TD171
• .R46 TD171R46
1994
REPORT OF THE EPA
REGIONAL ENFORCEMENT IMPACTS
TASK FORCE
MAY 1994
U.S. Environmental Protection Agency
Region 5, Library (PL-12J)
77 West Jackson Boulevard, 12th Floor
Chicago, II 60604-3590
PrinMO on piper that contains
at tout 50% rtcyefcd «b»r
-------
This report was prepared for:
Carol M. Browner
Administrator, U.S. Environmental Protection Agency
The Regional Enforcement Impacts Task Force
Sylvia K. Lowrance. Chair
Steven A. Herman, Ex Officio
Jo Ann Asami, Region IX
Linda A. Beasley, Region V
Jamie Bernard-Drakey, Region VII
Bob Blanco. OW
Richard Caspe, Region II
Maureen G. Doughtie. Region VIII
Martha Fox, Region X
Nell Gales, OAR*
Mike Gaydosh. Region VIII
Jewell Harper. Region IV
Sallyanne Harper, OARM
Bill Hathaway, Region VI*
Steven J. Hrtte. OAR
George Hofer, Region X
Shelia M. Hollimon, Region IV
Bob Janney, OPPTS
Cecilia Kemodle, Region VI
Judy Kertcher. OROS/LR
Harley Laing. Region I*
Jack Lehman, OW
Gerry Levy, Region I
Barbara LHher, Region X
Thomas Maslany, Region III
•Subcommittee Co-Chairs
Scott Fulton, OECA
Richard Brozen, OA
Diane CaJiier. Region VII
Michael Mason. OPPE
Jack McGraw, Region VIII*
Karen Moriey. OSWER
Walter Mugdan, Region II
Linda Murphy, Region I
James Nelson, OGC
Russell Rhoades, Region VI
Lynne Ross, OCLA*
Mary Samo, Region III
Eric Schaeffer, OECA
Karen Schwinn. Region IX
Sally Seymour, OECA*
Mike Stahl, OECA*
Martha Steincamp, Region VII
Susan Studlien, Region I*
Richard Troast. OSWER
Dave Ullrich. Region V*
Bob Van Heuvelen, OECA
Thomas C. Voltaggio. Region III*
Mike Walker, OECA
Arty Williams, OPPTS
Gerald Yamada, OGC
Ex Officio Members
Shelley Metzenbaum, OROS/LR
Coordinating Committee
Phiilippa Cannon. Region V
Justin* Fugh. OECA
p n /
-------
ACKNOWLEDGEMENT
The Task Force wishes to express its appreciation to
everyone who provided support during its deliberations and in the
production of this report. We extend particular thanks to Regions
IV, V, VI and VIIIf who hosted meetings of the Task Force.
-------
TABLE OF CONTENTS
I. A New Vision of Enforcement 1
II. The Regional Enforcement Impacts Task Force:
Evaluating the Impact on the Regions 2
A. Goals of the Task Force 2
B. Membership and Structure of the Task Force 3
III. Setting the Framework for Task Force Deliberations ... 4
A. Current Regional Structure 4
B. Communications 6
IV. Summary of Task Force Findings 7
V. Roles and Responsibilities 8
A. Roles and Responsibilities Framework 8
B. Impact of Multi-media Enforcement and Compliance Assistance
on Roles and Responsibilities 9
C. Recommendations for Assignment of Roles and Responsibilities 12
D. Recommendations for Specific Follow-up Actions ... 20
E. Conclusion 21
VI. Short Term Impacts 22
A. Accountability, Communication and Coordination ... 22
B. Assumptions 23
C. Recommended Actions 23
D. Measuring/Monitoring Success 30
VII. Long Term Impacts 30
A. Definitions 31
B. Relationship Between Headquarters Reorganization
and Regional Options 32
C. Reporting Relationships, Accountability and Communications 33
D. Operational Changes and Enforcement Performance
Memoranda of Understanding 34
E. Description of Current Regional Structures 36
F. Format and Methodology for Evaluation of Options .... 39
G. Description and Discussion of Options 40
H. Matters Not Addressed in this Report 53
VIII. Inreach 55
A. Communication Tools/Methods Used to Disseminate
and Collect Information 56
B. Key Points 57
C. Summary of Comments 57
IX. Outreach 59
X. Next Steps 61
-------
Appendix 1
Appendix 2
Appendix 3
Appendix 4
Appendix 5
Appendix 6
Appendix 7
Appendix 8
Appendix 9
Appendix 10
Glossary ....
APPENDICES
Definitions and Assumptions
Vision of enforcement and a working
definition of enforcement
Recommended Action Items
Matrix of roles and responsibilities
Roles and Responsibilities
Responsiveness Summary
Criteria for evaluating
Long Term Options
Long Term Impacts Responsiveness Summary
Summary of Comments From
External Organizations
A. Summary of State comments
B. Summary of Phase 1 outreach
C. Interviews with Former
Regional Officials
D. Summary of Meetings
at Hall of States
Task Force Membership By Subcommittee
Walter's Songs
A
A
A
A
A
A
, A
A
A
A
A
A
A
A
A
- 1
-2
-3
- 11
-21
•22
-23
-41
-41
-48
-59
-63
-64
-66
-69
-------
I. A New Vision of Enforcement
I. A NEW VISION OF ENFORCEMENT
On October 12,1993, the Administrator announced a new strategic design for
EPA's Headquarters enforcement program and named the new organization the Office
of Enforcement and Compliance Assurance (OECA). This decision was based in large
part on the work of EPA's enforcement reorganization task force, the advice of EPA's
Senior Leadership Council, and extensive Agency and public comment received during
the reorganization planning process. The new organization improves EPA's overall
strategic planning and strategic targeting capacity, as well as its focus on particular
economic sector, ecosystems and multi-media enforcement, while at the same time
it preserves the single media expertise of the former enforcement organization. It
recognizes the role of compliance assistance in conjunction with, but not to the
exclusion of, a strong traditional enforcement program. As a result, enforcement will
be a more effective and streamlined tool for promoting compliance and attaining the
Administrator's goals of pollution prevention, ecosystems protection and
environmental justice.
The Administrator called for a strong enforcement organization compatible with
"... a new era of environmental protection -- one that recognizes both the maturity of
the Nation's environmental programs and the complexities of environmental
concerns."1 She sought an organization capable of undertaking effective
enforcement targeting, pursuing multi-media inspections and cases, developing
settlements that foster pollution prevention and environmental audits, ensuring
environmental justice, and achieving overall a strong program for enforcing EPA's core
statutory authorities. Finally, she wanted an enforcement organization which speaks
with one clear and consistent voice.
The U.S. Environmental Protection Agency's enforcement program has
established an impressive record of achievement under Administrator Carol M.
Browner. Not only were record enforcement accomplishments achieved in FY 1993,
but the enforcement program reached a historical turning point in July 1993 with the
Administrator's decision to consolidate the Agency's Headquarters enforcement
components. The Headquarters enforcement reorganization will bring back together
into one office the many enforcement resources that were scattered throughout the
Agency during the early 1980s.
1 Memorandum on "Enforcement Reorganization," from Carol
M. Browner, EPA Administrator, to Assistant Administrators and
Regional Administrators, July 22, 1993.
-------
I. Evaluating the Impact on the Regions
II. THE REGIONAL ENFORCEMENT IMPACTS TASK FORCE: EVALUATING THE
IMPACT ON THE REGIONS
A. Goals of the Task Force
The October memorandum also announced that the Administrator would
establish the Regional Enforcement Impacts Task Force to address a number of critical
outstanding issues, such as ensuring regional compatibility with the new Headquarters
enforcement structure. She outlined three specific objectives:
• develop a short-term regional impacts plan to deal with the new Headquarters
organization;
• clarify roles and responsibilities between Headquarters and the Regions; and
• address long-term regional impacts of the Headquarters reorganization and
determine whether any organizational changes need to be made in the Regions.
Thus, by its very mandate, this Task Force was intended to build from the
foundation laid by the earlier Headquarters enforcement reorganization task force.
This Task Force used as its departure point and foundation the vision statement for
enforcement developed by the Headquarters task force. In short, EPA's vision for
enforcement:2
• Reduces risk and accomplishes the goals of protecting health and the
environment;
• Delivers full compliance, inspires pollution prevention, and drives innovative and
comprehensive solutions;
• Ensures equal environmental and health protection for all Americans; and
•>
• Addresses violations of law in a swift and effective manner.
2 For the full vision statement and a working definition
of enforcement see Appendix 2.
-------
II. Evaluating the Impact on the Regions
The central issue before the Task Force was whether EPA, in its present
regional structures, is positioned to achieve this vision for enforcement. In its
discussions, the Task Force focused solely on enforcement. Although consideration
of structural changes, either in the Regions or at Headquarters, has implications
beyond the enforcement program, the Task Force did not address issues outside of
their enforcement context. Any decision regarding regional reorganization will need
to be coordinated and compatible with streamlining, National Performance Review,
and other on-going efforts.
B. Membership and Structure of the Task Force
The Administrator insisted that the Task Force membership be broad-based.
The Task Force was comprised of 45 career EPA employees representing a cross-
section of Regions, Headquarters, staff and management. All ten Regions and every
Headquarters program office were represented on the Task Force. The Task Force
formed five subcommittees to address the issues identified by the Administrator and
to ensure an open process:
Agency Inreach Subcommittee: to solicit the expertise and opinions of Agency
employees and serve as a sounding board for Agency institutional and
employee concerns.
Public Outreach Subcommittee: to solicit the expertise and opinions of
interested parties outside the Agency, including States, Tribes, local
governments, other federal agencies, Congress, environmental groups, industry
and individuals.
Roles and Responsibilities Subcommittee: to examine current and new
Headquarters and regional roles and responsibilities for EPA's enforcement
program.
Long Term Impacts Subcommittee: to identify and evaluate what, if any,
structural or operational options exist for the regional enforcement programs.
Short Term Impacts Subcommittee: to recommend interim steps for the
Regions and Headquarters to ensure a successful enforcement and compliance
assurance program in FY 1994 and beyond.
-------
I. Evaluating the Impact on the Regions
Each Task Force member served on two subcommittees: an issues
subcommittee (i.e.. Roles and Responsibilities, Short Term Impacts, or Long Term
Impacts), plus one of the communications subcommittees, thereby facilitating
communications across subcommittees.
Subcommittees met regularly by conference call or in person to work through
issues. Each subcommittee co-chair served on the Steering Committee, together with
the chair and ex officio members, which met weekly to set priorities and oversee the
progress of the Task Force as a whole. A coordinating committee served as staff to
the Steering Committee and assisted in administering the Task Force.
The full Task Force met five times between December 2, 1993, and March 24,
1994. Apart from the initial meeting held in Washington, D.C., all other Task Force
meetings were held in a regional location.
III. SETTING THE FRAMEWORK FOR TASK FORCE DELIBERATIONS
A. Current Regional Structure
Before addressing any organizational options, it is first necessary to be familiar
with the current organizational structures and nomenclature in the Regions. There is
no uniform structure in the Regions at the present time.
• At present, the Deputy Regional Administrator is the Region's lead individual
responsible for coordination and oversight of enforcement activities. The DRA
reports directly and only to the Regional Administrator.
• Regional Media Program Offices have the lead responsibility for their own
media's compliance monitoring and enforcement program. They are headed by
division directors who report to the Deputy Regional Administrator or Regional
Administrator.
• Regional legal staff are in the Office of Regional Counsel (ORC). The ORCs
have responsibility for enforcement as well as general counselling. Each
Regional Counsel reports directly to the Assistant Administrator for
Enforcement and the General Counsel.
-------
I. Setting the Framework
• Regional Environmental Services Divisions (ESDs) exist in nine of the ten
Regions. Primarily support units, they house laboratory and associated
functions and often also house field inspection and sampling personnel.
• Additional Regional Enforcement Support comes from other offices, such as the
management division and the external program divisions. Such additional
support includes data ancf information systems; facilities (space, mail room,
copying, etc.); financial (payroll, etc.); contracting; personnel; community
relations; etc.
In most regional offices, enforcement-related resources (including Superfund
enforcement resources) represent between a quarter and a third of total regional
resources.
• Legal enforcement resources are located in the Office of Regional Counsel;
• The large majority of technical enforcement resources (including inspection
resources) are located in the media program divisions, with a minority located
in the ESD; and
• A small number of technical enforcement resources are located in other support
offices.
Some Regions have already taken steps, in varying degrees, to enhance their
ability to respond to elements of the new enforcement vision, such as the emphasis
on multi-media, geographic and sector approaches, and environmental justice
concerns.
• Some Regions have established a Senior Level Enforcement Coordinator
position to promote cross-media and multi-media integration of enforcement
effort. The Coordinator may be part of senior regional management, and
assists the Deputy Regional Administrator (DRA) in fulfilling his/her duties as
lead regional official responsible for enforcement.
• Staff for DRA. Some Regions have assigned staff level employees to report
directly to the DRA in order to provide assistance in gathering and analyzing
data, keep track of program implementation, and coordinate among media
program and support offices.
-------
I. Setting the Framework
•
Most Regions have established Multi-Media Coordination or Steering
Committees. These committees are typically engaged in case screening and
targeting activities, and may oversee development of multi-media cases.
B. Communications
The Task Force communicated with individuals and groups inside and
outside the Agency regularly. Adopting the participatory process used in the
Headquarters reorganization, the Task Force solicited information and views from
EPA employees, States, local governments and tribes, Federal partners, the
regulated community, non-governmental organizations, and other external parties.
The comments formed the basis of many of the Task Force's recommendations
and influenced its formulation of options.
Both the internal and external communications efforts involved two phases.
Internally, the first phase called for data collection and solicited preliminary
thoughts regarding the structure of regional enforcement programs. Externally, the
Task Force sent a questionnaire to over one thousand organizations that interact
with EPA. The Regions approached the most interested organizations in their
Regions, while Headquarters communicated with national organizations. The
second phase of communications involved distributing the proposed
recommendations and structural options for review by both staff and outside
parties.
1. Internal Communications (Inreach)
The Task Force undertook a considerable communications effort, especially
in the Regions. Members serving on the communications subcommittees, as well
as other regional and Headquarters staff, assisted in conveying and collecting
information from over 18,000 EPA employees. Ten regional members distributed
information to approximately 8,700 employees; eight Headquarters members
distributed information to approximately 10,000 employees.
Task Force members used the Agency's electronic communications systems --
E-mail and Local Area Networks (LANs) -- extensively for inreach activities. These
systems proved very effective in transmitting and receiving information quickly. In
addition to electronic communications, Task Force members hosted open fora,
brown bag meetings and all-hands meetings to discuss enforcement issues and
answer questions. An estimated 2,000 employees attended 45 such meetings
-------
III. Setting the Framework
held at Headquarters and the Regions. Task Force documents were also made
available at each Agency location.
2. External Communications (Outreach)
The Task Force made a concerted effort to inform and listen to the concerns
of States, tribes, and local governments. Regions held meetings with State
officials to keep them informed throughout the process. Similar meetings were
held in Washington, D.C. for national associations of States and local
governments. Task Force members also met with industry and small business
associations.
Congressional staff were briefed on the options being developed by the Task
Force. Briefings will also be offered to appropriators, authorizes, and to the Office
of Management and Budget. This report will be distributed to key Congressional
staff for comment. In addition, seven former EPA officials -- all of whom had
served in one of the Agency's regional offices - were interviewed by telephone.
3. Nature of Comments Received
In general, EPA staff and States preferred less extensive organizational
change while the initial reaction from Congress appears to favor more extensive
change. Responsiveness summaries regarding comments received are provided in
the sections that follow on Short Term Impacts, Roles and Responsibilities, and
Long Term Impacts.
IV. SUMMARY OF TASK FORCE FINDINGS
Sections of this Report set forth in detail the Task Force's findings regarding
Roles and Responsibilities, Short Term Impacts, and Long Term Impacts. In
summary, the Task Force, after extensive internal discussion, identified the
following four options:
1. Enforcement Coordinating Office
2. Enforcement Coordinating Office with Intra-Divisional Reorganization
3. Regulatory Enforcement Division
4. Regional Flexibility
-------
IV. Summary of Task Force Findings
These options are discussed in detail in Section VII.
Regardless of which option is ultimately selected, the Task Force
recommends that each Region and OECA enter into a formal Enforcement
Memorandum of Understanding (MOU). These annual MOUs, or work plans, would
establish expectations for specific enforcement and compliance activities and
outputs. The Regions would be held accountable for achieving these results. In
the nature of a contractual agreement, the MOU would impose obligations on both
Headquarters and the Regions to ensure that the specified activities and outputs
are accomplished.
V. ROLES AND RESPONSIBILITIES
A. ROLES AND RESPONSIBILITIES FRAMEWORK
The need to review and assign roles and responsibilities for EPA's
enforcement and compliance program was an issue identified during the
deliberations of the Headquarters Reorganization Task Force. In particular, external
commentors urged EPA to review enforcement responsibilities between EPA
Headquarters, EPA Regions, and States. Thus, a major task of the Regional
Impacts Task Force was to identify enforcement and compliance functions and
activities and to determine the appropriate level of involvement for Headquarters
and Regional Offices. The working relationships between EPA and States and
between EPA and the Department of Justice (DOJ), though very important to the
success of EPA's enforcement and compliance programs, were not formally
addressed since the scope of the Task Force was limited to reviewing
enforcement and compliance roles and responsibilities between EPA Regions and
Headquarters.
The Task Force has identified the functions and activities necessary to carry
out EPA's enforcement program and has provided recommendations about
assigning those functions and activities to Headquarters, Regions, or some
combination. The Task Force inventoried current functions and activities and also
identified future functions and activities resulting from the Headquarters
enforcement reorganization. Although it was guided by the current assignment of
these functions and activities between Headquarters and Regions, the Task Force's
recommendations reflect its assessment of how the enforcement program should
operate in the future to better accomplish EPA's enforcement mission in the most
efficient way.
8
-------
V. Roles and Responsibilities
A total of thirteen separate functional areas were identified, each with a
number of specific activities. For each of these activities the Task Force has
proposed assignment of responsibility among the following categories:3
Headquarters lead; Regional lead; Headquarters lead with Regional participation;
Regional lead with Headquarters participation; Headquarters lead with Regional
concurrence; Regional lead with Headquarters concurrence; and shared
responsibility between Headquarters and Regions. (A matrix of the functions is
included as Appendix 4). In addition to these recommendations, the Task Force
also has provided some views about the assignment of responsibility within
Headquarters and within Regional Offices.
A summary of responses to internal and external comments on roles and
responsibilities is included as Appendix 5.
B. IMPACT OF MULTI-MEDIA ENFORCEMENT AND COMPLIANCE
ASSISTANCE ON ROLES AND RESPONSIBILITIES
In identifying functions and activities and assigning roles and responsibilities
between Regions and Headquarters for those functions and activities, the Task
Force identified several overarching issues and examined whether those issues
have an effect on assignment of roles and responsibilities or the ultimate shape of
the Regional enforcement program. While pollution prevention and environmental
justice are very important priorities for EPA and the enforcement and compliance
program, the Task Force felt that these two Agency priorities would be
incorporated into the work of all parties in the enforcement program and need not
be "assigned" to Headquarters or the Regions. Two issues which do affect
assignment of roles and responsibilities options are multi-media enforcement and
compliance assistance.
3 "Lead" means an office is generally in charge of a
matter. It assumes consideration of documents, guidance,
precedent, positions, concerns, perspectives of non-lead offices.
"Participation" includes active involvement, consulting, and
formal or informal commenting and requires some increment of
resources, but can vary according to the circumstances.
"Concurrence" means a veto authority.
-------
V. Roles and Responsibilities
1. Multi-Media Enforcement
EPA is seeking opportunities to expand beyond a focus on single statutes
and single media toward broad environmental problem solving. Multi-media
enforcement is an important tool in furthering this objective. Key to the
organizational structure of the Agency enforcement elements and the assignment
of roles and responsibilities is the. role of multi-media enforcement relative to the
more traditional single statute enforcement elements. To assign roles and
responsibilities, multi-media enforcement was defined as the active consideration
of compliance with all environmental requirements from the strategic planning
stage all the way through to completion of an enforcement response (and includes
identifying opportunities for pollution reduction and prevention). A multi-media
approach necessarily incorporates single media enforcement, sometimes focused
on individual facilities with the goal of reviewing all of a facility's
emissions/discharges to obtain greater environmental gain. The Task Force further
defined the multi-media investigation as that which is necessary to accomplish
these objectives.
The Task Force members felt that EPA should not set percentage goals for
multi-media enforcement, but there was support for conducting multi-media
inspections and multi-media enforcement actions whenever appropriate and
feasible. Multi-media inspections can grow out of single media inspection
programs or can result from assignment of full multi-media inspection teams. In
discussing the delivery of multi-media inspections, the Task Force considered use
of the full multi-media inspection team, the single multi-media inspector with broad
expertise, and the multi-media checklist for use by a single-media inspector to
screen for potential multi-media violations. The Task Force members concluded
that use of the multi-media checklist in initial inspections should be the prevalent
inspection device occurring in almost every inspection with full inspection team
follow-up when this first inspection determines a need. Because of the much
greater investment of inspection resources required for full multi-media inspection
teams and the limited available regional inspection resource base, such teams
should be used only where there is a clear need, including such activities as
geographic or industry sector initiatives. The complexity of the environmental
regulations and industry operations with which EPA must deal are limiting factors
on developing and using individual multi-media inspectors with broad expertise
instead of multi-media checklists and full multi-media teams.
10
-------
V. Roles and Responsibilities
2. Compliance Assistance
As the Administrator stated in her October 12, 1993, memorandum
announcing the Headquarters enforcement reorganization, compliance assistance is
an important tool which should complement EPA's traditional enforcement
activities. The Task Force recognized the need for ongoing discussion about a
definition of "compliance assistance". Because people have many different ideas
of what might constitute compliance assistance, the Task Force used a very broad
concept of what could constitute "compliance assistance" which did not include
purely voluntary programs, such as Green Lights and 33/50, which do not have a
regulatory component. For the purposes of Task Force deliberations, compliance
assistance was defined as those activities that help the regulated community
voluntarily meet a legally established requirement or facilitate expeditious
compliance.
Because the question of providing compliance assistance after violations
have occurred has been raised outside the Task Force, but not yet resolved,
recommended roles and responsibilities were assigned for compliance assistance
both before violations occur and after violations occur. However, in recommending
specific roles and responsibilities for post-violation compliance assistance, the Task
Force is not taking a position on whether, under what circumstances, or to what
extent post-violation compliance assistance should take place, but wanted to
ensure that the roles and responsibilities have been defined if the Agency chooses
to do so. The Task Force believes that site-specific, post-violation compliance
assistance should take place, if at all, only after any appropriate enforcement
response has been taken and in accordance with whatever Agency policies and
guidelines are in effect at the time. The Task Force believes that policies and
guidelines must be formulated for post-violation compliance assistance and its
relationship to enforcement actions for the violations.
The Task Force considered compliance assistance in two areas - "general"
and "site-specific". General compliance assistance would encompass compliance
assistance programs directed at entire industries or classes of facilities with
common compliance problems. Site-specific compliance assistance includes those
activities with respect to a particular facility or site or, in the case of certain
Headquarters-centered programs such as mobile sources, on specific companies.
11
-------
V. Roles and Responsibilities
C. RECOMMENDATIONS FOR ASSIGNMENT OF ROLES AND
RESPONSIBILITIES
The discussion below sets out the designation of recommended roles and
responsibilities for Headquarters and the Regions in 13 functional areas. Some of
the recommended roles and responsibilities represent changes from how things
currently work. These designations represent what the Task Force believes would
be an appropriate division of roles and responsibilities, but recognizes that there
always can be exceptions to the rule. EPA must balance the conflicts between
promoting empowerment and ensuring consistency to accomplish an effective and
efficient enforcement program. Good judgment and common sense should be
applied in all situations to determine the appropriate mix in any given situation.
