Statement Mark Coleman
Oklahoma Department of Environmental Quality
June 10, 1997

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 Mac 23 about two 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 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 significant~ly reduced. Thank you for your efforts in this regard and for inviting me to represent the ~views of the States.