TESTIMONY OF CONNECTICUT ASSISTANT ATTORNEY GENERAL JOSEPH RUBIN
TO THE UNITED STATES SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
AT OVERSIGHT HEARING REGARDING THE RELATIONSHIP BETWEEN ThE FEDERAL AND STATE GOVERNMENTS IN THE ENFORCEMENT OF THE ENVIRONMENTAL LAWS
JUNE 10, 1977

As the head of the Environment Department of Connecticut Attorney General Richard Blumenthal's office for the past seven 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 I, 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 three 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 I has moved away from such constant and intrusive monitoring to periodic overall reviews of states' enforcement efforts in federally funded programs. Region I completed a draft review of Connecticut DEP's enforcement programs about six 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 I and Connecticut, and I urge this Committee to continue to encourage the unfettered and unencumbered growth of these cooperative efforts.