hazardous
wastes which present a danger to ground and surface waters, not inert,
non-leachable, non-hazardous wastes of the sort produced by the
remediation processes at Vinita and Sand Springs.
While ARCO agreed to build the RCRA vault at Sand Springs, in our
judgment it was excessive and neither cost effective nor legally
warranted. EPA required the more costly containment option as a
condition of dropping the incineration remedy which it had initially
chosen. In fact, ARCO has cleaned up two other similar refinery waste
(EPA-lead) NPL sites in different EPA regions for which capping--
without a RCRA vault--was the remedy to which EPA agreed. This
illustrates one of the clear statutory problems with CERCLA--the
preference for treatment and ARARs, combined with EPA's enormous
discretionary power, often and unpredictably leads to remedies which
are excessive and which a PRP simply accepts rather than risk the
extreme consequences of a challenge. This is another statutory problem
which cries out for legislative change.
Design Costs--EPA is simply incorrect in asserting that ARCO itself
chose to design an incineration remedy. ARCO advocated solidification
as the remedy, which EPA refused to accept without extensive site
specific testing. Accordingly, the incineration remedy was mandated by
EPA in the Record of Decision and strongly objected to by ARCO. ARCO
was forced to spend well in excess of $600,000 on the design of the
incineration remedy before State and community opposition, test
results, and other factors caused EPA to relent and approve the
solidification alternative. Moreover, EPA is incorrect in asserting
that Sand Springs studies reduced the cost of the Vinita remedy--in
fact, Vinita was designed and finished before the Sand Springs
solidification remedy was engineered. If anything, experience at the
Vinita project lowered the Sand Springs cost.
The real cost differences between the two sites lay in three areas.
First, construction of the RCRA vault and associated logistical
difficulties accounted for perhaps one third of the cost difference.
The endless rounds of studies, engineering and design approvals, and
extensive oversight required by the CERCLA process accounted for at
least one third of the total difference in per ton costs. The remaining
third, and the only legitimate increase, was caused by the urban
setting of the Sand Springs site (most notably construction problems
caused by lack of space) and its slightly different waste.
In the end, we are left with the conclusion that the two projects
were--or should have been--remarkably similar--the only real difference
was that Sand Springs was a Superfund site, and Vinita was not. Wastes
and remedies were, but for the ill-chosen RCRA vault, quite similar.
Yet each remediated yard of Vinita waste cost less than a third of what
it took at Sand Springs; and Vinita was completed in 3 years while Sand
Springs took eleven. This sort of problem is endemic in CERCLA, and its
source is the statute itself, not the people.
EPA--including its site managers and hazardous waste program
executives--are not the problem. In fact, after the initial skirmishes
and disagreements with EPA during the first several years of the
project, the Region VI team in charge of Sand Springs struggled
constantly to bring rationality and speed to decisionmaking. They only
partly succeeded. The difficulty lay--and still lies--in the commands
and ambiguity of the law itself.
It is a statute whose design guarantees vicious litigation,
agonizingly slow decisions, and unbelievably expensive remedies. It
prevents reuse of old industrial property and revitalization of cities.
It doesn't clean up the worst problems first. EPA has made some
progress with its administrative reforms, but cannot fix the core of
this badly conceived statute. Congress must act.
Senator Inhofe. Mr. Chairman, as the chairman of the Clean
Air and Wetlands Subcommittee, I'm very interested in the
enforcement. I would really like to mention a couple of things,
one was brought out by Senator Thomas when he talks about the
States being in a better position and how difficult it is in
some of these hearings. Because we'll make a point, to you, and
then you are out of here. The next group comes up and they
repeat everything you say.
I would only recall to the chairman's memory the statement
that I made, that proved the point to me, anyway, that the
States do a more effective job, and I used several examples.
The example I used before your committee just a short while ago
had to do with Superfund sites. I compared two sites in
Oklahoma, one at Vinita, OK, and one at Sand Springs, OK, by
the same company. And the one that was done by, directed by the
State of Oklahoma cost one-third as much as the Federal site,
per cubic yard of waste. In other words, it was $92 a cubic
yard cost to clean up the site that was under the supervision
of the State of Oklahoma, as opposed to $262 a cubic yard of
the Federal Government-supervised cleanup. The State took 3
years, the Federal Government took 11 years.
I see example after example after example, and I'm sure
that Administrator Browner is getting tired of me using all
these examples.
So anyway, later after that meeting, they refuted that, and
I have letters that I will insert in the record here in the
appropriate place that shows I was exactly on target.
The other area of concern is having to do with what they
call bean counting. You said, Mr. Herman, that that was last
year's war. When was the war over?
Mr. Herman. The what?
Senator Inhofe. This is on measuring performance by the
number of arrests or the number of prosecutions, the number of
fines.
Mr. Herman. I think this is an extremely important
question. The traditional method for EPA to measure its success
in enforcement was referrals of cases to the Justice
Department, numbers of inspections, that type of thing. Which I
will say in a minute, I do think have some value.
We recognize, though, that that alone was not enough to
show what the program was doing in terms of the environment or
possibly even in deterring violations. We have taken several,
and I think this probably came out in my confirmation hearing 4
years ago, because I think Senator Chafee may have brought up
the beans back then.
But this is what we have done. One, we have started
determining what are the environmental impacts----
Senator Inhofe. Mr. Chairman, I see we're going to have a
problem here if he's on No. 1 and we have several things we're
going to be talking about. I just asked the question, when was
the war over?
Mr. Herman. I don't know if the war is over. What we are
doing is, we are trying to solve the problem.
Senator Inhofe. Let me get another question out, then.
Because I don't want to go over my time, here. The Reason
Foundation issued a study just last summer, well, first of all,
I think the Justice Department actually made a request that you
get into more cases, which might indicate there are fewer of
them out. This was just last fall, as I understand it, that the
Justice Department came out in a report that the EPA had not
referred enough cases in 1996.
But I look at that as proof that it's the quantity of
cases, not the quality of cases.
The four recommendations that came from the Reason
Foundation were: No. 1, more precise language in laws and
regulations; No. 2, restoring criminal intent as a necessary
condition of criminal prosecution; No. 3, measuring enforcement
success in terms of environmental improvement rather than
numerical standards; and No. 4, respecting the bill of rights.
They specifically talk about which elements of the bill of
rights.
Are you familiar with this report, and are you attempting
to meet some of these recommendations?
Mr. Herman. I have not seen this report. Although a
gentleman from the Reason Foundation did testify at our hearing
on developing new measures, which we held last month in San
Francisco.
Senator Inhofe. In writing, Mr. Chairman, I'd like to give
him a copy of this report and ask that he respond to this.
Senator Chafee. Is that a Region I report?
Mr. Herman. The Reason Foundation, I believe, is in Region
IX, San Francisco.
Senator Inhofe. It's in California.
Senator Chafee. OK, if you can respond to that, Mr. Herman.
Senator Inhofe. Thank you.
Senator Chafee. Is the question clear?
Mr. Herman. You're going to give me the report and you want
us to comment on the recommendations?
Senator Inhofe. That's correct, these four questions which
I just read into the record.
[NOTE: EPA did not submit a response for the record.]
Senator Chafee. Thank you. We'll have a chance, we'll have
a wind up soon on this panel.
Senator Lautenberg.
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR
FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thanks, Mr. Chairman.
Mr. Herman, I want to ask you, how many matters might have
presented an opportunity for overfiling in the period during
which the four overfilings took place? That was last year, was
that the calendar year or fiscal year?
Mr. Herman. That's correct, the fiscal year.
Senator Lautenberg. It was the calendar year. How many
matters, do we have any idea how many were filed?
Mr. Herman. It's up in the, counting State actions and our
actions, we're in the realm of 10,000 probably, or more. Those
are administrative, judicial.
Senator Lautenberg. So there were four times when the EPA
intervened?
Mr. Herman. That's correct.
Senator Lautenberg. Has EPA threatened to remove delegation
for various environmental programs from States that have strong
privilege protection laws and in how many instances might that
have occurred?
Mr. Herman. There are four or five instances, Senator,
where citizens have filed petitions specifically bringing State
programs to our attention, in which the allegation has been
made that the passage of the audit or the audit privilege
immunity bill takes away from the State the necessary
enforcement authority that they need.
We have looked into those matters and in some cases we have
determined that if the law were left as it were that the State
wouldn't have the necessary authority required under Federal
law. Now, what I'm talking about by necessarily Federal
authority is the ability to get injunctive relief, the ability
to get penalties, the ability to respond when there's an
emergency, the ability to prosecute criminals.
In several cases----
Senator Lautenberg. That's sufficient, Mr. Herman. Our time
is running short, and I appreciate the answer. I think that
kind of clarifies what it is we're talking about.
I for one want to say clearly for the record that I support
cooperation and working with the State governments, with the
environmental protection departments, whatever they call them,
within the States. But by no means do I think that we ought to
step aside, and when we see something that violates the intent
to clean up the environment, which I believe is EPA's principal
purpose, at times it is suggested that your mission is
harassment and there's some sinister plot to nag and pester
companies.
But I would submit for the record an editorial done by the
Washington Post this past Sunday and an article from the
Washington Post talking about the Smithfield Foods violation. I
look at this as an example so egregious that one can't ignore
it. It says, there were 164 times they were late reporting
violations, and violated clean water laws by as many as 5,330
times by discharging pollutants containing such things as fecal
coliform bacteria, cyanide, phosphorus into the Pagan River.
Now, that feeds into the Chesapeake. That's our water. It's
our body of water. It's where striped bass, rockfish, develop.
That's one of the best spawning areas that we have.
So it belongs to all of the citizens in this country. And
for us to stand by, and these articles clearly identify a
weakness and a willingness from the State of Virginia to
cooperate with this polluter. Slap on the wrist and walk away
from it.
I would submit that you have no right to forget your
assignment to protect the environment. You have to enforce the
laws whether you choose to or not. If you've done it 4 out of
20,000 times, I ask you, why so many times in that ratio--I
mean, you're just harassing the devil out of those innocent
people.
I thank you, Mr. Chairman.
[The news articles follow:]
[From the Washington Post, June 8, 1997]
Clean Water, Political Hogwash
Gov. George Allen's disdain for Federal water cleanup policy runs
deep. Labeling the Environmental Protection Agency as an interloper, he
talks the talk of enforcement by weakens any serious action against
polluters. A Federal judge has so ruled in a case involving Virginia's
largest port producer--also the fattest contributor to the governor's
efforts to elect Republican legislators. Smithfield Foods has been
found liable for repeatedly dumping illegal levels of hog waste into a
Chesapeake Bay tributary over a five-year stretch--5,330 violations,
many of which the governor's environmental regulators chose to overlook
or underrate.
Gov. Allen insists that Virginia, not the EPA, can best rule the
State's waters. But in finding Smithfield liable, U.S. District Judge
Rebecca Beach Smith in Norfolk dismissed the company's claim that
Virginia is the appropriate enforcement authority. Judge Smith said
that Federal authorities were entitled to seek fines because State law
had fewer ``teeth.''
That is the shortcoming of Virginia's law and policies. Inadequate
sanctions and go-easy inspections did worsen water quality and endanger
public health. Lois J. Schiffer, assistant attorney general for the
environment and natural resources division of the Justice Department,
notes the importance of States having uniform water-quality
protections. Businesses should not find room to shop for States with
weak standards.
Judge Smith found Smithfield was late in reporting violations at
least 164 times and repeatedly had violated clean-water laws by dumping
pollutants into the Pagan River. At one point, State officials signed
an agreement to exempt the company from some pollutant limits until
Smithfield's plants could be hooked up to a regional sewage treatment
plant. Even if that agreement legally exempted Smithfield--which Judge
Smith said was not clear--it was reached without any opportunity for
public comment.
For three of the past 4 years, Virginia has ranked last among 10
States in the region in collecting fines from water polluters. Gov.
Allen commented last year: ``I guess what they would prefer, these
people who are carping and whining, is we just shut down these
businesses, run them out of the State and all the people who work for
them lose their jobs.''
Only a day after the latest ruling, Gov. Allen fired 29 senior
managers and staff members of the State's environmental agency. His
aides called it a ``realignment'' opening the way for employees to
apply for newly created posts. But a diverse coalition, including the
Virginia Chamber of Commerce, the Virginia Manufacturers Association,
the Sierra Club and State's Municipal League, called ``unwarranted and
poorly timed'' and a hindrance to efforts to protect Virginia's
environment. Leave it to the States? Not to Virginia under Mr. Allen.
______
[From the Washington Post, June 3, 1997]
Smithfield Foods Liable For Dumping Hog Waste
(By Ellen Nakashima and Spencer S. Hsu)
federal judge sides with epa in virginia case
RICHMOND, June 2--A Federal judge has found Smithfield Foods Inc.
liable for dumping illegal levels of hog waste into a Chesapeake Bay
tributary for 5 years in the 1990s, exposing the giant pork producer to
up to $133 million in fines in one of the largest cases brought under
the Federal Clean Water Act.
In a case that has come to symbolize Virginia Gov. George Allen's
permissive environmental policies, the U.S. Environmental Protection
Agency sued Smithfield in December, arguing that the State was ``not
doing the job'' despite a decade of violations by the company. In turn,
Allen (R) has attacked the EPA for its criticism of State policies
toward corporate polluters.
U.S. District Judge Rebecca Beach Smith, in Norfolk, sided with the
EPA. In a 75-page ruling released today, Smith found that Smithfield
was late in reporting violations at least 164 times and violated clean-
water laws as many as 5,330 times by discharging pollutants containing
such things as fecal coliform bacteria, cyanide and phosphorus into the
Pagan River. Smith left for a later, penalty phase of the court
proceeding a formal determination of the number of violations, each of
which can carry up to a $25,000 penalty.
``It is the defendants, and not the public, who are discharging
into the Pagan River,'' Smith wrote. ``It is defendants, and not the
public, who should pay the price for the damage to the environment.''
EPA Region III Administrator W. Michael McCabe, who led the
criticism of the State's inaction, called the decision ``a complete,
unqualified victory.''
``It's important to us that the citizens of Virginia have the same
water quality protections as people in every other State in the
country,'' Assistant U.S. Attorney General Lois J. Schiffer said.
The judge dismissed Smithfield's claim that Virginia, not the EPA,
is the proper policer of pollution in the State. In a separate action,
Virginia's Department of Environmental Quality sued Smithfield in a
State court in August for related violations, but for far less,
estimated at up to $2 million.
Environmentalists welcomed Judge Smith's ruling. It ``proves that
Smithfield Foods is not an innocent corporation getting beat up by
greedy widows and orphans,'' said Albert Pollard, spokesman for the
Virginia chapter of the Sierra Club.
Joseph H. Maroon, Virginia executive director of the Chesapeake Bay
Foundation, praised the decision for ``once again showing that the
Federal government as well as the State has an important role to play
in the protection of Virginia's environment.''
Smithfield attorney Anthony F. Troy said the company ``in all
likelihood'' will appeal the ruling. Troy said Smithfield still
believes it was in the right.
``There's a difference between discharging of a pollutant and
pollution,'' he said. ``Even if you have discharged in exceedance of
the [state water pollution] permit, have you polluted? Have you harmed
the river? The evidence suggests, in fact, that the Pagan has been
improving in quality over the years.''
In her ruling, Smith criticized Virginia environmental laws as
virtually toothless, noting that the State can impose civil fines only
when a polluter consents. ``A penalty provision requiring the consent
of the violator does not have the same `teeth' to encourage
enforcement'' as the Federal law, the judge wrote.
Senator Chafee. Thank you.
Senator Sessions.
OPENING STATEMENT OF HON. JEFF SESSIONS, U.S. SENATOR FROM THE
STATE OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman.
I think cooperation is the way to go in all law
enforcement. I was elected attorney general of Alabama in 1994.
We formed an environmental crimes working group: EPA, the three
U.S. attorneys, the Attorney General, Coast Guard, State
District Attorneys, Alabama Department of Environmental
Management. We met regularly to decide who best might handle
the kind of case that came up, and we would discuss them and
that sort of thing.
I think that is a good model. I would like to ask you, in
that line, it seems to me that the role of EPA might be
developing somewhat like the FBI, which has a very limited
number of agents within every State. The primary day to day
work of law enforcement is done by the police and the sheriffs
and the district attorneys.
But when cases of special expertise are needed, cases of
perhaps special national interest or only Federal laws are
involved, then they are involved. How do you see that as a
model for the EPA?
Mr. Herman. Senator Sessions, I couldn't agree with you
more. We serve, as you mentioned, we serve on task forces all
over the country, with the Justice Department and with local
attorneys general. In fact, in some States, we actually share
the office. We are in the State attorneys generals offices or
the local DA's office. They meet exactly as you said,
discussing cases and deciding who has the best authorities or
the best resources to carry out a specific task.
We have 200 Federal agents, the EPA has 200 criminal
agents. Almost all of them are out in the country. There is a
very small headquarters----
Senator Sessions. Not one in Alabama. I think there are
only four per State, but there's not a lot of them.
Mr. Herman. Some States have more than four. But I will
look into that.
But their primary job, while they do some primary
investigating, there is an enormous amount of capacity building
and partnering with their State and local officials. We have
developed film, training films for sheriffs, one was
volunteered to us by the actor, Harrison Ford. That's been very
well received by police around the country.
It's terrific, and this is the way to go.
Senator Sessions. I think it is. But I would point out that
even though you may not have overfiled but four times, there is
a tremendous power in EPA when they threaten to overfile. If a
settlement has been reached, or a good faith between a
prosecutor and so forth, if the Environmental Protection Agency
or the Department of Justice says, well, we don't care, we
don't think that's sufficient, we're going to file a separate
case, then a lot of hard work can be undermined. I think you
should show respect, and I trust you will, in those cases.
Let me ask something specifically. I have observed as a
Federal prosecutor, primarily, great delays in getting chemical
analyses done of sites in order to build a case for
prosecution. I've seen that repeatedly. It seems to me one of
the roles that EPA could do is have the kind of chemical
experts that could promptly and efficiently go to a site,
determine what chemicals have been dumped there, and get an
analysis and be prepared to testify in a matter of months,
instead of sometimes a year or more, is my recollection.
Don't you think that's an appropriate role for PEA, to help
the States and local prosecutors?
Mr. Herman. Absolutely, Senator. We try to offer that
service. And maybe we could get together with your staff and
hear some of the experiences you've had, and if they still
exist, try and correct it. I'd be glad to do that.
Senator Chafee. Thank you. I must say, it's very helpful to
have Senator Sessions here, because he's had a lot of
experience in these matters from the Federal Government, U.S.
Attorneys' Office. We're very glad to hear your thoughts. I
think this testing thing is important.
Senator Warner.
OPENING STATEMENT OF HON. JOHN W. WARNER, U.S. SENATOR FROM THE
COMMONWEALTH OF VIRGINIA
Senator Warner. First, Mr. Chairman, thank you for
scheduling this hearing. My State has been the subject of some
discussion this morning, and we're very fortunate to have Ms.
Dunlop, who will come up and speak on behalf of my State. I'll
reserve my comments for later today.
Unfortunately, I'm chairing another hearing of the Senate
this morning, as you are. So I won't be able to stay, as much
as I'd like.
First, Mr. Herman, I want to just talk generally about
consent orders and ask you how important are they to getting
people to comply with the laws.
Mr. Herman. I think that a properly crafted consent order
is very important.
Senator Warner. The key words are ``properly crafted.'' The
ability of your agency to stick by those consent orders, once
they're given, is another matter. I'm currently involved in
several cases involving constituents in my State, one in the
furniture industry, another in the meat-packing industry.
There seems to be a feeling in the community, not only in
my State, but elsewhere, the only way you can get people to
comply is to literally threaten them with financial penalties.
Would you talk about that a little bit?
Mr. Herman. Well, I think, Senator, as my written statement
shows, our view is that you can get people to comply in various
ways.
Senator Warner. Enumerate those ways.
Mr. Herman. Pardon.
Senator Warner. Enumerate those ways.
Mr. Herman. One is, we try and give information to people
ahead of time, so that they know what to do. Another is, we ask
people to come in and ask for help. A third, however, sometimes
that doesn't work. We have had instances, and Ms. Tinsley gave
the examples, where companies were given a chance. Somebody
went to them from the State, they identified a problem and the
company didn't fix it.
I would say that, depending on what that violation was,
that the next time around that company should be fined.
We found a similar situation, which was identified by the
inspector general, in Pennsylvania, where the State's policy at
the time was basically just compliance, no penalties.
Companies, when not faced with penalties, they basically said,
well, we can wait. We don't have to fix this emission device.
The illegal emissions kept pouring out of the factory.
I think you have to look at the situation and then
determine what is the appropriate response, which is what any
law enforcement or regulatory authority has to do if they're
carrying out their job in a responsible way.
Senator Warner. The consent orders that were issued prior
to the proposed new regulations on air quality, how are the
industries that entered into good faith in those consent orders
going to handle consent order given that now there's a proposal
for difference in regulation?
Ms. Schiffer. Senator Warner, what we clearly look at in
case after case is, did the company have the opportunity to
know what it was supposed to do to comply with the law. In the
environmental area, as in every other area of the law,
ignorance of the law is not a defense. We all learn that right
at the very beginning of law school.
So when we are dealing with environmental matters, we want
to be sure that people have an opportunity to know what they're
supposed to do and then when they have an opportunity to know
what they're supposed to do, they need to do it.
I know that sometimes companies say, ``we didn't have a
chance to know, or somebody told us something differently.'' We
look at those facts case by case. We can't obviously address
the specific cases you have in mind. We don't know what they
are.
But in general, that's the approach we take when we're
looking at what are the obligations of companies to comply with
the law in this area.
Senator Warner. Well, supposing a group of companies, say
an industry had gotten together and negotiated a consent order
or a letter of understanding, or the various types of things
you have, under the old air regulation, and along come the new
proposed air regulation. Of what value is that previous
agreement, and they relied on it to invest considerable capital
and go about the expansion and modernization of their plants.
Now they're faced with potential of a new order which frankly
is in conflict with their ability, given the various steps that
they took under the previous order.
Mr. Herman. Senator, without knowing the specifics, what I
can say is that I do know in some instances, in situations like
that, people have made investments or relied on a consent or
whatever, or grandfathered in in certain ways, or there is a
sliding schedule whereby you can phase into something, and
there are situations----
Senator Warner. You will give recognition, then, to the
validity of those previous understandings?
Mr. Herman. Pardon.
Senator Warner. You will give some recognition, in the
event that these new regulations----
Mr. Herman. In certain cases, that has been done. Just like
with penalties, you know, a company's ability to pay, for
instance, is taken into account, going to your first question.
Senator Warner. All right. Thank you very much.
Thank you, Mr. Chairman.
Senator Chafee. Thank you.
Now, we want to thank this panel. Does anybody have a quick
question? All right--Ms. Schiffer, one more sentence.
[Laughter.]
Ms. Schiffer. Two very quick sentences.
Senator Chafee. We've got two panels after this. I want to
treat them fairly.
Ms. Schiffer. I'll be quick.
First, there's been some discussion of philosophical
differences that the Federal Government may have with States.
What we do find, though, is that when you work case-by-case
with the State and get off the philosophy and look at the
actual cases, we have a great deal of success getting along
with the States. It doesn't mean we always see eye to eye, but
it does mean we as a practical matter are doing a very good job
of handling cases and enforcing our environmental laws
together.
Second, I just wanted to underscore and appreciate Senator
Sessions' remarks about our law enforcement coordinating
committees where we get everyone together in the States. They
have been very successful vehicles for really making the best
use of everybody's abilities and laws and resources. I'd like
to thank you for acknowledging that that's such an effective
way for us to enforce our environmental laws.
Finally, in response to Senator Inhofe's statement that
it's frustrating when you hear later panels, we don't have an
opportunity to reply, it's a little frustrating for us, too. I
would welcome the opportunity, if we could, as we hear what the
later panels have to say, if we could submit some information
for the record in response.
Senator Chafee. I would stress what Senator Sessions said.
The power of these overfilings, it isn't just the number of the
overfilings, it's the threat of the overfilings that is a very
powerful tool, I suspect.
Thank you all very much.
Now we'll have the next panel come up. Mr. Mark Coleman,
who's previously been mentioned, and Ms. Becky Norton Dunlop of
Virginia, Ms. Patricia Bangert from Colorado, Mr. Christophe
Tulou from Delaware, and Mr. Joseph Rubin from Connecticut. If
each of you would take your places, please.
Senator Sessions. Mr. Chairman.
Senator Chafee. Yes, Senator.
Senator Sessions. If I may have a moment of personal
privilege, I'd like to introduce Mr. Craig Canizel, the chief
of the environmental section of the Alabama Attorney General's
Office. He's served under a half dozen attorneys general,
founded the environmental crimes section. He remains as head of
that today. There's few people in this country who are more
knowledgeable and experienced in environmental work.
Craig, if you'd stand up, I'd like to welcome you. I'm
delighted to see you here today.
Senator Chafee. Well, thank you very much, Senator. We're
delighted to see such a distinguished citizen of Alabama here.
Senator Inhofe. Mr. Chairman.
Senator Chafee. Senator Inhofe.
Senator Inhofe. The same request. We're honored to have
Mark Coleman here today, from Oklahoma. He is the chairman of
the Compliance Committee of the Environmental Council of
States. Mr. Chairman, I will have to leave for 20 minutes,
until about a quarter after. So I'm hoping I won't miss your
testimony during that time. And if I do have to leave, I'll be
right back.
Senator Warner. Mr. Chairman, if I might have the
opportunity to recognize Secretary Dunlop.
Senator Chafee. I must say, these witnesses were judicially
selected.
[Laughter.]
Senator Warner. Well, I asked the chairman, and you very
thoughtfully granted the participation in this important
hearing by this very outstanding public servant. She has been
in the current position from the very beginning of Governor
Allen's administration. Prior thereto, she had her own
distinguished career in the private sector, as well as other
State and Federal offices.
We also recognize in the audience her husband, George
Dunlop, who has served the Senate for very many years in the
capacity of staff director of the Senate Agriculture Committee.
Senator Chafee. Thank you.
Senator Lautenberg. Mr. Chairman, in Senator Lieberman's
absence, he asked that I convey a welcome to Mr. Rubin, who is
from Connecticut, and who's a law professor now at Tulane Law
School. He wanted to say that he's sorry he couldn't be here,
but he is an Armed Services Committee meeting. So he says
hello.
Senator Chafee. Well, in the spirit of equality, on behalf
of Senator Allard, I'll welcome Ms. Patricia Bangert, from the
State of Colorado. We're delighted you're here, and I know
Senator Allard would want to extend a warm welcome if he could
be here.
Now if we'll proceed, Mr. Coleman, please. Each of you have
5 minutes.
STATEMENT OF MARK COLEMAN, EXECUTIVE DIRECTOR, OKLAHOMA
DEPARTMENT OF ENVIRONMENTAL QUALITY; CHAIRMAN, COMPLIANCE
COMMITTEE, THE ENVIRONMENTAL COUNCIL OF STATES
Mr. Coleman. My name is Mark Coleman, I'm the executive
director of the Oklahoma Department of Environmental Quality.
I've been responsible for the environmental programs in
Oklahoma since 1975.
I'm the chairman of the Compliance Committee of the
Environmental Council of States.
Senator Lautenberg. I have to correct the record. Mr. Rubin
has nothing to do with Tulane. He is from the Office of the
Attorney General from the State of Connecticut. I was wondering
why Lieberman was sending greetings to Tulane.
Senator Chafee. All right.
Mr. Coleman.
Mr. Coleman. The Environmental Council of States is a
national, non-partisan, non-profit association of State and
territorial environmental commissioners. I appreciate the
opportunity to testify before you today regarding the
enforcement relationship between the States and the EPA.
In keeping with Congressional intent, the vast majority of
enforcement in America is done by State government. State
governments bring 9 out of 10 of the Nation's enforcement
actions each year. States have been delegated the Federal
programs involving tens of thousands of permits, and have
direct and continuous interface with both the regulated
community and the public.
EPA also has a clear role. That role is to assure that we
do our jobs.
I'm pleased to report that although there are many factors
that place strain on the existing enforcement relationship, the
States and EPA are still committed to strengthening the
partnership. One of the most recent endeavors to improve the
bond was the formation of the State EPA enforcement forum,
which held its first meeting about 2 weeks ago. All 10 EPA
regional administrators, a State representative from each
region, and the primary EPA enforcement headquarters personnel
are represented.
EPA has largely delegated responsibility for national
programs to the States, including the primary role of
enforcement. There's general consensus on the basic allocation
of enforcement responsibilities.
However, when EPA brings a direct enforcement action,
notice I said a direct enforcement action, not just an
overfiling, any time EPA brings an action in a State wherein
the State has jurisdiction, there is a major opportunity for
disagreement.
There's often concern that the principles setting forth the
primary role of the State has been violated. This issue is
perhaps the starting point at which the relationship breaks
down. It's my belief that if EPA does not first give the States
an opportunity to act, in all enforcement matters in which the
State has jurisdiction, the fragile relationship will weaken.
States believe that enforcement is a tool, not a goal.
Compliance itself is a goal, but not a main goal. Our main goal
is and should be reaching the environmental quality goals that
you have set and that our own legislatures have set. No amount
of enforcement and compliance activity measures will tell us
anything about whether we have or have not met that goal.
Let me give you an analogy. If I were to tell you that the
number of detentions and expulsions in our Nation's high
schools had doubled last year, would you then conclude that our
Nation's students were better educated than before? I don't
believe so.
Similarly, no State would deny that enforcement is an
important and a necessary tool. We all believe that. But I can
also make the case to you that such an increase in enforcement
actions would mean a terrible breakdown in communications
between Government and the regulated communities had occurred.
Such a breakdown would mean that there was little chance of
improvement in environmental quality.
There are also the issues of delegations of programs and
direct accountability. First, program delegation in theory is
not an issue. It's clear that EPA has delegated programs to the
States. In delegating this responsibility, they have also
delegated the primary enforcement responsibility. If and when
EPA strays from this practice, then the question of whether or
not the delegation is true comes up.
State officials feel that once a program is delegated, EPA
should be most concerned with overall program effectiveness,
and not about the details of how States choose to handle an
individual enforcement matter. It's not to say that EPA does
not have a strong oversight role. They do. Oversight should be
there to see to it and to assure that States have effective
compliance and enforcement programs.
That brings us to the second part of the equation, and
that's accountability. Although EPA is delegated responsibility
for administering national programs to the States in keeping
with Federal law, EPA has the view that you, Congress, expect
them to have an ever-increasing number of direct Federal
enforcement actions.
These direct enforcement actions are reportedly viewed by
Congress and the public as a measuring stick of how well EPA is
performing. On the one hand, the message is to give the States
the first opportunity to act. But on the other hand, the
message is to keep the enforcement numbers up. This perceived
pressure for direct EPA enforcement may be the source of much
of the conflict with the statutory principle of deferring to
the States.
Overfiling is also an important piece of the enforcement
relationship. Although the instances of EPA overfiling are
relatively few, the possibility of overfiling and the use of
overfiling comes at great cost, as you have noted.
The potential for overfiling leads to mutual wariness, and
if not done with extreme care, it can rapidly damage the
enforcement relationship. The success of EPA is not measured by
the number of enforcement actions it takes, but by the
effectiveness of its oversight role.
The basic problem between the States and EPA as it relates
to enforcement is that in recent times, the role assignments
have become less clear. Changes in administration at both the
State and Federal level and the natural maturation of programs
have resulted in uncertainty and thus inconsistent action.
In my view, the solution to these conflicts is to reaffirm
the established roles. In doing so, we can focus the limited
resources that we have toward these roles and accomplish the
goal that we all share in protecting the environment.
Federal enforcement personnel should lead in research and
standard setting and oversight and technical support, and in
national information collection. The States should perform
their lead duties in direct program administration, including
direct enforcement. Neither party should seek to pick off
choice plums from the other's role.
We're not so far from the goals of both levels of
Government effectively working together. States already do well
over 90 percent of the enforcement action within the country.
Perhaps with your help, efforts to reduce frustration and
unnecessary loss of resources and credibility due to public
disagreements can be significantly reduced. We are working
toward that end.
Thank you for your efforts in this regard, and for inviting
me to represent the views of the States.
Senator Chafee. Thank you very much, Mr. Coleman.
Ms. Dunlop, we welcome you.
STATEMENT OF BECKY NORTON DUNLOP, SECRETARY OF NATURAL
RESOURCES, COMMONWEALTH OF VIRGINIA
Ms. Dunlop. Thank you, sir. Mr. Chairman, I'm pleased to be
here and have the opportunity to testify. Senator Warner, thank
you for being here this morning. I would like to thank the
other Senators for their interest in this matter.
I also would like to ask, Mr. Chairman, that a full copy of
my statement be inserted in the record.
Senator Chafee. That will be true for you and each of the
witnesses who wish.
Ms. Dunlop. Thank you so much.
Well, I'm here today because we're very proud in Virginia
about what we have done to improve the quality and condition of
the environment in our Commonwealth. There's no question in our
mind that the role and the purpose and the goals of
environmental policy are not how effective is your enforcement,
or how effective is your compliance, but rather, are you
improving the quality and condition of the air, the water, the
soil, the flora and fauna, that make up our environment.
That is our goal in Virginia in the environmental area.
We find it really quite surprising that EPA still believes
that their principal role has to be enforcement, and that the
role of environmental policy for EPA seems to have little to do
with improving our natural resources and our environment, but
much more to do with enforcement outcomes: how much are you
fining people, how much litigation is there, and how many
permit restrictions have you imposed.
In Virginia, we believe that the Virginia way is the best
way. In the area of enforcement, that is compliance first. We
made that very clear when Governor Allen took office and I
became Secretary. About a year after we made clear that this
was our State policy, the President of the United States, who
was Bill Clinton, came to northern Virginia and announced he
had a new policy. It was called, compliance first.
The Virginia way is a science-based approach which uses all
the resources of State agencies, other government agencies and
entities of the private sector to help and assist companies and
local governments and municipalities to reduce site and
situation specific emissions which can harm the environment and
have a harmful effect on people and other resources.
Of course, in Virginia we also have in our ``kit bag,'' as
we talk about this, the tool of enforcement. Enforcement is
important when it is necessary.
If there are willful polluters, if there are people who
have 20 instances of continuing the same practice without
making any attempt to improve it, we call them bad actors, in
the Commonwealth of Virginia. We are vigorous in going after
these bad actors to bring them into compliance, so that our
goal can be realized, which is improving the quality and
condition of our natural resources.
Of course, the Department of Environmental Quality does not
have the authority to take legal action, other than the consent
orders that were discussed earlier. We, for civil actions in
the courts, must refer cases to our attorney general, which we
do. For criminal prosecutions, we refer the cases to the
Commonwealth's attorney, who then works with the U.S. Attorney
to decide who is best able to bring the action.
I did find it interesting that the Environmental Protection
Agency this morning talked about the possibility that there are
20,000 cases where they could overfile, and yet in 1 year they
chose only four. I think this very well points out that there
is some selection process and perhaps some political nature to
their decisions.
We also believe in Virginia that we have taken a leading
role in changing the way the improvements to the natural
resources and environment can be managed. Pollution can be
prevented and cleanup of polluted sites can be accomplished.
We believe that this is very important. The way we have
restructured our Department of Environmental Quality is
organizing by functions rather than the separate media. So now,
in each of our six regional offices, instead of having separate
divisions of air, waste, and water, we have a permits division,
where we have people with expertise in each of these media
working together. Corporate citizens, small businesses and
indeed, municipalities, can come and work with one team of
people on permitting, compliance and enforcement that covers
across the media.
We also have decentralized the Department of Environmental
Quality in Virginia. I noted, in going through some records,
that this is something that Carol Browner did in Florida when
she was Secretary of Environment. They're now doing it again in
Florida, so I guess there were some intervening years when
someone thought recentralizing was important.
We have moved our primary activity out to the six regions
of Virginia, so that the people in our regional offices can
work closely, more effectively and more directly with the
entities that they regulate and be sensitive to the needs and
concerns of the people in the very communities where they live
and work.
We also have set up a new mechanism in Virginia to work
more cooperatively with locally elected officials, again, the
governments that are closest to the people. We've great success
doing this with our tributary strategy in Virginia, where we're
working to improve the water quality in the tributaries of the
Chesapeake.
Speaking of the tributaries of the Chesapeake, I do hope I
have the opportunity to discuss briefly, in response perhaps to
a question, the Smithfield case which seems to have attracted
so much attention and comment this morning.
The changes in the way Virginia has done business seems to
have caused EPA to take actions to put themselves in conflict
with the States. Their approach still is enforcement first.
In every public appearance I make with Michael McCabe, the
Region III director, his only point recognizing the quality and
condition of Virginia's natural resources, is the amount of the
fines that we have levied in Virginia. He makes no reference to
the fact that we had four non-attainment areas for air quality
ozone, and three of those have now reached attainment in the
past 3 years and qualified for redesignation.
He makes no reference to the fact that in northern
Virginia, which is our one remaining non-attainment area, the
Environmental Protection Agency has in fact approved our plan
to improve the way we do tailpipe emissions in garages, and
that the air quality in northern Virginia indeed is improving,
and our policy is working very well.
Senator Chafee. Ms. Dunlop, could you wind it up, please?
Ms. Dunlop. Yes.
We find that EPA has continued its top-down approach. There
have been some improvements, but basically, EPA still views
itself as in charge. This partnership with the States is
something that they handed out with the left hand and then the
next thing you hear, the Deputy Administrator of EPA is pulling
back the partnership with the right hand.
They have overseen failed programs such as Superfund and
States like Virginia have had to come up with voluntary
remediation programs to try to make sure we are cleaning up
sites in the Commonwealth.
Finally, I would say, Mr. Chairman and members of this
committee, we believe that the issue really here before us is,
is government to be a helpful servant or a fearful master. When
George Washington finished his term as President, he warned the
American people about this potential conflict in the future.
I joined State government and I served in the Federal
Government because I believe government should be a helpful
servant in administering the laws of our land, not a fearful
master. We appreciate the opportunity to be here to share with
you our commitment in Virginia to being a helpful servant in
improving the quality and condition of the natural resources
and the environment in our State.
Senator Chafee. Thank you very much, Ms. Dunlop.
And now, Ms. Bangert.
STATEMENT OF PATRICIA S. BANGERT, DIRECTOR OF LEGAL POLICY,
OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF COLORADO
Ms. Bangert. Thank you, Mr. Chairman and members of the
committee. My name is Trish Bangert. I'm the director of Legal
Policy for the Attorney General's Office in the State of
Colorado.
I want to thank the committee very much for the opportunity
to present our views on the EPA-State relationship. I also
would like to submit my written remarks for the record.
I want to address two topics in this oral testimony. The
first is the reality of the EPA-State relationship. And second
are some suggestions that might make that relationship work
more smoothly.
As to the reality of the relationship, don't be fooled by
EPA hype. In some enforcement areas, the EPA-State partnership
is a total fiction.
Senator Chafee. Is a total fiction?
Ms. Bangert. Is a total fiction, yes, sir. The reality is,
and I think Senator Thomas alluded to this testimony earlier,
very often EPA thinks they own the ranch and we're the hired
ranch hands.
For example, I don't see any compromise or cooperation in
the area of self-audits.
Another reality that I want to address here is the
effectiveness of State enforcement efforts in the State-Federal
enforcement scheme. EPA charges that some States, especially
those with self-audit programs, are failing to protect the
environment.
The reality of the situation, however, is that those
charges simply are not true. States like Colorado are working
very hard to protect the environment. EPA's complaint in
reality is that we aren't doing it in exactly the way they
would do it.
EPA loves its own image. In fact, it would like to go into
the various States and create a mirror image of itself.
Look at EPA's January 1997 audit policy update: ``U.S.-EPA
Regional Administrator John H. Hankinson, Jr., in a letter
dated September 26, 1996, applauded the State of Florida for
adopting a policy modeled on EPA's.'' The reality is, however,
that just because a new program differs from the EPA model, it
doesn't mean that that program weakens enforcement in the
State.
One such new program is environmental audit. Twenty-two
States, as you know, have passed some sort of legislation to
encourage companies to audit their environmental compliance and
correct violations found, either through a privilege or an
immunity or both. Colorado is one of those States.
Now, remember here, we're talking about violations that
probably would not have been found by the companies, and
certainly would not have been found by the enforcers absent the
audit. We're talking about the positive environmental gain in
many instances. Not only are companies becoming more aware and
sensitive to environmental compliance, but problems are being
corrected. In addition, companies and State regulators are
working together in a cooperative as opposed to an adversarial
fashion.
What is EPA's response to these innovative State laws? Over
the past 5 years, the agency has engaged in a systematic
program to kill the self-audit movement. After trying
unsuccessfully to persuade States not to pass the laws, the
agency began a program of intimidation against companies and
States utilizing self-audit laws.
For example, in Colorado, several of the companies that
have utilized the immunity provisions have received requests
from EPA for information about disclosures. In addition, EPA
has threatened to overfile in those cases.
What does EPA's response mean to the audit programs? Well,
we might as well throw them out the window. If a company comes
forward with evidence of an environmental violation, it's
providing a blueprint to EPA. In addition, it's impossible to
measure the success of environmental audit programs when
companies are discouraged from using them.
EPA's response and practice nullifies State laws. Now,
think about that for a moment. Not only has EPA spent a lot of
public money to advance its own policy perspective, but without
even having to do a public rulemaking or a formal hearing, EPA
can dictate the content of laws to sovereign States.
EPA's obsession with self-audit laws appears to stem in
large measure from its obsession with numbers. EPA has always
measured success in protecting the environment largely by the
number of enforcement actions brought.
In Colorado, we have one quick example in Colorado. We have
a very good school in Colorado called the Colorado School of
Mines. The School of Mines had some grounds on which there was
a research institute. That research institute experimented with
different mining ores. The result was a waste pile.
A water-main break caused EPA to have to come in and remove
that waste pile. In the removal, they laid down a lining. The
pile was put on top the lining, the lining was put there to
protect the ground, and that is to prevent water from going
through the waste pile into the ground.
EPA ordered the State to remove the pile. The State did
that. After the pile was removed, the State started to build a
softball field where the pile was formerly located.
In the process of building that softball field, the workers
breached the lining. Now, remember, this is the lining that was
under the pile that's no longer there.
Even though they breached a liner that lined nothing, EPA
ordered the State to repair the lining and to pay civil
penalties. In the end, the State paid thousands of dollars to
repair a liner that lined nothing, and in civil penalties,
thousands of dollars that could have been spent actually
removing threats to the environment.
Senator Chafee. Ms. Bangert, we're going to have your whole
statement in the record. I wonder if you could move on to your
suggestions here, because I think they'd be helpful to us.
Ms. Bangert. I sure can, Senator, thank you.
Three suggestions today. First, is that we recognize that
EPA is very often caught in between its legislative mandates
and a desire to work with the States. We would suggest that
there be a short-term task force or a commission that might be
created to review present laws with an eye toward identifying
those provisions that prevent EPA from allowing States to put
their own programs into effect.
Second, we want to make sure that we identify methods of
measuring success. As long as we stick with the number of
enforcement actions models, we're not going to be able to have
innovative approaches.
Senator Chafee. Yes, that is a difficult one.
Ms. Bangert. It is. So we'd recommend a study of this issue
which might ultimately result in some sort of recommendations
for changes.
The final recommendation that we would have is, there does
need to be greater certainty about overfiling. There may be
guidelines to penalties, but as far as I know, there are no
guidelines to when EPA actually overfiles.
Senator Chafee. Good. That's very helpful.
Thank you, Ms. Bangert, for those. As I say, your whole
testimony will be in the record. We appreciate your thoughts on
that.
Mr. Tulou, from Delaware.
STATEMENT OF CHRISTOPHE A.G. TULOU, SECRETARY, DELAWARE
DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL
Mr. Tulou. Thank you, Mr. Chairman and members of the
committee.
My name is Christophe Tulou and I have been the Secretary
of the Delaware Department of Natural Resources and
Environmental Control since March 1993.
I appreciate the opportunity to join you today to discuss
Delaware's enforcement relationship with the Federal
Environmental Protection Agency. The amount and quality of
discourse between EPA and the States is greater today than it
has ever been. We are sharing perspectives on environmental
goals for the country, providing suggestions on EPA's goals and
objectives under the Government Performance and Results Act and
helping develop performance measures to evaluate our success
under the National Environmental Performance Partnership
System.
EPA and the States are not that far apart in terms of a
shared vision for our Nation's environment. Enforcement and the
related issue of regulatory flexibility are the areas of
greatest disagreement between us. Our environmental management
challenges are diverse and complex, and our Federal laws and
regulations are often stiff and constraining. Finding room for
common sense is tough.
Delaware's enforcement relationship with EPA Region III,
however, is quite good. Though the relationship continues to be
positive, our development of a performance partnership
agreement with Region III has created some friction regarding
the role of enforcement and environmental management. We are
proud that Delaware was the second State to adopt a performance
partnership agreement.
We wanted to take advantage of EPA's promise to work in
partnership with Delaware to build the capacity necessary to
meet our environmental priorities. We sought a relationship
that recognized that States are at the forefront of
environmental management, and that the fastest way to our
mutual goals is through partnership, not paternalism.
Working very closely with Region III and with the strong
support of regional administrator Mike McCabe, we jointly
developed a model partnership agreement. We agreed to move away
from case-specific reviews of our activities toward a more
holistic consideration of the State's environmental enforcement
programs, encouraging innovation and creativity and achieving
our environmental goals. To that end, the agreement focuses on
outcomes more than activities or processes.
