THE U.S. ENVIRONMENTAL PROTECTION AGENCY'S INTEGRATED MANAGEMENT: STRATEGY FOR ENVIRONMENTAL COMPLIANCE BY THE FEDERAL GOVERNMENT

MCCALL, T.W.L.

Deputy Assistant Administrator For Federal Facilities Enforcement, Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20640 (United States of America).

SUMMARY

The US Environmental Protection Agency (EPA) uses integrated management strategy to promote sound environmental practices among federal agencies. This strategy integrates enforcement, cooperation, and rewards in a continuum of relationships with the other federal agencies.

EPA's challenge in federal facilities enforcement is substantial. The federal government employs over 2.5 million people, and occupies 387,000 buildings. It has 27,000 installations and is landlord of 729 million acres. This expansive presence requires that EPA regulate thousands of federal facilities and assist them in their environmental planning. (Appendix A)

The bedrock for the integrated management strategy for federal facilities is reliable data which identifies environmental performance at each governmental installation. EPA's data bases provide the information needed to target enforcement, cooperation, or rewards, as appropriate, to achieve reduction of environmental risk and to maximize pollution prevention.

Cooperation with other federal agencies is the normal mode of interaction, but regulatory sanctions will be applied when required to achieve environmental compliance. Specific enforcement initiatives complement other EPA initiatives whenever feasible to enhance the environmental benefit of both efforts. For example, achieving a high rate of environmental compliance and significant pollution prevention efforts at the many military installation fringing the Chesapeake Bay has been a significant part of EPA's geographic initiative to emphasize environmental protection of the Bay.

EPA is working with other federal agencies to develop a reward system which recognizes exemplary environmental protection, and again the Chesapeake Bay is providing an opportunity to tout federal environmental achievement. Last fall the Deputy Administrator of EPA and I toured the giant Norfolk Naval Base and gave a press briefing, praising the pollution prevention efforts there.

EPA encourages public awareness and participation as essential aspects of EPA's efforts to foster public confidence in the federal government's environmental record. The public needs to be aware of the federal government's environmental record in order to have sufficient knowledge to influence federal environmental decisions through publicity (adverse/adulatory) and participation in federal agency environmental planning.

U.S. Public confidence in the federal government's environmental record has been low but is improving now, and cleanup of hazardous waste at federal facilities is a major item of public interest in the U.S. EPA is certain that involving the public in the federal agency environmental process will improve the environment decisions made by the federal government, and the public's confidence in government.

1 INTRODUCTION

This paper will examine the elements that comprise the U.S. EPA integrated management strategy for environmental performance by the federal government. The goal of this strategy is that the federal government shall meet or exceed compliance with all applicable environmental law and regulations. The ultimate objective is to have the federal government set the standard for the entire Nation in environmental behavior.

To reach these lofty goals two fundamental things have to happen. First, governmental agencies must incorporate environmental goals into the performance of their governmental missions. Second, government employees must believe it is their duty to comply with environmental laws. In order for these aspirations to materialize as good environmental performance, certain irreducible elements of sound administration must exist.

The first element is that there be a body of law and regulation that sets forth environmental standards. In the United States, this consists of local, state and federal environmental statutes and federal regulations to which the federal government must adhere. These laws and regulations need to be written in a manner which specifies that the federal government is included as a member within the regulated community.

Although certain immunities or exemptions from the law for the federal government may be necessary to allow the exercise of the federal function. these immunities and exemptions must be narrowly drawn. The scope of immunities and exemptions must be limited to protecting only that activity which is essential to the accomplishment of the missions of the federal government and, when possible, further limited to shielding only activities which are uniquely governmental. For example, an exemption from vehicle air emission standards should be drawn tightly enough to exempt military tanks and other combat vehicles, but not exempt general purpose automobiles used in the Department of Defense (DOD) Headquarters motor pool. The governmental mission being protected is national defense, and only so much Department of Defense activities as are uniquely military (e.g. vehicles used for combat) should be shielded from compliance requirements. In the U.S., overly broad sovereign immunities often have led to friction between the federal government and the public because they appear to allow the government to go unpunished for violations of environmental law which are essentially the same violations that are punished when committed by anyone else.

