Rebuttal: EPA Enforcement and the Challenge of Change

Joel A. Mintz

Over the past few years, regulated industry's criticism of the U.S. Environmental Protection Agency's (EPA's) approach to enforcing environmental requirements has increased. Perhaps emboldened by shifts in Congress' composition, the Agency's industrial critics have argued that EPA's arm's-length approach to enforcement, with an emphasis on sanctioning violators and deterring other parties from committing violations, is now anachronistic and unneeded.

One such critic is Bruce M. Diamond, a former EPA enforcement official. In his recent Dialogue, Confessions of an Environmental Enforcer, Diamond advocated "real changes" in the way enforcement activities are conducted at the Agency.¹ He contended that EPA's deterrence-based approach to enforcing environmental statutes should be replaced "in many, probably most situations" with "less adversarial" approaches that put a premium on cooperation between the Agency and regulated entities.² Noting changes of circumstance since the formative days of EPA enforcement, Diamond decried "political, bureaucratic, and psychological impediments to change."³ While conceding that EPA's "traditional" enforcement activities have produced "much beneficial impact," and thus should not be completely abandoned, Diamond nonetheless contended that only "bold and comprehensive steps" away from such activities—and in the direction of greater governmental compliance assistance to regulated entities—can bring about a needed reformation of the environmental enforcement system.⁴

In substantial part, I disagree with Diamond's conclusions. For a number of reasons, in my view, a deterrent enforcement approach is at the core of an effective regulatory program. Moreover, such an approach is not necessarily a less efficient use of government resources than cooperative compliance assistance. Given the paucity of relevant records and statistics, no definitive comparison of the efficacy of these two governmental programs can be made.

At the same time, however, under appropriate circumstances, cooperative compliance assistance by EPA may have value. In addition, notwithstanding the Agency's chronic shortage of resources, EPA's deterrent enforcement efforts may be enhanced, at least incrementally, to improve both its effectiveness and its sensitivity to some concerns of regulated entities who have determined to "do the right thing."

In this Dialogue, I will set forth my reasons for believing that an even-handed, professional, deterrence-based approach to enforcement must remain central to the Agency's implementation of its statutory responsibilities. I will begin with a description of some of the changes that have taken place since EPA's enforcement program was initiated, as well as some long-existing but often overlooked Agency circumstances that affect its enforcement performance. Next, I will turn to the important question raised by EPA's industrial critics: has the Agency's deterrent enforcement become an outmoded, inefficient means of promoting environmental improvement? I will also consider the merits of closing EPA's enforcement meetings to the public, as some Agency critics have proposed. I will add some observations as to the limited, yet constructive role that cooperative EPA compliance assistance may play, at times, in encouraging environmental protection. Finally, I will suggest several cost-effective ways in which EPA's arm's-length enforcement approach may be improved without sacrificing its beneficial, deterrent impact.

Background: The Changed and Unchanged Context of EPA Enforcement

Much has certainly changed in the quarter century since EPA first began to enforce environmental laws. A fair evaluation of the usefulness of the Agency's traditional, deterrent enforcement approach requires keeping in mind the nature of the changes that have occurred at EPA, as well as some new and some long-existing aspects of the Agency's circumstances. Although a full account of the evolution of the Agency's enforcement approaches is beyond the scope of this Dialogue,⁵ several developments and trends bear mention.

First, the scope of federal environmental regulation, and the number and variety of regulated entities, has grown gradually and immensely. Since the early 1970s, Congress has directed EPA to establish a great many environmental standards.⁶ Moreover, in at least some industries and among some state and local governments, substantial progress has been made in remedying serious and significant environmental [26 ELR 10539] problems.⁷ A number of companies have created a new "infrastructure" of environmental managers charged with improving their organizations' environmental records. In some cases their diligent work, along with the efforts of their colleagues and coworkers, has resulted in genuine and needed improvements in environmental quality.⁸

The second relevant trend is that EPA's resources (for enforcement and nonenforcement work alike) have simply not kept pace with the ambitious requirements Congress has imposed on it. As the General Accounting Office (GAO) reported in March 1991:

In constant (1982) dollars, EPA's operating budget, which covers all its programs except for the Superfund cleanup program and construction grants for sewage treatment plants, went from $ 1.7 billion in 1979 down to $ 1.0 billion in 1983 and rose back up to $ 1.7 billion again in 1991.

