One of the primary obligations of a state regulatory agency is to ensure that the rules and regulations that define the agency are enforced. Environmental rules and regulations have one ultimate goal: to improve the quality of our environment. However, the number of enforcement actions taken against a regulated group is one of the primary indicators used by the U.S. EPA and many citizen groups to define how effectively an environmental regulatory agency or environmental program is being managed. Both the number of actions taken against violators of environmental rules and the dollars in fines and penalties imposed upon those violators are used to define an effective operation. This has always seemed to me to be a backward approach to defining a successful program. That is, the higher the fines and the more enforcement actions an agency imposes on industry, the better the program is believed to be. If improvement in the environmental quality of this country is the ultimate goal, then significant compliance with an environmental program should mean that the violations and fines should be less, not more than in a poor compliance situation. The inverse appears to be used as a good program criterium however. In many groups, a low numbers of penalties or violations is viewed only as poor enforcement, not good compliance. This belief is based upon the premise that no regulated entity will comply with the law unless they are hounded by enforcement. Given this mindset in many people, how enforcement activities are counted, reported and described is important in the perception battle of state environmental agencies.

There are obviously two primary levels of environmental enforcement in this country; federal and state. Some states, such as California have delegated environmental decision making and enforcement activities to county and local authorities, but the majority of enforcement activities in most states are handled by the appropriate state agency. There have been several recent reports issued by special interest groups that have slammed state environmental enforcement activities. Claims have been made that states have slacked off on enforcement issues and are letting the regulated communities run free. The only way to “save” the nation’s environment, it is claimed is to have the federal EPA do the majority of the enforcement. This belief is in some ways supported by EPA reports on enforcement. However, most, if not all, state environmental leaders feel as I do; that more penalties and violations show that a program is in trouble, not that it is succeeding.

Because the states believe that the weak enforcement label is wrong and misleading, ECOS recently conducted a thorough enforcement study with the states. The remainder of this column will provide some of the salient facts provided by “Report to Congress: State Environmental Agency Contributions to Enforcement and Compliance”.

As of 1999, ECOS reports that about 70% of those federal environmental authorities that could be delegated to the states have been so delegated (for example, RCRA authority, NPDES, SDWA etc). While most people focus on the federal government’s role in environmental law, the states have not been silent. It is reported that of the environmental statutes passed by state legislatures, fully 70% of these acts have nothing to do with federal requirements. In short, the states are increasingly taking control of environmental issues within their boundaries. This includes additional environmental controls and innovative enforcement. This is important when one examines federal reports concerning state enforcement activities. When federal agencies report actions, they report only those activities directly associated with federal laws and authorities. To size this problem, in 1997, states passed over 700 environmental bills which, when the 70% state factor is added, results in approximately 500 state only laws passed in that year alone. This transfers into a very large data lapse, especially when it is realized that whatever enforcement is required within these state only laws, none is reported by the US EPA.

As was stated in the first part of this article, most state environmental officials prefer to focus activities on improving environmental compliance than to obtaining major penalty collections (a favorite EPA tact). That does not mean that states will not seek large penalties when appropriate, it means that few regulated entities are so recalcitrant as to require such treatment. That is also not to imply that the very large settlement/penalties set by the US EPA are wrong or counter productive. The EPA should be the “gorilla in the closet” because some industrial entities will only respond to the stick.

Since 1994, EPA has had an Office of Enforcement and Compliance Assurance (OECA). This group carries out the enforcement activities for the EPA. OECA prepares a report annually called the “OECA Accomplishments Report”. These reports summarize and document the priorities and the accomplishments of the group for the past year. These reports attribute approximately 69 to 80 percent of all environmental enforcement activity to the states. In fact, the actual numbers exceed these claims. As we have discussed earlier, one of the main state positions is that numbers of certain activities, such as enforcement actions, are not, in and of themselves, effective measures of program strength. However, if federal agencies or citizen groups are going to judge a program by using these numbers, they ought to be at least accurate. Following are excerpts and details from the ECOS report.

