Plenary Session Speeches
The Omni Shoreham Hotel
Washington, DC
November 30-December 2, 1994

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TABLE OF CONTENTS
Page
Elaine G. Stanley
"The Compliance Assurance Continuum: Strategic
Choices for Environmental Protection"
Robert Van Heuvelen "Enforcement Priorities and Promoting
Innovative Enforcement"
15
Earl E. Devaney
"A Perspective on Environmental Crimes Enforcement
at the Environmental Protection Agency"
22
Scott C. Fulton
"Integrating Approaches: Sector, Multimedia,
Media, and Other Approaches"
26
Barry N. Breen
"Accomplishments and Future Directions in
Federal Facilities Enforcement"
38
Michael M. Stahl
"Enforcement and Compliance Partners and
Stakeholders"
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"COMPLIANCE ASSURANCE CONTINUUM:
MAKING STRATEGIC CHOICES FOR
ENVIRONMENTAL PROTECTION"
ELAINE STANLEY, DIRECTOR
OFFICE OF COMPLIANCE
November 30, 1994
INTRODUCTION
I am very pleased to be here today to discuss the very ambitious - often frustrating - but
always challenging process of achieving and maintaining compliance within the regulated
community.
I want to spend a few moments discussing how the Administrator's reorganization and
consolidation of the enforcement program has significantly enhanced our ability to focus on
the process of achieving compliance.
Then I will discuss the new and old tools available to us as regulators to refocus attention on
the issue of achieving and maintaining regulatory compliance.
OECA REORGANIZATION - FOCUS ON COMPLIANCE
The Administrator's reorganization was more than just a consolidation of the various
enforcement components from across the Agency, though that in itself was a major
accomplishment in ensuring greater efficiency in enforcement program planning and strategic
targeting, and smoother implementation of the national enforcement program.
But beyond the need to consolidate functions for efficiency, there existed a recognition that a
new approach was needed if we were to succeed in our goal of assuring compliance. Our
traditional enforcement tools - monitoring, administrative actions, criminal sanctions and
monetary penalties - by themselves did not lead to sustained compliance in the regulated
community.
What was needed was a new view - one that took a holistic, multimedia view of the process
of achieving compliance and had the capability of addressing problems on a sector-wide and
ecosystem basis.
This vision took shape across all OECA, but most particularly in the organizational structure
and mandates of the Office of Compliance.
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Rather than maintain a traditional media-specific organizational approach, the Office of
Compliance is structured along industry and economic sector lines, with Divisions focusing
on the:
Manufacturing, Energy and Transportation Sectors;
the Chemical, Commercial Services and Municipal Sectors;
and the Agriculture and Ecosystems Sectors.
The role of these Sector Divisions is to:
develop strategies to respond to identified patterns of noncompliance in the regulated
sector;
support Federal enforcement actions through inspection guidance and enhanced
compliance monitoring techniques;
develop effective, responsive approaches to assist a specific industrial sector to
understand and comply with the full range of federal environmental requirements
regulating its operations.
By focusing on sectors of the economy, the Office of Compliance is able to identify and
address significant environmental compliance problems at the process level rather than at the
end of the pipe or stack.
The Enforcement Planning, Targeting and Data Division (EPTDD) provides the key
planning, targeting and data functions that will support the new program.
Thus, we have created a program, and an Office, that is more strategic and less reactive, and
a program with a vast array of enforcement and compliance tools at its disposal from which
solutions can be found to some of the thorniest barriers to compliance.
THE FACE OF COMPLIANCE TODAY
What is the state of compliance today? How do we in the new OECA begin to answer that
question?
o Sector-Specific Compliance: We are in the process of doing extensive analyses of
industry sector compliance, looking at such factors as:
non-compliance rates;
average number of inspections conducted per sector;
percent of inspections conducted that led to an enforcement action; and
types of pollutants discharged into the environment.
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We are cutting the data by Region/State and media program to get the fullest
possible picture.
It is premature to discuss industry-specific compliance rates just yet - we are
still analyzing and quality assuring the data. But we are seeing some
interesting trends. For example:
*	in several industries - including petroleum refining, organic chemicals,
iron and steel - inspections are conducted at virtually all facilities
annually across the media programs (not all media inspect all facilities,
but at least one media program is inspecting each during the course of
the year).
*	in others, inspections are only occurring every 7-10 years (dry
cleaning, printing, rubber and plastics).
*	when looking at average number of inspections per enforcement action
taken, we see numbers as high as 32 inspections for every enforcement
taken in Nonmetal mining but just 6 inspections taken for every action
at petroleum refiners.
*	as we slice and dice the sector data to begin to get Regional trends, we
see that inspection frequencies and non-compliance rates vary widely
between Regions.
Many of these preliminary trends are not particularly surprising, but they hold
interesting issues for us as we seek to target and develop compliance assurance
programs to address industry specific compliance barriers.
For example, 3 sectors - organics, inorganics and petroleum refining - are the
top TRI releasers, are inspected most frequently, and yield the most
enforcement actions per inspection frequency. The good news is that we are
not entirely off base in our past targeting activities. The bad news is that these
facilities seem to need even more help in reaching compliance.
"RECIPE FOR COMPLIANCE"
That's where the new strategic compliance assurance approach comes in.
My belief is that the elements of assuring compliance are not necessarily a "continuum", if
that implies a linear process going from one step to the next. Rather it is a whole set of
activities that are available to us right now as regulators to use as circumstances dictate.
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I.	Compliance Assistance: Activities designed to "assist" the regulated
community and encourage voluntary compliance with our regulations.
II.	Compliance Monitoring: Activities designed to provide information on the
compliance status of the regulated community.
III.	Enforcement Actions: Powerful deterrent sanctions designed to compel
compliance from the regulated community.
As Steve Herman has emphasized, compliance assistance and enforcement are not "either/or"
propositions ...
Strategic Planning/Targeting/Budget Priorities:
It is through the planning and budgetary process that we support the balanced application and
use of these tools. It is where hard decisions are made about areas of investment and
disinvestment, and it is where new initiatives take shape.
The reality is that we cannot conduct "hands-on" compliance assistance in every industry that
may need or want it, just as there are limits on the number of enforcement actions we can
issue or inspections we can conduct.
We have to make choices based on the best information we have available to us and apply
our tools in the most balanced, productive ways possible.
COMPLIANCE ASSISTANCE:
The only truly effective and efficient method to assuring compliance is for the regulated
community to comply voluntarily. In order for that to occur, people must understand what
the full spectrum of regulations are that affect their businesses. And they need to know
about new or existing technologies that can help them.
In some industries, companies are not suffering from a lack of will to comply. Our analyses
show that they do not understand fully what our regulations require of them and what
environmental and financial considerations have led to the requirements in the first place.
Nor do they understand what technologies are out there to assist them or what the financial
and legal consequences may be of non-compliance.
Our traditional enforcement actions do not effectively address these people, so we need to
develop new and innovative programs that do.
We in the Office of Compliance are now directing much of our effort towards the
development of programs that "assist" industries, large and small, into compliance with
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clear, direct and easy to understand information on the full body of regulatory requirements
impacting their industry and on available innovative technologies - including pollution
prevention controls - that can be applied directly to their production processes, e.g. Plain
English manuals for dry cleaners translated into Korean,
This is not to suggest, however, that highly successful compliance assistance programs have
not existed for many years, particularly at the State and local levels.
While most of these existing programs are media-specific or limited to requirements in a
specific State or locality, many have amazing success rates and provide excellent models to
base national multimedia programs upon.
Santa Rosa, CA: One such program was developed by the City of Santa Rosa,
California to address pervasive non-compliance in the auto repair sector in their State.
The program focused on achieving two goals:
1)	providing technical assistance; and
2)	mounting a consumer education campaign designed to recognize and
support businesses operating in regulatory compliance.
Santa Rosa's statistics show compliance rates soaring from 3% to over 70%
the year after introduction of their program.
Tennessee: Another example is the Underground Storage Tank (UST) Compliance
Inspection Program in Tennessee:
compliance assistance is provided to UST facilities who request a
voluntary inspection with the prerequisite that they attend the
inspections and agree to apply the information to the rest of their
underground storage tank locations.
Companies not participating in the voluntary inspection program were
inspected at every single underground storage tank location they own.
These programs, and those like them, provide excellent models to build national programs
on. We are completing an analysis of 18 State and local programs and will send it out soon.
The Office of Compliance has many compliance assistance initiatives currently underway
including:
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Environmental Technology Initiative (ETI) Compliance Assistance Centers
proposal
Clean Air Act (CAA) Section 507 Enforcement Response Policy
Environmental Leadership
Environmental Auditing
Common Sense Initiative (CSI)
ETI Proposal for Compliance Assistance Centers
The Office of Compliance, in partnership with industry, academic institutions,
environmental groups and other federal and State agencies has submitted a set of
proposals to the Agency's Environmental Technology Initiative Competition to fund
the development of four Compliance Assistance Service Centers - serving four
specific industry sectors heavily populated with small businesses: the printing, metal
finishing, auto repair and small farms sectors.