Above all, both Headquarters and Regional staff should approach all situations in a
spirit of collegiality and cooperation. Nothing in these recommendations is
intended to establish rigid rules on what roles individual staff in Headquarters or
Regions should do in particular cases or limit flexibility in how specific Regional and
Headquarters personnel are used. The Task Force believes that Headquarters and
Regions should seek out expertise in other offices in connection with specific
activities and that individual staff should be encouraged to take on work that will
expand their training and understanding of how other offices work. In addition, the
Task Force recognizes that its recommendations deal with the general enforcement
program and are not absolutes - they may need to be modified in some cases to
reflect differences in statutory authority and regulatory programs.
1. Compliance and Enforcement Planning
In the area of planning, Headquarters should have the lead in national, multi-
year strategic planning and annual budget development, with the Regions
participating. For regional strategic and annual program planning, the Regions
should have the lead, operating in accordance with the national plans. For
planning national and multi-regional enforcement initiatives, Headquarters should
take the lead with the Regions participating, and vice versa for regional initiatives.
2. Program Evaluation and Oversight
For program evaluation and oversight Headquarters should have the lead for
review of regional programs and compilation of national results, with Regions in
the lead for collecting, compiling, analyzing, and reporting results to Headquarters
or for use in the Region. Process analysis should be shared by both, and each
12
-------
V. Roles and Responsibilities
should be responsible, with participation from the other, for giving feedback from
the evaluation and oversight to its own planning cycle.
3. Policy and Guidance
Headquarters should have the lead in developing policy and guidance for
compliance monitoring, enforcement response, penalties, settlements, and for
regulators in implementing programs, as well as maintaining a compendium of the
policies.
4. Compliance Assistance
In the developing area of compliance assistance, the Task Force
recommendations of roles and responsibilities reflect that in some cases Regions
should have the responsibility for compliance assistance for facilities or sites in
their Regions and that in other cases, such as Headquarters-centered programs,
Headquarters should have responsibility for companies in their regulatory purview.
Thus, Headquarters and the Regions each should have the lead, depending on the
circumstances, in the development and delivery of pre- and post-violation
compliance assistance for general and specific situations, with some exceptions.
Those exceptions are for the development of general pre-violation compliance
assistance, where Headquarters should have the lead with Regional participation,
and in the development of post-violation compliance assistance (if the Agency
chooses to do so), where Headquarters or the Region should have the lead, with
participation from the other, depending on the circumstances. In the area of
developing programs to promote compliance, each should have the lead with the
other participating, depending on the situation.
5. Inspections, Investigations, Monitoring and Sampling
The Regions should have the lead in logistics and coordination in compliance
inspections (including State oversight), investigations, monitoring, sampling,
testing, and laboratory support. For laboratory data quality assurance and
compliance both Headquarters and Regions should have the lead with participation
by the other depending on the laboratories involved. For compliance monitoring
and tracking matters (such as reviewing State files and data), the Regions should
have the lead, but with Headquarters participation. Though all Regions have
criminal investigators, they report to the Headquarters Office of Criminal
Enforcement. Thus, for criminal investigations, Headquarters should have the lead
with Regional participation. In civil investigations, both Headquarters and Regions
13
-------
^"^WK%*
V. Roles and Responsibilities
should have the lead, with participation from the other, depending on the nature of
the matter.
6. Case Development and Management
a. General Background
The area of case development and management presents the largest
challenge for setting out appropriate roles and responsibilities because there are so
many functions, so much work, and legitimate disagreements over dividing
responsibilities between the Regions and Headquarters. The Task Force spent a
great deal of its time and effort dealing with roles and responsibilities in this area.
The Task Force believes that a number of principles should guide the
Headquarters/Regions relationship in case development and management including:
Use resources efficiently and effectively; avoid duplication of effort and second
guessing; maximize delegations; use a team approach to problem solving based on
trust, cooperation, and respect; determine roles based on need for unique
perspectives and knowledge; provide clear and timely Headquarters guidance that
allows Regions a specified degree of flexibility and sets out a process for greater
flexibility based on the facts of a specific case.
the Task Force's recommended roles and responsibilities between Regions
and Headquarters reflect the general and normal delineation of roles and
responsibilities that would take place for case development and management and
should not be viewed as an absolute. Overall, there needs to be a balance
between empowerment and consistency. Specific case facts relating to
precedential concerns, the need to deviate from established policies, or other
matters may warrant the need for greater Headquarters involvement. However,
with the exception of nationally run enforcement programs, the presumption is that
Regions manage their cases.
Currently, responsibility for administrative cases is largely delegated to the
Regions with minimal Headquarters involvement. Headquarters involvement is
usually limited to administrative cases resulting from national programs that are
managed entirely out of Headquarters (e.g.. mobile sources) and administrative
actions brought under new statutory or regulatory authority, for which the Regions
typically have submitted their first three such actions for Headquarters approval.
However, there are also occasional circumstances when, because of the
14
-------
V. Roles and Responsibilities
precedential nature of issues involved in administrative cases, Headquarters
becomes involved.
Under the reorganized enforcement program, the Task Force generally
believes that development, management, and settlement of the significant majority
of administrative cases should continue to be handled by the Regions. However,
for regional cases that (a) rise to a level of national attention, (b) are multi-regional
cases against a company, economic sector, or ecosystem, or (c) are part of
national enforcement initiatives, the Task Force generally believes that some
degree of Headquarters involvement (which can range from consultation to
concurrence) would be advisable and that in some cases a Headquarters lead
would be appropriate. The Task Force believes these three types of cases are
likely to be a relatively small percentage of all regional administrative cases.
Whether a Region or Headquarters should have the "lead" and the extent of the
other office's participation and/or concurrence in these cases would depend on the
nature and facts of the case. There should be criteria and guidance to help guide
these decisions. The most important consideration, however, is that the decision
on the lead responsibility for such administrative cases must be made as early in
the process as possible.
Currently, Regions have been delegated less authority for initiating,
conducting, and settling judicial cases than for administrative cases. Headquarters
involvement is significant. Under the reorganized enforcement program, the Task
Force generally believes that development, management, and settlement of the
majority of judicial cases should be delegated to Regions. However, the Task
Force believes that cases that (a) rise to a level of national attention, (b) are multi-
regional cases against the same company, or (c) are part of national enforcement
initiatives, could be either Regional lead with Headquarters
concurrence/participation or Headquarters lead with Regional
concurrence/participation, depending on the nature and facts of each case. As
with administrative cases, there should be criteria and guidance to help guide these
decisions. The most important consideration, however, is that the decision on the
lead responsibility for such judicial cases must be made as early in the process as
possible.
b. Delegations Proposal
In light of these considerations, the Task Force recommends that the
Assistant Administrator for OECA consider a number of delegations in the context
of overall environmental enforcement case management. These delegations are
15
-------
V. Roles and Responsibilities
appropriate in light of the Administrator's commitment to streamlining, ensuring
national consistency, and implementing the recommendations of the National
Performance Review. These delegation principles are not intended to substitute for
the principle that good communication between Headquarters and the Regions is
essential for consistent and efficient Agency enforcement.
The Task Force suggests consideration of the following principles:
(!) It is appropriate to further delegate civil judicial case initiation,
management, and settlement authorities to Regional Administrators/Regional
Counsels. The Task Force expects that authority for initiation, management, and
settlement of the majority of cases will be delegated to the Regions, and Regions
will be held accountable for appropriate exercise of that authority. These include
all cases not falling within the exceptions to be set forth in guidelines, as noted in
(ii) below.
Administrative enforcement authorities have largely been delegated to
regional offices. The Task Force expects that the authorities for initiation,
management, and settlement of these cases will be maintained in the Regions,
with exceptions limited to those set forth in guidelines, as noted in (ii) below.
(ii) Consistent with the Administrator's desire that EPA speak with one
enforcement voice, the Assistant Administrator for OECA should be included in the
decision-making process at any time that it becomes apparent that a civil judicial or
administrative case will raise issues of national precedence or national significance.
Depending upon the level of national precedence or significance, inclusion and
participation of the Assistant Administrator for OECA will vary from consultation to
concurrence in regionally-managed cases to actual Headquarters lead in case
development and management.
The Task Force believes that a number of factors should be considered in
ascertaining whether a case is of national significance or nationally-precedential,
and what level of delegation is therefore appropriate. These factors include the
dollar value of assessed penalties, the precedential character of the case or specific
issues involved, the degree of national importance and public interest in the case,
whether a case covers facilities or environmental contamination problems in
multiple Regions, whether a proposed settlement is within national norms, whether
a case is initiated within the context of a national initiative, and whether a case is
consistent with legislative proposals under consideration.
16
-------
V. Roles and Responsibilities
(iii) Assuring that the Administrator's goals of national consistency and
streamlining are met will require that the Assistant Administrator for OECA
introduce and implement a system of accountability. In accordance with the
delegations outlined in (b) above, the system must include some contemporaneous
review of the case initiation, management, and settlement in nationally significant
cases, as well as in cases in which national settlement criteria have not been met
(e.g.. recovery of economic benefit of non-compliance). In addition, the Task
Force recommends institution of systematic post hoc reviews of regional
enforcement program performance, and consistency with national enforcement
policies. The Task Force recommends that this review yield sanctions for non
conformance with national policy, a recognition of superior performance, and
consideration of differential delegations if appropriate.
c. Recommended Roles and Responsibilities
Based on the above discussion, a number of functions should fall into the
category of Headquarters in the lead with Regional participation. These include
national priority setting and targeting, technical and legal support on national
issues, clearinghouse/coordination, development of information systems,
Headquarters providing technical and legal support on Regional cases, providing
technical experts on key cases, DOJ interface, policy and guidance on case
management, coordination with OGC, communication and coordination among
Regions, criminal case development, and citizen suit matters.
Regions should have the lead on regional targeting and screening, and
communicating and coordinating with Headquarters and States.
The Regions and Headquarters should share the responsibility for ensuring
consistency with national policy guidance, but the Task Force recognizes that
Headquarters should have an audit function with respect to the Regions. On
administrative appeals, the Regions should have the lead with Headquarters
concurrence on both the decision to appeal and the conduct of the case. For
judicial appeals, Headquarters should have the lead with Regional concurrence.
The same is true for contractor listing. In defensive litigation, in both pre-
enforcement review and counterclaims, Headquarters or the Regions should have
the lead, with the other participating, depending on the case.
On most administrative cases, the Regions should have the lead in
developing, managing, litigating, and resolving th* matters. In several categories
of administrative cases, Headquarters should b« involved, and on rare occasions
17
-------
V. Roles and Responsibilities
may become the lead. Where entire cases or issues rise to the level of national
attention, Headquarters should participate or concur with the Regions, depending
on the case. With multi-regional cases against the same company, Headquarters
should also participate. Where the program itself is run out of Headquarters, the
lead should be there. For federal facilities, development, litigation, and settlement
of cases should be a Regional lead. Close participation by Headquarters will be
increasingly necessary to ensure case consistency with emerging national priorities.
In the area of national initiatives involving both administrative and judicial
cases, Headquarters should have the lead with Regional participation in overall
management and coordination of the initiative, whereas the Regions should almost
always have the lead with Headquarters participation in case development and
litigation. For regional initiatives with both administrative and judicial cases, the
Regions should have the lead with Headquarters participation in overall initiative
management and coordination, and the sole lead in case development and
litigation.
For judicial cases, the Regions should have the lead in a majority of cases,
and have Headquarters participation in others. Where judicial cases or issues rise
to the level of national attention, the circumstances of the case should dictate
whether the Regions or Headquarters will be in the lead with concurrence from the
other. The same will be true of multi-regional cases against the same company.
Where the program is managed out of Headquarters (e.g.. mobile sources), the lead
should be there. For judicial settlement of CERCLA cases where federal
departments are potentially responsible parties (PRP's), the Regions should have
the lead with Headquarters participation.
7. Statutory and Regulatory Development
In the area of statutory and regulatory development, Headquarters should
have the lead, with Regional participation.
8. Program Administration and Support
Headquarters and the Regions should share responsibilities in program
administration and support for technical, legal, and general training and FMFIA,
FOIA, and related matters. Training through NETI should be a Headquarters lead
with Regional participation. For contract management and support, Regions and
Headquarters should be responsible for their own matters, with support from the
other. Headquarters should have the lead for ICR oversight. For national
18
-------
V. Roles and Responsibilities
delegations, Headquarters should have the lead and Regions should participate.
Regions should be the lead for delegations within Regions.
9. State Program Outreach, Oversight and Capacity Building
The Regions should have the lead responsibility in State program outreach,
oversight, and capacity building in the areas of communication, planning,
implementation, and oversight. The Regions should lead with Headquarters
participation in grants administration, technical assistance, and program delegation,
and should get Headquarters concurrence for certain program delegations. In
providing training to the States, the Regions and Headquarters should share the
responsibilities.
10. Development and Maintenance of Compliance and Enforcement Data
and Information Systems
The development and maintenance of compliance and enforcement data and
information systems should be a Headquarters lead responsibility, with regional
participation. This is the case in the areas of data, requirements, database links,
contract and grant needs assessment and funding support, and feedback to
improve the systems. Depending on the system, Headquarters or the Regions
should have the lead, with participation from the other, on data entry and analysis.
The Regions should have the lead in providing Region-specific data for national
databases, and Headquarters should participate in supporting State data systems.
11. Intergovernmental Partnerships
In the area of intergovernmental partnerships, Headquarters should take the
lead and the Regions should participate on general enforcement matters with
Congress, oh relations with national organizations of State, tribal, and local
governments, and with other federal agencies. The Regions should take the lead
with Headquarters participation on federal agency relations (with a primarily
regional focus), on regional case-specific congressional matters, and with inHjvidual
States, Tribes, and local governments.
12. International Activities
On international activities, Headquarters should have the lead with regional
participation in training, outreach, program activities, cases, and data coordination.
In matters along the Mexican and Canadian borders, the Regions should generally
19
-------
V. Roles and Responsibilities
have the lead with Headquarters participation, though this could vary depending on
the nature of the activity.
13. internal and External Relationships
Headquarters should have the lead with regional participation in internal and
external relationships for such things as national meetings, liaison with other EPA
programs, public outreach, media relations, and communication of information
among the Regions. In regional matters relating to liaison among programs, public
outreach, and media relations, the Regions should have the lead with Headquarters
participation.
D. RECOMMENDATIONS FOR SPECIFIC FOLLOW-UP ACTIONS
Although the recommended assignments of roles and responsibilities will
help guide future work among Headquarters and the Regions, there is much more
that should be done to bring further improvements and to address issues raised,
but not resolved, during the Task Force's work.
•
Initially, it would be helpful to make sure that current staff and new
employees have the benefit of the thought that went into this exercise on roles and
responsibilities. Whether included as part of orientation programs for new
enforcement staff, part of guidance materials on how we should conduct our
business together, or in some other form, these ideas on roles and responsibilities
should be shared with others at EPA.
Further work must be done to define national cases and issues so that there
is less uncertainty about what matters require Headquarters involvement and when
Headquarters would have the lead in specific cases.
The Assistant Administrator for OECA, with regional participation, should
establish, as soon as possible, guidelines (using the factors mentioned in
subsection B above) for determining types of cases or issues that would require the
Assistant Administrator's concurrence in a settlement or actual management of a
case. A process should be established under which each Regional Counsel will be
responsible for reviewing each case or settlement initiated in his/her Region for
purposes of determining whether it falls within these guidelines and conforms with
the delegated authorities. This process should be a significant part of Regional
Counsel responsibilities, and one for which they would be held accountable.
20
-------
V. Roles and Responsibilities
Consistent with the reinventing efforts, there must be a fresh look at all
delegations from Headquarters to Regions (including those discussed in subsection
B above) and within Headquarters and Regions, so that there is the greatest
possible empowerment, decentralization of responsibility, and clear accountability
while maintaining consistency.
EPA needs to better define what constitutes compliance assistance and
when and how it is delivered. In particular, EPA must decide whether, to what
extent, and how it will make use of post-violation compliance assistance and issue
clear guidelines.
While much progress was made in the area of roles and responsibilities
between Regions and Headquarters, relationships with two other key partners must
be addressed -- DOJ and the States. With respect to States, EPA's grant
authorities and processes need to be examined to increase flexibility and maintain
accountability. States should be empowered to continue initiatives in multi-media
enforcement and pollution prevention,and to assume greater responsibilities for
selected activities as appropriate.
Further efforts to assign roles and responsibilities within Headquarters must
be undertaken. Regions may also need to examine how they assign roles and
responsibilities, particularly if some regional organizational structures change.
The subjects of environmental justice and pollution prevention affect all the
business of EPA and must be worked into each function that EPA carries out. New
roles and responsibilities specifically designed to foster environmental justice and
pollution prevention in the enforcement process will arise and should be addressed
promptly as they arise. It is clear that promoting and nurturing environmental
justice and pollution prevention must be viewed as the responsibility of all offices
and individuals.
E. CONCLUSION
With this effort to designate roles and responsibilities, the Task Force has
made an effort to sort out some long standing concerns about these issues. This
effort provides a foundation for additional discussion which should finally resolve
the full range of roles and responsibilities issues. EPA enforcement personnel in
Headquarters and in regional offices should not lose sight of our common interests
in achieving EPA's mission. In the final analysis, finding the most effective ways
21
-------
VI. Short Term Impacts
to carry out the full range of enforcement roles and responsibilities is a continuous
process in which all enforcement personnel must participate.
VI. SHORT TERM IMPACTS
The Task Force identified several immediate and pressing issues which need
to be addressed in order to ensure enforcement momentum during the
Headquarters enforcement reorganization, and any regional enforcement
reorganization which may occur. Regardless of what decision is made regarding
regional organizational structure, OECA and the Regions need to take interim steps
to maintain enforcement momentum during the OECA organizational
implementation. The Task Force developed recommendations for actions to
address these issues. These actions are presented in terms of immediate actions
which should be accomplished before the end of FY 94, and actions which may
require a phased implementation approach but which should be fully implemented
during FY 95.
A. ACCOUNTABILITY, COMMUNICATION AND COORDINATION
Determining the point(s) of accountability, communication and coordination
in the regional offices for implementing the enforcement and compliance programs
is crucial. The OECA must have a clear point of entry into the Region for
accountability, compliance and enforcement policy, guidance, budget, resource
distribution, reporting, data, and national meetings.
The Task Force concluded that, during this transition period, the Deputy
Regional Administrator should be the compliance and enforcement focal point
(single point of contact) for OECA and would be accountable to OECA for meeting
regional compliance and enforcement goals. The Regional Program Directors would
be accountable to the DRA/RA for implementation of both media-specific and non
media-specific compliance and enforcement programs.
For media-specific compliance and enforcement responsibilities, the Regional
Program Directors would be contact points with OECA for policy, guidance, budget
and resource management, reporting, data, national meetings, etc.
Communication and coordination for media-specific compliance and enforcement
issues would occur between Regional Program Directors and OECA in the same
way that it currently occurs between Regional Program Directors and their
programmatic AAs. Communication and coordination with OECA for non-media-
specific enforcement responsibilities (such as multi-media enforcement, sector-
22
-------
VI. Short Term Impacts
based approaches and geographic targeting) would remain with the office of the
DRA.
B. ASSUMPTIONS
The Task Force made the following assumptions in discussing and
identifying immediate actions needed by Headquarters and regional offices:
4 For FY 94, there should be no major mid-year shifts in policy and guidance.
All information necessary for the conduct of FY 94 activities has been
released to the Regions and States.
4 FY 95 is a transitional year which should not involve major changes in
regional operations and directions.
• Any new initiatives in areas such as pollution prevention, environmental
justice and cross-program compliance and inspections should begin in FY 95.
4 FY 96 should be the first year for which comprehensive nationwide guidance
will be issued by OECA. This includes State enforcement negotiations and
program plans for State lead enforcement and compliance activities. State
planning guidance should be a priority item for release in FY 95 because of
the long lead times necessary to get State programs in place, especially
those with 2-year budget and planning cycles. Planning meetings should be
held between the Regions, Headquarters and States prior to the issuance of
new directives and guidance.
• Guidance from the new OECA should be issued from one central office
within OECA.
C. RECOMMENDED ACTIONS
The Task Force's recommendations for action address six areas which are
critical to the success of the Agency's enforcement program:
• Planning for the EPA enforcement program for FY 95
• Communication and coordination
23
-------
VI. Short Term Impacts
• State/EPA planning and priority-setting activities
• Incorporation of cross-program enforcement and compliancepriorities into
State grants
• EPA review of State programs
• Ongoing State/EPA Program Management
The Task Force recommends the following actions to ensure a successful
EPA enforcement program during the transition period to achieve the objectives of
the vision for enforcement and implementation of the enforcement reorganization.
These actions are designated for either immediate or phased implementation.
1. Immediate Implementation
a. Planning for Fiscal Year '95
• The Assistant Administrator for OECA should establish an OECA/Regional
Planning Workgroup immediately. This workgroup should circulate draft
guidance on sector, multi-media, and compliance assistance initiatives by no
later than late spring 1994. This workgroup would be responsible for
developing a national FY 95 compliance and enforcement guidance
document (relatively short in length) and providing broad guidance on the
appropriate mix of sector, multi-media and compliance assistance initiatives
for FY 95.
• As has been done in some media offices, each Region should be requested
to submit a regional FY 95 compliance and enforcement document or
memorandum of agreement, signed by the DRA that supports
National/regional priorities and considers State priorities by mid-summer
1994. By October 1, 1994, the regional FY 95 compliance and enforcement
document or memorandum of agreement must translate to a Regional
Enforcement Operating plan. This plan must specify the resources and
projected commitments being directed toward national and regional
priorities.
24
-------
VI. Short Term Impacts
b. Communication and Coordination
• It is necessary to make clear a "crosswalk" describing Headquarters/regional
lines of operational communication for all major program and functional
areas. This crosswalk would allow regional personnel, who have had their
communication ties with Headquarters' program offices modified by the HQ
reorganization, to know with certainty the functions and location of their
Headquarters counterparts.
• The Task Force also recommends that a regional/Headquarters Transition
group be established no later than the effective date of the OECA
reorganization to ensure ongoing attention to the range of transition issues
and recommendations discussed in this report. We also recommend that
one of the DAAs in OECA be designated to be accountable for short-term
regional implementation and communication transition issues and lead this
Transition group. This group should review the recommendations of the
Headquarters' transition report, as well as the recommendations included in
this Report, and ensure the appropriate implementation of such
recommendations.
c. State Planning and Priority-Setting Activities
• OECA should ask each Region to review and evaluate the status of these
State/EPA enforcement agreements and other State/EPA management
mechanisms immediately. These agreements can be used to manage key
aspects of the State/EPA relationship, such as timely and appropriate
response and enforcement reporting. With the assumed issuance of
guidance, improvements in this process could begin immediately.
• Whichever option for adjustment to the enforcement planning process is
adopted, States should be brought by the DRAs into the enforcement
planning process immediately. The transition into a fully integrated
enforcement planning process will likely take a year or two. It is critical that
States, through both national committees and regional outreach, be part of
this development process.
d. State Grants
• If still timely, grants should allow for the incorporation of cross-program
enforcement and compliance priorities and outputs. This will require
25
-------
VI. Short Term Impacts
coordination, primarily in the Regions, among the various EPA programs that
issue grants. Areas to be coordinated would be those cross-cutting program
issues and multi-media initiatives, such as geographic or industry initiatives,
requiring the participation of more than one EPA program.
e. Ongoing State/EPA Program Management
• EPA should consider establishing a regional position for a State enforcement
program coordinator. This individual or group could be responsible for a
range of cross-cutting responsibilities, such as joint planning, State/EPA
agreements, grants coordination, guidance dissemination, reporting,
oversight, etc.
• EPA should conduct regular State/EPA meetings and teleconferences.
Procedures should be established to ensure regular, routine communications
with all State enforcement program managers, including those not located in
State Environmental Agencies, and, as appropriate, with existing regional
State associations.
2. Phased Implementation
a. Planning for Fiscal Year '96
• EPA should expand 'he OECA/Regional Planning Workgroup to include the
States by the fall of 1994, and develop draft program-specific and cross-
program compliance and enforcement plans or guidance by early winter of
1994. Guidance should be finalized by March 1995. Draft regional plans
are due to OECA by May 1995, with finalized regional plans and
commitments submitted by August 1995.
b. State Planning and Priority-Setting Activities
• Beginning immediately with bridge guidance in FY 94* and more completely
in FY 95, guidance on the State aspects of the enforcement program should
be issued. (Guidance issued in FY 95 would be for FY 96 implementation.)
