LEGAL AND TECHNICAL COOPERATION FOR EFFECTIVE ENVIRONMENTAL ENFORCEMENT*

 

DALE S. BRYSON1 AND DAVID A. ULLRICH2

 

1Acting Director, Water Division, Region 5, United States Environmental Protection Agency, 230 South Dearborn Street, Chicago, Illinois 60604 (The United States)

 

2Acting Director, Waste Management Division, Region 5, United States Environmental Protection Agency, 230 South Dearborn Street, Chicago, Illinois 60604 (The United States)

 

SUMMARY

 

This paper addresses the issue of effective working relationships between legal and technical staff involved in enforcement.  The nature of the enforcement process is described including the types of formal and informal enforcement actions available to the United States Environmental Protection Agency.  The nature of the legal and technical disciplines are discussed, along with the types of people in and the training of the legal and technical professions.  The barriers to effective cooperation are discussed.  The detailed responsibilities of the engineer and attorney in specific enforcement actions are explored.  The critical elements in the day-to-day cooperation between the engineer and attorney on an enforcement action are discussed including case communication, case management and several other important items that affect the outcome and the management of an enforcement action.  The engineer and attorney are the key to successful enforcement.  While there are many barriers that exist between the two professions, those barriers must and can be overcome in order to achieve desired results-environmental protection.

 

1.            INTRODUCTION

 

Environmental agencies are facing problems of ever increasing complexity.  IN order to deal with those problems, these agencies must assemble the most highly skilled people available from a number of professions.  This is especially the case in the area of environmental enforcement.  Extensive work over a number of years goes into developing environmental laws, publishing regulations, and issuing permits.  For that process to be worthwhile, there must be a strong enforcement program to insure that the regulated community complies with the laws, regulations, and permits.  Because so much is at stake, both for the environment and economically, enforcement can be exceedingly controversial.  In addition, complex issues relating to environmental damage, the nature and extent of violations, the type of compliance program to be implemented, and the legal issues must be handled very effectively.  There must be the best possible group of engineers, attorneys, and managers working in full cooperation with one another to have

 

*The views expressed in this article are solely those of the authors; they do not necessarily reflect the views or policies of the U.S. Environmental Protection Agency.

a fully effective enforcement program.  This paper addresses the issue of effective working relationships between legal and technical staff involved in enforcement.  There are many barriers to achieving the full degree of cooperation managers would like to see, but there are ways to overcome those barriers.  Perhaps most importantly, managers must bring to the program an enforcement mentality, where violations of the environmental laws are taken very seriously because of their threat both to our legal system and to the environment we are trying to protect.  By attracting and developing engineers and attorneys with this enforcement attitude and with a clear sense of what they want from their cases, managers of environmental enforcement programs are much more likely to achieve success.

 

2.            NATURE OF THE ENFORCEMENT PROCESS

 

In order to put this discussion in the proper context, there must be an understanding of the enforcement process within which we are working.  The process starts well before an enforcement action is brought, with the underlying laws, regulations, and permits which impose the environmental requirements.  These requirements not only establish what the regulated community must do, they also create a process for dealing with people who violate them.  Most importantly, they must be clear and both legally and technically sound.  Thus, the importance of effective work by engineers and attorneys begins well before an enforcement action is even considered.  There must be good, enforceable requirements established in the law, regulations and subsequent permits for there to be an effective environmental protection program.

 

With a set of enforceable requirements, the people in the program can begin the process of enforcement.  It begins with a determination of who is subject to what regulations.  Only with the establishment of an accurate universe of regulated facilities can a program be managed effectively.  Many programs have never achieved the success they would like because of the failure to take this essential first step.  Developing an accurate universe is generally the task of administrative staff, with support from the technical staff and limited participation by the attorneys.

 

With an accurate universe, the process continues with the systematic gathering of information through inspections and document submissions to determine the compliance status of the regulated facilities.  The engineers generally take the lead at this stage of the process, gathering the necessary information about each facility to make a compliance determination.  The engineers are in the lead, and the attorneys have a limited role.  The attorneys will often help develop the necessary information requests, and also may help obtain access to the facility by obtaining a search warrant through the court system.  Good communication is also important to insure that the engineer and attorney are in agreement as to the type of evidence necessary to demonstrate the violation and to evaluate the types of compliance programs that can be implemented.

 

Upon the identification of violating facilities, there must be a determination of the appropriate enforcement action to be initiated.  USEPA has extensive guidance on timely and appropriate enforcement in response to a variety of violations.  Generally, the more serious the violation the more formal the response.  Informal responses include such things as warning letters and notices of violation.  The more formal responses include administrative orders and complaints.  The most formal actions are civil or criminal matters taken to the courts.  Generally, the engineers in the program office make the initial assessment of the seriousness of the violation, and the appropriate enforcement action.  The more serious the violation and the more formal the enforcement action, the greater the participation by the attorneys.