Despite these assurances in our agreement, I fear that EPA
will insist on greater reliance on enforcement specific
activities, focusing on enforcement for enforcement's sake. We
have argued since the beginning of the performance partnership
agreement process that enforcement should be a part of all our
environmental goals, not a standalone end unto itself.
In short, we view enforcement as an important tool to
achieve our environmental goals, not a goal in its own right.
That disagreement continues.
We also contend that compliance is a more relevant and
important programmatic goal than enforcement. We should be
striving through whatever means to get all our polluters in
compliance. This distinction between compliance and enforcement
is crucial in determining what States and EPA should be
measuring and reporting.
If enforcement is the goal, then we should continue to
count beans, such as penalty dollars collected or enforcement
actions taken. If compliance is the goal, then we should be
measuring and reporting who is in and who is out of compliance.
The traditional measures of dollars and enforcement actions are
less important if compliance is the true goal.
Measuring compliance is feasible and relevant. Last year,
just over 70 percent of facilities in Delaware complied with
hazardous waste regulations at the time of inspection. Within
30 days of the inspection, the percentage rose to 85 percent.
Within 180 days, 100 percent of facilities were in compliance.
Overly aggressive and ill-timed enforcement is a dare. It
inspires polluters to assume an adversarial relationship with
their environment and regulatory agencies and to challenge
enforcers to discover their misdeeds. Neither States nor EPA
can afford that cat and mouse approach to environmental
management. Neither can our environment.
Nonetheless, enforcement is critical. In fact, in Delaware
and other States, attempting to inject common sense into the
regulatory process, this stick must be bigger than ever. Those
polluters who choose not to participate in our compliance
assistance efforts and those who continually violate
environmental obligations should face the full force of public
indignation and legal recourse. In this context, States and EPA
can forge a powerful partnership that combines the benefits of
compliance and deterrence.
Making the philosophical point about compliance and
enforcement, and arguing the failings of traditional
enforcement measures is not enough. States have an obligation
to work with EPA to identify clearly the appropriate role for
enforcement and how best to measure our success in getting
polluters into compliance and keeping them there.
The State and EPA Region III have initiated a process to
identify which measures of compliance and enforcement would be
more useful and appropriate than those that are currently in
use. I would mention that Becky Norton Dunlop and the folks
from the Commonwealth of Virginia have been active participants
in that process, and I think we'll be successful as a result of
our partnership there.
Our goal is to make recommendations for inclusion in the
Region III EPA headquarters enforcement memorandum of
understanding, which will be finalized July 1. I understand
similar efforts are underway in other EPA regions. As Steve
Herman and Mark Coleman have indicated, there is a relationship
between the Office of Enforcement Compliance Assurance and the
States to develop a better relationship.
EPA should and I hope will continue to be a crucial
enforcement partner. We will continue to rely on EPA to assist
with our bad actors, help with transboundary pollution
problems, set protective national standards, and assure that
all States live up to their end of the environmental protection
bargain.
We will also continue to work with EPA through performance
partnership agreements and other means to build the capacity we
need to meet Federal and State environmental goals. We need EPA
just as EPA needs the States. That is what partnership is all
about.
Thank you again, Mr. Chairman.
Senator Chafee. Thank you very much, Mr. Tulou.
Mr. Rubin from Connecticut.
STATEMENT OF HON. JOSEPH RUBIN, ASSISTANT ATTORNEY GENERAL,
STATE OF CONNECTICUT
Mr. Rubin. Thank you, Mr. Chairman, members of the
committee.
As the head of the Environment Department of Connecticut
Attorney General Dick Blumenthal's office for the past 7 years,
I've participated closely in many aspects of the State-Federal
environmental enforcement relationship. Overall, I've found
that relationship to be cooperative and productive.
I would like to focus my remarks on two particular aspects
of that relationship, which I think provide good examples of
the relationship at work. The first is a model State-Federal
working group on water enforcement, and the second is a current
EPA review of some of Connecticut's State enforcement programs.
To begin with the model working group, almost 3 years ago,
we began monthly meetings, including the Connecticut DEP water
enforcement staff, our attorney general's office, and EPA
enforcement and legal staff. This group is composed completely
of working level staff. It has no bureaucratic structure. It
doesn't operate under any guidance documents. It doesn't have
any protocols. It doesn't have any memoranda of understanding.
It's simply a group that instead of making pronouncements or
fighting about turf sits down and works together on
enforcement.
In fact, I think its lack of bureaucratic structure is
critical to the group's success. What it means is that at each
meeting we can discuss current and potential enforcement cases
that have come from anywhere, from inspections, from citizen
complaints. Together, the group can come to an informal
consensus about whether a particular problem merits a
significant enforcement response or not, and if it does,
together the group can determine which approach will be most
efficient and effective.
In reaching this determination, we consider who has the
best legal tools, who has the available staff, who has the
discovery tools, whose laws would be effective, who has the
technical resources. It's important to say, this isn't an all
or nothing decision. Often, for instance, we'll determine that
EPA will use its discovery tools and then perhaps a State
enforcement action will result. Or perhaps the governments will
work together. In rare cases, we'll decide that a case is
important enough that it should be prosecuted jointly by State
and Federal authorities.
This group accomplishes several very important goals. It
maximizes the effectiveness of overall enforcement efforts. It
eliminates unknowing duplication of effort, so everybody can
best use all of their resources. It reduces inter-agency
competitiveness, and replaces it with cooperation. In effect,
by providing each government with the peer review of the other
government, it provides a real stimulation for everyone to do
high quality work. In sum, I submit, it gives all taxpayers
more bang for their environmental buck.
A second example, and one which is somewhat more
controversial, is the current ongoing series of reviews, or
audits, of State environmental enforcement efforts, which has
been produced by EPA Region I. Region I just completed a draft
review of Connecticut DEP's enforcement programs about 6 months
ago. They expect to complete their final report this month, any
day now.
I submit that this periodic review process represents an
excellent compromise and an excellent approach to oversight.
Rather than reviewing every case as it happens and creating an
impression on the part of the State that EPA is trying to
direct everything the State does, instead EPA has initiated a
peer review process on a periodic basis. I think that
necessarily has positive results.
In the first place, any peer review process is likely to
produce positive results, because some outside review always
helps to identify strengths and weaknesses. In addition, at
least in Connecticut's case, our DEP has already taken
significant steps in response to the draft report to improve
areas where problems were identified. I think among the results
we're going to see from that are better documentation and
therefore more consistency and more fairness in enforcement
actions and some redirection and increase in staff in certain
areas where a particular need was identified.
The report has also very appropriately identified
situations where the DEP effort was strong. Now, of course, no
peer review is painless. And maybe in some cases, EPA failed to
recognize some of DEP's efforts in the first draft. But
overall, the review process has been very effective and
beneficial.
These two examples are certainly not comprehensive. But I
think they do provide a fair snapshot of successes in the
State-Federal enforcement relationship. In my experience, they
are exemplary of the success in that relationship between
Region I and Connecticut.
I would urge this committee to continue to encourage the
unfettered and unencumbered growth of these cooperative
efforts. I think a national presence is important. We have one
environment. We need to maintain national standards. I think
through cooperative efforts such as those that I have
described, we are making real progress in that direction.
Thank you.
Senator Chafee. Thank you very much. It sounds like
Connecticut's got a very common sense approach to this.
Senator Warner has to leave, and on my time I'll permit him
to ask one question.
Senator Warner. Mr. Chairman, I very much appreciate that.
I just want to see what the reaction of the various State
officers are to this question of the effectiveness of the
consent order as a tool to implement what I believe the goals
should be under our environmental laws, that is compliance,
rather than just the financial penalties.
I wonder if you could, just each of the State officers give
us your personal and professional opinion as to the use of this
tool in discharging your responsibilities to your respective
States. Why don't we start off with Colorado.
Ms. Bangert. I think the compliance order certainly can be
an effective tool. But I think that history has shown that
command-and-control is in large part inadequate by itself to
achieve environmental improvement, and that we need other
compliance mechanisms, such as self-audit.
Senator Warner. Delaware.
Mr. Tulou. We use them quite a bit, and they generally are
very effective. What we try to caution people is that that is
not something to be expected under all circumstances. For bad
actors who have violated previous consent agreements, another
option would be appropriate.
Senator Warner. Connecticut.
Mr. Rubin. Senator, I agree that consent orders are
effective in many situations. But they have a major weakness.
If we rely only or usually on consent orders without penalties
then it's not clear what incentive industry has to comply
before we get to them this time with this problem. If there is
no deterrence in addition to a consent order, you run a risk
that you're never going to get broad industry-wide compliance.
Nevertheless, they are valuable in many circumstances.
Senator Warner. And Virginia.
Ms. Dunlop. Senator Warner, the fact of the matter is, we
think consent orders are very valuable. We don't use consent
orders to the exclusion of fines, as you know. We don't use
consent orders to the exclusion of the environmental audit
program. We think these are all tools that need to be
considered.
But consent orders have an important value. One, we sit
down, our Department of Environmental Quality professionals sit
down with parties and agree on what the mechanism needs to be
put in place to fix the environmental problem. The money that
needs to be invested to solve, upgrade, improve the way things
are run, so that the outcome is an improvement in environmental
quality.
Oftentimes in Virginia, the consent orders that are
negotiated are accompanied by fines. Sometimes those fines then
can be suspended if the company or the municipality in many
instances meet the consent order agreements.
The bottom line, of course, is that for the major entities,
EPA also has the opportunity to review the consent orders.
Senator Warner. That's my second--a part----
Senator Chafee. Well, now, Senator, we----
Senator Warner. Just a second, Mr. Chairman, otherwise, the
question dangles.
What value are these tools if in fact the EPA then can
somewhat circumvent your ability to follow through with a
course of action laid down by the State and assess
unilaterally, so to speak, their own penalties? Because that's
the issue.
In other words, it comes down to this question of
sovereignty, Mr. Chairman, the ability of these State officers,
to enforce the national laws and the State laws and at the same
time, how can industry put any reliance? Suppose a man or a
company went out, a woman, a CEO of a company, and bought $10
million worth of air equipment to meet the clean air standards.
Then they're putting it in the plant and all of a sudden EPA
comes around and decides, oh, no, that's not going to work out.
Do you want to have Virginia lead off and have each State--
--
Senator Chafee. No, we can't do that.
Senator Warner. Well, you asked----
Senator Chafee. Senator, you asked for some time. You can
ask for the question in writing. But we've got to move along
here. You asked on my time, you've used my time up totally.
Senator Warner. I would ask them to put it in writing,
then.
Senator Chafee. That's fine.
[Information to be supplied follows:]
Supplemental Testimony of Becky Norton Dunlop, Secretary of Natural
Resources, Commonwealth of Virginia
This question arises because of an opinion issued by the U.S.
District Court E.D. Va. (Hon. Rebecca Beach Smith), on May 20, 1997.
The Court granted the United States' Motion for Partial Summary
Judgment in its case against Smithfield Foods. The opinion states that:
Because the Court concludes that Virginia law is not comparable
to Section 309(g) [of the Federal Clean Water Act], and thus
does not bar the United States from pursuing an independent
penalty action against the defendants, the court need not
address whether the Commonwealth is diligently prosecuting an
administrative action against the defendants.
I will not comment on the legal merits of the Court's opinion, but
only on its practical effects. Under this interpretation of the law,
the EPA will be prohibited from overfiling only if a State enforcement
scheme essentially mirrors the provisions of the Federal Clean Water
Act. Thus, a State has two choices: (1) adopt the enforcement scheme
contained in the Federal law, or (2) obtain EPA approval of each and
every administrative resolution of enforcement cases. In my view, this
offends State sovereignty, and makes a mockery of State delegation of
EPA programs.
As to the regulated community, the effect is also clear. If the
State clean water law differs from the Federal one, even in relatively
minor ways, then companies or local governments must independently
obtain the concurrence of both the State and the Federal authorities
for any proposed resolution of a violation.
Note that in the Smithfield case, the Court did not reach the
question of whether Virginia was doing a diligent job of enforcing the
law. A State that is doing a first-rate job can still find itself
undermined by EPA overfilings.
The EPA has testified that it has decided to overfile in only a
handful of the thousands of cases in which it could do so. Based on our
experience in Virginia, the EPA decisions seem arbitrary, and perhaps
politically motivated.
A chronology of events in the Smithfield case is attached. As you
will see, the Commonwealth has been attending to violations of
Smithfield's water discharge permit for a number of years, under a
number of Governors. The consent orders in question were negotiated
under democratic Governors Baliles and Wilder. EPA had no objection to
them at the time. During the Allen administration these consent orders
were reviewed, and found to be sound solutions to the problems at
Smithfield. We have honored and enforced these consent orders, so that
very soon Smithfield's discharges to the Pagan River will be reduced--
not just to the level required by Federal and State law, but to zero.
At the same time, Virginia has aggressively pursued any discharges or
other violations that are outside the bounds of the consent orders. And
yet, it is only during the Allen administration that the EPA has seen
fit to object to the consent orders with its own lawsuit. Whether or
not it is lawful, such behavior is damaging, irresponsible, and
suspect.
______
Chronology of Multiple Enforcement Actions Against Smithfield Foods,
Inc. and Subsidies
Governor Godwin:
February 1977.......................... State Water Control Board
Directive issued to Smithfield
Packing for permit limit
violations.
December 1977.......................... Consent Order approved by State
Water Control Board for ITT
Gwaltney, Inc. for permit
limit violations.
Governor Dalton:
February 1978.......................... Smithfield Packing referred to
Attorney General for
litigation with a request to
seek civil penalties for
continued permit limit
violations.
May 1978............................... Civil settlement of Smithfield
action previously referred to
Attorney General, including
payment of a $100.00 civil
penalty and payment of
$25,000.00 to the oil spill
emergency fund.
Governor Robb:
September 1983......................... Smithfield Packing referred to
Attorney General for
violations of Total Kjeldahl
Nitrogen (TKN) limits in
permit.
January 1984........................... Isle of Wight Circuit Court
orders injunctive relief
against Smithfield for TKN
violations.
June 1984.............................. Gwaltney of Smithfield referred
to Attorney General for
violations of TKN limits in
permit.
December 1984.......................... Isle of Wight Circuit Court
fines Smithfield $40,000.00
for violation of January 1984
court order.
June 1985.............................. Gwaltney of Smithfield, Inc. is
fined $1,285,322.00 in a
citizen's suit brought by the
Chesapeake Bay Foundation.
Governor Baliles:
May 1986............................... Consent Order with Smithfield
Foods granting interim TKN
limits while they do
monitoring and modeling to
determine if permit limits may
be relaxed.
January 1988........................... Consent Order Amendment
requiring modeling to be done
based on previous sampling to
recommend waste load
allocations for the Pagan
River.
Governor Wilder:
March 1990............................. Consent Order requiring
Smithfield Foods to study
phosphorous removal and
evaluate connection to Hampton
Roads Sanitation District
(HRSD).
November 1990.......................... Consent Order Amendment
requiring Smithfield to
participate in an HRSD
feasibility study.
May 1991............................... Consent Order Amendment which
required Smithfield to tie
their discharge to HRSD once
the line was constructed and
made available to Smithfield,
and to drop their legal
challenge to the phosphorous
standard.
Governor Allen:
May 1994............................... Owners of three (3) permitted
wastewater treatment
facilities contact the Board
of Professional and
Occupational Regulation (BPOR)
to claim that their signatures
had been forged on Discharge
Monitoring Reports by Terry
Rettig, their contract
wastewater treatment operator.
BPOR forwards copies of the
complaints to DEQ.
October 1994........................... Following careful
investigation, DEQ concludes
that Rettig submitted false
data on behalf of eight (8)
different facilities,
including Smithfield Foods.
November 1994.......................... Consent Order Amendment which
granted Smithfield interim
relief from new limits for
ammonia, cyanide and
Carbonaceous Biological Oxygen
Demand (CBOD) until the
connection to HRSD was
accomplished.
DEQ notifies the Commonwealth's
Attorney of Surry County that
the County may have been
defrauded by Rettig.
Federal Bureau of Investigation
(FBI) notifies DEQ that they
have been contacted by the
Surry County Commonwealth's
Attorney and have taken over
investigation of the Rettig
matter.
December 1994.......................... DEQ turns over documents from
its investigation of Rettig to
the FBI. In accordance with
long standing policy and at
the request of the U.S.
Department of Justice (DOJ),
further civil enforcement
action is suspended pending
investigation and resolution
of the criminal case.
September 1995......................... FBI requests the assistance of
DEQ in reviewing and
evaluating files regarding
Rettig's activities at all
eight (8) facilities.
October 1995........................... DOJ obtains subpoenas for
multiple permittees, including
Smithfield Foods, who had
dealings with Terry Rettig.
February 1996.......................... DOJ releases DEQ to continue to
pursue civil enforcement
action against Smithfield
Foods. DEQ resumes preparation
of the civil enforcement case.
April 1996............................. DEQ's Tidewater Regional Office
(TRO) notifies Smithfield
Foods of the pending DEQ
enforcement action, which
includes the potential
referral of Smithfield to the
Attorney General.
HRSD notifies Smithfield that
hookup will be available in
June 1996. (Smithfield must
connect to comply with its
1991 Order.) DEQ is informed
that Smithfield may refuse to
connect to HRSD.
DEQ Central Office of
Enforcement suggests that the
referral to the Attorney
General be temporarily
deferred in order to determine
which specific violations of
the permit are unrelated to
the prior orders and to
determine whether Smithfield
will violate the May 1991
order by refusing to connect
to HRSD in June.
June 1996.............................. Smithfield connects its
discharge to the HRSD line as
required by the May 1991
order. TRO, Central Office and
the Attorney General continue
to develop the enforcement
case.
August 1996............................ DEQ discovers that EPA has
referred Smithfield to DOJ for
civil enforcement action
without notifying Virginia.
Virginia files suit against
Smithfield Foods for multiple
violations of Virginia's State
Water Control Law.
December 1996.......................... The United States files suit
against Smithfield Foods for
multiple violations of the
Clean Water Act, including
alleged phosphorous
``violations'' which are
appropriate only under the
interim limits provided in the
State Water Control Board
Orders.
June 1997.............................. Smithfield activates the second
hookup and begins diverting
waste to HRSD, as required by
the Commonwealth's 1991
Consent Order. When this
hookup reaches full capacity,
Smithfield's discharge to the
Pagan river should be reduced
to zero.
______
Response by Joseph Rubin to Senator Warner's Request for Additional
Information
Senator Warner has asked me to address his concern that EPA
enforcement actions following State consent decrees could undercut the
States' sovereign authority and industry's reasonable reliance upon
settlements with the States. My practical response to this concern is
that I have never seen this problem arise. In my experience, EPA has
not overfiled or taken separate additional enforcement action after a
State has taken appropriate action. In addition, in my experience, when
a business has a good faith concern as to whether a settlement with a
State will also satisfy EPA's concerns, the business can obtain an
answer from EPA. In fact, I have recently heard Mr. Herman, who is in
charge of EPA enforcement, State affirmatively that it is EPA's policy
to answer such questions.
Of course, our Federal system, with dual sovereigns, is always in
some degree of dynamic tension. That tension is inherent in our chosen
system of government. I have seen no practical problems, however, where
EPA's enforcement efforts have undercut appropriate State enforcement
activities. In sum, I see no major problems with present practices
regarding the interplay of the State and Federal enforcement systems.
As I explained in my testimony, I do see excellent examples of a strong
cooperative working relationship between EPA Region 1 and the State of
Connecticut.
Senator Chafee. Senator Baucus is next.
Senator Baucus. Very quickly, Mr. Chairman. I assume that
all of you agree there are appropriate circumstances when
overfiling is appropriate? Does anybody disagree with that
statement?
Or I'll State it differently. Is there anyone who believes
that overfiling is never appropriate?
[No response.]
Senator Baucus. There is no one who believes that
overfiling is never appropriate. So you all agree that there
are cases when overfiling is appropriate?
Mr. Coleman. There are also cases where direct Federal
action is appropriate.
Senator Baucus. Correct. I'm just now addressing
overfiling.
Ms. Dunlop. We agree in Virginia that there are not only
cases where it possibly is appropriate, but that the law
provides that. We do think, however, that when EPA talks about
partnerships, that it would be appropriate for them to consult
with the State before they take that step.
Senator Baucus. Absolutely. I don't think anybody has any
quarrel there.
No further questions, Mr. Chairman. But I would just hope
that frankly some of these outfits, and you've talked about
some commissions, some studies, Ms. Bangert, do help work with
EPA and establish guidelines when overfiling would occur, I
suppose, or not occur, so there's a little better
understanding.
Senator Chafee. I must say, Mr. Rubin's testimony indicated
there is some cooperation which seems helpful. I think Mr.
Coleman's involved with that himself.
Mr. Coleman. Yes, sir.
Senator Chafee. Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman. I'm sorry, I had
to leave for just a few minutes there, and I don't want to ask
any questions that have already been asked. But just let me
address, to our Oklahoman, Mr. Coleman, a couple of things. You
were here when the previous panel was here, weren't you, Mr.
Coleman?
Mr. Coleman. Yes, sir.
Senator Inhofe. I made the comment, and it was responded by
the different representatives of the EPA that that was last
year's war, they're referring to the policy of measuring
performance by the amount of fines and cases. Do you think that
was last year's war?
Mr. Coleman. No, sir.
Senator Inhofe. You feel that's still going on? There's
some evidence there in Oklahoma, of course, you represent, you
chair a national board in this.
Mr. Coleman. That's correct. That issue remains an issue.
Senator Inhofe. Let me ask you another question. I'm going
to be, I'm the chairman of the subcommittee of this committee
called the Clean Air, Property Rights, Wetlands and Nuclear
Safety.
As you know, Administrator Browner came out with her
changes in the national ambient air quality standards
recommendation, and if that should become a reality, I've often
said in the five committee meetings we've had that I would
consider that to be an unfunded mandate. The response we get
is, well, it's not an unfunded mandate, because we wouldn't be
emanated, we would merely be saying to the States, you have to
come up with a program that is going to bring your State into
attainment.
Now, how do you view that from an enforcement position?
Would you consider that to be an unfunded mandate? Share with
us what your thoughts would be in terms of Oklahoma. Should
these rules that she's suggesting become a reality, I believe
it's July 19?
Mr. Coleman. We have worked very hard, as you're aware, in
Oklahoma, to come state-wide into compliance with the clean air
standards. The new Federal Clean Air Act is a very encompassing
law. It's an Act that I hope at some time that you all take up
the opportunity to look at in some detail.
But if the standards were changed and we were to fall into
non-attainment, the actions that we would have to take would be
such that we would be dipping very deeply into the common,
everyday activities, of everybody in our State. We've done
everything we know how to do already.
Senator Inhofe. Let me ask you this. Would you be able,
from an enforcement perspective, let's take the particulate
matter, if that were to drop down to PM2.5, is the
science there and your ability there to offer some type of
enforcement?
Mr. Coleman. At this point, we don't know enough about the
sources of the particulates to figure out where we would take
actions. That is something as far as we're concerned that's
very, very nebulous in terms of the science that exists to
determine what type of enforcement actions we'd need to take.
Senator Inhofe. Mr. Coleman, I see we're getting real close
to running out of time here, but in Oklahoma, I've heard a lot
of things about your compliance assistance program. Could you
real quickly explain to the committee how it works? Because
it's gotten some national attention.
Mr. Coleman. Yes, sir, thank you. About 5 years ago we
introduced what we call a customer assistance program. We were
the first State to use that term and develop that program. I
believe virtually every State, and I know every EPA region and
obviously headquarters now also uses that term, where there's
some attempt to reach out to those that we regulate and try to
help them come into compliance.
Not that we didn't do that in some limited way before. But
certainly, particularly as the new Clean Air Act comes into
play, and as we realize the far-reaching impacts of the
regulatory net, particularly as it relates to small business,
the only way we can help those people to ever have a chance of
attainment is for them to know what they need to do. Our
customer assistance program is designed to tell people what it
is they need to do.
Senator Inhofe. Yes, it's working very well. Thank you very
much.
Senator Chafee. Thank you, Senator.
Regrettably, I have to go. The majority leader has asked me
to come over to a meeting. Senator Baucus is kind enough to----
Senator Inhofe. I don't mind staying for a little while
here.
Senator Chafee. Senator Baucus will preside, and I want to
express my regrets to the third panel. If I can get back, I
certainly will.
But meanwhile, Senator Lautenberg has a chance for
questions. I want to thank everybody on this panel and express,
as I say, express my regrets to the next panel. Senator Baucus,
thank you very much.
Senator Baucus [assuming the chair]. Senator Lautenberg.
Senator Lautenberg. Thank you very much, Mr. Chairman.
Mr. Coleman, in response to Senator Baucus' question
before, about when if at all the Federal actions are necessary,
you said that they indeed are at times. I read your statement
here, State officials feel that once a program is delegated,
EPA must, should be most concerned with the overall program
effectiveness, and not about the details how a State handles
each individual enforcement.
So there is a role for Federal action, if the State doesn't
enforce the environmental obligation as we understand it.
Mr. Coleman. Yes, sir.
Senator Lautenberg. One of the things I think we fail to
recognize here, at least fail to discuss at times, is the fact
that when there's an assault on the environment, whether it
comes from Colorado, where my son lives and makes his living,
or any other place, the fact is that if you dump into a river
that feeds any of the neighboring State's activities, possibly
drinking water or fishing and so forth, that you ought not to
have the right to spoil my environment just because I'm one of
the eastern-most States in the country and the prevailing winds
are west and the air pollution carries very well through the
air.
So if we can agree on that, and I sense that the mission of
some of the witnesses is to paint EPA as a sinister force
trying to embrace all the powers that are relegated to the
States, and their whole mission is to sneak around and punish.
As far as I'm concerned, I can tell you, I want them out
there enforcing the law. I want them to clean the environment
for my grandchildren. Because if there's one thing that I want
to leave my grandchildren, it's a clean environment. I want my
grandson to be able to go fishing and know that there are still
fish in the streams, fish in the streams or fish in the ocean.
Ms. Dunlop, you suggested in your comments most directly
that there might be something of a political nature in the few
cases that had Federal intervention as an overfiling. What I
sensed is you wanted them out on one hand and you wanted them
in on the other.
So they're damned if they don't file more cases, because
you said, well, these four maybe had a political reason for
EPA's involvement. Then you complained in your earlier remarks
about too much involvement by the Federal Government. Do you
want more or less? I'm not exactly sure what you're talking
about.
Ms. Dunlop. First of all, my comments were pointed at Mr.
Herman's remarks, where he talked about what a great record
they have of only overfiling in four instances when they had
20,000 opportunities.
Senator Lautenberg. I didn't say he was boasting. He was
reporting. I asked him how many cases there were.
Ms. Dunlop. Yes, he was reporting. I will tell you,
Senator, that in the instance that the previous panel spent
considerable time on this morning discussing, in Virginia, the
Smithfield case, we do think there was something political
about that. I'd be happy to share with you some of the details
of that case, without getting into the----
Senator Lautenberg. I'm going to help refresh everybody's
memory. This is a report, this is written in a newspaper, so it
could very well be wrong. It says that Smithfield was late in
reporting a violation at least 164 times, violated clean water
laws as many as 5,330 times, the pollutants they dumped in
there were fecal coliform bacteria, cyanide and phosphorus. I
wouldn't like that in my cocktail, I'll tell you that.
The judge later left for a penalty phase to the court
proceeding a formal determination of the number of violations,
each of which can carry $25,000 penalty.
It's the defendants, the judge wrote, and not the public,
who are discharging into the Pagan River.
Did the judge, by the way, in this case, issue a wrong
opinion, in your judgment?
Ms. Dunlop. No, we think the judge will have another
opportunity in August to take a look at the Virginia case and
perhaps have some different comments.
Senator Lautenberg. So there is an inference that the judge
didn't exactly come down, in your view, with the right
decision, if the suggestion is that she'll have a chance to
review it later on. Does that suggest it will correct some of
the impressions?
Ms. Dunlop. There's no question, Senator, that the EPA does
have a right to overfile and the facts of this cases were well
noted by the judge. There are----
Senator Lautenberg. Are you satisfied with the action that
the environmental department in Virginia took with Smithfield?
Ms. Dunlop. Yes. I think the Department of Environmental
Quality has taken the proper action. As you probably know,
having studied this case, the consent order was agreed to by
appointees of former Governor Robb and former Governor Baliles,
it was negotiated by former Governor Doug Wilder's
administration in 1991 and approved by a sitting Democrat
attorney general, the lieutenant Governor of the Commonwealth
at the time was a Democrat and had no comment on it.
This was in 1991.
Senator Lautenberg. So what you're pointing out is that
this was largely political.
Ms. Dunlop. No, what I'm----
Senator Lautenberg. I asked you if you were satisfied not
with the performance of Democrats or Republicans, I asked you
if you were satisfied with the performance of the State of
Virginia in curbing this dumping, this pollution.
Ms. Dunlop. Yes, but what I'm telling you, Senator, in
1991, the offices of all these Democrat appointees in Virginia,
elected Democrat officials, agreed upon a consent order with
Smithfield to clean up the river. The Environmental Protection
Agency over----
Senator Lautenberg. I didn't suggest it was Republican. Why
do you persist in identifying them as Democrats? I don't care
who it was, Democrats or Republicans, they have no right to
cooperate or conspire with a company to dump into that river.
Ms. Dunlop. They did not conspire with the company. They
came to an agreement on the cleanup. The consent order was
reviewed by the Environmental Protection Agency, as all major
consent orders are, in 1991. There was no action by the
Environmental Protection Agency on this case until 1996.
Senator Lautenberg. Right. They depended on the company and
on those in Virginia who were responsible for administering the
law, for enforcement, to clean up their act.
Ms. Dunlop. That was happening, sir. The consent order was
being complied with just as it was written. The terms of the
consent order were that the DEQ in Virginia and the attorney
general would file a civil action and require payment in fines
and other terms once the hookup was completed to take care of
all those actions that occurred from 1991 on. I think that's
what will be brought out in the subsequent court case.
Senator Lautenberg. For 3 of the past 4 years, Virginia has
ranked last in the 10 States in the region in collecting fines
from water polluters.
Thank you very much.
Ms. Dunlop. Thank you.
Senator Baucus. I just have a general question of all of
you. We live in a very complex country. I'm sorry, Senator, did
you have a question?
Senator Inhofe. Just a couple.
Senator Baucus. I apologize.
Senator Inhofe. It's funny how you can get two different
inferences hearing the same person talk. I think Ms. Dunlop,
when I heard your references to Democrat and Republican, I got
the impression you were showing it was not partisan, as opposed
to being partisan.
Ms. Dunlop. Yes, sir, Senator. That was my intention. We in
the Allen administration who are Republicans reviewed the
consent order that had been negotiated by previous Democrat
office holders, and agreed that it was the right track to take
and the river was being cleaned up. We had no input from EPA
indicating, in 1994 when we took office, that they disagreed
with this consent order. We did not hear from EPA until they
announced publicly that they were filing suit, which was after
we announced that we were filing suit.
Senator Inhofe. Well, that's exactly the message I got. I
have to make one comment, if I could, Mr. Chairman, about the
reference made to the Gestapo tactics. I can assure you that
there are Gestapo tactics by the EPA. I think of the story I've
told so many times, I have about 20 of them that Administrator
Browner gets tired of hearing.
One was the guy that owned the lumber company in Oklahoma
who had disposed of his crankcase oil legally 10 years ago to a
licensed contractor, licensed by the Federal Government and the
County of Tulsa and the city of Tulsa and the State of
Oklahoma. Only to come back and receive a letter from the EPA
saying that they're going to invoke fines of $5,000 a day
because some of that was traced to a Superfund site.
Now, recognizing that they can't go through with that, it's
the idea, the tactic, the fear that is instilled in these
people who are out there and are the law-abiding taxpayers, who
are paying for all this fun we're having up here. Just a
thought, Mr. Chairman.
Senator Baucus. I'd like to ask you as a panel whether you
don't think that still, by and large, this system works pretty
well. We have a very complex, very large country. It's not 50
countries, it's 50 States in one country--a federalist system.
It's very complicated. Each State is different. Each region is
different. Each company is different.
This is not an easy matter. I think most people who serve
in the State capacity or Federal capacity are trying to do a
good job, as each person sees it. Of course, there's a little
bit of localism, people tend to see the world from their
perspective.
I'd like to ask you generally if you think the system, for
all of its warts, still works pretty well. Are the bad actors
disciplined? Most people aren't bad actors. They may slip here
and there, but by and large, most people, most companies, most
independent operators, probably do a pretty good job.
Do any of you agree with my assessment? If you disagree,
where would you like the laws to be significantly changed? I'm
not talking about working around the edges. I'm talking about a
major change in the law.
Mr. Tulou. Mr. Chairman, I'd just like to say that I
generally agree with you. I think what we're dealing with here
is less a statutory issue than it is a cultural issue. I think
the environmental movement is phasing into a quiet revolution.
We've gone through 20 or 25 years of command and control where
we had to do a lot of aggressive activity in order to get
peoples' attention.
I think the educational process has gone a logical course.
I think we at the States and EPA are in the process now of
trying to figure out how to go from here. I think we need to
shift some gears. I think we need to think in terms of broader
environmental goals, shoot for those environmental goals, worry
a little less about the bureaucratic and programmatic
objectives that we might have, and rely a little bit more on
the understanding of their responsibility that our industrial
constituents have and work in partnership better to try to find
the best way to get to compliance.
Senator Baucus. But I sense that you all are trying to do
that.
Mr. Tulou. We are. I think we're struggling right now
because I think there are pockets in State government and EPA
where that mind shift is not taking place. I think that's a
source of a lot of the problem.
Senator Baucus. It's important to point out some of the
problems. But I think it's much more important to look for some
of the solutions here. I think you're focusing on that.
A few years ago, I think it was 1994, I asked Administrator
Browner what grade she would give to the Federal-State
relationship. She gave it then, in 1994, a B. I'd like to ask
you what grade you'd give it, at least with respect to
enforcement. Any of you.
Ms. Bangert. On behalf of Colorado----
Senator Baucus. Now, remember, this works both ways. We're
talking about the relationship, we're not talking about EPA.
We're talking about the relationship.
Ms. Bangert. I think the relationship in Colorado right
now, and this can change, sometimes from month to month,
sometimes from year to year.
Senator Baucus. Just generally during the last year or so.
Ms. Bangert. I'd say a C.
Senator Baucus. Anybody else? Mr. Rubin?
Mr. Rubin. Senator, I'd say it's been an A in Connecticut.
Mr. Tulou. B plus.
Mr. Coleman. I'd say it depends on what part of the agency
you're talking about. If you're talking about the upper levels,
like the assistant administrator for enforcement, Mr. Herman,
he's certainly a man, and his immediate staff are people that
are highly committed. They believe in what they're doing and I
think they're trying to effect a change. There's a need for a
change.
Our programs have matured. Our programs are not like they
were when the acts were first passed. Our most recent act is
the Clean Air Act.
Senator Baucus. Just roughly, today. The Clean Air Act
passed a long time ago. I'm talking about now.
Mr. Coleman. In terms of which act needs to be attacked
first----
Senator Baucus. No, generally, the enforcement
relationship, Federal-State relationship with respect to
enforcement, just generally.
Mr. Coleman. Generally, it's probably still a B. It's
probably an A with the top, it's probably a C with some of the
rest.
Senator Baucus. Ms. Dunlop.
Ms. Dunlop. I guess I came through public schools when
grades were tougher. I would say a C. By and large, our
technical people have an excellent working relationship with
EPA. But I think average is what we're looking at now. I think
States are----
Senator Baucus. Well, what needs to be done to improve it
without blaming somebody?
Ms. Dunlop. I don't know that--well, let me just say this.
First of all, the Environmental Protection Agency needs to
focus the same and perhaps more resources on the Federal
Government facilities in States which in many instances are the
cause of most of our serious pollution problems, at least in
the Commonwealth of Virginia. And they need to be more
cooperative with the other Federal agencies.
For instance, on this Smithfield case, Senator, we held up
our filing at the request of the Department of Justice.
Senator Baucus. What must States do to improve cooperation?
What must Virginia do to improve the cooperation?
Ms. Dunlop. I think we need to continue to have these
exchanges of information. The Connecticut experience I think is
one that can be more greatly utilized in Virginia.
Senator Baucus. That's good.
Thank you very much, all of you. We appreciate your help.
We'll now move to our third panel, which consists of Mr.
Todd Robins, environmental attorney at U.S. Public Interest
Research Group; Professor Robert Kuehn, law professor at
Tulane; and Mr. Robert Harmon, chairman of the board of Harmon
Industries, Blue Springs, MO.
Mr. Harmon, why don't you proceed.
STATEMENT OF ROBERT E. HARMON, CHAIRMAN OF THE BOARD OF
DIRECTORS, HARMON INDUSTRIES, INC.; ACCOMPANIED BY: TERRY J.
SATTERLEE, ESQ., LAW FIRM OF LATHROP & GAGE L.C., KANSAS CITY,
MO
Mr. Harmon. Mr. Chairman and members of the committee, my
name is Robert E. Harmon. I'm chairman of the board of Harmon
Industries, Inc.
I appreciate the opportunity to appear before the committee
this morning to discuss important issues of Federal-State
relations in enforcement of the environmental laws. I am
accompanied today by Harmon's attorney, Ms. Terry J. Satterlee,
of Lathrop & Gage of Kansas City.
With your permission, I would like to read a brief
statement explaining the reasons for Harmon's interest in this
important issue.
Harmon Industries is a leading supplier of railroad signal
and train control and related equipment for use in the railroad
industry. The company is headquartered in Blue Springs, MO, and
has assembly and manufacturing facilities across the country.
My father founded the company, which is now Harmon Industries,
in 1946. Today, Harmon employs more than 1,500 workers
throughout the United States had sales of more than $175
million in 1996. The company stock is publicly traded on the
NASDAQ national market system.
I believe that Harmon's case well illustrates 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 the EPA's claimed
``overfiling'' authority. If the EPA has this authority,
regulated industries cannot negotiate binding agreements with
authorized State agencies since the EPA may later disagree with
and completely override the State's resolution.
One of Harmon's facilities is located in Grain Valley, MO,
which is a rural, agricultural area outside of Kansas City. The
Green Valley plant assembles circuit boards for use in railroad
control and safety equipment.
As was common practice in our industry, prior to 1987,
Harmon employees used small amounts of organic solvents to
remove soldering flux from the circuit boards they were
assembling. The solvents were kept at the employees' work
benches in small jars. Residues were collected in a 3 to 5
gallon pail and, unfortunately dumped by Harmon maintenance
employees approximately once every 1 to 3 weeks on the ground
outside the back door of the Grain Valley plant. This practice
probably began in the late 1970's.
Harmon's management was unaware that the employees were
disposing of used solvents until the practice was discovered
during a routine internal safety inspection in November 1987.
In December 1987, while its investigation was ongoing,
Harmon changed its assembly process to a State-of-the-art
technology using non-hazardous cleaning material rather than
organic solvents to remove soldering flux from the equipment
being assembled. As a result of these changes, Harmon ceased
generating hazardous waste at the Grain Valley facility. These
changes had an initial cost of $800,000, and Harmon incurs an
ongoing cost of $125,000 a year as a result.
Since 1988, the MDNR reported the status of the ongoing
investigation to the EPA during quarterly program meetings, and
promptly provided the EPA with copies of significant
correspondence, plans and other documents concerning the MDNR's
dealing with Harmon. In the end, Harmon's environmental
consultants concluded that the contamination at the Grain
Valley plant was limited and posed no threat to human health
and the environment.
In a State court consent decree, negotiated between Harmon
and MDNR, MDNR imposed regulatory sanctions on Harmon, but
agreed not to seek monetary penalties against Harmon based on
its voluntary self-reporting and its prompt action to
investigate and remedy any contamination.
Senator Baucus. Mr. Harmon, your 5 minutes have expired.
How much farther do you have to go?
Mr. Harmon. I'm very close.
Senator Baucus. That's in the eye of the beholder. How
about, can you wrap up in 1 minute?
Mr. Harmon. The decree specifically provides that Harmon's
compliance with the consent decree constitutes full
satisfaction and release from all claims arising from
allegations contained in the plaintiff's petition. The consent
decree provides in paragraph 23(a) that it will terminate when,
among other things, the MDNR issues a post closure part (b)
permit. This condition was satisfied on July 31, 1996.
Even though MDNR has been authorized by EPA to run the RCRA
program in Missouri, and despite Harmon's extensive dealings
and settlement with MDNR, after the entry of the State court
decree, the EPA continued to pursue a separate Federal
administrative action, seeking over $2.7 million in RCRA
penalties. The EPA sought these penalties for exactly the same
conduct that Harmon was the subject of Harmon's State court
decree with the MDNR.
I will stop at that. I have a few more paragraphs.
Senator Baucus. Thank you.
Professor.
STATEMENT OF ROBERT R. KUEHN, PROFESSOR, TULANE LAW SCHOOL, NEW
ORLEANS, LA
Mr. Kuehn. Good morning, Mr. Chairman and members of the
committee. My name is Robert Kuehn, and I'm a professor at
Tulane Law School in New Orleans. I teach classes in
environmental enforcement, environmental advocacy and hazardous
waste regulation.
I'd like to discuss the results of some research I
published last year of the appropriateness of devolving all or
most enforcement of Federal environmental laws in the hope it
might aid you in reviewing the Federal-State enforcement
relationship. Part of my work focused on utilizing the non-
ideological public policy criteria of effectiveness, efficiency
and equity to compare federally run enforcement programs with
State-run programs.
Focusing on effectiveness, as you've heard today, one
problem in trying to compare Federal and State enforcement is,
there is no consensus on how to define and measure effective
enforcement, since it could be characterized by enforcement
outputs, such as the number of enforcement actions or outcomes,
for example, to increase compliance or lessen pollution.
When they did look at some of the available effectiveness
evidence, the General Accounting Office found that the track
record of States in assessing penalties and recovering the
economic benefits of non-compliance ``is even more
disappointing than the record of EPA.'' Such data, however, is
complicated by the fact that while EPA may impose larger
penalties, its cases do tend to focus more on serious offenses.
In addition, as numerous speakers today have noted, penalty
amounts alone do not necessarily define effective enforcement.
We do know, however, that historically, when the Federal
Government has reduced enforcement and increased State
responsibilities, States have also tended to reduce their
regulatory activities. Therefore, reducing Federal enforcement
could even decrease the effectiveness of States.
Turning to efficiency, lack of data prevents a conclusion
on the relative efficiency of Federal and State enforcement
programs. It is clear, though, that Federal enforcement is
actually a source of revenue for the Federal Government, taking
in $3 to $25 for every dollar spent on enforcement.
While the overlap that occurs because of the existence of
both Federal and State enforcement programs, or from overfiling
cases, would appear to be inefficient, this dual enforcement
can have significant deterrent benefits that are otherwise not
available alone. In fact, the mere threat of Federal
enforcement clearly enhances the success of State programs, but
makes it difficult to judge the efficiency or effectiveness of
State programs in the absence of the threatened release of what
has often been referred to as the EPA gorilla waiting in the
closet.
Finally, pragmatic devolution of enforcement requires that
it be vested in a level of Government that can assure equitable
treatment of businesses and citizens. As markets for goods and
services have become increasingly national, a centralized
enforcement program is in a unique position to provide
consistent, nationwide enforcement.
Only a significant Federal program can ensure that a
company operating in a State with lax enforcement does not
obtain a competitive advantage over a firm operating in a State
with more rigorous enforcement Consistent Federal enforcement
therefore maintains a level playing field and minimizes market
imbalances that may result from an equal enforcement among the
States.
In addition, if the rationale for the national standards
that are legislated by Congress is that each citizen has a
right to the same level of environmental quality. Many citizens
could lose this uniform level of protection if there were no
Federal enforcement to ensure that all States provide
fundamental environmental protection.
In conclusion, although the data is limited, if we take a
pragmatic approach to devolution of enforcement, there is still
a need for Federal enforcement and little support for dramatic
devolution of Federal enforcement. This is not to say that the
Federal-State enforcement relationship could not be improved. I
commend EPA and the States for their efforts in developing
oversight reform proposals, such as the new enforcement
performance measures, differential oversight and greater use of
block grants.
I hope the committee will encourage the States to gather
additional data on effectiveness and efficiency, so that
disputes over the proper mix of Federal and State enforcement
can be resolved on sound public policy grounds. I also hope
that you will encourage Federal and State officials to continue
to cooperate on enforcement so that the public will receive
what they want and need, a Government program, whether Federal,
State or both, that effectively, efficiently and equitably
enforces Federal environmental laws.
Thank you.
Senator Lautenberg [assuming the chair]. Thank you very
much, Professor.
Mr. Robins.
STATEMENT OF TODD E. ROBINS, ESQ., ENVIRONMENTAL ATTORNEY, U.S.
PUBLIC INTEREST RESEARCH GROUP
Mr. Robins. Thank you.
Good morning, Mr. Chairman and members of the committee. My
name is Todd Robins. I'm an environmental attorney with the
U.S. Public Interest Research Group, the national lobbying
office for the State PIRGs, which are non-partisan, non-profit
watchdog organizations active in 30 States around the country
with nearly a million citizens members.
I also chair the enforcement work group of the clean water
network, a national coalition of more than 900 groups.
I would like to say at the outset that I believe many of
today's speakers share the same goal, which is compliance with
the law in the first instance, in order to achieve the
objective of a cleaner environment. I am here today to
demonstrate that the way we get there is not by voluntary
approaches that rely on little more than industry's good
intentions, but instead, by creating a constructive partnership
between EPA, the States, and citizens that maintains a genuine,
firm a predictable threat of serious consequences for those who
choose to violate our pollution laws.