States should ultimately receive one comprehensive enforcement guidance
document from EPA that results from a participatory planning process.
• The objective of the cooperative State/EPA planning effort is to agree on
enforcement initiatives, targets and areas of responsibility. Such discussions
26
-------
VI. Short Term Impacts
with States should begin immediately and continue into FY 95. Agreements
may be memorialized in multi-year State/EPA enforcement agreements, grant
outputs and other appropriate documents.
c. State Grants
• The Agency should consider the establishment of a combined multi-media
enforcement grant. This would require grant funds from enforcement and
general State grant funds to be consolidated into a single enforcement grant.
This grant could be structured to include all enforcement activities or only
multi-media activities. With such a grant, it would be advisable to
implement an enforcement program review commensurate with the scope of
the grant.
• Significant cross-cutting grant outputs, issues or initiatives should be
highlighted in any FY 95 State/EPA agreements.
d. Reporting and Program Reviews
• The Regions should consider consolidated/coordinated State enforcement
program reviews. The State/EPA enforcement relationship would be
strengthened if EPA reviewed a State enforcement program as a whole, and
not on a program-by-program basis. EPA could develop a consolidated
review of just the enforcement program or glean a picture of the
enforcement program by coordinating separate program reviews. Not all
States would have to be done each year. Each Region could pilot this
approach with one State.
e. Ongoing State/EPA Program Management
• Each Region should be directed to convene an annual enforcement
conference of all State and Federal officials involved in managing the
enforcement program.
• To improve communications, each Region should establish a committee of
key State and EPA enforcement program managers to meet quarterly to
discuss initiatives planning, training, results measurement, reporting and
priority-setting.
27
-------
VI. Short Term Impacts
• Regions should encourage State multi-media enforcement programs. State
inspectors should accompany EPA on multi-media overview inspections, be
encouraged to use multi-media checklists, and suggest multi-media program
management approaches to the States.
f. Procedures and Coordinating Mechanisms for Case
Development
The Offices of Regional Counsel and regional program enforcement staff
have developed procedures and coordinating mechanisms to ensure effective
regional enforcement programs. These procedures and mechanisms were
discussed in the inventory completed by regional and Headquarters offices. The
Task Force has reviewed procedures that were working most efficiently and
suggests that Regions consider selecting those that best fit their current
operations.
g. Regional Coordination between the Program and ORC
Regional Enforcement Management Council: To ensure that the Regions
conduct a coordinated enforcement program consistent with national guidance and
policy and integrating regional priorities, the Regions should set up a Regional
Enforcement Management Council (REMC). The REMC should be composed of the
Deputy Regional Administrator, the Regional Counsel, the directors of the program
media offices, the Special Agent in Charge, Director of the Office of External
Affairs, and the Regional Enforcement Officer. The DRA should serve as the
chairperson. If more specific knowledge would enhance REMC meetings, section
and/or branch chiefs should be included; if overcrowding doesn't allow this, a
committee with first- and second-level supervisory membership could be created in
addition to or instead of the REMC.
The REMC should be responsible for developing, approving and implementing
a Regional Enforcement Management Plan which incorporates national guidelines
and policies and integrates regional priorities. Specifically, this plan should develop
regional enforcement priorities and assist in identifying cross- and multi-media
enforcement opportunities consistent with national and regional priorities.
(Enforcement planning issues are discussed in more detail earlier.)
The plan should then be incorporated into division and branch operating
plans. In addition, where appropriate, the plan can form the basis for the Region's
coordination with the States on enforcement planning and grant outputs.
28
-------
VI. Short Term Impacts
In addition to managing the enforcement planning process, the REMC could
implement cross-program initiatives and oversee management of the Region's
enforcement program.
Attendance of ORC at annual program planning meetings: To help ensure that
ORC and the program offices understand what each are expecting from the other
for the coming year, the Task Force recognizes the benefit of joint annual
enforcement planning meetings in each Region. Annual commitments, projected
enforcement needs (including litigation demands), statutory requirements, etc.,
should be discussed to try to anticipate what resources will be needed by the
program and Regional Counsel offices. In addition, plans should be developed for
managing regional and national cross-cutting enforcement targeting and initiatives.
This would include sector approaches, ecosystem targeting, environmental justice
and others.
Coordination/prioritv-setting meetings: The Task Force acknowledges the value
of representatives from ORC and the individual program offices meeting at least
monthly. These meetings will provide both with the opportunity to discuss cases
already in the pipeline and to help ensure that progress is being made on
enforcement matters generally.
These meetings differ from the case screening meetings discussed below in
that they will require the Region to integrate enforcement (including cross-program)
and non-enforcement priorities. In doing so, the program and ORC discuss the
relative importance the different assignments may have. These meetings will be an
opportunity to discuss any resource issues that may arise in accomplishing
enforcement and non-enforcement functions. They will also provide an opportunity
to discuss which office will take the lead in responding to Headquarters' requests
for information or input (e.g.. comments on draft guidance, numbers of
enforcement cases initiated, etc.), to discuss new developments in policy or the
law, and to resolve any potential disputes between the two offices.
Case screening meetings; The Task Force endorses regular meetings between
representatives from ORC and the individual regional program offices to discuss
and evaluate upcoming cases. If there are issues of first impression or there is a
question of national consistency, regional staff should coordinate with
Headquarters.
29
-------
VI. Short Term Impacts
h. Coordination with Headquarters and DOJ
Headquarters: Regional personnel should continue to coordinate with
Headquarters on issues of first impression and to ensure national consistency.
Where Headquarters' involvement is appropriate, the Regions should seek this
involvement early in the process. The Regions should continue to work with their
program and legal liaisons in OECA.
Department of Justice: For judicial actions, the Regions should continue to
coordinate with the Department of Justice. At a minimum, we recommend that
the ORC and the program offices meet with the Department of Justice quarterly to
discuss upcoming judicial referrals and the progress of cases already referred.
D. MEASURING/MONITORING SUCCESS
For the remainder of FY 94, the existing means of measuring and monitoring
enforcement success (e.g.. civil judicial referrals) are not expected to change.
However, existing measures need to reflect the broader range of enforcement and
compliance activities currently included in Agency priorities. This includes
activities that address more than one media, have no fixed "end point," or are
undertaken by State or local governments under delegated programs.
Currently, EPA's knowledge of State enforcement data is poor. Data
systems are not integrated across media, problems exist with State reporting, data
quality is poor, and measures are limited to activity outputs. EPA should
commence a review of the compatibility of data systems with a goal of integrating
the data into a consolidated enforcement outputs report.
OECA and the Regions should immediately begin a coordinated effort to
formalize a new structure for measuring program success. This effort should
include a review of the compatibility of existing data systems, and the need for
integration of new data elements that reflect new priorities.
VII. LONG TERM IMPACTS
This section of the report describes several long term organizational options for
regional enforcement programs as well as certain operational adjustments which
Regions must make in order to better address the new elements of the Agency's
enforcement vision (see Appendix 2).
30
-------
VII. Long Term Impacts
A. DEFINITIONS
Below are specific definitions used by the Long Term subcommittee.
Enforcement: The Task Force adopted the definition of enforcement used in
the original Headquarters Enforcement Reorganization Task Force report on
reorganization options, which states:
"[T]he enforcement continuum begins after requirements have been
established by rule or permit. Generally, the starting point for the
continuum is inspection and other monitoring activity undertaken to
determine compliance with environmental obligations. Once a
violation is identified, the Agency's response to that violation -•
whether that be formal enforcement action, a warning, or compliance
assistance - is also in the nature of enforcement because it
necessarily reflects the exercise of the Agency's enforcement
discretion...."
The Headquarters Task Force Report further defined enforcement to include
strategic planning and targeting; inspections and compliance determinations;
sampling and laboratory analytical work; enforcement response selection;
case development and support; legal support; case resolution; and
compliance assistance offered either before or after a violation.
Multi-Media Enforcement: "Multi-media enforcement" is an important
concept in the Enforcement Vision, and is a term used frequently in this
document. In EPA, the term is often used to describe a case initiated under
multiple statutes or involving multiple programs. In this context, the value
added is seen to be in the comprehensive approach to case prosecution, and
opportunities for integrated settlement. This definition, however, reflects
only part of the value of the multi-media approach and does not capture the
broader multi-media concept embodied in the new Enforcement Vision.
In the Enforcement Vision, the term "multi-media" includes a focus on
activities occurring much earlier in the enforcement pipeline than the case
development stage. It includes strategic planning, compliance data analysis,
targeting and inspections/compliance monitoring and compliance assistance.
The use of multi-media approaches at these front-end stages is intended to
maximize comprehensive, strategic and holistic compliance evaluations and
should maximize the impact of enforcement activity. This Report assumes
31
-------
VII. Long Term Impacts
that even if comprehensive compliance evaluations are adopted, the majority
of enforcement cases brought will continue to be single-media (or, more
accurately, single-EPA program) actions. In fact, multi-media enforcement is
a means to an end, namely, full compliance. The measure, and indeed the
focus of multi-media approaches should not be the number of multi-media
cases, but the assurance that any action taken, or compliance assistance
provided, is as comprehensive as needed.
The Administrator has placed great emphasis on four cross-program themes:
pollution prevention, environmental justice, ecosystem approaches, and
sector approaches. In addition, the Administrator has emphasized the need
to maintain and improve the partnership between EPA and State, tribal and
local governments. We have tried to evaluate the extent to which these
priorities will be more easily achieved under some options than others.
B. RELATIONSHIP BETWEEN HEADQUARTERS REORGANIZATION AND
REGIONAL OPTIONS
The Task Force did not evaluate each option according to how closely it
matched the organizational chart for the new Office of Enforcement and
Compliance Assurance in Headquarters. The degree to which regional
organizational structures are similar to or differ from the new Headquarters
structure was not a criterion for evaluating their relative strengths and
weaknesses. Rather, we felt it was more important to analyze the extent to which
these options would promote clear lines of communication to Headquarters and to
States, tribes and local governments, and establish accountability for achieving the
new objectives that guided the Headquarters reorganization. Among the most
important consequences of that reorganization are the following:
• Responsibility for enforcement and compliance assurance has been
consolidated under one Assistant Administrator. This was done to ensure a
consistent, uniform approach to enforcement and compliance across all
programs, and regional options should be evaluated according to how well
they promote that consistency.
• The Headquarters reorganization was prompted in large part by a desire to
improve strategic planning and targeting for enforcement, and to develop
more consistent and integrated data management to support these
functions. We considered the extent to which each option allows the
32
-------
VII. Long Term Impacts
Regions to participate effectively in these processes, and establishes
accountability for results.
• The Headquarters reorganization also reflects a greater emphasis on multi-
media, whole-facility or geographic approaches to strategic planning,
targeting, inspections, compliance assistance and enforcement actions. We
considered the extent to which each option permits these functions to be
carried out efficiently and effectively.
• OECA will also have responsibility for developing innovative compliance
assistance programs, emphasizing multi-media and sector-based approaches.
OECA is preparing a short statement, which will be circulated for review,
that explains how these functions will relate to important compliance
assistance responsibilities that would remain with program offices.
• Finally, the OECA structure recognizes the importance of maintaining single-
media enforcement effectiveness, and each option should be evaluated
according to whether or not it contributes to that goal.
C. REPORTING RELATIONSHIPS, ACCOUNTABILITY AND
COMMUNICATION
Lines of authority, accountability and communication are key elements in any
organizational structure, and will have a profound impact when evaluating such
structures. With respect to the regional enforcement program, this is true for
relationships within the Region, relationships between the Regions and
Headquarters, and relationships between the Regions and their State, Tribal or local
government counterparts.
OECA must have a clear point of entry into the Region for accountability,
compliance and enforcement policy, guidance, budget, resource distribution,
reporting, data, national meetings, etc. Communication channels must also be
clearly defined and understood.
1. Reporting Relationships
Current reporting relationships are described below. Although there are
numerous variations on the present arrangement which could be implemented, for
purposes of the present discussion of options the Task Force assumed that
reporting relationships would remain unchanged.
33
-------
VII. Long Term Impacts
2. Accountability and Communication
For Options 1 and 2 described below, the Deputy Regional Administrator (or,
at the DRA's discretion, the Enforcement Coordinator created under those options)
would be the compliance and enforcement focal point -- that is, the single point
contact -- for OECA. With the RA, the DRA would be accountable to OECA for
meeting regional compliance and enforcement goals. The regional media program
division directors would be accountable to the DRA/RA for implementation of both
media-specific and non media-specific compliance and enforcement programs.
Under these Options, for media-specific compliance and enforcement
responsibilities the regional media program division directors would be contact
points for OECA with respect to policy, guidance, budget and resource
management, reporting, data, national meetings, etc. Communication and
coordination for media-specific compliance and enforcement issues would occur
between regional media program division directors and OECA in the same way that
it currently occurs between those directors and their programmatic AAs in HQ.
Communication and coordination with OECA for non-media specific enforcement
responsibilities (such as sector-based approaches and geographic targeting) would
remain with the ORA and the Enforcement Coordinator created by those options.
For Option 3, the Director of the Enforcement Division would be accountable
to both the DRA/RA and to OECA for compliance and enforcement activities, and
would be OECA's point of entry and contact in the Region.
For Option 4, which contemplates a flexible approach in which Regions are
free to select the structure they believe will best enable them to accomplish the
new enforcement vision objectives, accountability to OECA will lie either with the
DRA or with the Enforcement Division Director, depending on which structure the
Region selects.
D. OPERATIONAL CHANGES AND ENFORCEMENT MEMORANDA OF
UNDERSTANDING
1. Operational Changes
It is important to keep in mind that with any of the organizational options
considered in this report further operational changes in the regional offices will be
necessary to achieve the objectives of the Agency's new enforcement vision.
34
-------
VII. Long Term Impacts
These will emphasize:
• Changes in the way we do strategic planning and inspection targeting, in
order to assure that multi-media, geographic, sector-based and
environmental justice concerns are adequately addressed.
• Changes in case screening practices, to improve the Agency's ability to
identify and pursue opportunities for multi-media enforcement and pollution
prevention efforts, and identify environmental justice concerns.
• Changes in case resolution practices, to enhance the Agency's ability to
identify and secure pollution prevention and similar supplemental
environmental projects (SEPs).
• Improvement in the delivery of compliance assistance.
• Improvement in State/Tribal program capacity for compliance and
enforcement.
In each of these functional areas, and regardless of which option is
ultimately selected, Regions will have to take further steps to ensure that the way
they operate in the future enhances their ability to achieve the objectives discussed
above.
2. Enforcement Memoranda of Understanding
The Task Force agreed that one way to ensure that these objectives are well
understood and are fully implemented is through specific Enforcement Memoranda
of Understanding (MOUs) between each Region and OECA. The AA/OECA would
negotiate with the RA/DRA in each Region concerning the specific enforcement
and compliance activities and outputs that are desired. The Regions would be held
accountable for achieving these results. In the nature of a contractual agreement,
this approach imposes obligations on both HQ and the Regions to ensure that the
specified activities and outputs are accomplished. Development of the
Enforcement MOUs will encourage the Agency to better link elements of the
enforcement vision with clear measures of success.
The Task Force agreed that such Enforcement MOUs are desirable regardless
of which option is selected, but are particularly important in connection with a
flexible approach to organizational structure, as proposed in Option 4.
35
-------
VII. Long Term Impacts
Identifying and negotiating the measures in the Enforcement MOU may,
however, be quite difficult. In the past, establishment of an accountability system
based on specific, environmentally meaningful performance measures has proved
an elusive goal.
E. DESCRIPTION OF CURRENT REGIONAL STRUCTURES
1. Current Structures
In order to better understand the four options described below, it is
important to set out a detailed description of the current regional enforcement
structures.
• At present, the Deputy Regional Administrator is identified as the Region's
lead individual accountable for coordination and oversight of enforcement
activities.
• Regional Media Program Offices are currently viewed as having the lead
responsibility for their own media's enforcement program. They are headed
by division directors who report to the DRA/RA. Though all regional
program offices are now organized along media lines, the exact groupings of
media programs within a single division vary widely.
Program offices typically house engineers and scientists. Some of these
may be field inspectors. In some programs, compliance inspections and/or
sampling activities are performed primarily (or even exclusively) by
inspectors housed in the program division. In others, compliance inspections
and sampling activities are performed entirely or partially by staff assigned to
the ESD.
In addition to responsibility for the enforcement program for their media,
program divisions are also responsible for State and Tribal oversight,
authorization/delegation work, permit writing, etc.
Internal media program division structures vary among regions, but will
generally be along media lines (i.e.. when the division houses more than one
media program), with additional structure sometimes along functional lines
(e.g.. an enforcement unit and a program unit). For the CERCLA program,
internal division structure is typically functional: remedial, removal,
emergency response, technical support, contracting, etc. (Organizational
36
-------
VII. Long Term Impacts
division of enforcement and non-enforcement functions into separate units
was ended several years ago in the few Regions which still used that
approach.)
• Regional legal staff are consolidated in the Office of Regional Counsel (ORC).
The ORCs have responsibility for enforcement as well as counselling work.
[Counselling functions include handling defensive litigation; grants,
contracts, personnel and other general law functions; and non-enforcement
media-specific legal work such as review of Air SIP submissions or RCRA
authorization, and legal support of permitting activities.] With respect to
enforcement, ORCs are responsible for support of enforcement cases; they
are not currently viewed as being responsible for the enforcement program
per s&. All ORCs also house one or more attorneys to support the Agency's
criminal enforcement program.
The Regional Counsel reports directly to the AA/OECA. The General
Counsel provides 20% of the Regional Counsel's performance evaluation;
the RAs/ORAs provide input to AA/OE for the Counsel's performance
evaluation.
• Regional Environmental Services Divisions exist in nine of the ten Regions.
Primarily support units, they house the laboratory and associated functions
(e.g.. QA/QC), and often also house field inspection and sampling personnel.
These staff provide support to the enforcement program, performing
enforcement-related inspections and sampling, and also to the non-
enforcement programs, providing ambient monitoring services. They may
perform all or most inspections for certain regional program offices, and only
a few for others.
Some ESDs are also media program offices, housing, e.g.. programs such as
TSCA, FIFRA, EPCRA, wetlands and/or emergency response.
ESDs are headed by a Division Director who reports to the DRA/RA. Internal
structure is most commonly along functional lines (e.g.. laboratory staff,
QA/QC staff, and field inspection staff).
• Additional Regional Enforcement Support comes from other offices, such as
the management division and the external program divisions. Such
additional support includes data and information systems; facilities (space,
mail room, copying, etc.); financial (payroll, etc.); contracting; personnel;
community relations; etc.
37
-------
VII. Long Term Impacts
In most regional offices, enforcement-related resources (including Superfund
enforcement resources) represent between a quarter and a third of total regional
resources. Though distribution of these resources varies by Region and program,
the following general observations can be made:
• legal enforcement resources are located in the Office of Regional Counsel;
• the large majority of technical enforcement resources (including inspection
resources) are located in the media program divisions, with a minority
located in the ESD; and
• a small number of technical enforcement resources are located in other
support offices.
2. Enhancements to Regional Organizations Related to New
Enforcement Vision
The Regions have already taken a number of steps to enhance their ability to
respond to elements of the new enforcement vision, such as emphasis on multi-
media, geographic and sector approaches and environmental justice concerns.
Every Region has instituted one or more of these steps, albeit in different ways and
to different degrees.
• Some Regions have established a Senior Level Enforcement Coordinator
position to promote cross-media and multi-media integration of enforcement
effort. The Coordinator typically has the rank of Branch Chief or Deputy
Division Director, and typically reports directly to the RA/DRA. The
Coordinator may be part of senior regional management, and assists the
DRA in fulfilling his/her functions as lead regional official responsible for
enforcement.
• Staff for DRA. In some Regions, staff level employees have been assigned
to the DRA's office in order to provide assistance in gathering and analyzing
data, keeping track of program implementation, and coordinating among
media program and support offices.
• Most Regions have established Multi-Media Coordination or Steering
Committees, at either the division director level or the Branch/Section Chief
level, or both. These committees are typically engaged in case screening
and targeting activities, and may oversee development of multi-media cases.
38
-------
VII. Long Term Impacts
Some committees have formal "charters" and develop annual or biennial
work plans.
F. FORMAT AND METHODOLOGY FOR EVALUATION OF OPTIONS
1. Format
The Task Force initially identified and evaluated a broad range of structural
options. After reviewing the many thoughtful comments received during the
inreach and outreach efforts, and after extensive discussion among its members,
the Task Force selected four of these options to present to the Administrator,
which are designated Options 1 through 4.
The Draft Report, which was distributed to internal and external
constituencies as part of inreach and outreach effort, displayed six options,
designated Options A through F. Several additional options or approaches were
suggested by commentors. A Responsiveness Summary which summarizes the
internal and external comments and explains how the Task Force addressed the
concerns raised is attached as Appendix 7. The reasons for selecting four options
for presentation to the Administrator are set forth in this section and in Appendix
7.
2. Methodology and Evaluation Criteria
As a tool for evaluation of structural alternatives, the Task Force developed
criteria derived from the Vision for Enforcement in the original 1993 Headquarters
Enforcement Task Force Report, and the criteria used by that Task Force in
evaluation of options for the Headquarters reorganization. It adapted and refined
those criteria to better reflect concerns applicable to the Regions. The criteria are
attached as Appendix 6, and are referenced in the discussions of the options,
below. They are intended to cover major concerns under each of four general
headings: Integrated Enforcement, Internal and External Relationships, Enforcement
Efficiency and Human Resources. The criteria also reflect concern about the
potential transition costs and disruption associated with any significant
organizational change. The Task Force did not explicitly weight the criteria during
the evaluation process. However, the concerns encompassed by certain of these
criteria were more frequently raised by members of the Task Force and by those
who commented during inreach and outreach efforts.
39
-------
VII. Long Term Impacts
G. DESCRIPTION AND DISCUSSION OF OPTIONS
As noted, the Task Force initially identified and evaluated a broad range of
structural and operational options. The four options selected are:
1. Enforcement Coordination Office
2. Enforcement Coordination Office with Intra-Divisional Reorganization
3. Regulatory Enforcement Division
4. Regional Flexibility
Following are descriptions of these four options and identification of some of
the major benefits and drawbacks associated with each. These benefits and
drawbacks relate back and are cross-referenced to the evaluation criteria discussed
above, and set forth in Appendix 6. The criteria are numbered from 1 through 14;
the pertinent criteria are referenced below, using those numbers in brackets after
each benefit or drawback. For benefits, the referenced criteria are those that are
promoted by the option under consideration; for drawbacks, the referenced criteria
are those with which the option may be in some degree of conflict.
In reviewing the comments from the Inreach and Outreach efforts, and through
internal discussions, the Task Force identified certain recurring concerns shared by
many reviewers. Some of these concerns would be heightened or assuaged, to
varying degrees, by the four options displayed below. These concerns include:
• Transition costs. Many expressed concern about the disruption and drop in
morale which major reorganization would entail. Option 1 contemplates little
or no reorganization, while Options 2 and 3 involve successively more
extensive reorganization. Some commentors noted that Option 3 may
actually compel reorganization of the rest of the Region, because of the
effects of such a reorganization on the remaining organizational units. They
argued that an exclusive focus on enforcement organization should not be
driving such a comprehensive, Region-wide restructuring.
• Strengthening EPA's public posture on enforcement. Some observed that
there are intangible but important "signals" which will be sent by whatever
decision ensues from this Report. They argue that selection of Option 3 will
send the clearest signal, to both internal and external constituencies, that
40
-------
VII. Long Term Impacts
we are serious about achieving the objectives of the new enforcement
vision.
• Concern about the impact of major restructuring on EPA's relations with
States, tribes and local governments. Some expressed the view that major
reorganization (i.e.. as envisioned by Option 3) would disrupt relationships
and make those relationships more difficult, since most State, tribal and
local governments are organized along media lines.