Yet during this same period, EPA's responsibilities grew enormously. The 1984 amendments to the Resource Conservation and Recovery Act, for example, known as the Hazardous and Solid Waste Amendments, significantly broadened EPA's responsibilities for regulating the generation, treatment, storage and disposal of hazardous waste. The amendments also directed EPA to issue regulations for underground storage tanks. In 1986, the Safe Drinking Water Act was amended, requiring EPA to regulate 83 specific drinking water contaminants. In the same year, the Asbestos Hazard Emergency Response Act was passed, requiring EPA to set standards for responding to the presence of asbestos in school buildings, and to study the problems of asbestos in other public buildings. The 1980s also saw significant new responsibilities for the EPA under amendments to the Clean Water Act, the Federal Insecticide, Fungicide and Rodenticide Act, and Superfund legislation (in Title III, the Emergency Planning and Community-Right-to-Know Act).⁹

Regrettably, there is good reason to suspect that EPA's budget shortfalls existed even during the 1970s.¹⁰ Moreover, since the GAO's information was reported to Congress, the size of the Agency's operating programs budget has decreased yet again.¹¹

Third, in part as a result of its chronic and severe shortage of personnel and other resources, EPA has, until very recently, put little emphasis on keeping useful, internally accessible enforcement and compliance records. The Agency has recently begun to make some worthwhile improvements in its enforcement recordkeeping practices through the use of computer software specifically engineered to meet its needs. Nonetheless, in many cases, obstacles to a well-organized, efficient enforcement and compliance record system appear to remain.¹²

Fourth, EPA has given relatively scant attention to the training and career development of its enforcement attorneys and engineers. Although some sporadic efforts have been made in this regard, there are few signs that the Agency has reexamined or substantially increased the training and career growth opportunities it affords to its professional staff.

Finally, on a fairly consistent basis, many EPA engineers and attorneys have chosen to leave the Agency after several years to pursue more lucrative opportunities in the private sector. In part, this "turnover" is an almost ineluctable result of the relatively lower salaries of EPA professionals, after a few years of government service, compared to the salaries of their counterparts in private firms and companies. It may also stem from the poor working conditions under which at least some of EPA's employees (professional and otherwise) must labor, as well as the limited professional training and career development opportunities mentioned above. Whatever its causes, however, the very frequent replacement of EPA enforcement personnel has substantially denied the Agency a firm foundation of experienced professional staff, as well as a reliable "institutional memory" that it can rely on as it pursues its enforcement work.

It is against this backdrop of constraints, shortcomings, and internal and external changes that EPA's deterrent enforcement approach and proposed alternatives to it must be assayed.

"If It Ain't Broke …": Is Deterrent EPA Enforcement Truly Outmoded and Inefficient?

Notwithstanding its inherent controversiality, one of the most striking characteristics of EPA's arm's-length, deterrent enforcement program is its high level of success. As Kevin Gaynor has observed: "In fact, [EPA's] civil enforcement of many environmental programs is arguably quite good and may be the best kept secret."¹³ Similarly, the Agency's criminal enforcement program has had a significant impact on the behavior of regulated corporate officers. In the words of one respected private environmental attorney: "The fact that there is a serious threat of criminal enforcement out there for serious violations has certainly gotten people's attention in the private sector. It has had a vast impact."¹⁴

To the extent that the incidence and impact of environmental [26 ELR 10540] pollution has diminished in recent years,¹⁵ a good number of conscientious business managers, local government officials, and individuals certainly deserve to be commended. Nonetheless, it also seems reasonable to conclude that, in the words of no less staunch a critic of the Agency than Diamond, "EPA's traditional enforcement activities have produced much beneficial impact. There have been real environmental improvements and the enforcement program deserves much of the credit."¹⁶

Given this, one may well ask why a drastic change in EPA's deterrent enforcement methods would be urgently needed. In my opinion, the Agency's industrial critics have not, thus far, provided a sound and persuasive rationale for such a change.