The second element is that there be an agency or agencies responsible for regulating the behavior of the rest of the government. The U.S. EPA is one such agency. Other federal agencies regulate other aspect of environmental law. State governments have analogous agencies.

The third essential element is technical assistance and training. The regulator and the regulated community share responsibilities to develop curricula which go beyond merely teaching employees how to achieve technical compliance, and which promote an environmental ethic.

Fourth, regulatory agencies must assess environmental performance and advise the regulated community on how well they are doing and where environmental performance can improve. The regulated community should be encouraged to establish auditing and analytical capabilities for internal use also so that they can assess their own environmental strengthens and weaknesses, and improve their performance without the assistance of the regulatory agency.

No amount of inspecting, reporting, monitoring and self assessment, or other monitoring, will be successful, however, unless there is a plan by which environmental requirements uncovered by monitoring can be programmed for and funded. In the U.S. Government, there is a process by which the federal agencies can identify their capital construction and other environmental requirements, so that those items can be properly accounted for in the federal budget. The U.S. EPA plays a role in this fifth element of sound environmental administration. EPA has the opportunity to review and evaluate the other agencies' proposed plans prior to their budget submissions. Theoretically, this process provides a mechanism for the proper allocation of resources to achieve, maintain, and even exceed, environmental compliance. In practice, this process has been cumbersome, resource intensive, and has not always identified and funded projects in a timely manner that avoids noncompliance with environmental law.

The final element to a successful compliance strategy is enforcement. Enforcement response is appropriate in instances when for some reason the other elements of a successful compliance program have failed to yield compliance. In these instances, a coercive response is necessary to convey the gravity of the failure to achieve satisfactory environmental performance. Enforcement action further establishes the benchmark from which a compliance agreement or consent order can be fashioned which will eventually bring the federal facilities into environmental compliance. EPA's enforcement options against other federal agencies are limited to administrative orders issued only after the opportunity is provided for the other agency to contest the order within the Executive Branch. As discussed below, however, the enforcement available against federal facilities include enforcement by States and localities and by citizen suit. Taken together, the full range of civil judicial, criminal, and administrative options are available, except as limited by the sovereign immunity of the federal government and a almost never exercised possibility of a short duration Presidential exemption from law.

2 THE INTEGRATED MANAGEMENT STRATEGY

2.1 Legal and Regulatory Authority

Major federal environmental statutes require environmental compliance with specific

criteria and standards established for different environmental media: air; water; and land. Other federal statutes prescribe compliance requirements for specific substances or classes of substances such as toxics or pesticides. One federal statute, the National Environmental Policy Act (NEPA), establishes a process which the federal government must use to analyze its actions which may affect the environment. Taken in combination, the federal government is thus required by statute to act in a environmentally conscientious manner. The statutes are then implemented by regulations and executive orders which require acceptable environmental performance. State laws generally have similar applications.

In the U.S. Executive Branch, Executive Order 12088 requires each agency of the federal government to comply with environmental law and cooperate with and consult with EPA, state, interstate, and local agencies in achieving compliance. Each agency is required to request adequate funds to comply with "applicable pollution control standards". The request for funds is submitted through EPA to the Office of Management and Budget (OMB). Agencies are then required to spend the funds for the environmental purposes for which they were requested. Executive Order 12088 authorizes the Administrator of U.S. EPA to resolve environmental conflicts between federal agencies, but if unable to resolve such controversies, the Administrator is to request the Director of OMB to resolve the conflict.

Permits, compliance agreements, and cleanup agreements are the primary mechanisms for translating statutory and regulatory authority into environmental performance and compliance standards for specific federal installations. These devices are what actually establish many of the environmental requirements which federal agencies must meet to comply with law, regulation, and Executive Order 12088.