These multimedia, sector-oriented Assistance Centers would provide a base for "one
stop shopping" for its targeted sector - one place to get comprehensive, easy to
understand information on all regulatory requirements affecting the industry (these do
not have to be physical facilities; can use network capabilities).
The Centers would provide prepared materials consolidating information about
compliance requirements, pollution prevention and technical assistance resources for
use by State assistance programs, trade associations and individual companies.
In addition, technical assistance and training would be available on applicable
treatment technologies to help minimize waste production and maximize utilization of
pollution prevention technologies.
Our expectation is that EPA would oversee the Centers and provide the primary
funding for their activities, but competitions would be held to select the organizations
that would actually operate each Center and develop the sector-based educational
programs and materials.
Existing distribution networks, like the Agriculture Extension Service for small
farmers or the NIST small business development centers for metal finishers, will be
used to reach the target sector audiences with the programs and materials that are
developed by Center personnel.
ETI competition this year was very tight. In the event that we do not get
supplemental funding from ETI to fund our Centers proposal, we plan to search for
alternate ways to conduct these activities, though at a lesser scale.
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Innovative Policies - CAA Section 507 policy
Another example of our emphasis on "assistance" is reflected in development of
innovative new policies such as the recent issuance of our Clean Air Act Section 507
enforcement policy.
Section 507 of the Clean Air Act requires each State to establish a small business
assistance program, designed to assist small businesses meet their obligations under
the law.
In response to concerns expressed by many States that small businesses would not
seek assistance if violations discovered during their participation resulted in
enforcement actions, EPA issued its Section 507 enforcement response policy.
The 507 policy encourages small businesses to participate in these compliance
assistance programs by offering those States with delegated enforcement authority two
options:
1.	Limited correction period option - Small Business Assistance
Programs can provide businesses that receive compliance assistance a
limited correction period for violations detected during the program of
up to 90 days, with the possibility of an additional 90-day extension.
Any violations remaining after the limited correction period are subject
to existing enforcement response policies.
or,
2.	Confidentiality option - Instead of providing a limited correction
period, certain Small Business Assistance Programs may guarantee that
information identifying participating businesses where violations were
detected will be kept confidential. This confidentiality requirement
does not apply to any violations discovered independent of the Section
507 program. Also, this confidentiality option can only be offered if
the program is operated independent of the State's delegated regulatory
enforcement program.
It is important to note that this program only applies to small businesses which utilize
these compliance assistance programs, and does not apply to any criminal or
substantial endangerment violations.
OECA has established a workgroup of Headquarters and Regional staff to follow-up
on the commitment in the 507 Policy to consider application of the policy to other
media programs besides Air.
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Environmental Leadership Program
Small business industry sectors are not the only targets of new and innovative
compliance-oriented projects. The Environmental Leadership Program is focused on
encouraging compliance and "beyond compliance" behavior in the corporate
community at large.
The Environmental Leadership Program will recognize and reward companies that
develop and implement comprehensive environmental management systems that result
in significant environmental improvements and yield outstanding compliance records.
In June 1994, the Agency published a Federal Register Notice requesting submission
of proposals for the Environmental Leadership Program's pilot projects.
The goal of the pilot project program is to:
*	explore ways that EPA and the States could encourage facilities to develop
innovative auditing and compliance programs and reduce the risk of non-
compliance through pollution prevention practices;
*	encourage industry to take greater responsibility for self-monitoring, which can
lead to improved compliance, pollution prevention and environmental
protection; and
*	help EPA design a full-scale leadership program if the Agency decides that
such a program can help improve environmental compliance.
Benefits to the pilot participants include: (1) public recognition of their outstanding
environmental management practices; (2) an opportunity for input into the shape and
direction of the full-scale leadership program; (3) a direct opportunity to both inform
and participate in EPA's reassessment of our environmental auditing policy.
Forty pilot proposals were received by the September 21 deadline, including ones
from most major industry sectors, and we are currently evaluating each proposal to
select up to 10 initial pilot participants.
We have seen some really excellent and innovative ideas among the proposals
received. For example:
One company has proposed instituting an innovative approach to the auditing
process by having third party verification of results by a major engineering
firm.
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Another is proposing to demonstrate a facility environmental management
system to EPA and State regulators that would serve as a model for other
industries;
Other proposals have suggested use of innovative mechanisms for handling
disclosure of audit findings: 1) through partnership agreements with trade
associations and States; or 2) disclosure of categories of audit findings to trade
associations who would present information to regulators on frequency
distributions.
Still others propose developing mentoring programs to assist small,
neighboring companies in implementing environmental management systems.
Environmental Auditing
Which brings me now to one of our more challenging and controversial issues of the
moment - Environmental Auditing.
The challenge we face is two-fold: we want to encourage self-auditing. We must
impel the regulated community to police itself. So it is in our interest to look for
incentives to auditing and to knock down any barriers.
At the same time, we do not want to erect shields for non-compliance. We want to
penalize those who have polluted and gained an advantage by avoiding the costs of
complying. We want them to be forced to give back what they gained and more to
provide appropriate deterrents to keep them and others from breaking the laws.
The Agency attempted to straddle these competing concerns with its existing auditing
policy, first published in July, 1986.
This existing policy recognizes the importance of environmental audits, and the role
that they play in ensuring compliance among the regulated community and encourages
voluntary compliance through frank self-evaluation by facility owners and operators.
An Agency-wide workgroup on auditing policy is evaluating whether additional policy
incentives are needed to encourage the implementation of voluntary, self-evaluative
programs in the regulated community, and to promote self-disclosure and prompt
correction of any violations identified through these programs.
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Specific issues the group is wrestling with include:
Privilege: States are passing privilege laws and similar efforts are underway
in Congress. What is the impact of this on our ability to enforce?
Other Incentives: Assuming we do not pursue the privilege option, what
other incentives can we provide for companies to move quickly to identify and
correct violations (i.e. substantial penalty reductions?)
Setting high standards for auditing: What can we do to encourage high
standards for auditing, e.g. model systems, industry-wide international
standards.
Common Sense Initiative (CSD
In addition to the Compliance Assistance Centers Proposal, another example of a
sector-based outreach initiative is the Agency-wide Common Sense Initiative.
In July, Administrator Browner announced the Common Sense Initiative as her
cornerstone sector-based initiative. Six industrial sectors were selected to participate:
1.	Iron and steel
2.	Electronics and computers
3.	Metal plating and finishing
4.	Auto assembly
5.	Petroleum refining
6.	Printing
For each of these sectors, EPA is convening a high-level team comprised of industry
executives, environmental leaders, government officials, and labor and environmental
justice representatives given the mandate of finding ways to make environmental
regulation more efficient and more effective.
These Teams will be looking at six key elements impacting their Sector:
Promoting pollution prevention opportunities;
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Conducting regulatory reviews;
Undertaking innovative compliance assistance and enforcement initiatives;
Simplifying and improving reporting and recordkeeping requirements;
Implementing permit streamlining opportunities; and
Promoting innovative environmental technologies.
OECA is serving on all the Sector Teams and has been named the Agency lead for
the Printing Sector Initiative.
These Teams are our major laboratories to test various approaches to compliance
assurance, including targeted enforcement as well as assistance projects.
COMPLIANCE MONITORING "TOOLS": Our monitoring ingredients are a crucial
component of the compliance assurance process for they provide us with the basic
information upon which our decisions are based.
Inspection Guidance and Inspector Training Programs:
o In FY'95/96, resources will be shifted to the development of multimedia inspection
guidance from resources expended on development of single media guidances.
o With overall limited resources, we must make our facility visits more productive,
integrating pollution prevention responsibilities with individual media visits, doing
multimedia, full facility inspections; continuing to work with the States on dividing
responsibilities and roles.
o Similarly, development of multimedia inspector training programs is also a high
priority, working with the National Enforcement Investigations Center (NEIC) and the
National Enforcement Training Institute (NETI).
o This guidance and training will expose the inspector to the full range of regulatory
requirements impacting a given industry or facility, reducing the redundancy of
multiple single-media inspections and enhancing the likelihood of achieving "whole-
facility" solutions to pervasive compliance problems. But we realize that this can't
result in an inspector's checklist that is 35 pages long. We must be strategic in our
design of these facility inspections, selecting on high-risk processes, cross-cutting
regulatory requirements, and the facility's systems or processes that monitor
compliance.
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Sector and Data Analyses:
Our data analyses provide the basis upon which our planning and targeting efforts are
conducted and our programs are evaluated. Some initiatives we are undertaking in these
areas include:
o Sector Profiles: The Office of Compliance has undertaken a major analysis to
develop a comprehensive profile of eighteen major industrial sectors. Profiled
attributes include industrial process descriptions, multimedia regulatory requirements,
historical enforcement performance data, pollutant release information, current public
and private sector initiatives, and an assessment of potential pollution prevention
opportunities for the sector.
o Development of Sector Compliance Strategies: These strategies will be where the
Agency creates the appropriate "mix" of compliance and enforcement activities,
including issues like inspection priorities, Regional/State roles, use of enforcement
actions/targeted initiatives. The mix will be based on strong analysis of the sector
profiles, national priorities and other data sources.
o Measures of Success: Early in 1994 OECA formed a Workgroup of Headquarters
and Regional staff to review and revise the measures used by the Agency to evaluate
the effectiveness of the Agency's enforcement and compliance assurance programs.