One contention that EPA's opponents have made is that whatever its past shortcomings, the "regulated sector" has gradually altered its attitude toward regulatory compliance and environmental protection.¹⁷ Without firm supporting evidence, this notion is difficult to credit. In fact, given the extraordinary number and diversity of American businesses and communities—and the frequent changes that characterize some of them—any sweeping statement as to the "general attitudes" of the multitude of entities regulated by EPA must be viewed with skepticism.

Some (or even many) businesses may well have come to realize that, in the words of former EPA Administrator William D. Ruckelshaus, "environmentalism is here to stay" and that "paying attention to the environmental impact of technology or processes benefits the bottom line."¹⁸ On the other hand, others have undoubtedly not realized these things. Moreover, from the kepone contamination of the James River to the Love Canal and Bhopal, India, disasters to the Exxon Valdez oil spill, the still-recent history of environmental regulation illustrates that missteps by even a single company or its employees can do immense environmental harm. Thus, "general attitudes" of regulated entities, in and of themselves, may ultimately have little bearing on the overall impact and efficacy of environmental protection efforts.

In addition, even if one accepts the factual assumptions of EPA's enforcement critics regarding changes in "regulated sector attitudes," displacing or eliminating the Agency's deterrent approach in favor of compliance assistance or other "reforms" is not necessarily a logical response. As noted above, effective federal enforcement of environmental laws appears to have substantially encouraged many regulated entities to minimize or eliminate harm that they had been doing to the environment. Attitudes that have changed once may change again. The elimination or displacement of deterrent enforcement by EPA may well encourage entities that are presently complying with environmentally protective standards to backslide. Elimination of formal enforcement may also motivate presently noncomplying entities to continue to violate environmental standards. If that occurs, environmental protection will, over the long term, once again become a low priority for numerous entities with the capacity to pollute air, water, and land on a massive scale.

This grim scenario seems even more probable when one considers the thrust of EPA's "new partnership" with state environmental protection agencies. Under that approach, the Agency has encouraged (and deferred to) enforcement actions brought by state environmental protection agencies, rather than initiating independent federal enforcement cases, on the basis that the states have "primary" responsibility for enforcing environmental standards. In a number of states, however, enforcement litigation is rarely brought or threatened. Instead, state officials gain negotiating "leverage" over environmental violators by threatening to step aside and turn the enforcement case over to federal authorities who will, presumably, take a firmer stance when dealing with the regulated entity in question.

To the extent that EPA is no longer prepared to pursue deterrent enforcement, this "good cop, bad cop" technique will no longer be available to state enforcement officials. As a result, state agency representatives will be weakened in their settlement discussions with environmental violators, with long-term consequences for the effectiveness and credibility of state environmental enforcement programs.

A second argument advanced by industrial critics is that EPA deterrent enforcement is inappropriately harsh, unduly penalizing companies that have failed to comply with environmental standards despite strenuous, good-faith efforts to do so. This contention is exaggerated. In most, if not nearly all, cases in which regulated entities take prudent, reasonable steps to comply with environmental requirements, their efforts succeed in achieving or exceeding regulatory compliance.¹⁹

Regulated companies may not always like the particular standards they are asked to meet. Nor are they always sanguine about the amount of money they will need to spend to achieve and maintain environmental compliance. Nonetheless, it was my experience at EPA that once such companies have decided to do what is necessary to meet applicable environmental requirements, they generally do so effectively. Moreover, when good-faith mistakes do occur, EPA enforcement officials often will quietly (and appropriately) decline to pursue enforcement action against the regulated entity in question—particularly when that company's noncompliance did not result in an economic savings and is not contributing to substantial environmental harm.

EPA's industrial enforcement critics also miss the mark in describing the Agency's enforcement staff as rigid, defensive, self-serving bureaucrats whose preference for deterrent enforcement is principally motivated by a search for personal satisfaction.²⁰ This characterization understates the [26 ELR 10541] adaptability and reasonableness of many EPA employees who do enforcement work. It fails to reveal the constant and conflicting pressures on EPA's enforcement staff, the frustrations they very frequently endure, and the intrinsic difficulty and thanklessness of their work. It also overlooks the possibility that EPA officials who favor a continuation of deterrent enforcement at the Agency are defending, in principled fashion, an approach for which there remains an objective, ongoing need.