• Concern about separation of technical enforcement and programmatic
activities. A significant number urged that technical enforcement and
programmatic activities (like permitting or planning) not be separated (as
would occur under Option 3). Others argued that these functions can and
should be separated in order to enhance enforcement focus in the Regions.
Their reasons are generally those included as "Benefits and Drawbacks" in
the following discussion.
• Balancing transaction costs. It was generally acknowledged that EPA's
current organizational structure imposes transaction costs when attempting
to coordinate multi-media enforcement activities among the several media
program divisions; these costs would decrease as one moves from Option 1
to Option 3. However, it was also agreed that other transaction costs
would increase as one moves from Option 1 towards Option 3; e.g.. costs
of transactions between program and enforcement staff.
• Empowerment. Many referred to the goal of empowering staff and
managerial level employees, which is an important element of both Total
Quality Management and the Reinvention of Government. These
commentors suggested that instead of specifying a particular structure to be
adopted by all ten Regions, an alternative approach would be to specify
what results are desired and give the Regions the flexibility to determine
what structure and operating practices would best enable them to achieve
those results. This idea is incorporated in both the discussion of the
Enforcement MOU and in Option 4.
OPTION 1: Enforcement Coordinating Office
This Option envisions that regional organization will remain largely unchanged.
However, an Enforcement Coordinating Office (ECO) would be created in the
Office of the RA. The ECO would be headed by a member of senior regional staff
41
-------
VII. Long Term Impacts
reporting directly to the DRA, and would include a modest sized staff. It would
expand upon and institutionalize what some Regions are already doing, as
described above.
The ECO would be OECA's bridge to the regional office, and in particular would
serve as the analog of the HQ Office of Compliance. Its responsibilities would
include:
• Enforcement policy contact at the senior regional staff level.
• Regional point of entry for analysis and application of HCfenforcement
program (particularly OECA/Office of Compliance) guidance.
• Leading development of regional enforcement plan (strategic and annual
operating plans, including integration of single- and multi-media concerns
into regional plan).
• Advising RA/DRA on enforcement resource and budget allocations.
• Leading negotiation of the regional Enforcement MOU with OECA;
monitoring achievements under such Agreement.
• Coordinating regional inspection targeting to ensure achievement of
Agency's new enforcement vision objectives.
• Coordinating, monitoring and evaluating enforcement aspects of grants.
• Coordinating development of, and monitoring, State/EPA enforcement
agreements; coordinating and monitoring multi-media cases with non-EPA
enforcement organizations.
• Directing enforcement data integration activities within the Region (i.e.. has
the authority to identify essential enforcement information and direct
program offices to maintain and provide such information).
• Promoting, coordinating, tracking and evaluation of multi-media inspections,
cases, pollution prevention in enforcement SEPs, and enforcement aspects
of environmental justice activities.
42
-------
VII. Long Term Impacts
• Directs and acts as chairperson for Region's civil and criminal enforcement
case screening.
• Promoting and coordinating contractor listing, suspension and debarment
activities.
Under this option, the media program division directors remain accountable and
responsible for single- and multi-media enforcement planning, targeting, case
development and support for their respective media areas. (The staff of the media
program divisions would continue to be responsible for multi-media case
development and support, as they currently are. However, under this option the
ECO would share responsibility and accountability for leadership and/or
coordination of such multi-media activities.)
Major Benefits
• Option 1 represents a minor structural change from the current arrangement.
Arguably, the current system is working satisfactorily to achieve the goals
historically set for it, and does not require substantial revision. We have had
several years of record enforcement activity in the regulatory programs, and
Superfund enforcement-driven results have increased steadily to a very high
level. The current structure is flexible enough to adjust to new objectives
and priorities. Considerable cross-media planning and enforcement work has
been done, and cross-program communication and interchange has started
to become institutionalized in most Regions. The addition of the ECO
coordination function reporting to the DRA will further enhance the Agency's
capability to achieve the objectives of the new enforcement vision by
providing a point of integration for regional enforcement activities at a senior
management level, without requiring the personal and constant attention of
the DRA. [1,2,7]4
• Current working relationships are well understood and established, both
within the Regions and between Regions and State, tribal and local
governments. This option avoids the transition costs, and the possible
attendant drop in work outputs, associated with a significant reorganization.
4 The numbers in brackets after each of the Benefits and
Drawbacks refer to the pertinent numbered Criteria in Appendix 6.
43
-------
VII. Long Term Impacts
It minimizes disruption in employees' lives; and minimizes drop in morale
which often accompanies such disruption. [5,7,8,11,14]
• A substantial fraction of the most serious environmental and enforcement
problems are not multi-media in nature, and for these the single media focus
is appropriate and should not be abandoned. The ECO would provide a
desirable coordination role while not detracting from this traditional focus.
[7,8]
• This option maintains unified media program offices, continuing the close
working relationship between enforcement and program staff (in particular,
permitting and State/tribal program development and oversight) within those
offices. This promotes a rounded perspective of regulatory requirements
and the environmental implications of maintaining compliance with and
enforcing standards. It also allows flexibility to shift resources between
enforcement and non-enforcement activities as priorities change. It fosters
thorough, single-media knowledge of a given facility by program staff,
including permitting, compliance and enforcement aspects. It allows sharing
of facility data (files), as well as sharing of specialized expertise (e.g..
hydrogeologists, toxicologists) among enforcement and program staff in the
divisions. [3,7,9,10,11,14]
• Current regional organization is compatible with current organizational
structure of most States and tribes, facilitating communications, grant-
making and oversight functions. [5]
• This option would limit conflict with media program divisions, as the
coordinating functions of the ECO staff do not infringe on the decision-
making authority of the media division directors. At the same time, the ECO
would provide a focus for new enforcement initiatives and facilitate
identification, elevation and resolution of cross-media issues. [1,2,7]
Major Drawbacks
• Notwithstanding the establishment of the ECO, accountability for
enforcement in the Region remains with the RA/DRA, who have many other
responsibilities that may prevent them from realizing the full potential of that
role. Delays may arise if many cross-program enforcement decisions must
be elevated to the DRA level. Accountability for enforcement activities
below the DRA level is clear for single-media programs (i.e.. at the division
44
-------
VII. Long Term Impacts
director level). However, while the Enforcement Coordinator would have
responsibility for non-media specific enforcement activities, s/he would not
have commensurate authority. Authority and accountability for multi-media
enforcement and compliance assistance activities remain with the DBA.
[8,9]
• The full potential of multi-media, geographic and sector emphasis may not
be reached, since most managers and staff would continue to "live" in a
single program environment; multi-media work may still be seen by some as
an unwelcome extra burden, rather than a central element of the job. Even
with the creation of the ECO, cross-program coordination would continue to
impose high transaction costs. Resistance may be encountered from media
divisions, ESD and ORC if they view the ECO as an infringement on their
responsibilities. [1,2,7,8,10]
• It is more difficult to shift enforcement resources (e.g.. inspection staff)
among programs when those programs are housed in different divisions,
than if they were housed in a single division. Such shifting may be
appropriate as environmental priorities and perceived risks change. [2]
• Different programs may approach enforcement issues inconsistently (e.g..
regarding response policies or imposition of penalties). [10]
• To the extent that both the Enforcement Coordinator and the media program
division directors interact with State, tribal and local governmental
authorities, confusion may arise about who speaks for the Region on
enforcement matters. [5]
• Planning and implementation functions are separated. [8]
OPTION 2: Enforcement Coordinating Office with Intra-Divisional
Reorganization
This option envisions two changes in the regional offices. First, as under
Option 1, an Enforcement Coordinating Office (ECO) would be created, reporting
directly to the DRA. As described above, the ECO would be headed by a senior
level Enforcement Coordinator reporting directly to the ORA, and would include a
modest sized staff. The ECO is fully described under Option 1, above.
45
-------
VII. Long Term Impacts
In addition to the creation of an ECO, this option also envisions a structural
consolidation of enforcement functions beneath the media program division level.
Distinct enforcement units would be created within the current regulatory media
program divisions, that would house all divisional enforcement resources.5 The
divisions themselves would maintain all of their current media program
responsibilities including enforcement. Enforcement units could be multi-program
in nature, to the extent that the Regions' current structures house multiple
enforcement programs within single divisions.
Legal enforcement resources would be unaffected, remaining in the existing
Office of Regional Counsel.
With respect to enforcement inspection resources, three variations of this
option were considered: (1) all such inspection resources would be housed in the
Environmental Services Division; (2) all inspection resources would be housed in
the individual enforcement units within the program divisions; and (3) Regions
could elect to place some inspection resources in the ESDs and some in the
enforcement units of the program divisions. Although the Task Force considered
these variations, we believe that the placement of inspection resources should be
within the discretion of the regional offices.
Note: The Major Benefits and Drav
-------
VII. Long Term Impacts
• Separating the regulatory enforcement functions from other program
functions can enhance enforcement focus and expertise within programs.
[6,8,9,10]
• Promotes cross-program integration and more consistent enforcement
decision-making at the divisional level (i.e.. with respect to those divisions
which house two or more separate programs). [1,2]
• Reduces the transaction costs for the ECO, since there are fewer individuals
with whom ECO staff must interact. [1,9]
Major Drawbacks
• Though this is a limited reorganization, there would still be a considerable
amount of disruption to personnel at the divisional level. [14]
• Using a "one size fits all" solution may create problems, including critical
mass issues, for remaining program functions; there could be a structural
imbalance within divisions as the result of enforcement branches which may
be very large by comparison with non-enforcement branches. [7]
• Some of the benefits associated with integrated single-media program
offices are lost (e.g.. integration of permitting and enforcement functions
concerning a single facility; sharing of expertise and data between program
and enforcement functions); this is particularly applicable for smaller
programs which may now be more fully integrated than the large programs.
[7,11]
• Provides no increased flexibility to move enforcement resources between
programs housed in different divisions, to meet shifting priorities of a multi-
media strategic plan.[2]
• Opportunities for division-level integration of enforcement with ot^er
program priorities are limited. [7]
OPTION 3: Creation of a Regulatory Enforcement Division
Option 3 envisions the creation of a Regional Enforcement Division ("ED"),
headed by an SES Division Director, reporting to the Regional Administrator. The
Division would include technical, regulatory enforcement staff. The Director would
47
-------
VII. Long Term Impacts
be the regional official primarily responsible and accountable for regional
enforcement activities. Although the RA and DRA are responsible and accountable
for all regional activities, including enforcement, the ED Director would have
enforcement as his/her only major responsibility.
Under this option, the regulatory media program divisions would no longer be
responsible for enforcement activities; that responsibility would shift to the
Enforcement Division (ED). Enforcement resources would be moved from the
media divisions to the ED. The Enforcement Division Director would have
authority and accountability for the enforcement components of grants. The
internal structure of the ED could be media-oriented, or could be based on a sector,
geographic or other approach.
Superfund resources and functions would remain unchanged under this option;
the Superfund division director would remain responsible for both enforcement and
programmatic (fund-lead) functions.8
Legal staff would remain consolidated in the Office of Regional Counsel;
enforcement attorneys would not be moved into the ED.7
Regional inspection resources could be deployed in the ED, in the ESD, or in a
combination of both, at the discretion of the Region.
Superfund
Superfund staff would not be included in the ED, because Superfund
"enforcement" does not lend itself well to separation from non-enforcement
functions. Superfund "enforcement" involves primarily (a) compelling PRPs
6 If this Option is selected, it will be necessary to
consider whether other regional site remediation enforcement
activities should be consolidated with the Superfund office
(i.e.. excluded from incorporation into the ED). Such activities
include RCRA Corrective Action enforcement, Leaking Underground
Storage Tank enforcement and enforcement under the Oil Pollution
Act.
7 Although this Option contemplates that enforcement
lawyers will remain in the existing ORC, some Task Force members
recommended that enforcement lawyers should be part of the
Enforcement Division if this Option is selected.
48
-------
VII. Long Term Impacts
to perform response actions and (b) pursuing cost recovery actions.
Superfund is not a regulatory program with long-term concerns about
operating facilities, but is more like a public works program with a cost
recovery mechanism.
The technical staff who must support Superfund enforcement activities are
the Remedial Project Managers and On Scene Coordinators, who also
manage the fund-lead response actions. Removal of these functions to a
separate ED would necessitate duplication of effort: enforcement staff would
have to become as familiar with the details of a given response action as the
"program" staff who managed that response action.
Legal Staff
The ED would be the primary regulatory enforcement "client" of the Office
of Regional Counsel, in which enforcement legal staff would continue to be
housed. The Task Force agreed that legal staff should not be included in the
ED for a number of reasons. First, the quality of legal support with respect
to both enforcement and counselling is enhanced when attorneys perform
both functions.
Second, consolidation of legal and technical enforcement staff into the same
ED would require a redefinition of their roles and the relationship between
them. Currently, regional enforcement attorneys are clearly in a support
role, consistent with the attorney/client relationship. The program offices
are responsible for policy decisions and priority-setting. If legal and technical
staff are combined in a single operational enforcement office, these lines of
authority may become blurred. Legal and technical staff would be peers
within the Division, each with an equal claim for full participation in policy
and priority-setting decisions. This might actually increase frictions between
lawyers and technical staff.
Third, if legal staff were incorporated into the ED, the senior regional official
with responsibility for legal enforcement issues would no longer be at the
SES level.
49
-------
VII. Long Term Impacts
Major Benefits:
• The ED Division Director provides a single enforcement focal point below the
DRA level, responsible and accountable exclusively for regulatory
enforcement activities. [8,9,10]
• Elements of the new enforcement vision, such as multi-media, geographic &
sector approaches, can be more easily and efficiently incorporated. Major
structural change gives the best chance of departing from the traditional
media approach. [1,2]
• Implementation of this option would obviate the need for the inter-divisional
case screening and multi-media enforcement coordination committees which
are now common to most Regions. There would be a significant reduction
in transaction costs for cross-program enforcement efforts.
• This Option is similar to Headquarters' structure at the senior management
level, which provides a clear line of HQ/Regional communication on
enforcement and compliance issues. [4]
• Ability to shift enforcement resources in response to shifting enforcement
priorities is enhanced. [2]
• Enforcement personnel may more readily be able to gain training, experience
and expertise in multiple media. [11,12,13]
• Regional enforcement practices across media are more likely to be
consistent. [6,10]
• Provides consistent State and tribal enforcement program guidance. [5]
• Sends a clear message that enforcement is a major priority for the Agency.
Major Drawbacks:
• A large new division will be created in the Region, possibly imbalancing
regional structure and presenting potential critical mass problems -- some
remaining program divisions will not be large enough to stand alone. (E.g..
TSCA, FIFRA and EPCRA programs, for which enforcement resources
50
-------
VII. Long Term Impacts
predominate in the Regions.) Adoption of this option may thus entail
reorganization of the rest of the Region. [7,14]
• Significant transition costs may be experienced; the disruption which
accompanies a major reorganization can impair morale and may result in a
temporary reduction in outputs. [11,14]
• While enforcement integration is facilitated, this option impairs the single-
media integration of enforcement and non-enforcement functions. Reduces
cross-fertilization and sharing of expertise within integrated single-media
units. [3,5,7]
• Transaction costs may be increased when performing regional strategic
planning, and in connection with other interactions between enforcement
and program offices. Site-specific decision making which involves both
enforcement and program offices will also require coordination, and conflicts
may arise which could require elevation to the DRA. [2,7]
• Roles of the ED and media program offices in the compliance assistance
arena might be overlapping and confusing. [8,10]
• Dissimilarity with State and tribal media-oriented enforcement structures
may raise transaction costs and make strategic planning, data management,
communications, grant negotiations and oversight more difficult.8 [5]
• Because separate grant funds are not earmarked for enforcement purposes,
transaction costs among enforcement and program personnel involved in the
grants negotiation process may increase; conflicts might require elevation to
the DRA.
OPTION 4: Regional Flexibility
Option 4 contemplates a fundamentally different approach to the questions
under consideration by the Task Force. Under this approach, the focus is on the
enforcement process rather than organizational structure.
s This drawback may be mitigated to some extent if the
Enforcement Division is organized internally along traditional
media lines.
51
-------
VII. Long Term Impacts
Option 4 envisions that each Region would select that structure and those
operational changes which it believes will best enable it to achieve the desired
results. A Region's selection could range from continued reliance on its current
structures all the way to creation of a fully consolidated regional enforcement
division housing all regional enforcement resources. The use of Enforcement
MOUs would provide assurance that the objectives of the new enforcement vision
would be addressed.
Under this flexible approach, each regional office might select a different
approach: some might select Options 1, 2 or 3 above, or variations thereof; others
might remain organized as they currently are, but might adopt operational changes
to further enhance their responsiveness to the new enforcement vision
objectives.9 Each Region would, however, be obliged to inform OECA about the
structure it has adopted and how it plans to achieve these objectives.
Assurance that the new enforcement vision objectives are well understood and
are fully implemented by the RAs/DRAs will be provided through specific
Enforcement MOUs. The AA/OECA would negotiate with the RA/DRA in each
Region concerning the specific enforcement and compliance activities and outputs
that are desired. The RAs/DRAs would be held accountable for achieving these
results. In the nature of a contractual agreement, this approach imposes
obligations on both HQ and the Regions to ensure that the specified activities and
outputs are accomplished. This approach would encourage the Agency to better
link elements of the enforcement vision with clear measures of success.
Major Benefits
• Empowers regional managers to select what they believe to be the best
constellation of structural and operational arrangements for meeting the new
9 The Task Force, in its deliberations, removed certain
options included in the Draft Report from further consideration
in this Final Report, for reasons set forth in Appendix 7 (Long
Term Impacts Responsiveness Summary). If Option 4 is selected,
the Administrator may wish to establish some limitations on the
regions7 full range of discretion. For example, the
Administrator may determine that Regions should, at a minimum,
create a single point of contact for enforcement (as is
contemplated under Option l); and/or that Regions should not
select an option which divides Superfund enforcement and fund-
lead staff into separate divisions.
52
-------
VII. Long Term Impacts
enforcement vision objectives. Since Regions will self-select their
approaches, there may be a greater sense of "buy-in" and commitment to
make those approaches work. [3,11]
• This option recognizes that "one size may not fit all." Provides the ability to
adapt to variations in circumstances and culture among the ten Regions,
including their relations with State, tribal and local governments. [5,7]
• To the extent that a variety of different approaches are adopted by the
several Regions, this option may provide an improved information base about
the efficacy of different options. Such information could be drawn upon in
the future, if it should ever become desirable to established common
structure across the Regions.
Major Drawbacks
• A multiplicity of approaches might emerge if Regions adopt what could be
fundamentally different approaches; the lack of consistency may be
confusing for Headquarters and other Regions, and may make accountability
and communications more difficult. [4,8]
• If approaches adopted by some Regions prove unsatisfactory, Regions which
adopted them might be compelled to go through another round of
restructuring in the relatively near future. [14]
• This option relies more heavily than some of the others on the use of
Enforcement MOUs, which may prove difficult to develop. [8]
H. MATTERS NOT ADDRESSED IN THIS REPORT
Certain issues were discussed by the Task Force, but are not explicitly
addressed in detail in this Report. These include the role and organizational
location of the Agency's criminal enforcement program; the federal facilities
enforcement program; and the interaction between the work of this Task Force and
the Agency's Streamlining efforts, which are taking place contemporaneously.
53
-------
VII. Long Term Impacts
1. Criminal Enforcement Program
Currently, the Agency's criminal investigative agents are organizationally
part of OECA. The regional offices of the Criminal Investigations Division (CID)
report to Headquarters, not regional management. Regional Criminal Enforcement
Counsels (RCECs) are located in the ten Offices of Regional Counsel. Considerable
technical and program support for the criminal enforcement program is provided by
the regional media program offices and other support offices (such as the
Environmental Services Division). Because of a number of unique attributes of the
criminal enforcement program, and of the job description and requirements for the
criminal investigators, we elected not to give further consideration to options
which would involve a change in the organizational placement of the criminal
investigatory staff.
2. Federal Facilities Enforcement
The Task Force recognizes the importance of ensuring cohesiveness and
coordination among Headquarters, regional offices, and other federal agencies, in
the federal facilities enforcement arena. The Task Force determined, however, that
it was not necessary for this Report to separately address regional activities in that
arena. In most Regions, federal facilities enforcement is carried out by the same
staff, and in the same organizational units, as carry out other enforcement
activities. (In Headquarters, these activities are within the jurisdiction of OECA's
Office of Federal Facilities Enforcement.) In addition, most Regions have a federal
facilities coordinator (with functions that correspond more closely to the Office of
Federal Activities in OECA). For the purposes of this report, we have assumed
that regional federal facilities enforcement work, under any of the options
considered, would still be carried out by the same staff and in the same manner as
non-federal facilities enforcement.
3. Streamlining
Contemporaneous with its consideration of the enforcement program in both
Headquarters and the Regions, the Agency has been very much involved in
implementing the Streamlining objectives of the National Performance Review.
These include, among other things, an increase in the ratio of staff to supervisors;
empowerment of staff; reduction of transaction costs and unnecessary
bureaucratic burdens; and more efficient and cost-effective operations.
54
-------
VII. Long Term Impacts
There is obviously a connection between the work of this Task Force and
the Agency's Streamlining effort. The decision which will follow from this Report
could have a significant impact on the precise way in which regional offices elect
to accomplish the Streamlining goals. A number of comments received from
Agency staff during the Task Force Inreach effort offered widely varying
interpretations of what impacts the options considered in this Report might have
on Streamlining.
The Task Force believes that Streamlining considerations, per $e_, do not
provide helpful, systematic criteria for the evaluation of the several options
presented in this Report. The Task Force believes that Streamlining objectives can
be achieved regardless of which option or combination of options is ultimately
selected. Accordingly, we have not further addressed Streamlining issues in the
evaluation of options contained in this Report.
4. Reporting Relationship Options
The Task Force assumed that reporting relationships would remain
unchanged. Other options are, of course, possible, and might affect the Regions'
enforcement operations. For example, the Regional Counsel could report to the
RA/DRA instead of to the AA/OECA (or, as in the past, to the General Counsel).
The Administrator may wish to have such options considered further.
VIII. INREACH
The primary thrust of the Task Force communications endeavor was to
inform and seek comments from over 18,000 EPA employees. Accomplishing this
task in a timely, effective manner was a challenge. Two innovative methods were
used to facilitate the flow of information within the Task Force and the Agency.
To ensure accurate communications, each Task Force member was required to
serve on both a substantive subcommittee and a communications subcommittee.
Information was transmitted quickly by electronic communications -- using the
Agency's E-mail system and particularly Local Area Networks (LANs) in the
Regions.
In most cases, information was transmitted to employees the same day the
subcommittee members received it. Information was disseminated to about 8,700
regional employees through LANs. It was distributed to about 10,000
Headquarters staff by E-mail, LANs, fax, and hard copies. About 500 comments
were received from employees nationwide representing responses from individuals
55
-------
VIII. INREACH
as well as consolidated comments from divisions, program offices, Regional Air
and Water Division Directors, and entire Regions. The response to various
meetings held in the Regions and Headquarters was significantly higher with more
than 2,000 employees attending approximately 45 meetings. The majority of
comments addressed the proposed options. A small number of comments
addressed short term issues and the assignment of roles and responsibilities.
A summary of activities is presented here to provide an overview of the effort
expended to communicate with and involve Agency employees of all levels in the
process.
A. COMMUNICATION TOOLS/METHODS USED TO DISSEMINATE AND
COLLECT INFORMATION
• LANs/Paper copies: The Regions primarily distributed the Task Force
requests for information and draft reports electronically through LANs while
Headquarters offices used a mix of LANs and paper copies. The electronic
method proved very effective in widely distributing information as well as
receiving input on specific documents. All members distributed paper copies
to selected groups when they could best facilitate the desired result (i.e..
discussion at Senior Staff meetings, etc.). Packages of Task Force
documents were periodically distributed to the Agency Assistant, Associate
and Regional Administrators.