Specifically, I'd like to make three points. The first is
that the failure or unwillingness of States to enforce the law
has encouraged widespread violations of our environmental laws
and promoted an atmosphere in which it simply pays to pollute.
The second is that despite important instances of Federal
intervention, the EPA is not doing enough to ensure the
integrity of the programs it oversees.
Finally, the no-nonsense approach to Clean Water Act
enforcement that we have seen in New Jersey since 1990,
characterized by mandatory minimum penalties for serious
violations, has been remarkably successful, and should serve as
a national model for enforcement of the Clean Water Act and
other Federal environmental statutes.
Recently, representatives of polluting industries have made
the claim that environmental compliance is the rule, not the
exception. Our research, however, tells a very different story.
In March of this year, U.S. PIRG released our dirty water
scoundrels report, in which we found that nearly 20 percent of
the largest water polluters in this country were listed by EPA
in significant non-compliance with the Clean Water Act in at
least one quarter from January 1995 through March 1996.
What's more, these EPA numbers are probably just the tip of
the iceberg. When we looked at industry's self-reported
discharge data for the first quarter of 1996, we found that the
number of large, industrial polluters that exceeded their
pollutant limits by 50 percent or more was more than three
times the number that EPA had listed in significant non-
compliance for that quarter.
So not to rain on the parades of those who assert that
compliance and environmental quality are not necessarily
connected, but the latest statistics also show that 40 percent
of our waters remain unsafe for fishing and swimming. We think
that these findings, when taken together, as well as those of
the EPA inspector general regarding air violations in
Pennsylvania, demonstrate gross and unacceptable levels of
noncompliance with our environmental laws.
The question then is why are serious and chronic violations
so widespread. The answer, to us, is obvious. Environmental
laws are not being enforced effectively. This problem of
inadequate State enforcement is not a new one. But in many
States, it appears to be growing worse. A significant number of
States around the country have explicitly reduced or even
dismantled already weak and underfunded environmental
enforcement programs, with the promise that voluntary,
handholding compliance assistance efforts will achieve
compliance more efficiently.
Our research shows that that promise has been broken. We
have compiled evidence from around the country showing that
while numbers of inspections, enforcement actions and penalties
have declined rapidly and dramatically in many States, rates of
noncompliance have remained persistently high, and in some
States, have worsened.
While this evidence is presented comprehensively in my
written statement, brevity requires that I share just a few
brief examples of go easy State enforcement that may be of
interest to members of the committee. For example, in Oklahoma,
the State Department of Environmental Quality has collected a
total of $1,000 for water pollution violations in the past 3
years. Meanwhile, approximately 26 percent of the largest water
polluters in Oklahoma were listed by EPA in significant
noncompliance at least once during that same 3 year period.
In Florida, penalties assessed by the State Department of
Environmental Quality are down in some areas by 90 percent. Yet
87 different facilities in Florida were listed by EPA in
significant noncompliance with the Clean Water Act in 1995 and
1996. What is worse is that a substantial number of those
polluters were violating out-of-date permits. Forty-one percent
of Florida's major industrial facilities are currently
operating with expired permits, according to EPA.
While these examples represent only a sampling, what they
illustrate is alarming. Weak enforcement at the State level
encourages noncompliance. Without a credible, predictable
deterrent that makes it more expensive to break the law than to
comply with it, polluters have little incentive to clean up
their acts, and law abiding companies who take their
environmental responsibilities seriously are disadvantaged.
Given the eagerness of many States to turn their backs on
enforcement, we believe that EPA must step up to the plate to
ensure the integrity of the programs it oversees. While a non-
intrusive oversight role may be appropriate when State
enforcement is functioning as it should, under current
circumstances in some States, it is critical that EPA act to
guarantee that minimum national standards are met.
Some recent cases, including the Smithfield Foods case,
indicate that Federal intervention can provide the bottom line
in protecting public health and the environment, when States
fail to fulfill their delegated responsibilities. However, EPA
could be and should be doing more. Despite complaints about EPA
overfiling by State officials, the EPA enforcement presence, if
anything, has dwindled. Clean water inspections are down 31
percent. Safe drinking water inspections are down 42 percent.
Pesticide inspections are down 80 percent.
Administrative enforcement actions for all statutes, are
down 41 percent. Civil referrals from EPA to the Department of
Justice are down 44 percent in clean water cases, 50 percent in
clean air cases since 1994.
To people in communities downstream----
Senator Baucus [resuming the chair]. I'll have to ask you
to wrap up, Mr. Robins.
Mr. Robins. I just want to say that to people in
communities downstream or downwind from unaccountable
polluters, who are frustrated by unresponsive State agencies,
EPA's waning commitment to step into the void is troubling.
From our perspective, the New Jersey clean water enforcement
act that has shown dramatic drops in violations as well as
fewer enforcement actions, is a remarkable success story.
Everybody wins.
The industry wins by paying lower penalties and enjoying a
level playing field. The State wins by producing better
compliance more efficiently. And most importantly, the public
wins by having a more accountable system as well as a cleaner
environment.
So building on this success story, U.S. PIRG and the Clean
Water Network strongly supports Senator Lautenberg's and
Senator Torricelli's Clean Water Enforcement Act, S. 645, as a
tough, pragmatic and proven way to improve environmental
enforcement.
Senator Baucus. Thank you very much.
Mr. Harmon, I don't know the specifics of your case,
obviously, but you seem to be saying that even though things
were worked out to some degree between your company and the
appropriate authority in Missouri, that then the Feds came in.
Mr. Harmon. That's right.
Senator Baucus. Over the top. Do you think that's unfair?
I'm just asking, generally, do you think the general
proposition, there should never be overfiling by the Fed? The
Fed should not step in? Or is it just wrong in this case. I'm
just trying to get a sense of where you are.
Mr. Harmon. I don't know that I'm in a position to make
that judgment, from where I sit. But certainly in our case,
where we voluntarily turned ourselves in for a situation that
was not hazardous to anybody's health, and we volunteered to
clean it up at our cost, and we had a court order, consent
decree from the State, certainly I think the actions by the EPA
were a little bit aggressive in that regard.
Senator Baucus. When did EPA first become aware of your
actions or the State.
Mr. Harmon. It was about the same time that the Missouri
Department of Natural Resources, I think they communicate with
each other on a quarterly basis. So my assumption would be that
as soon as we turned ourselves in to the Missouri Department of
Natural Resources, they in a very timely manner informed the
EPA of what was going on, and they kept them informed.
Senator Baucus. Were you under any illusion, or were there
any discussions as far as you're aware of between either EPA
and the Missouri enforcement authority and yourself as to what
EPA would or would not do or might or might not do? What did
EPA say?
Mr. Harmon. I think it was a surprise to them as well as
us.
Senator Baucus. A surprise to whom?
Mr. Harmon. To the Missouri Department of Natural
Resources, that there was an overfiling.
Senator Baucus. Did anyone ask EPA whether there might be
an overfiling, or what action EPA took?
Mr. Harmon. I'm not aware. Counsel says that the EPA
informed MDNR, but the MDNR did not inform us.
Senator Baucus. I see.
Mr. Harmon. We were operating in good faith, cleaning up
the contamination and thinking that our consent decree was
going to be adhered to. All of a sudden, we found that not to
be the case.
Senator Baucus. I don't want to prolong this, but did you
or your counsel think about directly asking EPA that question,
whether EPA might be interested in an enforcement action?
Mr. Harmon. During the administrative law judge hearing, we
asked him what we should have done differently. He said we
should have communicated with the EPA, both of them together.
Clearly, that was not our understanding in the very beginning.
I don't think that's the way it should be done.
In other words, it's our understanding that the authority
rested in the Missouri Department of Natural Resources in this
particular case.
Senator Baucus. Again, I don't know the specifics of your
case, so it's hard to comment on it.
Mr. Harmon. The litigation is still ongoing. We're 10 years
into this thing, and millions of dollars. And we've got it
cleaned up. But we're still----
Senator Baucus. Mr. Robins, I was curious to hear your
testimony. You're saying not very much is being done. Why?
Mr. Robins. Mr. Chairman, our research, U.S. PIRG has been
conducting research into EPA's compliance.
Senator Baucus. Is there a trend? Is there a fall-off?
Mr. Robins. What we've been doing is tracking our
compliance rates under the Clean Water Act for many years. What
we're seeing consistently is persistently higher rates of
noncompliance and violation levels. But at the same time, where
we're seeing a change is in the commitment on the part of both
States and EPA to enforce the law effectively.
Senator Baucus. A reduction?
Mr. Robins. A reduction. We're seeing several States just
slashing environmental budgets, enforcement budgets,
enforcement staff. We've seen it in the southeast, we've seen
it in Rhode Island. In doing that, they've been doing it with a
philosophy, we've heard it discussed several times today, a
philosophy of compliance assistance, let's not enforce the law,
let's focus on compliance, as if enforcement is a dirty word.
Our feeling is that helping small businesses to understand
and comply with complex environmental laws is absolutely a
justifiable and important thing to be doing, but only with a
bottom line, underlying deterrent that provides an incentive
for companies to abide by the law and does not allow companies
to reap economic benefits from pollution.
Senator Baucus. Right. Now, in your judgment, long with the
decline in enforcement, has there also been an increase in
pollution levels or not? Or have you measured that?
Mr. Robins. Well, it's an interesting question. People in
the public and members of citizen groups are interested in that
information. People in communities who are interested in
knowing what's being dumped into their waters and spewed into
their air would like to know that, we feel like we have the
right to know.
In some areas, there is improving access to information
like the toxics release inventory. On the water side, which is
where my area of expertise lies, unfortunately it's hard to
tell what is the quality of our water and whether it's
improving or not. We have statistics that show that 40 percent
of our Nation's rivers, lakes and coastal areas remain unsafe
for fishing and swimming.
However, that data is based upon inventories conducted by
the States every 2 years and submitted to EPA and to Congress.
Unfortunately, States on average assess about 17 percent of
their waterways when they do these surveys, even though the
Clean Water Act enacted 25 years ago requires them to survey
all of their waters.
So honestly, water quality is anybody's guess. I think in
some cases, the water is indeed getting dirtier.
Senator Baucus. My time's expired.
Senator Lautenberg.
Senator Lautenberg. Yes, very briefly, Mr. Chairman. I
wanted to ask Mr. Robins whether, if there were mandatory
minimums that established a kind of universal level for
penalties for those who violate the laws, do you think that
might serve as a substitute for such things as overfilings or
different approaches by the States? Might that clear up a lot
of the problems? Would it be a total substitute?
Mr. Robins. I think it's an absolutely important substitute
that we advocate. I think the experience in New Jersey since
1990 proves that out. In New Jersey in 1990, the State enacted
the Clean Water Enforcement Act which requires the agency in
New Jersey to impose mandatory minimum penalties for serious
violations and instances of significant noncompliance.
What we've seen, and the New Jersey Department of
Environmental Protection has recently concluded, and we agree,
is that the deterrent value and the certainty of that swift and
regular response, when there are serious violations, has caused
permit holders to take their permits more seriously. So what
you're seeing is violations dropping by a significant amount,
while the numbers of enforcement actions and penalties that the
agency has to pursue is also dropping.
So they're getting better results for the environment wish
fewer resources, and it's important to note that there have
been no instances of Clean Water Act overfiling by EPA in New
Jersey as a result. The agency is doing what it's supposed to.
Enforcement is working the way it's supposed to, and so what
you have is EPA playing a much more constructive and peripheral
oversight role, as opposed to feeling the need to step into the
void of State inaction to protect bottom line standards.
Senator Lautenberg. So it would be one of several tools?
You wouldn't abolish the opportunity for overfiling if it was
called upon?
Mr. Robins. No, absolutely not. The fact of the matter is,
our waters and our air do not respect political boundaries. And
there are cases when national interest would require that EPA
step in. There are also cases, and the States have acknowledged
this, where there is a benefit, a strategic benefit to EPA from
a farther distance coming in and taking a stronger action.
Senator Lautenberg. I would just ask a curious question of
Mr. Harmon. There's another Harmon company in the stereo and
hi-fi--is that----
Mr. Harmon. Not related.
Senator Lautenberg. OK. I was curious, because I know
they're in other locations.
Mr. Harmon. We get a lot of their mail from time to time.
Senator Lautenberg. Do you get any of their bills?
Mr. Harmon. Probably.
[Laughter.]
Senator Lautenberg. Mr. Chairman, there are lots of
questions that this panel and the others provoke, but
unfortunately time flies, and I hope that we'll be able to, if
necessary, submit questions and get written answers.
Thank you very much.
Senator Baucus. Yes, thank you, Senator. The hearing record
will be open through Friday for additional questions and for
witnesses to respond to points made by other witnesses.
Hearing is adjourned.
[Whereupon, at 12:15 p.m., the committee was adjourned, to
reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Prepared Statement of Lois J. Schiffer, Assistant Attorney General,
Environment and Natural Resources Division
i. introduction
Mr. Chairman, I am pleased to have this opportunity to meet with
you and the Members of this Committee to discuss how the Environment
and Natural Resources Division--working closely with our partners at
the U.S. Attorneys' Offices, the EPA, other Federal agencies, and the
States--protects the quality of our environment and the health of our
communities. We are the Nation's environmental cops on the beat.
Through tough and fair enforcement, our job is to ensure that all
citizens can breathe clean air, drink pure water, and enjoy clean lakes
and streams; that law-abiding businesses have a level economic playing
field on which to compete; and that environmental bad actors know they
will be punished. I am pleased to report that our environmental
enforcement efforts are strong and effective--due largely to
cooperative relationships we have fostered with United States
Attorneys, State attorneys general, State agencies, and local
prosecutors and investigators throughout the country.
I would like first to say a few general words about the Environment
Division. I will then discuss some of our enforcement goals; how we
have worked to enhance cooperative efforts with our partners in the
States; recent initiatives to make our enforcement program more
effective; and the results we have achieved.
A. The Environment and Natural Resources Division
The Environment and Natural Resources Division is responsible for
representing Federal agencies in environmental and natural resources
litigation before Federal and State courts. We bring affirmative cases
and defend challenges to agency actions. Together with our colleagues
in the 94 U.S. Attorneys' Offices, we work closely with client agencies
to enforce and defend the Nation's environmental and natural resources
laws.
The Division, once known as the Land and Natural Resources
Division, was created in 1909. From the start, the Division represented
Federal agencies in matters related to Federal lands, water issues, and
Indian disputes. Over time, our responsibilities have grown to include
defensive and affirmative litigation concerning the protection and use
of the Nation's natural resources and public lands; wildlife
protection; Indian rights and claims; cleanup of hazardous waste sites;
acquisition of private property for public purposes; defense of
environmental challenges to government activities; and civil and
criminal environmental law enforcement.
Our enforcement work has a long history. The Rivers and Harbors
Act, for instance, dates back to 1899. Many of the statutes we enforce
were adopted in the 1970's, and were adopted or amended on a bi-
partisan basis, often under Republican administrations. Our mission is
to enforce these laws--and to represent the interests of the United
States--fairly and effectively. To succeed, we work closely with a wide
variety of individuals and groups, including our client agencies, the
U.S. Attorneys' Offices, and local and State governments.
B. Sections in the Environment and Natural Resources Division
The Environment and Natural Resources Division is divided into ten
sections, each with its own expertise. Four sections have
responsibility for affirmative environmental enforcement:
1. The Environmental Enforcement Section conducts affirmative civil
litigation to control and abate pollution. This Section is responsible
for judicial enforcement of most of the pollution abatement statutes
and rules that regulate discharges into the Nation's air and water and
that govern pesticide operations, hazardous waste, and drinking water.
Finally, the Section brings natural resource damage actions on behalf
of Federal trustees (including the Departments of Agriculture,
Commerce, Defense, Energy, and the Interior), and claims for
contribution against private parties for contamination of public lands
and the recovery of money spent to clean up certain oil spills on
behalf of the Coast Guard.
Let me tell you about just one of the Section's notable recent
victories, in which we completed a landmark enforcement action against
General Motors Corporation. We alleged that GM had installed ``defeat
devices'' in more than 470,000 Cadillacs since 1990 in violation of the
Clean Air Act. These defeat devices overwhelm the car's catalytic
converter and emissions control system, causing carbon monoxide
emissions of up to three times the legal limit. We estimate that the
Cadillacs have been responsible for the illegal emission of 100,000
tons of carbon monoxide, which can impair vision, learning ability, and
work capacity. Carbon monoxide is especially threatening to people
suffering from cardiovascular disease.
Working with the EPA and the U.S. Attorney's Office, the Justice
Department achieved a $45 million settlement with GM. GM will recall
and repair 470,000 Cadillacs, pay a fine, and spend $7 million to
offset the pollution caused by its violations. And recognizing
California's unique status under Section 209 of the Clean Air Act, the
Department of Justice and EPA closely coordinated the negotiation and
implementation of the General Motors settlement with the California Air
Resources Board.
2. The Environmental Crimes Section plays two primary roles: First,
its attorneys investigate and prosecute criminal violators of Federal
environmental statutes. Second, the Section acts as a resource for U.S.
Attorneys, the FBI and the EPA, and State and local investigators and
prosecutors. The Section provides highly trained and experienced
prosecutors to assist in resource-demanding trials; offers advice and
expertise to Assistant U.S. Attorneys and agents in their cases;
provides training and policy development to improve the environmental
criminal enforcement program; and works with U.S. Attorneys' Offices on
coordinating committees and on task forces with our State and local law
enforcement counterparts.
We bring environmental criminal cases for the same reasons the
Department brings other criminal cases: to promote respect for the law,
to achieve adequate deterrence, to provide just punishment, to ensure
restitution for victims, and to remedy the harm caused by offenses. Our
environmental crimes program is an essential part of our program to
protect human health, the environment, and our natural resources. For
example, in 1995 a Federal grand jury in Ohio returned criminal
indictments against a barge company, M/G Transport Services, Inc., and
some of its employees, including a former vice president and two tow
boat captains, charging Oil Pollution Act and Clean Water Act
violations for illegal pollution into the Ohio River, and of conspiracy
to violate the Oil Pollution Act. Following trial, in December 1995, an
Ohio jury returned guilty verdicts in the case. In the year following
this indictment and the resulting convictions, the number of
unidentified, or ``mystery,'' oil sheens on the Ohio River system
reported to the National Response Center decreased significantly.
The Department's criminal enforcement program has long benefited
from close cooperation with and support of State and local authorities.
For example, in 1994, Giacomo Catucci was convicted of the illegal
disposal in Rhode Island of PCB's from an electrical transformer and
failure to notify authorities of the release of that hazardous
substance. The case, prosecuted by an Assistant U.S. Attorney, was
investigated entirely by the Rhode Island Department of Environmental
Management. The State continued its close support of the prosecution
all the way through trial.
3. The Environmental Defense Section defends legal challenges to
Federal agencies' rulemakings, regulatory decisions, and permit actions
under Federal statutes that protect the public against pollution. The
Section's clients include the EPA, the Department of the Interior, the
Army Corps of Engineers, and the Coast Guard. Since Federal agencies
generally have the same obligations as private parties to comply with
the environmental laws, the Section also represents agencies sued by
States and citizens groups for violations of environmental laws. In
addition, the Section has responsibility for affirmative enforcement of
the wetlands laws.
4. The Wildlife and Marine Resources Section is responsible for
both civil and criminal cases arising under the Federal fish and
wildlife conservation statutes. Litigation under these statutes can
play out in any of three different contexts: defense of Federal
agencies whose programs are challenged as inconsistent with Federal
conservation statutes; civil enforcement, usually to enjoin persons
from violating Federal conservation statutes; and criminal
prosecutions.
Each year, approximately $5 billion in illegal wildlife shipments
is traded from country to country. The global illegal trade in wildlife
is said to generate more profit than illegal arms sales. It constitutes
a worldwide black market second in size only to the drug trade. The
Wildlife Section, with local U.S. Attorneys' Offices, brings criminal
prosecutions to stop international wildlife smuggling, interstate
trafficking in protected species, and Federal wildlife violations such
as eagle poisonings and migratory bird sales.
Some of you may have read about Tony Silva, an internationally
prominent writer and lecturer on the plight of endangered parrots in
the wild. Last year, Mr. Silva pled guilty to a far-reaching conspiracy
to smuggle into this country highly protected species of birds trapped
in the wild in South America. The smuggling conspiracy lasted 5 years,
and involved rare Hyacinth Macaws worth more than $1 million. These
birds are so rare that they have the highest level of protection under
the Convention on International Trade in Endangered Species (CITES).
CITES, which regulates trade in species actually or potentially
threatened with extinction, boasts 136 member Nations. Through
international cooperation, the treaty furthers member States' goal of
protecting endangered species and reflects an international consensus
that trade in wild fauna and flora must be done legally, sustainably,
and without further detriment to wild populations. As a result of our
effort to stop Mr. Silva's smuggling conspiracy, a Federal court
sentenced him to 82 months in prison. He is appealing the court's
refusal to let him withdraw his guilty plea.
Silva was charged as part of Operation Renegade, a U.S. Fish and
Wildlife Service probe of the illegal international smuggling of
protected exotic birds or their eggs from South America, Africa,
Australia and New Zealand. The operation has resulted in convictions of
37 people, over half of whom have been sentenced to prison terms,
making it among the most successful wildlife law enforcement
initiatives ever undertaken. In other recent cases, we have prosecuted
smugglers who transported rare snakes and tortoises out of Madagascar
by hiding them in airline passenger baggage; a black marketeer who
tried to bring an entire tiger skeleton into the United States; and an
individual who smuggled into the country hundreds of endangered
tarantulas. In that case, the court received evidence that depletion of
this species by international smuggling had impaired the search for a
cure for Alzheimer's and Parkinson's diseases.
5. The Division's other sections work on a broad range of issues
that reflect the diversity of our clients and of the Federal
environmental and natural resources laws:
The General Litigation Section defends agencies sued under
statutes that govern management of National Forests and other public
lands, and under the National Environmental Policy Act (NEPA). The
Section also litigates claims filed by Indian tribes against the
government and defends against takings claims in the Court of Federal
Claims.
The Indian Resources Section litigates on behalf of Native
Americans pursuant to the United States' trust responsibility.
The Land Acquisition Section handles the acquisition of
property by the process of eminent domain for congressionally
authorized public purposes.
The Appellate Section handles appeals in cases originating
in the litigating sections, and assists the Solicitor General when the
Division's cases reach the United States Supreme Court.
The Policy, Legislation, and Special Litigation Section
provides counsel to the Assistant Attorney General, has responsibility
for correspondence and Freedom of Information Act matters, and serves
as the Division's ethics advisor and Alternative Dispute Resolution
coordinator. The section also coordinates the Division's legislative
and international work.
The Executive Office provides administrative support
services for the Division.
C. The Division's Clients
Civil cases, and many of the criminal cases, litigated by the
Environment Division are referred by other Federal agencies--either
when those agencies request the Division to file an action, or when
they have been sued. The Division's principal clients include the EPA
and the Departments of Agriculture, Commerce, Defense, Energy, the
Interior, and Transportation. However, we have represented virtually
every Federal agency and currently have more than 12,000 pending cases
and matters.
ii. environmental enforcement goals and accomplishments
A. Overall Goals
With that introduction to the Division's varied work, let me turn
to the Justice Department's goals for its environmental enforcement
program. We bring criminal prosecutions and civil enforcement actions
to protect the environment, to remedy environmental harm, to punish
wrongdoers, and to deter future violations. Our law enforcement efforts
protect our lakes and streams, our drinking water, the air we breathe,
our food supply, the land our children and grandchildren will inherit
from us, and even the ozone layer that protects us from harmful
ultraviolet rays. Without vigorous enforcement of our environmental
laws, the health of our families, our communities, our environment, and
our economy would all be compromised.
How does environmental enforcement protect the economy? First,
clean air and clean water are essential ingredients for a healthy
economy. Pollution decreases land values, can impose steep health care
costs, and harms industries, such as fishing, tourism, and recreation,
that depend on robust natural resources. Second, bad actors--be they
international chlorofluorocarbon (CFC) smugglers or companies that do
not install required pollution control equipment--put law-abiding
businesses at a competitive disadvantage. For example, a national
alliance of major chemical companies that have invested in CFC
alternatives repeatedly has expressed strong support for the
Department's efforts to stop the illegal import of this ozone-depleting
refrigerant. 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.
Environmental protection statutes promote and encourage voluntary
environmental compliance, but it is a vigorous enforcement program that
drives such compliance. While many people comply with the law for the
good of the community, there are many people who would not send their
tax checks to the IRS next April if tax violations carried no penalty.
They comply with the tax laws in part because they may get caught, and
sanctioned, if they do not. So, too, we cannot expect voluntary
compliance with environmental laws unless those laws are enforced, and
enforced vigorously. As William K. Reilly, the Administrator of EPA
between 1989 and 1993, stated during his tenure at EPA, the
``enforcement of environmental laws is absolutely essential'' and ``is
at the very heart of the integrity and the commitment of our regulatory
programs.'' See Reilly, ``The Future of Environmental Law,'' 6 Yale J.
on Reg. 351, 354 (1989).
Environmental violations have real victims. Polluting an
underground drinking water supply can threaten thousands of people. An
oil spill that damages an entire ecosystem--such as the Exxon Valdez
spill in Alaska--may undermine the economic foundation of surrounding
communities. The risk of harm can sometimes span the globe, as it does
when criminals illegally smuggle chemicals that damage the protective
stratospheric ozone layer. The harm from environmental violations may
extend far into the future, affecting the health of generations yet
unborn. Damage to natural resources can be permanent, as where a
species is lost, a precious wetland is destroyed, or a drinking water
aquifer or fishery is polluted beyond repair. This Division's job is to
ensure that the laws Congress has enacted to prevent such harms are
respected and obeyed.
B. Working to Foster Cooperation With State and Local Authorities
Cooperation with our colleagues in State and local law enforcement
is critical to achieving our goals. As a former local prosecutor,
Attorney General Reno is keenly aware of the importance of State and
local law enforcement to the effective implementation of Federal law.
This Division works in partnership with the States and the subdivisions
because we share a common mission with State attorneys general, State
environmental agencies, and local authorities. Cooperative enforcement
often maximizes the chances of success, maximizes resources, and avoids
duplication and misunderstandings.
1. Goals of the Federal Relationship With State and Local
Authorities
Our Federal environmental laws seek to assure all people in our
Nation a basic level of environmental protection. These laws are
implemented through a working Federalism that is critical to successful
environmental compliance. The Federal, State, and local governments all
have important roles. States are primary implementers of our
environmental laws, and may have more direct access to information
concerning polluters and their impacts on the local environment. Local
governments often are the most directly affected by environmental
violations. The Federal Government has special expertise across the
spectrum of environmental issues. We also have the depth to handle
especially large cases, and the reach to address pollution that spills
from one State into another. The national government has the unique
perspective and responsibility to stop industry from pitting one State
against another in a race to lower environmental protections for short-
term economic advantage at long term cost to our environment, public
health, and the economy. Finally, this Division can help to ensure that
protections for all people are enforced if a State cuts its
environmental budget or personnel.
Two elements are essential to an effective working federalism:
strong State programs that include strong enforcement, and cooperation
among Federal, State, and local government. In a moment, I would like
to tell you about steps this Division has taken to strengthen its
relationships with our colleagues in State and local government. But
first, let me illustrate the good results that those cooperative
efforts have brought.
2. Recent Examples of Cooperative Federal-State-Local
Relationship
Our working relationship with States generally has been a very
cooperative one. It unquestionably has resulted in better environmental
protection. A few examples:
a. Today, as we are speaking, the Environmental Enforcement Section
and the State of Ohio are scheduled to commence trial of a Clean Air
Act case against a lumber manufacturer in New Knoxville, Ohio. For more
than a decade, Hoge Lumber Company has been operating a wood-fired
boiler in violation of the State and Federal emissions limits for
particulates, which can lead to respiratory complications. The Ohio EPA
unsuccessfully sought time and time again to get Hoge to install
additional control devices that would halt its unlawful emissions. Last
year, the State joined our Federal action. Cooperating closely, we
filed a joint trial brief, have coordinated on witnesses, and are
proceeding at trial together.
b. In United States v. Marine Shale Processors Inc., lawyers from
my Division and the Louisiana Department of Environmental Quality
(LDEQ) shared the counsel table at trial. The defendant accepted
hazardous waste, claimed to recycle it into ``aggregate,'' and then
sold it to the public. The company marketed incinerator ash for $1 a
ton; ash that was high in heavy metals (including lead) was used on
roads, in driveways, and under a house in the community. After an LDEQ
inspection revealed numerous environmental violations, the State
referred the matter to EPA for enforcement.
As a result of our joint efforts with the State, a Federal court
enjoined Marine Shale from selling its ash to the public. The company
will have to pay a large civil penalty. Marine Shale is now shut down,
and the Federal and State governments are working to ensure compliance
with the environmental laws if and when the facility reopens.
c. Just 2 weeks ago, the State of California and the United States
lodged a joint consent decree resolving claims against Pacific Gas &
Electric Company (``PG&E''). The consent decree requires PG&E to
support environmental enhancement projects to protect estuaries near
Morro Bay and involving the State's Mussel Watch Program. We alleged in
the complaint that PG&E had violated the Clean Water Act and its
discharge permits by submitting and failing to correct incomplete and
inaccurate reports. The PG&E reports purported to show that the cooling
water system at PG&E's Diablo Canyon nuclear power plant complied with
the Clean Water Act by employing available technology to minimize
adverse environmental impacts. Information PG&E left out suggested
otherwise. For example, up to 90 percent of the larval fish in the
cooling water system perish. The State took the lead in investigating
the facts. At the State's invitation, State and Federal officials
joined forces to prepare for litigation and settlement negotiations.
Working together, we negotiated a precedent-setting settlement that
protects the environment and demonstrates the importance of accurate
self-reporting.
d. In United States v. ARCO Pipe Line Co., we worked closely with
the States of Indiana and Ohio to resolve claims arising when an oil
pipeline ruptured and discharged approximately 30,000 gallons of diesel
fuel into an agricultural field in Dekalb County, Indiana. The oil
flowed through a drainage ditch into Fish Creek, a tributary of the St.
Joseph's River and, among other injuries, severely harmed fish
populations. One species, the white cat's paw pearly mussel, is so rare
that Fish Creek is the only place in the world where it is known to
exist. Approximately seven miles of the Creek were impacted by the
spill. Under the decree, defendants ARCO Pipe Line Company and NORCO
Pipeline, Inc., will spend $2.5 million to improve the water quality in
Fish Creek, to bring back fish, mussel and wildlife populations to pre-
spill levels, to implement local education programs, and to protect the
waterway from future harm.
e. In a case developed with the Commonwealth of Virginia through
the Tidewater Environmental Crimes Task Force, George Madariaga last
year pleaded guilty to knowingly discharging spent sandblast abrasives
into the Elizabeth River. Madariaga's employees at the Virginia Dry
Dock Company, acting under his direction, regularly discharged
sandblast abrasives by, among other things, shoving the materials
directly into the water. The company did not stop its unlawful conduct
even after the Virginia Department of Environmental Quality (DEQ)
penalized it. As part of his plea agreement, Madariaga agreed
personally to pay the balance of the State's civil penalty, which the
company still had owed to the DEQ.
As these examples illustrate, we have a good relationship with our
partners in the States. Indeed, since the beginning of Fiscal Year
1996, we have entered into 25 settlements in which States were co-
plaintiffs and in which we split penalties with the States. All told,
States have collected almost $12 million from our joint enforcement
actions during that period.
3. Initiatives to Foster Cooperative Federal-State-Local
Relationship
Federal-state-local cooperation stems partly from steps this
Administration has taken to foster better communications with State and
local officials, closer intergovernmental cooperation, and more
efficient efforts. Let me describe a few of our other initiatives:
First, near the beginning of my tenure as Assistant Attorney
General, I created a new position, the Counselor for State and Local
Environmental Affairs. My Counselor works with State and local
officials and attorneys in our Division to maximize environmental
enforcement through cooperative efforts, and to act as liaison with our
colleagues in the States and with State organizations.
Second, we have established a policy that our Environmental
Enforcement Section will notify the State in advance of filing a suit
in that State, absent exceptional circumstances, and will invite the
State's participation or cooperation in the action. This policy
encourages cooperation and information exchange with the State, and
ensures that the States do not learn about our actions from reading the
newspaper. Just a few days ago, we received a letter from a State
Attorney General's office thanking us for sending these notices.
Third, we have developed particularly productive relationships with
State and local law enforcement personnel through environmental crimes
task forces and Law Enforcement Coordinating Committees (LECCs) across
the country. The Environmental Crimes Section has worked closely with
U.S. Attorneys' Offices to support these groups. For example, we have
supported the Environmental Crime Task Force in the Eastern District of
Missouri, which includes members from all Federal, State and local law
enforcement agencies that have responsibility for the detection,
investigation, and prosecution of environmental crimes in that
jurisdiction. That task force has been very successful in coordinating
and prosecuting environmental crimes. Because the State of Missouri has
only misdemeanor penalties for violations of State environmental law,
most cases are brought in Federal court. The Missouri Attorney General
has designated two assistant attorneys general to handle cases in
Federal court through the U.S. Attorney's Office. Similar task forces
are thriving in many other States.
Fourth, in 1994, then-Attorneys General Tom Udall of New Mexico and
Deborah Poritz of New Jersey joined with a number of State
environmental commissioners, tribal representatives, EPA Assistant
Administrator Steve Herman, and me to establish a senior forum for the
discussion of environmental enforcement and compliance issues. The
forum first met in 1994, and has met as many as several times a year
since then. We have been very pleased to join in this process, which
facilitates coordination and discussion among policymakers in State and
Federal Governments and allows us to share ideas as well as concerns.
We participate in many other such cooperative efforts, and have met
often with the National Association of Attorneys General and the
Conference of Western Attorneys General. Indeed, when I leave this
hearing, I will be heading to address a meeting of the National
Association of Attorneys General.
Fifth, for a number of years, Department attorneys--including those
in this Division and in the United States Attorneys' Offices--have
worked with State officials to train State and local prosecutors,
investigators, and technical personnel in the development of
environmental crimes cases. Much of that work occurs at the Federal Law
Enforcement Training Center in Brunswick, Georgia. Department attorneys
have helped to develop the basic curricula and regularly teach as
faculty. Our attorneys also assist as faculty and otherwise for State
and local training done by the National Association of Attorneys
General, by the four regional State and local environmental enforcement
organizations, and for a wide variety of other training efforts at the
State and local level. Such instruction frequently is a weekly routine
for our Crimes Section attorneys.
Finally, we have worked vigorously to improve and solidify our
relationship with the 94 United States Attorneys' Offices around the
country. These relationships are vitally important to us, and are
critical to the optimal functioning of both the Division and the U.S.
Attorneys' Offices. We work jointly with Assistant U.S. Attorneys on
many of our cases. In other instances, the U.S. Attorneys' Offices take
full responsibility for cases and call upon us only for our special
expertise. In January 1997, I sent a letter to all U.S. Attorneys
reaffirming our practice and re-extending our invitation to participate
in any pending or future civil environmental enforcement cases in their
districts. I encouraged those who had not previously taken advantage of
this invitation, to act as lead counsel, co-lead, or as local counsel.
I have received a number of letters from district offices expressing
appreciation for this outreach effort.
4. Overfiling
a. Overfiling Myths and Reality
I have heard concerns expressed about ``overfiling.'' Overfiling is
both misunderstood as a concept and exaggerated as an occurrence.
Overfiling happens where the Federal Government files an enforcement
action after the State has brought an enforcement action for the same
violations. There are reasons--good reasons--for us to bring these
cases, which I will describe. And where there are misunderstandings or
disagreements, we are committed to working to establish the best
possible communications.
But let me first point out that overfiling does not happen often.
We bring such cases only after a careful review by EPA and this
Division. In the past 12 months, the Justice Department filed only two
complaints in an environmental matter where the State previously had
brought an enforcement action for the same violations. In the first
case, against Westinghouse, the Commonwealth of Pennsylvania previously
had entered into consent agreements with Westinghouse, but agreed with
our enforcement action, joined as a plaintiff-intervener, and was a
party to our consent decree. The second was the case of United States
v. Smithfield Foods, Inc. (E.D. Va.), which I will be discussing.
Second, when we do overfile, often we do so at the invitation of
the State. In 1995, the Environmental Council of the States (ECOS),
released a report on overfiling within the prior 3 years. That report
even included cases in which the Federal Government took administrative
or civil enforcement action against a polluter for environmental
violations broader in scope than those addressed by any prior State
action. Even using that broad definition of overfiling, the ECOS report
did not find widespread concern. More than half of the States that
responded reported no overfiling within the previous 3 years. Further,
the States reported that, in most cases of overfiling, the Federal
Government had provided notice and engaged in extensive prior
discussions with the States. Most States reported positive
relationships with Federal regional enforcement staff. Thus, overfiling
hardly is the bugaboo some might claim.
We also must recognize the significant and appropriate role for
Federal enforcement. Our cases often assist the States. Indeed, State
enforcers tell us that the possibility of Federal enforcement enhances
the negotiating posture of State environmental agencies as they seek to
obtain compliance. The threat of Federal enforcement is a powerful
deterrent to violators. For example, one State reported in the ECOS
survey that, ``in more than one case, EPA's threat of overfiling has
helped the [state] gain a favorable settlement.'' That threat, like
most threats, is effective only because we can and will deliver as
promised.
Some people have suggested that any Federal enforcement in a
delegated State constitutes overfiling. That is not accurate. As I have
explained, Federal enforcement serves essential functions and often is
invited or welcomed by the States.
This Division also will vigorously defend against challenges by
States that want to weaken environmental protections. We recently
prevailed against challenges by Virginia and Missouri to EPA
requirements for an effective Clean Air Act program in those States.
Once again, it is our task to ensure that all people enjoy a basic
level of environmental protection; that all businesses enjoy a level
economic playing field; and that industry does not pit one State
against another in a bidding war to attract industry by compromising
environmental standards.
b. United States v. Smithfield Foods, Inc.
As I noted, this Division has filed only two civil judicial
enforcement actions in the past 12 months for violations that
previously were the subject of a State enforcement action. In one case,
the State agreed with our action. The other case, brought against
Smithfield Foods, Inc., is still pending. The following information is
all based on the public record.
The Smithfield case demonstrates the important role the Federal
Government plays when a State has been unable to bring a recalcitrant
company into full compliance with the law. Subsidiaries of Smithfield
Foods, Inc., operate two wastewater treatment plants in Smithfield,
Virginia. These plants treat wastewater generated during hog-
slaughtering and meat-processing operations, and collectively discharge
approximately three million gallons of effluent per day into the Pagan
River. The Pagan is part of the James River estuary, which connects to
the Chesapeake Bay. The companies' discharges are subject to the terms
and conditions of a water permit issued by the Virginia Department of
Environmental Quality.
From October 1991 through the present, Smithfield Foods, Inc. and
its subsidiaries committed at least five thousand violations of its
discharge permit. Over and over again, the companies violated effluent
discharge limitations, including limitations on fecal coliform,
phosphorous and nitrogen. The River has been closed to shellfish
harvesting due to fecal coliform contamination, and the companies'
discharges have contributed to that contamination. Similarly, the
companies' excessive phosphorous and nitrogen discharges, which at
times accounted for 80 percent of the phosphorous in the Pagan River,
contributed to the nutrient loading that has decreased the health and
productivity of Chesapeake Bay. The companies' violations were serious
enough that the United States filed both a criminal and a civil case.
On September 24, 1996, the United States charged the former head
operator of the Smithfield companies' two wastewater treatment plants
with 23 crimes. Eight of the charges--including illegal discharge of
fecal coliform into the Pagan River, false statements, falsification of
reports, and destroying records--were for offenses committed at the
companies' plants. On October 22, 1996, the operator pleaded guilty,
without a plea agreement, to all 23 counts. On January 16, 1997, he was
sentenced to 30 months imprisonment. He is presently incarcerated.
The Federal Government also filed a civil case, against the
companies rather than the individual operator. That is the overfiling
case. This Federal action was necessary because, despite the
seriousness of Smithfield's violations, the Commonwealth was taking no
action to assess penalties against the companies. Rather, in the face
of threats by the Smithfield Companies to leave the Commonwealth of
Virginia if a phosphorus limit was imposed on their facilities, the
Commonwealth of Virginia entered into a series of agreements allowing
the Smithfield Companies to discharge uncontrolled amounts of
phosphorus into the Pagan River for 5 years in return for the
Smithfield Companies' agreement to hook up to a publicly-funded sewer
line when it was constructed and to dismiss the Companies' challenge to
the phosphorus limit. In fact, in May 1996, the State Water Control
Board specifically directed the Department of Environmental Quality to
enforce the consent agreements but to take no penalty action.
Recognizing that the State had not succeeded in halting Smithfield's
violations of the law, EPA referred the matter to this Division for
enforcement. Just last week, the district court ruled for the United
States, finding the company liable for effluent limitation violations,
and thereby resolving many of the issues in this case.
When the case was referred to the Department of Justice on August
27, 1996, EPA had notified Virginia of the referral. EPA regional
officials held several conference calls with State officials, and
invited the Commonwealth to join the Federal case. EPA provided the
Commonwealth with information on Smithfield's violations. As the court
later said, ``[t]he Commonwealth declined the EPA's invitation to join
the Federal action. Although the Commonwealth never mentioned its plan
to file its own enforcement action to EPA, on August 30, 1996, the
Commonwealth filed an action against Smithfield.'' For the first, time,
the Commonwealth sought penalties, although in amounts far lower than
sought by EPA.
Given our efforts to develop a cooperative relationship with the
State, we were surprised by Virginia's unilateral action, which might
have undercut our enforcement action. When we filed our complaint on
December 16, 1996, the Smithfield companies argued that our action was
barred by the Commonwealth's recent suit and/or consent orders. The
court's recent decision rejected that defense. In a thorough, 75-page
opinion, the district court held that Virginia's action did not bar
ours, in part because Virginia law does not authorize the imposition of
administrative penalties and because Virginia had failed to provide
adequate procedures for public participation.
C. Environmental Crimes Bill
One very important initiative of this Administration that will
benefit State, local and tribal governments is the ``Environmental
Crimes and Enforcement Act of 1997,'' which has been introduced in the
House as H.R. 277, and which we hope soon will be introduced with
bipartisan support in the Senate. This bill will enhance environmental
criminal enforcement under a wide range of statutes. It was developed
to reflect the needs of and is designed to support law enforcement
officials throughout the country.
The legislation strengthens Federal, State, local, and tribal
partnerships by authorizing courts to order convicted criminals to
reimburse States, localities, and tribes for their costs in assisting
Federal environmental prosecutions. The bill also provides for
increased punishments when police officers, firefighters, other State
and local officials, or anyone else suffers death or serious injury as
a result of an environmental crime, and extends the statute of
limitations where a criminal has taken steps to cover up or to conceal
an environmental crime. The bill adds an ``attempt'' provision to
environmental statutes, similar to those found in more than 170 other
Federal criminal statutes, so that we may prosecute the criminal even
when we stop a crime in progress. This provision will remove a major
obstacle to environmental investigations by allowing law enforcement
personnel to use environmentally benign substitutes for hazardous
materials in undercover operations. Finally, the bill will clarify the
authority of the courts to provide for restitution in environmental
crimes cases, and to issue orders to ensure that those charged with
environmental crimes do not hide or dispose of assets needed to pay
restitution.
D. Some Success Stories
Now I would like to offer a few additional examples that show why
our cases are important; how they address complex and resource-
intensive enforcement needs; how they have a real, direct impact
improving the environment; and how they deter future violations.
1. Multi-State, Multi-Facility Enforcement
Many of our cases are extremely complex, involving multiple
facilities in several States. We recently settled an enforcement action
against Georgia-Pacific Corporation for Clean Air Act violations at 19
wood product facilities in Alabama, Arkansas, Florida, Georgia,
Mississippi, North Carolina, South Carolina and Virginia. Under the
settlement, Georgia-Pacific will take steps that will remove 10 million
pounds (5,000 tons) of volatile organic compounds (``VOCs'') from the
atmosphere annually--an estimated 90 percent reduction at many
facilities. VOCs, a precursor to ground-level ozone, can migrate in the
atmosphere for hundreds of miles and are a particular problem in the
southeast United States, where these facilities are located. The United
States worked in close cooperation with each of the State environmental
agencies in order to bring about this complex settlement.
2. Comprehensive Injunctive Relief and Environmental
Enhancement
Many of our recent cases show the effectiveness of Federal
enforcement in securing, in addition to penalties, comprehensive relief
to protect and enhance the environment when it is harmed by unlawful
pollution.
a. In United States v. Jefferson County, Alabama, (N.D. Ala.), the
United States sued Jefferson County, Alabama, and the Jefferson County
Commission for annually discharging 2.2 billion gallons of raw and
partially treated sewage into the Cahaba and Black Warrior Rivers. The
Cahaba is the source of one fourth of the drinking water for the State,
and the Black Warrior runs through downtown Birmingham. The case was
settled by a consent decree that requires the County to cease its
illegal discharges, rehabilitate its treatment plants and collection
system, pay a $750,000 penalty, and spend $30 million for the
acquisition of riparian lands to help restore water quality in the
rivers.
b. Last January, the Sherwin Williams Company and LTV Steel agreed
to settle separate actions for serious violations of Federal public
health and environmental protections in the southside of Chicago. We
alleged that Sherwin Williams had failed properly to control emissions
that impair breathing and had discharged high levels of organic
solvents that created a risk of fire or explosion. We alleged that LTV
Steel had, for years, emitted unlawful levels of coke oven gas. Those
gases are highly toxic and can lead to heart attacks, asthma, and
cancer. Under the consent decree, Sherwin Williams will clean up and
restore an old and abandoned industrial site identified by the City for
commercial redevelopment, restore wetlands and protect habitat near
Indian Creek and Lake Calumet, install pollution abatement equipment,
and pay a penalty. In the second settlement, LTV Steel will undertake
environmental enhancements to reduce its air emissions below the
Federal requirements and will pay a penalty.
c. In another significant action, the United States sued the
Tenneco Oil Company on behalf of the Sac and Fox Nation of Oklahoma to
obtain a fresh water supply, as well as compensatory and punitive
damages. Our complaint alleges that Tenneco's oil production on Sac and
Fox lands had destroyed the Sac and Fox Nation's groundwater supply. We
have reached a settlement in principle with Tenneco, under which the
company will fund construction of water wells to supply water in tribal
areas; purchase 120 acres of land to be placed in trust for the tribe;
and make a cash payment for purposes including cleaning, restoration,
and reforestation of a pecan grove.