Another insupportable notion favored by opponents of deterrent EPA enforcement is that cooperative approaches are likely to produce environmental compliance more efficiently—and thus be more effective in protecting human health and the environment.²¹ In fact, there is no persuasive evidence that nonadversarial compliance assistance will accomplish the Agency's environmental mission with less expenditure of time and effort on the EPA's part than would result from a continuation of deterrence-based techniques for reaching the same goal.

As Diamond has candidly written:

In part because EPA has relied almost exclusively on punitive enforcement to encourage compliance, the Agency has no comparative basis for evaluating whether this is the best approach to improving environmental protection. Indeed, the Agency cannot say with any level of precision what impact its enforcement cases have had, either on compliance with environmental requirements or on the environment itself.²²

Moreover, to date, EPA's experience with nonadversarial alternatives to deterrent enforcement has been highly limited, and the impact of nonadversarial approaches has not been measured. Given this, it is difficult to credit any conclusion that the cooperative approach will encourage environmental protection more efficiently than a deterrent enforcement regime. In view of EPA's historically poor recordkeeping and the absence of reliable industry-wide compliance rate data, it seems more logical to conclude that the relative efficiency and effectiveness of deterrent enforcement and compliance assistance activities cannot be empirically shown.²³

Diamond is certainly correct that adversarial enforcement actions may require considerable EPA resources and, as he stated, "even a few hard-fought administrative or judicial cases can act as a major multi year drain on government resources."²⁴ It seems entirely plausible, however, that the fact that the Agency is prepared to pursue such cases vigorously will tend to encourage many entities that might otherwise be tempted to ignore environmental standards to make sustained efforts to comply with them. Similarly, outreach, education, and improved EPA guidance may assist a number of regulated entities in understanding how to correct existing environmental problems. Nevertheless, as noted above, to the extent such assistance supplants deterrent enforcement, instead of supplementing it, it may very well encourage regulated entities—whether presently complying with or violating environmental standards—to ignore or deemphasize their environmental responsibilities in the press of other work.

Should EPA Enforcement Be Closed to the Public?

Another preference of industrial critics of EPA enforcement is that enforcement-related meetings between representatives of EPA and regulated entities should be limited to those parties only, rather than opened to all interested members of the public. In his recent Dialogue, Diamond took this view, stating that "to require such an extreme degree of openness would render the meetings impractical and thoroughly inhibit useful communication."²⁵

My own experience in an EPA regional office in the late 1970s, however, was much to the contrary. At that time, the Agency's Region V had a policy of allowing any interested person to attend enforcement negotiation sessions. Usually no one chose to attend, aside from individuals who represented EPA, the regulated entity that was subject to the Agency's enforcement action, and the relevant state pollution-control agency. In some meetings, however, these parties were joined by representatives of labor unions (some of whom supported their employers' positions and some of whom did not) and representatives of environmental organizations (some of whom supported EPA's positions and some of whom did not). In all instances, the presence of those "outside parties" posed no practical problem for either EPA, the state, or industry. The communication that had to take place did take place. Rather than being impractical, the meetings that were held under these circumstances were often highly productive for all who attended.²⁶

Closed meetings have the intrinsic disadvantage (for government and industry alike) of seeming conspiratorial and inappropriately "cozy," even if they are not. In its meetings with regulated parties, EPA is doing the public's business with taxpayer monies. Unless there are strong reasons for the Agency to close its meetings, it seems fitting—as well as practically beneficial—for those meetings to be open to any person with an interest in attending them.

Cooperative Compliance Assistance: A Promising Innovation if Cautiously Approached

Given that deterrent enforcement efforts must remain at the heart of EPA's implementation of environmental mandates, the question remains what role cooperative compliance assistance programs should play. Until recently, the Agency has done little to provide regulated entities cooperative assistance in the form of education, technical assistance, compliance guidance, and praise for doing the right thing. Within reasonable bounds and under appropriate circumstances, [26 ELR 10542] such EPA assistance should be viewed as a legitimate, worthwhile aspect of the Agency's work.²⁷

During my own career at EPA, I found that in a small yet significant minority of instances, industrial and municipal noncompliance with environmental standards was simply a result of ignorance or honest misunderstanding. This phenomenon occurred most frequently in circumstances involving relatively small businesses or communities with few resources who, very often, had significant economic difficulties.

