Thank you, Mr. Chairman, for the opportunity to testify on the Environmental Protection Agency's (EPA) enforcement and compliance assurance program and EPA's enforcement relationship with the states. Today's hearing is very timely as these two issues have received a great deal of attention this past year. I believe that this attention is entirely appropriate, since effective environmental protection requires not only a strong federal enforcement presence, but also a solid, dynamic EPA-state partnership that can adapt to new and changing environmental challenges facing this country at both the local and national levels.
I would like to talk about the two fundamental principles that guide EPA's own enforcement approach and the agency's work with the states. These two principles are accountability and flexibility.
II. ACCOUNTABILITY TO ENSURE ENVIRONMENTAL COMPLIANCE
Accountability is the central part of EPA's enforcement and compliance assurance program. By accountability, I mean that the public expects the regulated community to obey the law and fully comply with applicable regulations and also expects EPA to take tough, but fair action against those who fail to do so. We also know that regulated entities that comply with environmental requirements expect, and rightly so, EPA to hold noncomplying entities accountable for violations that may place the violators at a competitive advantage.
EPA ensures accountability by maintaining a strong enforcement program that includes bringing criminal, civil, and administrative actions against violators. A strong enforcement program punishes wrongdoers, deters potential violators, brings actual violators into compliance, and can ensure that damage to the environment is rectified. In a March 1996 report, the General Accounting Office emphasized the important deterrent role of penalties:
[P]enalties play a key role in environmental enforcement by deterring violators and by ensuring that regulated entities are treated fairly and consistently so that no one gains a competitive advantage by violating environmental regulations.
Water Pollution: Many Violators Have not Received Appropriate Enforcement Action (GAO/RCED-96-23, March 1996). See also, Environmental Enforcement: Penalties May Not Recover Economic Benefits Gained by Violators (GAO/RCED-91-166, June 1991).
The deterrent value of established enforcement methods has also been confirmed by a recent study undertaken by EPA's Pollution Prevention Policy Staff and co-sponsored by the U.S. Departments of Energy, Defense, and Commerce entitled Study of Industry Motivation for Pollution Prevention. The purpose of the study was to improve the understanding of federal agencies about how environmental issues influence core business decisions. Based on information from more than 1000 business people representing randomly-selected lithographic printing companies and larger manufacturing companies reporting on the Federal Toxics Release Inventory (TRI), the study showed that environmental enforcement actions were among the most important factors in getting both TRI respondents and printers to consider environmental issues in the performance of their duties.
EPA has a firm commitment to a strong enforcement program. As shown in our 1996 Enforcement Accomplishments Report, we referred a record 262 criminal enforcement actions to the Department of Justice (DOJ), as well as 295 civil cases - up 38% from 1995. We also assessed a record $76.6 million in criminal penalties and another $66.2 million in civil penalties - up 90% from 1995. Our combined criminal, civil judicial, and administrative penalties for 1996 were the highest in the history of the agency at more than $172 million. Significantly, EPA was able to measure for the first time the environmental results of these enforcement actions. This data includes types and amounts of pollutants reduced as a direct result of EPA's 2,500 enforcement actions taken in 1996, the environmental benefits and impacts of those completed actions, and the types and amounts of actions taken by regulated entities.
Indeed, the report shows that we are focusing our efforts on the most serious pollutants and health risks, making the polluter pay for noncompliance, and securing settlements that have a direct, positive impact on public health and the environment. For example, during 1996 polluters spent almost $1.5 billion on correcting violations, cleaning up hazardous waste sites and/or taking additional steps to improve the environment or prevent future problems. Our settlements also resulted in significant aggregate reductions in the amount of pollutants discharged into the environment, including nearly 200 million pounds of carbon monoxide, 16.6 million pounds of lead, and 7.7 million pounds of asbestos. The report also punctures the myth that EPA pursues only so-called "paper" violations that have no real public health or environmental impacts.
