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20 ELR 10327 | Environmental Law Reporter | copyright © 1990 | All rights reserved EPA's Environmental Enforcement in the 1990sJames M. StrockJames M. Strock is Assistant Administrator for Enforcement, U.S. Environmental Protection Agency. Peter Rosenberg, also of the Office of Enforcement, contributed significantly to this Dialogue and played a key role in developing the enforcement plan described in it. Environmental enforcement officials in the United States stand on the frontiers of law and science. As the federal agency that stands guard over the environment, the Environmental Protection Agency (EPA) must draw the line of enforcement at the boundaries of current knowledge about the ecosystem and use its enforcement authority to encourage compliance and bring violators to book. EPA has a vision of environmental enforcement in the future at the federal, state, and local levels. This vision includes credibly threatening law breakers with the certainty of punishment, while maintaining the integrity of the process through impartial treatment of members of the regulated community. This Dialogue discusses EPA's strategic vision for environmental enforcement for the next four years. EPA's enforcement program is sound and effective. The number of administrative orders and civil referrals and the level of penalty assessments — traditional measures of enforcement activity — have been at or near record levels each of the last three years. In fiscal year 1989, EPA undertook more than 4,000 administrative actions — an Agency record. (See Table 1.) It was the second highest year in Agency history for both civil referrals (364) and assessed penalties ($ 34.9 million). Fiscal year 1988 saw the highest number of civil referrals to the Department of Justice (372) and the highest level of assessed civil and criminal penalties ($ 36.8 million) in EPA's history. (See Table 2.) In addition,the criminal enforcement program — the Agency's strongest deterrent — has expanded significantly in recent years, producing 76 convictions in calendar year 1989. The Agency has also begun implementing its strategy to help meet President Bush's commitment that federal facility compliance rates become at least as high as those in the private sector. Just a year ago, EPA had only one hazardous waste cleanup agreement in place; now, there are more than 30, with twelve more in final negotiations. Table 1: EPA Administrative Actions Initiated (By Act) FY1972-FY1989
Despite these gains, EPA is committed to do more to meet the public's demand for more environmental and public health protection. President Bush and Administrator William K. Reilly are providing the leadership and budgetary resources to meet this challenge. Looking to the future, the administration intends to institutionalize more sophisticated decisionmaking in setting enforcement priorities and in the use of enforcement tools. To meet these needs, EPA's Office of Enforcement, working closely with the media compliance programs, recently drafted a multiyear enforcement strategy.1 It describes the steps the enforcement program will take to help achieve the Agency's environmental goals and objectives. It will be flexible and decentralized, and will rely heavily on the Regions and states for effective implementation within a comprehensive framework. It envisions a greater emphasis on the explicit selection of cases based on health and ecological risks that present cross-media environmental problems. The five-year strategy is built around major themes, which are discussed below. Strengthening the Institutional Enforcement Voice Environmental regulation succeeds when it is supported by credible, effective enforcement. A vigorous enforcement program is absolutely necessary for the overall credibility of the Agency.2 In turn, enforcement relies on precise and [20 ELR 10328] carefully crafted regulations and permits that clearly mark the line between compliance and noncompliance. Where a regulation is unclear, it becomes difficult for even well-meaning citizens to comply — and enforcement becomes much more difficult to execute. The Agency has not always paid enough attention to that linkage, sometimes making it difficult to judge whether a particular requirement applies to a particular facility. For example, the lack of specific recordkeeping and reporting provisions in the Underground Injection Control regulations developed under the Safe Drinking Water Act3 has hampered enforcement against owners and operators of well fields. Unclear regulations also hinder the enforcement process by limiting the opportunities and increasing the transaction costs for case development and litigation. To ensure that regulations will be enforceable from both a legal and practical perspective, the Office of Enforcement and the media compliance programs will become "up front" players in the regulatory development process. Regulations will be developed in conjunction with an enforcement response policy and implementation plan, and some rules could be made subject to enforceability reviews and "field testing" prior to promulgation. Smarter enforcement requires setting priorities. Therefore, program inspection and case development strategies will be based on such factors as reducing risk to human health and the environment, preventing pollution or minimizing waste, and preserving the integrity of the regulatory system. EPA's enforcement program will continue to emphasize its media-specific statutory and regulatory requirements, and the traditional measures of progress toward resolving serious violations will also be emphasized. These include definitions of "significant noncompliance"4 and "timely and appropriate enforcement response."5 To intensify its enforcement efforts, the Agency will develop special enforcement initiatives to direct additional enforcement resources toward environmental problems that may not be effectively addressed under the traditional Table 2: EPA Civil Referrals to the Department of Justice FY1972-FY1989