• Open Fora/Brown Bags/All-Hands Meetings: Beginning in January '94,
Subcommittee members facilitated a series of open forums, brown bags, and
all-hands meetings in all Regions and at Headquarters. The regional
meetings seemed to generate greater attendance than the Headquarters'
meetings and were attended by a larger and more diverse representation of
Agency staff, supervisors, and middle and senior managers from all
programs. The meetings generally had similar formats with a Task Force
member making a presentation then providing opportunity for questions or
discussion of the work of the Task Force.
• Discussion at Appropriate Regularly Scheduled Meetings: Members also
took advantage of regularly scheduled meetings such as Multi-Media
Enforcement Committees, Enforcement Branch Chiefs and Senior Staff
meetings to discuss the Task Force activities. Discussions at these
meetings provided valuable feedback to the Task Force as well as providing
information to enforcement managers.
56
-------
VIII. INREACH
• Information Repositories: Documents were made available at each Agency
location to ensure easy access to information on the work of the Task Force.
• Newsletters: Many subcommittee members took advantage of opportunities
to publish articles in newsletters and to advertise the availability of
documents either on the LAN or at information repositories.
B. KEY POINTS
• Few employees nationwide responded to the initial Task Force request for
information and comments. All ten Regions submitted a consolidated
response to the data collection inventory. There seemed to be a general lack
of knowledge regarding the Headquarters reorganization which made it
difficult for staff to respond to the questions. Most indicated they would be
more interested when the Task Force was farther along in the process and
they could review draft documents, options, or recommendations.
• The second request for employee response was more successful since the
substantive subcommittees had draft documents that were provided for
review. Most of the comments concerned the proposed options and
represented a wide range of Agency employees and managers. Some who
commented expressed concern that there was not more time to review the
options.
C. SUMMARY OF COMMENTS
A wide variety of concerns were expressed but no one concern was identified
by more than about 20 percent of commentors. These concerns included:
• The impact of major restructuring on our relations with States, Tribes and
local governments.
• How each option would accomplish new enforcement vision elements.
There was no consensus on which option would best achieve the desired
outcomes.
• Many employees expressed concern about separating technical enforcement
and programmatic (like permitting and planning) activities.
57
-------
VIII. INREACH
• Although many commentors argued that regional legal staff should remain in
a consolidated legal office (i.e.. the Office of Regional Counsel) a number
argued that inclusion of legal enforcement staff in an enforcement division
would be important.
• A number commented that the Environmental Science Divisions provide a
valuable, multi-media, professional environment for inspectors which should
not be lost.
• A substantial number of commentors argued that "one size does not fit all"
and that Regions ought to have the flexibility to adopt whatever structure
they believe will best suit their circumstances. Many who suggested this
approach proposed that Headquarters should advise the Regions about what
results are desired, and the Regions should figure out how best to achieve
those results.
• Among those who mentioned the subject, almost all argued that Superfund
enforcement staff should not be separated from fund-lead staff.
• Commentors expressed concern about disruption and the effect on morale of
a major reorganization. Some noted that the options creating an
enforcement division could affect the structure of an entire Region. They
argued that an exclusive focus on enforcement should not be driving a
comprehensive, Region-wide restructuring.
• Commentors generally acknowledged that our current organizational
structure imposes transaction costs when attempting to coordinate multi-
media enforcement activities.
• There was general agreement with the breakout of roles and responsibilities
as listed in the Task Force matrix (see Appendix 4)
• There was general agreement that cases that rise to national attention are
those that:
- deviate from national guidance
- set legal or program precedence
- are initial cases brought under new statutory authority
• Commentors agreed that the role of compliance assistance in regional and
Headquarters enforcement work will need significant discussion.
58
-------
VIII. INREACH
• Commentors disagreed on the degree to which responsibility should be
delegated to the Regions.
• Regional comments advocated delegating criminal enforcement
responsibilities to the Regions.
For more details regarding the input received through the inreach efforts,
please see the responsiveness summaries in Appendices 5 and 7.
IX. OUTREACH
The-Task Force solicited views from several hundred parties on potential
regional impacts of the Agency's Headquarters enforcement reorganization. This
outreach took place in two phases and was done at both the national and regional
levels.
During Phase I, a questionnaire consisting of seven questions approved by
the Task Force was mailed to over 1000 State and local governmental agencies,
citizens' groups near federal facilities (e.g.. environmental justice groups), other
federal agencies, tribes, environmental groups and industry representatives. Our
national outreach effort also included labor unions, State and local associations,
members of the Keystone Dialogue in Federal Facilities, Congressional staff,
environmental organizations and industry.
Many Regions held meetings with their State counterparts to discuss the
purpose of the Task Force and to solicit input. Similar meetings were held in
Washington, D.C. for national associations.
To date, just over 200 entities have responded in writing to the Phase I
questionnaire. The "response profile" follows:
States/local governments/tribes 120
Environmental groups 25
Federal agencies 13
Industry groups 25
National associations 42
Phase II consisted of a mailing of detailed options to essentially the same
groups, with an opportunity for further comment. In EPA's ten regional offices,
follow-up telephone calls were made to States and Tribes. Many Regions also held
59
-------
IX. Outreach
additional meetings with their State counterparts. Two additional meetings were
held at the Hall of States, which were attended by five national organizations and
six States. In addition, interviews were done with seven former EPA officials -- all
of whom had served in one of the Agency's regional offices -- to solicit their views
on long-term options, and on Headquarters/regional roles and responsibilities.
To date, fifty-eight entities have commented either orally or in writing on the
Phase II mailing. The "response profile" for Phase II follows:
State 41
Tribes 2
Environmental groups 2
National organizations 9
Industry 3
Federal agencies 2
Former EPA officials 7
The Task Force did not identify consistent or recurring themes or directions
from responses to the Phase I questionnaire. However, most of the States
responding to the Phase II mailing seem to prefer either the status quo (Option A)
or a modest reorganization along the lines of Option B. The States evinced
concern that the Regions should be alloVved flexibility; that the relationships they
have developed with their respective regional offices not be upset; and that EPA
look at overall compliance not just enforcement. They also emphasized the
importance of good communication between EPA and the States and of
designating a single point of contact in the Regions. They said that single media
cases will still be significant and some States asked for one comprehensive
enforcement guidance document. The former EPA officials interviewed, and
organizations attending the meeting at the Hall of States, expressed similar views.
Appendix 8 - Part A summarizes responses to the Phase II mailing. Part B
summarizes responses to the questions posed in our Phase I mailing, Part C
summarizes the interviews of former EPA officials, and Part 0 summarizes the
Phase II meeting with States and national State associations at the Hall of States.
60
-------
X. Next Steps
X. NEXT STEPS
During its deliberations, the Task Force approached the possibility of
reorganization with an open mind and agreed to consider all proposals for structure
and organization of the regional enforcement programs. Creativity, complemented
with common sense and practicality, was encouraged.
The Task Force will brief the Senior Leadership Council (SLC) on its Report
on May 12, 1994. Following that briefing, the Administrator will review the SLC's
recommendations and this Report and, in the context of streamlining, render her
decision.
A compilation of the Task Force's recommended action items is included as
Appendix 3.
61
-------
Appendix 1
Appendix 1
DEFINITIONS AND ASSUMPTIONS
Listed below are definitions of terms used throughout this report.
Accountability: The responsibility of an employee to accomplish results that
are required by the Agency.
Communication and Coordination: The formal and informal contacts that occur
among Agency offices and personnel who must interact in order to assure a
smooth day-to-day work flow.
Compliance assistance: Those activities that help the regulated community
voluntarily meet a legally established requirement or facilitate expeditious
compliance. Because there are many ideas on what constitutes compliance
assistance the Task Force used a very broad concept but did not include purely
voluntary programs such as Green Lights and 33/50.
Multi-media enforcement: This term is often used at EPA to describe a case
initiated under multiple statutes or involving multiple programs. The term
"multi-media" includes a focus on activities occurring much earlier in the
enforcement pipeline than the case development stage. It includes strategic
planning, compliance data analysis, targeting and inspections/compliance
monitoring and compliance assistance. The use of multi-media approaches at
these initial planning stages is intended to maximize comprehensive, strategic
and holistic compliance evaluations and should maximize the impact of
enforcement activity.
It is assumed that the majority of enforcement cases brought will continue to
be single-media (or, more accurately, single-statute or single-program) actions.
The measure of our success should not be the number of multi-media cases,
but the assurance that evaluations and actions taken are as comprehensive as
needed. The cross-program themes of pollution prevention, environmental
justice, ecosystem and sector-based targeting, which are multi-media by nature,
require this type of approach.
Reporting relationship: The supervisory chain of command applicable to any
employee.
States: Defined to include States, Tribes and local governments.
A - 1
-------
T
Appendix 2
APPENDIX 2
VISION OF ENFORCEMENT
from "Integrated Enforcement Approaches for EPA: Report of the EPA
Enforcement Reorganization Task Force," September 1, 1993.
EPA's vision for enforcement is a program that:
• Reduces risk and accomplishes the Nation's goals of protecting health and
the environment.
• Delivers full compliance, inspires pollution prevention, and drives innovative
and comprehensive solutions.
• Ensures equal environmental and health protection for all Americans.
• Employs culturally diverse, skilled, and motivated people.
• Addresses violations of law in a swift and effective manner.
To achieve this vision EPA will:
• Deter violations through aggressive and visible enforcement.
• Target the worst environmental and health problems and the most serious
violators.
• Enhance use of multi-media approaches to enforcement.
• Ensure that EPA's rules are clear and enforceable.
• Forge a strong working relationship with States, Tribes, and localities, and
enhance their capacity to solve environmental problems.
• Engage the Nation to build understanding of our goals, activities and
accomplishments.
A - 2
i
-------
Appendix 2
• Streamline our organization so that decisions are sound, timely, and
responsive.
• Deliver clear and consistent national enforcement policies.
• Integrate quality multi-media data and compliance information.
• Encourage strong environmental performance in the regulated community
and use a broad range of tools to achieve compliance.
• Measure success based on compliance and environmental results.
• Provide training, equipment, and a positive work environment for EPA
employees.
A WORKING DEFINITION FOR ENFORCEMENT
The goal of enforcement is to ensure compliance with environmental
requirements and other environmental obligations (e.g.. compelling Superfund
cleanup activity). Enforcement is, in effect, a continuum of activities related to
this basic goal. Inspections to detect actionable problems and the initiation of
formal enforcement actions to correct such problems are some of the more obvious
examples of enforcement. Enforcement also includes Agency activity undertaken
to facilitate and support the enforcement process, as well as activity that involves
the exercise of the Agency's enforcement discretion.
Enforcement presupposes the existence of enforceable environmental
requirements. Consequently, as a general rule, the enforcement continuum begins
after environmental requirements have been established by rule or permit.
Generally, the starting point for the continuum is inspection and other monitoring
activity undertaken to determine compliance with environmental obligations. Once
a violation is identified, the Agency's response to that violation -- whether that be
formal enforcement action, a warning, or compliance assistance - is also in the
nature of enforcement because it necessarily reflects the exercise of the Agency's
enforcement discretion. Such a matter remains in the enforcement continuum until
the violator achieves compliance through a court order, a settlement, or otherwise.
Consistent with the foregoing, the following are enforcement activities:
A - 3
-------
Appendix 2
• Inspections, sample analysis, assuring data quality, and other compliance
monitoring efforts (e.g.. review of self-reported compliance information,
review of State files);
• The Agency's response to detected violations, whether formal or informal;
• Interaction with State, Tribal, and local governments regarding particular
non-compliance problems and overall enforcement objectives;
• Case development and support;
• Monitoring compliance with consent agreements and orders;
• Development and implementation of enforcement and compliance
monitoring priorities, strategies, and policies;
• Participating in the development of comprehensive responses to
environmental or public health problems where enforcement may be part of
the solution;
• Managing information systems that track compliance and enforcement
activity;
• Capacity-building activity, such as providing information, training, and
funding to States and Tribes in support of enforcement and compliance
monitoring activity (including the administration of enforcement related
grants);
• Enforcement and compliance monitoring training for EPA personnel;
•
• Networking and providing enforcement leadership in relationships with other
Federal agencies, States, Tribes, and Nations;
• Compliance assistance (providing the regulated community with additional
guidance regarding their obligations as a complement to formal enforcement
strategies);
• Oversight of regional, State, and Tribal enforcement activity;
• Assimilating and reporting enforcement accomplishments;
A - 4
-------
Appendix 2
Administrative support of enforcement activity;
Participating in the rulemaking, permitting and legislative processes to help
ensure enforceability;
Making applicability determinations and otherwise interpreting the impact of
regulatory requirements on particular operations;
Addressing laboratory practice problems when laboratories are providing
laboratory service to a private party, the service is related to compliance
monitoring activity, and nonperformance is subject to sanctions; and
Voluntary compliance or compliance promotion activities (as distinguished
from voluntary programs such as 33/50).
A - 5
-------
Appendix 3
Appendix 3
RECOMMENDED ACTION ITEMS
Although the Task Force did not reach a consensus on a particular structural
option, it developed several recommendations for the Administrator and the
Assistant Administrator for OECA on appropriate enforcement roles, case
management, accountability, and how to conduct enforcement in the transition
period.
ASSIGNMENT OF ROLES
Priority Setting:
• Headquarters should have the lead in national, multi-year strategic planning
and annual budget development, with the Regions participating. For regional
strategic and annual program planning, the Regions should have the lead,
operating in accordance with the national plans.
• Headquarters should be in the lead on national priority setting and targeting,
technical and legal support on national issues, clearinghouse/coordination,
development of information systems, providing technical experts on key
cases, DOJ interface, policy and guidance on case management,
coordination with OGC, communication and coordination among Regions,
and citizen suit assistance.
• Regions should have the lead on regional targeting and screening, and
communicating and coordinating with Headquarters and States.
• Regions and Headquarters should share the responsibility for ensuring
consistency with national policy guidance but Headquarters should have an
audit function with respect to the Regions.
4.
Next Steps:
• The Assistant Administrator for OECA, with regional participation, should
establish, as soon as possible, guidelines for determining types of cases or
issues that would require the Assistant Administrator's concurrence in a
settlement or actual management of a case.
A - 6
-------
Appendix 3
• Make sure that current staff and new employees have the benefit of the
thought that went into this exercise on roles and responsibilities.
• Further work must be done to define national cases and issues.
• EPA needs to better define what constitutes compliance assistance and
when and how it is delivered.
• There must be a fresh look at all delegations from Headquarters to Regions
and within Headquarters and Regions, so that there is the greatest possible
empowerment, decentralization of responsibility, and clear accountability
while maintaining consistency.
• Relationships with key partners -- Department of Justice and the States --
must be addressed.
• With respect to States, EPA's grant authorities and processes need to be
examined to increase flexibility (but maintain accountability) in State grants
to allow States to continue initiatives in multi-media enforcement and
pollution prevention, among other things.
• Further efforts to assign roles and responsibilities within Headquarters must
be undertaken.
• The subjects of environmental justice and pollution prevention affect all the
business of EPA and must be worked into each function that EPA carries
out.
ACCOUNTABILITY
• OECA must have a clear point of entry into the Region for accountability,
compliance and enforcement policy, guidance, budget, resource distribution,
reporting, data, national meetings, etc. Communication channels must also
be clearly defined and understood.
• The Task Force agreed that one way to ensure that enforcement objectives
are well understood and are fully implemented is through specific
Enforcement Memoranda of Understanding (MOU) between each Region and
OECA. The Task Force agreed that such Enforcement MOU are desirable
regardless of which structural option is selected.
A - 7
-------
Appendix 3
TRANSITIONAL PERIOD
Headquarters/Regions Coordination:
• The OECA Assistant Administrator should establish an OECA/regional
Planning Workgroup immediately.
• EPA should expand the OECA/Regional Workgroup to include the States by
the fall of 1994.
• Each Region should be requested to submit a regional FY 95 compliance and
enforcement document or memorandum of understanding that supports
National/regional priorities and considers State priorities by mid-summer
1994.
• The Deputy Regional Administrator would be the compliance and
enforcement focal point (single point of contact) for OECA and would be
accountable to OECA for meeting regional compliance and enforcement
goals.
• For media specific compliance and enforcement responsibilities, the Regional
Program Directors would be contact points with OECA for policy, guidance,
budget and resource management, reporting, data and national meetings.
• It is necessary to make a clear "crosswalk" describing Headquarters/regional
lines of operational communication for all major program and functional
areas.
• A regional/Headquarters transition group should be established no later than
the effective date of the OECA reorganization to ensure ongoing attention to
the range of transition issues discussed in this report.
Regional Coordination:
• The Regions should set up a Regional Enforcement Management Council
composed of the Deputy Regional Administrator, the Regional Counsel, the
directors of the program media offices, the Special Agent in Charge, Director
of the Office of External Affairs, and the regional enforcement officer.
A - 8
-------
Appendix 3
• Joint Program/ORC annual program enforcement planning meetings should
be held in each Region.
• Representatives from ORC and the individual program offices should have
monthly coordination/priority-setting meetings.
• ORC and the individual regional program offices should hold regular case
screening meetings to discuss and evaluate upcoming cases.
EPA/State Planning:
• OECA should ask each Region to review and evaluate the status of
State/EPA enforcement agreements and other State/EPA management
mechanisms immediately.
• States should be brought into the enforcement planning and goal-setting
process immediately.
• Guidance on the State aspects of the enforcement program should be
issued.
• Establish cooperative State/EPA planning efforts to agree on initiatives,
targets and areas of responsibility.
• Consider consolidated/coordinated State enforcement program reviews.
• EPA should consider establishing a regional position for a State enforcement
program coordinator.
• Procedures should be established to ensure regular, routine communications
with all State enforcement program managers.
• Each Region should convene annual enforcement conferences with State and
Federal officials involved in managing enforcement programs.
• Each Region should establish a State/EPA enforcement committee.
• EPA should encourage State multimedia enforcement programs.
A - 9
-------
Appendix 3
State Grants:
• If still timely, grants should allow for the incorporation of cross-program
enforcement and compliance priorities and outputs.
• Consider the establishment of a combined multimedia enforcement grant.
Measuring Enforcement:
• EPA should commence a review of the compatibility of data systems with a
goal of integrating the data into a consolidated enforcement outputs report.
• OECA and the Regions should immediately begin a coordinated effort to
formalize a new structure for measuring program success.
A - 10
-------
Appendix 4
Appendix 4
MATRIX OF
ROLES AND RESPONSIBILITIES
The following is an outline of the functions necessary to conduct EPA's
enforcement and compliance program. It also reflects what organization within the
Agency should be responsible for these functions. These roles and responsibilities
were assigned by the Roles and Responsibilities Committee of the Regional Impacts
Task Force.
System for Assigning Roles and Responsibilities
Notation Responsibility for Function
H Headquarters Lead
R Regional Lead
H/RP Headquarters Lead/Regional Participation
R/HP Regional Lead/Headquarters Participation
H/RC Headquarters Lead/Regional Concurrence
R/HC Regional Lead/Headquarters Concurrence
S Shared Responsibility
X Majority vote
XX An "X" in more than one category means that the responsibility for
that particular function depends on the specific circumstances
involved
Definitions
Lead: Assumes consideration of documents, guidance, precedent,
positions, concerns, perspectives of non-lead organizations
Active involvement, consulting, formal or informal commenting,
requires some increment of resources
Participation;
Concurrence:
Veto authority
A - 11
-------
Appendix 4
ENFORCEMENT AND COMPLIANCE
ROLES AND RESPONSIBILITIES
1. COMPLIANCE AND ENFORCEMENT PLANNING
(Note--The following areas of concern are
assumed to be integrated into all levels of
complinace and enforcement planning: analysis
of risk, sensitive areas, compliance history,
environmental justice, regional priorities, pollution
prevention, sectors, ecosystems)
Strategic Planning
- National strategic planning (multi-year)
- Establishing goals and objectives
- Setting priorities
- Trends analysis
- Success measures
- Innovation (P2, audits, sector analysis)
- Environmental equity
- Integrating programs and enforcement
- Regional strategic planning (multi-year)
- Establishing goals and objectives
- Setting priorities
- Trends analysis
- Success measures
- Innovation (P2, audits, sector analysis)
- Environmental equity
Programmatic Planning
- Planning with individual states
- Inspections
- Enforcement actions
- Enforcement memoranda
- Grants
- Budget development
- National operating guidance (annual)
- National grants guidance
- Regional operating plan (annual)
H
R
X
X
X
X
X
X
X
X
X
X
X
X
H/
RP
X
X
X
X
X
X
X
X
X
X
X
R/
HP
X
H/
RC
R/
HC
S
A - 12
1
-------
Appendix 4
ENFORCEMENT AND COMPLIANCE
ROLES AND RESPONSIBILITIES
Initiative Planning and Targeting
- Targeting and planning of national compliance
and enforcement initiatives
- Targeting and planning of multi-regional
compliance and enforcement initiatives
- Targeting and planning of regional compliance
and enforcement initiatives
2. PROGRAM EVALUATION AND OVERSIGHT
- Regional enforcement and compliance program
review
- Collect and report results to Headquarters
- Compile and analyze results at the national level
- Collect and report results at Regional level
- Compile and analyze results at Regional level
- Process analysis
- Feedback to national planning cycle
- Feedback to regional planning cycle
3. POLICY AND GUIDANCE
- Enforcement response/penalties
- For regulators in implementing programs and
regulations
- Settlements
- General management policy compendium
(EDRS)
H
X
X
X
R
X
X
X
H/
RP
X
X
X
X
X
X
R/
HP
X
X
X
H/
RC
R/
HC
S
X
A - 13
-------
Appendix 4
ENFORCEMENT AND COMPLIANCE
ROLES AND RESPONSIBILITIES
4. COMPLIANCE ASSISTANCE
- Development of pre-violation compliance
assistance
- General
- Specific
- Delivery of pre-violation compliance assistance
- General
- Specific
- Development of post-violation compliance
assistance
- General
- Site Specific
- Delivery of post-violation compliance assistance
- General
- Site specific
- Development of programs to promote
compliance (e.g. Environmental Leadership
Program)
- Delivery of programs to promote compliance
(e.g. Environmental Leadership Program)
5. INSPECTIONS, INVESTIGATIONS, MONITORING
AND SAMPLING
- Inspection logistics and coordination
- Compliance inspections, including state
oversight
- Monitoring, sampling and testing
- Lab support
- Compliance monitoring and tracking
- Data quality assurance
-Lab
- Compliance
- Criminal investigations
- Civil investigations
H
X
X
X
X
X
X
X
R
X
X
X
X
X
X
X
X
X
X
X
X
H/
RP
X
X
X
X
X
R/
HP
X
X
X
X
H/
RC
R/
HC
S
X
A - 14
-------
Appendix 4
ENFORCEMENT AND COMPLIANCE
ROLES AND RESPONSIBILITIES
6. CASE DEVELOPMENT AND MANAGEMENT
(Administrative and Judicial)
- National priority-setting and national targeting
- Technical and legal support on national issues
(e.g. NEIC)
- Providing headquarters technical and legal
support on Regional cases
- Providing technical experts for Regional cases
(e.g. witnesses)
- Clearinghouse/coordination (including info
sharing through the LAN)
- Development of information systems (e.g.