Our commitment to strong enforcement is also reflected in the efforts of our criminal enforcement program. Our Office of Criminal Enforcement, Forensics, and Training (OCEFT) will soon have 200 specially trained criminal investigators assigned to area offices in 36 cities across the country to work directly with local enforcement agencies in communities at greater risk of environmental crimes. Recognizing the critical importance of cooperation with state and local law enforcement agencies, OCEFT special agents now participate in more than 90 environmental crimes task forces nationwide with federal, state and local law enforcement agencies to share information, establish local priorities, and pursue criminal environmental violations. Since 1992, EPA has participated in 644 joint criminal investigations with state and local law enforcement personnel. OCEFT also devotes significant resources to the training of law enforcement and regulatory personnel from states and cities across the country.
We are building upon these successes through our National Performance Measurement Strategy. This strategy is developing an enhanced set of performance measures for our enforcement and compliance assurance program. The measures will be used to supplement our established output measures (i.e., number of civil and criminal cases referred and amount of penalties assessed) with additional outcome measures to better assess the status and trends of regulatory compliance and environmental improvements resulting from our enforcement and compliance assurance activities.
So far, we have held two successful public meetings in Alexandria, Virginia and San Francisco, California, where we heard from state environmental agencies and state attorneys general, other federal agencies, environmental groups and environmental justice advocates, regulated companies and industry associations, academic experts, and Congressional staff about their ideas for measuring the effectiveness of environmental enforcement and compliance assurance programs. We are following up on these two meetings with a series of more focussed discussions with different stakeholders. EPA will conclude these meetings in mid-September at a "Capstone" conference with a cross-section of stakeholders to identify common understandings, areas of agreement, and unresolved issues. Finally, EPA will develop a report of findings and an implementation plan with a schedule by October of 1997.
III. FLEXIBILITY TO PROMOTE ENVIRONMENTAL COMPLIANCE
Along with accountability, flexibility is the other principle at the foundation of our enforcement program. Flexibility is not only necessary to find new and innovative ways to achieve compliance -- for there is often more than one way to comply -- but is also necessary to make the most of limited government resources and target efforts more efficiently on the country's most urgent health risks and environmental problems.
Flexibility is a key part of EPA's enforcement and compliance assistance program. In fact, the primary purpose of the reorganization of EPA's Office of Enforcement into the Office of Enforcement and Compliance Assurance (OECA) in 1994 was to institutionalize Administrator Browner's conviction that effective environmental protection must include a range of compliance assistance tools in addition to established enforcement methods. The reorganization was more than just moving boxes within an organizational chart; it was a vehicle for ensuring that we consider the best and most effective ways to achieve and maintain compliance. Consistent with this approach, and the Clinton Administration's high priority on reinventing environmental regulation, EPA has launched a number of compliance assistance programs and activities over the last few years, including our Compliance Assistance Centers, Environmental Leadership Pilot Program, Project XL, Common Sense Initiative, and Sector Notebooks. OECA is playing a key role in all of these efforts.
EPA's Compliance Assistance Centers
In partnership with industry, academic institutions, environmental groups, other federal agencies, and the states, EPA has established its national Compliance Assistance Centers. The purpose of the centers is to improve compliance by increasing awareness of the pertinent federal regulatory requirements and providing information that will help to achieve compliance. The centers accomplish this by serving as the first place that businesses, trade associations, and other interested parties can go to get comprehensive, easy to understand compliance information.
So far, Compliance Assistance Centers have been established for four industry sectors: printing, metal finishing, automotive services and repair, and agriculture. Although the centers have not been in existence for very long, they are already getting a lot of use. For example, the National Metal Finishing Resource Center, which began operating as a pilot in April 1996, has had more than more than 1354 registered users to date. The Auto Service and Repair Center, opened in June 1996, has received a total of 130,000 hits to its home page. OECA is now working on four new centers that will assist municipalities, the transportation industry, small chemical manufacturers, and manufacturers of printed wiring boards.
The Environmental Leadership Program
EPA has promoted a systematic approach to managing environmental issues and encourages environmental enhancement activities through the Environmental Leadership Program (ELP). For a facility to qualify for the initial phase of ELP, EPA looked at several criteria, including the facility's systems for monitoring and maintaining compliance with environmental laws, relationship with its employees, and involvement with the surrounding community. EPA also examined the company's investment in environmental enhancement activities, such as environmental restoration, product stewardship, or additional pollution prevention efforts.