 

The engineers develop informal enforcement actions and the managers in the technical program office issue them.  The response to these informal actions will often be a letter, and then possibly a face-to-face meeting.  A large percentage of these matters are resolved quickly.

 

The preparation and issuance of them ore formal administrative orders and complaints require more cooperation by the engineers and attorneys.  The engineers will develop these orders and complaints, and the attorneys will review them.  Once the Agency issues the action, the attorneys and engineers will engage in settlement discussions with the representatives of the violating facility.  In most situations these cases are resolved with an agreed order, which includes a requirement to pay a penalty and return to compliance.  Throughout this process, the attorney and engineer must work very closely with one another.

 

The most formal enforcement action is a civil or criminal matter that goes before the courts.  Although these cases also originate with the engineers, the attorneys become involved early in the process.  The attorney and engineer develop all of the information necessary to support the case prior to bringing it before the courts.  Attorneys and engineers from outside the initiating office may also be involved, expanding the need for cooperation.  Once the case is filed before a judge, the cooperative work continues.  The attorney and engineer must develop documents to file before the court, conduct settlement negotiations with the regulated facility, prepare for hearings in front of the judge, and take all the necessary additional actions to bring the matter to conclusion.  Most of these matters are settled with a consent agreement without going to a full trial before the judge.  However, the attorney and engineer must continue to prepare the case as though it will go to a full trial.

 

In criminal cases, there is often a special investigator involved, in addition to the attorney and engineer.  This investigator has the expertise to gather the type of information that can show the criminal intent of the people involved in violating the law.  The engineer and attorney have an important role of gathering and assessing the evidence that demonstrate the violation of the environmental law.  The evidence is usually presented to a grant jury, which determines if there is a sufficient basis to return an indictment against the violator.  If this happens, then the matter is taken before the judge, and often a jury, to determine if the person is guilty.  The standards imposed in criminal cases are very high, and the technical evidence and legal arguments must be absolutely sound.

 

Regardless of the type of enforcement action or the stage of the process, attorneys and engineers are involved and must work well together.  They must communicate effectively with one another, and with all those involved in the process.  With the proper enforcement attitude, the common purpose of bringing the facility back into compliance, and by holding the violator accountable for its actions, there can be very successful enforcement.

 

3.            ENGINEERS AND ATTORNEYS:  THE DISCIPLINES, THE PEOPLE, AND THE BARRIERS

 

The nature of the legal and technical disciplines, and the people who are part of them, present inherent difficulties that create barriers to effective working relationships.  In order to overcome those barriers, managers in environmental agencies must recognize the differences and deal with them effectively.

 

The legal discipline works primarily with a set of laws developed by institutions that apply to the interaction of people and organizations in society.  They apply these laws in situations where one party feels that another is not operating within those laws.  Thus, there are the makings of a dispute, and the attorneys become involved to resolve the dispute.  This dispute resolution process is one generally characterized by complexity and requires time to run its course.  The legal process has many rules, and the attorneys must be familiar with those rules and the process.  The process is often oriented towards making a final determination of who is right and who is wrong.  Attorneys argue strongly for their clients, relying extensively on communication skills, both written and spoken.  The attorney must be an effective advocate, able to persuade a judge and others of the merits of his position.

 

Attorneys tend to be very outgoing, aggressive, and communicative.  They are quite conscious of the status of their profession, and particularly emphasize the importance of their role as an office of the court. They are convinced of the legality and correctness of the positions they maintain, and sometimes have a stronger desire to win on their position than to resolve the dispute.  Attorneys most often come from humanities and social sciences backgrounds, and may not be well versed in technical matters.  They tend to be more formal in many respects.

 

The engineering and other technical professions involved in environmental enforcement work within a different professional structure.  Rather than working with a set of standards developed by society, they work with a set of more fundamental standards, either naturally occurring or established by scientific inquiry and accepted over a long period of time.  Engineers deal less with who is right or wrong and more with what is considered to be the solution to a problem.  They often view the intervention by other parties, especially attorneys, as impediments to the process of finding the solution.  They approach problem solving as an exercise in gathering the appropriate technical evidence, applying the correct scientific principles, and thereby resolving the problem.  It is a more objective process of resolving a dispute, and does not rely as heavily on how well someone can present the case.  There is less emphasis on who wins or loses, and more on finding a solution.  The personal traits of engineers are often different from those of attorneys.  Engineers tend to be less outgoing and aggressive, with stronger analytical than communication skills.  Most of their formal education is in the sciences.  Engineers are usually more oriented toward the final product, than the process one follows to get there.

