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Enforcement at the EPA

[ Politics and Government ]

Enforcement at the EPA

High Stakes and Hard Choices, Revised Edition

By Joel A. Mintz

Now revised and updated through the Clinton and second Bush administrations, Enforcement at the EPA is the definitive history and assessment of the Environmental Protection Agency’s role as America’s environmental watchdog.

2012

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6 x 9 | 323 pp.

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The only published work that treats the historical evolution of EPA enforcement, this book provides a candid inside glimpse of a crucial aspect of the work of an important federal agency. Based on 190 personal interviews with present and former enforcement officials at EPA, the U.S. Department of Justice, and key congressional staff members—along with extensive research among EPA documents and secondary sources—the book vividly recounts the often tumultuous history of EPA’s enforcement program. It also analyzes some important questions regarding EPA’s institutional relationships and the Agency’s working environment.

This revised and updated edition adds substantial new chapters examining EPA enforcement during the Clinton and George W. Bush administrations. Its treatment of issues of civil service decline and the applicability of captive agency theory is also new and original.

  • Acknowledgments
  • Chapter One. Introduction
  • Chapter Two. "Where the Rubber Hits the Road and Everything Else Hits the Fan": A Brief Description of EPA's Enforcement Process and the Superfund Program
  • Chapter Three. Heavy Seas before the Maelstrom: EPA Enforcement in the 1970s
  • Chapter Four. Destruction, Confusion, Confrontation, and Disarray: EPA Enforcement and Congressional Oversight in the Gorsuch Era
  • Chapter Five. "Away from the Brink"--But Not Out of the Woods: EPA Enforcement from 1983 to 1989
  • Chapter Six. Modest Progress and Renewed Suspicion: EPA Enforcement in the Bush I Administration
  • Chapter Seven. "Neither the Best of Times nor the Worst of Times": EPA Enforcement during the Clinton Administration
  • Chapter Eight. Suspicions, Schisms, and Partial Revival: EPA Enforcement during the Bush II Administration
  • Chapter Nine. Lessons Learned: Some Observations on Congressional Oversight, Organizational Structure, Management Approaches, and Career Staff Trends
  • Chapter Ten. Did Industry Capture EPA Enforcement? Captive Agency Theory and Its (Partial) Applicability
  • Chapter Eleven. EPA Enforcement in the Context of Federal Civil Service Decline
  • Appendix A. Persons Interviewed
  • Appendix B. Government Service Job Titles of Individuals Interviewed by Author
  • Appendix C. Standard Interview Questionnaire in Interviews Prior to 2003
  • Appendix D. Standard Interview Questions Asked in All Interviews Beginning in 2003
  • Notes
  • Index

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Introduction

A critical actor in the federal regulation of pollution in the United States, the U.S. Environmental Protection Agency ("EPA" or "the Agency") is a governmental body charged by Congress with immense responsibility for implementing more than fourteen statutes respecting environmental quality and the public health. From modest beginnings during the Nixon administration, EPA's workload has increased dramatically to encompass such diverse and complex environmental issues as hazardous waste management, asbestos in schools, acid rain, and the quality of drinking water. Public support for accomplishment of the Agency's challenging mission has remained strong, widespread, and consistent.

This book examines a difficult and often overlooked part of EPA's responsibilities: the enforcement of federal environmental standards established by Congress in detailed legislation and by the Agency itself in regulations that conform to congressional mandates. The book is at once a chronicle of EPA's enforcement history from the Agency's beginnings through the George W. Bush (Bush II) administration and an analysis of some important questions regarding EPA's institutional performance and environment that are suggested by more generalized writings on regulatory enforcement, congressional oversight, the federal service, and the captive agency theory of administrative agencies.

The practical and theoretical significance of EPA's institutional environment—and of its enforcement activities and structures—has been recognized by scholars, congressional leaders, and executive branch officials alike. As Christopher H. Schroeder has observed,

When environmental policy moves from legislation to implementation, it enters a complex institutional environment, one shaped by internal and external incentives and pressures. Without a sufficient appreciation of EPA's institutional environment, substantive environmental policy decisions can be deflected, stalled or altered in unintended ways.