3. Environmental Crimes Have Real Victims
Environmental crimes have real victims, as our recent prosecution
of one particularly egregious case demonstrates. Last fall, the State
of Mississippi requested EPA's assistance in the investigation of
widespread pesticide misuse along the State's gulf coast. EPA set up a
task force that included Federal agents, environmental and health
agencies in Mississippi, Louisiana, and Alabama, and local health
officials, as well as Justice Department attorneys. The investigation
identified two Mississippi residents, Dock Eatman, Jr., and Paul Walls,
Sr., who were operating unlicensed exterminating businesses and using
the highly toxic pesticides methyl parathion and permethrin to treat
homes, day care centers, motels, and restaurants. Methyl parathion and
permethrin are restricted by EPA for agricultural use in uninhabited
fields, and exposure to methyl parathion causes serious illnesses. To
protect people from methyl parathion poisoning, homes and businesses
contaminated by Eatman and Walls were evacuated or closed. By May 16,
1997, EPA had relocated more than 1500 people from 399 homes along the
Mississippi Gulf coast. The cost to evacuate and clean up contaminated
homes and businesses is expected to exceed $70 million--of which $60
million has come from the Superfund. We prosecuted Eatman and Walls
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
At trial, we showed that both defendants had been trained in the legal
and safe use of restricted-use pesticides and had been warned
repeatedly that their application of pesticides to homes and businesses
was illegal. Numerous individuals whose homes had been treated by the
defendants described illnesses they and their families suffered; some
of the victims had been hospitalized. On March 13, 1997, a jury in
Biloxi found Dock Eatman Jr., guilty on 21 counts of pesticide misuse.
On May 2, 1997, a jury in Hattiesburg found Paul Walls, Sr., guilty on
48 FIFRA counts. Sentencing is scheduled for July 7, 1997.
As I mentioned, we recently have been targeting the illegal
importation of ozone-depleting CFCs. CFCs are used primarily as
refrigerants, solvents, and propellants. Unfortunately, once in the
stratosphere, CFCs destroy the ozone layer that protects us from ultra-
violet radiation; that can cause increased skin cancer, retard growth
in plants and animals, and even disrupt the human immune system. In
January 1996, the United States imposed a ban on most CFC importation,
although existing stockpiles can legally be used. After the phase-out
began, a black-market in illegally imported CFCs developed in the
United States. Our nationwide Federal offensive has resulted in
significant jail terms and criminal fines for the smugglers. In the
past 2 years, more than two million pounds of CFCs have been seized,
with a street value of more than $18 million.
In another case, we assisted the U.S. Attorney in prosecuting
Consolidated Edison when an explosion in a Con Ed steam manhole in New
York City released 200 pounds of asbestos into a crowded city
neighborhood. Con Ed quickly learned of the explosion and the asbestos
release. To protect the public, our environmental laws required Con Ed
to report the release immediately. Con Ed did not report it for 4 days,
during which time many people were exposed, while Con Ed falsely
assured everyone, including its own employees working on repairs, that
no asbestos had been released. The corporation and an assistant vice
president were convicted.
4. Protecting Children's Health
Protecting children from environmental health risks is a high
priority for the Clinton Administration. Some of this Division's
largest and most successful enforcement cases have addressed the health
and safety of children. As the President stated in his recent Executive
Order concerning Protection of Children from Environmental Health Risks
and Safety Risks, a growing body of scientific knowledge demonstrates
that children may suffer disproportionately from environmental health
risks. These risks arise because children's neurological,
immunological, digestive and other bodily systems are still developing;
they eat more food, drink more fluids, and breathe more air in
proportion to their body weight than adults; and they are less able to
protect themselves from environmental hazards. Executive Order 13045
directs Federal agencies to improve research to protect children and to
ensure that new safeguards consider special risks to children.
In many of the Environment Division's Superfund cases involving
mining wastes, such as Bunker Hill in Idaho, Sharon Steel in Utah,
Leadville/Cal Gulch in Colorado, the ABEX Site in Portsmouth, Virginia,
and NL Industries in Illinois, young children are subject to
disproportionate exposure and risk. In these cases, lead and other
heavy metals hazardous to young children had been left in mine waste
and are easily accessible to children, who may live and play on the
waste piles. As a result of these cases, the companies that benefited
from the mining operations are required to assist in removing the toxic
soils from the yards and playgrounds where the children live and play
in the old mining towns of the Silver Valley of Idaho, Midvale, Utah,
Leadville and Aspen, Colorado.
Enforcement efforts under the Safe Drinking Water Act, Clean Air
Act and other environmental statutes also protect children's health.
After working in close cooperation with the State, we recently entered
a consent decree in United States v. Rio Bravo Farms, which involved
the Cuna del Valle (Cradle of the Valley) ``colonia'' in El Paso
County, Texas, near the Rio Grande River. Colonias are rural
settlements of generally substandard housing along the U.S.-Mexican
border, which frequently lack basic infrastructure, such as potable
water, sanitary waste disposal systems, electricity, and paved roads.
The United States alleged that Rio Bravo's concentration of low income
residents at the colonia created an imminent and substantial
endangerment because the residents used shallow water wells to obtain
water for household consumption, but the residents also had no choice
but to dispose of fecal material at the colonia in a manner that could
contaminate the well water with disease-causing bacteria and viruses
found in human feces. Many colonia residents are new families with
young children. Children, the elderly and others with weakened immune
systems are particularly vulnerable to the enteric diseases that are
caused by the consumption of water contaminated with bacteria and
viruses associated with human feces. Under the consent decree, the
defendants have constructed and will maintain a temporary water station
at the Cuna del Valle colonia to provide potable water to residents
until the El Paso County Lower Valley Water District Authority has
extended water service lines through the colonia in late 1997, and
residents are able to obtain potable water from the local public water
authority. When this occurs, the defendants will pay any costs
associated with connecting the residents to the water lines.
We also bring criminal cases to punish and deter violations that
harm children. The prosecution in United States v. William Recht Co.
(M.D. Fla.) involved two 9-year-old boys who died after playing in a
dumpster in which the defendants had illegally disposed of toluene
wastes. Two Recht employees were convicted of two counts of illegal
treatment, storage, and disposal of hazardous waste under RCRA and were
sentenced to 27 months in prison. The corporation entered a guilty plea
to the charge of violating RCRA by knowingly endangering the lives of
others.
E. Alternative Dispute Resolution
Although one of our primary responsibilities is to litigate cases
to protect public health and the environment, we seek to avoid
litigation where possible. In April 1995, Attorney General Reno issued
an order on Alternative Dispute Resolution (ADR) to promote the use of
ADR in appropriate cases. Pursuant to that order, the Environment
Division issued a policy concerning criteria to be used in identifying
cases appropriate for ADR and concerning ADR training for all
attorneys. The Division ADR policy calls upon our attorneys to use ADR
techniques in their cases whenever ADR may be an effective way to reach
a consensual result that is beneficial to the United States.
We have used ADR with particular success in multiple party
Superfund litigation. In those cases, mediation on allocation issues,
such as allocation of the costs incurred by the government for cleanup
of a Superfund site among various parties that are jointly and
severally liable for costs, avoids protracted litigation and may
resolve those allocation issues without waiting for further litigation.
Two good examples of this are United States v. Allied Signal, et al.
(D. N.J.) and United States v. American Cyanamid et al., (S.D.W.VA.),
both Superfund cost recovery cases. Mediation in those cases also
resolved contribution litigation filed against the United States as a
defendant.
ADR also is useful in cases or disputes that involve more than one
governmental body or sovereign (e.g., the Federal Government, a State
government, and an Indian Tribe), such as water resource cases. ADR may
provide an efficient and cost-effective solution to such disputes and
may resolve the whole dispute--rather than just the portion presented
in litigation. For example, mediation in Wisconsin v. Illinois, a
Supreme Court original action, led to an agreement to resolve a 90-year
water allocation dispute involving eight States and the United States,
and will avoid years of litigation that could have cost the taxpayers
millions of dollars.
From our experience in the Environment Division, we are learning
that ADR can help to resolve cases or to narrow issues, which in turn
may lead to settlement. Where appropriate, we hope to foster and
develop alternatives to the traditional adversarial techniques used to
resolve civil legal disputes involving the United States.
iii. conclusions
This Division's job is to protect our Nation's environment, to
protect our people's health, and to ensure a level playing field
through firm, but fair enforcement. I am proud to say that the
attorneys in our Division--working in close cooperation with our
colleagues in our client agencies, the U.S. Attorneys' Offices, and in
State and local government--are doing a great job and getting visible
results.
______
Response of Lois Schiffer to Additional Question From Senator Chafee
Question 1. Several members have expressed their concern with the
reluctance of Federal agencies to recognize a State's interest in
managing the restoration of principally State environmental assets. One
case in point is the restoration of the Fox River, in Wisconsin.
Wisconsin, as I understand it, has not only expressly sought lead
responsibility but has actually initiated agreements for restoration.
If the goal ultimately is clean up, why is it so difficult for the
Federal resource agencies and the Justice Department to allow States to
take a lead role?
Answer. The United States is committed to ensuring the most
effective cleanup and restoration of our Nation's waters. In doing so,
the United States has developed close and constructive relations with
State trustees at most sites that implicate both Federal and State
interests. Even at sites where some of the natural resources at issue
are the responsibility of Federal trustees, the United States often has
agreed that the relevant State should carry primary responsibility and
the lead role for damage assessment and restoration. Such decisions are
made on a site-by-site basis. The United States, however, has a
responsibility to restore and protect the resources of the American
people.
The restoration of the Fox River cannot be viewed simply as the
restoration of one State's environmental asset. With each passing year,
another 600 pounds of PCBs are flushed from the river into the Green
Bay--Lake Michigan environment. The PCBs have contaminated the food
chain in both the river and bay, and fish consumption advisories have
been in place continuously for more than 20 years. Once the PCBs leave
the river, they are for all practical purposes beyond any clean up or
other remedial option. Only by addressing the contamination in the
river can the United States protect significant resources under Federal
management, such as: National Wildlife Refuge lands, nationally
significant Great Lakes fish stocks (e.g., lake trout, yellow perch,
walleye), lake trout in Lake Michigan stocked from Federal hatcheries,
and migratory birds. Without Federal involvement, the interests of
other States on Green Bay and Lake Michigan and the American people
could be compromised.
Although the State of Wisconsin has taken some important steps with
regard to the Fox River, we have reluctantly concluded that those steps
will not readily produce the river-wide restoration needed for the
State, tribal, and Federal natural resources that have been damaged and
that remain at risk. For many years, the Federal Government has
deferred to the voluntary, consensus approach advocated by Wisconsin to
address the Fox River. No meaningful cleanup plan has been developed,
and no cleanup has taken place. Despite these many years and millions
of Federal dollars spent studying the river, the January 1997 interim
agreement between the State and several companies--the agreement
mentioned in this question--neither secures, nor even contains a
commitment to secure, a river-wide cleanup. Rather, it provides
principally for the companies to furnish an unspecified mix of funding
and work for demonstration projects. The companies apparently made even
that limited agreement only after the United States increased its
involvement.
We will continue to participate in discussions and negotiations
over the river because the United States is responsible for the
affected, federally-managed resources. EPA's recent proposal to list
this site on the National Priorities List likely will increase the
Federal interest and concern for the river. Acknowledging that the goal
of all sovereign parties is to ensure a comprehensive clean up of the
Fox River and to restore injured Federal, tribal and State natural
resources, the Federal and tribal trustees, EPA, and the State of
Wisconsin have recently made substantial progress in defining a process
by which these parties will work together cooperatively to achieve this
ultimate goal.
______
Responses of Lois Schiffer to Additional Questions From Senator Allard
Question 1. Define what an overfiling is, both administratively and
legally.
Answer. There is no one definition of ``overfiling,'' but we use
the term to refer to the situation in which the Federal Government
brings a civil or administrative enforcement action after a State civil
or administrative enforcement action against the same defendant for the
same violations.
Question 2. What are the guidelines for overfiling? Please forward
to me those guidelines and indicate where they can be found.
Answer. Generally, prior to initiation of litigation by the
Environment and Natural Resources Division, proposed Justice Department
cases are reviewed and referred by the appropriate regulatory agency,
such as EPA, the U.S. Army Corps of Engineers, or the Department of the
Interior, and are subject to each agency's own guidelines. Once a case
is referred, this Division's practice generally is to look at three
questions before deciding to file the lawsuit:
First, is the earlier enforcement effort securing timely
compliance with the law, including appropriate mitigation of any threat
to human health or the environment? Successful enforcement must return
a polluter to timely and continuous compliance with the law, and
effective remediation of any wrongful pollution.
Second, did the earlier enforcement effort recoup the
economic benefit that the defendant gained by breaking the law? Bad
actors should not profit from their illegal conduct, and law-abiding
competitors should not be put at an economic disadvantage.
Third, did the earlier enforcement effort secure a penalty
large enough to deter the violator, and its competitors, from future
violations? The penalty must persuade the violator and similarly
situated parties that compliance with the law is in their best
interests and that penalties for non-compliance are not just a cost of
doing business. Absent special circumstances, the enforcement effort
should recover a penalty significantly greater than the economic
benefit that accrued from noncompliance. The penalty secured also must
account for any recalcitrance shown by the violator and for any
increase in risk posed to human health or the environment.
To date, application of these criteria to cases referred from EPA
and other agencies has resulted in only infrequent overfiling.
Question 3. I'm aware that in Texas there was a Clean Air Act
overfiling involving Hoechst-Celanese. In this instance the Texas Air
Control Board advised Hoecht-Celanese (HCC) that they were exempt from
the benzene National Emissions Standards for Hazardous Air Pollutants
(NESHAP) rule and in December 1984 wrote a letter to the Hoecht-
Celanese to that effect and copied the Region VI Administrator of EPA
of their ruling.
On or about 1995 EPA filed a benzene CAA enforcement against
Hoechst-Celanese.
My questions are as follows;
(A) Are the facts above accurate?
Answer. The facts assumed by the question are incomplete. The
United States has filed a Clean Air Act enforcement action against
Hoechst Celanese Corporation (``HCC'') for violations of the fugitive
benzene emissions NESHAP regulation at its Bishop, Texas plant. Texas
has never brought an enforcement action for these violations, and
therefore the United States case does not involve an overfiling. The
United States' action has been stayed pending the outcome of another
Federal benzene NESHAP case brought in South Carolina for violations at
a different HCC plant. The district court in the South Carolina case
upheld EPA's interpretation of the regulation, but held that no
penalties could be assessed against HCC because it allegedly did not
have fair notice of EPA's interpretation. EPA and HCC have both
appealed to the U.S. Court of Appeals for the Fourth Circuit. See
United States v. Hoechst Celanese Corp., 1996 WL 898377 (D.S.C.),
appeal pending, Nos. 96-2003, 96-2051 (4th Cir.).
It is true that the Texas Air Control Board (TACB) sent HCC a
letter on December 7, 1984, concurring with the company's conclusion
that its Bishop, Texas Plant was exempt from the requirements of the
benzene NESHAP regulation, and that EPA was copied on that letter.
However, as explained below, EPA did not learn until later that the
TACB's interpretation of the regulation deviated from EPA's
interpretation, because the TACB letter agreed with HCC's conclusion
without stating the TACB interpretation of the regulation.
(B) If the facts are accurate how could HCC know it was in
violation of the CAA?
Answer. Internal company documents, submitted with our summary
judgment papers in the South Carolina action, show that HCC knew at
that time how EPA interpreted the exemption. HCC also knew that the
Bishop Plant would not be exempt under EPA's interpretation. For
example, the company in September 1984 received a copy of a letter that
EPA had sent to a different facility, explaining EPA's interpretation;
that EPA letter was circulated widely within the company, and one
employee at the Bishop Plant wrote ``Read it and weep'' at the top.
HCC should have asked EPA if HCC had any doubt about the scope of
the exemption it claimed. EPA has consistently applied its
interpretation of the regulation to plants, such as the Bishop Plant,
that recycle benzene. If HCC had written to EPA and asked for a
determination of how the regulation applied to its facility, as other
companies did, the company would have learned that it was indeed
subject to the regulation. Instead, HCC did not seek such a
determination from EPA for any of its plants, including facilities in
States where TACB had no regulatory authority.
(C) Why did it take so long for an overfiling to occur given that
EPA had notice of the written opinion of the TACB in December, 1984?
Answer. EPA did not file the enforcement action sooner because
TACB's December 7, 1984 letter did not explain TACB's interpretation of
the benzene NESHAP regulation. Therefore, EPA did not know that TACB
was using an inappropriate method of calculating HCC's use of benzene
and did not know that the State's interpretation was inconsistent with
EPA's. Indeed, the TACB copied EPA shortly thereafter with a letter it
sent to a member of the regulated community expressly informing the
regulated party of EPA's interpretation of the same provision at issue
here. Therefore, EPA had no reason to believe that TACB's letter to HCC
was based on any different interpretation. EPA learned about the TACB's
interpretation and the Bishop Plant's violations of the benzene NESHAP
only after EPA commenced enforcement against HCC's South Carolina
facility in 1989.
(D) Is it the opinion of EPA that tardiness in reacting to State
actions is beneficial to the State/Federal relationship?
This was not an instance where EPA was immediately aware of the
company's violations or HCC had put EPA on notice of the company's
violations. Once HCC's unlawful conduct came to EPA's attention, the
Agency took action. The Department of Justice believes that companies
that violate the law should be penalized.
(E) Why was it appropriate to overfile against Hoecht-Celanese, and
please include the guidelines EPA used when the decision was made to
overfile? Who made this decision?
As noted above, this case was not an overfiling, because the State
of Texas did not file an enforcement action against HCC. EPA referred
the case to our Division, and I approved the filing of the complaint,
based on the factors explained above, in the answer to Senator Allard's
Question 2.
Question 4. How many overfilings has the EPA taken against
companies, municipalities, or other entities based upon activities that
were approved by States under delegated authority previous to 1993?
Answer. We defer to EPA to answer this question.
Question 5. In reply to Mr. Herman's comment that, ``out of 20, 000
cases EPA has only overfiled in four'' in fiscal year 1996, Patricia
Bangert of the Colorado AG's office replied that in Colorado alone
there have been 3 overfilings this year. Is that accurate, and if not
why? If so please forward those cases to my office.
Answer. We defer to EPA to answer this question.
Question 6. Is it true that EPA wrote State legislatures urging
them not to pass environmental self audit bills? If so please include a
copy of one of those letters in your reply for the record.
Answer. We defer to EPA to answer this question. The Attorney
General has strongly opposed environmental audit privilege and immunity
legislation as contrary to the public interest by providing secrecy for
those who violate the law and impeding law enforcement. The Department
of Justice supports EPA's December, 1995, audit policy, not laws that
would create radically new privileges and immunities for polluters.
Question 7. Can you explain what measures EPA uses to measure
success of delegated environmental programs?
Answer. We defer to EPA to answer this question.
Question 8. Would the Administration support a commission to study
measures of success of environmental laws?
Answer. The Department of Justice supports development of
additional measures of environmental results, and indeed is working
with EPA to do just that. One EPA task force, on which the Department
of Justice participates, is exploring new ways to look at measures of
environmental compliance and performance, and to develop such measures.
Part of the impetus for that group's work is the Government Performance
and Results Act of 1993. The task force, which plans to have a proposal
out by the fall, has already conducted a number of meetings around the
country with industry and environmental groups, States, other Federal
agencies, and other interested stakeholders. The Department of Justice
understands that EPA would be happy to share the results of this work
with the Committee.
______
Response of Lois Schiffer to a Question From Senator Baucus
Question. At the hearing, Virginia Secretary of Natural Resources
Becky Norton-Dunlop testified about the ``unfair'' action taken by the
Federal Government against Smithfield Foods. Within the limitations of
the Department's pending matter policy, please describe why, in your
view, the United States' Clean Water Act action against Smithfield
Foods was an appropriate case in which to overfile.
On May 30, 1997, the United States District Court for the Eastern
District of Virginia held Smithfield Foods, Inc., and two subsidiaries
liable for unlawful pollution and reporting violations at two
wastewater treatment plants. See United States v. Smithfield Foods,
Inc., No. 2:96cv1204 (E.D. Va.). The court held that the Smithfield
companies had violated effluent limitations for phosphorus, ammonia-
nitrogen, TKN, fecal coliform, minimum pH, cyanide, oil and grease,
CBOD, BOD, and total suspended solids. See slip op. at 34-35. The
court's opinion is enclosed. This answer is based on matters in the
public record and the court's opinion.
The Smithfield companies' plants discharged about three million
gallons of effluent each day to the Pagan River, part of the James
River estuary, which connects to the Chesapeake Bay. Since 1970, the
Pagan River has been closed to shellfish harvesting due to fecal
coliform contamination, to which the Smithfield companies' discharges
have contributed. Phosphorous and nitrogen discharges from the plants
have contributed to nutrient loadings that have decreased the health
and productivity of the Chesapeake Bay. The violations continued for at
least 5 years.
The United States brought its civil enforcement action because the
Commonwealth for years took no action to require compliance and assess
penalties against the Smithfield companies despite the seriousness of
their violations. Rather, in the face of threats by the Smithfield
companies to leave Virginia, the Commonwealth entered into a series of
agreements allowing the companies to discharge uncontrolled amounts of
phosphorus into the Pagan River for at least 5 years, in violation of
the State-issued permit and Federal Clean Water Act requirements. In
May 1996, the State Water Control Board specifically directed the State
Department of Environmental Quality to enforce the consent agreements
but to take no penalty action. As the district court held, the
Commonwealth's consent orders did not expressly alter the companies'
obligations to comply with the phosphorus discharge limitation in their
discharge permit, and ``Smithfield indicated in a letter to the [State
agency] that it did not believe the [State's order] specifically
relieved it from compliance with the limitations in the Permit.'' See
slip op. at 43.
Because the Commonwealth had not halted the Smithfield companies'
serious and repeated violations, nor assessed a penalty for those
violations, EPA referred the matter to the Justice Department. EPA
provided the Commonwealth with information on Smithfield's violations
and invited the Commonwealth to join the Federal enforcement action. As
the court's opinion states, ``[t]he Commonwealth declined the EPA's
invitation to join the Federal action. Although the Commonwealth never
mentioned its plan to file its own enforcement action to EPA, on August
30, 1996, the Commonwealth filed an action against Smithfield.'' See
slip op. at 21. The Commonwealth for the first time finally sought
penalties, but in amounts far lower than sought by EPA. Federal
enforcement was necessary and appropriate due to the Commonwealth's
inability or unwillingness to halt the Smithfield companies' violations
and to assess a penalty that would send the message to Smithfield that
breaking the law is not cost-effective.
I wish to correct one error in my written statement. The EPA
referred this matter to the Department of Justice on July 27, 1996, not
August 27, 1996. However, as the district court found, the EPA notified
Virginia of the referral by August 27, several months before the United
States filed its complaint.
______
Responses of Lois Schiffer to Additional Questions From Senator Reid
Question 1. As an Assistant Attorney General, what are your goals
for environmental enforcement?
Answer. As I said in my prepared testimony, our mission is to
ensure--through firm, fair enforcement--that all Americans can breathe
clean air, drink pure water, and enjoy clean lakes and streams; to
provide law-abiding businesses a level economic playing field on which
to compete; and to deter and punish bad actors who break the law.
Vigorous enforcement of our environmental laws protects the health of
our families, our communities, our environment, and our economy.
Environmental statutes achieve results only if enforced. As William
K. Reilly, the EPA Administrator between 1989 and 1993, stated,
enforcement of environmental laws ``is at the very heart of the
integrity and the commitment of our regulatory programs.'' See Reilly,
``The Future of Environmental Law,'' 6 Yale J. on Reg. 351, 354 (1989).
Our response to unlawful conduct must be firm.
Working closely with our colleagues at the U.S. Attorneys' Offices,
the EPA, other Federal agencies, the States, and local law enforcement
agencies, our environmental enforcement efforts have achieved superb
results. My written statement addresses several of our notable
successes, and some of our efforts to improve our effectiveness.
Question 2. You have often said that one goal of your enforcement
program is to ensure that any fines assessed adequately secure (or
recover) the economic benefit gained by a company that has violated
this nation's environmental laws. What do you mean by this? Why is this
important?
Answer. Companies that break our environmental laws should not
benefit from their unlawful conduct. The fine or penalty secured in an
enforcement action must, at an absolute minimum, persuade the violator
and similarly situated polluters that timely compliance would have been
the better business choice. Law abiding companies also should not be
placed at a competitive disadvantage because they complied while some
bad actor did not. Recouping economic benefit, plus more, removes an
incentive to break the law and insures a level economic playing field.
Thus, an enforcement action should recover all economic benefits
enjoyed by the polluter by failing to comply with the law on time, plus
an additional sum so that the violating company is worse off because it
broke the law than it would have been if it chose to comply.
Question 3. What have you done to improve relationships between the
Department and State and local Governments? What effect, if any, has
having a career local prosecutor, Janet Reno, had on your efforts to
improve coordination with State and local governments?
Answer. Attorney General Reno has been a staunch supporter of
improved intergovernmental coordination and cooperation, and I
subscribe to that view. In fact, Mark Coleman, the Executive Director
of the Oklahoma Department of Environmental Quality and Chairman of the
Compliance Committee of the Environmental Council of the States,
testified at the Committee's recent hearing that relations between top-
level State and Federal environmental enforcement officials merited an
``A'' grade. This Division has taken a number of steps to strengthen
ties between the Department of Justice and State and local governments.
For example:
We are notifying States before filing suit. As stated in
my written testimony, we have established a policy that our
Environmental Enforcement Section will notify a State in advance of
filing a suit in that State, absent exceptional circumstances, and will
invite the State's participation or cooperation in the action. This
policy encourages coordination and information exchange with the State,
and ensures that the States do not learn about our actions from reading
the newspaper.
We are bringing more cases jointly with States. In many of
our cases, States are co-plaintiffs and work closely with our
attorneys, through discovery, settlement discussions, briefing, or even
sitting together at the trial counsel table.
We are sharing penalties with States in appropriate cases.
Since the beginning of Fiscal Year 1996, we have entered into 25
settlements in which States were co-plaintiffs and in which we split
penalties with the States. All told, States have collected almost $12
million from our joint enforcement actions during that period.
We have developed productive relationships with State and
local law enforcement in criminal environmental enforcement. Our
Environmental Crimes Section has worked closely with U.S. Attorneys'
Offices to support environmental crimes task forces and Law Enforcement
Coordinating Committees (LECCs) across the country. As Senator Sessions
stated at the Committee's recent hearing, an environmental crimes
working group in Alabama that included the State attorney general,
State environmental agency, the U.S. attorneys, EPA, the Coast Guard,
and others, was a ``good model'' for law-enforcement cooperation.
Similarly, the United States Attorney's Office for the Eastern District
of Missouri established an Environmental Crime Task Force, which
includes members from all Federal, State and local law enforcement
agencies that have responsibility for the detection, investigation, and
prosecution of environmental crimes in that jurisdiction. The
Environmental Crimes Section has worked closely with the Task Force.
The Missouri Attorney General also has designated two assistant
attorneys general to handle cases in Federal court through the U.S.
Attorney's Office. Because the State of Missouri has only misdemeanor
penalties for violations of State environmental law, most cases are
brought under Federal statutes and in Federal court. The task force has
been very successful in coordinating and prosecuting environmental
crimes. Similar task forces are thriving in many other States.
Even where LECCs and task forces do not yet exist, State and/or
local government personnel are directly involved in most Federal
environmental prosecutions. Often their contributions extend from the
initial investigation through trial of the case.
In addition, for a number of years, Department attorneys--including
those in this Division and in United States Attorneys' Offices--have
worked with State officials to train State and local prosecutors,
investigators, and technical personnel in the development of
environmental crimes cases. Much of that work has been done in
conjunction with EPA's training program at the Federal Law Enforcement
Training Center in Georgia. Department attorneys have helped develop
the basic curricula and regularly teach there. Our attorneys also
assist as faculty and otherwise for State and local training sponsored
by the National Association of Attorneys General, by the four regional
State and local environmental enforcement organizations, and for a wide
variety of other training efforts at the State and local level. Such
instruction frequently is a weekly routine for our Environmental Crimes
Section attorneys.
We meet regularly with State and local governments to
discuss environmental enforcement and compliance. In 1994, then-
Attorneys General Tom Udall of New Mexico and Deborah Moritz of New
Jersey joined with a number of State environmental commissioners,
tribal representatives, EPA Assistant Administrator Steve Herman, and
me to establish a senior forum for the discussion of environmental
enforcement and compliance issues. The group has met as many as several
times a year since then. We have been very pleased to join in this
process, which facilitates coordination and idea-sharing among
policymakers in State and Federal Governments. We participate in many
other such cooperative efforts, and have met often with the National
Association of Attorneys General and the Conference of Western
Attorneys General. We have also met with other State and local entities
such as the Environmental Council of the States and the International
City/County Management Association.
I have created a position in my office that reflects the
special importance of our relationships with State and local
governments. Near the beginning of my tenure as Assistant Attorney
General, I created a new position, the Counselor for State and Local
Environmental Affairs. My Counselor works with State and local
officials and attorneys in our Division to maximize environmental
enforcement through cooperative efforts, and to act as liaison with our
colleagues in the States and with State organizations.
We have worked with States to develop the environmental
crimes bill. The ``Environmental Crimes and Enforcement Act of 1997,''
which has been introduced in the House as H.R. 277, and which we hope
soon will be introduced with bipartisan support in the Senate, will
enhance environmental criminal enforcement under a wide range of
statutes. It was developed to reflect the needs of, and is designed to
support, law enforcement officials throughout the country. The
legislation strengthens Federal, State, local, and tribal partnerships
by authorizing courts to order convicted criminals to reimburse States,
localities, and tribes for their costs in assisting Federal
environmental prosecutions. Among other things, the bill also provides
for increased punishments when police officers, firefighters, other
State and local officials, or anyone else suffers death or serious
injury as a result of an environmental crime. The bill also will
respond to the urgent need expressed by State, local, and tribal
officials for additional Federal training on environmental criminal
enforcement. It establishes a program dedicated to the training of law
enforcement personnel investigating environmental crimes.
Question 4. Can you tell us more about your approach to cases
involving small businesses? How do they differ from your approach to
more well-heeled polluters?
Answer. We have taken some special steps regarding penalties for
small businesses and to encourage such businesses to participate in
Federal and State outreach and compliance assistance programs. Under
the Department's ``Interim Policy on Penalty Mitigation for Small
Businesses'' (July 19, 1995), a small business may qualify for extra
mitigation of any proposed penalty if it learns of a violation for the
first time through its voluntary participation in a government-
sponsored compliance assistance program and cures any violation as soon
as possible. In such cases, I have directed that we consider
compromising as much as 100 percent of the ``gravity'' component of any
proposed penalty. The policy does not apply to violations for which
extra mitigation would be inappropriate, such as criminal acts and
actions that posed an imminent and substantial endangerment to public
health or the environment, or to repeat violators. This policy
supplements the Department's regular exercise of enforcement
discretion, under which we may decide not to bring an enforcement
action, or to seek less than the maximum penalties due to case specific
circumstances that warrant leniency. The Department's policy, a copy of
which is attached, encourages small businesses to participate in
outreach assistance programs, discover and disclose violations, and
cure them as soon as possible. We are also guided by EPA's settlement
policies in our settlement negotiations, which recognize, among other
things, ability-to-pay limitations.
In all our civil cases, we regularly offer parties an opportunity
to settle with us before we initiate litigation, and in all our cases,
we seek to ensure that our settlement offers are appropriate under the
circumstances. Where we believe a regulatory enforcement action for
penalties would involve a ``small entity,'' as defined in the Small
Business Regulatory Enforcement and Fairness Act, we generally refrain
from demanding a specific settlement sum until we ask the small entity
for financial or other information that may bear on an appropriate
penalty or injunctive relief. After analyzing information provided, we
make a best and final (absent new information) settlement offer. By
presenting a ``best and final'' offer early, we try to relieve any need
the small entity may perceive to litigate or negotiate unnecessarily.
Question 5. What role do citizen suits play in environmental
enforcement? Why is it important that we preserve a role for citizens
in enforcing environmental laws?
Answer. Citizen enforcement is an important supplement to Federal
environmental enforcement, because the government has only limited
resources with which to bring its own enforcement actions. The
responsible exercise of citizen enforcement authorities provides a
strong incentive for regulated entities to comply with the law. Citizen
suits enable those most affected by pollution--those who live, work, or
recreate in an area affected by pollution--to ensure compliance with
environmental protection laws when Federal, State, and local
governments have not acted effectively.
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Prepared Statement of Steven A. Herman, Assistant Administrator, Office
of Enforcement and Compliance Assurance, Environmental Protection
Agency
i. introduction
Thank you, Mr. Chairman, for the opportunity to testify on the
Environmental Protection Agency's (EPA) enforcement and compliance
assurance program and EPA's enforcement relationship with the States.
Today's hearing is very timely as these two issues have received a
great deal of attention this past year. I believe that this attention
is entirely appropriate, since effective environmental protection
requires not only a strong Federal enforcement presence, but also a
solid, dynamic EPA-state partnership that can adapt to new and changing
environmental challenges facing this country at both the local and
national levels.
I would like to talk about the two fundamental principles that
guide EPA's own enforcement approach and the agency's work with the
States. These two principles are accountability and flexibility.
ii. accountability to ensure environmental compliance
Accountability is the central part of EPA's enforcement and
compliance assurance program. By accountability, I mean that the public
expects the regulated community to obey the law and fully comply with
applicable regulations and also expects EPA to take tough, but fair
action against those who fail to do so. We also know that regulated
entities that comply with environmental requirements expect, and
rightly so, EPA to hold noncomplying entities accountable for
violations that may place the violators at a competitive advantage.
EPA ensures accountability by maintaining a strong enforcement
program that includes bringing criminal, civil, and administrative
actions against violators. A strong enforcement program punishes
wrongdoers, deters potential violators, brings actual violators into
compliance, and can ensure that damage to the environment is rectified.
In a March 1996 report, the General Accounting Office emphasized the
important deterrent role of penalties:
[P]enalties play a key role in environmental enforcement by
deterring violators and by ensuring that regulated entities are treated
fairly and consistently so that no one gains a competitive advantage by
violating environmental regulations.
Water Pollution: Many Violators Have not Received Appropriate
Enforcement Action (GAO/RCED-96-23, March 1996). See also,
Environmental Enforcement: Penalties May Not Recover Economic Benefits
Gained by Violators (GAO/RCED-91-166, June 1991).
The deterrent value of established enforcement methods has also
been confirmed by a recent study undertaken by EPA's Pollution
Prevention Policy Staff and co-sponsored by the U.S. Departments of
Energy, Defense, and Commerce entitled Study of Industry Motivation for
Pollution Prevention. The purpose of the study was to improve the
understanding of Federal agencies about how environmental issues
influence core business decisions. Based on information from more than
1000 business people representing randomly-selected lithographic
printing companies and larger manufacturing companies reporting on the
Federal Toxics Release Inventory (TRI), the study showed that
environmental enforcement actions were among the most important factors
in getting both TRI respondents and printers to consider environmental
issues in the performance of their duties.
EPA has a firm commitment to a strong enforcement program. As shown
in our 1996 Enforcement Accomplishments Report, we referred a record
262 criminal enforcement actions to the Department of Justice (DOJ), as
well as 295 civil cases--up 38 percent from 1995. We also assessed a
record $76.6 million in criminal penalties and another $66.2 million in
civil penalties--up 90 percent from 1995. Our combined criminal, civil
judicial, and administrative penalties for 1996 were the highest in the
history of the agency at more than $172 million. Significantly, EPA was
able to measure for the first time the environmental results of these
enforcement actions. This data includes types and amounts of pollutants
reduced as a direct result of EPA's 2,500 enforcement actions taken in
1996, the environmental benefits and impacts of those completed
actions, and the types and amounts of actions taken by regulated
entities.
Indeed, the report shows that we are focusing our efforts on the
most serious pollutants and health risks, making the polluter pay for
noncompliance, and securing settlements that have a direct, positive
impact on public health and the environment. For example, during 1996
polluters spent almost $1.5 billion on correcting violations, cleaning
up hazardous waste sites and/or taking additional steps to improve the
environment or prevent future problems. Our settlements also resulted
in significant aggregate reductions in the amount of pollutants
discharged into the environment, including nearly 200 million pounds of
carbon monoxide, 16.6 million pounds of lead, and 7.7 million pounds of
asbestos. The report also punctures the myth that EPA pursues only so-
called ``paper'' violations that have no real public health or
environmental impacts.
Our commitment to strong enforcement is also reflected in the
efforts of our criminal enforcement program. Our Office of Criminal
Enforcement, Forensics, and Training (OCEFT) will soon have 200
specially trained criminal investigators assigned to area offices in 36
cities across the country to work directly with local enforcement
agencies in communities at greater risk of environmental crimes.
Recognizing the critical importance of cooperation with State and local
law enforcement agencies, OCEFT special agents now participate in more
than 90 environmental crimes task forces nationwide with Federal, State
and local law enforcement agencies to share information, establish
local priorities, and pursue criminal environmental violations. Since
1992, EPA has participated in 644 joint criminal investigations with
State and local law enforcement personnel. OCEFT also devotes
significant resources to the training of law enforcement and regulatory
personnel from States and cities across the country.
We are building upon these successes through our National
Performance Measurement Strategy. This strategy is developing an
enhanced set of performance measures for our enforcement and compliance
assurance program. The measures will be used to supplement our
established output measures (i.e., number of civil and criminal cases
referred and amount of penalties assessed) with additional outcome
measures to better assess the status and trends of regulatory
compliance and environmental improvements resulting from our
enforcement and compliance assurance activities.
So far, we have held two successful public meetings in Alexandria,
Virginia and San Francisco, California, where we heard from State
environmental agencies and State attorneys general, other Federal
agencies, environmental groups and environmental justice advocates,
regulated companies and industry associations, academic experts, and
Congressional staff about their ideas for measuring the effectiveness
of environmental enforcement and compliance assurance programs. We are
following up on these two meetings with a series of more focussed
discussions with different stakeholders. EPA will conclude these
meetings in mid-September at a ``Capstone'' conference with a cross-
section of stakeholders to identify common understandings, areas of
agreement, and unresolved issues. Finally, EPA will develop a report of
findings and an implementation plan with a schedule by October 1997.
iii. flexibility to promote environmental compliance
Along with accountability, flexibility is the other principle at
the foundation of our enforcement program. Flexibility is not only
necessary to find new and innovative ways to achieve compliance--for
there is often more than one way to comply--but is also necessary to
make the most of limited government resources and target efforts more
efficiently on the country's most urgent health risks and environmental
problems.
Flexibility is a key part of EPA's enforcement and compliance
assistance program. In fact, the primary purpose of the reorganization
of EPA's Office of Enforcement into the Office of Enforcement and
Compliance Assurance (OECA) in 1994 was to institutionalize
Administrator Browner's conviction that effective environmental
protection must include a range of compliance assistance tools in
addition to established enforcement methods. The reorganization was
more than just moving boxes within an organizational chart; it was a
vehicle for ensuring that we consider the best and most effective ways
to achieve and maintain compliance. Consistent with this approach, and
the Clinton Administration's high priority on reinventing environmental
regulation, EPA has launched a number of compliance assistance programs
and activities over the last few years, including our Compliance
Assistance Centers, Environmental Leadership Pilot Program, Project XL,
Common Sense Initiative, and Sector Notebooks. OECA is playing a key
role in all of these efforts.
EPA's Compliance Assistance Centers
In partnership with industry, academic institutions, environmental
groups, other Federal agencies, and the States, EPA has established its
national Compliance Assistance Centers. The purpose of the centers is
to improve compliance by increasing awareness of the pertinent Federal
regulatory requirements and providing information that will help to
achieve compliance. The centers accomplish this by serving as the first
place that businesses, trade associations, and other interested parties
can go to get comprehensive, easy to understand compliance information.
So far, Compliance Assistance Centers have been established for
four industry sectors: printing, metal finishing, automotive services
and repair, and agriculture. Although the centers have not been in
existence for very long, they are already getting a lot of use. For
example, the National Metal Finishing Resource Center, which began
operating as a pilot in April 1996, has had more than 1,354 registered
users to date. The Auto Service and Repair Center, opened in June 1996,
has received a total of 130,000 hits to its home page. OECA is now
working on four new centers that will assist municipalities, the
transportation industry, small chemical manufacturers, and
manufacturers of printed wiring boards.
The Environmental Leadership Program
EPA has promoted a systematic approach to managing environmental
issues and encourages environmental enhancement activities through the
Environmental Leadership Program (ELP). For a facility to qualify for
the initial phase of ELP, EPA looked at several criteria, including the
facility's systems for monitoring and maintaining compliance with
environmental laws, relationship with its employees, and involvement
with the surrounding community. EPA also examined the company's
investment in environmental enhancement activities, such as
environmental restoration, product stewardship, or additional pollution
prevention efforts.
During the 1 year pilot phase, which ended in August 1996, ten
private companies and public utilities and two Federal facilities
tested the design of specific elements of the program. ELP pilot
participants represented such industries as manufacturing, chemical,
printing, pulp and paper, and solid/hazardous waste disposal.
The anticipated benefits of a full scale ELP for facilities would
include recognition as an environmental leader, reduced and/or modified
discretionary inspections, and a limited correction period for
instances of noncompliance as long as certain conditions are met.
Potential benefits to the environment include increasing the number of
activities that go beyond compliance with existing environmental
requirements and encouraging the implementation of best practices
related to self-monitoring and pollution prevention activities.
Project XL
An acronym standing for ``excellence and leadership,'' Project XL
allows facilities and communities to pilot environmental activities
that produce greater environmental protection than what would be
achieved from conventional compliance measures, and often at less cost.
In return, EPA provides relief from certain regulatory requirements, as
agreed between EPA, the State, and the project sponsor in consultation
with other stakeholders. Thus, the XL program gives participants the
flexibility to develop common sense, cost-effective strategies that
will replace or modify specific regulatory requirements, on the
condition that they produce greater benefits.
There are three projects underway to date, and EPA-proposal teams
are developing final project agreements for 11 more projects.
Common Sense Initiative
The Common Sense Initiative (CSI) represents a new approach for
creating policies and environmental management solutions that relate to
whole industries. It is an experimental effort to increase the role of
collaboration and consensus into the environmental protection process
and to address environmental problems in a more holistic way. The goal
is to encourage the development and creation of innovative solutions to
today's environmental problems. Six industries are laboratories for
testing CSI concepts: Automobile Manufacturing, Iron and Steel, Metal
Finishing, Computers and Electronics, Printing, and Petroleum Refining.
Sector Notebooks
Sector notebooks are designed to serve as a resource guide for
learning about specific industries and their environmental issues. In
October 1995, OECA released profiles of 18 selected industries.
Included in each notebook profile is a description of the industrial
processes used, pollution outputs, pollution prevention opportunities,
applicable Federal statutes and regulations, past compliance history,
and compliance assistance information. More than 50,000 printed and
electronic copies have been requested and distributed so far to States,
locals, individual facilities, Federal agencies, foreign governments,
trade groups, and environmental organizations. Several other industries
have asked EPA to produce notebooks for their industries so that
regulators and compliance assistance providers can become more
knowledgeable about their industry. EPA is now in the process of
developing Notebooks for an additional eight sectors.
In addition to these activities and programs, EPA has issued
policies to promote environmental compliance in small businesses and
communities and, as described in more detail below, issued its self-
disclosure policy in 1996 to give businesses a real incentive to self-
audit, disclose, and correct violations.
Taken as a whole, these activities and policies demonstrate the
agency's strong commitment to a flexible, creative compliance
assistance program. They are tremendous opportunities for the agency to
improve its own operations, for the regulated community to improve its
relationships with the public, the government, and the environment, and
for the public to be assured that we are upholding our responsibilities
for protecting public health and environment. Ultimately, this flexible
regulatory approach enables the agency to be more proactive and
strategic in response to compliance problems.
However, it is important to emphasize that the key to the success
of these compliance programs is having a strong enforcement program as
a base. This base provides a real incentive for companies to
participate in these compliance assistance programs, because it helps
assure them that they will not be put at a disadvantage to those who
ignore their environmental obligations. Further, it assures the public
that special deals are not being cut and that the regulated community
remains beholden to the law.
iv. the epa-state partnership
As stated earlier, effective environmental regulation requires a
strong EPA-state partnership. Most Federal environmental statutes
recognize the importance of this partnership by giving to authorized or
approved States the primary responsibility for implementing and
enforcing Federal programs. This framework provides States the
opportunity to craft new and innovative solutions to address local
health risks and environmental problems. But these statutes also
recognize the necessity and importance of the Federal Government's role
and give EPA the authority and responsibility to establish baseline
national standards for public health and the environment and ensure
that these standards are implemented and enforced fairly and
consistently in all the States.