During the one year pilot phase, which ended in August 1996, ten private companies and public utilities and two federal facilities tested the design of specific elements of the program. ELP pilot participants represented such industries as manufacturing, chemical, printing, pulp and paper, and solid/hazardous waste disposal.
The anticipated benefits of a full scale ELP for facilities would include recognition as an environmental leader, reduced and/or modified discretionary inspections, and a limited correction period for instances of noncompliance as long as certain conditions are met. Potential benefits to the environment include increasing the number of activities that go beyond compliance with existing environmental requirements and encouraging the implementation of best practices related to self-monitoring and pollution prevention activities.
An acronym standing for "excellence and leadership," Project XL allows facilities and communities to pilot environmental activities that produce greater environmental protection than what would be achieved from conventional compliance measures, and often at less cost. In return, EPA provides relief from certain regulatory requirements, as agreed between EPA, the state, and the project sponsor in consultation with other stakeholders. Thus, the XL program gives participants the flexibility to develop common sense, cost-effective strategies that will replace or modify specific regulatory requirements, on the condition that they produce greater benefits.
There are three projects underway to date, and EPA-proposal teams are developing final project agreements for eleven more projects.
Common Sense Initiative
The Common Sense Initiative (CSI) represents a new approach for creating policies and environmental management solutions that relate to whole industries. It is an experimental effort to increase the role of collaboration and consensus into the environmental protection process and to address environmental problems in a more holistic way. The goal is to encourage the development and creation of innovative solutions to today's environmental problems. Six industries are laboratories for testing CSI concepts: Automobile Manufacturing, Iron and Steel, Metal Finishing, Computers and Electronics, Printing, and Petroleum Refining.
Sector notebooks are designed to serve as a resource guide for learning about specific industries and their environmental issues. In October 1995, OECA released profiles of 18 selected industries. Included in each notebook profile is a description of the industrial processes used, pollution outputs, pollution prevention opportunities, applicable federal statutes and regulations, past compliance history, and compliance assistance information. More than 50,000 printed and electronic copies have been requested and distributed so far to states, locals, individual facilities, federal agencies, foreign governments, trade groups, and environmental organizations. Several other industries have asked EPA to produce notebooks for their industries so that regulators and compliance assistance providers can become more knowledgeable about their industry. EPA is now in the process of developing Notebooks for an additional eight sectors.
In addition to these activities and programs, EPA has issued policies to promote environmental compliance in small businesses and communities and, as described in more detail below, issued its self-disclosure policy in 1996 to give businesses a real incentive to self-audit, disclose, and correct violations.
Taken as a whole, these activities and policies demonstrate the agency's strong commitment to a flexible, creative compliance assistance program. They are tremendous opportunities for the agency to improve its own operations, for the regulated community to improve its relationships with the public, the government, and the environment, and for the public to be assured that we are upholding our responsibilities for protecting public health and environment. Ultimately, this flexible regulatory approach enables the agency to be more proactive and strategic in response to compliance problems.
However, it is important to emphasize that the key to the success of these compliance programs is having a strong enforcement program as a base. This base provides a real incentive for companies to participate in these compliance assistance programs, because it helps assure them that they will not be put at a disadvantage to those who ignore their environmental obligations. Further, it assures the public that special deals are not being cut and that the regulated community remains beholden to the law.
IV. THE EPA-STATE PARTNERSHIP
As stated earlier, effective environmental regulation requires a strong EPA-state partnership. Most federal environmental statutes recognize the importance of this partnership by giving to authorized or approved states the primary responsibility for implementing and enforcing federal programs. This framework provides states the opportunity to craft new and innovative solutions to address local health risks and environmental problems. But these statutes also recognize the necessity and importance of the federal government's role and give EPA the authority and responsibility to establish baseline national standards for public health and the environment and ensure that these standards are implemented and enforced fairly and consistently in all the states.
Therefore, EPA works to ensure that citizens in all our states are afforded a base level of protection, leaving individual states free to establish and implement more stringent, but not less stringent, environmental standards. In addition, EPA takes enforcement action in cooperation with the states or on its own, when necessary, to prevent the creation of pollution "safe havens" in lax states, and to maintain a level playing field by protecting companies in states that comply with environmental requirements from being placed at an economic disadvantage to those companies in other states that do not. EPA's approach to its state partners follows from these statutory principles as well as the principles of flexibility and accountability that guide its own regulatory programs.