2.2 Regulatory Agency Responsibilities and Organization.

There must be a repository within government that is charged with encouraging, assisting or coercing federal agencies to comply with the statutory and regulatory authorities. The U.S. EPA is one such repository agency. State governments have similar regulatory agencies and many municipal and county agencies also have regulatory enforcement responsibilities. This paper will focus on the federal level; specifically on U.S. EPA.

The U.S. EPA has found it essential to aggregate authority within the agency for regulating federal facilities on environmental issues. This has been done by forming two offices dealing exclusively with federal facilities. These offices are located within the Office of Enforcement, headed by the Assistant Administrator for Enforcement. Under the Assistant Administrator is a Deputy Assistant Administrator (DAA) for Federal Facilities Enforcement. Reporting to the DAA are the Office of Federal Activities (OFA) and the Office of Federal Facilities Enforcement (OFFE).

U.S. EPA could have chosen to replicate a microcosm of itself inside OFA and OFFE by giving these two offices authority to administer all aspects of all environmental laws at all federal agencies. Frankly, U.S. EPA lacks personnel and monetary resources for such an elaborate structure without sacrificing other valuable environmental programs. Further, an attempt to create such a structure at the expense of other bureaucracies within EPA would have created unbearable intra-institutional friction. Neither the expense nor the fight could justify such building.

Consequently the offices responsible for overseeing the environmental performance for the entire federal government number just about 60 people total between them. Translating this to dollars and national agenda, OFFE (with less than 30 people) is responsible for overseeing the federal government's approximately $9.5 billion cleanup budget for fiscal year 1993. OFFE will receive $30 million to fund its oversight of the $9.5 billion effort. To stretch $30 million of oversight over $9.5 billion of effort requires that OFFE carefully choose when to become involved in specific regulatory disputes. These limited resources are most suited to formulating policy providing policy advice. Even its policy role must be confined to applying policies developed by other programs to federal facilities, except when the matter is unique to the federal government o, involves program administration. For example, OFFE will rely on the Office of Solid Waste and Emergency Response and the RCRA (Resources Conservation and Recovery Act) Enforcement Division for leadership on RCRA enforcement policy. OFFE will work together with these other entities and apply their general policy guidance in a way that makes sense for federal facilities. Finally OFFE will rely on EPA's Regional Offices and state agencies' to actually carryout the policy.

To summarize the organizational choices made by EPA in regulating federal agencies: OFA and OFFE promulgate policies and guidance limited to defining the application of environmental issues to the federal government. OFA and OFFE relate with the other program offices within EPA to ensure that environmental policy is applied consistently to other federal agencies. They also coordinate primarily with Regional EPA offices, and to a lesser extent, with State and municipal environmental regulators, who actually execute the regulatory actions 21. federal government facilities. Resource scarcity requires this institutional networking.

2.3 Training Technical Assistance and Compliance Monitoring

The history of environmental compliance at U.S. federal facilities has shown that a substantial portion of compliance problems can be remedied by proper education and training of personnel. Personnel who are adequately trained in the technical and ethical requirements of their environmental responsibilities, are essential for a good environmental record. Most environmental violations in the federal sector are equivalent to administrative oversight or lack of knowledge regarding simple, fundamental environmental requirements.

The bulk of training of governmental personnel has to rest with the agency with responsibility for complying with the law. Again, resource constraints are a major factor in allocating responsibility for training. U.S. EPA does not have enough personnel to conduct adequate training for other agencies. U.S. EPA however, can assist the regulated community in setting up training, and can provide selected training.

A second reason that the regulated community must assume most of the burden for education and training is that the needed expertise does not exist at EPA. EPA, for example, does not have staff who are experts in the industrial processes related to nuclear submarine maintenance. That expertise is with the Department of the Navy.

Professional engineering associations, educational institutions, and other experts and associations often will be better able to conduct seminars, formal education, or conferences on environmental topics that U.S. EPA. Training in environmental enforcement is, however, an example of an area where EPA is the appropriate educator. Our National Enforcement Training Institute (NETI) is supported by and part of the Office of Enforcement's (OE) National Enforcement Investigations Center (NEIC). NEIC is an organizational unit of OE having primary responsibility for providing technical support for EPA's enforcement program. NEIC provides technical support for federal facilities just as it supports other OE enforcement (as well as the Department of Justice, the FBI, and State and local law enforcement among others). The NETI courses are among the training and technical assistance available from NEIC. NEIC and NETI are two more examples of how the small OFA and OFFE staff can draw from other institutional resources to network into a vibrant national environmental program for the federal government.