 

Given these differences between attorneys and engineers, there is a natural tension which can impede the enforcement process.  There is a fundamental difference in background and training.  Engineers and attorneys are often of different personality types, and they speak a different language.  They have different approaches to problem solving and perspectives on the issues.  They bring very different skills to the enforcement process.  Because all of these skills are essential to effective enforcement, the key for the enforcement managers and the attorneys and engineers themselves, is to overcome their differences and integrate their skills.  By maintaining a commitment to environmental protection, compliance with the law, and a clear sense of what they want from their cases, they will develop a strong enforcement mentality which forms the basis for an effective working relationship.

 

4.            ACCOUNTABILITY AND RESPONSIBILITY FOR ENGINEER AND ATTORNEY

 

From the start to the finish of an enforcement action, there are certain responsibilities that must be carried out by the engineer and the attorney.  While many responsibilities are carried out individually, both share responsibilities on others.  These responsibilities are discussed below.

 

4.1.            Responsibilities of the Engineer

 

Throughout the process, the engineer is responsible for all technical aspects of the enforcement action.  The engineer must prove what violations of the law have occurred on the basis of the evidence.  The engineer must be able to determine what caused the violation and what actions could have been taken by the violator to prevent the violation.  A great deal of judgment must be exercised in determining the cause and prevention of the violation.  Best professional judgment is essential in arriving at necessary conclusions to support the enforcement action.  The engineer cannot know all of the technical details associated with the violators operation, but must know enough to make a reasonable, supportable judgment to support the enforcement action.  The engineer must develop the technical solution to correct a violation.  The engineer must be prepared to defend the technical judgments in writing to the violator, in negotiation sessions and before a judge.

 

Other technical support may be necessary to help answer the technical questions that may arise.  That support may come from technical experts from within the agency, other experts in other agencies, from consultants and from academia.  The engineer must get that support and be aggressive, thorough and imaginative in order to build the strongest possible technical case.  Management expects the engineer to address all technical issues that arise during the enforcement action by personally responding or providing the response after consultation with others.

 

4.2.            Responsibilities of the Attorney

 

The attorney is responsible for all legal aspects of the enforcement action throughout the process.  The attorney must assess whether a violation of the law or regulation has occurred.  That is accomplished by reviewing the requirements of the law as applied to the violator.  The attorney relies upon the technical facts provided by the engineer and makes an individual assessment of the nature and extent of the violation of the law.  Based upon the violations, the attorney must determine what remedies are available under the law and, in consultation with the engineer, recommend the appropriate enforcement action for the agency to undertake.  It is expected that the attorney will know thoroughly all of the legal elements associated with the case.  The attorney must consult with others as necessary in order to develop the best legal position possible in support of the enforcement action.  The attorney must be aggressive, thorough and imaginative in the use of the law.

 

Often the environmental agency in a government relies on legal representation from another agency in enforcement actions.  The environmental agency may or may not have its own attorneys on its staff.  The above discussion on responsibilities applies equally to attorneys on the staff on or from another agency.

 

In the case where an environmental agency has its own legal staff but must still rely on another agency for legal representation, the agency’s attorney must establish and maintain effective communication between the agencies on all aspects of the enforcement action.

 

When the defendant in the enforcement action is represented by legal counsel, all communications with the defendant must be through the attorney.  The exception occurs when the attorneys on both sides agree the technical staffs should communicate directly with each other.

 

4.3.           Shared Responsibilities of the Engineer and Attorney

 

A number of responsibilities are shared by the engineer and attorney.  Both the engineer and attorney must thoroughly know the facts of the case.  They must be able to communicate effectively those facts in all situations that arise.  They both must be fully prepared for any meetings that occur associated with the enforcement action.  Those meetings may be strategy sessions with agency management or meetings with the violator.  The engineer and attorney must discuss and agree on necessary activities to support the case.  They must focus on the common purpose they have in the enforcement action – getting the violator into compliance as soon as possible.

 

5.                  DAY-TO-DAY COOPERATION BETWEEN THE ENGINEER AND ATTORNEY

There are a number of critical elements in the day-to-day cooperation between the engineer and the attorney on an enforcement action requiring their full attention.

 

5.1             Case Communication

 

The greatest area for stress and tension between the engineer and the attorney is communication.  Without effective communication between them, it will be very difficult for the enforcement action to achieve the desired result.  The responsibility for effective communication rests with both the engineer and the attorney.  Each must communicate on all aspects of the enforcement action.  That includes telling each other about communications with others involved that have an interest in the enforcement action, such as their managers and other agencies.  It means talking about problems on the case as they arise and exchanging opinions and facts that need to be considered.  It requires working out solutions to problems together with open, candid conversations.  Reasonable people will disagree and that is expected in the conduct of enforcement actions.  Those disagreements must be brought into the open, discussed by the engineer and the attorney and be resolved.  This is very difficult, but it must be done.