Flexibility with the States
EPA is pursuing its policy of flexibility with the states through the National Environmental Performance Partnership System (NEPPS). Established by the Administrator and state environmental program leaders in May of 1995, the NEPPS provides a new process by which EPA and the states can work together to establish joint national and local environmental priorities and then integrate and focus resources to best address these priorities. These priorities will then be incorporated into our Performance Partnership Agreements (PPA) and Performance Partnership Grants (PPGs) with the states. OECA is working with the regions and the states to incorporate enforcement and compliance assurance priorities into these agreements. In addition, EPA and the Environmental Council of States (ECOS) have recently formed a work group to help facilitate these efforts and address major enforcement issues between EPA and states. The first meeting of this work group, chaired by Mark Coleman, Executive Director of the Oklahoma Department of Environmental Quality, and myself, was held on May 23 in Arlington, Virginia.
As part of the NEPPS process, EPA and ECOS have been working to develop proposed core performance measures for state enforcement and compliance assurance programs. These measures would be used to monitor the performance of enforcement actions to deter noncompliance and the performance compliance assistance and incentive policies. The proposed measures utilize both output measures and outcome measures to track the performance of state enforcement and compliance assurance programs. EPA believes the proposed measures will ensure accountability to the pubic and allow EPA and the states to begin measuring the effectiveness of alternative approaches to compliance. EPA is continuing to work with ECOS to put these measures in place for the fiscal year 1998 cycle of PPAs.
The next step in this NEPPS process is to reduce the reporting burden placed on states. To meet this goal, EPA and ECOS are developing a set of principles for data reporting. These principles will be used to evaluate the need for current and future reporting requirements and eliminate obsolete and unnecessary reporting requirements, while maintaining or strengthening the data reporting requirements necessary to evaluate compliance trends nationwide. EPA and ECOS are examining efforts underway in several Regions to reduce reporting and will ask them to examine some of the reporting requirements they suspect are not necessary.
The Necessity of Strong State Enforcement Programs
Just as EPA is committed to maintaining a strong federal enforcement program, we expect states to have strong enforcement programs. Strong state enforcement programs are essential to ensure environmental protection nationwide; further, pollution does not recognize state boundaries and many major companies are no longer regional, but national in scope and operation.
As I said earlier, there has been a lot of attention focused recently on the EPA-state relationship. In particular, there has been some controversy surrounding the impact of state audit laws on authorized programs and EPA's national response to the Inspector General report in Pennsylvania. EPA's response to these issues is consistent with the general views I have just expressed. This means that while the agency is working with the states to promote compliance and increase the flexibility in the implementation of their authorized programs, EPA still expects states to hold violators in their jurisdictions accountable by maintaining and utilizing an adequate enforcement program.
Impact of State Audit Privilege and Immunity Laws on State Enforcement Authority
Regarding state audit laws, we recognize that states may find different ways to encourage companies to voluntarily discover, disclose, and correct environmental violations.
But, at the same time, we are concerned that some of the approaches being taken actually can allow polluters to keep secret from the public critical information about potential threats to health and the environment, and can obstruct the ability of the states and the public to hold the regulated community accountable for violating environmental requirements.
Let me be clear that we have two distinct issues regarding state audit laws - one of policy and one of law. On the policy level, we oppose all state audit privilege and immunity laws in any form. Both EPA and DOJ have repeatedly testified before Congress and state legislatures that audit privileges make it more difficult to enforce the nation's environmental laws by making it easier to shield evidence of wrongdoing. A privilege law invites defendants to claim many types of evidence relevant to a violation as privileged, including sampling data and information concerning the cause of and possible environmental contamination resulting from a violation. A privilege could, consequently, breed litigation and waste government resources as both parties struggle to determine what materials fell within the protected scope of the audit. Furthermore, a 1995 study by Price Waterhouse of 369 businesses entitled The Voluntary Environmental Audit Survey of U.S. Business indicated that a privilege is not needed to encourage voluntary compliance.
Ultimately, an audit privilege invites secrecy and breeds distrust with the community thereby undermining the kind of openness that builds trust between regulators, the regulated community, and the public necessary for the regulated community to be able to effectively police itself. We also oppose blanket immunities as a matter of policy, because, among other things, they can eliminate the important deterrent effect of penalties and result in disparate treatment of companies in states with different immunity laws.