A different example of building a national program with limited resources is the one person education staff supported by OFFE. The person is located in the field, not Headquarters. She teams with the U.S. Air Force to present a 3 1/2 day course which imparts baseline legal, technical, and community involvement aspects of hazardous waste cleanup work at Air Force installations. The course requires the Air Force and EPA participants to work together as a team to design strategies for dealing with a cleanup scenario. "Staff" for the course are volunteer EPA experts who to provide the participants with the legal, technical and community involvement requirements needed for the team to overcome their cleanup problem in a lawful, technically sound manner that has public support. This innovative effort provides a strong mechanism for establishing a better working relationship between the Air Force and EPA. The team approach helps transform an adversarial relationship between the regulator and regulated community into a team with extensive expertise to achieve common goals. It is an excellent example of an "enforcement" activity in the federal government outside of the command and control relationship.

I hope to offer this cross between training and technical assistance to other federal agencies to the extent a limited budget will permit. Technical assistance is provided by EPA to federal facilities in variety of forms. Workshops which provide technical details of implementing environmental requirements are a common form of technical assistance. Guidance documents and fact sheets answering certain specific technical questions are other commons forms of technical assistance. Both the Office of Federal Activities and the Office of Federal Facilities Enforcement have regularly scheduled information transfer meetings and perform clearinghouse and other information exchange functions for other agencies.

A trained work force needs a management structure which encourages the accomplishment of environmental objectives. Accordingly, EPA encourages other federal agencies to rate all personnel on their environmental performance and to periodically and systematically audit their environmental programs to identify actual and potential environmental problems. Personal accountability for environmental behavior and an effective environmental auditing program assist the regulated community to become more responsible for their environmental performance.

2.4 Compliance Monitoring

The federal government has not yet achieved a level of environmental performance that allows self assessment and self auditing by the regulated community to be the only means of monitoring compliance. Compliance monitoring by the U.S. EPA is required. Compliance monitoring can be broken into two categories. The first category is information provided by the regulated organization to the regulator. The information ranges from record keeping to periodic notification and reports of non-emergency and emergency nature. This information not only provides a profile of environmental performance, but also is a self disclosure of environmental non-compliance. Record keeping and reporting requirements under the Clean Water Act are a primary means of monitoring effluent discharges from permitted sources into U.S. waters.

Regulatory inspections, however, constitute the bulwark of compliance monitoring. U.S. EPA and other regulatory agencies within the United States conduct periodic inspections of federal facilities to ascertain the degree of environmental compliance. U.S. EPA coordination with State Inspectors is especially important, given the number of environmental regulations which are administered by state governments in the United States. Seventy to 80% of environmental inspections are by State and local government.

Permits, whether monitored by the regulated community, reviewed by the regulator, or both, form a principal basis for assessing federal facility compliance with environmental law. They establish often provide the standards or conditions to be monitored for compliance in air, water, and hazardous waste.

Compliance monitoring results must become the basis for budget planning in order to convert the results of monitoring into projects to maintain compliance. As mentioned previously, Executive Order 12088 requires that federal agencies annually submit their plans to meet their pollution control responsibilities to the U.S. EPA for review. OMB Circular No. A-106 describes the process for developing and maintaining Pollution Abatement Plans. The A-106 circular requires that federal agencies develop plans that assure their facilities meet the standards of federal, state, interstate, and local law and regulations. Such plans are to describe all project costs needed to conform to regulatory requirements. The agency plans are to include milestones for design, construction, and completion of the projects in the Pollution Abatement Plans. The milestones, in turn represent agency commitment to comply with the standards established by statute or regulation, assuming that the identified projects will be funded by the Congress. EPA theoretically reviews and notes each project for adequacy and priority.