“The States report that they regulated over 1.75 million sites in 1999. The States inspected these sites over 501,000 times and made over 449,000 additional compliance evaluations in 1999. The states found over 25,700 significant violations, but only15,500 were considered significant by EPA. The States received over 88,400 citizen complaints in 1999 (data from 33 States).

Once all the problems were found, the States issued over 67,200 notices of violations and warning letters, and undertook many kinds of enforcement actions detailed in the report. In all, States conducted about 90 percent of all enforcement actions taken by both the States and EPA. The States collected almost $92 M in penalties in 1999…” (Pg 13)

There are other salient facts detailed in the report. The level of compliance from certain types of enforcement actions tells a very interesting story. States reported that facility compliance resulted 76 percent of the time oral warnings were issued. When a Notice of Violation was issued, compliance rose to over 81 percent. Consent decrees resulted in an 83 percent compliance result while unilateral agency orders resulted in compliance 86 percent of the time. In short, if compliance is the goal, enforcement actions appear to obtain that result without massive fines or criminal charges, most of the time. The numbers associated with these compliance results are not consistently reported by non state agencies however. For example, states issue “significant non-compliance” violation reports. These reports reflect state standards of what is “significant”. The state numbers vary considerably from the numbers reported by the US EPA. This single definitional discrepancy is one of many reporting differences ECOS described.

The report states “Most State programs report a higher number of significant violations under state definition than under federal definition. Across all State programs for which comparable data were provided, States reported over 112,000 significant violations, compared to just over 60,700 Significant Non-Compliances by EPA. There are many reasons why States have counted more significant violations than EPA. States may be more stringent enforcers than some observers may have thought. States may have a lower threshold for what constitutes a significant violation. States may count violations at smaller sources. Even when the State and federal definitions match, the databases kept at the State program level and at EPA may not …..(match)….” (pg 28). Of major note in this regard is this reported fact: “ ECOS found that 80 percent of the States had experienced ‘significant and pervasive’ data discrepancies between their state data and the same data as it appears in an EPA database”.

In addition to significant non-compliance issues, states and federal reporting have other differences. States use oral warnings, Notice of Violations (NOV) and other lower level enforcement tools more frequently than federal agencies do. For example, states issued over 36,700 NOVs in 1999. EPA enforcement reports do not count these as enforcement efforts. An additional 37,000 oral warnings and warning letters were additionally issued by the states in 1999. Not counting the lower levels of enforcement action results in a large discrepancy. Specifically, for 1999, EPA counted 11,720 nationwide enforcement actions, crediting the states with 70 percent of these (8,200) while state records show over 90,899 actions were taken in this time period. The states accounted for over 90 percent of these actions (81,000). So, the EPA, in 1999 for example, credited and reported only about 10 percent of actual state enforcement actions.

The entire second section of the ECOS report contained comments on the EPA databases utilized for collected state data. AFS, PCS, RCRIS and SDWIS data bases were examined and commented upon. Other issues reviewed included the differences in definitions and the differences in data criteria that contribute to state and federal number mismatches.

In summary, the ECOS report on state/federal reporting differences associated with enforcement activities shows that one must be very careful about using select data if the goal is to inform people of what is actually happening in the environment. If one chooses carefully which data to report, as in any field, very different conclusions can be drawn. States can come off as “soft” on enforcement if incomplete data are reviewed. The states are not only bearing the overwhelming burden of environmental enforcement, the states are also in the forefront of environmental innovation and thereby, are improving the quality of our environment. The public should be made aware of the facts. I hope the ECOS report will help achieve that goal.

The full text of the report may be retrieved from the ECOS web page; www.ecos.org .

I want to thank Steve Brown, deputy executive director of ECOS and the primary author of “Report to Congress: State Environmental Agency Contributions to Enforcement and Compliance” for permission to quote the facts in this article.
 

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