In many such situations, when environmental violations were brought to the attention of the parties involved, their reaction was, in equal measure, fear, embarrassment, and a desire to comply as quickly as possible. Representing EPA, I soon learned that under those circumstances, taking an assertive, adversarial approach was pointless and even counterproductive. Once informed of their compliance problems, the regulated entities involved were already motivated to resolve them. As long as EPA tactfully explained to them that the Agency fully expected them to do so, those parties usually moved to achieve full compliance swiftly.

In those kinds of situations—and, perhaps more importantly, before those situations arise—cooperative assistance appears to have real value. Nevertheless, if disbursed inappropriately or in excess, such assistance may undermine the deterrent impact of a firm, arm's-length enforcement effort. The key is for EPA to delineate Agency functions and responsibilities in such a way that cooperative assistance activities complement and supplement much-needed deterrent, adversarial enforcement efforts, instead of interfering with them.

The balanced, measured approach that is needed may be established—or at least made more likely—if the Agency adheres to a few simple principles. First, especially initially, most cooperative assistance efforts should be focused where they are most likely to be useful: on smaller businesses and communities that are subject to federal environmental requirements. In contrast with larger companies and local governments, smaller entities have fewer resources with which to keep track of (and comply with) applicable standards. In addition, they are often far less sophisticated than their larger counterparts with respect to appropriate techniques and strategies to achieve and maintain regulatory compliance. Given this, targeting EPA compliance assistance to smaller entities may well be a more "appropriate and effective" means for the Agency to protect the natural environment and public health than a program of cooperative assistance to the regulated sector as a whole.²⁸

Second, particularly in its earliest stages, EPA's cooperative assistance to regulated entities should be kept on a small scale, so as not to impair the effectiveness of the Agency's deterrent enforcement work. As one experienced EPA official has observed, inside of the Agency deterrent enforcement programs are "always a stepchild," in the sense that the criticism and controversy they generate often runs sharply counter to programmatic efforts by some EPA officials to build cooperative relationships with state and local officials and regulated businesses. To the extent that internally controversial deterrent enforcement activities are pitted against compliance assistance programs in intra-Agency competition for scarce resources, deterrent enforcement will surely face significant handicaps and formidable, determined foes. And insofar as a significant amount of resources that EPA had previously devoted to deterrent enforcement are set aside for use in compliance-assistance efforts, that fact will certainly be noticed outside the Agency as well as within it. This will preclude an important role for deterrent enforcement and will inevitably undercut the deterrent impact of any formal enforcement actions that the Agency will remain willing and able to initiate.

Third, on a limited, careful basis, EPA officials should be free to praise publicly regulated entities who are in compliance with applicable standards and whose environmental protection efforts are, in the Agency's professional judgment, exemplary.²⁹ In doing so, EPA would do well to be cautious and measured, if not parsimonious, in issuing its commendations. To the extent it praises regulated entities too frequently, its complimentary statements will be devalued. Moreover, the Agency must guard against creating a situation where it is viewed externally, as well as by its own staff, as having two missions: supporting the public images of regulated entities and protecting the environment. In such a situation the latter purpose will, in all likelihood, take a back seat to the former in the long term.

Fourth, as to new EPA regulations, cooperative assistance should receive more emphasis during the preenforcement stages of regulatory implementation than after new regulations have become enforceable. Such an approach will minimize, if not avoid, potential conflicts between EPA's cooperative-compliance assisters and those Agency personnel responsible for deterrent enforcement. It will also help regulated parties to implement successful environmental protection programs in a timely, proactive way, rather than "playing catch up" to accomplish (or reachieve) compliance amidst anxiety over the possibility of governmental enforcement proceedings and sanctions.