docket)
- DOJ interface (and with other Agencies)
- Timely policy and guidance on case
management
- Coordination w/ OGC (brokerage function)
- Regional targeting and screening
- Develop, manage, settle, and litigate cases
- Communicate and coordinate with HQ
- Communicate and coordinate with states
- Communicate and coordinate among Regions
H
R
X
X
X
X
H/
RP
X
X
X
X
X
X
X
X
X
X
R/
HP
H/
RC
R/
HC
S
A - 15
-------
Appendix 4
ENFORCEMENT AND COMPLIANCE
ROLES AND RESPONSIBILITIES
6. CASE DEVELOPMENT AND MANAGEMENT
(continued)
- Track settlements and judgement terms
- Oversight of state compliance and enforcement
- Ensure Regional consistency with national
policy guidance
- Appeals
- Decision to appeal an administrative case
- Conduct of an appeal on an
administrative case
- Judicial appeals
- Criminal case development
- Citizen suit assistance
- Defensive litigation
- Pre-enforcement
- Counter-claim
- Suspension and debarment, contractor delisting
Administrative Cases
- Regional administrative cases
- Administrative cases that rise to a level of
national attention (e.g. WTI; Kobe; national
precedent-setting cases)
- Case development and litigation
- Settlement
- Multi-Regional administrative cases against the
same company
- Case development and litigation
- Administrative settlement
- National administrative cases where program is
managed at Headquarters (e.g. Mobile sources;
TSCA PMN)
- Case development and litigation
- Settlement
H
X
R
X
X
X
H/
RP
X
X
X
X
R/
HP
X
X
X
X
H/
RC
X
X
R/
HC
X
X
X
S
X
A - 16
-------
Appendix 4
ENFORCEMENT AND COMPLIANCE
ROLES AND RESPONSIBILITIES
6. CASE DEVELOPMENT AND MANAGEMENT
(continued)
Administrative Cases (continued)
- Administrative initiatives
National:
- Overall initiative management and
coordination
- Initiative case development and litigation-
-administrative
Regional:
- Overall initiative management and
coordination
- Initiative case development and litigation-
-administrative
- Federal facilities cases
- Administrative case development and
litigation
- Administrative settlement
Judicial Cases
- Regional judicial cases
- Judicial cases that rise to a level of national
attention (e.g. Love Canal; national precedent-
setting cases)
- Case development and litigation
- Settlement
- Multi-Regional judicial cases against the same
company
- Case development and litigation
- Settlement
- National judicial cases where program is
managed at Headquarters (e.g. Mobile sources;
TSCA PMN)
- Case development and litigation
- Settlement
H
X
R
X
X
H/
RP
X
R/
HP
X
X
X
X
H/
RC
X
X
R/
HC
X
X
S
A - 17
-------
Appendix 4
ENFORCEMENT AND COMPLIANCE
ROLES AND RESPONSIBILITIES
6. CASE DEVELOPMENT AND MANAGEMENT
(continued)
Judicial Cases (continued)
- Judicial initiatives
National:
- Overall initiative management and
coordination
- Initiative case development and litigation-
-judicial
Regional:
- Overall initiative management and
coordination
- Initiative case development and litigation-
-judicial
- Federal facilities cases (CERCLA)
- Judicial settlement
7. STATUTORY AND REGULATORY
DEVELOPMENT
- Legislative liaison and development - Regulatory
development (including ICR development)
- Regulatory review (other agencies)
8. PROGRAM ADMINISTRATION AND SUPPORT
- Training (internal)
- Technical
- Legal
- General
-NETI
- Contract management support
- FMFIA, FOIA and miscellaneous activities
- ICR oversight
- Developing and maintaining internal delegations
- National
- Regional redelegation
H
X
X
R
X
X
H/
RP
X
X
X
X
X
»
X
R/
HP
X
X
X
X
H/
RC
R/
HC
S
X
X
A - 18
-------
Appendix 4
ENFORCEMENT AND COMPLIANCE
ROLES AND RESPONSIBILITIES
9. STATE PROGRAM OUTREACH, OVERSIGHT
AND CAPACITY BUILDING
- State program delegation reviews
- State program oversight
- Grants administration
- State program communication, joint planning
and implementation activities
- General training (legal and technical)
- Technical assistance
10. DEVELOPMENT AND MAINTENANCE OF
COMPLIANCE AND ENFORCEMENT DATA AND
INFORMATION SYSTEMS
- Management of all information systems
essential for maintaining a compliance and
enforcement program
- Data requirements
- Data entry
- Database links
- Contract support needs assessment
- Grant support needs assessment
- Contract/grant funding support
- Feedback/modifications to attain
maximum utility
- Data analysis
- Support of state data systems
- Provide Region-specific data for national
databases
11. INTERGOVERNMENTAL PARTNERSHIPS
- Congress -- general enforcement
- Congress - case specific
- State, local and tribal relations - national
- State, local and tribal relations - regional
- Federal agency relations (including DOJ)
H
R
X
X
X
H/
RP
X
X
X
X
X
X
X
X
X
X
X
R/
HP
X
X
X
X
X
X
X
X
X
H/
RC
R/
HC
X
S
X
A - 19
-------
Appendix 4
ENFORCEMENT AND COMPLIANCE
ROLES AND RESPONSIBILITIES
12. INTERNATIONAL ACTIVITIES
- Training and outreach
- Enforcement program activities
- International cases
- Coordination of data
13. INTERNAL AND EXTERNAL RELATIONSHIPS
- National meetings
- Internal liaison with programs
- Public outreach activities
- Media relations
- Facilitate communication and information
exchange about enforcement matters among the
Regions
H
R
H/
RP
X
X
X
X
X
X
X
X
X
R/
HP
X
X
X
H/
RC
R/
HC
S
A - 20
-------
Appendix 5
APPENDIX 5
ROLES AND RESPONSIBILITIES RESPONSIVENESS SUMMARY
Internal Comments
• There was general agreement with the breakout of roles and responsibilities as
listed in the Task Force's Matrix.
• There was general agreement that cases that rise to national attention are
those that:
Deviate from national guidance
Set legal or program precedence
Are initial cases brought under new statutory authority
Commentors disagreed on whether the following should be included:
Have a particular dollar value on penalties
Have a high level of public interest
Are part of a national initiative
• The role of compliance assistance in Regional and Headquarters enforcement
work will need significant discussion.
• Commentors disagreed on the degree to which responsibility should be
delegated to Regions.
• Regional comments advocated delegating criminal enforcement responsibilities
to the Regions.
External Comments
• Delegate civil and criminal enforcement to Regions.
• Give Regions more authority.
• Headquarters should provide clear policy and guidance and the Regions should
develop and manage cases.
Response to Comments
The report on roles and responsibilities supports increasing the delegation of
responsibilities to the Regions, when appropriate, especially in the delegation of most
judicial cases to the Regions. The Task Force's report also recognizes that extensive
discussion on compliance assistance will be needed as EPA works to define its role
in this area.
A - 21
-------
Appendix 6
Appendix 6
CRITERIA FOR EVALUATING LONG TERM OPTIONS
Integrated Enforcement
1. Facilitates multi-media and "whole facility" approaches to compliance.
2. Promotes cross-program strategic planning that ensures consistent enforcement
policies, helps target enforcement priorities based on risk, and provides for an
appropriate management and budget function.
3. Promotes cross-disciplinary teamwork.
Internal & External Relationships
4. Promotes efficient and effective Headquarters/Regional communications.
5. Improves EPA's abilities to interact efficiently with States, tribes, local
governments and the public.
6. Provides effective and efficient interaction with the regulated community.
7. Is consistent with an efficient delivery of environmental program services.
Enforcement Efficiency
8. Establishes clear roles, responsibilities and lines of accountability.
9. Enhances the Agency's ability to make enforcement decisions promptly and
efficiently.
10. Ensures that compliance and enforcement decisions are as consistent as
possible.
Human Resources
11. Provides challenging and positive work experiences for employees.
12. Provides a positive climate for advancement for personnel, and encourages
diversity in the workplace.
13. Recognizes training as a critical office function.
14. Minimizes transition costs of reorganization.
A - 22
-------
Appendix 7
APPENDIX 7
LONG TERM IMPACTS RESPONSIVENESS SUMMARY
Introduction
During January and February, 1994, the Regional Enforcement Impacts Task
Force conducted initial inreach and outreach efforts to inform internal Agency
personnel and external constituencies about the work of the Task Force and to
solicit responses to certain questions.
Comments submitted in response to those questions were used in the
development of draft reports of the Task Force Subcommittees, including Long
Term Impacts. In early March, these draft reports were made available to all
Agency employees and to external constituencies, and comments were requested
by March 18. Between March 18 and March 23 the comments received were
reviewed by the Subcommittees.
The Long Term Impacts Subcommittee utilized these comments in revising
its draft report for further consideration by the full Task Force at its March 24
meeting. Additional revisions were made after that meeting based on Task Force
discussions.
This Responsiveness Summary identifies many of the concerns raised by
internal and external commentors and Task Force members, describes additional
options that were suggested for consideration, and indicates how those concerns
or additional options were addressed in the final report.
Relationship of Options in Draft and Final Reports
The Draft Report on Long Term options identified six options, designated
Options A through F, which fell roughly along a continuum from the status quo
through complete consolidation of all regional enforcement resources in a single
division. In the final report four options are displayed, designated Options 1
through 4. The table on the following page explains how the original six options
relate to the final four options:
A - 23
-------
Appendix 7
Draft Report
Option A
Option B
Option C
Option D
Option E
Option F
Final Report
No longer displayed as an option; current structures are
described in Section VII(E).
Option 1.
Eliminated from further consideration
Eliminated as a stand-alone option but retained, in
combination with Enforcement Coordination Office
(Option 1), as Option 2 in the Final Report.
Option 3.
Eliminated from further consideration.
Option 4, "Regional Flexibility," is a new option included in the
Final Report in response to comments.
Inreach
The Report of the Inreach Subcommittee describes in additional detail the
specific steps taken by the Task Force to communicate with Agency employees
about its work. During March, 1994, some 337 separate written comments
pertinent to the Draft Long Term Options Report were received through the Inreach
Subcommittee.1 Using an evaluation summarization form, the subcommittee first
summarized the comments from each of the 10 regional offices and from
Headquarters; it then aggregated the information from these summarization forms
to develop a national profile of responses. The summarization form provided the
subcommittee with information about the demographics of commentors; the
options they preferred (if they expressed a preference); options they disfavored;
major issues of concern; and additional suggested options or variants.
1 A small number of these comments were from groups of
employees. The total number of employees whose comments are
represented is probably about 400-450. However, in our
tabulation we treated each discrete written comment as only one
single comment, even in the few cases where it represented more
than one commentor.
A - 24
-------
Appendix 7
It was not always possible to identify the organizational affiliation or level of
the commentor. For those where identification was possible, there appeared to be
a good distribution among legal and program office, and managerial and staff level
employees.
Preferences:
Most commentors expressed some preference for a particular option.
Among these, about a third preferred Option A. About one fifth preferred Option
B. Between 5 and 10% each preferred Options C and D. A little more than a
tenth of the commentors preferred Option E, while fewer preferred Option F.
About a tenth suggested other options or variants; and fewer than a tenth
preferred combinations B + D or C + D.
A smaller number of commentors expressed specific negative views about
one or more options. Of these comments, more than a third disfavored Option F;
over a quarter expressed disfavor for Option E; about a quarter disfavored Option
C; about a tenth each disfavored Options B and D; and about 7-8% disfavored
Option A.
issues of Concern:
Among the 337 comments, a very wide variety of concerns were expressed
and discussed; however, no one concern was identified by more than about 20%
of commentors. The most frequently identified issues are described below,
followed by a response indicating how that concern was addressed in the finaJ
report.
• Concern about the impact of major restructuring on relations with States,
Tribes end locel governments. This concern was mentioned by about a fifth
of all commentors. Most expressed the view that major reorganization,
departing from the current media-based structure (as envisioned by Options
E and F in the Draft Report or Option 3 in the Final Report) could make those
relationships more difficult, since most State/Tribal/local governments are
also organized along media lines.
Response: The Task Force recognized this concern, and it is reflected in the
Final Report. (See the "Major Benefits and Drawbacks" portions of the
description of each option.) The high priority assigned to maintaining and
A - 25
-------
Appendix 7
enhancing the relationship between EPA and its State, Tribal and local
government counterparts is reiterated elsewhere in the Report.
Comments about the new enforcement vision elements (primarily multi-
media enforcement and a geographical or sector focus). There was a very
broad spectrum of views expressed in this connection. Some commentors
felt that substantial reorganization (Options E or F in the Draft Report;
Option 3 in the Final) would significantly enhance EPA's capabilities in this
arena; some felt that minor restructuring (e.g.. Options B or C in the Draft,
or Options 1 and 2 in the Final) would be sufficient; still others felt that even
under Option A (current structure) the Agency could realize the
Administrator's objectives. In short, among commentors who mentioned
these concerns there was no consensus about which Options would best
achieve the desired outcomes.
Response: In the Final Report, there is considerable discussion about the
elements of the new enforcement vision. One of the central purposes of the
Task Force was, of course, to assess how different potential structures
might advance efforts to implement that vision. The "Major Benefits and
Drawbacks" associated with each option set forth the views of the Task
Force in this regard.
In general, the Task Force concluded that the new enforcement vision
objectives can be accommodated under each of the four options displayed in
the Final Report. However, those objectives which refer specifically to multi-
media, holistic enforcement approaches (e.g.. geographic and sector-based
enforcement; integration of environmental justice considerations; and wider
use of pollution prevention provisions in case settlements) can be more
easily accommodated by moving away from the traditional, media-based
structure. That is, the Task Force believes that as one moves from Option 1
towards Option 3, the Agency's ability to respond to these particular
elements of the new enforcement vision would be enhanced.
It is important to note, however, that other important objectives may be
better accommodated if the Agency adheres more closely to its current
organizational structure (e.g.. integration of program and enforcement
functions within the media offices).
Comments about the interconnection betwaan the Agancy's Streamlining
goals and the work of this Task Force. Among those who addressed this
A - 26
-------
Appendix 7
concern, most did not understand or agree with the several remarks about
Streamlining in the "Major Benefits and Drawbacks" sections of the Draft
Report. Others suggested that the comments about the relationship
between Streamlining and the work of the Task Force be amplified. The
comments showed a wide range of opinions (and considerable disagreement)
about how Streamlining goals might or might not be furthered by one or
another of the options.
Response: There is obviously a connection between the work of this Task
Force and the Agency's Streamlining effort. The decision which will follow
from this Report could have a significant impact on the precise way in which
regional offices elect to accomplish the Streamlining goals. The Task Force
concluded, however, that Streamlining considerations per se do not provide
helpful, systematic criteria for the evaluation of the several options
presented in this Report. The Task Force believes that any of these options
are consistent with Streamlining objectives; that is, Streamlining objectives
can be achieved regardless of which option or combination of options is
ultimately selected. Accordingly, Streamlining issues were not further
addressed in the evaluation of options contained in this Report.
Concern about separation of technical enforcement and programmatic
activities. A significant number of commentors urged that technical
enforcement and programmatic activities (like permitting or planning) not be
separated (as would occur under Options E or F in the Draft Report, or
Option 3 in the Final). Their reasons were generally those alluded to in the
Draft Report. A smaller number argued that these functions can and should
be separated, in order to enhance enforcement focus.
Response: The Task Force recognizes this concern, which is addressed in
the "Major Benefits and Drawbacks" portions and elsewhere in Section VII.
See also discussion of Transact/on Costs, below.
Regional legal office. Many commentors argued that regional legal staff
should remain in a consolidated legal office (i.e.. the Office of Regional
Counsel). A smaller number, on the other hand, argued that inclusion of
legal enforcement staff in an enforcement division would be important. To
the extent it was possible to identify the organizational affiliation of the
commentors, most lawyers urged the former, while those who urged the
latter appeared to be program staff. The reasons given for these views
A - 27
-------
Appendix 7
were, in general, those alluded to in the "Benefits and Drawbacks" portions
of the Draft Report.
Response: The Task Force concluded that regional legal staff should,
indeed, remain in a consolidated ORC. The reasons for this decision are set
forth in the discussion of Option 3 in the Final Report. This decision
accounts, in part, for the elimination from further consideration of Option F
in the Draft Report.
Concern for ESDs. A number of commentors expressed concern about what
would happen to ESDs under Option F in the Draft Report (or variants
between Options E and F involving removal of inspection resources from the
ESDs). Most of those commentors argued that ESDs provided a valuable,
multi-media, professional environment for inspectors which should not be
lost.
Response: The Task Force concluded that organizational placement of
regional inspection resources should be left to the discretion of the Region,
even if other enforcement resources are consolidated into an Enforcement
Division (as contemplated in Option 3). If such an Enforcement Division is
created, however, the ED Director would have authority for the deployment
of inspection resources (e.g.. targeting, and determining the scope of an
inspection), even if those resources are located in an ESD.
Employee empowerment; flexibility for Regions. A substantial number of
commentors urged that "one size does not fit all," and that Regions ought to
have the flexibility to adopt whatever structure they believe will best suit
their circumstances. Some observed that this approach is in accord with the
principles of staff and managerial level employee empowerment incorporated
in Total Quality Management and the Reinvention of Government.
Response: The addition of Option 4 to the Final Report is in direct response
to this concern.
Many who suggested this flexible approach proposed that Headquarters
should advise the Regions about what results are desired, and the Regions
should figure out how best to achieve those results. The Task Force agreed,
and the Final Report proposes an Enforcement Performance Memorandum of
Understanding to be negotiated between Headquarters and the RA/DRA for
each Region, setting forth specific goals for implementation of the new
A - 28
-------
Appendix 7
enforcement vision objectives (see Section VII). The concept of the
Enforcement Performance Memorandum of Understanding is particularly
important if Option 4 is selected.
Superfund concerns. Among those who mentioned this subject, almost all
argued that Superfund enforcement staff should not be separated from fund-
lead staff (as envisioned under Option F in the Draft Report). The reasons
were generally those mentioned in the "Major Benefits and Drawbacks"
portion of the Draft Report.
Response: The Task Force agreed that it would be unwise to separate
Superfund enforcement and fund-lead staff into different organizational
units. This was a factor in the decision to drop Option F from the Final
Report.
The Task Force notes that if Option 3 is selected, it will be necessary to
consider whether other regional site remediation enforcement activities
should be consolidated with the Superfund office (i.e.. excluded from
incorporation into the ED). Such activities include RCRA Corrective Action
enforcement, Leaking Underground Storage Tank enforcement and
enforcement under the Oil Pollution Act.
Reporting Relationships. A variety of commentors argued that the Regional
Counsel should report to the Regional Administrator -- at least for
enforcement issues - since the RA is ultimately accountable for regional
enforcement activities. Others argued that the present reporting relationship
is more appropriate, to ensure sound and independent legal advice. Some
commentors observed that if a regional Enforcement Division were created,
the Director should report to the RA, rather than to the AA/OECA.
Response: The Task Force recognizes that Reporting Relationships are an
important component of organizational structure, but concluded that it was
not necessary to suggest changes in such relationships as part of this Final
Report. For the purposes of the Report, the Task Force has assumed that
current reporting relationships will remain unchanged, while acknowledging
that other arrangements could be implemented. Option 3 assumes that if an
Enforcement Division is established the Director would report to the Regional
Administrator and Deputy Regional Administrator, as do other regional
program division directors.
A - 29
-------
Appendix 7
Transition Costs. Commentors expressed concern about the disruption and
drop in morale which major reorganization would entail. Many of these did
not feel that there is enough of a problem in the current structure to warrant
such major disruption. Some commentors noted that adoption of Options E
or F in the Draft Report might also compel reorganization of the rest of the
Region, because of the "ripple" effects of such a reorganization on the
remaining organizational elements. They argued that an exclusive focus on
enforcement organization should not be driving such a comprehensive,
Region-wide restructuring.
Response: The disruption caused by a major reorganization, and the
avoidance of such disruption if one selects an option that does not entail
such major reorganization, are emphasized in the "Major Benefits and
Drawbacks" portions of Section VII. Option 1 contemplates little or no
reorganization, while Options 2 and 3 involve successively more extensive
reorganization; the potential disruptive effects are noted in the discussion.
While this concern would likely be a factor in anyone's evaluation of the
relative merits of the various options, there are other important concerns
which may counterbalance it, particularly in the context of a long term
evaluation.
Balancing Transaction Costs. Commentors generally acknowledged that the
current organizational structure imposes transaction costs when attempting
to coordinate multi-media enforcement activities among the several media
program divisions; many agreed that these could be reduced by moving
towards Options E or even F in the Draft Report. However, it was also
agreed that other transaction costs would increase as one moved from
Option A towards Option F (e.g.. costs of transactions between program and
enforcement staff).
Response: The Task Force believes that multi-media enforcement
transaction costs can be reduced as one moves from Current Structures
through Options 1, 2 and 3. The Task Force also recognized that there
could be a concomitant increase in transaction costs in other arenas, such as
program/enforcement coordination. The Task Force has displayed this as a
balancing issue: in selecting an option, the Administrator will have to
balance these competing kinds of transaction costs.
A - 30
-------
Appendix 7
Additional Potions
Various options in addition to Options A through F in the Draft Report were
suggested by commentors. Following is a summary of many of these suggestions,
along with a Response stating how the Task Force addressed the suggestion.
• Matrix Management. Under this approach, multi-media focus and leadership
would be provided by a facility- or sector-based team of employees. For
example, if the facility-based matrix management approach were adopted,
the Region would identify a universe of facilities which are of interest in a
multi-media context. For each such facility, a "team leader" would be
identified who would have overall responsibility for ensuring that all regional
activities with respect to that facility - including permitting, compliance and
enforcement - are properly coordinated. The team leader would be drawn
from the regional unit with most interest in, or most directly concerned with,
the environmental circumstances of the facility. The team itself would be
comprised of staff from other affected regional units, both technical and
legal.
All members of the team, including the team leader, would remain (in terms
of reporting relationship and structure) within their existing organizational
units; however, for purposes of their work on the specific facility, team
members would be accountable to the team leader.
If a sector-based matrix management approach were adopted, the team
would have responsibility and accountability for an industrial sector, but
would otherwise function in a similar manner. One commentor suggested
that a sector lead could be assigned to one of the existing media program
divisions (rather than to a specific individual within such a division). This
alternative would also depend on a matrix management approach for
coordination of sector-based activities across the several media program
divisions.
Response: The Task Force agreed that this is a valuable operational
approach and deserves consideration. The Matrix Management approach
would be consistent with any of the options considered in this Report.
Under Options 1 or 2, the matrix team leader might be the Enforcement
Coordinator or a member of the ECO staff (as noted by some commentors).
Under Option 3 the team might include technical staff from the program
division (i.e.. with respect to permitting issues) as well as from the
A - 31
-------
Appendix 7
Enforcement Division. The final report, in the discussion of Option 4,
includes a reference to this suggestion.
Pilot Programs and Regional Flexibility. Many commentors felt that the
Headquarters reorganization is too new to be certain about the impacts it
will have on the Regions; and/or that, in any event, the Task Force should
not be concentrating on structure, but rather on results. These commentors
endorsed either a Pilot Program option or a flexible approach which gives
Region discretion with respect to structure.
Response: In response to these comments, the Task Force developed the
"Regional Flexibility" approach, Option 4 in the Final Report.
Move Attorneys from ORC into Program Offices. A few commentors
suggested that enforcement attorneys should be moved from ORC into the
media program divisions, in order to lessen conflicts over priorities, etc.
Response: The Task Force considered this proposal but decided not to
include it in the Final Report. This decision reflects the view that the
proposal would be a step in the wrong direction. The new enforcement
vision placed increased emphasis on holistic, cross-media and multi-media
integration. While not all options displayed in the final report accomplish
this goal in the same way, or even equally effectively, all face in this
direction. The Task Force felt that this suggestion, however, faced the
opposite way. ORC is currently one of the few "multi-media" divisions in
the Regions. The Task Force concluded that such benefits as might accrue
from moving attorneys into the media program divisions did not outweigh
the drawbacks. [This approach was adopted at EPA Headquarters for a
short time in 1981 and 1982, but was judged to be unsuccessful and was
quickly reversed.]
Note that this suggestion is different from the proposal in Option F of the
Draft Report, pursuant to which enforcement attorneys would have joined
technical enforcement staff in a fully consolidated Enforcement Division.
That option was also rejected by the Task Force, but for different reasons
(which are described in the discussion of Option 4, Section VII in the Final
Report; and under "Issues of Concern," above).
Move Superfund Attorneys into Superfund Division. This suggestion was
made in conjunction with an endorsement of moving regulatory enforcement
A - 32
-------
Appendix 7
attorneys into a regulatory Enforcement Division (one of the intermediate
steps between Options E and F in the Draft Report). In that context, this
suggestion would have treated both Superfund and non-Superfund
enforcement attorneys analogously.
Response: For the reasons stated in Section VII, the Task Force concluded
that enforcement and counselling attorneys should remain together in the
Office of Regional Counsel. Thus, the question of symmetrical treatment of
regulatory and Superfund enforcement attorneys, in the event of creation of
a regulatory Enforcement Division including attorneys, became moot.
