Case of the EPA
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States Neglecting Pollution Rules, White House Says State Neglecting Pollution Rules, White House Says - Page 2 |
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State Neglecting Pollution Rules, White House Says Sanctions Threatened Violations are Underreported, E.P.A. Officials Assert--Full Rewview Is Sought WASHINGTON, Dec. 14 -- Worried that some state governments are neglecting Federal environmental laws, the Clinton Administration is mounting detailed investigations of several states' performance, according to senior Administration officials. Environmental Protection Agency officials say they have found that Pennsylvania and some other big industrial states are reporting only a handful of major pollution violations, suggesting that inspectors in those states may be turning a blind eye to pollution problems. "Unfortunately, lately we have seen a number of states that are emboldened by the anti-environmental sentiment that began here in Congress, and they are retreating from their commitment to enforce the laws," said Carol M. Browner, the agency's Administrator. "We are fighting the same fight that we fought over the Contract With America, but unfortunately the battle has moved down to the states." Compounding the agency's consternation, a number of states have passed laws that may conflict with Federal policies by providing too much protection for companies that voluntarily identify their own pollution violations. The agency has warned several states that it may revoke their authority to enforce laws like the Clean Air Act, or withhold Federal grants that help the states enforce the laws, unless they change their practices. In Pennsylvania, a recent Government audit found that the state failed to report significant pollution violations. In Ohio, Gov. George V. Voinovish is expected to sign a new law of the kind that the Federal agency opposes because it gives companies too much protection. And in Virgina, a bipartisan state legislative panel recently issued a 255-page report that strongly criticized the state's record of environmental enforcement as too lenient. |
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Altogether, some agency officials said, they are especially concerned about a dozen or so states, and they are calling for a nation wide examination of the states' performance. Federal laws governing air and water are enforced mainly by state agencies, which issue and enforce operating permits under the supervision of the E.P.A. As in other social programs, like welfare and job training, the trend has been toward giving states more autonomy in carrying out these environmental mandates. The E.P.A. has signed "partnership agreements" with 20 states giving them increased resonsibility for environmental enforcement. It expects to sign similar agreements with 15 other states this year, as part of a two-year-old Administration initiative to share power. But the agency has insisted that those states report serious violations and that they force the violators into compliance. Some states might be disqualified from these partnerships and lose Federal financing unless they can resolve the agency's concerns, officals said. Their worries increased recently when the E.P.A.'s Inspector General published a draft report accusing Pennsylvania of seriously under-reporting the number of serious violators of the Clean Air Act. Federal Inspectors said the state should have found at least 10 times as many violations as were reported in 1995. "I believe the Inspector General's finding require an immediate nationwide effort to determine whether the serious problems discovered in Pennsylvania exist elsewhere," Steven A. Herman, the E.P.A.'s assistant administrator for enforcement, said in a Nov. 19 memorandum to the agency's regional officials. "The data we have reviewed so far strongly suffests the potential for problems in other states," he wrote. In interviews, Ms. Browner and other officials would not say which states they plan to examine next, saying that enforcement officials and the Inspector General's office have not made fianl decisions. "We have already looked at some individual states," Ms. Browner said. "We are very, very concerned with what we have found, and we are now looking at other states." Pennsylvania's failure to report serious violations of the Clean Air Act, the Inspector General's office said on Nov. 15, shows that the Federal agency and its state counterpart "may not be willing partners" in enforcing the law. "While E.P.A. wanted the Pennsylvania Department of Environmental Protection to take aggerssive enforcement action to bring violating facilities into compliance, the state wanted to avoid what it perceived as Federal meddling," the audit report said. |
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In 2,000 inspections of large industrial plants in 1995, the audit found, Pennsylavania identified only 6 major violations of air pollution regulatins. When the E.P.A. re-examined data from 270 plants |