Finally, as to already enforceable environmental standards, cooperative assistance should be available, where appropriate, as a substitute for formal enforcement actions—at the discretion of EPA personnel—but only in carefully limited situations. Even though, as discussed above, EPA compliance assistance to regulated parties is likely to be most efficacious if it is provided before promulgated environmental requirements become enforceable, there may well be instances in which such cooperative assistance is or will be appropriate after that point as well. But to the extent that EPA actively helps regulated parties comply with mandatory standards that those parties are violating, it may well become more difficult for the Agency to maintain a credible even-handed deterrent enforcement effort. For example, if any compliance advice provided by Agency personnel is incorrect or misunderstood, it may give rise to an affirmative defense for the recipient of such advice in any subsequent enforcement action. In other instances, regulated [26 ELR 10543] parties who have willfully ignored EPA's good-faith compliance assistance may evade enforcement sanctions by misrepresenting the substance of the Agency's recommendations and/or the steps the parties took to conform with them. And most significantly, to the extent that many regulated parties have the impression that EPA will routinely substitute cooperative assistance for enforcement action, a number of these parties may well decide that it is not in their best interest to expend the effort and money required to achieve compliance.

The retention of EPA's current set of enforcement policies and guidelines, many of which have evolved over time as the Agency's collective enforcement experience has increased, will help avoid those kinds of problems. Those policies already allow EPA to exercise enforcement discretion in a number of cases. They also create a sensible, principled foundation for the fair and effective deterrent enforcement efforts that must remain central to the Agency's regulatory programs.

Cooperative compliance assistance to regulated entities is, indeed, a promising innovation. If implemented with restraint and sensitivity, it may further environmental cleanup while building needed goodwill for an embattled EPA. If used indiscriminately, however, it may negate the benefits and undermine the efficacy of EPA's enforcement efforts to date.³⁰

Can Deterrent Enforcement Be Improved?

As mentioned above, EPA's budget is grossly inadequate for the Agency's enforcement and nonenforcement programs alike. Nonetheless, beyond introducing the modest program of cooperative assistance to regulated parties discussed above, additional steps may still be taken by EPA's leadership, at relatively low cost, to upgrade the Agency's deterrent enforcement.

One such measure is improved training for EPA's professional staff. Given the high level of staff turnover that has historically plagued the Agency, as well as the complexity and challenge that inhere in enforcement work, a regular, sophisticated training program for newcomers to EPA's enforcement programs may well maintain or enhance the Agency's professionalism. As discussed, industrial criticisms of EPA's enforcement staff work appear exaggerated. Nonetheless, to the extent that enhanced training for EPA's enforcement staff can eliminate any appearance of what its critics have referred to as "imperiousness"³¹ —and otherwise improve the focus, efficiency, and professional detachment of the Agency's enforcement efforts—it will redound to the good of all. More significantly, perhaps, enriched staff-training efforts may compensate, at least in part, for the loss of needed stability and continuity that chronic enforcement staff turnover at EPA has historically wrought.

EPA's deterrent enforcement programs may also be enhanced with respect to enforcement recordkeeping practices. Through the use of computer data, the Agency has at long last begun to improve its ability to identify chronic environmental violators and to pinpoint industries and geographical areas in which increased enforcement effort is necessary. More such improvement is needed, however, as is a better way of measuring industry-wide compliance levels, if EPA's limited enforcement resources are to be employed where they will do the most good.

In addition, EPA's measures of enforcement success and achievement are in need of further refinement. Diamond is indeed correct that the Agency's traditional method of counting only the initiation of formal enforcement actions was unduly narrow.³² EPA's recent changes in the enforcement-success measures it employs, the so-called Reporting for Enforcement and Compliance Assurance Priorities System, or RECAP, are a definite improvement.³³ Nonetheless, the Agency would still do well to require its technically trained enforcement staff, as opposed to its regional counsel office and headquarters attorneys, to participate more fully in the preparation of "case conclusion data sheets" and other enforcement records.³⁴

At the same time, however, it should be recognized that aside from dismantling EPA enforcement or undercutting its deterrent effort, no improvement in the way EPA meets its enforcement responsibilities can be entirely cost-free. Resources that are allocated to better EPA enforcement staff training, enhanced enforcement recordkeeping, and improved measurement of enforcement achievement must, under current circumstances, be removed from other arguably worthwhile Agency projects. Thus, unless the overall level of EPA's operating budget is raised to reflect the true scope of its important public responsibilities, the prospects for permanent improvement in many facets of the Agency's work—including its enforcement programs—must remain in doubt.