Combine RCRA Corrective Action Function with Superfund Program.
Several commentors urged that if a regulatory Enforcement Division were
created, into which would be consolidated all non-Superfund enforcement
staff (as contemplated by Option E in the Draft Report, and Option 3 in the
Final Report), then RCRA Corrective Action staff should not be included in
such a consolidation but should remain with (or be moved into) the
Superfund office. These commentors pointed to the similarity between the
Superfund and RCRA remediation programs in support of the suggestion.
Response: The Task Force did not explicitly address this issue, as
presenting a question of detail beyond the level that it felt was necessary at
this stage of the process. However, as stated earlier, the Final Report does
note that if Option 3 is selected it will be necessary to consider whether
other regional site remediation enforcement activities should be consolidated
with the Superfund office (i.e.. excluded from incorporation into the
regulatory Enforcement Division). Examples of such activities include RCRA
Corrective Action enforcement, Leaking Underground Storage Tank
enforcement and enforcement under the Oil Pollution Act.
Organize Enforcement Division Along Traditional Media Lines. This
suggestion proposes that if an Enforcement Division is created (Options E
and F in the Draft Report, or Option 3 in the Final Report), then its internal
organization ought to maintain the Agency's traditional media orientation.
Given the continued media-based statutory framework under which EPA
works, and the media-based organizational structure of most of the State,
Tribal and focal governmental authorities with which the Agency works,
retention of this approach could mitigate some of the disruption which might
accompany a major reorganization.
A - 33
-------
Appendix 7
Response: The Task Force did not make recommendations about sub-
division level organizational structure in the regional enforcement program.
The Final Report observes that if an Enforcement Division is created (Option
3), then its internal organization could be along media, sector or geographic
lines. The Report does note that maintenance of traditional media structure
within such an Enforcement Division could, indeed, have benefits for
communication and coordination with State, Tribal and local governmental
entities. If Option 3 is selected, this issue will certainly have to be revisited.
Place ESD Inspectors Under Authority of Enforcement Coordination Office.
This option was suggested as a variation of Options B or C in the Draft
Report. (Options 1 and 2 of the Final Report similarly involve the creation of
an Enforcement Coordination Office or ECO.) The suggestion appears to
have been made as a way of strengthening what was seen as a somewhat
feeble level of authority for the ECO, as it was characterized in the Draft
Report.
Response: The Task Force decided to make no explicit recommendation
about the precise organizational locus for a Region's inspection resources,
leaving this level of detail to the discretion of regional management. The
idea of placing inspection resources in the ECO so as to strengthen was part
of Option C in the Draft Report; that option was dropped from the Final
Report (for reasons discussed below). However, the general thrust of this
suggestion - that the ECO needed some enhancement in order to make it
more effective - was adopted in the Final Report. Comparison of the list of
functions for the ECO in Option B of the Draft Report and Option 1 of the
Final Report will show that the proposed responsibilities and authorities of
that office have been strengthened.
Reorganize Entire Region Along Functional Lines. At least one commentor
endorsed the creation of a regional Enforcement Division, and further
suggested that the opportunity be taken to reorganize the rest of the Region
along functional lines. (The commentor proposed that the other functional
divisions focus on Permits, Remedial and Construction activities, and
Inspections & Emergency Response.)
Response: Proposals for a full reorganization of the entire regional office
structure, along functional (or any other) lines, is beyond the mandate of this
Task Force. The Task Force did recognize, however, that there might be
significant "ripple" effects upon the rest of the organization from a major
A - 34
-------
Appendix 7
enforcement restructuring, as envisioned by Option 3. This observation is
included under "Major Benefits and Drawbacks" and elsewhere in Section
VII.
Options Eliminated From Consideration:
Three options displayed in the Draft Report were eliminated from separate
consideration in the Final Report: Option A ("Status Quo"), Option C ("Enforcement
Policy and Multi-Media Operational Office") and Option F ("Fully Consolidated
Enforcement Division").
• Option A was eliminated as a separate option, although the Regions' current
structures are fully described in the Final Report. The Task Force concluded
that some enhancements to the current structures were advisable. Also, the
new Option 4, "Regional Flexibility," rendered inclusion of the "Status Quo"
as a separate option unnecessary. Option 4 contemplates that Regions may
select the organizational structure which they believe best enables them to
meet the objectives of the new enforcement vision. Under this option, a
Region would be free to maintain its current organizational structure if it was
confident it could achieve those objectives. The Report notes that such a
Region might, however, adopt a variety of operational changes (e.g.. matrix
management, as described above) to aid in this effort. Moreover, Option 4
in particular relies upon the development of an Enforcement Performance
Memorandum of Understanding to ensure that the desired results are well
understood by both Headquarters and each Region.
• Option C was eliminated by the Task Force because of the following
concerns:
i. • There could be excessive transactions costs and unacceptable friction
between the Multi-Media Operational Office contemplated under that
option and the media program divisions.
ii. Isolation of the multi-media enforcement function in a small, separate
unit would actually work against the goal of expanding the multi-
media focus of all Agency components. In the single-media program
divisions, multi-media case screening would not be encouraged and
multi-media experience would not be enhanced, since those offices
would be expected to cede to the Multi-Media Operational Office any
cases with multi-media potential.
A - 35
-------
Appendix 7
iii. There might not be a critical mass in the Multi-Media Operational
Office to adequately deal with the wide variety of complex, media-
specific issues which inevitably arise in the context of multi-media
enforcement activities.
• Option F contemplated separation of Superfund enforcement staff from
fund-lead staff, with the former moving to the consolidated enforcement
division. Option F also contemplated that legal enforcement staff would
move from the Office of Regional Counsel to the enforcement division.
Finally, under Option F all inspection resources would be consolidated in the
enforcement division, with none remaining in the ESD. Option F was
eliminated for the following reasons:
L Suoerfund.
The Task Force concluded that Superfund staff should not be included
in the ED because Superfund "enforcement" does not lend itself well
to separation from non-enforcement functions. Superfund
"enforcement" involves primarily (a) compelling PRPs to perform
response actions and (b) pursuing cost recovery actions. Superfund is
not a regulatory program with long-term concerns about operating
facilities, but is more like a public works program with a cost recovery
mechanism.
The technical staff who must support Superfund enforcement
activities are the Remedial Project Managers and On Scene
Coordinators, who also manage the fund-lead response actions.
Removal of these functions to a separate ED would necessitate
duplication of effort: enforcement staff would have to become as
familiar with the details of a given response action as the "program"
staff who managed that response action.
JL Legal Staff.
The Task Force concluded that legal staff should not be included in
the ED for a number of reasons. First, the quality of legal support
with respect to both enforcement and counselling is enhanced when
attorneys perform both functions.
A - 36
-------
Appendix 7
Second, consolidation of legal and technical enforcement staff into
the same ED would require a redefinition of their roles and the
relationship between them. Currently, regional enforcement attorneys
are clearly in a support role, consistent with the attorney/client
relationship. The program offices are responsible for policy decisions
and priority-setting. If legal and technical staff are combined in a
single operational enforcement office, these lines of authority may
become blurred. Legal and technical staff would be peers within the
Division, each with an equal claim for full participation in policy and
priority-setting decisions. This might actually increase frictions
between lawyers and technical staff, as their traditional roles may no
longer apply.
Third, if legal staff were incorporated into the ED, the senior regional
official with responsibility for legal enforcement issues would no
longer be at the SES level; instead, s/he would be at a level below
that of the Enforcement Division Director. (This would be true even if
the Enforcement Division Director happened to be a lawyer, since in
that capacity s/he would not be functioning primarily as an attorney,
but rather as the manager of a multi-disciplinary unit.)
ML Inspection Resources.
The Task Force concluded that distribution of inspection resources
within the Region, as between an enforcement division and an ESD,
would have little impact on the Region's ability to satisfy enforcement
objectives, and therefore should be left to the discretion of the
Regions.
It should be noted that Option F was the least preferred and most disfavored
option among those commentors who expressed preferences.
OUTREACH
The Report of the Outreach Subcommittee provides additional detail about
the specific steps taken by the Task Force to communicate with external
constituencies about its work, and about the results of those communications.
Over 150 external entities responded in writing to the Phase I Outreach
questionnaire. The majority of these were State, Tribal and local government
entities. Environmental groups, other federal agencies and industry groups were
A - 37
-------
Appendix 7
also represented. During Phase II of the Outreach effort, entities representing
some 41 different States, two Tribes and two environmental groups provided
comments on the Draft Reports which were made available to them. In addition, a
number of former EPA Regional officials were interviewed to get their views. The
comments received from all these sources are summarized in the Report of the
Outreach Subcommittee.
Preferences
With respect to the long term options considered by the Task Force, most
State entities which provided comments in Phase II of the Outreach effort
expressed a preference for those options which do not involve significant
reorganization, i.e.. Options A or B in the Draft Report. They expressed concern
that the relationships they have developed with their respective EPA regional
offices not be upset. They also pointed out that single-media cases will continue
to be a significant component of both their and EPA's workload. Both tribes that
commented felt that Option B best addressed environmental justice issues with
which they were concerned.
Other States recommended Options C or D, or a combination of Options
B + D (Option 2 in the Final Report) or Options C + D; while several others
expressed support for Option E (Option 3 in the Final Report). None preferred
Option F (and some expressly disfavored this option).
Many States also urged that Regions be given flexibility in selecting the most
appropriate organizational structure - a suggestion adopted by the Task Force in
Option 4 in the Final Report.
The two environmental groups responding in Phase II did not express
preferences for a particular option. However, they expressed strong support for
increased use of multi-media and cross-program enforcement, while also
expressing concern that any organization be compatible with the States.
Issues of Concern and Additional Options
The Outreach Subcommittee did not identify many consistent or recurring
themes or directions concerning the Long Term options evaluation. Following is a
summary of various comments pertinent to the Long Term Options Report,
including several that were made by a number of different commentors.
A - 38
-------
Appendix 7
• Most commentors emphasized the importance of good communication
between EPA and its State and tribal counterparts. Some expressed concern
that more attention had not been paid to the State/federal relationship per
se. Many also urged that State enforcement programs be judged in their
entirety, not just on the basis of numbers of specified outputs ("bean
counting"). Several also recommended that States be brought into EPA's
enforcement planning process as early as possible. Some endorsed, while
others opposed, the introduction of multi-media grants.
Response: The Task Force felt that these issues, though very important,
were beyond the explicit scope of its mandate.
• As noted above, a significant number of commentors endorsed flexibility for
Regions in selecting the best organizational structure. Many did endorse the
notion of a single point of contact, such as the DBA, to facilitate such
communication. Some suggested that the final structural decision be
deferred, and that pilot projects be used in the interim to more fully evaluate
the variety of choices. Still others suggested phased implementation of the
selected option(s).
Response: These suggestions are, to varying degrees, addressed through
the new Option 4 in the Final Report.
• There was considerable discussion of compliance assistance. Some felt that
States should have the lead in this arena; others focussed on the timing,
arguing that compliance assistance should precede formal enforcement
actions.
Response: The Task Force did not address policy issues about the role of
compliance assistance in the overall enforcement program, considering this
to be beyond its mandate. The newly formed Headquarters Office of
Enforcement and Compliance Assurance has started working on these policy
issues.
• A matrix management approach was recommended by one State as a way
of enhancing the Agency's ability to implement multi-media enforcement
within the context of a media-based structure.
Response: The matrix management approach is a valuable one, which is
discussed in the Inreach Section of this Responsiveness Summary, above,
A - 39
-------
Appendix 7
and is referenced in the discussion of Option 4 in the Final Report. It should
be noted that Matrix Management is applicable to, and could be used with,
any of the other options as well.
Another State suggested placement of the Enforcement Coordination Office
(Options B and C in the Draft Report, and Options 1 and 2 in the Final
Report) within the Environmental Services Division.
Response: The Task Force felt this would not be a locus of sufficient
authority to carry out the difficult coordinating functions of the ECO; for that
reason, the Task Force describes the ECO (Options 1 and 2) as reporting
directly to the Deputy Regional Administrator.
Some States expressed concern over the transition costs of a major
reorganization; at least one State felt these costs had not been adequately
addressed in the Draft Report. The former EPA regional officials who were
interviewed urged caution in connection with any decision to reorganize,
because of the high transition costs and disruption.
Response: The discussion of transition cost issues has been amplified in the
Final Report.
A - 40
-------
Appendix 8
APPENDIX 8
SUMMARY OF COMMENTS FROM EXTERNAL ORGANIZATIONS
PART A: SUMMARY OF STATE COMMENTS
REGION 1
Connecticut:
• Allow Regions flexibility to establish organizational structures that best suit
the needs of the Regions. Present organization of Region 1 works well for
Connecticut.
• Reorganization should be geared to continue to support majority of typical
single-medium enforcement actions while encouraging multi-media
initiatives.
• Delegate judicial and criminal cases to Regions.
• Revisit nature of State/federal relationship. Shift away from traditional
system of output grant commitments. Improve coordination and
cooperation, as exemplified by the New England State/EPA Environmental
Enforcement Committee.
Maine:
• Prefers B or a combination of B and D.
Massachusetts:
• Prefers Option B, C, or D.
• The State thinks the options seem pretty radical. Massachusetts made an
effort to have organizational and operational change move hand in hand.
Region 2
New York State:
• Description of New Vision should emphasize the Administrator's
commitment to effective federal/State partnership.
• No clear preference expressed for a particular option.
• Looks somewhat more favorably on Option C, but recognizes political/turf
concerns.
• Sees considerable merit in Option D, and coupling with Option C might
improve it further.
A - 41
-------
Appendix 8
• Sees positive results from E, or E plus all inspectors. Superfund and
attorneys should not be added.
• Suggests that final decision be deferred; pilot projects be used.
• Recommends as another option a matrix management facility-oriented team
manager approach, with manager based in existing media divisions.
US Virgin Islands:
• Prefers C, or C + D.
• Sees need for short-term plan, including single point of contact in the
interim.
Puerto Rico:
• Did not have any preference for a particular option.
Region 3
Virginia:
• Headquarters reorganization should settle down before looking at Regions.
Might want to try some pilots first.
• Seems to favor Option D with some of the multi-media enhancements.
Pennsylvania:
• Environmental agency prefers Option A.
• Attorney General prefers Option C.
Region 4
Alabama, Kentucky and Florida: no preference.
Mississippi:
• Prefers Option B.
Georgia, North Carolina, South Carolina, and Tennessee:
• All prefer Option A or
Region 5
Comments received both orally, at a face-to-face meeting, and in writing from:
Minnesota (env. agency and AG), Wisconsin (env. agency), Ohio (env. agency).
A - 42
-------
Appendix 8
Illinois (env. agency and AG), Michigan (agricultural agency) and Indiana (env.
agency). Written comments were received from two Minnesota tribes.
Ohio, Illinois and Minnesota:
• All prefer Option B.
Wisconsin:
• Prefers C and D combination. Enforcement oversight while retaining
program specific enforcement functions. FY 95 target for State planning not
likely achievable.
Indiana:
• Prefers E. It best promotes clear communication and lines of authority,
furthers streamlining and enhanced efficiency, better integration of
enforcement, fewer program boundaries to block communication with
OECA, between regional program divisions and between OECA and States.
Two tribes:
• The tribes were concerned with environmental equity issue and felt B was
the only option that addressed it.
Summary of comments from Region 5 States:
• States were disappointed that more attention was not paid by the Task
Force to the federal/State relationship.
• EPA should work more closely with States when planning national initiatives.
• Need a balance between enforcement initiatives and compliance assistance.
• States' impact on Headquarters is minimal. It could become even less if
Regions do not reorganize to align with OECA.
• States must be focal point for compliance assistance. EPA should
provide technical and financial help.
• To make multi-media effective, it must start with the State grants process.
• All States agreed Regions should be given maximum authority in decision
making. The more authority that's given to the Regions, the easier it is
for the States to work with them. It is frustrating to be overridden by
Headquarters.
• Probably too fate to make changes for FY 95.
• When options are narrowed further, States may be able to provide
more focused comments.
• Issuing guidance from a central OECA office is important in order to maintain
consistency.
A - 43
-------
Appendix 8
• Single point of contact needed -- doesn't have to be DRA
• Single media will still be a significant part of enforcement efforts.
Region 6
Oklahoma:
• Designate single point of contact, such as the DRA, who is knowledgeable
of programs and States' limitations.
• Option B/C best alternative with use of enforcement coordinators/planning
offices.
• Good communication is vital for success.
• States should be brought into enforcement planning process as early as
possible.
• Phased implementation best route to follow.
• Cross-program enforcement and compliance priorities/outputs are unclear.
• Opposed to multi-media grants.
• Annual enforcement conferences helpful.
• Avoid committees for enforcement and compliance.
Arkansas:
• Prefers Option A or B.
• System they have now works relatively well. Why spend a lot of effort
changing it?
Louisiana (Department of Agriculture and Forestry):
• Prefers a reorganization in which the Regional Program Directors and
Regional Counsels are held directly accountable to OECA.
• Prefer multiple points of contact to address complex environmental
concerns.
• Against multi-media enforcement grants.
• Ultimate goal is compliance. If post-violation compliance assistance results
in total compliance, then enforcement actions are unnecessary.
Texas:
• Due to limited amount of time to respond (9 days not enough); these
comments are not comprehensive.
• Supports multi-media grants but single media enforcement remains
significant.
• Support the idea of State enforcement program coordinator.
A - 44
-------
Appendix 8
• Not convinced that a reasonable basis exists for HQ to always take the lead
for criminal investigations.
• Options C or D would be most beneficial.
• Need more central contact to assist States in research of case law.
Region 7
Missouri and Kansas (oral comments):
• Prefer status quo. Worried about breakdown in overall relations with States
if a separate enforcement division is created.
Region 8
Colorado:
• Oept. of Agriculture: The emphasis on the multi-media enforcement
approach is inappropriate for Colorado. The proposed reorganization may
significantly improve EPA's efficiency, but certain conditions, if forced upon
this State, will have a serious fiscal impact and will most certainly reduce
productivity under State/Federal cooperative agreements.
• U.S. Dept. of Fish and Wildlife Service: Prefers Option E.
North Dakota:
• Strong belief that compliance assistance should precede enforcement.
• A short-term strategy should not be defined until the long-term strategy is
defined.
• Prefers a combination of B and D.
South Dakota:
• It is cumbersome and wasteful to have to deal with a program person and a
separate person in a separate enforcement division.
• Prefers A.
Region 9
California:
• Favors status quo.
• Multi-media will only be small portion of activities so a reorganization is not
worthwhile.
• Does not want multi-media grants.
• State Dept. of Justice: Not prepared to txpress a preference.
A - 45
-------
Appendix 8
Hawaii (Department of Agriculture):
• Option B within an ESD making the ESD Director accountable to OECA.
• Does not want multi-media grants.
Arizona:
• Office of A.G.: Loves Option F.
Region 10
Alaska:
• Did not express a preference for a particular option. Emphasized need for
flexibility and speed in EPA/State relationship and in enforcement process.
Idaho:
• Did not express a preference for a particular option.
• Concerned that EPA look at overall compliance not just enforcement actions.
• Does not want to see an increase in overfilings or a more cumbersome
EPA/State relationship.
Oregon:
• Felt decision was up to EPA.
• Concerned that E or F would put too much emphasis on enforcement
without program context, drain program expertise, and cause more micro-
management of State enforcement.
• Thought A and D reflected status quo in Region 10. Not enough follow-
through in communication between EPA and States under these options.
• B and C could help with follow through problem.
• Concern that enforcement not become an end in itself but an integral part of
overall media programs.
• Skepticism that EPA is seriously committed to outreach. Cited the limited
time for response and lack of feedback from response to Headquarters
reorganization.
A - 46
-------
Appendix 8
Washington (Department of Ecology):
• Prefers Option A to assure continuity of existing programs and to prevent
creation of another level of reporting requirements or conflicting opinions.
• Would support a pilot program in Region 10 modeled on a variation of D to
accommodate a change in emphasis from single media command and control
to a process that emphasizes multi-media, technical assistance and pollution
prevention.
Washington (Department of Health):
• Prefers A.
• Disapproves of any option that would complicate the enforcement process
or increase their investment in time, energy, and costs.
• Expressed concern that in an enforcement division drinking water would not
command high enforcement priority.
• None of the options identifies transitional and long term costs.
Environmental groups: Two responded, one orally.
• Both expressed strong support for increased use of multi-media/cross
program enforcement.
• One highlighted the importance of compliance assurance/technical
assistance/pollution prevention.
• Expressed concern that any organization be compatible with States.
• One group expressed concern that EPA is not paying enough attention to
lack of State enforcement.
A - 47
-------
Appendix 8
PART B: SUMMARY OF PHASE I OUTREACH
1. What roles and responsibilities need to be performed by (a)
EPA Headquarters and (b) regional offices to ensure successful State enforcement
programs?
STATES/TRIBES:
• A primary responsibility of EPA Headquarters is to write regulations and
policies in a clear, concise, understandable manner and present to Regions
and States with adequate time for response and comment.
• EPA Headquarters should provide direction, administration, guidance,
technical assistance and oversight to Regions. Control should be
decentralized with day to day operations being provided through Regions.
• Headquarters should make a greater effort to assure consistency among the
Regions in their application of Agency enforcement policies, while
encouraging the Regions to pursue program areas designed to give the
States more technical assistance.
• The roles of EPA Headquarters should be establishing policies and
coordinating policy implementation with each Region to ensure consistency
and uniformity. This would include strategic planning, data management
and integration, compliance monitoring, compliance assistance and
enforcement support, all on a general nationwide basis.
• EPA no longer needs to maintain oversight of State delegated programs at
the present level of detail. EPA Regions would better assure successful
State programs by placing more emphasis and resources on technical
assistance to the States and by expanding fewer resources on enforcement
oversight.
• Headquarters and Regions should understand Indian tribes as governments
with regulatory authority.
Headquarters should:
• Issue national guidance, establish strategic targets, and provide timely
interpretation of federal laws, regulations and policies.
A - 48
-------
Appendix 8
• Consult with and involve State/Locals in program development and
enforcement initiatives.
• Inform State/Locals regarding the national perspective on a quarterly or
annual basis.
Regional offices should:
• Transmit Headquarters information, initiatives, directives, etc., to States and
locals on a timely basis.
• Provide technical assistance to States and oversee State progress in
achieving goals and commitments.
• The Regions must be the liaison between States and EPA Headquarters,
have the authority to make decisions, and assist State with problems.
• EPA regional offices should provide oversight of State enforcement
programs, provide technical assistance when requested, assist with difficult
situations which cannot be properly handled within States' authority, and
provide liaison between State and EPA Headquarters.
• EPA Headquarters and Regions should involve States in development of
enforcement initiatives from their inception, and coordinate cases with multi-
State jurisdictional issues.
• Ensure that consistency is maintained between States and assume primacy
where States are not capable of acting fail to act. Ensure good
communication and coordination with States and recognize State difference
and needs.
• Provide leadership from a national perspective and coordination of bringing
together the scientific disciplines from various areas is a role and
responsibility that could be performed by EPA Headquarters.
• EPA Headquarters and Regions should provide oversight of State
enforcement program on factors which accurately measure the State's
effectiveness. Quality and results should be considered as well as quantity.
• Regions should ensure that State funding is adequate to meet enforcement
goals; convey issues of State specific problems to Headquarters and pursue
A - 49
-------
Appendix 8
answers; assist with difficult regulatory interpretation issues; and work with
States to develop flexible rule interpretations that would facilitate cleanups
at polluted sites.
• The role of each Region should be to communicate EPA policies to the
program managers in each State, soliciting comments, granting variances
when applicable and ensuring uniform implementation but individualizing to
each State. Inspection targeting, data management and integration,
compliance monitoring, compliance assistance, and enforcement support
should be as local as possible.
INDUSTRY:
• EPA should create a "big brother" program with systems and incentives for
large companies to help smaller companies with environmental programs. In
doing so, compliance rates among smaller companies will quickly improve.