The link between compliance monitoring and farsighted budget preparation is essential if government is to meet legal environmental requirements when carrying out other missions. The A-1 06 process attempts to provide that planning coordination in the U.S. System. For Fiscal Year 1992 federal agencies identified 7,088 projects for abating pollution with a price tag in excess of $5 billion dollars. The A-106 statistics graphically demonstrate the federal government's increased commitment to fighting pollution. The 1992 figures represent an almost ten fold increase in projects and an additional $4 billion in funding over levels in 1988. (Appendix B)

The A-106 system is not without flaws, however. Unfortunately, the A-106 system does not ask for budget data to be presented in the same format that some agencies do cost estimating. This has been a problem for the Department of Energy in particular, where their actual planning data must be converted to an essentially artificial reporting mechanism at the cost of many lost cumulative years of work.

Another problem with the system is requiring EPA to review and assess the data. My OFFE Office Director estimates it would take 60-90 new people to adequately review the other agency submissions. That is potentially more people than on my entire Headquarters staff. These new people would have to be experts in cost estimating, not environmental experts. Tha4 ' fact was driven home when the Administration "scrubbed" the Department of Energy's (DOE fiscal year 1993 budget for environmental cleanup and waste management.

The DOE budget review was an extraordinary undertaking which consumed 12,500 hours of OMB staff work, 13,400 of Army staff hours, and numerous hours from other agencies participating in the budget review. The item by item budget review involved teams of auditors and engineers inspecting every DOE facility and every environmental budget document. The excruciating review was necessitated by fears that even an almost $5 billion DOE waste cleanup and management budget would be insufficient to meet legal environmental obligations. During the review it became clear that U.S. EPA lacked expertise to evaluate the dollars needed to perform a particular project. Our input was confined to advising on what the environmental law required be done to satisfy the law. How much it cost could be better estimated by DOE, auditors, or construction engineers.

Again, the lesson is to build a federal facilities regulatory role carefully, to rely on networking, and to avoid tasks not suited to a staff specializing in environmental requirements at federal facilities. Finally, the lesson to be relearned in this experience is that in the federal government, the regulated agency will do most of the work needed to meet environmental requirements; e.g. cost-estimating, contracting, or administering the cleanup or work center. The regulator assists, oversees, rewards or sanctions.

2.5 Enforcement Options

EPA does not sue other agencies of the Executive Branch to enforce environmental compliance. Neither, can EPA unilaterally order another Executive Branch agency to comply with an administrative order. The other agency must be provided an opportunity to contest the proposed order within the Executive Branch. Unilateral administrative orders have been deemed an unconstitutional interference with the President's authority to manage the Executive Branch of government. This Constitutional limitation does not apply to state or local governments, or citizens. To the extent the sovereign immunity of the federal government has been waived, criminal, civil judicial, and unilateral administrative options are available to states and local government. Citizens can sue to the extent sovereign immunity is waived and citizen suit is authorized by statute. The determination of the scope of the waiver of sovereign immunity varies from statute to statute. Federal employees are subject to prosecution for criminal violations. Such violations would be referred by EPA to the Department of Justice for prosecution at the federal level.

The foregoing factors subject federal government agencies to civil judicial, administrative, or criminal enforcement, from state or local government, and the citizen, as well as to enforcement from within the Executive Branch. Adding to the enforcement mechanisms are the National Environmental Policy Act (NEPA) and, Section 309 of the Clean Air Act (CAA). The federal government is sensitive to public comment and perspective, in particular, adverse public press.

The consequence is that there is a great deal of environmental enforcement leverage against the federal government; to find the leverage one must look beyond a traditional analysis of administrative, civil judicial, and criminal options. One must factor in the voice of the public the role of the states, and the extraordinary administrative review mechanisms provided exclusively against the federal government by NEPA and section 309 of the CAA.