At the conclusion of his provocative Dialogue, Diamond urged, with some force, that "EPA must learn to work with, rather than against, responsible members of the regulated community."³⁵ His point has merit. Nonetheless, it seems reasonable to urge those same responsible regulated [26 ELR 10544] parties to accept the legitimacy of the Agency's deterrent enforcement work, to understand the significant constraints EPA faces, to endorse needed increases in the Agency's budgetary appropriations, and to withhold support for proposals that will drastically diminish an enforcement program that has been a successful catalyst of needed environmental improvements for two and one-half decades.

Under appropriate circumstances, EPA compliance assistance to the regulated community may well prove helpful. Nonetheless, if it is accompanied by the demise of the Agency's deterrent enforcement efforts, many members of that same community may, in the long run, come to regard environmental protection as someone else's responsibility—with unwanted and unfortunate consequences for environmental quality.

Mr. Mintz is a Professor of Law at Nova Southeastern University Shepard Broad Law Center in Fort Lauderdale, Florida. From 1975 to 1980, he was an enforcement attorney and a chief attorney in the EPA's Chicago and Washington, D.C., offices. He received EPA's Bronze Medal for Commendable Service, as well as another Agency award, during that time. His most recent book is Enforcement at the EPA: High Stakes and Hard Choices (1995).

1. Diamond, Confessions of An Environmental Enforcer, 26 ELR 10252 (May 1996).

2. Id. at 10252.

3. Id. at 10254.

4. Id. at 10252, 10254.

5. For a more comprehensive description of the history of EPA's enforcement programs since 1971, see JOEL A. MINTZ, ENFORCEMENT AT THE EPA: HIGH STAKES AND HARD CHOICES (1995).

6. By 1993, one widely used compendium of environmental statutes included 1,326 pages. In addition, some 12,120 pages of the Code of Federal Regulations pertained to the environment. See Selected Environmental Law Statutes, 1993-1994 Educational Edition (1993) and 40 C.F.R. pts. 1-1517 (West Publishing Company ed., 1995).

7. The progress made in the 1970s in this regard was vividly described in U.S. EPA, NATIONAL ACCOMPLISHMENTS IN POLLUTION CONTROL: 1970-1980 (1980). Clearly, considerable further progress has been made since that time.

8. For a pragmatic discussion of how the work of these environmental managers may be most effectively approached, see FRANK FRIEDMAN, PRACTICAL GUIDE TO ENVIRONMENTAL MANAGEMENT (6th ed. 1995).

9. Observations on the Environmental Protection Agency's Budget Request for Fiscal Year 1992, Hearing Before the U.S. Senate Comm. on Environment and Public Works, 102d Cong., 1st Sess. (1991) (Statement of Richard L. Hembra, Director, Environmental Protection Issues, Resource, Community, and Economic Development Division, U.S. General Accounting Office).

10. In 1980, John Quarles, EPA's former deputy administrator, stated: "In the nine years of EPA's existence, its manpower has roughly doubled while its program responsibilities have been multiplied by a factor of twenty …. Today, it cannot perform its workload." Steven A. Cohen, EPA: A Qualified Success, in CONTROVERSIES IN ENVIRONMENTAL POLICY 179 (Sheldon Kaminiecki et al. eds., 1986).

11. In fiscal year 1996, Congress appropriated only $ 1.68 billion for EPA's Environmental Programs and Management (operating budget) account. House Panel Reports Fiscal 1997 Funding of $ 6.55 Billion for EPA, With No Riders, 27 Env't Rep. (BNA) 399 (June 7, 1996).

12. For a critique of the Agency's problematic initial attempts to bring together data from different environmental programs, see U.S. GAO, GAO/IMTEC-92-14, EPA'S MANAGEMENT OF CROSS-MEDIA INFORMATION (1992).