Therefore, EPA works to ensure that citizens in all our States are
afforded a base level of protection, leaving individual States free to
establish and implement more stringent, but not less stringent,
environmental standards. In addition, EPA takes enforcement action in
cooperation with the States or on its own, when necessary, to prevent
the creation of pollution ``safe havens'' in lax States, and to
maintain a level playing field by protecting companies in States that
comply with environmental requirements from being placed at an economic
disadvantage to those companies in other States that do not. EPA's
approach to its State partners follows from these statutory principles
as well as the principles of flexibility and accountability that guide
its own regulatory programs.
Flexibility with the States
EPA is pursuing its policy of flexibility with the States through
the National Environmental Performance Partnership System (NEPPS).
Established by the Administrator and State environmental program
leaders in May 1995, the NEPPS provides a new process by which EPA and
the States can work together to establish joint national and local
environmental priorities and then integrate and focus resources to best
address these priorities. These priorities will then be incorporated
into our Performance Partnership Agreements (PPA) and Performance
Partnership Grants (PPGs) with the States. OECA is working with the
regions and the States to incorporate enforcement and compliance
assurance priorities into these agreements. In addition, EPA and the
Environmental Council of States (ECOS) have recently formed a work
group to help facilitate these efforts and address major enforcement
issues between EPA and States. The first meeting of this work group,
chaired by Mark Coleman, Executive Director of the Oklahoma Department
of Environmental Quality, and myself, was held on May 23 in Arlington,
Virginia.
As part of the NEPPS process, EPA and ECOS have been working to
develop proposed core performance measures for State enforcement and
compliance assurance programs. These measures would be used to monitor
the performance of enforcement actions to deter noncompliance and the
performance compliance assistance and incentive policies. The proposed
measures utilize both output measures and outcome measures to track the
performance of State enforcement and compliance assurance programs. EPA
believes the proposed measures will ensure accountability to the pubic
and allow EPA and the States to begin measuring the effectiveness of
alternative approaches to compliance. EPA is continuing to work with
ECOS to put these measures in place for the fiscal year 1998 cycle of
PPAs.
The next step in this NEPPS process is to reduce the reporting
burden placed on States. To meet this goal, EPA and ECOS are developing
a set of principles for data reporting. These principles will be used
to evaluate the need for current and future reporting requirements and
eliminate obsolete and unnecessary reporting requirements, while
maintaining or strengthening the data reporting requirements necessary
to evaluate compliance trends nationwide. EPA and ECOS are examining
efforts underway in several Regions to reduce reporting and will ask
them to examine some of the reporting requirements they suspect are not
necessary.
The Necessity of Strong State Enforcement Programs
Just as EPA is committed to maintaining a strong Federal
enforcement program, we expect States to have strong enforcement
programs. Strong State enforcement programs are essential to ensure
environmental protection nationwide; further, pollution does not
recognize State boundaries and many major companies are no longer
regional, but national in scope and operation.
As I said earlier, there has been a lot of attention focused
recently on the EPA-state relationship. In particular, there has been
some controversy surrounding the impact of State audit laws on
authorized programs and EPA's national response to the Inspector
General report in Pennsylvania. EPA's response to these issues is
consistent with the general views I have just expressed. This means
that while the agency is working with the States to promote compliance
and increase the flexibility in the implementation of their authorized
programs, EPA still expects States to hold violators in their
jurisdictions accountable by maintaining and utilizing an adequate
enforcement program.
Impact of State Audit Privilege and Immunity Laws on State Enforcement
Authority
Regarding State audit laws, we recognize that States may find
different ways to encourage companies to voluntarily discover,
disclose, and correct environmental violations. But, at the same time,
we are concerned that some of the approaches being taken actually can
allow polluters to keep secret from the public critical information
about potential threats to health and the environment, and can obstruct
the ability of the States and the public to hold the regulated
community accountable for violating environmental requirements.
Let me be clear that we have two distinct issues regarding State
audit laws--one of policy and one of law. On the policy level, we
oppose all State audit privilege and immunity laws in any form. Both
EPA and DOJ have repeatedly testified before Congress and State
legislatures that audit privileges make it more difficult to enforce
the nation's environmental laws by making it easier to shield evidence
of wrongdoing. A privilege law invites defendants to claim many types
of evidence relevant to a violation as privileged, including sampling
data and information concerning the cause of and possible environmental
contamination resulting from a violation. A privilege could,
consequently, breed litigation and waste government resources as both
parties struggle to determine what materials fell within the protected
scope of the audit. Furthermore, a 1995 study by Price Waterhouse of
369 businesses entitled The Voluntary Environmental Audit Survey of
U.S. Business indicated that a privilege is not needed to encourage
voluntary compliance.
Ultimately, an audit privilege invites secrecy and breeds distrust
with the community thereby undermining the kind of openness that builds
trust between regulators, the regulated community, and the public
necessary for the regulated community to be able to effectively police
itself. We also oppose blanket immunities as a matter of policy,
because, among other things, they can eliminate the important deterrent
effect of penalties and result in disparate treatment of companies in
States with different immunity laws.
The second issue we have with these audit laws is legal. Under
Federal law, EPA has to ensure that the States retain certain minimum
enforcement authorities required by Federal law for program approval,
delegation, and authorization. More specifically, EPA must assure that
a State audit immunity law does not deprive a State of its authority to
obtain injunctive relief and civil and criminal penalties for any
violation of program requirements. In determining whether these
requirements are met, EPA is particularly concerned with whether a
State has the authority to: (1) obtain immediate and complete
injunctive relief; (2) recover civil penalties for significant economic
benefit, repeat violations and violations of judicial or administrative
orders, serious harm, and activities that may present an imminent and
substantial endangerment; and (3) obtain criminal fines and sanctions
for willful and knowing violations of Federal law.
Under Federal law, a State must also have the ability to get
information needed to identify noncompliance or criminal conduct and
ensure correction of violations. Further, it appears that a State
privilege law that restricts the public's legal right to information
regarding a facility's compliance with environmental requirements or
sanctions ``whistleblowers'' for divulging information about a
company's noncompliance runs afoul of minimum Federal requirements.
Thus EPA must evaluate State audit laws in light of these Federal
requirements.
Federal law also authorizes citizens to petition the agency to
review or withdraw State programs on the grounds that States lack the
enforcement authority necessary to carry out Federal programs.
Recently, citizen groups in the States of Idaho, Michigan, Texas,
Colorado, and Ohio have filed these types of petitions. EPA and its
regional offices are working with the States and these citizen groups
to resolve the agency's legal concerns with particular provisions of
State audit laws. EPA has also established a task force of senior
representatives from EPA headquarters and regional offices and the DOJ
to ensure national consistency in EPA's response to these matters. So
far, EPA has worked cooperatively with several States, including Utah,
New Jersey, and Texas to make sure that their audit laws do not present
an obstacle to program approval.
EPA's Self-Disclosure Policy--Encouraging Audits Without Secrecy and
Blanket Immunities
Although EPA has clearly and consistently opposed State audit
privilege and broad immunity laws, the agency wants to encourage
companies to self-monitor, self-disclose, and correct violations.
Therefore, in 1995, EPA issued its own Incentives for Self-Policing:
Discovery, Disclosure, and Correction and Prevention of Violations (60
Federal Register 66706). This policy was a result of an intensive, 18
month public process designed to find the best way to encourage
companies to police themselves while preserving fair and effective
enforcement and the public's right-to-know. The policy reflects
thorough review and thoughtful suggestions from DOJ, State attorneys
general and local prosecutors, State environmental agencies, the
regulated community, and public interest organizations.
The policy encourages companies to police themselves by eliminating
punitive, gravity-based penalties for violations that are discovered
through an environmental audit. EPA will also not recommend criminal
prosecution for those companies that disclose violations discovered
through an audit, so long as the violations do not suggest high-level
corporate involvement or a prevalent management practice to conceal or
condone violations. The policy carefully balances these incentives with
conditions and exceptions to protect public health and the environment
and the community's right to know. In addition to prompt disclosure and
correction, the policy requires that companies prevent recurrence of
the violation and remedy any environmental damage. Repeat violations or
those that present an imminent or substantial threat to public health
or the environment or result in serious harm are excluded from the
policy. As a condition of penalty mitigation, EPA may require that a
description of a company's due diligence efforts be made publicly
available.
Many companies have begun to avail themselves of the benefits
provided by EPA's policy. Thus far, more than 120 companies have
disclosed and corrected violations at more than 400 facilities under
the policy. EPA has settled matters with nearly half of these
companies, waiving penalties in most cases. In addition, several
States, including Florida, California, and Pennsylvania, have fashioned
State audit policies patterned on EPA's policy, thus reducing confusion
in the regulated community in those States about the effect of
voluntary audits.
Concerns With Federal Overfiling
There has been some concern expressed by some States that EPA is
preparing to ``overfile'' against companies in States that have
objectionable audit laws. 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. Let me be clear that EPA has not and will not
arbitrarily target companies in States with audit privilege and
immunity laws. However, EPA will continue to exercise its normal
Federal oversight responsibility and retain the right to bring
independent enforcement actions in specific circumstances against
regulated entities that violate environmental requirements in States
where the agency believes that the State has failed to take timely and
appropriate enforcement action.
Rather than overfile, the agency prefers to work with the States to
determine who should take the necessary enforcement action. In the rare
instance that the agency does overfile in a State, it does so to
protect the public health or the environment or to maintain a level
economic playing field for the regulated community within and among the
States, and we make sure to provide a State notice prior to filing our
own enforcement action.
Statistics show that overfiling is in fact a rare event. As
reported by a state-by-state survey conducted by ECOS, the agency
overfiled on about 30 cases or 0.3 percent of all Federal enforcement
action during fiscal years 1992 through 1994. During fiscal years 1994
and 1995, the agency overfiled on a total of 18 cases or about 0.1
percent of State enforcement cases. From October 1995 through September
1996, there was a total of four overfiling cases. It is important to
note that none of these cases were filed as a result of the impact of
State audit laws on the adequacy of the particular State enforcement
actions.
EPA's National Response to the Inspector General Report in Pennsylvania
Enforcement accountability involves not only retaining the legal
authority and capacity to take enforcement action but also having the
commitment to take enforcement action when appropriate. I was therefore
very concerned by the findings of a report issued by EPA's Inspector
General (IG) in February 1997. At the request of EPA's Region III
office, the IG reviewed the Pennsylvania Department of Environmental
Protection's (PDEP) program under the Clean Air Act (CAA). The region
called for the audit, because it was concerned that the State was not
reporting significant violators to the region, despite ongoing
discussions between the region and the State. This was not only
hampering the region's oversight responsibility, but was also a
violation of the terms of EPA's CAA grant to the State. Therefore, the
purpose of the audit was to get an independent determination from the
IG about whether the PDEP was in fact identifying significant violators
of the CAA in accordance with Federal policy, and reporting these
violators to EPA. The report found, among other things, that the PDEP
had failed to report significant violators to EPA or take appropriate
enforcement action in every case to bring violating facilities into
compliance.
In response to this report, Region III is assessing the current
compliance data of the unreported significant violators identified by
the IG and working closely with Pennsylvania to initiate appropriate
enforcement responses as necessary. The Region is also conducting a
multimedia evaluation of the State's environmental enforcement program
and is posing the matters raised in the IG report as threshold issues
that must be addressed before PPA discussions can proceed. In addition,
I asked my staff to perform an initial review of our data bases to
determine if the problems in Pennsylvania regarding the reporting of
significant violators exist elsewhere. This initial screening strongly
suggested the potential for problems in other States.
Therefore, the Regions and, independently, the IG are working to
determine the level of reporting and enforcement activity in other
States under the CAA as well as other programs. The review will explore
the full range of potential verification approaches, including
oversight inspections, State file/data audits, statistical sampling of
the regulated community, and concentrated multi-statute reviews of
State environmental compliance and enforcement programs. Each region
has also contacted their respective States to discuss the problem
revealed by the IG report and will work closely with them to ensure
that the problem is not widespread.
I want to emphasize that EPA's review will be thorough and fair; we
are not jumping to any conclusions in our review process. Where our
review shows that States are meeting their obligations, we will let
them know. Where we believe that problems exist, we will work with
those States to identify the reasons and correct them. Timely and
accurate information reporting by the States is critical for EPA and
State enforcement and cooperation. The agency depends substantially on
information from the States to maintain our data bases, take
independent enforcement action as necessary, and develop national
enforcement policies and strategies. In return, EPA provides technical
and legal support to States in their enforcement actions and often
takes joint enforcement actions with States for large, complex, and
multi-state cases.
v. conclusion
Since joining EPA, I have emphasized that we will not run an
``either/or'' enforcement program. Only a combination of approaches
involving tough enforcement actions to ensure compliance, and
innovative programs to promote compliance, will be effective to protect
public health and the environment. Therefore, we will continue to build
upon our balanced enforcement and compliance assurance program adhering
to the principle that strong enforcement is the central and
indispensable element of our efforts to ensure and promote compliance.
We will take this same approach in our relationship with our State
partners and continue to work with them and others to find new ways to
promote compliance and innovation, improve coordination, and lower
costs. But, at the same time, we will work to ensure that States are
maintaining and utilizing rigorous, effective enforcement programs.
Thank you again for the opportunity to testify before your
committee. I would be happy to answer any questions you may have.
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Prepared Statement of Nikki L. Tinsley, Acting Inspector General,
Environmental Protection Agency
Good morning, Mr. Chairman and members of the committee. I am
pleased to have the opportunity to discuss recent audits conducted by
the Office of Inspector General dealing with issues related to
environmental enforcement activities.
Our work has shown that EPA is pursuing an enforcement program
through compliance assistance to the regulated community, backed up by
the more traditional enforcement mechanisms including administrative,
civil and criminal remedies. EPA is working in partnership with State
and sometimes local agencies to achieve environmental goals. This
morning I would like to discuss three aspects of a partnership that are
essential if it is to work well and achieve its objectives: (1)
mutually agreed upon enforcement approaches; (2) clear agreement on
each partner's responsibilities; and (3) complete and accurate
reporting of enforcement data. I will discuss these three areas in
light of audits we have recently conducted in the Air and Hazardous
Waste Programs.
Enforcement Approaches
Compliance assistance is a key component of an effective
enforcement and compliance assurance program. Compliance assistance
includes outreach, response to requests for assistance and on-site
assistance. By providing clear and consistent descriptions of
regulatory requirements, compliance assistance helps the regulated
community understand its obligations. For instance, Texas and Louisiana
held workshops and distributed brochures that described which air
emissions rules applied to dry cleaning businesses. Compliance
assistance can also help regulated industries find cost-effective ways
to comply through the use of pollution prevention and other innovative
technologies. When voluntary compliance is not achieved, EPA and the
States have the authority to use more traditional enforcement actions
to encourage compliance.
One generally agreed upon enforcement concept is that of escalating
enforcement actions for repeat violations. For instance, a violator may
initially be required to comply with an administrative order or be
assessed a relatively small monetary penalty. If these actions do not
bring about compliance, the enforcement actions may be escalated to
civil or criminal judicial actions and progressively higher monetary
penalties. We found numerous instances where this progressive
enforcement approach was not employed. For example, in California, a
glass manufacturing company paid a penalty of $1,000 for emitting
excessive particulate matter from its furnace. This company was cited
18 times for the same violation within a 2-year period, and each time
the penalty was $1,000. During this time, the company also received
nine notices of violation for failure to report its excess emissions,
and was fined an average of $645 for each violation. The fact that the
company remained out of compliance for 2 years indicates the
enforcement actions (which were not progressively more stringent) were
unsuccessful in bringing the company quickly into compliance.
Another enforcement concept is that penalties should be large
enough to negate any economic benefits of noncompliance. For the most
part, EPA regions included an economic benefit component in their
penalty assessments, but the States we reviewed generally did not. For
example, five of the nine hazardous waste cases we reviewed in
Louisiana should have included in the penalty calculations the economic
benefits received by the firms for noncompliance, but none were
collected. In one case the calculated economic benefit was $45,000.
When economic benefits are not consistently calculated and collected,
complying industries are treated unfairly due to the lack of a ``level
playing field,'' and varied levels of environmental protection could
put public health and the environment at varying levels of risk.
A third enforcement concept is that compliance with rules and
regulations should be enforced consistently across the country,
including the assessment of penalties. Our audits, however, found a
great variance when we compared EPA and State penalties, and when we
compared penalties between States. In both the Air and Hazardous Waste
Programs we found that penalties assessed by States were much less than
those assessed by EPA. For example, we reviewed 54 randomly selected
local air enforcement cases in California and found, with the exception
of a $1 million penalty, the average assessed penalty was about $1,000.
By contrast the penalties assessed by EPA averaged $31,000. Penalties
assessed against hazardous waste violators in a sample of 13 States
varied from an average of about $7,000 in Maryland to almost $60,000 in
Texas.
These inconsistencies were caused partly by such factors as limited
resources, including a lack of administrative or legal support. Another
reason for varying enforcement actions is because Federal, State, and
local agencies have preferences for different enforcement approaches.
Representatives of State and local agencies we interviewed were
concerned that larger penalties would result in negative impacts on
their economies, such as the possibility of industry relocations.
Partnership Responsibilities
In order for a partnership between EPA and a State enforcement
agency to work, there must be common agreement about the activities
each will perform. However, Office of Inspector General audits showed
that EPA and the States frequently did not come to agreement on program
requirements, and commitments made were not fulfilled. To illustrate
the problems that can occur in this area, I would like to refer to an
audit we did of EPA and the Pennsylvania Air Enforcement program. EPA
expected the State of Pennsylvania to report all significant violators
so that EPA could carry out its oversight role and take necessary
enforcement actions. In comparison to EPA, the State placed less
emphasis on reporting violators. While Pennsylvania performed 2,000
inspections at major facilities in fiscal year 1995, it only reported
six significant violators to EPA. We reviewed 270 of the inspections
and identified 64 additional facilities that should have been reported.
Pennsylvania did not believe these violators warranted being reported,
and this allowed the State to work with violators to achieve compliance
without EPA involvement. Unfortunately it took Pennsylvania a long time
to resolve some of these violations--sometimes years--during which time
facilities were emitting excessive pollution into the atmosphere in
violation of their permits. Because EPA was unaware of these
violations, it was unable to exercise appropriate oversight. This
example shows the importance of EPA and the States having a meeting of
the minds on expectations.
This is especially critical in our view because EPA is now awarding
new Performance Partnership Grants in lieu of the old categorical
grants. These grants necessitate a new cooperative relationship where
EPA and States share the same environmental and program goals. No
partnership can be successful without such sharing.
Collecting and Reporting Enforcement Data
Accurate and complete data on environmental enforcement is vital to
provide a baseline so that we as a Nation can judge the extent that
industry complies with environmental laws, and to provide the
information that States and EPA need to target areas for increased
enforcement. We found major omissions and inaccuracies in enforcement
data systems of both the Air and Hazardous Waste Programs. In the Air
Program, enforcement actions were often underreported and inaccurately
characterized. In the San Francisco area, for instance, half of the
notices of violation were not entered into the data system; while in
Texas and Louisiana not all enforcement cases were reported, and almost
half of those that were reported were not properly identified as
significant violators.
By way of contrast, a data information system must guard against
requiring unnecessary reporting. In the Hazardous Waste Program, we
found that EPA's instructions and forms were long and complex, using a
programming language that was difficult to learn and use. As a result
many users of the system had problems obtaining usable data and used
their own versions instead. EPA is now working with its State partners
through the Waste Information Needs initiative to reduce reporting
requirements for States and industry, while ensuring accurate data is
available for tracking national results in areas such as waste
minimization.
Conclusion
I have discussed three elements we believe are necessary for
effective partnerships between EPA and the States.
First, partners must agree upon an overall enforcement
approach. That approach should include assisting the regulated
community to comply with environmental laws and regulations; and must
include consistent employment of fines and penalties when voluntary
compliance cannot be achieved.
Second, all partners must have a clear understanding and
acceptance of their responsibilities. This requires a meeting of the
minds on what the partners are going to be held accountable for,
agreement on measures of success, and good faith efforts to achieve
environmental goals.
Third, data collection and systems must be improved to
provide complete, accurate and timely data on enforcement activities.
However, systems should not burden the regulated community with
unnecessary reporting requirements.
This concludes my prepared remarks. I will be happy to answer
questions.
______
Prepared Statement of Mark Coleman, Executive Director, Oklahoma
Department of Environmental Quality
My name is Mark Coleman. I am the Executive Director of the
Oklahoma Department of Environmental Quality and the Chairman of the
Compliance Committee of the Environmental Council of the States. The
Environmental Council of the States (ECOS) is the national, non-
partisan, non-profit association of State and territorial environmental
commissioners. I appreciate this opportunity to testify before you
today regarding the enforcement relationship between the States and the
Environmental Protection Agency (EPA).
In keeping with congressional intent, the vast majority of
environmental enforcement in America is done by State government. State
governments bring 9 out of 10 of the nation's enforcement actions each
year. States have been delegated the Federal programs, involving tens
of thousands of permits, and have direct and continuous interface with
both the regulated community and public. EPA has a clear role to assure
that we do our jobs.
I am pleased to report that although there are many factors that
place strain on the existing enforcement relationship, the States and
EPA are still committed to strengthening this partnership. One of the
most recent endeavors to improve this bond was the formation of the
State/EPA Enforcement Forum, which held its first meeting May 23, about
2 weeks ago. All ten EPA regional administrators, a State
representative from each region, and primary EPA enforcement personnel
will be working to resolve enforcement issues that compromise the
current State/EPA enforcement relationship.
The State/EPA relationship regarding enforcement has been in
development for over two decades. After extensive negotiations, that
relationship was institutionalized in 1986 in the Policy Framework for
State/EPA Enforcement Agreements. That document, as amended, remains
the foundation for current State/EPA roles in enforcement matters.
The Policy Framework provides a blueprint where States assume
primary day-to-day enforcement responsibility. The document was
intended to ensure that clear oversight criteria were set, procedures
for advance consultations and notification established, and there was
adequate State reporting to ensure effective oversight.
EPA has largely delegated responsibility for national programs to
the States, including the primary role in enforcement. There is general
consensus on the basic allocation of enforcement responsibilities.
However, when EPA brings a direct enforcement action in a State, there
is often concern that the principle setting forth the primary role of
the State has been violated. The Policy Framework, and subsequent
addendum (the latest being 1993), lists four types of cases when EPA
may consider taking direct enforcement action as follows:
1. State or local agency request EPA action
2. State or local enforcement response is not timely and
appropriate
3. National precedents (legal or program)
4. Violation of EPA order or consent decree
To complement the four situations when EPA may consider enforcement
action, there are procedures and protocol that have been set up to
assist matters. The Policy Framework states, ``A policy of `no
surprises' must be the centerpiece of any effort to ensure the
productive use of limited Federal and State resources and an effective
partnership in achieving compliance.'' It is clear that the Policy
Framework mandates that if EPA is to initiate enforcement in a State,
certain protocols must be met to promote the spirit of cooperation,
trust, and stability in the working relationship between States and
EPA.
This last issue is perhaps the starting point at which the
relationship breaks down. It is my belief that if EPA does not first
give the States an opportunity to act in enforcement matters, and if
they follow a loose standard when applying the four above mentioned
criteria, the already fragile relationship will continue to weaken.
The States believe that enforcement is a tool, not a goal.
Compliance itself is a goal, but is not our main goal. Our main goal
is, and should be, reaching the environmental quality goals that
Congress and our legislatures have set. No amount of enforcement and
compliance activity measures will tell us anything about whether we
have met, or will meet, that goal.
Let me give an analogy. If I were to tell you that the number of
detentions and expulsions in our nation's high schools had doubled last
year, would you then conclude that our nations students were better
educated than before? No State would deny that enforcement is an
important and necessary tool. But I can also make the case that such an
increase in enforcement actions would mean a terrible breakdown in
communications between government and the regulated communities had
occurred. Such a breakdown would mean little chance of improvements in
environmental quality.
It is not only the occurrence of EPA enforcement action in States
that creates friction but also how EPA chooses to involve the States
once action is planned in a particular State. Since States have primary
responsibility for enforcement in most EPA programs the national
enforcement strategy cannot be implemented without active State
participation. If EPA begins to aggressively pursue national or
Regional initiatives without adequately involving the States, there is
serious potential for damaging the EPA/State relationship.
Whether EPA consistently follows or even remembers these criteria
when deciding the types of cases it will pursue and the mechanisms of
involving States once it has begun are additional opportunities for
instances of friction, each of which are very significant to State
programs. There is also the issue of delegation of programs and direct
accountability. The first, program delegation, in theory is not an
issue. It is clear that EPA has delegated programs to States. In
delegating this responsibility they have also delegated the primary
enforcement responsibility. If EPA strays from this practice, then
possibly true delegation has not yet occurred. State officials feel
that once a program is delegated, EPA should be most concerned with
overall program effectiveness and not about the details of how a State
handled each individual enforcement matter.
This is not to say that EPA does not have a strong oversight role.
These oversight practices should be there to assure that States have
effective compliance and enforcement programs. In 1983, a special
State-Federal Roles Task Force defined the roles and responsibilities
of EPA and the States for environmental protection in light of
increasing delegations of authority to the States as follows:
------------------------------------------------------------------------
Role Function
------------------------------------------------------------------------
STATE LEAD, EPA supporting................ Direct program
administration
Enforcement
EPA LEAD, State supporting................ Research
Standard setting
Oversight
Technical support
National information
collection
------------------------------------------------------------------------
This brings us to the second part of the equation, accountability.
Although EPA has delegated responsibility for administering national
environmental programs to the States in keeping with Federal law, EPA
has the view that Congress expects an ever-increasing number of direct
Federal enforcement actions and assessment of Federal mandates. These
direct enforcement actions are reportedly viewed, by Congress and the
public, as the success measuring stick of how well EPA is performing.
EPA may be receiving conflicting messages of the roles and duties they
are to perform to help the States succeed in program management. On one
hand, the message is to give the States the first opportunity to act,
but on the other hand, the message is to keep Enforcement numbers up.
This perceived pressure for direct EPA enforcement may be the source of
much of the conflict with the statutory principle of deferring to the
States.
Overfiling, the term used to describe when EPA pursues lead
enforcement action in a State, is also an important piece of the
enforcement relationship. Although the instances of EPA overfiling are
relatively few, the possibility of overfiling and the use of overfiling
comes at a great cost. The potential for overfiling leads to mutual
wariness and if not done with extreme care it can rapidly damage the
enforcement relationship. EPA overfiling sometimes means that
communications between EPA and the States have failed. If EPA has clear
communication of what is expected, including notice of EPA's
expectations and the intent of overfiling if these expectations are not
met, then EPA overfiling should rarely occur. The success of EPA is not
measured by the number of enforcement actions it takes, but the
effectiveness of its oversight role.
The basic problem between the States and EPA as it relates to
enforcement, is that in recent times role assignments have become less
clear. Changes in administration at both State and Federal levels,
expectations from outside focus, and the natural maturation of programs
has resulted in uncertainty (thus inconsistent action) or lack of
awareness of the established basic principals. If all the involved
parties do not realize and support the roles each has in enforcement,
regional offices and States are left in the position of determining for
themselves the nature and extent of their relationship, this is done
with little success.
In my view the solution to these conflicts is to reaffirm the
established roles. In doing so we can focus limited resources towards
these roles and accomplish the goal we all share in protecting the
environment. Federal enforcement personnel should be leading the drive
in research, standard setting, oversight, technical support and
national information collection. The States should perform their lead
duties in direct program administration and enforcement. Neither party
should seek to pick off choice plums from the other's role. When these
roles are used in guiding the State/EPA relationship in enforcement, it
can be expected that the presence of existing tension and frustration
will decrease and future conflicts can be avoided.
We are not so far from the goal of both levels of government
effectively working together. States already do take well over 90
percent of enforcement action within the country. Perhaps with your
help the efforts to reduce frustration and unnecessary loss of
resources and credibility due to public disagreements can be
significantly reduced. Thank you for your efforts in this regard and
for inviting me to represent the views of the States.
______
Prepared Statement of Becky Norton Dunlop, Secretary of Natural
Resources, Commonwealth of Virginia
introduction
I appreciate the opportunity to present Virginia's views on State-
Federal relations in the context of environmental enforcement. There is
more to policy than enforcement, however, and I caution that
enforcement is only one tool in the kit bag of environmental policy.
The truth is that enforcement action means ``failure'' not success. It
is certainly not the best tool to improve the quality and condition of
the resources which make up our environment. In fact, it is the tool of
last resort.
Virginia's legislature and Virginia's Governor have, in many
important ways, established that policies which focus on compliance
with environmental laws are better for the natural resources than
policies which focus on enforcement. Virginia has demonstrated
leadership in putting the proper emphasis on the purpose, goals and
objectives of environmental policy, which, of course, is to improve the
quality and condition of the air, water, soil, flora and fauna
resources which make up the environment.
Having said that, it is important for the committee to have an
understanding of the entire issue of enforcement, and not simply a
current ``cross section'' of what is happening. Allow me to provide a
brief historical background of where the environmental compliance and
enforcement debate has been, and where it is going, in addition to
articulating Virginia's pro-active views on getting results.
history of enforcement and virginia/states action in the 1990's
The 1970's saw the first, serious enactment of
comprehensive, media-specific environmental laws, whose basis was a
facility-based permit system.
The inception of environmental enforcement took place
in the mid-1970's, when then-EPA Administrator William D.
Ruckelshaus took the first enforcement steps in dealing with
the permitting issues under the then newly-enacted Clean Water
Act. Historical records show that EPA's first enforcement steps
were difficult to engage, because the Federal Government had
never before taken Federal action to meet discharge and
emission limits.
The 1970's were punctuated with the passage of other
permit-driven statutes, such as the Clean Air Act (in 1970 and
amended in 1977) and the 1976 Resource Conservation and
Recovery Act and the 1972 Clean Water Act.
Because of this company-by-company permit system,
enforcement by the EPA was also company-by-company, and in the
many cases where government entities were the polluters, on a
government jurisdiction by government jurisdiction, basis.
The 1980-1990 decade witnessed enactment and
implementation of far more punitive measures, in response to serious
pollution incidents.
In 1980, Congress passed the Federal Superfund
statute (Comprehensive Environmental Response, Compensation and
Liability Act), which provides for strict, joint and several,
and retroactive liability. This turned much of the
environmental profession into a lawyers' business instead of an
environmental science and resource management business.
In 1990, Congress passed the Oil Pollution Act, which
also provides strong regulation in the oil and gas sector.
Once it was understood that these punitive enforcement
measures were not particularly effective, environmental policymakers
turned up the heat.
In 1986, EPA issued its first environmental audit
policy, which sought to encourage companies to perform
environmental audits, but which left the companies at
significant enforcement jeopardy. In 1991, the Justice
Department's Environment Division issued its Audit Policy.
These strict enforcement-driven rules continue to exist today,
even as amended by EPA.
In 1991, EPA issued its first policy on
``Supplemental Environmental Projects'' by which violators
could mitigate part of the civil penalties levied on violations
in exchange for a same or greater investment in environmental
improvements at or near the same facility. Again, the regulated
community has been left at significant enforcement jeopardy.
In 1990, Congress passed the Pollution Prevention
Act, by which it directed EPA to begin establishing measures to
prevent pollution, in addition to focusing on ``end of pipe''
permits and enforcement actions.
In the 1986 Superfund Reauthorization (the Superfund
Amendments and Reauthorization Act, ``SARA'' of 1986), Title
III was added (known as the Emergency Planning and Community
Right-to-Know Act (EPCRA), which instituted the annual Toxics
Release Inventory (TRI) publication. The publication and
dissemination of the annual TRI, published since 1987, has
brought the ``sunshine'' of public disclosure of emissions, and
has resulted in considerable reduction in emissions. This is
quite a success story for voluntary compliance strategies, and
has happened in spite of EPA's preference for non-voluntary
enforcement-litigation strategies.
In the 1990's, Virginia and other States took a more
comprehensive, pro-active role in obtaining environmental solutions.
Virginia and other States ``staffed up'' with their own
environmental expertise, and subsequently took their own actions to
pro-actively lead the environmental results agenda:
--recognizing the inherent deficiencies in the cumbersome,
permit-by-permit and litigation approach to regulatory
enforcement, Virginia and other States formulated their own,
outcome-driven compliance measures to improve the quality and
condition of the environment, including:
implementation of a ``Compliance First,
Enforcement Second'' approach to expeditiously gain
compliance and avoid the hemorrhage of non-compliance
while conducting cumbersome litigation;
as done in Florida by Carol Browner and other
States, Virginia ``regionalized'' its compliance and
enforcement system, by which it created a broader, more
comprehensive team (permitting, technical, and
compliance/enforcement staff) to respond to
environmental complaints faster;
Virginia was the first State to institute a
new paradigm for implementation of environmental
policy. Previously in Virginia, and in almost all other
States, environmental protection and natural resource
agencies had been organized on what is called a
``media-specific'' basis. That is, each environmental
department had an Air Division, a Water Division, and a
Waste Division, etc. Each of these divisions employed
all the tools of permitting, compliance, and
enforcement. The Virginia paradigm has reorganized and
streamlined environmental policy management by
substituting the previous media-based divisions for
Divisions of Permitting, Compliance, and Enforcement,
each with the capability to deal with the media of air,
water, and waste. This new paradigm has empowered
regional and local DEQ officials to expedite
improvements in environmental quality.
Virginia took a new, varied approach, not
relying simply on the slow, often litigious permit-by-
permit and administrative enforcement penalty system:
instead, we focused on environmental
remedies and behavior modification to gain
expeditious compliance;
developed a bifurcated approach:
--cooperatively working with entities
who want to get into compliance;
--take formal, punitive action against
recalcitrant actors. (E.g., the U.S.
Government/Avtex, the U.S. Army (Vint
Hill Farms, Warrenton Army Training
Center), U.S. Navy/Little Creek, NASA/
Wallops Island, Rhinehart/tire pile,
multiple private sector landfill
operators, Smithfield Foods, State
government (VDOT, Dept. of Mental
Health, Dept. of Corrections, State
universities--UVa, Va. Tech, James
Madison U.)
--work with Commonwealth's Attorneys
and the U.S. Attorneys to bring the
full force of law against criminal
polluters.
targeted ``worst polluters'' and
long-overlooked government facilities, which
are the most egregious and persistent polluters
in Virginia.
used compliance incentives by which
to encourage, and not discourage, broad groups
of entities to pro-actively ``think ahead''
about their environmental responsibilities.
Among these are:
--development of specific plans of
work with specific timelines to improve
emissions performance rather than
imposing fines on cash-strapped
municipalities--i.e., non-profit,
taxpayer-funded entities, to take that
necessary action to retrofit their
municipal water/wastewater treatment
and waste systems (since 1994, Va. has
issued orders to over 110
municipalities, by which they will fix
their water systems, at a cost to them
of approx. $1-2 billion);
--encourage environmental audits by
which companies and municipalities take
the initiative to pro-actively deal
with their environmental problems and
avoid being the subject of expensive
governmental enforcement action, fines
and litigation;
--work with and encourage--i.e., not
discourage--environmental
entrepreneurs, who wish to run a
business for profit while
simultaneously and expeditiously
repairing an environmental malady
(e.g., Virginia's Voluntary Remediation
Program, by which some 40 companies are
voluntarily moving to cleanup
contaminated properties; also quickly
encouraging Va. Power to join the Army
Corps of Engineers to clean up the
Tidewater Community College site, thus
avoiding the legal nightmare of EPA
naming the College as a NPL Superfund
site, thus forcing gargantuan cleanup
costs on the State government)
--use of specialized grant and tax
funds as economic incentives for unique
environmental problems--e.g., the
Virginia Waste Tire Fund and
reimbursement allocation for tire pile
cleanups, which has prevented a major
environmental crisis for Virginia.
Virginia's Revolving Loan fund to help
small communities deal with long-
standing air, water, and waste problems
(e.g., the 1996 Tangier Island
settlement, ending a 10-year nightmare
of environmental litigation and delay
in cleanup)
We are now involved with the States in EPA
Region III and ECOS to develop and refine new measures
of compliance and enforcement success, rather than
simply relying on numerical action outputs, originated
in the 1970's, that do not measure real environmental
results. Frankly, it is an absurdity and demonstrated
failure to measure improvements in environmental
quality by the number and amount of fines imposed or
litigations entered into. We believe that a true
environmental compliance and enforcement system will:
measure concrete, physical, and
measurable improvements in the quality of the
resources themselves.
utilize the comprehensive range of
environmental tools, from Small Business
Assistance, Compliance Assistance and use of
specialized funds, in preference to punitive
litigation;
by these measures, Virginia has done
quite well, including but certainly not limited
to:
--real, measurable improvements in
Virginia's air, water and land (EPA
announced this year (including
Thursday, June 5) that two of the 3
Clean Air Act Non-Attainment Areas
(Hampton Roads, Richmond area) will be
removed from their non-attainment
status, due the technical results from
many measures that have been taken.
--By taking this approach, Virginia has moved to resolve its
most serious, known environmental problems, and, in so doing,
has resolved a list of long-standing environmental violations
that date to the mid-1980's.
These are environmental results that count, consistent with the
Federal Government Performance and Results Act--not simply the typical
``bean counting'' exercises (how much in fines, number of lawsuits or
orders issued) that continue to characterize traditional enforcement.
We believe the compliance-first approach is one that focuses on real
solutions, not simply, rhetorical assertions about complex, technical
problems.
Virginia's leadership in streamlining permitting, appropriate use
of consent orders, and our compliance assistance initiatives have
encouraged new investment in Virginia that has created the wealth and
technological innovations for a continuing and ever-increasing
improvement in environmental quality for the people of the
Commonwealth.
In light of this history, what is an objective view of EPA and how
does it work with States like Virginia?
A range of disinterested but knowledgeable parties,
ranging from former EPA Administrator Bill Ruckelshaus to EPA's current
Inspector General and Congress' General Accounting Office are making
the same statement that many States are making: EPA has some serious
problems that need to be fixed. To quote from GAO's June, 1996 report
on the Government Performance and Results Act:
The Environmental Protection Agency (EPA) was established
in 1970 under a Presidential reorganization plan in response to public
concerns over unhealthy air, polluted rivers, unsafe drinking water,
and haphazard waste disposal. Congress gave EPA responsibility for
implementing Federal environmental laws. From the start, however, EPA
lacked an overarching legislative mission, and its environmental
responsibilities have yet to be integrated with one another. As a
result, EPA could not ensure that it was directing its efforts toward
the environmental problems that were of greatest concern to citizens or
posed the greatest risk to the health of the population or the
environment itself.
It was with almost universal approval that Carol Browner
testified before this committee in March, 1993, on her objectives,
including her affinity for State environmental programs and providing
flexibility to such States and their programs. I agree with the
following insightful remarks she made then, because they were based on
her experience in both Florida as well as in Washington:
This [EPA's relationship with State, tribal and local
governments] is an issue of particular interest to me,
obviously, because of my past experience in a State
environmental agency. I have a real affinity for State
environmental agencies and what they bring to the table. In
Florida, we launched a fairly intensive program to delegate a
number of our powers to regional, county and city organizations
because we felt they brought to the table a real understanding
of the issues at hand and a set of resources to do the job that
the public demanded.
I think that one of the most important pieces of this
Administration will be to forge stronger relationships with
State and local government and to build on what has already
been done. I feel very strongly that we cannot reach
environmental objectives until we acknowledge the value of and
support of the building of strong State and local capacity to
manage environmental programs.
In response to Senator Baucus' question regarding EPA allowing
States to manage environmental programs, Ms. Browner stated:
Well, it's a change in how we think about our relationship
with the State agencies. We at EPA are going to have to think a
little bit differently about the State agencies. We're going to
have to recognize the strengths that they bring to the table,
and we're going to have to allow them to do the job the way
they see fit.
I would just say that the other piece of this is that there
are places where--and we look forward to working with this
committee during reauthorization--where we would like to see
greater flexibility in some of the statutes under which we
delegate, to make sure we're not put in an awkward position of
always being responsible for making sure on a permit-by-permit
basis that in fact what Congress intended is being done.
Again in response to Senator Baucus' question, ``But where can EPA
be more flexible?'', Ms. Browner stated:
I do think that we can also change how we relate to the
States. It's not all going to take statutory changes. Part of
it is just recognizing within EPA that we need to behave in a
different way.
Again in response to Senator Baucus, Ms. Browner stated:
Well, we have several processes going on right now in terms
of dialogs taking place between EPA and local governments,
between State and tribal governments. We need to increase these
dialogs. And, quite frankly, we probably need to swallow hard.
I know when I looked at delegating my powers in Florida to
regional governments, it was just a question of sort of saying,
``OK, we're going to do it, and we're going to trust them.''
That's a hard thing. It's not within our nature, but we have to
do it.
I think there is a growing recognition within the agency at
all levels that if we are going to accomplish our mission, it
will only be through the cooperation of State, tribal and local
governments, that they bring such a large number of resources
to the table to help us do our job, and that we have to
maximize the use of those resources so that we can be moving on
to the next challenge. . . .
[I] recognize that we at EPA have a tremendous
responsibility to improve that relationship and that we have to
reach out to the States in a way that we never have before.
With Ms. Browner's mission statement for EPA as context, we ask
anew: What is the relationship between EPA and Virginia?
Answer: Though much of the staff-level relationship is good,
however, a number of unilateral, surprise EPA actions leave Virginia
perplexed:
Which EPA are we supposed to deal with? Is it Ms. Browner's
cooperative, collegial approach, or is it that approach
punctuated by repeated, rhetoric-laden surprises by which
Virginia has been treated? Examples:
Example: EPA's Belief in Civil Penalties as a Measure of
Enforcement Success.
EPA maintains a steadfast belief, by and through their
annual enforcement accomplishments, that one of the key
barometers to the success of environmental enforcement is civil
penalties extracted from violators. If this is so, consider the
following:
Blue Plains. The District of Columbia's Blue Plains
wastewater treatment plant is one of the largest plants on the
Potomac River, and has had a long-standing, chronic compliance
problem which has polluted Virginia waters. So when the
Attorney General of Virginia sought to join in a Federal
lawsuit over the plant, the United States Department of Justice
and EPA successfully kept the Commonwealth out of the suit.
Then, when the U.S. got a consent decree requiring--yet again--
that Blue Plains get into compliance (a judgment that it had
received in previous litigation), the U.S. sought and received
no civil penalties for the dramatic Clean Water Act violations
that had impacted the Potomac River and Virginia Waters.
Lorton. On the heels of this, Virginia sued the U.S. and the
District of Columbia for the chronic compliance problems at the
Lorton, Virginia wastewater treatment plant that was polluting
Virginia waters. When the Commonwealth obtained a consent
decree calling for $175,000 in civil penalties (some of which
would be waived pending significant environmental plant
construction), EPA Region III wrote to Virginia stating that
Virginia's civil penalty was not high enough.
Virginia is perplexed: Which EPA are we supposed to deal
with? The one that claims collegiality and joint efforts, or
the one that cuts Virginia out of litigation, seeks no civil
penalties for repeated violations, and then separately
criticizes Virginia for its civil penalties being too small.
Example: EPA's Posture on Government Facility Pollution and
Responsibility.
Virginia enforcement against government facilities. Virginia
has taken the lead to enforce environmental laws among its own
State government, as well as local and Federal Government. It
has enforced against entities varying from the Virginia Dept.
of Transportation to the University of Virginia, as well as the
municipalities mentioned before, at extraordinary cost for
environmental retrofitting and construction. It also must
enforce against the largest polluter in the Commonwealth, the
Federal Government, and has done so against Army, Navy, and
NASA facilities, in order to require them to do the same thing
as private entities.
EPA Non-Enforcement at Avtex Fibers. EPA claims to take this
same posture, but there is a serious question about this. Why
is it that the Commonwealth has to sue the Department of
Defense, Air Force and NASA to recover Virginia's cleanup costs
at a toxic waste disaster that they knowingly bailed out and
exacerbated, while EPA refuses to enforce against them? In
November, 1988, the U.S., by and through the National Security
Council, bailed out Avtex Fibers--then recognized as the
largest polluter in the State--with $43 million, in order to
continue providing specialized rayon for Air Force missiles and
the NASA space shuttle. The NSC meeting included an EPA warning
that the plant had major environmental problems, and that
taking such bailout action would bring on Superfund liability.
Notwithstanding this warning, the U.S. bailed the company out
and--according to Air Force memos--pushed production ``all the
while knowing an environmental disaster was brewing''. When
Avtex closed and abandoned the facility 1 year later, the U.S.
abandoned the facility as well. Since then, EPA has not taken
any enforcement action against the Federal Government, and has
been slowly cleaning it up using money from the Commonwealth,
the Superfund, and one private responsible party. The
environmental property damage to this 440 acre site is
gargantuan, including a 65-mile health advisory warning people
not to fish in that part of the Shenandoah River. Though
Virginia was not responsible for this toxic waste disaster, it
is having to pay 10 percent of all of EPA's cleanup costs and
100 percent of EPA's future operation and maintenance costs, at
an expected exponential figure. EPA's posture? They won't
enforce against a sister agency, due to the Federal
Government's ``Unitary Executive Theory'', thus leaving the
Commonwealth of Virginia having to pay for the Federal
Government's knowing environmental damage.