2.5.1 NEPA and Section 309 CAA

NEPA differs from other environmental Statutes in that it does not specify compliance standards, but establishes a process by which the federal government is to assess the impact of its actions upon the environment. This succinct four page statute requires that the federal government address adverse environmental impacts which cannot be avoided if federal government actions significantly affect the quality of the human environment. The federal agency must then examine alternatives to the proposed actions and other issues. EPA influences the other federal agency's environmental performance by making comments on the adequacy of matters within EPA's environmental expertise. EPA will also cooperate formally with another agency from the inception of the NEPA evaluation to assist in developing an environmentally acceptable course of action.

The most effective environmental enforcement levers in NEPA are the avenues the Act provides the public. First, the public participates in meetings with the Federal agency to discuss the scope of the proposed federal action, and later, the public comments on the adequacy of the government's analysis of environmental impacts, including alternative solutions and environmental mitigation. Finally, NEPA provides the avenue for the citizen to sue the federal government for procedural errors in complying with NEPA or for substantive failures in the required environment analysis. These NEPA lawsuits, threats of lawsuits, and the attendant adverse publicity are substantial enforcement options that NEPA fosters exclusively against the federal government. (Some states have similar requirements for state actions affecting the environment.)

Section 309 of the CAA provides EPA the availability to review other federal agencies' major actions, including proposed regulations or legislation. Although the review authority is in the Clean Air Act (CAA), EPA's review authority goes beyond impacts on air quality. Section 309 authorizes EPA to consider public health, welfare, and environmental quality. Section 309 was added to the CAA, in 1970 because Congress felt more teeth needed to be added to NEPA. Consequently, under its section 309 authority, EPA can even challenge another agency's decision that their proposed action does not require a NEPA environmental impact statement. EPA publishes its reviews for public consumption and can refer environmentally unsatisfactory projects or projects with insufficient environmental analysis to the President's Council on Environmental Quality (CEQ). In practice, EPA's comments under its section 309 authority receive the great deference owed to avoiding adverse publicity, citizen lawsuit, and/or referral to the President's CEQ.

2.5.2 Citizen Participation

We too often think only of formal enforcement mechanisms when defining the universe of options available to regulatory enforcement agencies. These formal options are more important to U.S. EPA federal facilities enforcement now than in the past, but the role of the public in achieving environmental performance from the federal government remains important. The emphasis at EPA is in facilitating interactive discussion between the public and the federal government as the preferred option to litigation between the public and the federal government. EPA's program to stimulate public awareness and participation are still evolving but includes a national advisory commission to the Administrator of EPA on cleanup of hazardous waste at federal facilities. The EPA participates with the U.S. Department of Energy (DOE) on their Programmatic Environmental Impact Statement for cleanup of their massive environmental waste problems and management of their future waste streams in an environmentally sound way EPA also sits on two DOE public advisory boards on environmental issues, and participated on DOD's Base Closure Task Force which was also open to the public and had appointed representatives form the public sector.

2.5.3 Cleanup and Compliance Agreements

Among the principal EPA administrative enforcement mechanisms against, federal facilities are cleanup and compliance agreements. Cleanup and compliance agreements between the regulated community and regulators are important means for EPA to link compliance planning and environmental performance. Such agreements implement the law by requiring a series of environmental activities over time. There are two primary environmental laws in the U.S. that govern hazardous waste cleanup and management. These are, CERCLA, or Superfund, which deals with the dangers posed by hazardous waste sites and RCRA, the Resource, Conservation and Recovery Act, which governs (among other things) waste management activities at facilities currently generating waste. One group of these agreements is the Federal Facility Agreements (FFA), pursuant to CERCLA. These are the agreements used to plan cleanup activities at our major hazardous waste sites at federal facilities. As of May 21, 1992, EPA had entered into 103 of these agreements. A second form of agreement is used to bring federal facilities compliance with the law. These are Federal Facilities Compliance Agreements (FFCA), pursuant to RCRA. FFCAs allow the federal government to institute an orderly and planned process to bring non-compliant facilities into compliance with the law. FFCAs also implement other federal environmental laws. (Appendix C)

In my statement to the United States Senate Committee on Energy and Natural Resources on May 21, 1992, 1 described the importance of these cleanup and compliance agreements in the following terms.