EPA's data on compliance and enforcement actions are located in separate computerized databases for each medium. These data must be analyzed together — or "integrated" — to reveal a facility's composite record. The Agency also has many other databases to draw upon. There are ambient data, manufacturing information, application and use data, land cover and land use data, and much other information. If integrated, they could aid in risk assessment and targeting. The Office of Enforcement is currently working on a project to "link" the Dun & Bradstreet Marketing Index (which provides information on corporate parentage and industrial sector codes) with EPA's Facilities Index System. When each media database is linked, the Agency will be able to associate compliance and enforcement data from these systems based on corporate structure, industrial sector, pollutants, and/or geographic areas. This capability should be on line by December 1991. Two conceptual approaches the Agency is developing to use database targeting are the geographic-based approach and the compliance-based approach. Each is discussed below. [] Geographic-Based Approach. Under a geographic approach, one or more programs could identify all polluting facilities in a specific ecosystem (e.g., the Chesapeake Bay). The programs would inspect the facilities to determine their compliance with regulations or permits and to take necessary enforcement actions to resolve noncompliance. Each of EPA's 10 Regional offices have identified and are currently conducting enforcement pilot projects, several of which emphasize a geographic approach. For example, Region V is conducting a multimedia effort focusing on southeast Chicago and northwest Indiana. Region IX is conducting a broad-based effort to protect San Francisco Bay and its associated wetlands. The development of the on-line Toxic Release Inventory database mandated by the Emergency Planning and Community-Right-to-Know Act6 will enhance EPA's capability to undertake pollutant-specific targeting and enforcement initiatives (e.g., the national pollutant discharge elimination system program may target chemical-specific toxic limits as they become effective in permits in fiscal years 1992 and 1993). [] Compliance-Based Approach. Historically, EPA's enforcement and compliance activity has been program- and Region-specific. Under a compliance-based approach, however, EPA will be able to identify patterns of noncompliance within or across media by particular corporations and their subsidiaries, including those with facilities in several EPA Regions or states. Several programs could then cooperate in a coordinated enforcement response to resolve noncompliance across all relevant statutes or media. Currently, the Office of Enforcement's National Enforcement Investigations Center is leading efforts in multimedia targeting. It has developed a multimedia noncompliance profile, which has identified 18 facilities as significant non-compliers in more than one media, suggesting potential candidates for enforcement actions. EPA's Regional offices are currently field testing these multimedia approaches. The analysis of the results will help EPA refine and extend their use. Region IV, for example, is combining geographic information with significant non-complier lists in order to target the data that consider both human health risk factors and facility compliance history. Similarly, Region III will address multimedia releases of hazardous substances that characterize sites for all media releases at one point in time and will then either concentrate on the most environmentally significant releases from each site or address all the releases together using all regulatory authorities. The goal of these special initiatives is to more fully concentrate enforcement resources and efforts toward resolving specific environmental compliance problems that might fall through the cracks of the traditional statute-specific/media-specific enforcement process. For example, the enforcement process could be used to help control currently unregulated air toxics. While addressing a SIP violation, the stationary air enforcement program could seek to control the unregulated air emissions through penalty credits. Screening Violations and Potential Cases Most EPA enforcement actions are — and will continue to be — handled administratively. In fiscal year 1989, for example, EPA initiated 4,136 administrative actions. (See Table 1.) However, EPA's goal is to ensure that it considers the best enforcement response to resolve violations, especially when they pose significant health or environmental risks. This assurance is also needed when violations require complex technical or multimedia responses, or involve potential precedents, large penalties, or have a significant impact on deterrence. In short, EPA intends to make sure that it develops the right "mix" of administrative, civil, and criminal cases in the enforcement program. To reach this level of assurance, each Region will develop a screening process to judge the "strategic value" of the enforcement action. This process will aid the decision whether a single-media or multimedia response is warranted and what form of authority should be used to address the violation. The process should involve coordination among the Program directors, Regional counsels, and criminal enforcement agents to assure that the best remedy is selected for a particular case. The screening process will help assure that a timely decision is made as to whether the case should go forward as a criminal case, both to make sure that resources are properly allocated and to maintain the appropriate independence of the criminal investigator. It is particularly important to identify cross-media and criminal enforcement issues early in the process so that timely resource