Virginia is perplexed: Which EPA is it supposed to believe?
The one who claims enforcement against the worst polluters is a
priority, or the one that sits idly by as the Commonwealth has
to sue the Federal Government to make it pay back Virginia for
the environmental catastrophe it created?
Example: EPA Violation of EPA-Virginia Enforcement Agreement, and
Inflammatory EPA Rhetoric
Smithfield Foods. The formal, 1975 enforcement agreement
between EPA and the Commonwealth of Virginia states that,
pursuant to delegation, Virginia has primacy in all NPDES
environmental enforcement. That agreement has characterized the
relationship since 1975.
So why did EPA surprise Virginia by secretly taking
enforcement action against a private party, Smithfield Foods,
when it has known and acquiesced in the results-driven actions
Virginia has taken against that party since 1991? And, why did
EPA take this action after Virginia complied with a request
from EPA, Justice and the FBI not to take civil action, so as
not to jeopardize a criminal investigation? And, when EPA did
so, why did EPA make false, rhetorical statements about
Virginia?
Virginia is perplexed. Which EPA are we to believe? The
collegial one Ms. Browner suggested, or the hostile one
Virginia deals with at Region III that breaks a 22 year
agreement?
Example: EPA's Posture on Environmental Audits
Like many other States, Virginia enacted an environmental
audit and related limited civil immunity statute. Any immunity
was predicated on it being consistent with Federal law. In a
survey of all States' environmental audit statutes, EPA's
Director of Congressional Relations for Virginia was quoted as
saying that EPA was familiar with Virginia's environmental
audit statute and that, even though it had criticized it
before, the EPA team reviewing these State audit statutes did
not intend to contact Virginia again. Surprisingly, the EPA
Regional Administrator wrote a letter shortly thereafter
regarding the Smithfield case, and cited as a criticism of
Virginia the same Virginia statute that EPA had just tacitly
approved.
Virginia is perplexed. Which EPA are we to believe? The EPA
Headquarters Team that has reviewed and acquiesced in
Virginia's statute, or the EPA Regional Administrator who takes
a contrary view?
Example: EPA's Posture on Tributyltin (TBT)
In 1988, Congress mandated EPA to conduct a study of
tributyltin, a chemical defoliant agent by which shipyards
clean the hull of ships, for purposes of arriving at a national
regulatory standard in water. EPA has never done that study. If
that is the case, then why is EPA publicly criticizing Virginia
and holding up EPA's approval of a major permit over TBT?
Virginia is perplexed. Which EPA are we to believe? The one
that is required to promulgate a national standard with which
all States are to comply, or the one that fails to comply with
such Congressional mandate and then criticizes a State for
acting on the EPA created vacuum.
Example: EPA's Plan for State Delegated Program Flexibility
EPA announced in 1995 that it intended to promulgate a plan
by which it would provide considerably more flexibility to
States by which to run delegated environmental programs.
However, shortly after the 1996 election, the Deputy
Administrator of EPA withdrew this plan.
Virginia is perplexed. Considering Ms. Browner's testimony
before this very Senate committee, which EPA are we supposed to
believe? Her firmly stated belief in State environmental
programs and EPA flexibility, or EPA's recent move to shut off
such flexibility.
Example: EPA's Non-Responsiveness Regarding Challenge to Virginia's
Water Program Delegation
In November, 1993, a public interest group, the Chesapeake
Bay Foundation, filed a formal petition with EPA Region III by
which it sought for EPA to withdraw its 1975 delegation of the
NPDES program to the Commonwealth of Virginia. Notwithstanding
multiple requests since 1994, EPA Region III has never made a
decision, even though it has historically ranked Virginia as
one of its better States dealing with the water program.
Virginia is perplexed. Considering Ms. Browner's testimony,
which EPA are we to believe? The collegiality and State
flexibility that Ms. Browner articulated, or the non-
responsiveness of Region III?
Example: EPA Overfiling After State Achieves Environmental
Resolution
Conclusion: As was stated at a recent meeting of the Environmental
Council of the States, ``states are not branch offices of EPA''.
These facts remain clear:
Virginia is achieving real environmental results, and is
not relying on 1970's barometers to measure 1990's accomplishments;
Virginia is in the forefront of developing useful,
environmentally-sound methods by which to expeditiously achieve
environmental compliance, notwithstanding 1970's era-EPA criticism;
Virginia remains perplexed. Why has Ms. Browner's
cooperative, collegial approach somehow gotten lost in EPA between her
office and Region III?
Finally, one more note regarding State-Federal relations. On May
30, the U.S. District Court for the Eastern District of Virginia ruled,
in U.S. v. Smithfield Foods, that Virginia's statutory water
enforcement program is not afforded any deference from EPA, since it is
not comparable to the Clean Water Act's program. This was because, the
Court reasoned, Virginia's water law does not have the same
administrative civil penalty tools as the Clean Water Act. If this is
upheld, then any State whose State water laws do not contain the same
tools as the Clean Water Act should know that EPA can overfile them,
regardless of what environmental progress the State is making. This
effectively means that there can and will be serious questions by every
State's permittees regarding whether they even need to deal with the
State, since EPA can simply ignore such State action. If this is the
result that EPA sought, then we must truly ask which EPA any State
deals with: the one which believes that ``We're going to have to
recognize the strengths that they (the States) bring to the table, and
we're going to have to allow them to do the job the way they see fit'',
or the one which wants to turn back the clock, to return to the 1970's,
monolithic ``Big Brother'' approach to environmental enforcement? Ms.
Browner said that the change would be hard, but that EPA would ``have
to do it''. Despite these sentiments, they have not done it yet, and it
isn't clear from their actions that they ever intended to.
helpful servant or fearful master
The issue about EPA and State relations in regard to enforcement of
environmental laws is simply this: Is government to be a helpful
servant or a fearful master? This question is at the very core of the
reforms and improvements now taking place in environmental quality
policy in the States all across this land.
States, not only Virginia, but in virtually all States, including
those whose top environmental officials have long been associated with
the ``Enforcement First'' approach are moving in the same direction as
Virginia. Indeed, Florida under Administrator Browner's leadership,
began to initiate Compliance First policies when she was my counterpart
there. States' environmental agencies, States' legislatures and States'
Governors want the quality of the environment in which they and their
people live and work to be improved.
States want real and meaningful reform to help them put aside the
one-size-fits-all, top down, Washington knows best, litigious approach
of the past because the experience of the past 30 years demonstrates
that compliance with national environmental quality goals and standards
is the most effective focus of environmental policy. This is the
helpful servant approach.
The ``fearful master'' approach is simply wrongheaded and is proven
to be counter productive in improving environmental quality. The
``fearful master'' approach demonstrated by EPA for the past 30 years
to be its preferred approach, has turned concern for the environment
away from its beginnings as a profession of scientists, environmental
engineers and resource managers into a profession of lawyers,
litigators and one-size-fits-all regulators and political opportunists.
In his Farewell Address, George Washington warned Americans to
always be vigilant to assure that the new American Nation would never
allow the government to become a fearful master. Virginia submits that
now is the time for Congress to assess this State and Federal
relationship as regards environmental policy. Will you determine George
Washington was correct in thinking that the ``helpful servant''
approach we are now trying to implement in Virginia is far more
effective and far more suitable for a free and prosperous people? I
trust you will find this to be true.
introduction
1. Virginia has demonstrated leadership in putting the proper
emphasis on the purpose, goals and objectives of environmental policy--
which should be to improve the quality and condition of the air, water,
soil, flora and fauna resources which make up the environment. Believe
it or not, EPA seems to believe, or act as if they believe, that the
principal purpose of environmental policy has little to do with
improving natural resources and much to do with ``enforcement
outcomes''--which is bureaucratese for the amount of fines, litigations
and permit restrictions which can be imposed.
Virginia Way, Compliance First. We call the Virginia Way
our ``Compliance First'' approach. The Virginia Way is a science-based
approach which uses every resource of State agencies, other government
agencies and entities, and the private sector to HELP companies and
municipalities reduce site-and-situation specific emissions which can
have a harmful effect on the people, wildlife and the air and water
resources.
Enforcement when necessary. When Compliance First will not
accomplish the purposes of environmental policy, as is in the case of
willful polluters who have demonstrated themselves to be ``bad
actors,'' Virginia is vigorous and aggressive in employing all the
tools of enforcement at our disposal--including fines, litigation,
cease-and-desist orders, and referral to the Commonwealth's Attorneys
for criminal prosecution.
2. Virginia has taken the lead in changing the way improvements in
environmental quality are managed, pollution is prevented and clean-up
of past pollution is accomplished.
New Paradigm for implementation of environmental policy
objectives. Virginia has re-organized and streamlined environmental
policy management by substituting for the previous media-based
organization of DEQ a new set of Divisions for Permitting, Compliance
and Enforcement, each with the capability to deal with the media of
air, water and waste.
Decentralization. Virginia has moved its permit,
compliance and enforcement process to six regions and Central office
within the State, here decision can be made on site-and-situation
specific priorities by people who live and work in the communities they
serve.
Cooperation and involvement with local elected officials.
Virginia has established a system to work with local elected officials
and governments to develop a cooperative approach to improving
environmental quality. We have had great success with our new Tributary
Strategy to improve water quality in the Chesapeake Bay drainage and
elsewhere.
3. These changes have caused EPA to put itself in conflict with the
States.
EPA's approach is Enforcement First. EPA, in practice (but
pointedly not always in the rhetoric of Administrator Browner and
President Clinton) has always been and continues to exercise an
``Enforcement First'' approach to environmental policy.
The principal tools in the environmental policy kit bag of
EPA are fines, litigation, cease-and-desist orders, ever-more-
stringent permit provisions, and referral for criminal
prosecution. The States are constantly pressured by EPA to use
these ``enforcement outputs'' as the tools of preference in
carrying out environmental policy objectives. In fact, it seems
as if the whole mindset at EPA, and indeed perhaps with many in
Congress, is that these kinds of enforcement actions are, in
fact, the beginning and end of environmental policy. Because
this approach only works best as a matter of last resort,
Virginia and many other States, are shifting emphasis to a
compliance-based policy. With this enforcement first approach,
EPA puts itself into conflict with the States.
EPA's approach is top-down, command and control. EPA is
inherently disdainful of de-centralization and regionalism as employed
by Virginia and other States. EPA constantly pressures the States to
retain the EPA model of central planning, central control, central
decision making, and centralized one-size-fits-all standards
environmental quality. The States' increasing emphasis on regional and
site-and-situation specific approaches has put EPA into conflict with
the States. Indeed, EPA seems entirely disdainful of the concepts of
Federalism, demonstrated by their frequent complaints and agitations
about laws and statutes enacted with bi-partisan support by the
Virginia General Assembly. With this, EPA puts itself into conflict
with the States.
Federal Government Polluters get the kid glove treatment.
EPA refuses to focus its attention on resolving the principal pollution
problems we have in Virginia (and in other States)--which are at
Federal facilities. For example, the worst pollution sites in Virginia
are sites in which Federal agencies are the responsible parties. When
dodging the Federal responsibilities, EPA puts itself into conflict
with the States.
Superfund Failure. EPA refuses to modify its failed and
counter-productive Superfund Approach. With this, EPA puts itself into
conflict with the States.
Political Posturing. EPA's Region III in Philadelphia (in
obvious connivance with the EPA Administrator) engages partisan
political posturing that has nothing to do with improving the quality
and condition of the environment. [Cite examples]. With this EPA puts
itself into conflict with the States.
Virginia's relations with EPA can be quite good on the technical
level, and my Agency people appreciate it very much when we can work
together in helpful cooperation. Helpful cooperation to improve the
quality and condition of the environment is the Virginia Way.
4. Helpful Servant or Fearful Master? The issue about EPA and State
relations in regard to enforcement of environmental laws is simply
this: Is government to be a helpful servant or a fearful master? This
question is at the very core of the reforms and improvements now taking
place in environmental quality policy in the: States all across this
land.
States--not only Virginia--but in virtually all States,
including those whose top environmental officials have long been
associated with the ``Enforcement First'' approach--are moving in the
same direction as Virginia. Indeed, Florida under Administrator
Browner's leadership, began to initiate Compliance First policies when
she was my counterpart there. States' environmental agencies, States
legislatures and States governors want the quality of the environment
in which they and their people live and work to be improved.
States want real and meaningful reform to help them put
aside the one-size-fits-all, top-down, Washington-knows best, litigious
approach of the past because the experience of the past 30 years
demonstrates that compliance with national environmental quality goals
and standards is the most effective focus of environmental policy. This
is the helpful servant approach.
The ``fearful master'' approach is simply wrongheaded and
is proven to be counterproductive in improving environmental quality.
The ``fearful master'' approach demonstrated by EPA for the past 30
years to be its preferred approach, has turned concern about the
environmental away from its beginnings as a profession of scientists,
environmental engineers and resource managers into a profession of
lawyers, litigators and one-size-fits-all regulators and political
opportunists.
In his Farewell Address, George Washington warned
Americans to always be vigilant to assure that the new American Nation
would never allow the government to become a fearful master. Virginia
submits that now is the time for Congress to assess this State-and-
Federal relationship situation as regards to environmental policy. Will
you determine George Washington was correct in thinking that the
``helpful servant'' approach we are now trying to implement in Virginia
is far more effective and far more suitable for a free and prosperous
people? I trust you will find this to be true.
______
Prepared Statement of Patricia S. Bangert, Director of Legal Policy,
Attorney General's Office, State of Colorado
introduction
My name is Trish Bangert. I am presently the Director of Legal
Policy for the Attorney General's Office in the State of Colorado.
Prior to that, I was in charge of the section of the office that
handled the environmental and natural resources legal issues for the
State. Before coming to Colorado, I worked in the Solicitor's Office at
the Department of the Interior. I was at Interior for 11 years, so I
know well the Federal agency perspective on environmental and natural
resources issues. I also teach administrative law at the University of
Denver. I want to thank the Committee for the opportunity to present
our views on EPA-State relations, especially EPA's much-publicized
partnership program.
In summary, I think that there is no EPA-State partnership in some
areas of environmental enforcement. EPA's perspective appears to be
that they own the ranch and that we, the States, are the hired ranch
hands. For example, there is no compromise that I can see in the area
of self-audit. EPA's policy is simply to dictate changes to State laws.
In addition, I would like to respond specifically to the charges
made by the EPA that some States, especially those with self-audit
programs, are failing to protect the environment. In summary, my
response is that those charges are hogwash.
States like Colorado are working hard to protect and improve our
environment. Although I do not have specific statistics, I understand
that the number of enforcement actions brought by the State has
remained relatively steady over the past several years. More
importantly, Colorado is working more effectively and efficiently to
improve the environment. For example, there is general agreement that a
``command and control'' approach to environmental protection, by
itself, does not work. The States, as the laboratories of democracy,
are trying out new approaches that may bring greater protection at
lesser cost. One new approach in Colorado and many other States is
self-audit legislation. These statutes encourage companies to audit
their own compliance with environmental laws and correct the violations
found in those audits.
For its part, EPA is resisting innovative State approaches. Rather,
the agency is affirmatively doing everything it can to create mirror
images of itself in the several States. For States that do not like
that image, EPA has launched a holy war, composed of negative comments
in the press, threats to revoke delegated programs and overfilings. The
end result of this battle inevitably will be that the environment comes
out the loser. Something has to change before this happens. We come
here today to suggest several such changes.
As detailed below, we are suggesting changes primarily in the areas
of Congressional oversight of EPA activities, such as overfiling, the
methods that are being utilized to measure success in the areas of
environmental protection and improvement, and the legislative
provisions applicable to the exercise of State authorities in the
environmental area. We believe these changes are necessary to
effectively and efficiently implement environmental protection and
improvement. Further, they are necessary to prevent EPA from presenting
roadblocks to new approaches that might represent positive
environmental gains.
environmental self-audit programs
Let me turn to a prime example of EPA recalcitrance in allowing
States to experiment with programs that might well result in
significant environmental gains--environmental self-audit legislation.
Twenty-two States have passed some sort of legislation to encourage
companies to audit their environmental compliance and to correct any
problems found. In Colorado, we have a statute that gives a qualified
privilege for self-audits and provides immunity from certain penalties
if violations found in the audits are promptly corrected. Remember, we
are talking about violations that probably would not have been
discovered by the company, and certainly not by State enforcement
officials absent the audit. We are talking about a positive
environmental gain. Not only are companies becoming more aware and
sensitive to environmental compliance through audits, but, problems are
being corrected. In addition, companies and State regulators are
working together in a cooperative, as opposed to an adversarial fashion
to improve and protect the environment.
What is EPA's response to these innovative State programs? The
agency is trying as hard as it can to eliminate these laws. In fact,
over the past 5 years, the agency has engaged in a systematic program
to kill the self-audit movement. First, it wrote to State legislatures
considering self-audit laws to urge them not to pass the bills. Second,
once bills were passed, the agency enacted policies that clearly
expressed its opposition to the new laws and threatened to overfile in
cases in which the laws were used. Third, the agency began a program of
intimidation against companies and States utilizing the self-audit
laws. For example, in Colorado, several companies utilizing the
immunity provisions of the act, including the Denver Water Board,
received letters requesting information about violations voluntarily
disclosed. Further, EPA has threatened to overfile in those cases. My
understanding is that EPA, in fact, has overfiled against companies
utilizing self-audit laws in other States. Finally, EPA has threatened
to revoke the delegation of environmental programs, such as those under
the Clean Air Act, the Clean Water Act and RCRA, in States with audit
laws. I have been told that the EPA regional office in one State
invited petitions from the public to revoke the State's delegated
programs.
It is a legitimate question to ask whether EPA's criticisms of
audit laws have merit. At least in Colorado, we think not. EPA is
concerned that States with audit privilege laws cannot enjoin
violations that are harming the public or the environment. Our law
retains fill injunctive authority. EPA is concerned that the laws might
allow companies to hide violations. Our law allows a privilege only for
information that would not otherwise have to be disclosed. And, the
privilege does not apply to audits done to evade investigations or for
fraudulent purposes. Further, under our law, a court can order any
information released if there is a compelling need for that
information. The EPA is concerned that the States will not be able to
get penalties in certain situations. Under Colorado's law, immunity is
offered only when violations are discovered in a voluntary self-audit,
those violations are corrected, and the violations would not have been
reported under a permit condition. Further, there is no immunity for
willful criminal conduct or for repeat violators. In short, we believe
that EPA's concerns are met by the provisions of our law. Regardless of
that fact, EPA is looking at revoking our delegation under the Clean
Water Act in response to a citizen petition. We are told that EPA will
be sending us a letter shortly which details the ``flaws'' in our
statute and asks that we justify our law.
What does EPA's negative response mean to State self-audit
programs? We might as well toss them out the window. If a company comes
forward with information about a violation of the environmental laws,
it is providing a blueprint to EPA to bring an action against it. In
addition, it is impossible to measure the success of audit programs if
companies are discouraged from participating in them by EPA's threats
of overfiling. EPA's response, in practice, nullifies State laws. Think
about that for a moment. Not only has EPA spent a great deal of public
money to advance its policy perspective, but, without even having to do
a public rulemaking, or a formal hearing, EPA can change the laws
passed by State governments. Texas substantially amended its self-audit
law recently to meet EPA concerns. My understanding is that the State
gave up, in part, provisions granting immunity in the civil and
criminal areas and gave up audit privilege in the context of criminal
cases. This is not the system envisioned by our founders--an unelected,
largely unaccountable body dictating the content of laws to a sovereign
State.
methods of measuring success and overfiling
The EPA's obsession with self-audit laws appears to stem in large
measure from its obsession with numbers. EPA has always measured
success in protecting the environment in large measure by the number of
enforcement actions brought and the size of penalties assessed. We
applaud the fact that the agency has recently come out with new core
performance measures for State enforcement and compliance assurance
programs. Five of the eight measures, however, are still traditional
enforcement ``beans,'' that is, the number and size of enforcement
actions. The eighth measure is the frequency and impact of the use of
audit laws. It is unclear whether this is a positive or negative value
in the measurement of performance.
Measuring success by the number of enforcement actions, as opposed
to actual improvement in the environment, causes EPA to overfile when
there is no danger to the public or the environment, but, when penalty
amounts are not ``high'' enough. This misuse of overfiling authority
has the inevitable result of discouraging the States from attempting
innovative approaches to environmental problems.
I am not suggesting that the number of enforcement actions brought
is meaningless, but, let's look at one of the ``beans'' that EPA
counted as a success in Colorado last year. We have a very good school
in our State called the Colorado School of Mines. A research institute
on the School of Mines property did experiments on mining ore. A
substantial amount of waste ore was generated, and, a waste pile was
created. A break in a water main necessitated the emergency removal of
the waste pile by EPA to another site. In the removal, a liner was laid
down and the pile was put on top. The EPA ordered the State to
permanently remove and dispose of the pile. The State removed the pile
to a waste disposal facility.
The pile being gone, the State proceeded to build a softball field
on the site upon which the pile was formerly located. In the process,
workers breached the liner. Now, remember, the liner was constructed to
prevent water running through the waste pile from getting into the
ground. But, there was no pile when the softball field was under
construction. In other words, there was nothing to line. Nevertheless,
EPA issued a notice of violation against the State for breaching a
liner that lined nothing. Even though it admitted that there the breach
caused no danger to the public or the environment, EPA ordered the
State to repair the liner and to pay a civil penalty. The State ended
up paying thousands of dollars for nothing, thousands of dollars that
could have been spent removing real threats to the environment. Yet,
this is used as an example of EPA's enforcement success. Something is
wrong with this picture.
federal facilities
I cannot help but mention that EPA's fine sentiments about
protecting the environment extend only to private parties, and,
seemingly, not to the Federal Government. The Administration has
recently released its Superfund Legislative Reform Principles. My
understanding is that those principles were authored largely by EPA and
released by that agency. Those principles contain several statements
which evidence EPA's retreat on the issue of strong Superfund
enforcement. Specifically, one of the statements is that the
Administration opposes any changes to the present law on Federal
facilities. This means that the Administration opposes reforms
necessary to ensure that the Federal Government obeys the law to the
same extent as private parties, reforms such as stronger sovereign
immunity waivers.
In addition, the principles abandon the Administration's support
for strong provisions delegating the Superfund program to the States.
There is general agreement that the States can often carry out cleanups
in a more efficient and effective manner than EPA. We in Colorado
fought for many years to apply our own laws at the Rocky Mountain
Arsenal. Prior to our victory in our case against the Army, the United
States contended that it could run the cleanup of this former nerve gas
facility without any regard for State law, regardless of the
environmental consequences or danger to our citizens. The EPA was
largely silent in this battle. The EPA's principles ensure that they,
and not the States, will be in control of Federal facility cleanups.
Yet again, the agency stands in the way of true environmental gains.
suggestions
We would offer several suggestions that might improve the EPA-State
relationship. First, we recognize that EPA is often caught between its
legislative mandates and a desire to work with the States. The
environmental laws must be reviewed with an eye toward changing those
provisions that prevent EPA from allowing States to experiment by
putting their own environmental programs into place. For example, the
courts have interpreted the present Superfund law as not providing the
States substantial authority to implement clean-up programs. We believe
that it was the intention of Congress to create a floor for
environmental protection in the statutes, and, then, to allow the
States to accomplish the goals set out in the statutes in their own
fashion. Perhaps a short-term task force or a commission could be
created to review the present laws and recommend changes, if necessary,
to implement this intention.
Second, there must be a review of the methods for measuring success
in the environmental area. Until we have a legitimate and effective
means of measuring success, and as long as we are wedded to the
``number of enforcement actions'' model, we will be unable to try new
approaches that may well mean greater gains for fewer costs. We would
recommend a study of this issue, perhaps starting with EPA's new
performance measures, that will result in recommendations for changes
to the present measurement methods.
Third, and specific to EPA, there needs to be greater Congressional
oversight with regard to agency activities. For example, Congress, the
States and the public should know the criteria for overfiling. At
present, the authority to overfile is used as a weapon by EPA to extort
changes in State laws and to manipulate the failure of audit laws. The
agency should be required to set out clearly the criteria it will use
for determining whether to overfile in particular cases. Perhaps it
should be required to do so after a series of hearings or a formal
rulemaking process.
Fourth, as to specific substantive areas, there should be Federal
legislation allowing States to experiment with self-audit legislation
without EPA interference. We do not take a position at this time as to
whether that legislation should include Federal privilege and immunity
provisions. At a minimum, however, it should say that EPA cannot revoke
the delegation of States that have audit laws just because of those
laws, and, that EPA cannot overfile in situations in which the States
have given immunity under their own audit laws.
We would be happy to work with your staffs to implement these
suggestions legislatively. Again, we appreciate the opportunity to
submit these remarks to the Committee on this important issue.
______
Prepared Statement of Christophe A.G. Tulou, Secretary, Delaware
Department of Natural Resources and Environmental Control
Mr. Chairman and Members of the Committee, my name is Christophe
Tulou, and I have been the Secretary of the Delaware Department of
Natural Resources and Environmental Control (DNREC) since March 1993.
I appreciate the invitation to join you today to discuss Delaware's
enforcement relationship with the Federal Environmental Protection
Agency (EPA).
The amount and quality of discourse between EPA and the States is
greater today than it has ever been. We are sharing perspectives on
environmental goals for the country, providing suggestions on EPA's
goals and objectives under the Government Performance and Results Act,
and helping develop performance measures to evaluate our successes
under the National Environmental Performance Partnership System
(NEPPS). EPA and the States are not that far apart in terms of a shared
vision for our nation's environment.
Enforcement, and the related issue of regulatory flexibility, are
the areas of greatest disagreement between us. Our environmental
management challenges are diverse and complex, and our Federal laws and
regulations are often stiff and constraining. Finding room for common
sense is tough.
EPA has delegated essentially all the major Federal regulatory
programs (except Sec. 404 of the Clean Water Act dealing with wetlands)
to Delaware based upon our demonstrated performance in environmental
management. As part of our acceptance of full authority for these
programs, the State Attorney General provided assurances regarding our
capacity to enforce. According to EPA's estimates, States account for
87 percent of environmental civil enforcement each year. This estimate
excludes criminal enforcement activities. Though I do not have the
figures, I strongly suspect that DNREC undertakes--along with our
Attorney General's office--an even greater majority of enforcement
actions in Delaware.
Delaware's enforcement relationship with EPA Region III is very
good. Though the relationship continues to be positive, our development
of a Performance Partnership Agreement (PPA) with Region III has
created some friction regarding the role of enforcement in
environmental management.
We are proud that Delaware was the second State to adopt a PPA. We
wanted to take advantage of EPA's promise to work in partnership with
Delaware to build the capacity necessary to meet OUR environmental
priorities. We sought a relationship that recognized that States are at
the forefront of environmental management, and that the fastest way to
our mutual goals is through partnership, not paternalism.
Working very closely with Region III (and with the strong support
of Regional Administrator, Mike McCabe), we jointly developed a model
Partnership Agreement. We agreed to move away from case-specific review
of our activities towards a more holistic consideration of the State
enforcement programs, encouraging innovation and creativity in
achieving our environmental goals. To that end, the Agreement focuses
on outcomes more than activities or processes. The outcomes we agreed
to achieve are:
correcting promptly violations that threaten Delaware's
environment or the health of Delaware's citizens;
achieving and maintaining widespread compliance with the
environmental laws, both to protect human health and the environment,
and to assure that those who violate the laws do not obtain an economic
benefit from their unlawful activity; and
preventing violations through use of applicable
enforcement and compliance tools and targeted assistance.
Despite these assurances in our Agreement, I fear that EPA will
insist on greater reliance on enforcement-specific activities, focusing
on enforcement for enforcement's sake.
We have argued since the beginning of the PPA process that
enforcement should be a part of all our environmental goals, not a
stand-alone end unto itself. In short, we view enforcement as an
important tool to achieve our environmental goals, not a goal in its
own right. That disagreement continues.
We also contend that compliance is a more relevant and important
programmatic goal than enforcement. We should be striving--through
whatever means--to get all our polluters in compliance. This
distinction between compliance and enforcement is crucial in
determining what States and EPA should be measuring and reporting. If
enforcement is a goal, then we should continue to count beans such as
penalty dollars collected or enforcement actions taken. If compliance
is the goal, then we should be measuring and reporting who is in, and
who is out, of compliance. The traditional measures of dollars and
enforcement actions are less important if compliance is the true goal.
Measuring compliance is feasible and relevant. Last year, just over 70
percent of facilities in Delaware complied with hazardous waste
regulations at the time of inspection. Within 30 days of the
inspection, the percentage rose to 85 percent. Within 180 days, 100
percent of facilities were in compliance.
In Delaware, we work with violators to get them back into
compliance as quickly as possible. Using compliance assistance as an
option of first choice, we can usually achieve that goal much faster,
cheaper, and with far greater goodwill than through aggressive
enforcement. We also create allies for our environmental efforts. In
fact, several of our companies are moving beyond mere compliance by
adopting forward-looking environmental management strategies such as
continuous improvement, pollution prevention, and enhanced product
stewardship.
Overly aggressive and ill-timed enforcement is a dare: it inspires
polluters to assume an adversarial relationship with their environment
and regulatory agencies, and to challenge enforcers to discover their
misdeeds. Neither the States nor EPA can afford that cat-and-mouse
approach to environmental management; neither can our environment.
Nonetheless, enforcement is critical. In fact, in Delaware and
other States attempting to inject common sense into their regulatory
process. the stick must be bigger than ever. Those polluters who choose
not to participate in our compliance assistance efforts, and those who
continuously violate environmental obligations, should face the full
force of public indignation and legal recourse. In this context, States
and EPA can forge a powerful partnership that combines the benefits of
compliance and deterrence.
Making the philosophical point about compliance and enforcement,
and arguing the failings of traditional enforcement measures is not
enough. States have an obligation to work with EPA to identify clearly
the appropriate role for enforcement and how best to measure our
success in getting polluters into compliance and keeping them there.
The States and EPA in Region III have initiated a process to identify
which measures of compliance and enforcement would be more useful and
appropriate than those that are currently in use. Our goal is to make
recommendations for inclusion in the Region III--EPA Headquarters
enforcement Memorandum of Understanding, which will be finalized in
July. I understand similar efforts are underway in other EPA Regions.
As Steve Herman and Mark Coleman have pointed out in their testimony,
the Office of Enforcement and Compliance Assurance (OECA) at EPA is
also working closely with ECOS to define a better State-EPA
relationship.
EPA should, and I hope will, continue to be a crucial enforcement
partner. We will continue to rely on EPA to: assist with our ``bad
actors''; help with transboundary pollution problems; set protective
national standards; and to ensure that all States live up to their end
of the environmental protection bargain. We will also continue to work
with EPA through Performance Partnership Agreements and other means to
build the capacity we need to meet Federal and State environmental
goals. We need EPA, just as EPA needs the States. That is what
partnership is all about.
Thank you again, Mr. Chairman, for the opportunity to share my
views with you today.
______
Prepared Statement of Joseph Rubin, Connecticut Assistant Attorney
General
As the head of the Environment Department of Connecticut Attorney
General Richard Blumenthal's office for the past 7 years, I have
participated closely in many aspects of the State-EPA environmental
enforcement relationship. Overall, I have found the relationship among
the Connecticut Department of Environmental Protection (DEP), our
office, EPA Region 1, and the United States Department of Justice to be
cooperative and productive. I will focus my remarks on two aspects of
this relationship which provide good examples of this relationship at
work--a model State-Federal working group on water enforcement efforts,
and a current EPA review of some of Connecticut's State enforcement
programs.
Almost 3 years ago, under the leadership of EPA Region 1 General
Counsel Harley Laing and myself, with the full support of the
Connecticut DEP, we began monthly meetings including DEP water
enforcement staff, Region 1 water enforcement and legal staff and the
Connecticut Attorney General's office. At some of our meetings, the EPA
Criminal Division and the U.S. Attorney's Office are also represented.
This group, composed entirely of working level staff, operates under an
informal, non-bureaucratic structure, with no memoranda of agreement,
no guidance documents, and no protocols. Instead of making
pronouncements and fighting about turf, we actually work cooperatively.
In fact, this lack of bureaucratic structure is a key to the group's
success, because everyone is more willing to cooperate when we all
understand that cooperation is voluntary, and continued success depends
on everyone's continued voluntary cooperation.
At each meeting, current and potential water enforcement cases
which have come to the attention of any of the participants, whether
from citizen complaints or routine inspections, are discussed and
reviewed. Together, the group comes to an informal consensus as to
whether a case merits serious enforcement action, and whether State,
Federal, or joint action will be most efficient and effective. In
reaching this determination, the group considers who has the best legal
tools, discovery tools, available enforcement staff, technical
resources, and legal staff to prosecute a particular case. This is not
an all or nothing decision. Often, we agree, for example, that Federal
discovery may be followed by a State judicial enforcement action, or
that State and Federal technical staff will work together, or, on rare
occasions, that a case should be prosecuted jointly by the State and
Federal Governments.
The group accomplishes several important goals--it maximizes the
effectiveness of overall enforcement efforts by eliminating unknowing
duplication of effort and by using everyone's limited resources most
effectively. It greatly reduces inter-agency competitiveness and goes a
long way towards replacing it with cooperation. By, in effect,
providing ongoing ``peer review'' to all of us, the process also helps
stimulate everyone to timely high quality work. In sum, it gives all
taxpayers more bang for their environmental buck.
Of course this group is not a panacea. Sometimes discussions
illuminate the resource limitations of both State and Federal
Governments which may limit us. Still, this group is a model of the
best in State-Federal environmental enforcement cooperation.
A second, and somewhat more controversial example of the State-
Federal relationship is the series of reviews or audits of State
environmental enforcement efforts produced by EPA Region 1. Several
years ago, EPA actively and assertively reviewed many State enforcement
actions in federally funded programs on an ongoing basis.
Understandably, the States sometimes resented what they saw as
duplication of effort and ``second guessing'' by EPA of their
enforcement strategies and decisions. Recently, Region 1 has moved away
from such constant and intrusive monitoring to periodic overall reviews
of States' enforcement efforts in federally funded programs. Region 1
completed a draft review of Connecticut DEP's enforcement programs
about 6 months ago, and expects to complete its final report this
month.
This periodic review process represents an excellent compromise
between overly intrusive and resource-wasting oversight, and a complete
lack of oversight of the use of Federal funds. The review process
almost necessarily produces positive results. In the first place, any
peer review process always helps to insure high and consistent quality.
Programs which are peer-reviewed by outsiders will almost always be
better than those that are not. In addition, at least in the case of
Connecticut, our DEP has already taken many positive steps to improve
in areas of concern identified by EPA in its draft report. These steps
should result in improved documentation, and therefore, consistency, of
enforcement actions and decisions. The report is also leading, within
ever-present budget constraints, to improved enforcement staffing in
the water pollution area. Further, the review has, very appropriately,
identified many special strengths and accomplishments of our DEP and
its staff. No peer review is painless, and EPA, in its original draft,
may have failed to fully recognize the positive aspects of certain
compliance assurance initiatives of DEP. Overall, however, the review
process has been effective and beneficial.
While these two examples--the joint water enforcement working group
and the EPA review of State enforcement programs--are certainly not
comprehensive, they do provide a fair snapshot of successes in the
State-Federal enforcement relationship. In my experience, they are
exemplary of the success of that relationship between Region 1 and
Connecticut, and I urge this Committee to continue to encourage the
unfettered and unencumbered growth of these cooperative efforts.
______
Prepared Statement of Robert E. Harmon, Chairman of the Board of
Directors, Harmon Industries, Inc.
Chairman Chafee, members of the committee, good morning. My name is
Robert E. Harmon. I am the Chairman of the Board of Directors of Harmon
Industries, Inc. I appreciate the opportunity to appear before the
Committee this morning to discuss important issues of Federal-State
relations in enforcement of the environmental laws. I am accompanied
today by Harmon's attorney, Ms. Terry J. Satterlee of Lathrop & Gage
L.C. of Kansas City.
With your permission, I would like to read to you a brief prepared
statement explaining the reasons for Harmon's interest in these issues.
Harmon Industries is the leading supplier of railroad signal, train
control, and related equipment for use in the railroad industry. The
company is headquartered in Blue Springs, Missouri, and has assembly
and manufacturing facilities across the country. My father founded the
company which is now Harmon Industries in 1946. Today, Harmon employs
more than 1,500 workers in the United States, and had sales of more
than $175 million in 1996; the company's stock is publicly traded on
the NASDAQ national market system.
I believe Harmon's case well illustrates 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. If EPA has this
authority, regulated industries cannot negotiate binding agreements
with authorized State agencies, since EPA may later disagree with and
completely override the State resolution.
One of Harmon's assembly facilities is located in Grain Valley,
Missouri, which is a rural agricultural area outside Kansas City. The
Grain Valley plant assembles circuit boards for use in railroad control
and safety equipment.
As was common in the industry at the time, prior to 1987 Harmon
employees used small quantities of organic solvents to remove soldering
flux from circuit boards they were assembling. The solvents were kept
at the employees' work benches in small jars. Residues were collected
in a 3 to 5 gallon pail, and dumped by Harmon maintenance employees
approximately once every 1 to 3 weeks on the ground outside the back
door of the Grain Valley plant. This practice probably began in the
late 1970's.
Harmon's management was unaware that employees were disposing of
used solvents until it discovered the practice during a routine
internal safety inspection in November 1987.
Upon learning of this practice, we promptly took every action we
could to stop, and remedy the effects of, this disposal practice.
Harmon's management immediately ordered the disposal practice stopped,
fired an employee who refused to comply and demoted or reassigned
several others, and retained environmental consultants to investigate
the extent of any resulting contamination. Harmon also voluntarily
reported the discontinued disposal practice to the Missouri Department
of Natural Resources (``MDNR''), the agency delegated the authority by
EPA to implement and enforce the Federal RCRA hazardous waste program
within the State of Missouri. It is undisputed that, prior to Harmon's
voluntary notification to MDNR in June 1988, neither MDNR nor EPA was
aware of the way in which Harmon's employees had been disposing of
solvent residues, or of the contamination of the soil at the immediate
disposal area at Harmon's Grain Valley plant.
Harmon conducted an extensive scientific investigation of the Grain
Valley plant property between late 1987 and February 1996, with MDNR's
intensive oversight and approval. As of January 1994, this
investigation had cost Harmon over $1.4 million, excluding attorney's
fees and other indirect costs. MDNR issued Harmon a ``post-closure''
permit in July 1996. Harmon anticipates additional costs of
approximately $500,000 during the 30-year post-closure period.
Since June 1988, MDNR reported the status of the ongoing
investigation to EPA during quarterly program meetings, and promptly
provided EPA with copies of all significant correspondence, plans and
other documents concerning MDNR's dealings with Harmon. To Harmon's
knowledge, EPA has at no time sought to intervene in, or assume
responsibility for, MDNR's enforcement of RCRA with respect to Harmon.
Besides the costs of investigating and remedying the existing
contamination problem, Harmon has instituted costly changes to its
manufacturing process to insure that the past disposal problem does not
recur. During December 1987, while its investigation was ongoing,
Harmon changed its assembly process to a state-of-the-art technology
using a nonhazardous cleaning material, rather than organic solvents,
to remove soldering flux from equipment being assembled. As a result of
these changes, Harmon ceased generating hazardous waste at the Grain
Valley facility. These changes had an initial cost exceeding $800,000,
and Harmon incurs ongoing costs of approximately $125,000 every year as
a result.
In the end, Harmon's environmental consultants concluded that the
contamination at the Grain Valley plant was limited, and posed no
significant threat to human health and the environment. Both MDNR and
the EPA have accepted this conclusion. In a State-court consent decree
negotiated between Harmon and MDNR, MDNR imposed regulatory sanctions
on Harmon, but agreed not to seek monetary penalties against Harmon
based on its voluntary self reporting and its prompt action to
investigate and remedy any contamination. The decree specifically
provides that ``Harmon's compliance with this Consent Decree
constitutes full satisfaction and release from all claims arising from
allegations contained in plaintiff's petition.'' The consent decree
provides in para.23(a) that it will terminate when, among other things,
``MDNR issues a post-closure Part B permit.'' This condition was
satisfied on July 31, 1996.
Even though MDNR has been authorized by EPA to run the RCRA program
in Missouri, and despite Harmon's extensive dealings and settlement
with MDNR, after entry of the State-court decree EPA continued to
pursue a separate Federal action seeking over $2.7 million in RCRA
penalties. EPA sought these penalties for exactly the same conduct
which was the subject of Harmon's State-court consent decree with MDNR.
During the administrative penalty proceedings, both the ALJ and the
EPA's Environmental Appeals Board held, without extended discussion,
that EPA had the authority to ``overfile'' in this way when it was
dissatisfied with an authorized State agency's resolution of a RCRA
case.
We believe EPA's actions are contrary to the letter and spirit of
the RCRA statute, and we accordingly filed suit in Federal court last
Friday, June 6, to set aside the penalty. Because of the importance of
the issues presented in Harmon's case to regulated industries across
the country, Harmon's position was supported before the agency by two
private parties as amicus curiae, and we anticipate support from
industry groups in the court action.
MDNR's enforcement of RCRA with respect to Harmon's solvent
disposal has been rigorous, and EPA has never contended that MDNR's
action were inconsistent with RCRA requirements or otherwise
inappropriate. In connection with its extensive investigation of the
site, Harmon submitted, revised as requested, and obtained MDNR
approval for, two detailed site investigation plans, as well as a
closure and post-closure plan. Harmon also submitted to MDNR two
detailed reports describing the results of its consultant's
investigations, in addition to the Phase I report Harmon submitted in
June 1988. In connection with its investigation of the site, Harmon
installed 29 groundwater monitoring wells, drilled 27 soil borings and
69 soil probes, and took and analyzed a large number of soil and water
samples over a 5-year period before MDNR was satisfied that the extent
of contamination at the site had been adequately defined. Moreover,
throughout its investigation Harmon's representatives were in frequent
contact with MDNR.
The practical consequences of EPA's decision in Harmon's case are
significant. Congress made clear in RCRA that it intended State
agencies to take the lead in enforcing RCRA's hazardous waste
provisions, subject to the States' compliance with the program's broad,
national goals. However, under the EPA's decision no regulated entity
can enter a settlement agreement with an authorized State agency,
without also formally making the Federal EPA a party to the agreement.
The possibility always exists, even after conclusion of a final
settlement agreement with the State, that EPA will choose to second-
guess the State's exercise of its enforcement discretion, and file a
duplicative Federal enforcement action. Indeed, during the
administrative hearing the ALJ suggested that Harmon should have dealt
with both the State and EPA when it originally negotiated the consent
decree. This duplicative, redundant regulation is hardly what Congress
intended when it spoke of a ``Federal-State partnership.'' Any
suggestion that the States may be too lenient on regulated entities, or
may settle RCRA disputes based on ulterior motives, are simply
unfounded. The States have every incentive to vigorously enforce
environmental laws, and MDNR's actions in this case (which EPA has not
challenged) show that the States take these responsibilities seriously.
While it may be true that the States are more conscious of the
consequences of their regulatory actions on the local economy and the
competitiveness of local firms, I assume this is what Congress
intended, consistent with Congress' overall initiative to introduce
more cost-benefit analysis into this country's enforcement of its
environmental laws. Of course, if any State is consistently
disregarding its obligations to vigorously enforce the RCRA program,
EPA retains the right to withdraw its authorization of the State
program, and directly enforce RCRA's hazardous waste program in any
such State.
EPA's standard response to criticisms of its claimed overfiling
authority has been to argue that it needs this authority to insure, at
a minimum, that companies which violate RCRA's requirements disgorge
any economic benefits they derived from their noncompliance. This
argument does not apply here, however. The ALJ rejected EPA's argument
that Harmon received between $600,000 and $975,000 in economic benefit
through its solvent disposal practice; instead, EPA's own ALJ ruled
that Harmon received an economic benefit of only $6,072 by failing to
dispose of its small volume of solvent residues through an appropriate
offsite disposal facility. MDNR's agreement not to seek to recoup
economic benefit from Harmon hardly justifies a separate Federal
enforcement action.
The consequences of EPA's claimed ``overfiling'' authority are
perhaps best illustrated in connection with the RCRA requirement that
any hazardous waste disposal facility must have in place liability
insurance to protect against accidental releases of pollutants.
Harmon's insurance agent attempted to acquire this coverage, but could
not find a policy which would cover defense costs, on-site occurrences,
or pre-existing pollution, as the RCRA regulations require. After
lengthy discussions, MDNR agreed in the State-court consent decree that
Harmon need not comply with the insurance requirements, so long as it
demonstrated to MDNR twice a year that it had made reasonable, good-
faith efforts to procure the necessary insurance.
During the administrative proceedings, EPA presented no evidence to
dispute Harmon's testimony that it was unable to obtain the liability
insurance required by RCRA. Nevertheless, the ALJ rejected Harmon's
reliance on the waiver of the liability insurance requirement in the
State-court consent decree, since ``[Harmon's] consent decree is
immaterial to EPA's enforcement action.'' According to the ALJ, EPA is
free to determine that the State ``has not exercised its enforcement
discretion properly,'' and therefore Harmon was not entitled to rely on
the decree. On appeal, the EAB specifically refused to reduce or
eliminate the penalty based on the liability insurance requirements,
based on Harmon's reliance on the consent decree with the State of
Missouri, which excused Harmon from the liability insurance
requirement. The EAB reasoned that ``this exercise of enforcement
discretion on the part of the State does not prevent the Region from
taking its own enforcement action against Harmon.'' Thus, Harmon was
penalized by EPA for violating a regulation which an authorized State
agency had agreed would not apply to Harmon in a judicially approved
consent decree.