The second issue we have with these audit laws is legal. Under federal law, EPA has to ensure that the states retain certain minimum enforcement authorities required by federal law for program approval, delegation, and authorization. More specifically, EPA must assure that a state audit immunity law does not deprive a state of its authority to obtain injunctive relief and civil and criminal penalties for any violation of program requirements. In determining whether these requirements are met, EPA is particularly concerned with whether a state has the authority to: 1) obtain immediate and complete injunctive relief; 2) recover civil penalties for significant economic benefit, repeat violations and violations of judicial or administrative orders, serious harm, and activities that may present an imminent and substantial endangerment; and 3) obtain criminal fines and sanctions for willful and knowing violations of federal law.
Under federal law, a state must also have the ability to get information needed to identify noncompliance or criminal conduct and ensure correction of violations. Further, it appears that a state privilege law that restricts the public's legal right to information regarding a facility's compliance with environmental requirements or sanctions "whistleblowers" for divulging information about a company's noncompliance runs afoul of minimum federal requirements. Thus EPA must evaluate state audit laws in light of these federal requirements.
Federal law also authorizes citizens to petition the agency to review or withdraw state programs on the grounds that states lack the enforcement authority necessary to carry out federal programs. Recently, citizen groups in the states of Idaho, Michigan, Texas, Colorado, and Ohio have filed these types of petitions. EPA and its regional offices are working with the states and these citizen groups to resolve the agency's legal concerns with particular provisions of state audit laws. EPA has also established a task force of senior representatives from EPA headquarters and regional offices and the DOJ to ensure national consistency in EPA's response to these matters. So far, EPA has worked cooperatively with several states, including Utah, New Jersey, and Texas to make sure that their audit laws do not present an obstacle to program approval.
EPA's Self-Disclosure Policy - Encouraging Audits Without Secrecy and Blanket Immunities
Although EPA has clearly and consistently opposed state audit privilege and broad immunity laws, the agency wants to encourage companies to self-monitor, self-disclose, and correct violations. Therefore, in 1995, EPA issued its own Incentives for Self-Policing: Discovery, Disclosure, and Correction and Prevention of Violations (60 Federal Register 66706). This policy was a result of an intensive, 18 month public process designed to find the best way to encourage companies to police themselves while preserving fair and effective enforcement and the public's right-to-know. The policy reflects thorough review and thoughtful suggestions from DOJ, state attorneys general and local prosecutors, state environmental agencies, the regulated community, and public interest organizations.
The policy encourages companies to police themselves by eliminating punitive, gravity-based penalties for violations that are discovered through an environmental audit. EPA will also not recommend criminal prosecution for those companies that disclose violations discovered through an audit, so long as the violations do not suggest high-level corporate involvement or a prevalent management practice to conceal or condone violations. The policy carefully balances these incentives with conditions and exceptions to protect public health and the environment and the community's right to know. In addition to prompt disclosure and correction, the policy requires that companies prevent recurrence of the violation and remedy any environmental damage. Repeat violations or those that present an imminent or substantial threat to public health or the environment or result in serious harm are excluded from the policy. As a condition of penalty mitigation, EPA may require that a description of a company's due diligence efforts be made publicly available.
Many companies have begun to avail themselves of the benefits provided by EPA's policy. Thus far, more than 120 companies have disclosed and corrected violations at more than 400 facilities under the policy. EPA has settled matters with nearly half of these companies, waiving penalties in most cases. In addition, several states, including Florida, California, and Pennsylvania, have fashioned state audit policies patterned on EPA's policy, thus reducing confusion in the regulated community in those states about the effect of voluntary audits.
Concerns With Federal Overfiling
There has been some concern expressed by some states that EPA is preparing to "overfile" against companies in states that have objectionable audit laws. Federal overfiling is the initiation of a federal enforcement action, either administrative or civil, following a state enforcement action. Federal overfiling is in addition to, not in replacement of, a state enforcement action for the same violation at the same facility. Let me be clear that EPA has not and will not arbitrarily target companies in states with audit privilege and immunity laws. However, EPA will continue to exercise its normal federal oversight responsibility and retain the right to bring independent enforcement actions in specific circumstances against regulated entities that violate environmental requirements in states where the agency believes that the state has failed to take timely and appropriate enforcement action.