In August, the Workgroup released its draft summary of recommendations to
Agency managers for review that addressed such issues as:
*	assuring consistency in data definitions across media programs;
*	developing new measures to evaluate programmatic impacts and new
program directions; and
*	the need for systematic reporting methods.
We need to get the pilots for these measures underway: case completion
sheets, enforcement activity indexes, and compliance rates.
o Public Data Accessibility: OC is developing a pilot project to promote public use of
compliance data as a mechanism to foster greater community understanding of facility
level environmental performance and compliance status.
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ENFORCEMENT "TOOLS"
Bob Van Heuvelen and Earl Devaney will be addressing OECA's enforcement priorities and
innovative enforcement initiatives in tomorrow's sessions, so I elected to concentrate the bulk
of my time on compliance assistance tools and initiatives to give you a more complete
understanding of some of the new and innovative directions we are heading in encouraging
voluntary compliance.
But voluntary compliance initiatives and incentives are only one component of the "mix" we
must have to achieve and maintain compliance. They will not be appropriate or effective in
every circumstance.
Our enforcement and compliance assurance program operates at its peak when strong
enforcement is used in tandem with the assistance programs discussed above.
The tools themselves and methods for using them are familiar to us all:
Administrative actions/injunctive relief that force violators to correct their
violations;
Civil/Judicial referrals;
Criminal sanctions; and
Monetary penalties/SEPs that are designed to punish violators and assure the
recovery of the economic benefit of non-compliance.
The importance of these tools cannot be overstated. Used in conjunction with the compliance
assistance activities I have outlined, I believe we can together concoct a recipe for success.
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"ENFORCEMENT PRIORITIES AND
PROMOTING INNOVATIVE ENFORCEMENT"
ROBERT VAN HEUVELEN, DIRECTOR
OFFICE OF REGULATORY ENFORCEMENT
December 1, 1994
We in the Office of Enforcement and Compliance Assurance have just gone through
an extended engagement and a recent marriage. For the past twelve years, the Office of
Enforcement and Compliance/Program Offices were inseparable friends. Everyone suspected
something was afoot and that marriage was inevitable. But, as these things go, one of them
just needed enough courage to pop the question. Thanks to you, Steve Herman, we don't
have to wait any longer for the inevitable! Thanks to the Administrator's decision to
reorganize, we now have unified legal and program staffs in the enforcement program. Like
all good marriages, we in the Office of Regulatory Enforcement (ORE) decided it was
important to start out and celebrate with something old, something new, something
borrowed, and something blue.
I. SOMETHING OLD
We still have a Contract with America: a contract whose terms were reiterated in
many critical ways in the marriage vows. This is NOT the more famous contract we have
been reading about in the newspapers; rather we have a Contract with America, a duty to do
our duty as civil servants, as federal employees, with respect to implementation and
enforcement of federal environmental laws. As Administrator Carol Browner put it
yesterday, the American people have every right to expect the government to secure the
protections afforded by the environmental laws. Moreover, the American people want strong
environmental enforcement.
This is the OLD part that we in ORE and OECA are affirming. We know, don't we,
that a standard that is not enforced is no longer a standard. If we fail or elect not to enforce
a given standard, we have in effect set a new standard.
Part and parcel of the Rule of Law in this Society is DUE PROCESS. We believe
that our job is to meet the Public's expectation that: 1) the government itself will uphold the
law; and 2) the government itself will also implement and enforce those laws that have been
enacted and regulations that have been promulgated. We must enforce the law to give
meaning to the standard that was set in the law or regulation (at least until it is duly
changed). We must enforce, as that is what the public has been promised.
Every person in this room still has a Contract with America, a duty to protect the
health and environment of this land. We know, don't we, that the laws and regulations that
protect the environment, if not obeyed, cannot and will not serve their stated and intended
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purposes. It is axiomatic that we enforce these laws against those who neglect their
responsibilities.
Take, for example, the nation's water pollution laws. We enforce Water Pollution
laws to deliver on their promise to secure and preserve water quality. But really, these
provisions of law have been on the books so long ~ who can possibly have an excuse to be a
violator? We enforce the Clean Air Act to help secure and deliver direct and observable
benefits for health - human health and the environment. Take for example, the
Reformulated Gas regulations — these will, upon implementation, directly reduce smog levels
in our nation's major urban areas. In addition, the Resource Conservation and Recovery Act
has worked in powerful and effective ways to prevent future Superfund sites (saving
countless millions of dollars) and has protected the quality of the nation's soil and
groundwater resources. The Toxic Substances Control Act works to protect society from
industrial chemicals. The Federal Insecticide, Fungicide, and Rodenticide Act protects the
nation's food supply and workers' health. We enforce each of these statutes to help deliver
on the promises made. And, of course, we enforce combinations of all of these statutes
through our multimedia enforcement efforts.
As Administrator Browner stated yesterday, our contract with America includes a
general duty clause to "level the playing field." To paraphrase her, part of our job is to
make sure that those who play by the environmental rules are not screwed by the rules. We
enforce against the violators to make sure that those corporations and individuals who violate
the law, the competitors of the good environmental citizens, can't (and don't) make hay at
the expense of the "good guys." We enforce against the violators to make sure that those
who do not comply with the law and therefore do not internalize pollution control notions
and the costs of pollution control into their operations do not profit from their illicit conduct.
We enforce against the violators to make sure that the violators do not seize market share at
the expense of those who play by the rules; and, having identified those who have violated
the law and benefitted from illegal behavior, to make sure that the full force of the law is
brought to bear to correct those inequities.
As civil servants, we have a Contract with America, a duty to do our jobs well. We
have a duty to perform those tasks with the greatest degree of professionalism. As the FY
1994 end of the year story demonstrates, our professional endeavors have yielded a great
deal of which to be proud. We have great enforcement statistics, but the enforcement story
is much more significant.
Enforcement does work. It works not only to punish those who have violated the
law, but enforcement also works to deter violators from repeating their conduct. After
literally hundreds of criminal enforcement investigations proceedings, only one recalcitrant
from the criminal arena has returned to the docket. Environmental prosecutions still provoke
major rending within the corporate ranks. Million dollar fines are not common or welcome
in corporate America. They normally result in heads rolling and behavior changing. We
know that as a consequence of conduct in this area, people literally lose their jobs.
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Yes, enforcement deters. For example, in the Superfund arena, most of the National
Priorities List is now either cleaned up, delisted, or subject to ongoing work. But there is
more. Yes, we have measured our success in terms of football fields that could be heaped a
mile high with waste removed from hazardous waste sites. Even more fundamentally,
federal enforcement can claim credit for the fact that many of those who were subject to suit
in the initial days of Superfund now produce less ~ a lot less hazardous constituents. As a
direct result of federal enforcement, many of those same actors now mono-fill their waste.
As a direct result of enforcement, almost every commercial loan in America is conditioned
on a review of the entity's compliance status. These are real success stories.
Environmental enforcement can claim credit for helping instill an ethic of
environmental responsibility. For example, in EPA's investigation of New Jersey's X codes
investigation, done by Barrett Benson of NEIC, we learned that landfill owners watch
hazardous waste generators to make sure that the generators disposed of what they claimed to
dispose; that the generators watch the landfill owners to make sure the owners didn't accept
inappropriate wastes; and that both owners and generators watch the transporters to make
sure that the waste is shipped to where generators thought it was going and came from where
the landfill owners thought it originated, and that it was lawful. Yes, deterrence-based
enforcement does work.
II. The New Organization
We recognize and enforce the OLD concept of deterrence in the new organization.
But in this organizational marriage, we decided to embrace some NEW concepts as well.
We recognize that it is not enough to simply celebrate the old. We should not breed
laziness. We cannot rest on our laurels.
Rather, we know that we need to apply lessons of the past to do our business better ~
cheaper, faster, and more efficient. It is clear we need to identify those tasks which remain
undone with clear analysis and serious purpose. These Clean Water Act statistics are
illustrative: under the Clean Water Act there are 185,(XX) regulated facilities, including
100,000 newly added by stormwater regulations. Of these facilities, 7,000 are considered
major facilities. In 1993, 5,000 of these major facilities were determined to be in violation
of the Act: 2,500 were labelled either significant noncompliers (SNCs) or reported
noncompliers (RNCs). As a result, 1,700 formal State and/or Federal enforcement actions
were initiated.
What do these statistics tell us? As a miner might put it, "the ore is rich."
Opportunities for compliance improvement are legion. The universe is so broad, we needn't
fight over who gets to deal with one source. In other words, there is plenty of business for
everyone: those who want to apply compliance tools; those who want to employ enforcement
tools; and those who want to apply both civil and criminal enforcement tools.
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Planning is the key to our mission. Intelligently dividing up the responsibilities is the
charge. Applying common sense logic is critical. Which tools make most sense in which
context? We in the Office of Regulatory Enforcement need to recognize that we simply
won't get to a very large number of smaller sources using traditional civil enforcement tools.