decisions can be made. Not every violation will warrant such scrutiny. The programs will determine what classes of violations should be subject to a screening process, and each Region, working with the Office of Enforcement, will be free to develop its own screening mechanism. For example, after the air program has screened all volatile organic compound sources in nonattainment areas as part of an ozone initiative, the Region could develop a standing committee to decide on the enforcement response. The key point is that deciding whether and how multimedia enforcement is feasible should not rest solely with the Program that conducted the inspection and identified the violation — broader input is necessary. The Headquarters Compliance Programs and the Office of Enforcement will provide technical assistance and staff support to the Regions as they begin to implement this new approach in fiscal year 1991. Using Enforcement Activities Creatively Over the last several years, the Agency has experimented with nontraditional techniques to expedite or enhance compliance. For example, the Safe Drinking Water Program crafted a consent decree through alternative dispute resolution;7 the Air Mobile Sources Program used a "traffic ticket" approach to quickly resolve minor violations;8 and since 1986 EPA has included in enforcement settlements environmental auditing provisions, which have successfully identified root causes of noncompliance and helped to correct recurring or continuing violations at one or more facilities.9 The Agency expects to expand the use of these and other nontraditional authorities to "leverage" the environmental and deterrent effect of individual enforcement actions. Pollution prevention/waste minimization is one of the highest priorities Administrator Reilly has set for the Agency.10 The enforcement program will be a major tool to encourage efforts in this area. First, a strong enforcement program in and of itself deters pollution by creating incentives for industry to reduce its potential liabilities and response costs. Second, in addition to fostering an overall pollution prevention "climate," the enforcement process can be used directly against noncompliers to promote pollution prevention. The Agency is currently developing a policy for including pollution prevention conditions in Agency settlements.11 When conducting negotiations, the federal team may consider whether it is technically and economically feasible and appropriate to correct the violation through single or multimedia source reduction activities (e.g., reducing the source of emissions through a switch in the industrial process or by chemical substitution). Settlements can also be used to encourage the respondent to undertake pollution prevention activities. Although not directly related to the original violation, these activities provide collateral environmental benefits (e.g., a commitment to phase out the use of a specific pollutant over an agreed-upon period).12 While encouraging such settlement conditions where appropriate, the Agency's primary goal in an enforcement action is to resolve the violation as quickly as possible. Since the Agency can to a significant degree control the negotiations process, it will not allow a respondent's tantalizing — but ultimately, unrealistic — promise of pollution prevention to drag out negotiations and delay resolution of a case. Improving Relations With Other Federal Agencies and the States Because EPA and other federal agencies oversee some of the same industries and facilities, the Agency looks for opportunities to cooperate in advancing mutual compliance objectives. For example, EPA has a Memorandum of Agreement with the Internal Revenue Service through which EPA provides the Service with quarterly data on penalty assessments against violators of environmental laws.13 EPA provides similar penalty and compliance information to the Securities and Exchange Commission (SEC) in support of its review of material liabilities disclosure forms (10K forms).14 In turn, the SEC may send EPA disclosure information that could help it to focus on unreported environmental violations. Another cooperative Agency initiative is the joint Council created by EPA and the Occupational Health and Safety Administration (OSHA), which meets regularly to discuss operational and policy issues affecting the two agencies. In addition to this Agency-wide Council, the Office of Enforcement is presently working with Assistant Secretary Gernard Scannell to develop more formal cooperation, perhaps through a memorandum of understanding. EPA is exploring the feasibility of the mutual exchange of information regarding possible noncompliance. This would include cross notification about possible violations discovered during an OSHA or EPA inspection at a facility. The agencies are also considering joint inspections in areas of mutual interest (e.g., asbestos demolition and renovation, pesticide worker protection). The states play a fundamental role in the overall enforcement effort. Under the federal delegations process, states can have the lead in enforcing federal environmental requirements once they have established an "equivalent" enforcement program (i.e., state laws and authorities that are consistent with federal ones). In fiscal year 1988, the states conducted over 202,000 inspections, compared with 22,900 conducted by EPA inspectors and contractors. The Agency oversees and evaluates the states' programs to make sure their enforcement programs are operating satisfactorily. EPA has made significant progress in creating a sound federal/state relationship.15 But there is more to be accomplished. EPA plans to involve the states more fully in its strategy development and priority-setting efforts. The Agency will work with them to develop their own cross-media targeting and case-screening emphasis and capability. To accomplish this objective, EPA intends to increase its technical