Jump to main content.


Office of Congressional and Intergovernmental Relations
Congressional Testimony

June 23, 1998
Thank you for the opportunity to testify today about the General Accounting Office ("GAO") report on efforts to focus state enforcement programs on results. The Committee asked GAO to determine: (1) what alternative compliance strategies states are practicing; (2) whether and how states are measuring the effectiveness of these strategies; and (3) how the United States Environmental Protection Agency ("EPA") has responded to these states' efforts. These issues are important to EPA and State programs that enforce environmental law and ensure maximum compliance with those laws. These programs have undergone many changes at EPA and in the states in the past five years, and it is helpful to examine progress made and challenges still to be addressed by EPA and the states.

EPA Leadership in Alternative Compliance Strategies

The goal of EPA's enforcement and compliance assurance program is to protect the environment and human health through full compliance with all Federal environmental laws and requirements. Since EPA Administrator Carol Browner decided to reorganize the Agency's enforcement program in 1993, EPA has tried to meet that goal by maintaining and improving its capacity to effectively use enforcement action and by developing and implementing new approaches to achieving compliance. Since 1994, we have implemented a series of alternative compliance strategies which provide assistance and incentives for regulated entities to achieve and maintain compliance.

EPA is also actively building state capacity to implement alternative compliance strategies. EPA recently distributed $1 million to fund 23 regional-state partnership projects to develop compliance assistance tools that clearly explain the relationship between federal and state compliance (e.g., for the Texas Small Business Assistance Program, for the Florida Compliance Assistance and Training Program) and has trained over 100 state and local technical assistance providers on the relationship between printing, pollution prevention and compliance.
  • In January 1996, we issued our policy to encourage environmental auditing. The policy states that in situations where a regulated entity finds violations through voluntary environmental audits or other efforts that reflect the entity's due diligence, and where it promptly discloses and expeditiously corrects these violations, EPA will not seek gravity-based penalties and generally not recommend criminal prosecutions against the regulated entity. To date, 274 companies have disclosed thousands of environmental violations at more than 966 facilities across the nation. Over 450 of those facilities have corrected their violations expeditiously and EPA has significantly reduced, or in many cases completely diminished, the penalties that these 450 facilities would have been liable to pay.
  • These three policies together comprise EPA's program to implement Section 223 of the Small Business Regulatory Enforcement Fairness Act ("SBREFA"), which requires that Agencies establish a penalty reduction program or policy for small entities. We submitted a report to Congress at the end of March on the scope of the program and its use to date. As of the end of fiscal year 1997, of 149 small entities that applied for penalty relief under the EPA program, 95 were granted relief, 10 were ineligible, and 44 cases were still under review. In addition, a number of States have adopted EPA's Small Business Policy or similar policies, and have granted relief to at least 565 small entities, based on information we have received from these States.

    As the GAO report points out, many of these EPA initiatives were developed through consultation with stakeholders and some of them have served as models on which states have based their own policies. Taken together, these initiatives offer regulated entities a variety of ways to achieve and maintain compliance.

    The Continuing Need for Enforcement

    While implementing these alternative strategies, EPA has worked hard to maintain and improve its ability to identify, correct, and deter violations through inspections and enforcement actions. EPA firmly believes that alternative compliance strategies will be most effective when they are used as part of an integrated program which maintains a strong compliance monitoring and enforcement presence among regulated entities. For at least three reasons, a vigorous enforcement effort is vital to the success of alternative compliance strategies.

    Thus, as EPA has developed and implemented compliance assistance, incentive policies, and other alternative compliance strategies over the last five years, it has maintained a strong enforcement effort as the foundation of its program to ensure compliance with the law. Alternative compliance strategies combined with the motivating effects of enforcement action are a powerful prescription which can maximize compliance and protect the environment.

    Implementation Challenges for EPA and the States

    EPA and most states are now in the early years of operating enforcement and compliance assurance programs which have changed significantly. Instead of programs which have two major tools, (compliance monitoring inspections and enforcement actions) our programs now have added two additional tools which are discussed in the GAO report: compliance assistance and various compliance incentive approaches. Implementing these expanded programs has presented two difficult challenges -- how can we integrate most effectively the four tools we now have available, and how can results from these tools be measured in the most meaningful way?