"The federal government is investing significant resources in addressing environmental cleanup and compliance issues at federal facilities. Cleanup and compliance agreements provide a key framework for determining how and where these resources are to be applied over the long term and are a valuable tool for a number of reasons. First, these agreements provide for accountability to the public. They are enforceable in federal district court by States and citizens, and they allow for some degree of public involvement in and scrutiny of the federal government's environmental management decision-making process. Second, these agreements provide management plans for federal facilities to implement their programs by establishing long-term schedules and milestones. Third, these agreements provide a framework for discussing and setting priorities and determining funding needs. Finally, they clarify the respective roles, authorities, and responsibilities of the parties, thereby promoting greater coordination in implementing the requirements of these agreements. This is particularly important in agreements where states are signatories. Because of the commitment by the federal government that these agreements represent, they are very important to improving the credibility of the federal government with respect to meeting its environmental management responsibilities."

In the previous paragraph I described the importance of the Federal Facilities Compliance Agreement (FFCA) as the customary enforcement response to major violations which require time and the expenditure of capital to achieve compliance with environmental laws and regulations. FFCAs are negotiated between the regulator and non-compliant party. Another negotiated compliance instrument is the consent order. EPA's policy is that consent orders are appropriate when agreements are being negotiated jointly with a State and that State has administrative order authority and are also an option when EPA has order authority itself under statute. Violations of a consent order can be enforced through the courts whereas violations of FFCA are enforced through dispute resolution within the Administration.

Once EPA discovers an environmental violation, and makes a determination of noncompliance, it then takes its initial enforcement response. The initial enforcement response will vary depending on the type of violation and the record of the violator. Generally, EPA issues a Notice of Violation (NOV), or equivalent notice as the initial written notice in cases where significant violations must be addressed. These NOV's are issued to the Facility Director or Base Commander, and describe the violation and how it was identified. The NOV goes on to state consequences of not meeting the requirement of the law or regulations. The notice will specify dates by which the violator must respond or face issuance of an order or formal escalation of the enforcement action. If the authority under which the NOV is being assessed is a statute authorizing citizens suits, that authority is often cited in the NOV.

In some cases the federal agency will have corrected the violations before receiving the Notice and will provide written certification to that effect. In other cases the violation is corrected in a short time. In such cases the federal agency again will submit a certification to EPA that the violation has been connected with substantiating documentation to demonstrate that the situation has been corrected. In the more serious cases requiring formal response action, EPA will negotiate with the noncompliant activity resulting in either a FFCA or a consent order.

Sometimes negotiations between these parties cannot be resolved. In such cases disputes are resolved by elevation through the bureaucracy in formal dispute resolution, potentially to the Administrator of EPA and possibly to the Office of Management and Budget for resolution. These enforcement procedures are often lengthy and have subjected the Federal government to criticism that it lacks enforcement integrity when it comes to applying environmental law to the government. It also leads to the perception that federal environmental violators are held to lesser standards than the private sector. As noted earlier the need to negotiate enforcement is derived from the Constitutional separation of the three branches of the federal government and the concept of the unitary executive branch. Under this concept, all federal agencies are seen as acting as one entity to carry out the will of the Chief Executive. The executive branch, in turn, being a single entity, cannot take courses of action contradictory to itself.

2.5.4 Criminal Enforcement

Despite all the innovative, pain reducing enforcement options discussed above, sometimes overtly coercive measures are the most appropriate enforcement mechanism. Criminal sanctions are the ultimate coercion. The federal government can't be sent to jail, but federal employees who commit criminal violations of environmental law can be criminally prosecuted. There have been only rare instances when federal employees have criminally violated environmental law. The cause celebre was a criminal case in the late 1980's which led to the conviction of three civilian employees who worked for the U.S. Army at the Aberdeen Proving Ground in Maryland.

The employees were found guilty of criminal violations of RCRA in the performance of their duties developing chemical warfare systems. The appellate court affirmed their criminal convictions, and rejected their argument that they were protected from criminal prosecution by the federal government's sovereign immunity. The court found that the government's sovereign immunity did not extend to criminal activities of individual government employees.