• Asking industry to voluntarily participate in EPA programs while announcing
new programs to intensify enforcement seems to contain a contradictory
element. While we do not participate in voluntary programs, we find that
past actions which were taken in accordance with regulation at that time are
not subject to retroactive laws. This hardly renders a feeling that one should
volunteer and participate in non-mandated programs.
• Headquarters should audit policy implementation to assure consistency and
fairness.
• Headquarters should serve the role of technical advisor to the public and
private sector.
• Region's role should be to implement national environmental policy which
cannot be delegated to lower levels.
.»«»
• Regional offices should audit for consistency and fairness.
• Public involvement in enforcement is most effective at the regional level
because of better accessibility.
A - 50
-------
Appendix 8
OTHER FEDERAL AGENCIES:
• Headquarters should set general policies and goafs and provide national
guidance to ensure consistency among the Regions.
• Headquarters should establish and enforce policies in conjunction with the
Department of Justice and other agencies assure coordination of the policies
and integration with other agencies' programs.
• Headquarters should identify potential impediments to compliance that need
resolution on a national basis and issuance of guidance on dealing with these
issues.
• Headquarters should compile national statistics and measure program
effectiveness, based on improved environmental quality and compliance, not
case quotas.
• Headquarters and Regions should provide compliance assistance without
threat of enforcement.
• Headquarters and Regions should support and assist States.
• EPA should ensure compliance at federal facilities through direct
enforcement of signed Federal Facility Agreements (FFAs), RCRA Hazardous
and Solid Waste Amendment (HSWS) requirements not delegated to States.
• Regions should provide oversight of State enforcement
• Regions should schedule internally coordinated multi-media inspections with
established checklists.
2. Based on your understanding of the EPA Headquarters enforcement
reorganization, what are the greatest challenges that the Agency faces in
terms of coordination among Headquarters, Regions and the States?
STATES/TRIBES:
• Maintain good communication,dialogue and coordination among EPA
Headquarters, Regions and State and local governments.
A - 51
-------
Appendix 8
• Allow Regions flexibility to develop own models.
• Provide consistent and clear guidance and procedures to assist States.
• Prioritizing actions around issues of environmental improvement rather than
violations related to paperwork errors, and establishing priorities based on
risk.
OTHER FEDERAL AGENCIES:
• Maintaining coordination between Headquarters and the Regions to provide
consistent guidance and oversight of federal facilities.
ENVIRONMENTAL GROUPS:
• Regions are in a better position to coordinate between State and local
governments and tribes.
INDUSTRY:
• The greatest challenge will be inter-program coordination and
communication. [Refers to multi-media and sector-based approaches.]
• Clarify responsibility between EPA and State regulatory agencies in
addressing site remediation -- especially in the area of remedy selection and
choice of authority used.
• EPA and the States need to work more openly with industry. By improving
communications to its customers, EPA can help the regulated community to
better comply with new regulations.
3. If the Agency decides to make organizational adjustment in the Regional
offices, what core processes in the Regional/State relationship must the
Agency be careful not to upset?
• Minimize impact on traditional core single-media enforcement programs.
• Enhance working relationships among Regions, States and Tribes.
• Maintain continuity in existing enforcement program.
A - 52
-------
Appendix 8
• Develop protocols for setting enforcement priorities.
• Decentralize decision-making.
4. What, if any, impediments exist in the regional office with which you
interact to achieving the following objectives:
• Single media enforcement programs
• Compliance assurance programs
• Multi-Media, cross-program compliance monitoring and enforcement
activities
• Implementation of enforcement strategies focussed on particular sectors of
the regulated community
• Use of compliance assistance as part of an overall enforcement strategy
designed to improve compliance
• Measuring rates of compliance in the regulated community
• Integrating quality multi-media data and compliance information
• Shared federal/State enforcement
STATES/TRIBES:
• Lack of emphasis by EPA Headquarters on compliance assurance through
training and technical assistance as a precursor to formal enforcement.
• Too much emphasis on punitive enforcement without regard to whether it
helps achieve compliance.
• No impediments exist at the present time that would keep us from achieving
these objectives. (A number of States gave this response regarding one or
all of the objectives.)
• Inability of the Regional Office to make or give technical decisions without
consulting with EPA Headquarters often results in lengthy delays in
compliance assurance.
• Measurement or quantification of compliance is like attempting to prove a
negative, next to impossible.
A - 53
-------
Appendix 8
• There appears to be significant gaps between the States' evidentiary needs
for prosecution and Federal evidentiary needs for prosecution of the same
case.
• Specific guidance to assist the State with enforcement actions is generally
not supplied by EPA.
• Too much emphasis is placed on bean counting instead of other enforcement
successes which may not translate to numbers. We expend great numbers
of resources in reporting our activities and we are looking for some balance.
• Multi-media enforcement between air, water and waste still seems to be
difficult for the Region to implement, probably due more to the size of the
Agency than anything else.
• Need shared federal/tribal enforcement
• Keep tribal consortiums and Tribes informed on a regular basis.
INDUSTRY:
• EPA should seek to enhance its technology and eliminate the need for
multiple reporting.
• EPA should stress pollution prevention strategies rather than pollution
controls. Industry spends millions of dollars to measure chemical parameters
for demonstrating current compliance. These monies could be better spent
for pollution minimization.
• The EPA permit program is too complicated, too burdensome for industry,
and not sufficiently grounded in sound scientific principles.
• Compliance assurance programs are limited to permit conditions.
• Multi-media, cross-program compliance monitoring and enforcement
activities are Hmrted by multi-media trained personnel and fundamental
difference in regulations.
• Compliance assistance makes good regulatory sense.
A - 54
-------
Appendix 8
• Databases cannot identify non-notifiers or facilities which circumvent a
permit without violating observed permit conditions.
5. What is the appropriate federal function in enforcement programs where
responsibility is shared between federal and State governments?
STATES/TRIBES:
• Allow States to be the "doers"; rely on States to do the bulk of the
enforcement; recognize State and tribal jurisdiction as appropriate.
• Federal government should ensure that national standards are being met,
and that enforcement is consistent and equitable across States.
• Provide guidance, technical assistance and training, and back up State
programs where needed.
• Reduce oversight and administrative burdens.
• Provide adequate resources to tribes, and coordinate federal/tribal
enforcement with tribes responsible for policy decision-making.
• Provide information to tribes on equal terms with State agencies.
FEDERAL AGENCIES:
• Federal agencies/EPA Headquarters should provide national guidance to
States and Regions to ensure consistency; however, provide States and
Regions sufficient flexibility in implementation of programs within those
parameters.
• Regional offices should continue to perform current role in their enforcement
programs.
ENVIRONMENTAL GROUPS:
• Federal function should be to provide penalty guidelines to States and to
support State enforcement efforts. However, where State enforcement is
lacking, or more than one State is involved, EPA should become more active
and/or take the enforcement lead.
A - 55
-------
Appendix 8
6. How can EPA integrate State environmental priorities into EPA's strategic
planning for enforcement?
STATES/TRIBES:
• EPA should fully recognize States' primary responsibility for environmental
regulation within their borders.
• EPA should integrate the States' priorities into its strategic planning for
enforcement.
• The Regions should be given the authority and flexibility to develop
individual relationships with the States based on their capabilities rather than
prescribed national requirements.
• Increased involvement with the Regions during the planning of the
reorganization, particularly with respect to better coordination of federal
facility enforcement.
• In order for compliance to happen in a timely and efficient manner
enforcement resources must be directed to the State.
• There is a fairly good model that EPA could consider, the Health Objectives
2000 that utilized an integrated approach to developing priorities,
incorporating ideas from various States and developing a priority that had a
large and federal focus.
• The strategic plan on the federal level should be one of goal setting and
implementation in a very general context. Each State should develop a
specific strategic plan for each program to implement the general strategic
plan established by EPA, and the regional office should review and approve
these plans to ensure compliance with the ultimate goals.
• Active participation of States in the planning process.
• Strategic planning should occur on a regional as well as a national basis.
• Develop a strategic plan that is both workable and properly funded for each
State.
A - 56
-------
Appendix 8
• Establish a more effective means and concentrated effort to communicate
with States in a timely manner prior to establishing environmental priorities.
• Build flexibility into grants, enforcement response policies, and
implementation plans to cover both State and federal priorities.
• Maybe a change to multiple year grants would help.
• It should not be EPA's strategic planning process. The planning process has
to be done on a State-by-State basis.
• Time the strategies to coincide with the States annual planning cycle and
EPA State funding cycle.
• Do not add new initiatives after the annual work plan has been agreed upon.
• Trust appropriate State staff with 'enforcement sensitive' information so
that the States and EPA can work in a coordinated manner.
• EPA should consider the "beans" accomplished by the State in meeting
identified program goals for the Regions.
• EPA should focus on real world results.
• EPA should include State enforcement data and its significance when
compiling reports destined for Congress and the public.
7. Are there any other comments you would like to make?
• The Agency's new enforcement organization fails to acknowledge the
significant role education plays in achieving compliance. If the regulated
community knows and understands the environmental regulations that
impact them, there is the opportunity for members of that community to
pursue voluntary compliance.
• The key to success of any organization is effective and timely
communication. When requested, Regions have provided guidance on
complex issues in a relatively timely manner; this has not been the case
when the Regions or States must seek guidance from Headquarters.
A - 57
-------
Appendix 8
• EPA should provide more timely seminars for the States prior to
implementation of a regulation.
• Additional grant funds should be provided from EPA to the States so that
the States can hire professional and paraprofessional legal personnel to
assume more of the enforcement burden.
• EPA guidance memoranda need to be clearer and more concise, particularly
with respect to reporting requirements.
• EPA "oversight" process does not lend itself to cooperative work. It
becomes a "we give the orders, you guess at the meaning and try to
implement and we'll tell you where you went wrong" process. EPA needs to
recognize State priorities.
• The strong focus on maintenance of detailed enforcement statistics may not
be meaningful. It may be more effective to focus on the net effect of
enforcement actions and on other types of actions which may contribute a
significant impact on attaining compliance with regulatory requirements.
A - 58
-------
Appendix 8
PART C: INTERVIEWS WITH FORMER REGIONAL OFFICIALS
The following former EPA officials were interviewed by Susan Studlien:
• Leslie Carothers, former Enforcement Division Director/DBA in Region I
• Lee DeHihns, former OGC attorney, DRA in Region IV
• Jim Moore, former Regional Counsel in Region X
• Chuck Warren, former RA in Region II
• Jim Self, former RA in Region III
• James McDonald, former Enforcement Division Director in Region V
• Jeff Miller, former Enforcement Division Director in Region I, and AA For
Enforcement
SUMMARY
All the interviewees urged caution in deciding to reorganize at the regional
level. Several suggested that the process of structural change can consume so
much time and energy that it may detract from our principal job. They
unanimously felt positively about the very focused aspect of EPA's pre-1981
enforcement structure, but several felt that times have so changed that it would be
a mistake to attempt resurrection of this structure.
Many of those interviewed urged that Regions and Headquarters alike focus
less on command and control and more on compliance assistance and fostering
innovative technology.
if the Regions are reorganized, all of the interviewees suggested this should
be done as rapidly as possible, to avoid the malaise that attends time-consuming
structural change. In terms of short-term organization, they were unanimous that
there should be a single point of accountability, the DRA. Multiple accountability
points mean diffusion of responsibility.
In terms of long-term options, one former official said that a reasonable
reorganization would take onry inspection resources and put them in an
A - 59
-------
Appendix 8
enforcement division, leaving attorneys together, and leaving the program people
together. Several interviewees suggested that if a decision is made to reorganize
the Regions, we should start with one or two pilots.
Most of the interviewees thought Headquarters should not be involved in
case management, that Headquarters' role should be limited to making policy
decisions and issuing guidance. The problems cited with Headquarters
involvement in cases were principally delay in processing/settlement. Some former
officials said Headquarters should review the first two or three cases in a new
program, then allow Regions to manage cases on their own. Most of them said
that regional offices should, at a minimum, be responsible for originating cases,
and that if Headquarters needed to be involved for consistency reasons (viewed by
most as important in large cases), that involvement should be later in the process.
It was not considered important by any of the interviewees that
State/regional structures mirror one another. Some suggested that the State/EPA
agreements were effective means of monitoring States with a myriad of structures.
All of them felt the most significant thing was measurement of results in the
States (success measures), and that these should be other than traditional
"beans".
Comments on Long Term Options by Former Regional Managers
Jim McDonald:
• Whatever the decision, it should be made rapidly. Don't change for the sake
of change. Projected benefits should outweigh status quo.
• A reorganized enforcement division, including attorneys, could result in
better accountability.
Jim Moore:
• It is difficult to assess how much change is needed in the regional offices,
since they vary enormously. Don't push too hard if things are working now.
An enforcement division would be good because very focused, but bad if it
promoted real separation from the program offices.
• To give enforcement priority, take inspection resources only, and put them
in an enforcement division. Leave program people out. Leave attorneys out.
A - 60
-------
Appendix 8
The enforcement division could send results of inspections to the program
offices and attorneys for processing.
• Think about pilots if the Agency wants to reorganize. Find a Region that
wants to improve and let it try out a reorganization.
Jim Sife:
• When EPA abandoned the enforcement division in 1981, it was a mistake.
Resurrection of the enforcement division in 1994 would also be a mistake.
Enforcement is a decreasing percentage of what needs to get done. EPA
needs to take an affirmative role with companies. The only way to
accomplish anything positive through enforcement is by making sure
compliance assurance is the focus.
• The Regions don't have to follow HQ reorganization suit. Don't build to old
standards, use new technology. Stress the development of environmental
technologies.
Chuck Warren:
• EPA should be very careful in upsetting structures. The process can
consume so much time it takes away from principal job. Turmoil can affect
people adversely.
Lee DeHihns:
• EPA must continue to move away from bean counting to quality
enforcement actions...geographic, industrial sector initiatives.
• Make sure environmental technology is really fostered. Invest time to make
enforcement technology work.
• The Agency should stress compliance assistance to make industry a willing
partner. Consolidation would be a "gross mistake." The Agency can
accomplish its goals with the current structure. An enforcement workgroup
(coordinator) concept has worked well for most Regions.
• If a regional enforcement division is put together, it would have to have clear
lines of authority to Headquarters.
A - 61
-------
Appendix 8
Leslie Carothers:
• All the dire consequences we predicted concerning the dismantling of the
enforcement divisions have not materialized. I can certainly understand the
Headquarters reorganization. To give the enforcement function the focus it
needs, a consolidation is really necessary at Headquarters because the
Assistant Administrators have so many responsibilities (administrative and
on the Hill) other than their individual programs, but this is not as true with
the regional division directors. They have proved well able to focus on both
programmatic and enforcement functions, perhaps because of more limited
administrative and policy responsibilities.
Jeff Miller;
• The Agency needs to have a consolidated enforcement division in order to
focus its enforcement function.
A - 62
-------
Appendix 8
PART D: SUMMARY OF MEETINGS AT HALL OF STATES (March 18 & 28
1994)
At the Phase II meetings in the Hall of States (March 18, 1994), comment
focused on five major areas:
• Criminal enforcement: States, want to build greater capacity in this area, and
have concern about working with Headquarters rather than Regions. States
have developed strong enforcement relationships with Regions.
Headquarters involvement is often disruptive of these.
• Compliance assistance: EPA must work closely with States in developing
compliance assistance, since the Agency will be telling the regulated
community how to comply with State law in the numerous authorized
States.
• Communication/coordination: This is crucial to enforcement success,
particularly in targeting, developing initiatives, measuring success in
environmental improvement, and ensuring that everyone understands new
areas of focus (e.g environmental justice, multi-media).
• Impact on State structures: several States wanted regional flexibility to
decide what, if any, restructuring is needed for their offices. Concern was
voiced that States may be forced to restructure to align with EPA, and that
current environmental statutes may need to be changed because of their
single media focus.
• Environmental Justice: Concern expressed that environmental justice issues
would be a priority no matter which option was chosen.
A - 63
-------
Appendix 9
APPENDIX 9
TASK FORCE MEMBERSHIP BY SUBCOMMITTEE
Sylvia Lowrance • Chairperson
Steve Herman - Ex Off/do
Scott Fulton (OECA), ex officio member
Shelley Metzenbaum (OROS/LR), ex officio member
Coordinating Committee
Richard Brozen (OA)
Diane Callier (Region 7)
Phillippa Cannon (Region 5)
Justina Fugh (OECA)
Invaluable Staff Support from:
Jim Bower, Region V
Joan Brown, Region VI
Avi Garbow, OECA
Laura Janson, Region III
John Kushwara, Region II
Eric Schaaf, Region II
Sam Silverman, Region I
Lynn Vendinello, OECA
Inreach
Co-Chairs:
Nell Gales (OAR)
Bill Hathaway (Region 6)
Jo Ann Asami (Region 9)
Linda Beasley (Region 5)
Jamie Bernard-Drakey
(Region 7)
Richard Caspe (Region 2)
Mike Gaydosh (Region 8)
George Hofer (Region 10)
Shelia Hollimon (Region 4)
Bob Janney (OPPTS)
Jack Lehman (OW)
Gerry Levy (Region I)
Barbara Lither (Region 10)
Michael Mason (OPPE)
James Nelson (OGC)
Russell Rhodes (Region 6)
Mary Sarno (Region 3)
Richard Troast (OSWER)
Bob Van Heuvelen (OECA)
Arty Williams (OPPTS)
A - 64
-------
Appendix 9
Short Term
Co-Chairs:
Harley Laing (Region 1)
Tom Voitaggio (Region 3)
Jo Ann Asami (Region 9)
Linda Beasley (Region 5)
Maureen Doughtie (Region 8)
Martha Fox (Region 10)
Steve Hitte (OAR)
Shelia Hollimon (Region 4)
Bob Janney (OPPTS)
Jack Lehman (OW)
Eric Schaeffer (OECA)
Richard Troast (OSWER)
Long Term
Co-Chairs:
Jack McGraw (Region 8)
Sally Seymour (OECA)
Jamie Bernard-Drakey
(Region 7)
Bob Blanco (OW)
Mike Gaydosh (Region 8)
Sallyanne Harper (OARM)
George Hofer (Region 10)
Barbara Lither (Region 10)
Michael Mason (OPPE)
Walter Mugdan (Region 2)
Mary Sarno (Region 3)
Eric Schaeffer (OECA)
Karen Schwinn (Region 9)
Tom Voitaggio (Region 3)
Gerald Yamada (OGC)
Roles and
Co-Chairs:
Mike Stahl (OECA)
Dave Ullrich (Region V)
Richard Caspe (Region 2)
Jewell Harper (Region 4)
Cecilia Kernodle (Region 6)
Judy Kertcher (OROS/LR)
Thomas Maslany (Region 3)
Karen Morley (OSWER)
James Nelson (OGC)
Russell Rhoades (Region 6)
Martha Steincamp (Region 7)
Bob Van Heuvelen (OECA)
Mike Walker (OECA)
Arty Williams (OPPTS)
Outreach
Co-Chairs
Lynne Ross (OCLA)
Susan Studlien (Region 1)
Bob Blanco (OW)
Maureen Doughtie (Region 8)
Martha Fox (Region 10)
Jewell Harper (Region 4)
Sallyanne Harper (OARM)
Steve Hitte (OAR)
Cecilia Kernodle (Region 6)
Judy Kertcher (OROS/LR)
Thomas Maslany (Region 3)
Karen Morley (OSWER)
Walter Mugdan (Region 2)
Karen Schwinn (Region 9)
Martha Steincamp (Region 7)
Mike Walker (OECA)
A - 65
-------
Appendix 10
Appendix 10
The Times. They arfl a-Chanaina *
Oh come all you bureaucrats, gather around,
As your bastions of priv'lege come tumbling down,
And watch as your empires to dust will be ground -
Reinventions wholesale and far ranging.
If you're in for a penny, you're in for a pound,
For the times, they are a-changing!
There's too many regs, so we'll cut 'em in half;
Useless programs: we'll separate wheat from the chaff;
By one quarter million we'll cut down your staff;
Your departments all need rearranging.
It may sound Republican, but don't you laugh,
For the times, they are a-changing!
At Waterside Mall, we shall rebuild OE,
Reassemble the pieces of Humpty Dumpty.
We'll reverse the diaspora, and then you'll see
Lawyers and techies miscegenating.
And the Regions are next, just you listen to me,
For the times, they are a-changing!
What once was, will finally be once again;
And by tearing apart we will finally mend.
The Enforcement Division shall rise up again
Like the Phoenix, from ashes once blazing.
And those who aren't for it, will get theirs in the end,
For the times, they are a-changing I
* By Walter Mugdan, with apologies to Bob Dylan
A - 66
J
-------
Appendix 10
I Ain't Changing Anymore *
Each appointee leaves behind a brand new plan,
Passing through EPA's revolving door;
Well I've lived through every changing fad,
I've changed enough to drive me mad,
But I ain't a-changing anymore!
Under Nixon and Ford I worked by MBO; (then)
Carter's Moral Equivalent of War
Brought Performance Standards, C-J-E's,
P-M-R-S, and Z-B-B's;
But I ain't a-changing anymore.
Administrators come, and Administrators go,
But never a one shall last.
Don't let 'em get you down
As they change your world around;
Remember: This Too Shall Pass.
Ronald Reagan, he told me I should change again;
Gorsuch said that with less I must do more.
She broke up the old Enforcement shop
But now Enforcement's back on top;
Well, I ain't a-changing anymore.
Reilly said that he'd fix the Superfund in 90 days;
He would clean up the contracts mess, he swore.
So we wasted time on FMFIA,
And changed to Multi-Media;
Now I ain't a-changing anymore.
Administrators come, and Administrators go,
But never a one shall last.
Don't let 'em get you down
As they change your world around;
Remember: This Too Shall Pass.
A - 67
-------
Appendix 10
I've been trained as a manager a dozen different ways: Zenger-Miller, Myers-
Briggs, and many more.
I've been l-D-P'd and 0-P-M'd
And G-L-O'd and T-Q-M'd,
But I ain't a-changing anymore.
And now I'm supposed to reinvent myself,
According to Bill Clinton and Al Gore.
Call it stubborness or reason,
Or disloyalty or Treason,
But I ain't a-changing anymore!
No, I ain't a-changing anymore!
* By Walter Mugdan,
with apologies to Phil Ochs ["I Ain't Marchin' Anymore]
A - 68
-------
GLOSSARY OF ACRONYMS
AA
CERCLA
DOJ
DAA
DRA
E-Mail
EPA
EPCRA
ESD
Fax
FIFRA
FOIA
FMFIA
FY
ICR
LAN
NETI
NPR
OA
OAR
OARM
OCLA
OGC
OECA
OPPE
OPPTS
ORC
OROS/LR
OSWER
OW
PRP
QA/QC
RA
RCRA
SEP
SES
SIP
TSCA
Assistant Administrator
Comprehensive Environmental Response Co
Liability Act. Also known as Superfund. ' ^ompensatlon
Department of Justice
Deputy Assistant Administrator
Deputy Regional Administrator
Electronic Mail
Environmental Protection Agency
Emergency Planning and Community Right-to-Know Act
Environmental Services Division
Facsimile
Federal Insecticide, Fungicide and Rodenticide Act
Freedom of Information Act
Federal Manager's Financial Integrity Act
Fiscal Year
Information Collection Request
Local Area Network
National Enforcement Training Institute
National Performance Review
Office of the Administrator
Office of Air and Radiation
Office of Administration and Resources Management
Office of Congressional and Legislative Affairs
Office of General Counsel
Office of Enforcement and Compliance Assurance
Office of Policy, Planning and Evaluation
Office of Prevention, Pesticides and Toxic Substances
Office of Regional Counsel
Office of Regional Operations and State/Local Relations
Office of Solid Waste and Emergency Response
Office of Water
Potentially Responsible Parties
Quality Assurance/Quality Control
Regional Administrator
Resource Conservation and Recovery Act
Supplemental Environmental Project
Senior Executive Service
State Implementation Plan
Toxic Substances and Control Act
and
A -
U.S. Environmental Protection Agency
Region 5. Library (PL-12J)
77 West Jackson Boulevard, 12th Floor
Chicago, IL 60604-3590
------- |