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The men and women who run state environmental agencies are understandably reluctant to criticize their counterparts in other places. After all, they've just begun working successfully together to free their programs from suffocating supervision by the U.S. environmental Protection Agency. They don't want to do anything to jeopardize that freedom. Even so, it's possible to pick up an uneasy concern in other state capitals about the way one state--Virginia--is enforcing national pollution standards. |
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Like similar agencies in most of the country, Virginia's Environmental Quality Department wants to devise flexible regulatory arrangements that help industry meet federal environmental laws as quickly and cheaply as possible. It's just common sense to take a stab at working pollution problems out with business before going to court to seek costly and time-consuming enforcement actions. But that commendable spirit of conciliation can be taken too far, and the worry is that Virginia has become so lenient as to discount any credible threat that polluters will pay for violating federal environmental laws. |
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That sort of laxity hands EPA and environmental activists powerful ammunition for their frequent complaint that states really can't be trusted to keep polluters from misbehaving. Under Governor George F. Allen, an old-fashioned states-rights conservative, Virginia at times has seemed bent on seceding from the federal environmental protection system altogether. The commonwealth went to court to claim--unsuccessfully--that the Clean Air Act violates the U.S. Constitution. Then, this summer, a U.S. District Court Judge faulted Virginia's "toothless" enforcement of the federal Clean Water Act for allowing Smithfield Foods Inc. to dump hog-slaughterhouse waste in the Pagan River. |
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Virginia officials insist that Smithfield had been making good-faith efforts to clean up the problem under a consent order the state agency signed with the company in 1991. But the judge fined the company $12.6 million, agreeing with EPA that the Virginia agency had been far too patient while Smithfield, headed by one of Allen's major campaign contributors, kept polluting public waters. The Washington Post promptly editorialized that the Smithfield decision confirmed "the need for more uniform federal enforcement" so states don't dilute environmental safeguards. |
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The whole Virginia controversy is unfortunate because it comes at a time when states all over the country have been working hard to persuade EPA lawyers to back off from the agency's knee-jerk instinct to punish polluters through legal action. From its beginnings, EPA has flexed its muscles periodically by suing major corporations and seeking big penalties. States now genuinely believe they can get better results by first working with a firm to help it comply with the law, keeping the legal guns in reserve. That's an essential change: Neither EPA nor the states will ever be nimble enough to inspect and fine all the farmers, landscapers and car washes that cumulatively create big environmental problems. Nor will governments ever have enough time or money, or even enough lawyers, to take them all to court. |
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The shift from enforcement to negotiation hasn't been universally accepted. EPA's new Office of Enforcement and Compliance Assurance has been steadfastly resisting innovative compliance strategies that its lawyers fear will let polluters off the hook. State agencies gripe that EPA lawyers are still all too ready to butt in on cases before states have a chance to solve problems through less confrontational approaches. What's more, state officials contend that EPA lawyers try to make themselves look good by "overfilling" on plum cases that states could handle just fine themselves. |
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The truth is, both EPA and the states look a bit ridiculous when they indulge in political shouting matches over the ups-and-downs in "bean counting" enforcement results. Realizing that, both sides seem to be looking for ways to settle differences about what kind of case states should handle themselves and when it's time for EPA lawyers to step in. |
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Outside of Virginia, nobody is claiming that state regulators won't always need backup from the federal cops on the beat. Most experienced state commissioners say they've got to call EPA attorneys in from time to time, to handle cases that set important precedents or crack down on big employers their governors can't afford to offend. No matter how much most states believe in conciliation, "that doesn't mean we don't understand that the enforcement tool is what motivates these people to do it," one state commissioner comments. |
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Down the road, states need to reassure the public they won't take advantage when EPA backs off from aggressive enforcement. The state environmental commissioners need to confront the issue head-on by explaining why they are confident that their counterparts won't "race to the bottom" to attract industry by relaxing pollution enforcement. They also might consider some form of peer review process to conduct dispassionate assessments of how well a state agency is performing. |