The highly publicized case sent shock waves through many sectors of the federal government. No one incident did more to arouse institutional sensitivity to environmental responsibilities in the federal government than did this criminal case.

2.5.5 State and Local Government Enforcement

State and local enforcement against the federal government is not restrained by the unitary executive concept of the Executive Branch, but is limited by sovereign immunity and the financial and personnel needed to pursue as powerful on entity as a federal agency. Despite these limitations, state and local government enforcement actions constitute the bulk of regulatory actions against the federal government.

3 RESULTS

What are the results of this holistic -- education to planning/sanctions to rewards approach? The federal government's environmental record is improving, and the record allow for room for still further improvement. Rates of compliance with discharge permits under the Clean Water Act improved from 91 % to 98% between fiscal year 1989 and 1991. The comparable non-federal rate stood in excess of 98% over the same three years. Rates for compliance with the Clean Air Act improved slightly from fiscal year 1990-1991, and were just shy of similar rates in the non-federal sector. Federal compliance rates were almost the same as non-federal rates under the Safe Drinking Water Act. (Appendix D)

It is the federal government's waste cleanup and hazardous waste management that ha gained most attention and most criticism in the U.S. Here the record of improvement is pos marked and the room for further improvement is greatest. The Department of Energy alone is asking for $5.5 billion dollars for fiscal year 1993 to cleanup and manage waste. Compliance rates with RCRA have been traditionally lower in the federal sector than in the non-federal sector, particularly in the important sector including facilities the store, treat or dispose of waste (TSD). In fiscal year 1989, federal TSD's were rated as complying with RCRA in 39% of inspections. That rate for federal TSD appears to have increased to 59% by FY 91, with a 63% rate of compliance over the entire federal RCRA spectrum. If these preliminary data are validated, this would be a better compliance rate than that achieved in the non-federal sector. (Appendix D).

4 CONCLUSION

Enforcement of environmental law at federal agencies involves many actors actuating many levers. At U.S. EPA enforcement is part of an integrated management strategy. Accordingly, enforcement isn't always what one normally considers enforcement. It is a continuum from education to incarceration. It stretches from incentives and rewards to sanctions and penalties. Public discussions and press coverage are paired with lawsuits and administrative sanctions as means to influence behavior.

For states, local governments and local citizens sovereign immunity sets the boundaries for formal enforcement, but the pressure of adverse public opinion is not so fenced.

The enforcement of environmental law by the federal government with regard to the federal government can be seen and understood through the concept that the executive branch is one entity. Executive Order 12088 reflects the collective environmental responsibilities all agencies in the Executive Branch. It defines EPA's role to include technical assistance and training, cooperation and enforcement within the federal government. Based on the precepts in Executive Order 12088, the federal facilities environmental enforcement program is aimed at building institutional capacity within the federal government to comply with environmental law. This capacity requires training and technical assistance, both from the regulated federal community and from the EPA. Compliance monitoring becomes a measure of effectiveness of this institutional capacity to comply, and the A-106 budget process becomes the planning tool which converts compliance monitoring into environmental compliance.

In those cases where the system fails to achieve compliance the federal system provides for enforcement consistent with the concept of a single executive branch. This enforcement response relies on negotiated settlements between the regulated community and regulator. These negotiations have been subject to criticism for the failure to treat the federal government with the same enforcement zeal as the private sector. The results of these negotiations are FFCA's and consent orders. These compliance mechanisms put the federal government on compliance schedules to correct environmental problems across the country, and have driven the expenditure of billions of dollars for federal environmental projects.

Federal Facilities Agreements (FFA) are a final, and most important, tool to identify and remediate environmental problems at federal facilities. These agreements set the schedule to cleanup hazardous waste at our federal facilities. FFAs have obligated billions of dollars for environmental cleanup. Taken together, the A-106 program, FFAS, FFCAS, consent orders, provide U.S. federal government the mechanism for programming for and achieving its environmental obligations.