    The Integration Challenge. The challenge of integrating assistance, incentives, monitoring, and enforcement has been difficult for both EPA and state programs. There are two aspects to this challenge. The first is that the introduction of assistance and incentives into our programs is often misinterpreted by program personnel and regulated entities as an abandonment of the traditional monitoring and enforcement approach. As assistance and incentive approaches become operational, some state and EPA offices inappropriately de-emphasize monitoring and enforcement. Overcoming this phenomenon requires constant reaffirmation of the principle that an enforcement presence is an indispensable element of an integrated and effective program.

    The second dilemma posed by the integration challenge is that it is not possible to prescribe the appropriate mix of tools that programs should use to maximize compliance. Integrating these tools cannot be reduced to a simple rule (e.g., "assistance first, enforcement as a last resort) or a resource formula (e.g., 60% to enforcement, 40% to assistance). Instead these tools need to be applied based on a factual analysis of noncompliance patterns and environmental problems and on the need to maintain an enforcement presence which provides a deterrent to violation of environmental law.

    The integration challenge accounts for much of the confusion between EPA and the states about the use of alternative compliance strategies. While promoting the use of alternative compliance strategies, EPA has at the same time confronted those states which seem to be abandoning altogether the use of inspections and enforcement and states which establish alternative strategies which weaken the legal authority of states to take enforcement action as required under federal law.

    The Measurement Challenge. The second implementation challenge is to measure the results of enforcement and compliance assurance programs in a meaningful way. The GAO report points out many of the reasons why EPA and the states are finding it difficult to move beyond counting activities or outputs to measure actual results or outcomes that can be attributed to enforcement and compliance assurance programs.

    EPA and the states have worked to develop a set of measures for enforcement and compliance assurance programs as part of the implementation of the National Environmental Performance Partnerships process. The set includes four output or activity measures (e.g., inspections conducted, enforcement cases completed) already reported to EPA in existing national data systems and four outcome or result-based measures (e.g., compliance rates) to be reported by states that have established such measures. Our experience to date is that very few states are able to report any outcome data to us, presumably because such measures have not yet been implemented due to many of the issues GAO describes.

    For the federal enforcement and compliance assurance program, EPA has a major effort underway to develop and implement an enhanced set of performance measures through its National Performance Measures Strategy ("Strategy"). The set of measures developed through the Strategy emphasizes outcomes and results. It includes the measures we are using with the states under the Performance Partnership Agreements and some additional measures which EPA will use for its program but not impose on the states. These measures were developed through extensive consultation with stakeholders and more than 20 state environmental agencies who responded to our request for ideas about meaningful results-based performance measures. EPA is now implementing these measures, and a number of states have been or will be working with us to conduct pilot projects to test and evaluate individual measures. EPA expects to have all the measures operational for fiscal year 1999. At the end of fiscal year 1999, we expect to be able to provide to Congress and the public an array of information about the performance of our enforcement and compliance assurance program which includes compliance rates, pollutant reductions and other environmental improvements resulting from our activities, and the impact of compliance assistance on the behavior and performance of regulated entities.

    The GAO Recommendations

    In its report, GAO has made two recommendations: (1) that EPA implement the measures in its Strategy on schedule and in a collaborative effort with states; and (2) that EPA promote greater consistency about the "appropriate balance in EPA's enforcement program between enforcement and compliance assurance activities." EPA will carry out both of these recommendations.

    EPA fully intends to implement our enhanced performance measures on schedule and have them in place in fiscal year 1999. We have formed a series of work groups to implement the measures, and we are now determining the types of information needed to support the measures, how we will collect such information, and how to develop statistically valid and representative compliance rates. We will be trying out some of these measures in pilot projects conducted by EPA and participating states over the next several months.

    As mentioned in the GAO report, EPA has taken a variety of steps in the past three years to promote a consistent message about the mix of enforcement and compliance assurance activities. But more can and will be done to clarify and communicate our preferences about integrating enforcement, compliance assistance, and incentive policies. The challenge in promoting a more consistent message will be to define clearly and simply for a national and decentralized program the "appropriate balance" urged by GAO, and to apply that message to our activities in a way that allows EPA and individual states the flexibility to tailor their relationships to address each state's unique combination of environmental and noncompliance problems, and their program capabilities and deficiencies. The true challenge of this GAO recommendation is to find the appropriate balance between consistency and flexibility. We will make every effort to do so in our operations at EPA and in our interaction with the states.


    We appreciate the analysis provided by GAO and the opportunity to testify before the Committee about the findings and recommendations of the report. We look forward to addressing the issues and challenges described in the report.

    About OCIR | Office of the Administrator
    Thomas - Legislative Information [Exit EPA] | US State and Local Gateway [Exit EPA]

    Local Navigation

    Jump to main content.