It is our view that RCRA was clearly written to allow the States to
control the implementation of RCRA for so long as they are authorized
by EPA. Harmon's experience illustrates that EPA thinks it can override
an authorized State's implementation of RCRA at any time, for any
reason or for no reason. Neither an authorized State nor a company
being regulated can make any agreement free of fear that the Federal
Government will step in and set the agreement aside, even after
millions of dollars have been spent.
Once again, thank you for the opportunity to appear before you to
discuss these important issues. Both Ms. Satterlee and I would be happy
to answer any questions you may have.
______
Prepared Statement of Robert R. Kuehn, Tulane Law School, New Orleans,
LA
i. introduction
Mr. Chairman, Members of the Committee, my name is Robert Kuehn and
I am a professor at Tulane Law School in New Orleans, Louisiana, where
I teach classes in environmental enforcement, environmental advocacy,
and solid and hazardous waste regulation. I appreciate the opportunity
to testify before this Committee on the important, and always
controversial, topic of the relationship of Federal and State
governments in the implementation of Federal environmental laws.
I would like to discuss today the results of some research that I
published last year on the devolution of enforcement of Federal
environmental laws from Federal agencies to the States (``The Limits of
Devolving Enforcement of Federal Environmental Laws'', 70 Tulane Law
Review 2373 (1996)).
Before discussing the specifics of what I found, it is important to
keep in mind that issues of federalism are not new to environmental
policy debates. Until the 1970's, Congress had determined that the
Federal Government should play a supporting role in the regulation of
pollution by providing grants and technical assistance to the States.
The 1970's then witnessed a rising national concern over the
environment and a surge of legislation giving the Federal Government
the primary, and in some areas exclusive, authority over the protection
of public health and the environment. While President Reagan's ``New
Federalism'' policies of the early 1980's reversed the trend of
centralization and returned some powers to the States, the Federal
Government continued to establish the standards of environmental
protection and had the authority and resources to dictate, in large
measure, the activities of the States, including their enforcement
operations. Recent Federal legislation on pollution control, the 1990
amendments to the Clean Air Act and the Pollution Prosecution Act of
1990, signaled another expansion of Federal enforcement power.
While the pendulum swing of federalism is not new, what is new
about the most recent controversy is how widespread the sentiment is
for devolving environmental enforcement powers from the Federal
Government to the States and how dramatically some of the current
proposals would reduce the Federal role. Not only are there calls for
less oversight of State enforcement activities, but some now advocate
that Federal environmental agencies be prohibited from taking any
enforcement action in States with federally-approved environmental
programs.
Unfortunately, as with past efforts to decentralize environmental
protection, there has been little serious discussion, much less
agreement, regarding the criteria by which to judge the suitability of
devolving enforcement.\1\
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\1\ See William F. Pedersen, Jr. Federal/State Relations in the
Clean Air Act, the Clean Water, Act, and RCRA: Does the Pattern Make
Sense?, 12 Environmental Law Rept.. (Environmental Law Inst.) 15,069,
15,071 (Dec. 1982) (Congress has failed to confront with any degree of
rigor the issue of which pollution control responsibilities properly
belong to the States and which to the Federal Government).
---------------------------------------------------------------------------
My research reviewed the original arguments for and against Federal
enforcement of environmental laws to determine if these justifications
for Federal enforcement are still supportable. As I set forth more
fully below, I found that while some of the original arguments for
Federal enforcement (such as lack of adequate State enforcement
commitment and resources) may find less support today, there are still
a number of compelling justifications for a meaningful Federal role in
enforcement, even where States have been authorized to implement
Federal programs.
Believing that the issue of the proper mix of Federal and State
enforcement of Federal environmental laws out to be based on pragmatic
policy grounds, I also sought to develop and apply some non-ideological
criteria for determining the appropriate level of Federal involvement
in enforcement. Using the criteria of effectiveness, efficiency and
equity, I compared federally-run enforcement programs with State-run
programs. I was surprised to find how little empirical data was
available on the suitability, under these three criteria, of Federal
versus State enforcement. Based on the limited data that I could find,
I concluded that public policy criteria did not support a dramatic
reduction in Federal enforcement.
I have set forth more fully below my analysis and conclusions.
ii. rationale for federal enforcement
Some Federal enforcement of national pollution control laws is
still justified on a number of grounds, even 20 years after the
enactment of most Federal statutes. An obvious justification is that
States are, and always will be, particularly ill equipped to address
the interstate effects of pollution. As pollution knows no political
boundaries, a pollution source's noncompliance could impose significant
adverse impacts, or what has been termed ``spillover effects,'' on
another jurisdiction.\2\ Where the local jurisdiction enjoys
significant benefits from the source's activities yet bears little or
none of the harm, that governmental entity may have little incentive to
enforce pollution laws against the source. A Federal role in ensuring
appropriate compliance by sources that may have impacts in other States
is therefore essential, particularly since previous attempts to address
interstate effects of pollution through regional compacts proved
unsuccessful.\3\
---------------------------------------------------------------------------
\2\ Richard B. Stewart, Pyramids of Sacrifice? Problems of
Federalism in Mandating State Implementation of National Environmental
Policy, 86 Yale Law Journal 1196, 1215-16 (1977).
\3\ See Lewis G. Green, State Control of Interstate Air Pollution,
33 Law & Contemporary Problems 315, 323-24 (1968).
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The growing importance of international environmental agreements
further creates an indisputable and growing need for Federal
enforcement. If a treaty provides for a right of the United States to
enforce certain pollution standards against a source in another country
or if the United States has entered into an international agreement to
ensure enforcement of its own laws, individual States are in no
position to uphold such obligations.\4\ Indeed, without a significant,
continuing Federal presence in environmental enforcement, the ability
of the United States to represent that its pollution standards will be
enforced is debatable.
---------------------------------------------------------------------------
\4\ See e.g., North American Agreement on Environmental Cooperation
(Final Draft), Sept. 13, 1994, art. 5 (U.S. agrees, along with Canada
and Mexico, to initiate proceedings to seek appropriate sanctions or
remedies for violations of domestic environmental laws and
regulations).
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It is realistic to expect that some State environmental agencies
may not vigorously enforce environmental standards against other State
agencies or the State's political subdivisions. State and local
governments operate numerous sources of pollution, such as landfills
and sewage treatment plants, and, through their ownership and operation
of buildings and equipment, also generate wastes that are subject to
regulation. In the 1980's, EPA launched a municipal treatment
enforcement initiative to address widespread noncompliance by publicly-
owned sewage treatment facilities and the failure of State
environmental agencies to enforce compliance.\5\ Because of concerns
that EPA was lacking in its enforcement efforts against facilities
owned or operated by the Federal Government, States argued for and
received expanded rights to enforce State environmental statutes
against Federal facilities.\6\ The same arguments that support the need
for State enforcement against Federal facilities favor a Federal role
in enforcing environmental laws against States and their political
subdivisions.
---------------------------------------------------------------------------
\5\ See Thomas Puts in Place Enforcement Strategy to Maximize POTW
Compliance with '88 Deadline, 18 Environmental Rept. 1436, 1437 (1987).
\6\ See e.g., Federal Facility Compliance Act, Public Law 102-386,
Sec. 102(a),(b), 106 Stat. 1505-06 (1992).
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One of the most compelling justifications for Federal enforcement
is the need to ensure equal enforcement among the States. Without
Federal environmental laws, including Federal enforcement to ensure
that national standards are implemented nationwide, States are likely
to vary widely in the extent of their regulation of pollution. Some
States would weaken their standards or lessen enforcement as a way to
induce polluting industries to invest in their States. States that
refused to weaken their standards would risk losing economic
development activities to the less restrictive States.
Although the theoretical basis of this ``race to the bottom''
rationale for Federal regulation has been questioned,\7\ State
regulators report that the regulated community repeatedly argues, and
even threatens, that relaxed standards are needed to attract new
industry or keep companies from moving to other States.\8\ In addition,
the growing popularity of State laws that prohibit agencies from
promulgating regulations more stringent than the counterpart Federal
rule ``provides some evidence that the concern about a `race to the
bottom' in the absence of Federal minimum standards remains valid.''\9\
Today, States are engaged in what one Governor called ``cannibalism''
in their competition to attract new businesses, wooing them with tax
breaks and other taxpayer-financed economic incentives.\10\ In the
present climate of economic rivalry between States, one would be naive
not to believe that, without the specter of Federal intervention, some
States would purposefully reduce their enforcement efforts as an
economic incentive.
---------------------------------------------------------------------------
\7\ See Richard L. Revesz, Rehabilitating Interstate Competition:
Rethinking the ``Race-to-the-Bottom'' Rationale for Federal
Environmental Regulation, 67 New York University Law Review 1210, 1233-
44 (1992); but see Kirsten H. Engel, State Environmental Standard
Setting: Is There a ``Race'' and is it ``to the Bottom''?, 48 Hastings
Law Journal 271 (1977) (documenting the race to the bottom).
\8\ See e.g., Adam Babich, Our Federalism, Our Hazardous Waste, and
Our Good Fortune, 54 Maryland Law Review 1516, 1533 n.64 (1995) (State
officials were responsive to arguments by members of the regulated
community that environmental standards must be reduced); Vicki Arroyo
Cochran, EPA Regional Offices: Unequal Protection Under the Law? 48-49
& n.96 (April 1994) (unpublished manuscript, on file with author)
(Indiana's top environmental official says that companies have
threatened to either move to another State or shift resources to other
facilities to escape rigorous enforcement).
\9\ Jerome M. Organ, Limitations on State Agency Authority to Adopt
Environmental Standards More Stringent than Federal Standards: Policy
Considerations and Interpretive Problems, 54 Maryland Law Review 1373,
1393 (1995).
\10\ Taking Stock of Environmental Problems: Hearings Before the
Senate Comm. On Environment and Public Works, 103d Cong., 1st Sess. 148
(1993) (testimony of Thomas C. Jorling, Commissioner, New York Dept. of
Environmental Conservation) (``Governor Cuomo considers the
relationship between and among the States now as cannibalism in the
competition for economic activity.'').
---------------------------------------------------------------------------
Federal enforcement also helps avoid certain market imbalances.
Companies that invest in environmental compliance are at a competitive
disadvantage if their competitors can avoid those costs because the lax
enforcement practices of another jurisdiction overlook some violations
of environmental laws. Industries that had invested heavily in
environmental compliance were placed at a competitive disadvantage when
the regulated community perceived in the early 1980's that the EPA
would not enforce environmental laws.\11\ Federal enforcement, when
aggressively implemented, has the ability to ``level the playing
field'' by initiating enforcement actions, or forcing reluctant State
agencies to initiate enforcement actions, in States with weak
enforcement practices.
---------------------------------------------------------------------------
\11\ Rochelle L. Stanfield, Ruckelshaus Casts EPA as `Gorilla' in
States' Enforcement Closet, National Journal, May 24, 1984, at 1034,
1035.
---------------------------------------------------------------------------
In some enforcement matters, the issue is uniquely Federal. For
example, United States v. Marine Shale Processors\12\ involved the
interpretation of EPA's cryptic regulations differentiating between
recycling and waste treatment. Because EPA developed the regulation and
had the greatest stake in ensuring that its rule was upheld by the
court and properly applied nationwide, Federal enforcement was fitting.
---------------------------------------------------------------------------
\12\ 81 F.3d 1361 (5th Cir. 1996).
---------------------------------------------------------------------------
The centralization of environmental protection was often justified
in the 1960's and 1970's by the States' lack of legal capacity,
resources, and commitment to effectively enforce pollution control
laws. The development of strong Federal programs, along with financial
assistance to State environmental programs and nationwide standards for
authorization of State programs, have helped stimulate the growth of
competent State environmental programs.\13\ Ironically, the desire to
avoid federally-run permitting programs in their States encouraged
State legislators to provide the necessary laws and resources to obtain
primacy. Once a State obtains authorization, the threatened return of
the program to EPA has been used by State agencies to leverage
additional funds from State legislators.\14\
---------------------------------------------------------------------------
\13\ Congressional Research Service, for the Senate Comm. on
Environment and Public Works, Federal-State Relations in Transition:
Implications for Environmental Policy, 31 (1982).
\14\ Rebecca Clay, A New Breed of Regulator, Environmental Forum,
March/April 1995, at 32, 33-34 (Indiana Department of Environmental
Management able to reverse budget cuts by arguing that reductions would
mean that State would lose authorization and EPA would assume
permitting and enforcement activities).
---------------------------------------------------------------------------
Today, most State programs have the necessary resources and
commitment to assume most Federal enforcement. Yet this enhanced
capability is due, in large part, to Federal enforcement program
technical and financial assistance to States, EPA's prodding of States
to take enforcement actions, and the desire of States to avoid a
Federal takeover of enforcement and other regulatory functions. One
State environmental commissioner observed that the publicity and
implications regarding the State's inability to handle its
responsibilities that would result if EPA were to take over pollution
compliance responsibilities is ``the greatest incentive for the State
to do the job.''\15\
---------------------------------------------------------------------------
\15\ Dan W. Lufkin, State Responsibility in Managing the
Environment, in Office of Research and Development, U.S. EPA, Managing
the Environment, 351 (1973).
---------------------------------------------------------------------------
The availability of EPA as a backup to State enforcement efforts
also enhances the State's effectiveness. State officials overwhelmingly
agree that the threat of the EPA enforcement gorilla bringing its own
enforcement action strengthens the State's position with polluters.\16\
Without a strong Federal enforcement program, State programs would
undoubtedly suffer.
---------------------------------------------------------------------------
\16\ Richard J. Tobin, Environmental Protection and the New
Federalism: A Longitudinal Analysis of State Perceptions, Publius 93,
105 (Winter 1992) (90 percent of State air and water quality directors
agreed that the threat of EPA intervention strengthens the State's
position). West Virginia's attorney general stated: `Threatening EPA
lawsuits is how we get voluntary compliance.'' Lawrence Mosher,
Reagan's Environmental Federalism--Are the States Up to the Challenge?,
National Journal Jan. 30, 1982, at 184, 185.
---------------------------------------------------------------------------
Even with the notable improvements in the commitment and ability of
States to enforce environmental laws, in some cases the resources and
political influence of the regulated entity may still overwhelm the
State agency. When faced with potential penalties or remediation costs
in the millions of dollars or with the potential closure of their
businesses, many regulated entitles are able to dedicate legal and
technical resources that may overpower the limited enforcement
resources of State agencies. For example, a defendant spent $3 million
in legal fees fighting a Clean Air Act enforcement action brought by
EPA.\17\ In fiscal year 1994 alone, the United States Department of
Justice dedicated more than 29,000 work hours (the equivalent of 15
persons working full time for the entire year), and EPA used three
employees full time and spent $2 million in litigation support, on a
single enforcement action in Louisiana against Marine Shale Processors;
the entire Louisiana Department of Environmental Quality legal staff
only consists of 15 lawyers.\18\ Budget cuts threaten to reduce further
the ability of States to handle enforcement matters, particularly cases
with great resource demands.\19\
---------------------------------------------------------------------------
\17\ Barry M. Hartman, The Litigation Explosion, in Environmental
Law: ALI-ABA Course of Study Materials 567,569 (American Law Institute-
American Bar Association, Feb. 13-15, 1992). The defendant eventually
settled the case for $350,000. Id.
\18\ U.S. Dept. of Justice, Statistical Report-Fiscal Year 1994 86
(1994); Telephone Interview with Terry Sykes, Office of Regional
Counsel, Region 6, EPA (Nov. 29, 1995); Telephone Interview with Ann
Coco, Office of Legal Affairs and Enforcement, Louisiana Department of
Environmental Quality (Nov. 13, 1995).
\19\ See Rex Springstein, Twenty Lose Jobs at DEQ--Total of 91
People Left the State Agency Yesterday, Richmond Times-Dispatch, April
29, 1995, at B1 (Governor cuts 91 jobs at Virginia Department of
Environmental Quality; Reorganization plan calls for reducing staff
involved in enforcement); Office of the Administrator, U.S. EPA, Report
of the Task Force to Enhance State Capacity 5 (July 1993) (increased
demands for expenditures and decreased State revenues draw into
question ability of States to continue expansion of environmental
management activities).
---------------------------------------------------------------------------
Political connections may also affect the enforcement activities of
State agencies. In Marine Shale Processors, the owner of the company
spent $1 million of his own money to defeat the election campaigns of
the Governor who had sought to shut the company down for violations of
hazardous waste laws.\20\ In Virginia, the Governor accepted a $100,000
campaign contribution from a company under investigation by the State
environmental agency and facing millions of dollars in fines for
illegally discharging wastes to a tributary of Chesapeake Bay.\21\ Even
the most capable State environmental agency may find itself unduly
influenced or overwhelmed by a well-heeled, politically influential
polluter and, therefore, in need of Federal enforcement.
---------------------------------------------------------------------------
\20\ Gwendolyn Thompkins, et al., Campaign Watch; A Look at the
Day's Highlights and Happenings, Times-Picayune, Oct. 25, 1995, at A2;
Tyler Bridges, Roemer Lashes Back Over Kent TV Ads, Times-Picayune,
Oct. 11, 1995, at A11. The company's owner spent $500,000 in 1991 and
another $500,000 in 1995 attacking former Governor Buddy Roemer; Roemer
was defeated in both elections. Id.
\21\ Peter Baker, Allen's Pac Took $100,000 From Company Under
Probe, Washington Post, Oct. 25, 1995, at A1.
---------------------------------------------------------------------------
A final rationale for Federal enforcement is that EPA must be
involved in enforcement to ensure that the national pollution control
standards it promulgates are enforceable and achievable. ``By splitting
standard setting and enforcement between two governmental levels, the
Nation would risk the promulgation and maintenance of unenforceable
standards.''\22\
---------------------------------------------------------------------------
\22\ Law of Environmental Protection Sec. 6.02[3] (Sheldon M.
Novick et al. eds., 1990).
---------------------------------------------------------------------------
iii. rationale for state enforcement
The primary philosophical justification for State enforcement of
Federal environmental laws is the principle of federalism, which, as
primarily expressed in the Tenth Amendment, recognizes the limited,
enumerated powers of the Federal Government and the residual powers of
the States. In particular, States have pervasive police powers which
they were exercising to control pollution long before the Federal
Government entered the field. In enacting Federal environmental
statutes, Congress respected this historical involvement by
acknowledging the primary responsibilities and rights of States in the
protection of public health and the environment, including their
primary responsibility for enforcement.\23\
---------------------------------------------------------------------------
\23\ See Frank P. Grad, Treatise on Environmental Law Sec. 2.03
(1992).
---------------------------------------------------------------------------
Although efforts by EPA to punish States that failed to enforce
Federal environmental statutes were struck down by the courts, there is
little support for the contention that the Constitution compels
Congress to grant States the exclusive authority to enforce Federal
environmental laws.\24\ Nevertheless, to those who believe that the
Federal Government has become too pervasive or too powerful, devolution
is justified as redressing an imbalance that has developed in the
decisionmaking power between the Federal Government and the States.\25\
Hence, the history of pollution control, respect for principles of
federalism, and the structure of most Federal environmental statutes
dictate that the States play a dominant role in enforcement.
---------------------------------------------------------------------------
\24\ See Brown v. EPA, 530 F.2d 215 (4th Cir. 1975), vacated and
remanded per curium, 431 U.S. 99 (1977) (case remanded because EPA
agrees, after losing in court of appeals, to modify regulations
requiring States to enforce Federal transportation control plans);
Edward L. Strohbehn, Jr., The Bases for Federal/State Relationships in
Environmental Law, 12 Eenvironmental Law Rept. (Environmental Law
Inst.) 15,074, 15,075 (1982).
\25\ Evan J. Ringquist, Environmental Protection at the State Level
45 (1993).
---------------------------------------------------------------------------
A more practical justification for State enforcement is the claim
that decentralized enforcement is more flexible and responsive than
enforcement by a centralized agency such as EPA. The provisions in
Federal statutes allowing a State to attain authorization to enforce
the Federal program reflect the belief that the level of government
closest to the environmental problem should be the primary enforcer,
provided it has the capability and will to enforce.\26\ But, as
outlined above, the capability and will of States to enforce present a
problem in most States at one time or another. Thus, to say that States
should enforce where they have the capability and will does not
eliminate the need for Federal enforcement but rather highlights the
concerns that justify Federal enforcement.
---------------------------------------------------------------------------
\26\ National Academy of Public Administration, Setting Priorities,
Getting Results 72 (1995); Environmental Law Institute, Report of the
Colloquium on Federal-State Relations in Environmental Enforcement 7
(1991).
---------------------------------------------------------------------------
By being closer to the problem, State enforcement agencies, in
theory, can obtain better information on the nature of the compliance
problem. States have more interaction with the regulated community and
are better able to monitor their compliance.\27\ It is not surprising,
therefore, that 90 percent of environmental inspections are performed
by State environmental agencies.\28\ EPA simply does not have the
resources or physical proximity to monitor and inspect sources in 50
States, and it may be at a particular disadvantage in trying to respond
to a situation that requires rapid governmental action.
---------------------------------------------------------------------------
\27\ David R. Hodas, Enforcement of Environmental Law in a
Triangular Federal System: Can Three Not Be a Crowd When Enforcement
Authority is Shared by the United States, the States, and their
Citizens?, 54 Maryland Law Review 1552, 1571 (1995).
\28\ Office of Enforcement, U.S. EPA, Enforcement in the 1990's
Project: Recommendations of the Analytical Workgroups 2-15 (1991).
---------------------------------------------------------------------------
State enforcement officials also may be more responsive to local
needs and conditions than Federal officials who do not reside in the
area.\29\ This could result in more enforcement, if enforcement
policies and procedures provide for citizen input and if officials are
sensitive to citizen concerns. Conversely, it could give the regulated
community greater access to the agency's personnel and more influence
over enforcement decisions. At least with the enforcement of hazardous
waste site cleanups by State agencies, citizens want expanded Federal
involvement because they view States as ``more readily subject to
political pressure from industry.''\30\
---------------------------------------------------------------------------
\29\ See Ringquist, supra note 25, at 44.
\30\ David J. Markell, The Federal Superfund Program: Proposals for
Strengthening the Federal/State Relationship, 18 William and Mary
Journal of Environmental Law 1, 33 n.86 (1993) (results of informal
survey).
---------------------------------------------------------------------------
A greater awareness of local conditions may facilitate more
flexible, tailored enforcement programs that take into account local
geographic, economic and social conditions and focus on the area's most
severe enforcement problems. Thus, rather than all States spending the
same proportion of resources on a problem regardless of the local
conditions, State officials can focus enforcement programs toward areas
that will result in the greatest amount of compliance and environmental
protection for the same level of enforcement resources. On the other
hand, awareness of local conditions, particularly local economic
conditions and the economic and political power of the violator, may
make State regulators less inclined to take necessary enforcement
actions. For example, Maryland's failure to take enforcement action
against a steel manufacturer for extensive, longstanding violations was
attributed to ``the cozy relationship large companies develop with
State regulators.''\31\ In addition, while the ability to weigh the
local costs and benefits may be beneficial to the immediate area, it
may result in an uneven playing field if a local pollution source is
allowed to avoid compliance costs that are imposed by other States.
---------------------------------------------------------------------------
\31\ Robert V. Percival, Environmental Regulation--Law, Science,
and Policy 1014 (1992).
---------------------------------------------------------------------------
Rare is the proponent of devolution who does not refer to Justice
Brandeis' observation that one of the benefits of federalism is that it
allows States to serve as laboratories of democracy for novel social
and economic experiments. Indeed, many Federal environmental statutes
are based on programs that were first developed at the State level.
However, it is also true that EPA has played a major role in numerous
advances in enforcement, such as multimedia, industry sector, and
environmental justice enforcement initiatives.\32\ Even where State
experimentation does result in an innovative solution, the Federal
Government is uniquely situated to take that successful experiment out
of the State lab and see that it is implemented across the country. In
fact, because ``innovative policies'' tend to be adopted primarily by a
few States with more liberal or progressive State governments,\33\ the
inability of EPA to diffuse inventions to all States may exacerbate
differences in environmental protection between States if laggard
States fail to adopt the new policies.
---------------------------------------------------------------------------
\32\ See Office of Enforcement and Compliance Assurance, U.S. EPA,
Enforcement and Compliance Assurance Accomplishments Report, fiscal
year 1994 2-4 to 2-12 (1994).
\33\ Richard P. Nathan, The Role of the States in American
Federalism, in State of the States 15, 27 (Carl E. Van Horn ed., 1989).
---------------------------------------------------------------------------
One of the most compelling original justifications for Federal
enforcement has been diminished by the dramatic growth in the size and
capability of State environmental agencies. Because of this growth,
some believe that Federal enforcement and oversight of State programs
may at times undermine the efforts of competent State enforcement
agencies by making the State appear less able to handle the State's
problems, by discouraging violators from resolving their disputes with
the State for fear that EPA may still take enforcement action, or by
diverting State resources to the demands of Federal oversight or to
EPA-targeted priorities that may not reflect the true needs of the
State.\34\
---------------------------------------------------------------------------
\34\ See Novick, supra note 22, at Sec. 6.02[3]; Hubert H. Humphrey
III & Leroy C. Paddock, The Federal and State Roles in Environmental
Enforcement: A Proposal for a More Effective and More Efficient
Relationship, 14 Harvard Environmental Law Review 7, 13 (1990). On the
other hand, ``EPA's independent authority to file enforcement actions
has no doubt resulted in stronger enforcement actions in some cases
enforced at the State level,'' id. at 40-41, and may make ``bad''
States better enforcers, Novick, supra note 26, at Sec. 6.02[3].
---------------------------------------------------------------------------
Not all States, however, are equally able or willing to enforce
Federal laws. Not surprisingly, the most eloquent proponents of a
reduced Federal role in enforcement generally are from States with
strong State programs. But a Federal enforcement presence that may seem
burdensome in strong States appears absolutely essential in a State
where relaxed environmental enforcement is seen as a way to induce
economic development.\35\ Therefore, although the concern that States
lack the resources and commitment to aggressively enforce environmental
laws may be less justified than in the past, without a significant EPA
role in enforcement, compliance and environmental quality would suffer
in many States.\36\
---------------------------------------------------------------------------
\35\ See, e.g., Bob Anderson, DEQ Penalties Down for Fiscal 1996,
Baton Rouge Advocate, Jan. 4, 1997, at 1B; Kelly King Alexander, A
Toxic Job: The State's Top Environmental Watchdog Turns Over the
Controversial Portfolio to His Deputy, Greater Baton Rouge Business
Report, Nov. 2, 1993, at 22 (enforcement actions and penalty
assessments decrease under new governor; agency accused of protecting
economic interests of industry at expense of environment).
\36\ See Ringquist, supra note 25, at 151; Mosher, supra note 16,
at 186.
---------------------------------------------------------------------------
Finally, the Federal Government cannot handle all, or even most,
enforcement. In 1994, States brought approximately 80 percent of all
enforcement actions.\37\ Regulatory programs are covering an expanded
number of increasingly small sources, making it even less likely that
EPA could handle most enforcement, thereby increasing the benefits of
having most enforcement done by the government entity closest to the
problem. This need for State enforcement of Federal programs, however,
does not argue for no Federal role, or even for a reduced Federal role.
It does, however, dictate that the Federal Government not unduly
interfere with the primary job of enforcement performed by the States.
---------------------------------------------------------------------------
\37\ Office of Enforcement and Compliance Assurance, U.S. EPA,
supra note 32, at 2-2 (EPA brought a record 2,246 enforcement actions;
States took 11,334 actions).
---------------------------------------------------------------------------
Thus, while some of the original arguments for Federal enforcement
may find less support today, there are still compelling justifications
for a significant Federal role in enforcement.
iv. criteria for defining the limits of devolving enforcement
While there are many justifications for Federal enforcement of
environmental laws and perhaps an equal number of arguments in favor of
State enforcement, a consensus on the criteria for determining the
appropriate level of government to enforce environmental laws is
lacking. Most arguments for further or complete devolution of
enforcement to the States are ideologically based. Federalism, it is
contended, mandates that without a compelling justification for Federal
involvement, the policing of pollution is best left to the States.
Yet federalism claims may mask a hidden agenda of deregulation--an
often unspoken benefit of more decentralized enforcement is not just
that it allegedly will work better or be more responsive to local
concerns, but it is also likely to be less effective and result in less
regulation if States are unwilling or unable to aggressively enforce
the law. President Reagan's New federalism was not just an attempt to
transfer power back to the States; it also aimed to eliminate the
perceived regulatory excesses of pollution control regulations.\38\
Devolution wasn't just an end; it was also a means to deregulate.
---------------------------------------------------------------------------
\38\ See J. Clarence Davies, Environmental Institutions and the
Reagan Administration, in Environmental Policy in the 1980's: Reagan's
New Agenda 143, 151 (Norman J. Vig & Michael E. Kraft eds., 1984).
---------------------------------------------------------------------------
Likewise, some current proponents of devolution mix their calls for
a transfer of power to the States with tales of regulatory excess and a
sermon on the virtues of less government regulation. Even without such
obvious deregulatory goals, the hidden agenda behind earlier attempts
to devolve enforcement taints the present proponents of devolution and
requires proponents to justify a shift in enforcement authority on
public policy, not just ideological, grounds.
It is also the case that the public cares less about ideology when
it comes to questions about the division of authority between the
Federal and State governments and more about what works and what it
costs. When asked whether Federal or State government should have more
responsibility for achieving environmental protection, Americans
preferred the Federal Government over State government by a 50 percent
to 38 percent margin.\39\ According to one survey, 60 percent of the
public opposes reducing the compliance powers of EPA, while 70 percent
feel the Federal Government has not gone far enough to protect the
environment.\40\ These polls support the observation that ``[t]here is
no guarantee that Washington can do any better, but in the face of
State and local failure the American public tends to turn to the
national government. In fact, the public looks to the national
government to solve any major problem, regardless of how successful the
other levels of government have been.''\41\
---------------------------------------------------------------------------
\39\ Albert R. Hunt, Federalism Debate Is as Much About Power as
About Principle, Wall Street Journal, Jan. 19, 1995, at A19.
\40\ Margaret Kriz, The Green Card, National Journal 2262, 2265
(Sept. 16, 1995); Clean Air Trust, Americans Want Tougher Stance on
Pollution (October 1995) (on file with author).
\41\ J. Clarence Davies III & Barbara S. Davies, The Politics of
Pollution 220 (1975).
---------------------------------------------------------------------------
Therefore, if we should respect the desires of the public and base
the limits of devolution on who gets the job done rather than on
ideology, then what we need are pragmatic grounds for any further
devolution of enforcement authority. Sound public policy criteria and
demonstrated results, not abstract political doctrines of federalism
versus nationalism or unspoken agendas of deregulation, should
determine the level of government that is most appropriate to enforce
environmental laws.
Surely the first criteria for any pragmatic devolution ought to be
the relative effectiveness of Federal and State enforcement. There is
great concern that the present amount of governmental enforcement is
inadequate. Polls show that an overwhelming percentage of the public
wants stricter enforcement of existing environmental laws,\42\ and
rightly so, given that violations of Federal environmental laws are
widespread.\43\ Two-thirds of corporate counsel admitted in 1993 that
their businesses operated in violation of environmental laws during the
past year.\44\ Half of all corporate environmental managers believe
that the Federal Government's enforcement is inadequate, citing the
need for more enforcement to ensure that all companies are treated
equally.\45\
---------------------------------------------------------------------------
\42\ See Dana A. Rasmussen, Enforcement in the U.S. Environmental
Protection Agency: Balancing the Carrots and the Sticks, 22
Environmental Law 333, 338 (1991) (71 percent of public support more
aggressive enforcement of antipollution laws).
\43\ Robert R. Kuehn, Remedying the Unequal Enforcement of
Environmental Laws, 9 St. John's Legal Comment. 625 625 & n.2 (1994).
\44\ Marianne Lavelle, Environment Vise: Law, Compliance, National
Law Journal, Aug. 30, 1993, at S1, S1.
\45\ Government Has Too Many Rules, Too Little Enforcement, Not
Enough Prevention, Environmental Managers Report in BNA Survey,
[Special Report] 22 Environmental Report (BNA) 2386, 2386 (1992).
---------------------------------------------------------------------------
The difficulty lies, not in gaining agreement on the need for more
effective enforcement, but in defining and measuring enforcement
effectiveness. While EPA often focuses its resources on high visibility
cases that advance the goal of general deterrence, States have
traditionally taken a less confrontational approach, often preferring
to work informally with the violator to bring it back into
compliance.\46\ Thus, attempts to evaluate the effectiveness of an
enforcement program through the number of enforcement actions or the
size of the penalties assessed may overlook other important measures of
compliance. Even if there were agreement on some ``objective'' measure
of enforcement success, because EPA often takes the lead in larger,
more difficult cases, numbers alone are not likely to reflect the
relative success of the two levels of enforcement. Thus, there is no
agreement on how to define a successful program.
---------------------------------------------------------------------------
\46\ See Office of Enforcement, U.S. EPA, supra note 28, at 2-13.
---------------------------------------------------------------------------
Ideally, measures of effectiveness could be compared for State-run
programs, federally-run programs, and programs with State
implementation and Federal oversight. However, there is no published
empirical study comparing the effectiveness of Federal and State
environmental enforcement, leading one commentator to observe that
although it is often claimed that States have advantages over Federal
enforcement, ``[i]t is unclear whether these State advantages are real
or primarily received as articles of faith.''\47\
---------------------------------------------------------------------------
\47\ Novick, supra note 22, at Sec. 6.02[2].
---------------------------------------------------------------------------
Although a systematic study is lacking, a number of observations
have been made about the success of various State and Federal
enforcement programs. When Iowa returned responsibility for its
municipal water monitoring to EPA in the early 1980's, EPA managed to
conduct only about 15 percent of the number of inspections formerly
performed by the State.\48\ An EPA official observed that if only a
small number of delegated States were to return their programs to EPA,
because of resource constraints ``there would be less enforcement, not
more.''\49\
---------------------------------------------------------------------------
\48\ Martha Derthick, American Federalism: Madison's Middle Ground
in the 1980s, Pub. Admin. Rev. 66, 70 (Jan./Feb. 1987).
\49\ Hodas, supra note 27, at 1586 (quoting letter by Richard D.
Morgehstern, Acting Administrator, Office of Policy, Planning and
Evaluation, U.S. EPA).
---------------------------------------------------------------------------
Critics of the Superfund program point to the lengthy time for EPA
cleanups and the small number of completed cleanups, as compared to
sites addressed by State programs, as evidence of the lack of
effectiveness of Federal enforcement programs.\50\ However, this
observation overlooks the fact that EPA, by law, focuses on emergency
cleanups and the most hazardous sites. It also fails to acknowledge
that the mere threat of becoming a Federal Superfund site has
encouraged responsible parties to cooperate with State cleanup efforts.
Undoubtedly, the influence of EPA's independent enforcement authority
on the success of State enforcement programs makes it difficult to
predict the results if EPA were to cease enforcement activity.
---------------------------------------------------------------------------
\50\ See State Cleanup Systems More Effective than Federal
Superfund Program; Report Says, [Current Development] 26 Environmental
Report (BNA) 982 (1995).
---------------------------------------------------------------------------
Problematic as EPA enforcement has been, State enforcement has not
necessarily been any more successful. The General Accounting Office
found that the track record of States in carrying out enforcement of
Federal laws, particularly in assessing penalties and in ensuring that
any penalty assessed at least recovers the economic benefit of
noncompliance, ``is even more disappointing'' than the record of
EPA.\51\ Government studies repeatedly document the failure of States
to take necessary enforcement actions for violations of water
pollution, drinking water and hazardous waste regulations.\52\
---------------------------------------------------------------------------
\51\ Management Deficiencies in Environmental Enforcement:
``Forceless Enforcement'': Hearing Before the Senate Comm. on
Governmental Affairs, 102d Cong., 1st Sess. 5 (1991) (testimony of
Richard Hembra, General Accounting Office).
\52\ See, e.g., Resources, Community, and Economic Development
Division, U.S. General Accounting Office, EPA and the States:
Environmental Challenges Require a Better Working Relationship 16-19
(1995); Water Pollution Prevention and Control Act of 1991: Hearing on
S. 1081 Before the Subcomm. on Environmental Protection of the Senate
Comm. on Environment and Public Works, 102d Cong., 1st Sess. 687 (1991)
(statement of John Martin, Inspector General, EPA).
---------------------------------------------------------------------------
Historically, withdrawal of Federal enforcement has not resulted in
more State environmental enforcement. When the Reagan Administration
greatly reduced Federal enforcement and increased State
responsibilities, States also reduced their environmental regulatory
activities, especially their enforcement of laws and regulations.\53\
Indeed, if the withdrawal of Federal authority as a backstop to State
enforcement efforts is coupled with reductions in Federal grants for
State enforcement efforts, as is expected over the next few years
because of the budgetary problems of the Federal Government, then State
enforcement may become dramatically less effective than at present.
---------------------------------------------------------------------------
\53\ Martin H. Belsky, Environmental Policy Law in the 1980's:
Shifting Back the Burden of Proof, 12 Ecology Law Quarterly 1, 63
(1984).
---------------------------------------------------------------------------
Therefore, although a lack of data hinders the ability to judge the
relative effectiveness of the two enforcement programs, there is no
compelling case on effectiveness grounds for eliminating or drastically
reducing the Federal role.
Efficiency is the second criterion by which to judge the limits of
pragmatic devolution. An efficient enforcement program would maximize
enforcement effectiveness for a given expenditure, generate the lowest
enforcement costs for a given level of compliance, or provide marginal
benefits of increased enforcement at least equal to the marginal costs
of additional enforcement.\54\ Once again, lack of data prevents a
conclusion on the relative efficiency of Federal and State enforcement
programs.
---------------------------------------------------------------------------
\54\ See Congressional Budget Office, Environmental Federalism:
Allocating Responsibilities for Environmental Protection 21-22 (1988).
---------------------------------------------------------------------------
It is clear, though, that EPA's enforcement expenditures are a
small part of the overall Federal budget. Indeed, EPA's expenditures
are only 0.4 percent of the Federal budget, and enforcement makes up
only a modest part of EPA's total operating budget.\55\ Moreover, while
EPA's responsibilities have increased significantly, the buying power
of EPA's budget in 1992 was only 55 percent of what it was in 1978.\56\
---------------------------------------------------------------------------
\55\ Ringquist, supra note 25, at 20. EPA's $230 million in
enforcement-related costs were less than 10 percent of the agency's
$2.689 billion fiscal year 1994 operating budget. Telephone Interview
with Terry Ouverson, Office of the Comptroller, EPA (Nov. 27, 1995).
\56\ Ringquist, supra note 25, at 19-20.
---------------------------------------------------------------------------
Federal enforcement is efficient, at least when measured in terms
of enforcement dollars spent and relief received, and is even a source
of revenue for the government. In 1991, for every dollar spent, civil
judicial environmental enforcement actions returned $25 to the U.S.
Treasury; criminal enforcement actions returned $3.\57\ In fiscal year
1994, the U.S. Department of Justice's Environmental Enforcement and
Environmental Crimes Sections collected more than $80 million in
penalties and fines alone, all on a total budget, including all
Superfund cases, of $50 million.\58\ EPA's enforcement programs also
return more in benefits than they spend on enforcement. In 1994, EPA
recovered $151 million in civil penalties and criminal fines and more
than $740 million in non-Superfund injunctive relief and supplemental
environmental projects at a cost of less than $230 million.\59\ These
efficiencies, coupled with the high nationwide rates of noncompliance,
make it hard to justify drastic cuts in Federal enforcement budgets
that would have the resulting indirect effect of devolving an even
greater proportion of enforcement responsibilities to the States.
---------------------------------------------------------------------------
\57\ Council on Environmental Quality, Environmental Quality: 22nd
Annual Report 83 (1992)
\58\ U.S. Dept. of Justice, supra note 18, at 30, 33, 44. When
injunctive relief, supplemental environmental projects and Superfund
cleanup activities are included, the Enforcement Section returned $34
for every dollar budgeted; Environmental Crimes returned $7. Id. at 44.
\59\ Office of Enforcement and Compliance Assurance, U.S. EPA,
supra note 32, at 2-2; Office of the Comptroller, U.S. EPA, Budget
Analysis Resource System: FY94 Actual by Media, Approp. (Nov. 1995) (on
file with author).
---------------------------------------------------------------------------
In spite of these impressive statistics, it is generally assumed
that States run their enforcement programs more efficiently than EPA,
presumably because State salaries are less than Federal salaries and,
by being closer to the source of the problem, travel and other costs
are lower.\60\ One of the few available comparisons resulted when EPA
was forced to resume implementation of Idaho's air quality program for
15 months beginning in July 1991. One EPA official estimated that it
cost the Federal Government at least double what it cost the State to
run the program; another commentator claims that EPA reportedly spent
almost five times as much to maintain the Idaho program that year as
the State would have spent to do the same job.\61\
---------------------------------------------------------------------------
\60\ See Novick, supra note 22, at Sec. 6.02[2]; Congressional
Research Service, supra note 13, at 76.
\61\ See Derthick, supra note 48, at 70; Stanfield, Ruckelshaus
Casts EPA as Gorilla, supra note 11, at 1038.
---------------------------------------------------------------------------
Even this natural experiment suffers from problems that make
comparisons difficult. Because EPA could not hire employees for what
the agency viewed as a temporary program, EPA was forced to hire more
expensive private contractors to implement the program.\62\ Moreover,
while this example suggests that it might cost EPA more to run an
enforcement program (or at least a new program) than it would cost the
State to continue with its existing program, the Idaho example tells us
nothing about the effectiveness of either the State or EPA-run
enforcement program. Therefore, while it might cost more, a federally-
run enforcement program might result in greater compliance.
---------------------------------------------------------------------------
\62\ Stanfield, Ruckelshaus Casts EPA as Gorilla, supra note 11, at
1038.
---------------------------------------------------------------------------
Other issues further cloud any accurate assessment of efficiencies.
A certain amount of overlap and duplication of effort exists between
Federal and State environmental enforcement programs, as is true in
other areas of dual enforcement, such as drug-related crimes, civil
rights, and workplace safety. The most controversial form of
duplication, independent enforcement action by EPA in an authorized
State, is EPA's most effective means to oversee State enforcement
programs and provides significant deterrence value.\63\ While overlap
increases compliance, if one level of government could implement all
enforcement and attain results comparable to what are now being
achieved by dual enforcement, then costs could be saved. But this is a
very big ``if,'' the general agreement that, were the Federal
Government to decrease its environmental enforcement activities, many
State programs would be weaker, deterrence would suffer, and
noncompliance would increase.
---------------------------------------------------------------------------
\63\ See William H. Rogers, Jr., 4 Environmental Law
Sec. 7.23(B)(3)(1992); Novick, supra note 22, at Sec. 8.02[6].
---------------------------------------------------------------------------
It is also repeatedly suggested that there are certain
inefficiencies with nationwide enforcement programs because they focus
resources on issues that may not be problems in particular
localities.\64\ While this is likely true in some circumstances,
national enforcement serves other important goals such as providing
equitable treatment of the regulated community and helping ensure equal
environmental protection for all citizens. Federal officials could
address any such inefficiencies by tailoring enforcement efforts to
address local problems and providing greater decisionmaking discretion
to State enforcement officials rather than by abolishing Federal
enforcement programs.
---------------------------------------------------------------------------
\64\ See, e.g., Stewart, supra note 2, at 1219-20.
---------------------------------------------------------------------------
Moreover, just as EPA cannot accomplish all enforcement, it is
unreasonable to assume that States can assume all enforcement
responsibilities, particularly if there are reductions in Federal
grants to State enforcement programs. In fact, cuts in Federal grants
could have the unintended effect of increasing the need for Federal
enforcement as States may become increasingly reluctant to assume
Federal responsibilities that appear to be yet another unfunded mandate
and may decide to return pollution control programs to EPA.\65\
---------------------------------------------------------------------------
\65\ See Strohbehn, supra note 24, at 15,079-80.
---------------------------------------------------------------------------
Finally, pragmatic devolution requires that officials vest
enforcement responsibilities in a level of government that can ensure
equitable treatment of citizens and businesses. The desire to ensure
that the benefits and costs of environmental protection are evenly
distributed was a compelling reason for the establishment of Federal
environmental programs. However, national pollution standards do little
to ensure equal protection if these requirements are not uniformly
enforced throughout the country.
Federal enforcement plays a major role in seeking to ensure fair
and equitable treatment of the regulated community. As markets for
goods and services have become increasingly national and international,
centralized enforcement programs are in a unique position to provide
consistent enforcement policies and practices.\66\ If a company
violates a Federal pollution control standard in Louisiana, then it
should expect roughly the same enforcement response as a similarly
situated company in California or New York. Only a significant Federal
enforcement program, as argued above in Part II, can maintain this
level playing field and minimize the market imbalances that might
result from unequal enforcement among the States.
---------------------------------------------------------------------------
\66\ See Margaret E. Kriz, Ahead of the Feds, National Journal
2989, 2990 (Dec. 9, 1989).
---------------------------------------------------------------------------
Citizens likewise are entitled to an equitable level of
environmental protection. ``The justification for uniform [national]
standards is that each citizen has an inherent right to the same level
of environmental quality (or the same level of environmental
risk).''\67\ This expectation of environmental protection has become so
pervasive that it is now viewed by persons of every political party
``to be an inalienable right that they rank alongside liberty and the
pursuit of happiness.''\68\ If we believe that businesses should expect
similar treatment for violations of the same Federal standard, then
should not a citizen of Louisiana expect that he or she will receive
the same Federal protection from environmental hazards, and a
comparable enforcement response for violations of Federal standards, as
a person residing in California or New York?