Others must recognize that enforcement remains an effective and unfortunately
necessary tool. We cannot take proclamation of good faith for granted. Rather, we must
approach those tasks which are new with new ideas, new energy, new approaches and
possibilities for coordinated strategies. This is part of the excitement of the new
Enforcement and Compliance Assurance Organization.
The Enforcement reorganization represents unique opportunities to address old and
nagging problems. With the emergence of the Office of Regulatory Enforcement, we are at
the dawn of an exciting new age — of truly national environmental enforcement cases. With
the help of the Enforcement Planning, Targeting and Data Division in the Office of
Compliance, Regional colleagues and NEIC's professional investigative staff, we can now
focus on national violators of the federal environmental laws. With the enhancement (and
recent merging) of the Agency's data systems, which includes IDEA, NEIC Library, and
refined individual media systems, we can now evaluate a corporation's behavior across the
country. This is critical in evaluating whether an entity, a pipeline, a major multi-national
corporation or a Fortune 500 company, is causing problems nationally.
With the new tools coming out of the reorganizations we can focus now on taking on
whole eco-systems. We commend what Region V staff did on the Grand Calumet River;
what Region IX is doing in the New River, and what four Regions are doing with the
seventeen United States Attorneys Offices (USAOs) in addressing the contamination of the
Mississippi River.
With the new tools coming out of the reorganizations we can focus now on taking on
whole sectors. EPA's Region VII successfully completed a pilot compliance program
addressing long-standing noncompliance with CAA standards applicable to stone crushing
facilities. In 1993, Region VII embarked on this innovative effort to work with the stone
crushing industry in only one State (Missouri) to identify those plants that were out of
compliance with the New Source Performance Standards for Non-Metallic Mineral
Processing Plants, often cited as "NSPS Subpart OOO." Many of the facilities in this sector
had been in violation of this regulation since the Agency promulgated the subpart in 1983.
The plant owners were invited to participate in the voluntary program to negotiate
administrative consent agreements with a compliance schedule, and pay a reduced penalty.
Of the estimated 102 possible participants, 51 companies voluntarily signed up for the pilot
program. Of these, 45 were not in compliance with the Subpart OOO testing and reporting
requirements. During FY 94, Region VII settled with the majority of the plants, and
collected penalties in excess of $1 million (individual penalties ranged from $3,500 to
$79,447). A large number of sources in the sector was rapidly identified and brought into
compliance, with a minimal resource drain on the Region.
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Another example of a sector-based enforcement approach includes the Pulp and Paper
effort. We must recognize the ten Regional Air Division Directors who, at a regular
quarterly meeting identified the Louisiana Pacific Corporation as a national violator, among
several major companies in the oriented strand board industry. Also, we have taken on
Service Stations' compliance (UIC program - 5X 28). Administrative Orders on Consent
were negotiated with ten major oil companies requiring immediate cessation of injection of
contaminated fluids, closure of shallow injection wells over a two-year period,
implementation of waste minimization practices, distribution of informational brochures to
customers, submission of detailed inventory information, submission of quarterly progress
reports, independent verification of ten percent of well closures, and payment of up-front
penalties and stipulated penalties for noncompliance with order requirements.
Let me emphasize. We view these as opportunities to work closely with our
colleagues. We view the expertise others bring as critical to our success. We look to the
Office of Compliance for critical targeting aid sector expertise. We need to maintain our
dialogue with those in OSRE to bring the Superfund tools to bear. And, of course, we look
to the criminal enforcement office, the Regions, and the States for critical expertise.
I issue a challenge to those of you attending this conference. Please embrace this
challenge together with your colleagues here in attendance. As the Air Division Directors
did with the LP case at one of their quarterly meetings, please work with your colleagues
from other Regional, Headquarters, program, and legal offices to embrace just one of these
kinds of goals for the out years — inspections in 1995 and 1996, and perhaps developing
some national cases shortly thereafter.
This is a good way to prove that the travel dollars expended by those entities
represented here were invested wisely. At the next national case announcement, the question
will be posed, "How did this case originate?" The Administrator can proudly say, "As a
direct outgrowth of the Enforcement and Compliance Conference."
HI. We've covered OLD and NEW.
I want to report that we also are building into ORE some borrowed concepts. In fact,
no good idea is safe. We are prepared to steal them and apply them in ORE.
We need to explore opportunities for Leveraging. We need to work with/out of the
States, local governments and the polluters. We can borrow this concept from the U.S.
Attorney's Office in Philadelphia, where law enforcement worked effectively to leverage self-
reporting of medicare fraud. In addition, while reviewing how we overfile, I heard that for
one year in one Region in one program, 100% of the cases were overflies. This needs to be
reviewed. Overfiling may represent the best way to motivate States to enforce the law in
programs for which they have been given delegations. Overflies also may represent a lost
19

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opportunity. Let us together examine how and when this tool can be used most effectively.
We need to look for every opportunity to leverage.
A recent Far Side Cartoon illustrates my point ~ A Shark is yelling to sunbathers,
"bear, bear." While we can't and won't always be just the gorilla in the closet or the bear
on the beach, we are willing to play that role. There are opportunities for ORE and OC to
work together.
We must seize opportunities to leverage conduct. As Malcolm Sparrow said,
"compliance" is not always and should not be equated with "voluntary compliance." We
should review Section 507 of the Clean Air Act and see what applications we can make in
other contexts.
With the Section 507 policy in the Clean Air Act we have an opportunity to focus on
entities which are rarely, if ever, on our radar screen for serious enforcement. Yet, these
sources, while small individually, collectively make up a significant source of pollution. In
other programs too we need to reach entities we haven't reached before ~ small entities. At
the same time, we need to match innovation with accountability. We can figure out ways to
address these sources in a manner that will allow us to proceed to seek pollution reductions
and compliance while at the same time addressing serious violators through traditional/
classical enforcement approaches.
The regulatory enforcement program is borrowing the notion of relief for prospective
purchasers. It's no longer the exclusive province of Superfund. This is also being
implemented in TSCA. For example, in New England the EPA Regional office has worked
to ensure that a naval vessel with PCB problems can be converted to civilian uses. The
prospective purchaser will ensure the removal of some PCBs and safe management of the
remaining PCBs still on board the vessel which will be sold to a city for a naval museum.
This enforcement agreement heralds not only our serious intention to addressing violations,
but our openness to practically solving health and environmental exposure issues. Similarly,
we have recently approved an enforcement agreement with a prospective purchaser of a
wetland area, which is the subject of a federal enforcement action providing for conveyance
of wetlands to a conservation group plus restorative measures undertaken for some of the
affected natural areas.
We also are interested in borrowing from the world of SEPs. The Dexter case
involved a Supplemental Environmental Project (SEP) in the TSCA context. As part of a
comprehensive agreement with a national violator, the company agreed to "fix" the problem
at the violating facilities, audit compliance at all other facilities, report on compliance,
address the violations, and pay penalties.
ORE will be borrowing from the international enforcement realm, notably the Dutch
& Germans. In these European countries, studies have documented that compliance rates
shoot up simply as a result of increased inspections. In light of that, consider these statistics
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from the world of RCRA. There are 1604 national Land Disposal Facilities. Last year,
however, we did only 164 inspections. As to large-quantity generators, there is a universe of
80,000 facilities, but only 7,000 inspections per year. As to hazardous waste transporters,
we know a universe of 12,000 facilities. But in 1993 we did only 24 inspections.
We look forward to learning and borrowing from the Regional offices in our Regional
reviews. In Region VIII, the Regional review revealed unusual and highly effective
stipulated penalty practices in the TSCA program.
We will be borrowing from other regulators. We met with our counterparts at the
Nuclear Regulatory Commission. They have implemented rather unusual injunctive relief -
literally barring individual operators from working in these plants - not only present
employers, but others.
Borrowing from the regulated community. This includes starting a dialogue ~ "In
Your Shoes" — as well as meeting with people from the environmental community, law
firms, regulated entities, former agency officials, and even Regions! Ask them, "What
would you do if you were in MY shoes?"
We are borrowing heavily ~ No Good Idea is Safe!
IV. In our new Organizational Marriage Contract, we recognize the concepts of
Empowerment and Liberation.
We've talked about OLD, NEW, and BORROWED. Regional empowerment is what
some in the Regions thought might make Headquarters' enforcement staff "blue." Since our
resource base is declining, we are embracing the fundamental precepts of minimizing
duplication, focusing on appropriate opportunities confronting each professional staff,
maximizing coordination, and focusing and coordinating on matters of national significance.
I want to report that we are addressing these issues with full involvement of Regional
staff. We have been working on the revamped delegations, addressing some of the tough
issues such as: what is a national issue, and how are we going to relate one to another. We
are also addressing some of the tough issues in civil judicial enforcement. A task force, lead
by Marcia Mulkey, Connie Musgrove and Joel Gross, is examining civil judicial enforcement
coordination.
In short, we embrace a number of old and new ideas in this new organizational
design. This is critical ~ for as the statistics cited earlier demonstrate ~ it's premature to
call the battle for compliance over. Likewise it's premature to say that enforcement has done
all it can. It's time to work together to identify targets of opportunity, to choose appropriate
tools for appropriate occasions, and to identify deficiencies.