Environmental enforcement is clearly a crucial component of EPA's implementation work. The work of monitoring enforcement and compliance now represents approximately 25 percent of the Agency's total budget, and it engages the efforts of approximately 3,200 full-time employees. Furthermore, as Peter Yeager has noted,

To the public mind, enforcement is the centerpiece of regulation, the visible hand of the state reaching into society to correct wrongs … Both symbolically and practically, enforcement is a capstone, a final indicator of the state's seriousness of purpose and a key determinant of the barrier between compliance and lawlessness.

Enforcement is critical both as a control on firms and individuals who violate environmental standards and as a defense of the legitimacy of the governmental intervention that sustains voluntary compliance. Without it, in the words of Senator Joseph Lieberman, "most of the rest of environmental protection lacks meaning, lacks teeth, lacks reality."

The enforcement aspects of EPA's work considered here include the Agency's historical evolution, its institutional setting, and its current strengths and shortcomings. In the remainder of this first chapter, I identify a set of questions suggested by the recent writings of other scholars, although not directly examined in them. These questions form the major focus of this study. I also discuss the methodology I used.

Chapter Two describes the enforcement process at EPA, both generally—in the implementation of such federal statutes as the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act (commonly known as RCRA)—and as a critical component of a program that has received considerable attention from Congress, the press, and environmental organizations: the Comprehensive Environmental Response, Compensation and Liability Act (commonly known as CERCLA or Superfund). The description incorporates the insights of students of EPA's programs whose consideration of the Agency's enforcement efforts is incidental to the main thrust of their work, in addition to the pertinent observations of those whose work focuses on regulatory enforcement. To create a more detailed portrait of EPA enforcement, these analyses are supplemented by interviews with numerous EPA enforcement officials and my own professional experiences with the Agency.

Chapters Three through Eight recount the institutional history of EPA's enforcement programs. Chapter Three deals with the Agency's initial attempts at enforcement in the early 1970s, as well as the "major source enforcement effort" that was a feature of the Carter administration. Chapter Four considers the upheavals that beset EPA's enforcement work during the tenure of Anne Gorsuch as EPA administrator at the beginning of the 1980s, and the powerful congressional reaction that led to her ouster from the Agency. Chapter Five focuses on EPA's attempts to restart its enforcement programs in the face of persistent criticisms from Capitol Hill during the balance of the Reagan administration. Chapter Six reviews the key trends in EPA enforcement during the George H. W. Bush (Bush I) administration. Chapter Seven considers the major events and trends in EPA enforcement in the period in which William J. ("Bill") Clinton was president; and Chapter Eight examines the difficulties and successes of Agency enforcement during the eight years of the administration of George W. Bush (Bush II).

Because, as we shall see, EPA's administration of the Superfund Program has been at the vortex of a series of important disputes between the upper echelons of EPA's management and interested members of Congress, the Agency's enforcement of RCRA and CERCLA liability standards receives considerable emphasis in this book. That component of EPA's enforcement work is not my sole focus, however, and this study also considers the Agency's attempts to enforce the other major regulatory statutes that govern it.

Few American academics to date have focused primarily on EPA's implementation of its enforcement responsibilities. For the most part, studies of regulatory enforcement in the United States and of congressional oversight of regulatory agencies tend to be general in nature, with little or no specific references to EPA. With few exceptions, examinations of EPA—including those that consider its strained relationships with congressional oversight bodies—generally consider the Agency's enforcement work only indirectly, or as one small component of a more broad and generalized analysis. A close reading of the pertinent literature suggests several as yet unaddressed questions which careful examination of EPA's enforcement activities can help to resolve. Analysis of those issues, in light of the history and development of EPA's enforcement program, may be found in Chapters Nine through Eleven. It is a central task of this book.

The first question addressed concerns the style and nature of EPA's enforcement programs as they have evolved to date. Is EPA's enforcement process a "compliance system," in which agency personnel eschew legalistic enforcement tools in favor of a more informal system of bargaining and bluffing, or is EPA enforcement a "deterrence system," in which emphasis is placed on formal legal processes in the hope of punishing wrongdoers and deterring future noncompliance? The answer to this inquiry has implications for the agency's relationship with industrial corporations subject to its regulations, as well as its relationships with Congress, environmental organizations, and other divisions of the executive branch. It may also serve as a basis for comparing the enforcement work of EPA with that of other federal agencies as well as the regulatory activities of state and local governments.