---------------------------------------------------------------------------
\67\ Ringquist, supra note 25, at 68.
\68\ Margaret Kriz, The Green Card, supra note 40, at 2264.
---------------------------------------------------------------------------
Balanced against this right of citizens to equal protection is the
desire of States to implement their own enforcement programs. However,
important as it may be to respect federalism and State autonomy,
national environmental standards mean nothing if citizens cannot expect
equal enforcement of those standards regardless of where they live.
Thus, if States alone were allowed to enforce Federal standards or if
they were free to ignore noncompliance with environmental regulations
or tradeoff enforcement of environmental laws for promises of economic
development, then many citizens could lose the uniform levels of
environmental protection legislated by Congress. If, as reflected in
the legislation of national standards, there is agreement that citizens
are entitled to a fundamental level of environmental protection, then
some government entity must be in a position to ensure on a State-by-
State basis that the equal protection of citizens is being safeguarded.
Even State environmental officials recognize the role of the Federal
Government in ensuring that all States provide fundamental public
health and environmental protection.\69\
---------------------------------------------------------------------------
\69\ See U.S. EPA, National Environmental Performance Partnership
System 1 (May 17, 1995) (on file with author).
---------------------------------------------------------------------------
Only Federal enforcement can ensure that citizens, like businesses,
are equally treated and equally protected. Although the need to ensure
equal protection of citizens may not justify that the Federal
Government perform all or even most enforcement, it does justify a
substantial Federal presence to act where and when needed. As long as
we recognize the right of citizens to equal protection from
environmental hazards through the promulgation of uniform national
standards, then some Federal enforcement is necessary to ensure that
States respect and protect those rights.
v. conclusion
Based on my analysis, I do not believe that devolution of all
enforcement of Federal environmental laws to the States is supportable.
The initial justifications for Federal enforcement, though they have
changed over the past two decades, are still largely valid. In
addition, although the available data is limited, the public policy
criteria of effectiveness, efficiency and equity do not support a
dramatic reduction in Federal enforcement. Unfortunately, this lack of
data also hinders informed choices about the proper mix of Federal and
State enforcement and makes it difficult to define the appropriate
limits of devolving Federal enforcement.
It is apparent from the information that is available that because
of resource limitations and respect for principles of federalism, the
Federal Government alone cannot and should not administer all, or even
most, enforcement. On the other hand, because pollution has economic
and public health impacts that transcend State boundaries, States
cannot execute all enforcement. States also lack the will and resources
to address all violations. Environmental enforcement problems are just
too large and too complex for any one level of government to handle.
To argue that there should not be a dramatic reduction in Federal
enforcement is not to suggest that the Federal-State enforcement
relationship could not be improved. Reforms are needed that will make
enforcement programs work better by minimizing unnecessary duplication
and conflicts between Federal and State programs. EPA and the States
are considering a number of new oversight reform proposals, such as the
development of new enforcement performance measures, ``differential
oversight,'' and increased use of block grants. Provided that issues of
enforcement devolution are resolved on sound public policy, not
ideological, grounds, these proposal have the potential to improve both
enforcement and Federal-State relations.
Therefore, I urge you to encourage EPA and the States to both: (1)
gather additional data on the effectiveness and efficiency of Federal
and State enforcement so that this important issue can be resolved on
pragmatic grounds; and (2) continue efforts to coordinate and cooperate
on enforcement so that Federal and State governments can provide the
public with what they want and need--effective, efficient and equitable
enforcement of Federal environmental laws.
Thank you for allowing me to testify before the Committee, and I
hope that my remarks are useful to you in addressing this important
issue. I will be happy to answer any questions you may have.
______
Prepared Statement of Todd Robins, Environmental Enforcement, U.S.
Public Interest Research Group
i. introduction
Good morning, Chairman Chafee, Senator Baucus and distinguished
members of the Environment and Public Works Committee. My name is Todd
Robins; I am an environmental attorney with the U.S. Public Interest
Research Group. U.S. PIRG is the national lobbying office for the State
PIRG organizations active in more than 30 States around the country.
The State PIRGs are non-profit, non-partisan environmental and consumer
watchdog groups with nearly one million citizen members nationwide. I
also chair the Clean Water Network's Enforcement Work Group, and in
that capacity, work with citizen litigators, citizens suit plaintiffs,
and grassroots groups fighting illegal pollution in their communities
around the country. The Clean Water Network is a national coalition of
over 900 groups, including environmental organizations, labor unions,
and commercial and recreational fishers, all dedicated to strengthening
the Clean Water Act and its implementation in the States. All of these
groups have endorsed a Clean Water enforcement platform which calls for
mandatory minimum penalties for serious violations, simplified and
strengthened citizen suit authority, and increased citizen right to
know about polluted waterways. Finally, I am a member of the Steering
Committee of the Network Against Corporate Secrecy, a network of
environmentalists and community groups around the country working
together to fight corporate secrecy laws and protect the public's right
to know.
Fair and effective enforcement of our environmental laws is an
issue of substantial importance to the PIRGs and its members. We have
brought more than 80 successful citizen enforcement suits, recovering
over $46 million in payments for violations. Most importantly, New
Jersey PIRG helped to write and pass the country's strongest Clean
Water enforcement law in 1990--a law that has been remarkably
successful, and a law about which I plan to speak in some detail today.
I am here today to provide the Committee, from the perspective of
the public interest, an analysis of the environmental enforcement
crisis that exists in many States around the country, and to offer a
vision of a more effective Federal-State partnership and how it could
function to address this crisis. I would like to say at the outset what
may otherwise get obscured by this discussion--namely that the public,
the agencies represented here today, and law abiding companies
disadvantaged by scofflaw competitors, I believe, share the same goal:
which is compliance in the first place, achieved efficiently. The
purpose of my testimony today is to demonstrate that the way we get
there is not by voluntary, hand-holding approaches, but by creating a
constructive partnership between the States, EPA, and citizens that
maintains a genuine, firm and predictable threat of serious
consequences for those who choose to violate pollution laws.
Specifically, I would like to make three points. The first is that
the failure or unwillingness of States to enforce the law, in
conjunction with corporate secrecy, immunity, and deregulatory policies
in some States, has encouraged widespread violations of our
environmental laws and promoted an atmosphere for scofflaws in which it
simply pays to pollute. The second point is that, despite several
important examples of Federal enforcement intervention in the face of
inadequate State action, the U.S. Environmental Protection Agency (EPA)
is not doing enough to assure compliance with the laws it oversees, but
instead has also measurably reduced its commitment to effective Federal
environmental enforcement in recent years. Third, and finally, the
firm, but fair, no-nonsense approach to Clean Water Act enforcement
that we have seen in New Jersey since 1990--characterized by mandatory
minimum penalties for serious violations, stronger citizen suit
provisions, better monitoring and reporting, and adequate resources--
should serve as a national model for enforcement of the Clean Water Act
and other Federal environmental statutes. Key aspects of the New Jersey
law are embodied in Federal legislation introduced this year by
Senators Lautenberg and Torricelli (S. 645).
ii. serious violations of environmental laws are widespread
Recently, representatives of polluting industries have asserted
that ``the vast majority of the regulated community has demonstrated
its strong commitment to operating within the regulatory structure''
and that environmental ``compliance is the rule, not the
exception.''\1\ However, the data EPA has compiled on Clean Water Act
violations tell a different story. U.S. PIRG has endeavored to tell
this story to the public throughout the 1990's by researching,
analyzing, and releasing this data showing that an alarming number of
major point source polluters seriously and chronically violate the law.
---------------------------------------------------------------------------
\1\ Joan Heinz, Esq. and Paul Wallach, Esq., on behalf of the
Corporate Environmental Enforcement Council, before the U.S. EPA Office
of Enforcement and Compliance Assurance, Public Meeting re: National
Performance Measures Strategy, 2/3/97, Alexandria, Va.
---------------------------------------------------------------------------
In March of this year, U.S. PIRG released our Dirty Water
Scoundrels report, documenting serious violations of the Clean Water
Act by the Nation's largest facilities from January 1995 through March
1996. We were disturbed to find that nearly 20 percent of the major
industrial, municipal and Federal clean water permit holders nationwide
were listed by EPA in Significant Noncompliance with the Clean Water
Act in at least one quarter during this period.
What's more, these EPA numbers are probably just the tip of the
iceberg. When we looked at industry's self-reported discharge
monitoring information for just the first quarter of 1996, we found
that 576--or 21 percent--of the nations's major industrial polluters
exceeded their pollutant limits by 50 percent or more. That is nearly
three times the number of companies EPA listed in Significant
Noncompliance during this single quarter.
Unfortunately, national rates of compliance with the Clean Air Act
are not readily available. The lack of information is, in part,
attributable to the fact that some States seriously and purposely
under-report the number of significant violations of the Act.\2\ An EPA
Inspector General report earlier this year found that although the
State of Pennsylvania reported only six major air pollution violations
in 1995, a review of the data revealed that in fact 64 of 270
Pennsylvania plants (24 percent) had committed major violations in that
year.\3\ According to that report, the data ``strongly suggests the
potential for problems in other States.''\4\
---------------------------------------------------------------------------
\2\ U.S. EPA Office of the Inspector General, Report of Audit:
Validation of Air Enforcement Data to EPA by Pennsylvania, 2/14/97.
\3\ Ibid.
\4\ Ibid.
---------------------------------------------------------------------------
iii. widespread non-compliance has been encouraged by states'
inadequate enforcement
Clearly, when one in every five major Clean Water Act permit
holders is a serious or chronic violator, compliance cannot be said to
be the rule. We think the findings of the U.S. PIRG and the EPA
Inspector General reports demonstrate gross and unacceptable levels of
non-compliance with our environmental laws. The question, then, is: why
are serious and chronic violations so widespread? The answer is
obvious: our Federal environmental laws are not being enforced
effectively. Weak and inconsistent enforcement at the State level
encourages non-compliance, creates a ``race to the bottom'' in which
companies shop for States with weak standards, and disadvantages law
abiding companies who take their environmental responsibilities
seriously. Without environmental cops aggressively on the beat, without
a credible, predictable deterrent to illegal pollution, polluters have
little incentive to clean up their acts and plenty of incentive to
disregard the law.
Historically Weak State Enforcement
The problem of inadequate State environmental enforcement is not a
new one. Indeed, in 1991 Richard Hembra, the Director of Environmental
Protection Issues at the U.S. General Accounting Office, described
enforcement of water quality laws as ``weak and sporadic.''\5\
According to Hembra:
---------------------------------------------------------------------------
\5\ Richard Hembra, Director of Environmental Protection Issues at
U.S. General Accounting Office, Testimony before House Public Works
Committee's Subcommittee on Water Resources, May 14, 1991.
Despite serious and longstanding violations, most enforcement
actions are informal slaps on the wrist rather than formal
actions, such as administrative fines and penalties. Further,
even in the relatively few cases where penalties have been
assessed, they are often significantly reduced or dropped . . .
Without enforcement, dischargers have little incentive to incur
the cost of pollution control. At the same time, industrial
dischargers that do abide by program requirements are unfairly
placed at a disadvantage with those who choose not to invest in
pollution control equipment and practices.\6\
---------------------------------------------------------------------------
\6\ Ibid.
In a 1989 EPA Inspector General audit of enforcement under all EPA
programs, the IG concluded that penalties rarely were sufficient to
recover the economic benefit the violator had gained from avoiding
compliance.\7\
---------------------------------------------------------------------------
\7\ EPA Office of the Inspector General, Capping Report on the
Computation, Negotiation, Mitigation, and Assessment of Penalties Under
EPA Programs, September 1989.
When penalties are reduced to below what it would cost to
comply with the environmental laws, they encourage rather than
deter noncompliance. Small fines and lengthy time limits to
achieve compliance promote a pay-to-pollute mentality.\8\
---------------------------------------------------------------------------
\8\ Ibid.
---------------------------------------------------------------------------
The Enforcement Crisis Has Worsened
Today, the problem in many States appears to be growing worse. A
significant number of States around the country have explicitly
reduced, or even dismantled, their already weak, under-funded
environmental enforcement programs under the philosophy that voluntary,
hand-holding compliance assistance efforts will achieve compliance more
efficiently.\9\ State and EPA data, as well as anecdotal evidence from
around the country indicates that the opposite is true: as the numbers
of inspections conducted, enforcement actions taken, and penalties
collected by State environmental departments have declined rapidly and
dramatically, rates of non-compliance, as described earlier, have
remained persistently high and in some States have worsened. It is
critical to note that when a decrease in enforcement actions and
penalties is accompanied by a parallel decline in violations, as has
happened in New Jersey under a mandatory minimum penalty scheme that I
will discuss later, the goal of compliance efficiently achieved has
been met. The data and information U.S. PIRG has gathered from around
the United States demonstrate that most States are nowhere near this
goal, and many are headed in the wrong direction.
---------------------------------------------------------------------------
\9\ Tom Arrandale, ``Can Polluters Police Themselves,'' Governing,
June 1997.
---------------------------------------------------------------------------
U.S. PIRG is currently in the process of compiling information on
State environmental enforcement into a comprehensive national report.
What follows is a sampling of what we have learned, containing data and
examples that are either particularly egregious or may be of special
interest to members of the Committee:
The Commonwealth of Virginia and its Department of
Environmental Quality (DEQ) have received significant publicity as a
leading example of States' ``resistance to vigorous enforcement of
Federal environmental laws.''\10\ In 1993, citizen groups filed a
petition asking EPA to revoke Virginia's delegated authority to
implement the Clean Water Act for the Commonwealth's failure to correct
long-standing violations and its failure to pursue adequate enforcement
penalties, among other things.\11\
---------------------------------------------------------------------------
\10\ Cushman, 12/15/96.
\11\ Chesapeake Bay Foundation, Environmental Defense Fund,
Petition for Corrective Action, An Order Commencing Withdrawal
Proceedings, and Other Interim Relief With Respect to Virginia's Water
Pollution Control Program, before U.S. EPA Region III, 11/5/93.
---------------------------------------------------------------------------
Since then, the situation has only deteriorated. According to a
recent report by the Virginia General Assembly's Joint Legislative
Audit and Review Commission, top DEQ officials ``have chosen to
disregard the State's laws and Constitution and were skirting Federal
environmental requirements to favor industry.''\12\ Water inspections
are down 38 percent since fiscal year 1990; DEQ has not maintained
computerized water compliance information for over 2 years; enforcement
referrals to the Office of the Attorney General have fell from 30 in
fiscal year 1989 to 1 in fiscal year 1996; civil penalties for water
violations in fiscal year 1996 totaled $4,000, a 98 percent decline
from fiscal year 1994, and civil penalties for hazardous waste
violations dropped by 94 percent in the same period.\13\ According to
the report, this decline in enforcement ``does not correlate to any
increase in compliance with the law.''\14\
---------------------------------------------------------------------------
\12\ Joint Legislative Audit and Review Commission of the Virginia
General Assembly, Review of the Department of Environmental Quality,
1997.
\13\ Ibid.
\14\ Ibid.
---------------------------------------------------------------------------
Although approximately 26 percent of major Oklahoma water
polluters were listed by EPA in ``Significant Non-Compliance'' with
their Clean Water Act permits at least once from July 1993 through
March 1996,\15\ Oklahoma's Department of Environmental Quality (DEQ)
collected a total of $1,000 in fines for water violations from fiscal
year 1994 through fiscal year 1996.\16\ The story of DEQ's Air Quality
Division is similar: notices of violation and consent orders have
decreased in recent years, and fines for air pollution violations
dropped 86 percent from fiscal year 1994 to fiscal year 1996. Weak air
pollution enforcement in Oklahoma is not a new problem, however. One
longstanding beneficiary of DEQ's unwillingness to enforce air
pollution laws has been the Sun Oil Company refinery in Tulsa.
According to a January 1989 internal Sun Oil memo, their Tulsa facility
reported fewer environmental violations than other Sun refineries
because, among other things, DEQ did not conduct routine inspections of
the refinery to monitor compliance.\17\ More recently, residents nearby
the refinery have been pressing DEQ to take action against Sun for
repeated nighttime releases of sulfur, hydrocarbons, and
hydrofluorides--some of which have sent neighbors to the hospital with
headaches and lung ailments--but the department has still never
conducted an inspection or issued a Notice of Violation.\18\
---------------------------------------------------------------------------
\15\ U.S. PIRG, Dirty Water Scoundrels, March 1997, Permit to
Pollute, June 1995.
\16\ Oklahoma DEQ, Annual Report, Fiscal Years 1994, 1995, 1996.
\17\ Internal Sun Oil Memo, from W.R. Clarke to W.T. McCollough, 1/
3/89.
\18\ Telephone conversation with B.J. Medley, Citizen Activist,
Tulsa, OK, 6/6/97.
---------------------------------------------------------------------------
In Alabama, after several years of steady cuts in the
State Department of Environmental Management's (DEM's) budget, waterway
assessments and discharger inspections are at an all-time low.
Inspections dropped 62 percent from 1994 to 1995 alone, and the
percentage of waters assessed by the State in 1994 was only 17 percent,
the lowest in the southeast.\19\ Meanwhile, Alabama ranked tenth worst
in the Nation with 44 major water polluters listed in Significant Non-
Compliance with the Clean Water Act from January 1995 through March
1996.\20\
---------------------------------------------------------------------------
\19\ Greg Jaffe, ``Officials Fear EPA Takeover in Alabama,'' ``The
Wall Street Journal Southeast Journal, 2/14/96.
\20\ U.S. PIRG, March 1997.
---------------------------------------------------------------------------
According to U.S. PIRG's March 1997 study, the State of
Missouri ranked third worst in the Nation with 44 percent of its major
water polluters in Significant Non-Compliance with the Clean Water Act
at least once during a recent period. A review of Clean Water Act
permit files at the Missouri Department of Natural Resources by the
Ozark Chapter of the Sierra Club revealed that many of the listed non-
compliers have long histories of almost constant violations of water
standards. The files of the State's two major lead mining companies,
Doe Run and Asarco, showed steady patterns of violations going back as
far as 1984 and 1968, respectively. In fact, the records on Asarco
indicate that the company has never been in compliance with the Clean
Water Act, demonstrating that Missouri DNR's enforcement program has
not provided a credible deterrent that succeeds in returning violators
to compliance.
In Florida, where civil penalties imposed against
violators by the Department of Environmental Protection (DEP) are down
in some regions of the State by 90 percent since 1993,\21\ the State's
recently delegated Clean Water Act permit program is particularly
troubled. In 1995 and early 1996, 87 major facilities in Florida were
listed by EPA in Significant Non-Compliance with the Clean Water Act,
the second highest number of violators in the country for that
period.\22\ What is worse is that a substantial number of those
polluters were violating out-of-date permits: recent U.S. EPA Region IV
statistics indicate that 41 percent of Florida's major industrial
facilities are operating with expired permits, the worst in the
southeastern region.\23\
---------------------------------------------------------------------------
\21\ St. Petersburg Times, ``Has State Environmental Watchdog Lost
It's Bite?'' 4/13/97.
\22\ U.S. PIRG, March 1997.
\23\ U.S. EPA, Region 4 NPDES Permits Update, May 1997.
---------------------------------------------------------------------------
A recent U.S. EPA Region I audit of the Connecticut
Department of Environmental Protection's (DEP's) enforcement program
revealed serious shortcomings in the department's water bureau.\24\
According to the audit, the water bureau shifted most of its
enforcement personnel to other areas in 1993, and since then has
conducted significantly fewer inspections and issued many fewer notices
of violation for water violations. In addition, notices and orders
issued or negotiated since late 1992 have gone unmonitored.\25\ During
the same period industrial non-compliance with the Clean Water Act has
worsened--with one in five of the State's major industries in serious
violation from mid-1993 through 1994\26\ and one in four in serious
violation from 1995 through early 1996.\27\ The audit also found that
DEP ignores chronic violations, delays initiation of enforcement
actions, substantially reduces penalties without justification, and
systematically fails to recover the economic benefit gained by
violators from avoiding compliance.\28\ Most recently, the department
has come under scrutiny for accepting a relatively low fine from
MacDermid chemical company, whose 1994 spill of 1,500 gallons of
corrosive, copper-containing liquid into the Naugatuck River killed
12,000 fish. MacDermid's C.E.O. has been identified as a political
contributor to Governor Jim Rowland.
---------------------------------------------------------------------------
\24\ U.S. EPA Region I, Draft Multimedia Review of the Enforcement
Programs of the Connecticut Department of Environmental Protection,
November 1996.
\25\ Ibid.
\26\ U.S. PIRG, June 1995.
\27\ U.S. PIRG, March 1997.
\28\ Ibid.
---------------------------------------------------------------------------
Recent data show that more than 40 percent of South
Carolina's major industrial water polluters were considered in
Significant Non-Compliance with their permits during 1995 and early
1996, the third highest percentage in the U.S. for that period.\29\ One
company not on that list was Laidlaw, a company that operates a
hazardous waste incinerator in the State. When citizens sued Laidlaw
for dumping significant quantities of mercury over its permit limits
into a nearby stream, the State Department of Health and Environmental
Control (DHEC) imposed a modest penalty in order to block the citizen
suit from proceeding. When the court found that civil penalties that
amount to less than the economic benefit to the polluter are not
sufficient to block a citizen suit, DHEC simply relaxed Laidlaw's
mercury limit so significantly as to make the violations ``go
away.''\30\
---------------------------------------------------------------------------
\29\ U.S. PIRG, March 1997.
\30\ Telephone conversation with Carolyn Pravlik, Esq., attorney
against Laidlaw, 6/6/97.
---------------------------------------------------------------------------
Although 53 major water polluting facilities in New York
committed serious Clean Water Act violations in 1995 and early
1996,\31\ the New York State Department of Environmental Conservation
(DEC) experienced a 45 percent decline in the number of formal water
enforcement actions it initiated from 1992 to 1996.\32\ In addition,
according to U.S. EPA's Office of Enforcement and Compliance Assurance,
DEC has issued general stormwater permits to only 14 percent of the
10,000 industrial facilities and municipalities subject to stormwater
controls. Among the worst casualties of DEC's neglect is Lake Onondaga,
widely regarded as the most polluted lake in the United States. Despite
the fact that the lake's primary polluter, the Metropolitan Syracuse
Sewage Treatment Plant (Metro), settled a citizen suit and agreed in
1988 to develop a plan to come into compliance, today no clean-up plan
yet exists, much less any action to reduce pollution in the lake. In
the almost 10 years since the settlement, DEC has taken no affirmative
action against the county to enforce the agreement.\33\
---------------------------------------------------------------------------
\31\ U.S. PIRG, March 1997.
\32\ Based on U.S. EPA Permit Compliance System data.
\33\ From materials provided by Timothy P. Mulvey, Onandaga Lake
Cleanup Corp., 6/5/97.
---------------------------------------------------------------------------
From July 1995 to June 1996, 70 percent of the 334
facilities permitted to discharge pollutants into Puget Sound in
Washington committed violations, the overwhelming majority of which
were repeat violations. Of the violators, 35 percent were listed as
serious or chronic. Nonetheless, the State imposed penalties against
only 10 percent of the repeat violators during this period.\34\
---------------------------------------------------------------------------
\34\ Puget Soundkeeper Alliance, 1997.
---------------------------------------------------------------------------
Although a recent Mellman Group poll showed that an
overwhelming majority of Louisiana voters support stronger clean water,
clean air, toxic emissions, and right to know regulations and believe
businesses lobby to weaken environmental laws out of greed rather than
concerns about job losses,\35\ the Louisiana Department of
Environmental Quality has, nonetheless, steadily reduced its commitment
to enforcement of current laws in recent years. From 1991 to 1996,
enforcement actions have declined by 32 percent, the percentage of
enforcement actions with penalties assessed dropped from 14.7 to 5, and
the total number of penalty dollars assessed has dropped by 82
percent.\36\ In addition, the State House of Representatives has passed
an audit privilege and immunity law that, if enacted, will be among the
broadest and most pro-business self-audit laws in the county.\37\
Meanwhile, Louisiana ranked eighth worst in the country, with 57 major
facilities listed by EPA in Significant Non-Compliance with the Clean
Water Act from 1995 through early 1996.\38\
---------------------------------------------------------------------------
\35\ Mellman Group poll, January 1997.
\36\ Robert Keuhn, Tulane Law School, June 1997.
\37\ Christi Daugherty, ``Polluter, Heal Thyself, Environmental
Self-Audits Would Let Louisiana Polluters Off the Hook,'' Gambit,
April, 1997.
\38\ U.S. PIRG, March 1997.
---------------------------------------------------------------------------
According to a report last year of the Environmental
League of Massachusetts Education Fund, the Massachusetts Department of
Environmental Protection has been substantially less aggressive about
penalizing behavior that violates environmental protection laws in
recent years.\39\ While the department has been issuing more ``Notices
of Non-compliance,'' (NON) analogous to a warning rather than a ticket,
administrative penalties have dropped by more than half since 1989.\40\
A recent EPA Region I audit found that NONs were issued when penalties
should have been, including a case where a paper company had multiple
serious Clean Water Act and Resource Conservation and Recovery Act
violations.\41\ Also, inspectors returned to the scene of violations to
follow up on subsequent compliance steps in fewer than 2 percent of the
cases during 1995 and 1996, despite State guidelines requiring
subsequent inspections.\42\
---------------------------------------------------------------------------
\39\ Donna Tesiero, James Gomes, Enforcement Trends at the
Massachusetts Department of Environmental Protection 1989-96, May 1996.
\40\ Ibid.
\41\ Ibid.
\42\ Ibid.
---------------------------------------------------------------------------
In California, the San Diego Regional Water Quality
Control Board (RWQCB) announced its formal decision to commit resources
to permitting of new facilities, in order to encourage development,
rather than enforcement, according to environmental advocates.\43\ One
example of weak enforcement involved the San Diego County sanitation
district, which caused 3,700 sewage spills, dumping 86 million gallons
of sewage into surface waters that flow into San Diego Bay in the past
7 years. The RWQCB assessed $5 million in penalties, and then settled
for $300,000, despite the fact that the sanitation district had avoided
$18 million in costs as a result of its long history of
exceedences.\44\
---------------------------------------------------------------------------
\43\ Telephone Conversation with Laura Hunter, Environmental Health
Coalition, San Diego, CA, 6/5/97.
\44\ Ibid.
---------------------------------------------------------------------------
While these data and cases represent only a sampling of the many
examples of States beating a retreat from their responsibilities to
enforce environmental laws, they illustrate that an alarming number of
States are increasingly allowing for strong influence by those being
regulated, while others are simply dismantling environmental
protections altogether. Moreover, when viewed in the context of
persistently high rates of environmental non-compliance, these findings
demonstrate that the current approach at the State level of compliance
assistance without the underlying deterrent of strong enforcement tools
at the ready has sent the message to industry that environmental
compliance is voluntary, not mandatory. As State agencies seek to pat
the backs of the entities they regulate, with an occasional slap on the
wrist, the result is that, for scofflaws, it pays to break the law, and
for law-abiding companies, the playing field is tilted against them.
State Self-Audit and ``Regulatory Innovation'' Legislation Further
Threaten Enforcement
We believe the evidence we have presented raises serious questions
as to the ability, or inclination, of the States to protect the
environment and the health and safety of their citizens. As for the
ability of States to carry out the mandates of Federal environmental
law, an increasing number of State officials make the legitimate
complaint that inadequate Federal funding significantly impedes the
implementation of Federal environmental programs.\45\ Nevertheless,
most State officials have chosen not to join citizen groups and
environmentalists in their call to improve environmental funding by
shifting the burden from the tax-payers to the polluters. Creating
polluter-pay mechanisms to fund enforcement and other environmental
programs would be practical and equitable in a time of fiscal
constraint.
---------------------------------------------------------------------------
\45\ U.S. General Accounting Office, EPA and the States:
Environmental Challenges Require a Better Working Relationship, GAO/
RCED-95-64, 4/3/95.
---------------------------------------------------------------------------
Nevertheless, many State officials have echoed the deregulatory
rhetoric of corporate interests that labels EPA, other Federal
agencies, and the Federal programs they oversee as harmful to economic
development, and have proceeded to create further, more serious
resource shortages by actively cutting their own environmental agency
staffs and budgets.
What is more, many States have pursued environmental policies that
reflect this anti-Federal sentiment and reveal that the problem of
inadequate State enforcement may have more to do with inclination than
ability. Although couched in the attractive language of
``flexibility,'' ``innovation,'' ``local control,'' and the like, these
policies seem aimed instead toward effectively minimizing protection of
the environment and public health in what has been characterized as a
``race to the bottom.''
For example, 21 States, have passed ``audit privilege'' and/or
``immunity'' laws that dangerously undermine both enforcement and the
public's right to know. Citizens groups in Idaho, Ohio, Colorado,
Michigan, and Texas have petitions pending before U.S. EPA asking the
agency to withdraw these States' authority to enforce Federal
environmental laws in light of the obstacles the audit laws potentially
pose to enforcement and victim compensation. Audit privilege laws,
which allow a company that discovers its own violations and corrects
them to conceal all internal evidence of its violations from the
government and citizens, keep vital information out of the public's
hands. Under audit immunity laws, a company's voluntary disclosure of
information regarding its violations immunizes the company from any
civil penalties.
The rationale behind these laws is to give incentives for more
thorough, voluntary internal reviews of corporate behavior.\46\
However, that rationale, like the rationale behind voluntary
compliance, is based on an assumption of good faith by polluting
companies and largely ignores the potential for abuse. By cloaking
routinely generated corporate information in secrecy, audit privilege
laws can make it more difficult for those outside, in communities
affected by the company's practices, from knowing what the company is
doing and holding it accountable. The sunshine provided by strong right
to know laws, combined with a genuine threat of firm, but fair
enforcement far better serves the goal of encouraging voluntary
compliance, as we have seen in New Jersey, where a strong water
enforcement program has companies taking their permits seriously.
---------------------------------------------------------------------------
\46\ Sanford Lewis, ``Feel-Good Notions, Corporate Power & The
Reinvention of Environmental Law,'' Good Neighbor Project for
Sustainable Industries, 1997.
---------------------------------------------------------------------------
In a most recent development, some members of the Environmental
Council of the States, a body of State environmental commissioners,
have drafted a legislative proposal to authorize States to develop and
implement ``regulatory innovation projects'' where any Federal standard
or requirement under the Clean Water Act, the Clean Air Act, the Safe
Drinking Water Act, or the Resource Conservation and Recovery Act could
be waived with no prior U.S. EPA approval.\47\ This draft bill, being
formally circulated among commissioners and informally circulated in
Congress, would also allow minimum Federal standards to be waived with
no requirement of superior environmental performance, and would
actually allow projects that increase the risk to human health or
further degrade the environment, as long as the increase is not
``significant.'' The bill also makes no guarantee of equal public
participation and accountability in the development of projects, and
would prohibit Federal and citizen enforcement of waived Federal
standards.
---------------------------------------------------------------------------
\47\ ECOS, ``The Environmental Regulatory Innovation Act of 1997,''
draft, April, 1997.
---------------------------------------------------------------------------
Proposals such as this are irresponsible and manifestly
inconsistent with the States' mandate to protect the environment and
the public whose health would be put at risk. Indeed, it is critical to
note that, in asserting our grave concern about the problem of poor or
nonexistent environmental enforcement and other deregulatory policies
by the States, our interest is not merely in achieving compliance for
compliance's sake. The widespread violations that occur in the vacuum
created by lax enforcement often have serious consequences for the
environment and public health.
Although the attorney for Smithfield Foods, Inc., the pork producer
recently held liable for illegal dumping into the Pagan River in
Virginia, claims ``[t]here's a difference between discharging of a
pollutant [over legal limits] and pollution,'' the facts in many cases
around the country demonstrate otherwise. To cite from just a few of
the examples discussed earlier, the illegal releases by the Sun
refinery in Tulsa repeatedly sent its neighbors to the hospital, the
MacDermid spill in Connecticut killed thousands of fish in the
Naugatuck River, and Lake Onandaga has been pronounced ``dead'' to
aquatic life after decades of violations by the Syracuse sewage
treatment plant. In fact, a scientific consensus is emerging that the
threats to human health and the environment posed by toxic pollution
are more insidious than once thought--toxic chemicals cause not only
cancer, but also reproductive, respiratory, endocrinological,
neurological, and developmental health problems in humans and other
animals.\48\ In addition, these problems can be passed from one
generation to the next.
---------------------------------------------------------------------------
\48\ See, for example, U.S. EPA, Draft Reassessment of Dioxin's
Toxicity, 1994.
---------------------------------------------------------------------------
Therefore, when we talk about poor enforcement and serious
violations, more than the legal status of the violator is at stake,
especially for those in communities downwind or downstream, and that is
why this is no time to be talking about relaxing environmental
standards and transforming our environmental law system into one of
voluntary compliance.
iv. despite need for strong oversight, federal environmental
enforcement has also declined
When enforcement works the way it is supposed to, providing a
credible deterrent to illegal conduct, States should be able to achieve
environmental compliance more efficiently, taking fewer actions and
imposing fewer penalties because permits are taken seriously. Under
these conditions, as we have seen in New Jersey, the State is able to
assume primary responsibility for the implementation of Federal
environmental laws, while U.S. EPA maintains a constructive, but non-
intrusive oversight role.
However, the Federal enforcement role we envision under the
alarming conditions I have described today is somewhat different. From
the perspective of the public interest, the eagerness States have
exhibited to dismantle many hard-won environmental protections
highlights our position that the Federal Government must not only
continue, but improve, its oversight role of maintaining strong
national standards. In recent years and months, several--but not
enough--examples of EPA fulfilling its oversight role emerge:
In Rhode Island, where the budget of State's Department of
Environmental Management (DEM) has been repeatedly reduced in recent
years and staffing has dropped by more than 100 employees in the past 2
years, the number of State employees managing wastewater permits has
dwindled to just two people.\49\ As a result, permits for most
treatment plants have expired and violations at others persist, causing
closed shellfish beds, destroyed habitat, and lost recreational
opportunities. Serious problems with DEM's RCRA, air, and pesticide
programs have also developed.\50\ In response, U.S. EPA's Region I
intervened earlier this year in Rhode Island's budget process, and has
been working with the State to rebuild DEM in order to avoid an EPA
takeover of the State's environmental programs. Recent reports indicate
an agreement is imminent and adequate staffing levels will be restored.
---------------------------------------------------------------------------
\49\ John Cushman, ``EPA Warns Rhode Island About Water Quality
Effort,'' New York Times, 2/4/97.
\50\ ``Rhode Island and USEPA Near Deal on State Environment
Budget,'' State Environmental Monitor, 6/2/97.
---------------------------------------------------------------------------
In 1995, in what was described as a ``rush to remove
barriers to industrial development,''\51\ the State of Mississippi
significantly slashed the budget and staffing of the State Department
of Environmental Quality (DEQ), resulting in an almost complete
collapse of the department's water enforcement program. Inspections
fell by a dramatic 96 percent, and expired permits in the State rose 64
percent from 1993. As a result, U.S. EPA Region IV was forced to take
over enforcement of industrial and municipal permits, inspection of
major permitees, and the drafting of some permits.\52\ Tough action by
EPA prompted the State to hire 30 additional personnel to enforce
pollution laws.\53\
---------------------------------------------------------------------------
\51\ ``EPA Asks What's In the Water,'' The Sun Herald, 9/95.
\52\ Robert McGhee, Acting Director of Water Management Division,
U.S. EPA Region IV, Letter to Barry Royals, Surface Water Division,
Mississippi DEQ, 8/9/95.
\53\ Charles Seabrook, ``U.S. Asked to Control Georgia Waters,''
The Atlanta Journal-Constitution, 1/11/97.
---------------------------------------------------------------------------
In Alabama, the Jefferson County sewer system has been
experiencing overflows and bypasses for at least 20 years. Despite
improvements taken by the county, the lack of attention from the State
DEM allowed the problem to grow worse. DEM never imposed any fines
against the county, despite the fact that over one billion gallons of
raw and partially treated sewage mixed with stormwater were discharged
into the Cahaba and Black Warrior creeks in recent years, causing five
incidents where residents were evacuated due to raw sewage flooding in
their homes. After two and a half years of negotiating, citizen
plaintiffs, supported by the intervention of the U.S. Department of
Justice, have secured a win-win agreement whereby the County will
develop a remedial plan and pay for a supplemental environmental
project to reduce stormwater polluted runoff into Cahaba and Black
Warrior streams.\54\
---------------------------------------------------------------------------
\54\ Beth Steward, Cahaba River Society Newsletter, 1997.
---------------------------------------------------------------------------
In Montana, where the State's water quality enforcement
program has been described as ``a toothless dog, snarling and lunging
at the end of a short chain,''\55\ EPA intervention in some cases has
also made a difference. From 1990-1994, of the 30 water violation cases
the State deemed severe enough to warrant action, fines were assessed
in only two, and problems persisted in more than half. In the case of
Meadow Gold Dairy, where Spring Creek was virtually destroyed by the
company's wastewater discharges, the State took nearly 1 year to take
formal action, and then the action was to give temporary approval of
the pollution due to threats that the company would shut down.\56\ The
same day in 1991, EPA filed a $5.2 million lawsuit, eventually
collecting $265,000 in penalties for the same violation. Two years
later, Meadow Gold again began applying its wastewater illegally. No
action was taken by the State.
---------------------------------------------------------------------------
\55\ ``Toothless, Montana's Water Police Choosing Not to Penalize
Most Polluters,'' Independent Record, 7/17/94.
\56\ Ibid.
---------------------------------------------------------------------------
With respect to Idaho, Michigan, Ohio, and Colorado, EPA
has maintained a strong position against these States' audit privilege
and immunity laws. In Idaho, when EPA notified the State earlier this
year that its audit privilege law would need to be changed before the
State could receive final approval to carry out the Clean Air Act, the
State legislature decided to allow the audit law expire at the end of
the year. In addition, EPA has taken a similarly strong stand in
Louisiana in the midst of a heated legislative battle surrounding a
particularly pro-business self-audit proposal, threatening to withdraw
the State's right to administer Federal environmental programs if the
law is enacted.\57\
---------------------------------------------------------------------------
\57\ Daugherty, Gambit, April 1997.
---------------------------------------------------------------------------
As these cases indicate, Federal Government intervention can play a
critical role in protecting minimum standards of public health and
environmental protection when States fail to fulfill their delegated
responsibilities. However, given the widespread nature of inadequate or
nonexistent State enforcement, EPA could be and should be doing more.
Despite cries of EPA ``overregulation'' by State officials, the EPA
enforcement presence, if anything, has dwindled. Again, the numbers are
illustrative:
While EPA Clean Air Act inspections of stationary
sources have increased, Clean Water Act inspections are down 31
percent, Safe Drinking Water inspections are down 42 percent,
Toxic Substances Control Act inspections are down 38 percent,
and pesticidspections are down 80 percent since fiscal year
1994. \58\
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\58\ U.S. EPA Office of Enforcement and Compliance Assurance,
January 1997.
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Similarly, Administrative Penalty Order Complaints
and Administrative Compliance Orders fll statutes are down
byercent since fiscal year 1994 \59\
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\59\ Ibid.
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Civil referrals from EPA to the Department of Justice
are down 31 percent for all statutes since fiscal year 1994,
with a 44 percent drop in Clean Water Act cases and a 50
percent drop in Clean Air Act cases. \60\
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\60\ Ibid.
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In the 10 States where EPA has retained
responsibility for issuing Phase I stormwater general permits,
EPA has issued permits to only 16 percent of the near 10,000
facilities potentially subject to storm water controls. \61\
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\61\ U.S. EPA Office of Enforcement and Compliance Assurance, 1997.
Thus, when viewed in the context of EPA's apparent embrace of
``devolution'' policies, illustrated by the 20 ``performance
partnership agreements'' EPA has signed with States giving them
increased responsibility for environmental enforcement, these declining
enforcement numbers show a waning Federal commitment to step into the
void when States turn their backs.
In addition, even regarding the audit privilege issue, EPA is
signalling a retreat. In a recent agreement reached with Texas, without
consultation with the citizen group petitioners, EPA gave its approval
in March to several proposed amendments to the State law. If the
amendments are enacted by Texas, the audit law would, nonetheless,
continue to hurt the public's right to know, silence whistleblowers,
and curb citizen enforcement under State law. Finally, despite the
angry response in some quarters to EPA's ``overfiling'' in the recent
Smithfield Foods case in Virginia,\62\ even the Environmental Council
of the States (ECOS) found in its own 1995 survey that EPA overfiling
was not a common occurrence, and that when it did occur, it was often
``prompted by a mutual belief that the Federal Government has an
enhanced opportunity for success in the action.''\63\
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\62\ ``Virginirm Fined $3.5 Million in Pollution Case,'' Waston
Post, 10/23/96.
\63\ ECOS Enforcement Survey, 6/1/95.
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In our analysis, then, the problem is not too great a Federal
presence, but not enough.
v. strong clean water enforcement is working in new jersey
Clearly, current State and Federal approaches to enforcement are
not working. Significant cuts in State enforcement budgets and
personnel, accompanied by compliance assistance approaches that rely on
little more than industry's good intentions, have failed to efficiently
achieve compliance as promised. To figure out what does work when it
comes to improving environmental enforcement, we need only look as far
as the State of New Jersey.
In 1990, New Jersey PIRG helped write and pass the New Jersey Clean
Water Enforcement Act.\64\ Some of the law's key provisions include
mandatory minimum penalties for serious violations and significant non-
compliance, requirements that penalties recover the economic benefit
gained from violations, strengthened citizen suit provisions, and
uniform monthly monitoring and reporting requirements for all
dischargers.
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\64\ N.J.S.A., 58:10A-14.1.
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The Clean Water Enforcement Act has been a remarkable success. The
New Jersey Department of Environmental Protection's (NJ DEP's)
assessment, and we agree, is that under the Clean Water Enforcement
Act, the deterrent value and the certainty of mandatory minimum
penalties has caused permittees to take their permits seriously.\65\ NJ
DEP's 1996 annual report states that compliance with permit limits and
reporting requirements has significantly improved since passage of the
Act.\66\ NJ DEP's numbers are worth a thousand words: since 1992, the
total number of Clean Water Act violations in New Jersey has dropped by
78 percent. According to one citizen suit attorney with extensive
experience in New Jersey, although there are still some problems with
underreporting violations, ``at least companies have NPDES permits on
tfront burner\67\
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New Jersey DEP, 1995 Annual Report of the Clean Wateforcement
Acarch 196
\66\ NJ DEP, 1996 Annual Report of the Clean Water Enforcement Act,
March 1997.
\67\ Telephone Conversation with Carolyn Pravlik, Esq., 6/6/97.
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At the same time, with dischargers more widely abiding by the law,
the number of enforcement actions naturally has declined as well. By
prompting the agency to take timely enforcement action, especially
against serious and chronic violators, the law ensures that problems
are addressed quickly and more effectively, thus reducing the average
amount and the total amount of penalties. Since 1992, enforcement
actions are down 67 percent. While penalties rose substantially from
1991 to 1994 as longstanding non-compliance problems were finally
addressed, total penalties are down 92 percent since 1994, and the
average penalty amount dropped 46 percent from 1993 to 1995 \68\
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\68\ NJ DEP, March 1997.
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Under this approach everybody wins: industry wins by paying lower
penalties, and by enjoying a level playing field while playing under
consistent game rules; the State wins by producing better compliance
more efficiently; and, most importantly, the public wins by having a
more accountable system, as well as a cleaner environment. Plus, the
program has been self-funding: enforcement is paid for primarily
through a fund made up of penalty dollars collected from violators.
Finally, when enforcement works as it does in New Jersey, the State
is able to assume primary responsibility for the implementation of
Federal environmental laws, while EPA maintains a constructive, but
non-intrusive oversight role. It is worth noting that in the 1995 ECOS
enforcement survey, New Jersey reported no cases of Federal overfilling
in Clean Water cases. ``All DEP enforcement programs enjoy an excellent
working relationshith EPA and do not see overfiling on cases by EPA as
a signant issue,'' \69\ the State said.
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\69\ ECOS Enforcement Survey, 1995.
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vi. the lautenberg-torricelli bill (s. 645): a solution
The success story in New Jersey should serve as a model for the
rest of the country. The Senators from New Jersey have introduced S.
645, legislation to replicate key aspects of the New Jersey Clean Water
Enforcement Act at the Federal level. U.S. PIRG, the State PIRGs, and
the members of the Clean Water Network strongly support this bill,
because it would bring certainty, predictability, and credibility to
Clean Water Act enforcement throughout the country. Specifically, S.
645 would do the following:
By establishing mandatory minimum penalties for
serious violations and requiring that all penalties recover the
violator's economic benefit, serious and chronic violations
will be deterred and permitees will take their permits more
seriously. Also, government accountability will be improved and
the playing field for businesses will be leveled.
By strengthening the right of citizens to enforce the
law themselves, communities will be better able to protect
themselves and make polluters pay for the pollution they
create.
By extending reporting and monitoring requirements
for dischargers, and by requiring the government to post signs
warning the public of polluted waterways and contaminated fish,
the public's right to know about water pollution in the places
they fish and swim will be fulfilled.
The time to address the environmental enforcement crisis is now. As
the Clean Water Act approaches its 25th birthday this year, we urge you
to support this important piece of legislation that will give States
and EPA needed direction and clarity so that they may work together, in
a constructive partnership, to realize the promise of this visionary
law.
Thank you very much for the opportunity to share my comments with
you today.
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