13. Kevin Gaynor, Too Many Cooks, ENVTL. F., Jan./Feb. 1989, at 9-10.

14. Interview with David Buente, Sidley & Austin, Washington, D.C., (Mar. 22, 1991).

15. See supra note 7.

16. Diamond, supra note 1, at 10252.

17. See, e.g., id. at 10254.

18. William D. Ruckelshaus, Stopping the Pendulum, ENVTL. F., Nov./Dec. 1995, at 25-26.

19. I do not wish to overstate this point. Credible observers have pointed out that the very complex regulatory requirements imposed by EPA's regulations under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA, and the 1990 Clean Air Act Amendments, Pub. L. No. 101-549, 104 Stat. 2399, available in ELR STAT. CAA, present formidable challenges for industrial environmental managers and their colleagues at facilities that have unusually complicated and variable production processes. Even in those exceptional instances, however, careful systematic in-house environmental protection programs seem likely to result in very substantial successful compliance with applicable environmental standards.

20. See, e.g., Diamond, supra note 1, at 10253.

21. See id. at 10254.

22. Id. at 10252-53.

23. This unfortunate situation makes it far more difficult for EPA to go about striking an appropriate balance between deterrent enforcement and cooperative assistance. It also makes it important for the Agency to make a sustained, serious effort to enhance its enforcement and compliance recordkeeping.

24. Diamond, supra note 1, at 10253.

25. Id. at 10255.

26. It may be that Diamond's experience at the Agency, either in its Region III office or at EPA headquarters, was different. If so, it seems incumbent upon him to describe the problems he experienced while representing EPA—and also to show that those difficulties were more typical than my own experiences (and also those of my colleagues in the Agency at that time) with meetings that were opened to interested persons.

27. See MINTZ, supra note 5, at 106.

28. EPA's Office of Enforcement and Compliance Assurance has recently issued a policy intended to provide small businesses with incentives to participate in compliance assistance programs or to conduct environmental audits and then promptly correct violations. See U.S. EPA, Interim Policy on Compliance Incentives for Small Businesses, 61 Fed. Reg. 27984 (June 3, 1996) (available from the ELR Document Service, ELR Order No. AD-2941).

29. For an EPA proposal of a voluntary program to encourage and publicly recognize environmental leadership in the manufacturing sector, see U.S. EPA, Environmental Leadership Program, 58 Fed. Reg. 4802 (Jan. 15, 1993).

30. There are some unsettling indications that in recent months, EPA headquarters and regional offices may have expanded the Agency's cooperative assistance efforts too quickly, to the detriment of deterrent enforcement programs. On the other hand, in the face of some criticism, EPA now appears to be planning and implementing new deterrent enforcement initiatives. It remains to be seen how much stress the Agency will place on cooperative assistance, and how much emphasis it will give to a deterrence-based approach, in the remainder of the Clinton Administration and thereafter.

31. Diamond, supra note 1, at 10255.

32. Id. at 10253. Nonetheless, although many of the enforcement measures that Diamond proposes to substitute for EPA's past "bean-counting" (including Agency-wide tabulations of the numbers of EPA training sessions held, compliance-assistance inspections conducted, compliance guidance documents issued, etc.) seem certain to place extraordinary emphasis on the expansion of compliance assistance, they may well minimize, if not eliminate, any deterrent effect of EPA enforcement. See id. at 10255. Like most people, EPA staffers tend to focus their attention on activities they receive credit for. Rather than encouraging the "carrot and stick" approach that he ostensibly favors, Diamond's proposed new "enforcement measures" thus seem more likely to encourage a "carrot only" approach, with minimal EPA attention to deterrence-based enforcement.

33. See U.S. EPA, OFFICE OF ENFORCEMENT AND COMPLIANCE ASSISTANCE, REPORTING FOR ENFORCEMENT AND COMPLIANCE ASSURANCE PRIORITIES: FY 1996/FY 1997 (1996).

34. For a more extensive analysis of the strengths and weaknesses of EPA's past measures of enforcement achievement, see MINTZ, supra note 5, at 119-125.

35. Diamond, supra note 1, at 10256.