Finding the Right Yardstick

What is the best way to measure the success of the U.S. Environmental Protection Agency's (EPA) current enforcement efforts? The effectiveness of EPA's current "smart enforcement" initiative has its supporters and its critics. Advocates point toward the pollution reductions achieved by the program. In contrast, many detractors think the Bush administration's approach is letting polluters off easy.

According to John Peter Suarez, former EPA assistant administrator of the Office of Enforcement and Compliance Assurance, "Smart enforcement is the use of the most appropriate enforcement or compliance tools to address the most significant problems in order to achieve the best outcomes. We employ integrated strategies that use compliance assistance and incentives, monitoring, data analysis and civil and criminal enforcement to achieve environmental results." Instrumental in shaping and promoting the smart enforcement program during his EPA tenure, Suarez left EPA at the end of January 2004 to become the general counsel of the Sam's Club Division of Wal-Mart. At press time, EPA was in the process of naming an acting compliance chief to replace Suarez.

The smart enforcement program focuses on what the agency determines to be the most important environmental problems and the most significant cases. Suarez emphasized that input does not equal output. The program focuses more on the end results rather than the process.

"Traditional output measures alone don't capture the success of our program. We've undertaken an effort to capture the success of our program based on an outcome that shows public health and environmental benefits," Suarez said. "The only way to judge the success of the enforcement program is by looking at the end results -- cleaner air, cleaner water and better protected land."

During a speech Suarez gave to the Dallas Bar Association in December 2003, he said, "Our enforcement division is not focused on filing a certain quota of cases. We intend to focus on the strongest cases first."

In December 2003, EPA released its enforcement data for fiscal 2003, which included civil and criminal penalty figures. Additionally, the data included a new category for measuring the program's success, "pounds of pollutants reduced, treated or properly managed." The agency touted that estimated pollutants reduced, treated or properly managed totaled 600 million pounds, compared to 260 million pounds in 2002. EPA's other results included: $167 million in administrative, criminal and civil judicial penalties; a combined total of 146 sentence years for criminals who willfully or knowingly violated the law; and approximately 19,000 compliance inspections across the nation.

The agency also highlighted its compliance assistance activities. According to Suarez, the number of facilities assisted by EPA has increased in recent years by outreach and other efforts. In 2003, EPA assisted more than 700,000 entities, which was a 22 percent increase compared to the previous year. For more information about EPA's enforcement and compliance program and to access ECHO, EPA's Web-based Enforcement and Compliance History Online research tool, visit www.epa.gov/compliance.

Not everybody is impressed by the agency's recent enforcement record. In response to a letter issued in July 2003 from several Democratic and independent members of the U.S. House and Senate questioning whether EPA's enforcement efforts are being hampered by budget constraints, Nikki Tinsley, the EPA inspector general, prepared a special report that was released on October 15, 2003. Entitled Congressional Request on EPA Enforcement Resources and Accomplishments, the report looks at eight areas -- enforcement duties and workload, budget and costs, case load, criminal investigation division agents, criminal investigation division cases, criminal investigation division management enforcement effectiveness and water enforcement.

One of the findings of the report concerns how limited resources affected the handling of new cases. The staff with EPA's criminal investigation division indicated that they would not open a new case if they did not believe they had adequate resources to handle it. According to the report, such cases are referred to the state enforcement authorities or to the EPA civil division. To learn more about other details of the report, go to www.epa.gov/oigearth/recent.htm .

Sen. James Jeffords (I-Vt.), the ranking member of the U.S. Senate Environment and Public Works Committee, was one of those who requested the report. After reviewing it, he said the document raises as many questions as it answers.

"The report indicates clearly that EPA does not know whether it is able to adequately enforce the nation's environmental laws nor does the agency have effective systems in place to generate the appropriate knowledge," Jeffords said.

Despite the apparent problems EPA's smart enforcement program is experiencing as a result of funding shortages, it still should be applauded for emphasizing that case-load numbers alone don't tell the whole story. Indeed, the ultimate yardstick should be how effectively the agency is achieving its overall goals of cutting industrial pollution and protecting human health and our nation's natural resources.



This editorial originally appeared in the March 2004 issue Environmental Protection, Vol. 15, No.3.

This article originally appeared in the 03/01/2004 issue of Environmental Protection.

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