STATEMENT OF CHRISTOPHE A.G. TULOU, SECRETARY
DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL
BEFORE THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
JUNE 10, 1997

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 of 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 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% 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% 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%. Within 180 days, 100% 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 III-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.