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"A PERSPECTIVE ON ENVIRONMENTAL CRIMES ENFORCEMENT
AT THE ENVIRONMENTAL PROTECTION AGENCY"
EARL E. DEVANEY, DIRECTOR
OFFICE OF CRIMINAL ENFORCEMENT
December 1, 1994
Even though the organizational structure of the Office of Criminal Enforcement
(OCE) remained relatively unaffected by the reorganization of the Office of Enforcement and
Compliance Assurance (OECA), EPA's criminal program nonetheless has undergone a
radical transformation over the past three years. Significant changes in policy, procedures
and training have turned the EPA criminal enforcement world upside down. Pivotal changes
and enhancements in the program include the recent hiring of over 100 new Special Agents,
the opening of 19 new investigatory offices, notable improvements in minority hiring, and
the largest percentage of women in law enforcement (25%) among federal law enforcement
agencies. OCE truly is looking upon a new horizon; one that promises great possibilities,
but also must be approached with great circumspection.
This is not to suggest any hesitation on the part of OCE towards strong criminal
enforcement. To do so would be to misread the sentiment of two of EPA's largest customers
— the American Public and Congress. The criminal program has always enjoyed bipartisan
support in Congress, and with crime now the number one concern of all Americans it is
doubtful much support exists for being soft on any particular kind of criminal. In fact, in a
poll conducted by Arthur D. Little several years ago, 75% of those polled believed that
corporate executives should be held personally liable for environmental crimes.
A poignant observation on criminal behavior by Chester Bowles, a member of the
1941 United States Wartime Office, remains as true today as when first stated:
There will always be 5 % of individuals who will violate no matter
what; 20% who will comply no matter what; and 75% who will comply
only if the violators are punished and the requirements are perceived
as nonarbitrary.
Undoubtedly, Bowles did not have environmental enforcement in mind when he made
this remark, but his observation nevertheless is germane to criminal enforcement in the
environmental arena. As suggested by Bowles, deterrence is fundamental to criminal
enforcement. Just as importantly, the law must be clear and enforced in a nonarbitrary
manner. With this in mind, two philosophical tenets must guide OCE's mission: deterrence
and fairness.
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To achieve deterrence and fairness is easier said than done. It is made even more
difficult when attempting to do so simultaneous with seeking to strike a balance between
consistency and flexibility. The first step towards realizing all of these goals must be to
ensure that environmental violations are not over criminalized. Historically, criminal
enforcement has always been the smallest piece of the greater enforcement universe. This is
both appropriate and likely to continue.
Having said this, the record number of new cases initiated by OCE's growing
workforce obviously debunks the myth that environmental crime doesn't exist. In this
regard, for every new agent OCE puts in the field, the result is nearly seven new
environmental criminal cases. It is also critically important to note that these cases were
opened in a year when, not coincidentally, OCE issued guidance on the exercise of
investigative discretion by EPA's criminal investigators.
The OCE guidance is the first comprehensive attempt by EPA to establish discrete
criteria for Agency investigators when considering whether or not to proceed with a criminal
investigation. It's hallmarks are consistency and flexibility. A case that fails to meet at least
one of nine identified criteria is simply not to be investigated criminally. Any such case
instead is to be referred to EPA civil enforcers for administrative or perhaps civil judicial
action or, where appropriate, to state or local prosecutors. In fact, out of the 2200 tips and
leads considered by OCE last year, only 14% resulted in the opening of a criminal case;
71% were referred to state and local law enforcement; and 22% were given to EPA civil
enforcers for review.
As outlined in the guidance, the criminal case selection process is based on two
general measures, "significant environmental harm" and "culpable conduct". As noted
above, these measures in turn are divided into nine factors, or criteria, which serve as
indicators that a case is suitable for criminal investigation. Without specifically identifying
each of these factors, the criteria most frequently cited for opening a criminal investigation
last year were "threat of significant environmental harm" and "deliberate misconduct". Each
of these factors was cited in approximately 43% of the 525 criminal investigations opened by
EPA criminal investigators last year. This confirms that OCE criminal investigators are
exercising sound judgment by opening cases where there tends to be evidence of both
significant environmental harm and knowledge on the part of individuals committing
environmental violations.
Additionally, an interesting sidelight to the guidance has been the number of corporate
counsel and company executives who compliment EPA, in this context, for "at least
publishing the rules of the game". Fairness to the regulated community might not be the
first thing an EPA enforcer thinks of, but perhaps it should be.
In considering fairness, criminal enforcement must be equitably applied with respect
to all Americans. As part of the EPA focus on environmental justice, OCE has been
reviewing its investigations to ensure that environmental justice concerns are factored into
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priorities for criminal investigations. In this regard, fully 27% of OCE's new cases last year
involved alleged violations that affected environmental justice communities.
With its strengthened agent workforce, OCE is also in a position now to respond
more effectively to that persistent request of the American public to target the right
individuals and the right corporations. In sharp contrast to the situation a mere three years
ago, 85% of the defendants this year were from mid-level or upper level management, while
22% of corporate defendants were companies with over 1000 employees. No longer can
critics claim OCE picks on the little guy in the little company.
Even more impressive, by far, than the quantity of cases is the quality and
sophistication of many of OCE's recent investigations into large and complex organizations.
As the criminal program has achieved a critical mass of agents with specialized areas of
technical and law enforcement expertise, OCE's ability to investigate environmental crimes
that span across states, regions, and even national borders has improved dramatically.
The most recent recruit class of 21 Special Agents, currently undergoing training at
the Federal Law Enforcement Training Center in Glynco, Georgia, speaks to this issue. Not
only are 57% of this class women and 33% minorities, but 15 of the new agents were hired
under the college scholar program. Many have advanced degrees, two have law degrees,
and five of these agents come from within the ranks of EPA.
Building on the concepts of fairness and deterrence, OCE welcomes a new and
stronger relationship with the Office of Compliance. Hie Office of Compliance and the
criminal program compliment, rather than contradict, each other in unique ways. First, the
criminal program does not need additional business. If the Office of Compliance can help to
deliver the message of deterrence, including the potential criminal consequences of culpable
misconduct, then I'm all for it. Secondly, as mentioned earlier, fairness dictates that
everyone know the rules and have an opportunity to make right choices. These are just two
of the myriad reasons why OCE and the Office of Compliance must work together
cooperatively to advance the overall goal of safeguarding human health and the environment.
This must, however, be done without diminishing the clear message that serious
consequences will attach to those who refuse to play by the environmental compliance rules.
On a bright sunny day last month, I laid a wreath at the law enforcement memorial in
downtown D.C. to mark the sixth anniversary of the violent shooting death of one of EPA's
criminal investigators. I also watched with horror, last week, as the tragic events at the
District Police headquarters unfolded. These events and others gives me pause, and I take
issue with the notion that environmental crimes are just "good people doing bad things".
While rarely violent, environmental criminals are just like the countless thousands of other
criminals I've encountered in my 25 year career in federal law enforcement. These are had
people doing bad things - to our health, to our safety, and to our environment. The
motivation for these crimes is as old as crime itself. People commit these kinds of crimes
either to make money or to save money; it's really that simple.
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One short step away from the idea that these are good people doing bad things is the
troubling notion that a privilege should exist for a certain privileged class of offenders who
are fortunate enough to have the money to buy criminal insurance policies masquerading as
an environmental audit - sort of a "get out of jail card" in the game of environmental
monopoly.
It should not go unnoticed that in a recent survey of corporate counsel, 66% of those
surveyed cited the very threat of criminal enforcement as the reason for having a compliance
program. Therefore, EPA must carefully consider what this privilege really is - what it
really stands for - and take care that the Agency does not create an exception to the rules for
a special class. To do so will undermine and seriously erode the notion of fairness and
deterrence, and suggest, if not outright confirm, that the requirements of compliance are
arbitrary.
Ironically, the war of words over this issue between those who enforce and those who
are enforced against provides perhaps the best evidence that the deterrent message being sent
by EPA's criminal program is being heard loud and clear.
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"INTEGRATING APPROACHES:
SECTOR, MULTIMEDIA, MEDIA, AND OTHER APPROACHES"
SCOTT C. FULTON, DEPUTY ASSISTANT ADMINISTRATOR
OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE
December 1, 1994
I will be setting the stage for this afternoon's breakout sessions. The theme is really
about bringing the new thinking together. How do we synthesize and integrate all of our
strategies in a way that makes sense and ensures that our activities really do reflect our
priorities?
For my part, I want to share some impressions on this subject in an effort to stimulate
your thinking. Let's catch up on a few of the foundational questions to make sure we're
dealing in common currency.
Reflections on Multimedia Approaches - is there any question at this point that when we
talk about multimedia, we're not talking about a thing as much as we're talking about a way
of thinking? What we're saying is that when we conduct the business of the Agency, we
need to do it in a way that maximizes environmental results. (Slide 1: Multimedia: A Way
of Thinking).
We need to think outside the media box. We need to ask ourselves multimedia
questions so that we maximize our return. This multimedia thinking must pervade
everything we do if we are to become a results-oriented organization. (Slide 2: Thinking
outside of the media box).