Another set of inquiries concerns oversight of the Agency's enforcement performance by congressional committees, as well as such legislative branch investigators as the Government Accountability Office (GAO). Has congressional oversight had a significant impact on the nature and direction of EPA's enforcement work? Have congressional overseers contributed to what one observer describes as "regulatory failure" in the enforcement aspects of EPA's implementation of federal environmental laws? Or (as another scholar suggests we should generally expect in such congressional investigations) has congressional oversight of EPA enforcement merely "improved policy at the margins"? To what extent have other aspects of Congress's organizational structure and relationship with EPA, including its decentralized subcommittee system and its control of the Agency's budget, affected the Agency in its enforcement work?

These questions are the focus of Chapter Nine. That chapter also considers the broader implications of two major reorganizations that took place in EPA's enforcement office headquarters in 1981 and 1993–1994. In addition, it describes ways in which key EPA political appointees as well as the Agency's enforcement staff can and (in some instances) do contribute to and support the Agency's enforcement efforts.

Chapter Ten focuses on EPA enforcement in the context of what Professor Paul Light has described as a general decline in the capabilities of the federal service. It analyzes the extent to which EPA's enforcement experience does (and does not) support Light's diagnosis of the problems of the federal civil service, and it assays his provocative suggestions for institutional improvement.

Finally, in Chapter Eleven, I examine the extent to which EPA's enforcement program has been "captured" by the industries it is charged with regulating. After an exploration of the captive agency theory of administrative agencies, I consider the extent to which that theory may fairly be said to apply to the enforcement component of the Agency's work.

The research for this study included a review of the body of academic literature that directly or peripherally concerns EPA enforcement and its oversight by Congress. In addition, in preparing this book I reviewed EPA enforcement policy documents prepared at the Agency between 1970 and 2009, as well as a variety of other EPA files, reports, and records on enforcement activities. I also examined congressional hearing records, newspapers, trade journals, training course materials, and the reports of relevant case studies by congressional committees and subcommittees, industrial associations, private consultants, environmental organizations, nonprofit foundations, the GAO, the Congressional Budget Office (CBO), and the Office of Technology Assessment (OTA).

During the summer of 1984 and much of 1986, the winter of 1991, the spring of 1992, the spring of 2003, the winter and spring of 2004, the winter of 2005, and the spring, summer, and fall of 2009, I interviewed 190 present and former government officials—from EPA, the U.S. Department of Justice (the Justice Department or DOJ), the GAO, and the professional staffs of several congressional committees and subcommittees—to obtain their recollections of the critical trends, developments, and events in EPA enforcement programs. I questioned these individuals with respect to the various sets of intra-, inter-, and extra-governmental relationships that exist in the federal environmental enforcement field, the management and working milieu of EPA enforcement programs, and their own notions of the ingredients of an effective environmental enforcement effort. I selected the interviewees on the basis of the breadth of their experience in the federal government and the likelihood that they would have been involved in or knowledgeable about EPA hazardous waste enforcement. I sought interviews with present and former officials who had diverse professional backgrounds and perspectives. For the most part, respondents held top or mid-level managerial positions with EPA or were attorneys or scientists and technical experts on the Agency's enforcement staff.

Because of the importance of EPA's regional offices in implementing the Agency's enforcement program, I conducted interviews with present and former officials in EPA Regions I (Boston), III (Philadelphia), IV (Atlanta), and V (Chicago), as well as in the agency's National Enforcement Investigations Center (NEIC) in Denver, Colorado, and its headquarters office in Washington, D.C. I also held interviews with upper- and mid-level managers in the Justice Department's Washington, D.C., headquarters, and with counsel to several of the congressional committees and subcommittees responsible for oversight of EPA enforcement activities.

Regardless of their past or present institutional affiliations, I asked respondents a standard set of questions, which was furnished to them in advance whenever possible, along with a brief description of the purposes for the study and its methods. Beginning in 2003, I shortened my list of standard questions to eliminate previously asked questions regarding the management and working environment of EPA enforcement programs and the elements of an effective enforcement program. This modification was made in order to streamline the interview process and to focus to a greater extent on gathering the information that I realized was most central to my study.

I asked most respondents all of the standard questions. In a few isolated instances, a respondent completed only portions of the standard interview due to limitations of time or circumstances or because the interviewee's pertinent views had elsewhere been made part of the public record. I did not omit any items from the standard set of questions in any interview.