Rather than overfile, the agency prefers to work with the states to determine who should take the necessary enforcement action. In the rare instance that the agency does overfile in a state, it does so to protect the public health or the environment or to maintain a level economic playing field for the regulated community within and among the states, and we make sure to provide a state notice prior to filing our own enforcement action.
Statistics show that overfiling is in fact a rare event. As reported by a state-by-state survey conducted by ECOS, the agency overfiled on about 30 cases or 0.3% of all federal enforcement action during fiscal years 1992 through 1994. During fiscal years 1994 and 1995, the agency overfiled on a total of 18 cases or about 0.1% of state enforcement cases. From October 1995 through September 1996, there was a total of four overfiling cases. It is important to note that none of these cases were filed as a result of the impact of state audit laws on the adequacy of the particular state enforcement actions.
EPA's National Response to the Inspector General Report in Pennsylvania
Enforcement accountability involves not only retaining the legal authority and capacity to take enforcement action but also having the commitment to take enforcement action when appropriate. I was therefore very concerned by the findings of a report issued by EPA's Inspector General (IG) in February 1997. At the request of EPA's Region III office, the IG reviewed the Pennsylvania Department of Environmental Protection's (PDEP) program under the Clean Air Act (CAA). The region called for the audit, because it was concerned that the state was not reporting significant violators to the region, despite ongoing discussions between the region and the state. This was not only hampering the region's oversight responsibility, but was also a violation of the terms of EPA's CAA grant to the state. Therefore, the purpose of the audit was to get an independent determination from the IG about whether the PDEP was in fact identifying significant violators of the CAA in accordance with federal policy, and reporting these violators to EPA. The report found, among other things, that the PDEP had failed to report significant violators to EPA or take appropriate enforcement action in every case to bring violating facilities into compliance.
In response to this report, Region III is assessing the current compliance data of the unreported significant violators identified by the IG and working closely with Pennsylvania to initiate appropriate enforcement responses as necessary. The Region is also conducting a multimedia evaluation of the state's environmental enforcement program and is posing the matters raised in the IG report as threshold issues that must be addressed before PPA discussions can proceed. In addition, I asked my staff to perform an initial review of our databases to determine if the problems in Pennsylvania regarding the reporting of significant violators exist elsewhere. This initial screening strongly suggested the potential for problems in other states.
Therefore, the Regions and, independently, the IG are working to determine the level of reporting and enforcement activity in other states under the CAA as well as other programs. The review will explore the full range of potential verification approaches, including oversight inspections, state file/data audits, statistical sampling of the regulated community, and concentrated multi statute reviews of state environmental compliance and enforcement programs. Each region has also contacted their respective states to discuss the problem revealed by the IG report and will work closely with them to ensure that the problem is not widespread.
I want to emphasize that EPA's review will be thorough and fair; we are not jumping to any conclusions in our review process. Where our review shows that states are meeting their obligations, we will let them know. Where we believe that problems exist, we will work with those states to identify the reasons and correct them. Timely and accurate information reporting by the states is critical for EPA and state enforcement and cooperation. The agency depends substantially on information from the states to maintain our data bases, take independent enforcement action as necessary, and develop national enforcement policies and strategies. In return, EPA provides technical and legal support to states in their enforcement actions and often takes joint enforcement actions with states for large, complex, and multi state cases.
Since joining EPA, I have emphasized that we will not run an "either/or" enforcement program. Only a combination of approaches involving tough enforcement actions to ensure compliance, and innovative programs to promote compliance, will be effective to protect public health and the environment. Therefore, we will continue to build upon our balanced enforcement and compliance assurance program adhering to the principle that strong enforcement is the central and indispensable element of our efforts to ensure and promote compliance.
We will take this same approach in our relationship with our state partners and continue to work with them and others to find new ways to promote compliance and innovation, improve coordination, and lower costs. But, at the same time, we will work to ensure that states are maintaining and utilizing rigorous, effective enforcement programs.
Thank you again for the opportunity to testify before your committee. I would be happy to answer any questions you may have.