Shaping Next Generation Compliance at EPA: Lessons From the Agency's Past and Some Post-Workshop Thoughts

• Author: Joel A. Mintz
• Profession: Professor of Law, Nova Southeastern University Law Center
• Pages: 323-339

323

Chapter 12:

Shaping Next Generation

Compliance at EPA: Lessons

From the Agency’s Past and

Some Post-Workshop Thoughts

Joel A. Mintz*

In this article, I will describe some little used—or never tried—approaches

to enforcement and compliance assurance that appear worth implement-

ing. In Part I, I wil l consider some lessons from the U.S. Environmental

Protection Agency’s (EPA’s) enforcement history that have per tinence to the

Agency’s ongoing resource constraints. In particular, I will focus on three

topics: some low-budget techniques employed by EPA enforcement and com-

pliance personnel in the past that merit renewed emphasis, an approach to

avoiding interoce rivalries that have plagued the Agency’s work in the past,

and some resources outside EPA which the Agency may fruitfully draw upon

to maximize the impact of the Oce of Enforcement and Compliance Assur-

ance’s (OECA’s) work. Part II contains some thoughts a nd suggestions with

respect to other relatively inexpensive techniques that EPA may fruitf ully use

to enhance environmental compliance.

I. Lessons From EPA’s Enforcement and Compliance

History

Fiscal austerity is anything but a new phenomenon at EPA. In fact, budget-

ary shortfalls have long plag ued the Agency, including its enforcement and

compliance progra ms.1 A s early as 1980, John Quarles, the Agency’s irst

1 See J A. M, E   EPA: H S  H C (rev’d ed.) (Uni-

versity of Texas Press 2012) at 76, 119-123, 130-131, 173-174, 194-195, 197. In preparing that book

and its predecessor edition, I intervie wed 190 present and former government ocials, some or all

of whose work involved EPA enforcement. ose individuals worked (or had worked) at EPA, the

Department of Justice, the Government Accountability Oce (GAO), and the professional stas of

several U.S. House and Senate committees and subcommittees. I conducted and audiotaped those

* Professor of Law, Nova Southeastern University Law Center; Elected Member, American Law Institute;

Member-Scholar, Center for Progressive Reform.

324 Next Generation Environmental Compliance and Enforcement

General Counsel a nd Deputy Administrator, observed “In the nine years of

EPA’s existence, its manpower has roughly doubled while its program respon-

sibilities have been multiplied by a factor of twenty. Today it cannot meet

its workload.”2 Inadequate a s the Agency’s na ncial resource base was in

1980, this situation worsened during the 1980s. us, in testimony before

a committee of the U.S. Senate, the Director of Environmental Protection

Issues of the Government Accountability Oce stated that for over a decade

EPA’s enforcement budget had been essentially capped despite a considerable

growth of the Agency’s responsibilities.3

Regrettably, EPA’s enforcement and compliance budgeta ry woes contin-

ued through the 1990s and 2000s. During most of this period, Congress

mandated a series of government employee salary increases while not increas-

ing the Agency’s overall budget. is rather disingenuous approach caused

little-noticed cuts in EPA enforcement and compliance programs.4 e most

acute resource problems of the pa st decade have sur faced with regard to the

enforcement of RCRA and Superfund and in the crimina l enforcement pro-

gram. However, the Agency’s entire enforcement and compliance progra m

has for some time been unable to keep pace with overall economic growth.

at growth has spawned new pollution sources that require monitoring

and, in some cases, EPA inspections and enforcement actions.5

interviews in person, in nine U.S. cities, using a standard set of questions. I also did a good deal of

documentary research. In addition to the body of academic literature that concerns EPA environ-

mental and Congressional oversight of federal agencies, I read EPA enforcement policies, records, and

reports that were prepared at the Agency from 1972 through 2008, as well as Congressional hearing

records, newspapers, trade journals, training course materials, and the reports of relevant analysis

and case studies prepared by congressional committees and subcommittees, industrial associations,

environmental organizations, private consultants, nonprot foundations, the Congressional Budget

Oce, the GAO, the Congressional Research Service, and the Oce of Technology Assessment.

e historical references in this article are drawn from the research I performed in writing this

book, some portions of which are paraphrased or repeated verbatim, for readers who are unfamiliar

with that work.

2 is quotation appears in Steven Cohen, EPA: A Qualied Success, in C  E-

 P, 174, 179 (Sheldon Kamieniecki, Robert O’Brien & Michael Clarke eds., SUNY

Press 1986).

3 Observations on the Environmental Protection Agency Budget Request for Fiscal Year 1992, statement

of Richard L. Hembra before the Senate Committee on Environment and Public Works, GAO/T-

RCED-91-14. March 7, 1991.

4 Mintz, supra note 1, at 130-131, 173-174, 180.

5 One example of the immense increase in the number of parties regulated by EPA may be found in

the Clean Water Act NPDES permit program. As the Agency itself observed: Our portfolio of water

pollution threats has evolved from the very visible pipes coming out of factories and sewage treat-

ment plants to the hundreds of thousands of sources of industrial and municipal storm water runo,

agricultural runo, mining wastes, and sewage spills from aging sewer system infrastructure. e sheer

magnitude of the expanding universe of the NPDES program itself, from roughly 100,000 traditional

point sources to nearly a million sources . . . presents challenges in how we regulate and enforce the

laws of this country. EPA C W A E P 1 (October 15, 2009).