Multimedia represents the future of environmental protection. I really do believe that
the day may come when we will see organic environmental legislation. Frankly, I think that
our experimentation with multimedia structures at Headquarters and in the Regions increases
the likelihood that this will happen.
1	also think that multimedia should not supplant the exercise of sound judgment. We
want multimedia where it makes sense. We don't want to be so slavish about our
commitment to multimedia that it causes us to use our resources in an unproductive way.
2	think the bottom line for us as managers is that we have to keep our eye on the
multimedia ball, whether or not we find ourselves in a multimedia structure. We need to
keep asking ourselves and our staffs whether we've considered the merits of a broader
approach. This doesn't mean that we'll always take the broader option - we'll take it when
it makes sense. But we do have to ask the questions.
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Reflections on Sectors: What is all this sector stuff anyway? Why are we moving in this
direction? What is this direction?
On this question, I take us back to Malcolm Sparrow's talk yesterday afternoon.
We're talking here about getting a handle on the "patterns that underlie the individual
incidents" so that our responses can be "surgical." A sector orientation is our vehicle for
doing this. (Slide 3: Why Sectors?).
The sector orientation is really part of a broader re-tooling of our points of departure
for the enforcement and compliance assurance program and about a much more deliberate
approach to how we prioritize our activities. Our traditional approach in many ways looks
like inventory management — first in, first out; any problem addressed represents success.
Recognizing that we can't do it all in any event, and that we have to start somewhere, we
want to concentrate our activities where it will make the biggest difference.
What are the organizing principles for our "new" approach for targeting our
activities? There are three: sectors, places, and media. We've talked about sectors. You
know about media priorities, so let's talk about place-based targeting. There are two
dimensions:
Ecosystems: The ecosystem theme has come of age. We're asking questions like:
where are the areas most affected by human activity? Where are highest TRI-
loadings? Where are our natural resources most vulnerable? We are moving in the
direction of having a much better developed sense of where these areas are and
focusing our work accordingly.
Environmental Justice: Environmental Justice is another place-based point of
departure. I want to spend some time on it because here I don't think we're terribly
well-grounded.
Environmental Justice: some impressions (Slide 4: Environmental Justice).
This is an area in which "justice" is really the goal — a goal that differs a bit from the
overall programmatic objective of compliance. We need to ensure that the disadvantaged in
society enjoy the same attention that those who are better off enjoy.
In a word, we need to be providers of equal protection from environmental violations;
we need to equalize the protection that we provide. This doesn't necessarily mean greater
responsiveness, but it certainly does mean at least equivalent responsiveness.
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Now, how many people here think that this is a problem in the enforcement and
compliance assurance program? That is, in some circumstances we have not been as
rigorous with disadvantaged communities as we have with other communities?
How many don't think that this is a real problem in this part of EPA's work? How
many really aren't sure? I think most of us tend to fall into the "not sure" category, which
for me means we do have a problem. If we can't say for certain that we're in the right place
here, then we're in the wrong place. In any case, we have a significant public perception
problem in this area that must be addressed.
At bottom, the issue in the Environmental Justice area is one of trust. There is an
increasingly significant element of the population which does not believe that we are acting
with their best interests in mind.
How do we deal with this issue in our program?
1.	Stop feeling defensive about it; move out of denial/avoidance into problem solving.
There is still a lot of denial in the Agency on this issue.
I found liberating something Michael Galobter, a professor at New York University
and one of the leading experts on the subject, recently said. He said that the issue
here is not about assessing blame. It's unfortunately a fairly natural, even
unconscious thing for bureaucracies to lean towards the politically potent rather than
the politically impotent. Generally, we're not talking here about purposeful neglect.
We're not talking here about willful racism. We're talking about tendencies that, left
unchecked, are bound to manifest themselves as problems over time. The good news
in this is that we do not have to assume the label of "racist" to admit that we may
have some problems in this area and seek to correct them.
2.	At the same time, we need to keep in focus that we are really the tail and not the dog
in this fight. On a grand scale, Environmental Justice needs to be viewed against the
backdrop of broader social injustices that have, over history, been visited upon the
disadvantaged. We can't be expected to cure these broader social ills. On a
narrower scale, we need to recognize enforcement and compliance assurance efforts
come after the real action in this area, which is siting and standard setting by permit
or by rule. We really are the tail. More aptly put, we're the band-aid.
But this doesn't mean that expectations of our program aren't high or that we do not
need to try to do our part to address the concern.
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So what do we do in the enforcement and compliance assurance program to try to
address this problem, which I have framed as principally a problem of trust and confidence
in us as forceful regulators? In a nutshell, four things:
1.	Education and empowerment: we have a role to play in helping people understand
how the system works, the limitations of the system, and their rights as citizens. We
need to communicate better with local communities what we're doing for them in our
program.
2.	We need to review all of our operating guidances and policies to ensure that they
reflect sensitivity to this issue — that they will serve as our "check" on institutional
racism.
3.	We need to capitalize on opportunities to improve quality of life in Environmental
Justice communities. Supplemental Environmental Projects that focus on pollution
prevention to decrease cumulative exposures and promote environmental restoration
need to be a heightened priority when we are working in an Environmental Justice
community.
4.	We need to redouble our efforts in these communities. This needs to be a vital
element of our place-based targeting efforts. We need to visibly increase our focus
and presence. This makes a difference.
It makes a difference when Region V can stand up and say that they have decreased
pollution loadings in Southeast Chicago through concentrated enforcement activity. It makes
a difference when EPA New England announces that it will be tripling its inspection
activities in Environmental Justice communities over the next year. It makes a difference
when we can say that we expect to conduct at least half of this year's criminal investigations
in Environmental Justice communities.
This is a hard issue for us as an Agency. Most of us came to EPA out of an interest
in doing social justice. To think of ourselves as playing a role in the perpetration of a social
injustice is a bitter pill to swallow. But swallow it we must.
To turn the corner on this issue, we need to incorporate Environmental Justice into all
aspects of our thinking. We need to constantly ask ourselves and our staff the questions,
"how does EJ fit into this?" and "how do we advance EJ through this effort?"
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Some thoughts on synthesizing our organizing principles.
Remember, there are three organizing principles: sectors, places, and media
objectives.
Let's deal first with the question of roles. I'm assuming that, generally, OECA will
be establishing sector targets, that OECA and the media programs will together be
establishing media objectives, and that, generally, the Regions will develop place-based
targets.
There will, of course be exceptions to these general rules. There may be places that
transcend Regional bounds and thus call for a Headquarters lead; there may be sectors that
are only of Regional concern. But generally, I'm looking at sector and media objectives
developing on a national level, and place-based targets developing on a Regional level.
It's helpful for me to think of these organizing principles as three interlocking circles
with the point of complete intersection representing the strategic plan for a given Region
(Slide 5: Organizing principles for Enforcement and Compliance Assurance).
To my way of thinking, our sector, place and media goals are not incompatible,
although the synthesis will be challenging for us as we learn how to do this better. The
Regional MOA process is our vehicle for achieving this synthesis. (Slide 6: Regional
Specific MOAsJ.
In some respects, I think "places" will over time become the primary point of
departure for most of what we do. Within those places, we will look to prioritize our actions
to reflect sector targets and advance media objectives. There will always be some
circumstances in which places will not be the primary driver - the national violator concept
is an obvious example - but, by and large, this is the conceptual framework that we'll be
following.
Let's close with a couple of big ticket questions that flow from this orientation that I
would invite you to consider in your break-out sessions:
1. Where do the States fit into all of this, particularly States with delegated programs?
Do we need to work States into all aspects of this so that the "delegated States have
first option" doctrine concept can be honored here, or are there some things that
we're better positioned to do?
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2, What about flexibility on a Region-by-Region basis? What if, in light of the
particular places of concern within a given Region, either the sector priorities or the
media priorities do not make a great deal of sense? While I'm reasonably confident
about flexibility on the sector side of the equation, how much flexibility should there
be in trading off between media programs? How far can we go, how far should we
go, in cross-program reinvestment in circumstances in which the problems in a given
Region cry out for it?
I look forward to hearing your answers.
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MULTI-MEDIA: A Way of Thinking

illl
.


":xx::;::x::

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MULTI-MEDIA:
Thinking Outside of the Media Box
V>l
Hmmm	
-- Where to inspect?
-- How to inspect?
-	Pass off to other program for follow-up?
-	SEPs?
-- What did we accomplish?	^
//
MBPiA MAVEN
it

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WHY SECTORS?
Identifying non-compliance "patterns"
Understanding causes of compliance
Tailoring strategies to fit problems
Exporting common technical solutions
~ P2
Measuring compliance impact

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ENVIRONMENTAL JUSTICE
Here "Justice" is the goal
Justice = Equal protection
Key Activities:
~	Policy/Guidance review
~	Equalizing our presence
~	Targeting

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ORGANIZING PRINCIPLES FOR
EN FORCEM ENT
AND COMPLIANCE ASSURANCE

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REGIONAL-SPECIFIC MOAs
Synthesis of HQ/Regional priorities
Prioritize national sector targets
within geographic areas of concern
Prioritize media objectives in context
of cases generated per sector/place
orientation

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"CATCHING UP, EVEN WHILE WE'RE OUT IN FRONT"
BARRY BREEN, DIRECTOR
FEDERAL FACILITIES ENFORCEMENT OFFICE
December 2, 1994
The program shows my topic as Accomplishments and Future Directions in Federal
Facilities Enforcement. Basically, it means "Where are we and where are we going?" And
the answer is a paradox: we are catching up even while we are out in front.