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To reassure the feds and the American people, it might also be helpful for the states to send some sort of signal that the Virginia model isn't the one they plan to follow as they gain more freedom. That's not likely to happen soon. Virginia was persuaded to join the Environmental Commission of the States just this year, and the other members aren't ready to go on the record agreeing with EPA that the commonwealth has gone too far by easing up on companies such as Smithfield. Still, if the ECS commissioners want more respect from the feds, they're going to have to call it like it is when a state starts backsliding on environmental laws. By Tom Arrandale |
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Laws to Guard Environment Are Skirted, Groups Assert WASHINGTON, Jan. 29 -- Saying that their states are circumventing parts of major national environmental laws, labor and environmental groups in Colorado and Ohio filed petitions today to take away the states' enforcement powers. The groups complained that the states, by passing laws to protect some companies from disclosure and punishment when the companies detect environmental problems, had violated provisions of the Clean Air Act, the Clean Water Act and the Resource Conservations and Recovery Act, which governs waste disposal practices. |
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The petitions, filed with the Environmental Protection Agency, could strengthen the Federal agency's hand in a long-running dispute between Washington and the states over how far to go in protecting companies who voluntarily audit and correct their own pollution problems. Most Federal environmental laws are enforced by the states, under programs that are approved and monitored by the E.P.A. The Federal agency's top officials, believing that some states are not enforcing the laws aggressively enough, have recently been pressing them to take a tougher approach toward. |
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But several states, encouraged by business groups, have enacted laws that favor companies more than the E.P.A.'s enforcement policy does Colorado enacted such legislation in 1994 and Ohio did so last year. The agency has threatened to withhold approval of a few states' environmental programs because of this kind of dispute, but to date has not. Groups in Idaho, Texas and Michigan filed similar petitions last year. |
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"These petitions represent an organized constituency in favor of environmental protection on the ground," said Michael Fogelberg, director of communications at the Good neighbor project for Sustainable Industries, a group of environmental and labor organizations that is organizing local opposition to the state laws. "Lacking that, it looks like it is just the big Federal Government moving in on the states." The Ohio petition was filed by Ohio Citizen Action, the Ohio Environmental Council, the Sierra Club and Rivers Unlimited. The Colorado petition was filed by Earthlaw, the Sierra Club, the Oil, Chemical and Atomic Workers International Union, the Western Colorado Congress and the High Country Citizens Alliance. |
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A prime target of the campaign against the states are measures called "audit privilege" laws, whose backers call them a way to encourage more effective pollution controls by companies. The E.P.A. has its own program to encourage environmental audits by protecting companies that disclose and promptly fix their problems. But the agency also insists on publicly disclosing pollution problems, and says that self-audits should not protect companies from punishment for flagrant violations of the law. According to the agency, 105 companies have disclosed violations at more than 350 locations in the last year under the new Federal policy. The E.P.A. has already settled matters with 40 companies, waiving all penalties in most cases. |
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The Colorado petition asked the agency to stop delegating its authority to the state, first approved in the 1970's, that provides permits and enforcement under the Clean Waster Act. The petition cited three provisions of the state's audit privilege law, one of the first such statutes adopted by any state. The provisions prevent the information in many self-audits from being used as evidence, protect individuals from being compelled to testify about the results of audits, and immunize from financial penalties anyone who voluntarily disclosed information from an audit to the authorities. "Colorado no longer has an adequate compliance and enforcement program, and does not provide the required adequate opportunities for public participation in state permit and enforcement decisions," the petition said. But Cynthia Goldman, a lawyer who worked on behalf of industry groups to win passage of the state law, said the petition misrepresented the state law's effect. "It gives the government an additional tool to achieve compliance with environmental laws," Ms. Goldman said. A senior E.P.A. official, while declining to comment directly on the petitions, said the agency had long made similar complaints in Colorado.
By John H. Cushman Jr. |
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