To help capture the complexity of the respondents' perceptions and attitudes, I posed open-ended questions. In addition to the questions included in the standard interview format, I frequently asked spontaneous follow-up questions.

In some instances, respondents specifically requested that the substance of their interview be "off the record" in the sense that their remarks not be attributed to them by name. In a few other conversations, interviewees asked that brief segments of their remarks be afforded similar treatment. These requests have been respected. In all of the other interviews, after having been told that I might quote or paraphrase what they told me, the respondents raised no objections to being identified as the source of their remarks.

One methodological issue that arose in the course of my research concerned the relative weight to be given the results of my interviews with present and former government officials, as compared with primary documents written during the period of this study. Although such documents (e.g., EPA enforcement policies and official correspondence) are referred to and occasionally quoted from at pertinent points, I have on balance tended to place more emphasis on the comments gathered from participants in (or governmental observers of) EPA's enforcement efforts. Where these comments contradict one another or conflict with contemporary written documents, I have noted the contradiction.

Emphasis on the results of oral interviews stems in part from impressions formed during my own professional work with EPA. In particular, I learned firsthand that a great many documents on enforcement policies guidance, and other matters generated by the managers at the Agency's headquarters, are drafted with the overriding goal of winning the political support of one or more constituencies. Such constituencies may include other officials within the executive branch, congressional committees and their staffs, environmental organizations, regulated industries, and state and local government officials. Although such primary EPA documents are not devoid of historical significance, relying on them too heavily would be analogous to making judgments about the efforts and products of a private enterprise based solely on its public advertising. In contrast, I believe, the interviews I conducted provide a less distorted picture of the most significant trends, developments, and events in EPA's enforcement history. The results are more in keeping with my goal of presenting the warp and woof of EPA's enforcement work, as well as EPA's relationship with Congress.

Finally, a few words are in order about my own career with EPA. For approximately six years, from July 1975 to June 1981, I held several positions with EPA in its Region V and headquarters offices. I was a staff attorney in the EPA Region V air enforcement program in 1975 and 1976 and a chief attorney in the Region V water enforcement program during 1977 and 1978. In 1979 I served on the staff of the Region V regional administrator as state relations coordinator and policy advisor. I then transferred to EPA's Washington, D.C., headquarters where, in 1980 and early 1981, I participated in enforcement litigation as a senior staff attorney on the agency's Hazardous Waste Enforcement Task Force (HWETF).

I was not employed by EPA during most of the period that is the focus of this book. Thus, I was generally not in any meaningful sense a "participant observer" of the historical events that this study recounts. The major exception to that is what I have referred to as the "Task Force Phase," the 1979–1980 period during which EPA initiated its hazardous waste enforcement work. With respect to that era, I have attempted not to incorporate my personal perceptions unless they were confirmed by several others who were directly involved. I have also attempted to overcome any biases, limitations, and a priori assumptions stemming from my involvement as an EPA attorney by obtaining and closely considering the views of EPA enforcement technical people, regional enforcement attorneys, DOJ managers, and congressional staff counsel with respect to both the periods of my service with the government and my impressions of the general nature of EPA's enforcement process.

Notwithstanding the self-imposed limitations and constraints outlined above, my own EPA enforcement experience was relevant to the preparation of this study. In addition to shaping my perceptions of the functions and historical significance of EPA enforcement policies and records, my background enabled me to prepare a preliminary list of people to interview, a list that changed and grew considerably as my research progressed. Furthermore, I used my EPA experience to frame the standard interview format and provide some working hypotheses about the development and nature of EPA enforcement activities. I altered these hypotheses considerably during the course of my research. I substantially modified my conclusions regarding several matters as I synthesized the differing perceptions of others and the voluminous information in EPA's files.

I have been engaged, challenged, and fascinated by the enforcement activities of EPA for more than thirty-five years. This book is an attempt to share what I have learned and to suggest, with respect, some ways in which those who do enforcement work at EPA—and those who oversee, support, and critique that work—might better foster its success.

A former EPA attorney and chief attorney, Mintz is Professor of Law at Nova Southeastern University Law Center, where he teaches environmental law and related courses. He has authored or coauthored six other books, as well as numerous journal articles, on environmental enforcement, sustainability, and state and local taxation and finance.