What I'd like to do in our limited time together this morning is to summarize three
items: first, some background facts about federal facilities; second, how we are "catching
up;" and third, how we are "out in front."
The first background fact is that the federal facilities issue is large, multimedia, and
multi-agencv.
The federal government owns about 1/3 of all the land in the United States. The
government spends nearly $12 billion per year on federal facilities issues, or about $1 billion
per month. By comparison, the entire EPA budget is about $7 to 8 billion per year. So the
federal facilities budget, government wide, is about half again as much as the entire EPA
budget.
Federal facilities include some of the most massive environmental problems
anywhere. At the Department of Energy site at Savannah River, South Carolina, more than
50 underground storage tanks, each as big as the Capitol dome, house high-level radioactive
waste. The Energy Department's Assistant Secretary for Environmental Management says
that except for the former Soviet Union, DOE is the biggest polluter in the world.
There in one of the front rows is Tom Speicher from Region 8. As Tom knows,
DOE is not alone. The federal district court judge deciding the Army's Rocky Mountain
Arsenal case near Denver calls that site the most polluted place on earth.
All in all, there are 160 final and proposed National Priorities List sites, representing
the Energy Department, Defense Department, Agriculture Department, Transportation
Department, Interior Department, and NASA.
And the issue is multimedia. The Defense Department, for example, has 488 RCRA
permits, 858 water discharge permits, 7,479 air emission permits, and approximately 30,000
underground storage tanks.
So the federal facilities issue is indeed large, multi-agency, and multimedia.
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The second key fact is that beginning with President Harry Truman in 1948. and
continuing right up to the present. Presidents and Congress have made a series of promises
that steadily tighten the requirements on federal facilities.
In my first draft of these remarks, I'd planned to spend about 5 minutes with you
tracing out the history of those promises, showing how they build on each other, how they
are bipartisan, and how they are independent of cyclical factors such as the ups and downs of
the economy. But I'm going to cut to the present because I want to use the time to tell you
about so much we are doing that I am excited about.
President Clinton has articulated a strong federal facilities policy. For compliance, he
said, "It is time that the United States government begins to live under the laws it makes for
other people." For going beyond compliance, he said, "Federal facilities will set the
example for the rest of the country and become the leader in applying pollution prevention."
Not just "show leadership", not just be "a" leader. The President's policy is for federal
facilities to be the leader for pollution prevention.
Summing it up, the current presidential policy is that compliance is a floor for federal
facilities performance, and leadership is the aspiration.
This most recent policy is the most far reaching in a series of presidential promises
begun by Harry Truman, repeated by Dwight Eisenhower, and expanded upon by Lyndon
Johnson, Richard Nixon, Jimmy Carter, George Bush, and now Bill Clinton. All of the
promises are to the same theme, that the government would protect its environment.
Now I want to share with you for a moment what's in my heart. When I was a boy,
I grew up on an Army base. I have an aerial photograph of the base over my desk in my
EPA office. The photo has great resolution of fine details. If you come to my office I can
show you on that photograph where the elementary school had a sandbox that I played in. I
will show you the abandoned road where my father taught me to ride a bicycle. And I can
show you the swimming pool where my older sister finally coaxed me to jump off the high
diving board, after months of fear.
My childhood friends and I trusted the Army to protect our environment. Our parents
trusted too. That's a sacred trust. Those aren't just any promises; they are promises from
the government. All those presidential promises were partly made to the public at large, but
they were especially made to the people who live on and near federal facilities. And these
are people who are especially vulnerable to having the government violate their trust.
They'll take a promise from the government, believe it, trust it, and rely on it.
And so I am especially proud to be working in that part of EPA that is helping the
government to live up to these promises.
How are we doing this? "We are catching up even while we are out in front."
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Let me mark here the wonderful support we receive from Steve Herman, Mike Stahl,
and Scott Fulton. They are a joy to work for. We draw strength from Steve, Mike, and
Scott. They have our thanks and appreciation.
Catching Up
In important ways, in federal facilities we are only catching up with the rest of
OECA. We manage a full-fledged multimedia enforcement effort at federal facilities: air,
water, RCRA, TSCA, Superfund, everything.
Bear with me for a moment while I talk law. It's important in understanding what
we're about. Sovereign immunity is the centuries-old legal doctrine that federal facilities are
exempt from outside regulation. To end this exemption Congress must enact a statute clearly
stating that federal facilities are included in outside regulation.
And this is where we are still catching up. Most recently, we are recovering from a
1992 Supreme Court case finding federal facilities exempt from certain important kinds of
enforcement actions under RCRA and the Clean Water Act in light of that Supreme Court
case.
In response, Congress amended RCRA in October 1992, and we've been aggressively
using those RCRA authorities. Yesterday, though, as Bill Muno of Region 5 and I were
sitting together, we observed that Congress' amendment is a misnomer. It wasn't really the
Federal Facility Compliance Act; it was the Federal Facility RCRA Compliance Act. We
still have a big gap in the Clean Water Act.
The Administration's Clean Water Act proposal to this last Congress had a strong
federal facilities provision that would have closed that gap, but the federal facilities provision
died when the rest of the Clean Water Act legislation died, so we are still catching up on the
Clean Water Act,
Likewise, we are still catching up on the Safe Drinking Water Act. We had a good
federal facilities provision going into the House-Senate conference committee during the last
few days of Congress, but that died too when the conferees did not finish work on the Safe
Drinking Water Act as a whole. We are still catching up on the Safe Drinking Water Act.
So how we handle ourselves will affect whether we get and keep this needed
legislation. We have had members of Congress and their staffs calling our work into
question. Helping to plan our way through that is one of the things OECA does when we get
Regions' early warning of planned federal facilities actions, as called for in the 1992 federal
facilities guidance.
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The reality is that actions at federal facilities have national implications. While
Regions have a key role, so does OECA. This year OMB Director Alice Rivlin and White
House Environmental Policy Director Katherine McGinty convened an Assistant Secretary-
level Federal Facilities Policy Group to conduct a thorough review of the government's work
in this area. That review is still ongoing. Congress cut the Defense Department's and
Energy Department's environmental budgets for FY 95, and the outlook for next year is
certainly no better. All in all, for the next several years we need to act with precision and
be particularly mindful of our special role as national regulators, sometimes agreeing with
the States, but sometimes striking out with our own perspectives. That's our jobs.
Out in Front
Let me turn now from how we are "catching up" to how we are "out in front." In
the few minutes available, I'll mention five ways.
First, our Multimedia Enforcement and Compliance Initiative. Among the 10
Regions in FY 93 and FY 94, we performed 72 multimedia inspections at federal facilities.
We have a brand-new report summarizing the FY 93 work on the table outside the
auditorium: it has hard data in it, about the size of the inspection teams, numbers of days on
site, and types of enforcement responses. This is a "pilot" that the rest of us can learn from:
what does a sizeable multimedia project really look like? Steve Herman said it well in his
cover memo releasing the report: "This initiative represents an excellent example of the
direction in which the EPA enforcement program is headed: carefully targeted, multimedia
approaches emphasizing pollution prevention remedies and an appropriate mix of
enforcement actions and compliance assurance activities."
Jim Edward and Reggie Cheatham of OFFE pulled this together admirably. There
toward the back of the room is Laura Livingston from Region 2; she's one of the people who
made this happen. We owe special gratitude to Frank Covington and the NEIC. They were
pivotal. We couldn't have done it without them. Thank you, Frank.
One of our next steps is to see what effect varying enforcement responses have had. I
talked to Randy Smith of Region 10 yesterday. He told me of a base that had been fined
over a million dollars under RCRA; when it was re-inspected just recently, no violations
were found. Completely clean. That enforcement response seems to have worked.
The second project to tell you about is our benchmarking study, still in draft. We
asked federal agencies for a self-assessment of their management systems. Some, many
civilian federal agencies, admit that their management systems are terribly inadequate. This
is one of the ways we are out in front in analyzing our work from a sector standpoint.
Likewise with the third project, the State of Federal Facilities Report, which
collects actual compliance rates, and the Federal Facilities Tracking System, a pc-based
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system to provide hands-on access in both Headquarters and Regions to what we need to
know about specific facilities. There's Barbara Lither of Region 10. Barbara wrote a
wonderful letter about this system after seeing it demonstrated in her Region just recently,
and we are going to each Region now.
The fourth project is our work in reviewing the environmental budgets of the other
federal agencies. We call this the A-106 process, named after the OMB Circular A-106 that
sets its general frame. This is a unique regulatory tool not found in most other sectors. We
can influence the regulated community's planning process. Our goal is to link the A-106
process with the tracking system described just a moment ago, to make it easy to see where
attention is needed.
Fifth and last for now, together with OPPTS we are implementing President Clinton's
executive order on pollution prevention at federal facilities. It sets a goal of 50% toxics
release reduction by the end of 1999.