assistance, data sharing, and compliance training to states. EPA has already made its Basic Inspector Training Manual available to the states, and several Regions have invited state inspectors to participate in the course. EPA plans to do more of this kind of information sharing. EPA also plans to use the annual State/EPA Enforcement Agreements process — the formal mechanism through which EPA works with the states — to refine its oversight evaluations. Each year, the Regional programs meet with their individual states to review enforcement priorities and to negotiate specific enforcement goals, commitments, and activities in support of the enforcement of federal environmental statutes. These annual agreements will be used to discuss changes needed in inspection and enforcement priorities and in associated strategies to develop both more focused targeting and multimedia capabilities in the states. The agreements will also be used to identify additional state training or technology needs required to implement this enforcement strategy. This process will take on added significance as the roles and responsibilities of the states vis-a-vis the national government are reexamined in the coming years. Communicating Effectively About the Enforcement Program Effective communication about EPA's enforcement program can be a powerful deterrent to potential environmental law breakers. To get its enforcement message across to Congress, the media, the public, and the regulated community, EPA plans to develop better explanatory measures of enforcement improvement — beyond "the numbers" when possible — and to communicate such information accurately, clearly, and concisely. Because no single measure, taken alone, can provide an accurate "thumbs up" or "thumbs down" assessment of the enforcement program, the Agency is working to develop a series of useful indicators of environmental improvement from enforcement. Such indicators will range from disseminating compliance rates within targeted industries or sectors, to expanding the deterrent impact of large penalties through public announcements, to promoting pollution prevention activities included in settlement agreements. The Agency will also develop a greater research capability to analyze different compliance approaches to see what works and what does not and under what conditions, at both the state and federal levels.16 Vigorous enforcement of environmental laws requires highly qualified legal and technical personnel. The Agency has taken an important first step in this direction by [20 ELR 10332] developing its Inspector Training and Development Program, which began last year. Over the next five years, the Agency intends to develop a comprehensive enforcement training capability. For starters, the Agency's compliance training program will continue to grow. Inspectors must be able to recognize and document more complex violations, including those that could be developed into cross-media cases. Attorneys must be aware of all appropriate enforcement authorities, such as the potential use of "imminent hazard" or other emergency authorities to address high-risk violations, including situations where multimedia violations can be halted through the use of emergency provisions in a single statute. Various categories of enforcement personnel should also receive appropriate joint training to increase their understanding of their roles, and the roles of others, in the overall enforcement process. This entails training inspectors, technical case development officers, investigators, and prosecutors in all phases of enforcement. The goal is to provide introductory training with an overall multimedia, multidisciplinary perspective to enforcement. Another objective is to work with each Agency program office to provide additional specific legal and technical training to assure that everyone has the knowledge and skills necessary to do their jobs. EPA's strategic plan for enforcement is ambitious. Its implementation, which has already begun, will not be accomplished overnight. It requires the Program Offices, Regions, and states to adopt a new "mindset." It also requires the joint development of more sophisticated mechanisms for Regional and state oversight. The result — a comprehensive guide for both media-specific and cross-media enforcement —will serve well the Agency's broader environmental goals. EPA's strategic plan for enforcement will provide a lesson for the regulated community, much like the lesson a preacher learned while walking in the woods. Stumbling off the trail, the preacher found himself three feet from a huge, hungry bear. He immediately consulted his maker, and was amazed at what he saw next. The bear, transfigured by a sunbeam that illuminated its face, gazed into the sky and clasped its paws together earnestly. "Thank goodness," the preacher exulted, "a prayerful, compassionate, and merciful bear!" Unfortunately for the preacher, the bear was indeed offering a prayer: "For whatwe are about to receive, we thank thee!" For those who stumble off the road of responsible environmental citizenship, the message from EPA enforcement should be clear: The bear is hungry. 1. Long-range strategic planning has been of paramount importance to both Administrator Reilly and Deputy Administrator F. Henry Habicht. Last summer, they directed all media programs to develop strategic plans to describe "where they want to be by 1995 and how they plan to get there." Recognizing the vital contribution of enforcement to this effort, Deputy Administrator Habicht directed the Office of Enforcement to build upon these media plans by developing a comprehensive, cross-cutting enforcement strategy for the Agency. EPA, Enforcement Four-Year Strategy Plan: Enhanced Environmental Enforcement for the 1990s (draft). [The final plan was distributed in June 1990. It is available upon request from the Office of Enforcement.] Note that EPA's organization includes technical compliance offices under the jurisdiction of the media-specific assistant administrators, as well as legal enforcement offices under the jurisdiction of the assistant administrator for enforcement. 