 

The engineer and attorney must keep each other informed on emerging policies, existing policies, and other information that would be useful in the enforcement action.  Communication between the two must be complete and timely.  They should strive for mutual education of each other for the benefit of the case and the environment.

 

Communication with and the role of the management structure above the engineer and attorney are very important.  While the engineer and attorney have day-to-day responsibilities in managing the enforcement action, others must be kept informed of case progress for policy reasons and other considerations.  The managers should participate in major decisions dealing with strategy, timing and resource allocation.  Management must also communicate with the engineer and attorney to provide consultation and support.

 

Communication with others connected with the case is also critical.  As mentioned earlier, if the environmental agency works with another agency, such as the Department of Justice or a state, it is imperative that all of the principles discussed above are followed in the communication with the representation from the other agency.  That representative is also expected to reciprocate.

 

Communications should also take place with other personnel within the environmental agency.  For example, the agency may be processing a permit or some other document in another program associated with the defendant of the enforcement action.  The case engineer and attorney must be aware of that and stay in close communication with the other parts of the agency that are dealing with that defendant. 

 

A key to the successful communication between the engineer and attorney is for them to speak a common language.  They must avoid “legalese” and “technicalese” and “bureaucractese”.  They must learn to use words commonly understood by both.  The same is true in communications with the defendant, other outside parties, and management.

 

5.2.           Case Management

 

Bringing an enforcement action to a successful conclusion does not happen on its own.  It requires skillful management of the case.  The first level of case management rests with the engineer and attorney.  They must know what they want out of a case and how to get it.  The best way to make sure they understand where they are going with a case is through the development of a case plan.  Such a plan tells each other who will do what by when on all activities associated with the case.  The plan also lays out a target schedule for accomplishing those activities.  In addition, the plan will identify additional legal or technical needs on the case and how those needs will be satisfied.

 

The second level involved in case management is with management above the engineer and attorney.  As discussed above, the two-way communication between the supervisors and the engineer and attorney is critical to the success of the enforcement action.  The managers must be involved in case management to a degree, depending upon the complexity of the enforcement action.

 

5.3.           Other Important Items

 

There are several other important items that affect the outcome and the management of an enforcement action.  One of these items is the desirability of cross training between the engineer and attorney.  They should visit the site of the enforcement action to see the situation first hand.  The engineer should explain the production process at issue, the expected causes of the violations, and the likely technical solutions.  That will greatly assist them in discussing the details of the situation with the violator.  There is no substitute for first hand knowledge and observations, especially if there are obvious adverse environmental effects caused by the violator.  In that way, they can observe what is necessary to achieve and maintain compliance.  The attorney should arrange for the engineer to observe court or formal administrative proceedings before a judge to learn how the process works and to be better prepared for the ongoing enforcement action.

 

Before any meeting or negotiation session with the defendant, the engineer and the attorney must be fully prepared.  They should have an agenda prepared, should have agreed on how they want to structure the meeting by agreeing on who will lead the discussion on which items, what their position is on the issue, and most importantly, agree on what outcome they want from the meeting.

 

In almost all meetings, they should prepare a document in advance to use as the proposed settlement position to present to the defendant.  By doing this, the agency is controlling the process and the defendant is responding to the agency’s position.  At the conclusion of the negotiation session, the person is charge of the meeting, usually the attorney, should summarize the areas of agreement, the areas of disagreement, and where and when the next meeting will take place.  Subsequent to the meeting, the engineer and the attorney must decide who is responsible for the necessary action items including preparation of a new settlement document to reflect the latest position in the negotiations.

 

6.                  CONCLUSIONS

 

The engineer and attorney are the key to successful enforcement.  They must always remember that enforcement must be firm and fair.  Firm means the law must be obeyed.  Fair means that all non-complying facilities must be treated equitably.  They must remember that initiating an enforcement action is easy; completing it is the hard part.  Without a clear management plan, the enforcement action will not progress and not be concluded.  They must always know what they want from the enforcement action.  They must be able to explain it, support it, and negotiate the details of what they want.  The engineer and attorney must always remember that their final objective is to get the violator into compliance as soon as possible.  The environmental contamination will continue until full compliance is achieved.  It is often easy to forget that the final objective of an enforcement action is full compliance.  Without keeping that in focus, success will not be achieved as measured by environmental clean-up.

 

The engineer-attorney partnership is difficult.  In environmental enforcement, the problems are very complex and require a number of skills to address them.  Many barriers exist between the engineers and attorneys because of the nature of their training and the types of people they are.  Those barriers can and must be overcome.  If the individual team members, the engineer and the attorney, remember to maintain an enforcement perspective that will hold them together, and they will achieve the desired result – environmental protection.