Summary
At its most basic our mission is easy to state:
We help the government earn the trust of its citizens by
living up to its environmental promises.
I can't think of a higher, more meaningful environmental calling. We are
comparatively few in number, but we are brimming with energy and ideas.
So let me close with an invitation. Most of what we do is work with another part of
EPA: Regions, other OECA offices, and other Headquarters' program offices. Please join
with us. We'd love to have you take part from wherever you are right now.
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"ENFORCEMENT AND COMPLIANCE PARTNERS AND STAKEHOLDERS"
MICHAEL M. STAHL, DEPUTY ASSISTANT ADMINISTRATOR
OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE
December 2, 1994
In presenting this conference theme about partners and stakeholders, I have chosen
not to have yet another discussion about who our customers are, what being a customer
means and how to serve our customers. Instead, I want to focus on forces that will change
the tone and substance of our dealings with our stakeholders. In this presentation, I will:
offer some observations about our relationships with our stakeholders,
particularly the public and Congress;
offer some observations about our working relationships inside EPA; and
finally, address two questions -
What do we owe the public?
What do we owe each other?
I expect I am going to say some things with which you will disagree. You may feel
that the views I state should be challenged. That's acceptable, since my goal here today is to
provoke some thinking about our relationships with our stakeholders and each other.
The Full Set of Stakeholders
I want to begin by reviewing a list of our stakeholders for the enforcement and
compliance assurance program. The list includes:
*	PUBLIC
*	ENVIRONMENTAL AND OTHER CONSTITUENCY GROUPS
*	CONGRESS
*	REGULATED COMMUNITY
*	FEDERAL AGENCIES
~	EPA
Headquarters
Regions
~	DOJ
Headquarters
U.S. Attorneys
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*	STATES
~	Environmental, Public Health, Agriculture Agencies
~	Attorneys General
*	TRIBES
*	LOCAL GOVERNMENTS
If you examine this list, there are some observations to be made about the
stakeholders, collectively and individually:
o The stakeholders for the enforcement and compliance assurance program are
many and diverse. Collectively their interests are enormous, complex, and
often in conflict;
o For the whole set of stakeholders there is general agreement about broad goals
of protecting the environment and enforcing the law. But there is
disagreement on how to address the goals and the means used to achieve them;
0	For EPA, the nature of our relationship with many of these stakeholders is
changing (and not necessarily improving) and this presents real challenges to
the Agency. In addition, relationships inside EPA (between Regions and HQ)
also are problematic and need to be improved.
We at EPA are part of a very contentious business — protecting the environment —
that makes our relationships with stakeholders very problematic, and it also makes it difficult
to get along with each other. In making policies and implementing programs we at EPA are
constantly making choices that are almost guaranteed to make someone angry.
1	once attended a conference here in Washington, at which one of the speakers was
the head of the U.S. Forest Service. In describing the Forest Service he said he felt it was
the government agency.most often involved in controversy, "except, of course, for EPA."
EPA's precarious position with its stakeholders, particularly as we try to move in new
directions (as is the case in our enforcement program), is illustrated by a "Far Side" cartoon.
Under this circus tent an audience watches a dog on a tightrope. The dog is simultaneously
juggling, riding a unicycle, balancing an urn on its head, holding a cat in its mouth, and
using a hula hoop. The caption reads:
"High above the hushed crowd, Rex tried to remain focused.
Still, he couldn't shake one nagging thought: He was an old
dog and this was a new trick."
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While it may be somewhat disparaging to refer to ourselves or our program as an
"old dog" or to talk about our changes in enforcement as "new tricks," the point is that our
relationships with stakeholders ~ difficult in the best of times - are even more difficult when
we try to make significant changes in our program or try "new tricks".
Our Relationships with the Public and Congress
I'd like to turn now to an examination of our relationship with two of the stakeholders
on this list, the public and the Congress. I think this is particularly timely given the recent
elections and their possible implications for EPA.
First, it is my view that our relationship with the public is troubled at best. I don't
subscribe to the theory that you can interpret public sentiment into precise and specific
messages - and there have been many attempts to do that since the election. But there are
some broad messages from the public that seem unmistakable, and these are backed up by
surveys of various kinds. For EPA these two messages contain good news and bad news:
Good News - there is still strong support for environmental protection;
Bad News - the public has developed a nasty strain of contempt for government,
particularly Federal government, and this contempt goes beyond
American's historic independence from government and resistance to
authority.
What does this mean for EPA? We are entering a period of struggle between the
good news and bad news, and support for our mission vs. contempt for government.
If support for our mission prevails over contempt for government, EPA will be fine;
if contempt for government prevails, EPA and the government as a whole faces a very
difficult future.
Our relationship with Congress is also a source of deep concern, given the results of
the election. Even before the election, and recognizing Carol Browner's success with the
Appropriations Committee, EPA's relationship with Congress has been very rocky for quite
some time. We are a frequent target of sharp criticism.
This election has changed Congress in profound ways. Instead of having a majority
of legislators who view government as a tool to address problems, we now have a
Congressional majority—and not just Republicans--who believe government is the problem. I
think it is likely that this election will be a turning point in the direction of government.
Let's explore the worst case scenario in EPA's relationship with the new Congress. I
think we might see:
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o chronic strident anti-government rhetoric from a majority of members of
Congress;
o significant budget reductions aimed at reducing the capacity of government as
much as reducing the deficit;
o retrograde legislating designed to restrict current and future authority and
submerge us in reviews of past actions;
o contentious oversight which will ridicule government, delegitimize government
action, and weaken the moral authority of government; and
o increased State resistance due to the stepped-up Congressional crusade on
unfunded mandates.
Some days I think some or all of this scenario is possible, some days I think it is
likely, and some days I think it is certain to happen. The days when I think it is likely or
certain are when EPA has done something to cause the public or Congress to question the
value of what we do.
The Headquarters/Regional Relationship
The relationship between Headquarters and the Regions, while largely productive (as
illustrated by our enforcement outputs) is in need of improvement. I have worked in a series
of Headquarters jobs over the last 10 years that have had significant Regional interaction. In
that time, I think the Regions have gone from extensions of national program offices to more
autonomous EPA franchises for their Region ~ and I view that as a positive development.
EPA suffers some of the tensions of any decentralized large organization. Tension between
Headquarters and Regional offices is a natural part of such organizations. But too often I see
the interaction between Headquarters and Regions characterized by questioning of motives,
questioning of competence, and the presumption that our colleagues are enemies instead of
teammates.
It may be trite to say that what unites us is stronger than what divides us, but I
believe that is true. What unites us is our commitment to our mission of environmental
protection and our dedication to public service. What divides us tends to be petty battles
over turf, control, sharing credit or blame and allocation of resources. Which of these
means more to us, as individuals and as members of an organization: environmental
protection and public service, or bureaucratic struggles? Which do we prefer as the
hallmarks of our careers? Which do you think the taxpayers care about the most?
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What Do We Owe the Public and Each Other
Let's examine the two questions I mentioned at the outset, beginning with "What do
we owe the public?" In a word, we owe the public excellence. I think we can give the
public excellence in four ways:
First, by maintaining an unshakable commitment to our mission which allows us to
distinguish between what is important and what is not, and allows us to tianscend
bureaucratic battles.
Second, we owe them smart choices — making sound judgements about identifying
environmental problems, using resources wisely, and making progress toward a cleaner
environment.
Third, we owe them explanations of our actions. From major rulemakings, to
responses to letters, we have an obligation to explain our thinking, do it in an understandable
way, and in a way which conveys the consequences of our actions in human terms. EPA
(and probably most of government) is pretty bad about explaining what we do, and I think
that is the fundamental reason that Americans feels so disconnected from the Federal
government.
Fourth, we owe them opportunities for involvement. We need to find ways to involve
the public in our actions and enlist them in our cause. For the enforcement and compliance
assurance program, this could mean giving access to enforcement data or sector data and
stimulating public involvement in compliance assurance.
What do we owe each other? In a word, we owe each other support. In the words of
a former boss of mine, we need to stop "tackling our own teammates." Here's what I think
we owe each other:
First, a willingness to listen to each other. This means taking the time to really
listen, understand, and consider each other's perspectives and problems.
Second, we owe a willingness to balance each other's interest so we can solve
problems, resolve issues, make progress, and move on.
Third, we need to help each other manage change and adapt to it, and maintain a
passion for improvement.
In closing, how do we ensure that our mission of environmental protection prevails
over the public's contempt for government? I would suggest that we all subscribe to and act
within an "effectiveness ethic." That ethic should include at least those elements which I
believe we owe the public ~
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the commitment to mission.
smart choices...
explanation of our actions...
opportunities for involvement...
and which we owe each other -
willingness to listen...
willingness to balance interests...
enthusiasm for change and improvement.
All of us have been given a wonderful opportunity. Each of us is on a crucial
mission to protect the environment and we are part of the most advanced and professional
organization of its kind in the world. In everything we do, let's examine how we interact
with the public and each other and give our best to those interactions. Effective relationships
with our stakeholders depends on treating the public, the Congress and each other with the
highest respect and professionalism we can provide.
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