2. Administrator Reilly emphasized this point during his January 31, 1989, confirmation hearing. He stated that "aggressive enforcement . . . is the key to an effective EPA and a clean environment." He has also responded to a query about the Superfund program by answering that "a strong enforcement program . . . is vital to the integrity of the Superfund program to encourage voluntary cleanup of sites. "This remark applies equally to all of EPA's programs. See Nomination of William K. Reilly, Senate Environment and Public Works Committee Hearing, Jan. 31, 1989, at 24, 150. 3. 42 U.S.C. §§ 300f-300j-26, ELR STAT. SDWA 002-024. 4. Each Program defines annually the most serious types of violators or violations that make up their priorities for inspections and enforcement (although the specific terminology, such as "significant noncompliance," "significant violator," and "high priority" violator may vary among programs). The concept behind significant noncompliance helps assure that the Programs devote their resources to identifying, tracking,and resolving the most serious environmental violations under their respective statutes. 5. EPA's revised Policy Framework for State/EPA Enforcement Agreements (Aug. 25, 1986) describes the concept of "timely and appropriate enforcement response" in detail (pages 11-14). [The policy is available upon request from the Office of Enforcement.] It is a management tool designed to assure that violations are dealt with expeditiously and with adequate sanctions. The underlying concept is escalation of the enforcement response once a violation is detected. If the violation is not corrected within a specific timeframe defined for each Program, the Agency will initiate a formal enforcement action, ranging from issuance of an administrative order to referral of a civil judicial action, which almost always includes a penalty. 6. Superfund Amendments and Reauthorization Act of 1986, tit. III, 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA 002-012. 7. There are several types of alternative dispute resolution techniques. One, which involves using third-party experts to help the Agency and respondents reach an appropriate settlement, is most useful in reaching consensus on more complex scientific or technical, as opposed to legal, issues. 8. Section 113(d)(3) of the Senate-passed Clean Air Act revisions would statutorily authorize the Agency to set up an administrative "field citation" program through regulation. S.1630, 101st Cong., 2d Sess. (1990). 9. EPA, EPA Policy on the Inclusion of Environmental Auditing Provisions in Enforcement Settlements (GM-52) (Nov. 14, 1986). The pending Clean Air Act amendments would require facilities to certify that they are in compliance with all applicable regulations and permit conditions, similar to the discharge monitoring reports required under the Clean Water Act, subject to sanctions for false or improper certification. Environmental auditing would be one way for enterprises to meet such self-certification requirements. 10. W. Reilly, High Hurdling Through the Environment: Expectations for the Next Four Years, (Mar. 16, 1989) (keynote address at an annual meeting of the National Wildlife Federation). Cf. Administrator's Overview to the Agency's FY 1991 Operating Year Guidance (issued March 1990); EPA, Pollution Prevention Policy Statement, 54 Fed. Reg. 3845 (1989) (draft) (currently being revised for final publication). 11. The workgroup includes representatives of the media compliance offices and is chaired by the Office of Enforcement. Interim draft policy is scheduled to be distributed to the Regions later this year, and the programs and Regions will seek to incorporate pollution prevention conditions in appropriate settlements on a pilot basis in fiscal year 1991. 12. The Agency's penalty assessment and mitigation policy is contained in A Framework for Statute-Specific Approaches to Penalty Assessments: Implementing EPA's Policy on Civil Penalties (GM-22) (Feb. 16, 1984). ELR ADMIN. MATERIALS 35073-81. 13. The Memorandum of Agreement was concluded on January 9, 1990, under the signatures of former Administrator Lee Thomas and IRS Commissioner Lawrence Gibbs. Under the terms of the Memorandum, EPA provides the Service with the names and addresses of violators who have been assessed final penalties exceeding $ 5,000. 14. At SEC's request, EPA provides quarterly data on all criminal penalty assessments, civil penalty assessments exceeding $ 100,000, and the names of violators on the List of Violating Facilities (contracting listing) and the list of potentially responsible parties on the CERCLA (Superfund) and RCRA (corrective action) dockets. 15. For example, the Agency's Policy Framework has defined seven oversight criteria for assessing "good" performance by a state: (1) clear identification of and priorities for the regulated community; (2) clear and enforceable requirements; (3) accurate and reliable compliance monitoring; (4) high or improving rates of continuing compliance; (5) timely and appropriate enforcement response; (6) appropriate use of civil judicial and administrative penalty and other sanction authorities to create deterrence; and (7) accurate record keeping and reporting. 16. This is an area of concern for state and congressional observers, as well as EPA. For example, Senator Joseph I. Lieberman (D-Conn.), a former state attorney general, has posed thoughtful questions concerning how to measure or evaluate the "success" of enforcement actions, and the performance of the enforcement program in general, beyond counting the number of enforcement actions or the total of the penalties assessed. 20 ELR 10327 | Environmental Law Reporter | copyright © 1990 | All rights reserved |