Federal Triangle: SNC Headaches
The term "adversarial relationship" cannot be better characterized than by the summary view of the Environmental Protection Agency (EPA) contempt for the private sector. That is a major thesis of the new book Out of Bounds Out of Control by James V. DeLong, which provides detailed evidence of dangers faced by Americans, spawned from EPA interpretations of law and enforcement of their distortions of "the rule of law." This phrase means that government must be bound by fixed, pre-announced rules making it possible to foresee how authority will use coercive powers of enforcement. EPA policy does not comport with the rule of law and has bred "regulatory zealotry and a disregard for the rights of the regulated." As DeLong shows with examples, EPA has become an entrenched menace disinterested in reform while claiming freedom from bias.
The 27 volumes of Title 40 of the Code of Federal Regulations cover the formal rules that EPA applies to 1.4 million U.S. core and 6.5 million other facilities it regulates to control handling, emissions and disposal of pollutants derived from air stationary and mobile sources, drinking and treated waste water processing to toxic and hazardous waste materials management. Part of EPA adheres to a compliance philosophy using public education. But the harsh enforcement model seems to prevail because the usual bureaucrat regards the private sector as darkly motivated, to maximize profits, to break rules and to lie in every expression to avoid compliance with the forces of good represented by the stewardship of the EPA protectors. The overwhelming approach in enforcement actions is that moral turpitude among business is pervasively evident and that only severe penalties will assure that a clean earth endures. Quite frankly, EPA bureaucrats tend to be less informed about the private sector and business practices specifically than other agencies' people and more inclined to be holier-than-thou. This generalism and my limited personal observation is supported by DeLong's study and is supplemented by experiences reported from many readers of this journal.
Monitoring compliance with regulation involves about 24,000 annual inspections plus escalating processes of investigation, informal actions, administrative proceedings and civil law enforcements. Separate state EPA actions (in 1997) in these latter categories were 11,260 compared to 3,381 initiated by the federal EPA. A key indicator reported by EPA regards "significant noncompliance" or SNC events. EPA estimated that in 1998, 27% or 24,152 industrial pollution sources were SNC as were 25% or 43,318 drinking water sources and 20% of all hazardous waste combustors and landfill sites. Table I illustrates the June 1999 EPA reported industries numbers and percentage SNC.
It is interesting to note that there have been no EPA public announcements about SNC offenses except for convictions, but evidence is that there are very few real offenders due to the EPA policies of including paperwork violations along with real pollutant emissions as grounds for SNC reporting. The foregoing list only involved 16% real emission releases and only 10% of 3,103 civil settlements required actual changes in discharge procedures. In other words, EPA hassles industry in a big way.
It is notable in EPA enforcement actions of all types that it is required, according to defense lawyers, to maintain "appropriate level of groveling to government officials" because anyone who rubs the agency the wrong way is in deep trouble. Regulators dislike a 1994 Supreme Court decision requiring government to show specific and not general intent to violate EPA law. Note here that a Congressionally passed law is different from an EPA rule or regulation that is an interpretation of that law. So EPA ignores the Court and proceeds under the assumption that its interpretations of law will prevail, creating the condition of retroactive lawmaking. Those who disagree are SNC.
This deplorable condition has nothing to do with keeping a clean environment. The solution to this problem is to return accountability for law making to Congress and not to allow delegation. It is also imperative that industry start to defend itself by doing so in a concerted and cohesive way. Reticence gains nothing except a SNC headache.