GAO

United States General Accounting Office

Report to the Chairman, Committee on 

Small Business, U.S. Senate

June 2000 ENVIRONMENTAL 

PROTECTION

More Consistency 

Needed Among EPA 

Regions in Approach 

to Enforcement

GAO/RCED-00-108

Page 1 GAO/RCED-00-108 Environmental Enforcement

Contents

Letter 3

Executive Summary 4

Chapter 1

Introduction

16

EPA and State Roles in Enforcing Environmental Programs 18

EPA Tries to Achieve Consistency in Its Enforcement Programs

Nationwide 19

Objectives, Scope, and Methodology 21

Chapter 2

Variations in Regional 

Enforcement Activities

23

Inspection Coverage 23

Number and Type of Enforcement Actions 25

Referrals of Violations to the Department of Justice 29

Regions’ Approaches to Enforcement Oversight 30

State and EPA Perspectives on the Extent of Regional Variation 32

Agency Comments 33

Chapter 3

Key Factors 

Contributing to 

Variations in Regional 

Enforcement Activities

37

Differences in Regions’ and States’ Enforcement Approaches 37

Variations in State Laws and Enforcement Authorities 39

Variations in Resource Commitments to Enforcement 41

Flexibility in EPA Policies and Guidance 42

Incomplete and Inaccurate Enforcement Data 43

Chapter 4

Recent EPA Efforts to 

Achieve Greater 

Consistency in 

Regional Enforcement 

Activities

45

Developing Comparative Information on Regional Enforcement 45

Recognizing the Seriousness of the Data Quality Problem 47

Improving Regional and State Communications 48

Developing Regional Audit Protocols to Improve Oversight 48

Conclusions 49

Recommendations 51

Agency Comments 51

Appendixes Appendix I: Comments From the Environmental Protection

Agency 54
Contents

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Appendix II: GAO Contacts and Staff Acknowledgments 71

Figures Figure 1: EPA’s10 Regions and Regional Office Locations 17

Abbreviations

EPA Environmental Protection Agency

GAO General Accounting Office

OECA Office of Enforcement and Compliance Assurance
United States General Accounting Office

Washington, D.C. 20548

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Resources, Community, and

Economic Development Division

B-284777 Letr

June 2, 2000

The Honorable Christopher S. Bond

Chairman, Committee on Small Business

United States Senate

Dear Mr. Chairman:

In response to your request, we are reporting on the extent to which variations exist among the 

Environmental Protection Agency’s regions in enforcing environmental requirements, the factors that 

contribute to such variations, and the agency’s efforts to achieve greater consistency in its nationwide 

enforcement program.

This report will not be distributed until 30 days after its issuance date unless you publicly announce 

its contents earlier. At that time, we will send copies to the appropriate congressional committees; the 

Honorable Carol Browner, the Administrator, Environmental Protection Agency; and the Honorable 

Jacob Lew, Director, Office of Management and Budget. We will also make copies available to others 

upon request.

Please call me at (202) 512-6111 if you or your staff have any questions. Major contributors to this 

report are listed in appendix II.

Sincerely yours,

Peter F. Guerrero

Director, Environmental Protection

Issues
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Executive Summary

Purpose The Environmental Protection Agency (EPA) administers its environmental 

enforcement responsibilities through its headquarters Office of 

Enforcement and Compliance Assurance (OECA). While OECA provides 

overall direction on enforcement policies, and occasionally takes direct 

enforcement action, much of its enforcement responsibilities are carried 

out by its 10 regional offices. These offices are responsible for taking direct 

enforcement action and for overseeing the enforcement programs of state 

agencies that have been delegated enforcement authority. 

Although EPA acknowledges that some variation in environmental 

enforcement is necessary to take into account local conditions and local 

concerns, core enforcement requirements must nonetheless be 

consistently implemented. EPA also maintains that to ensure fairness and 

equitable treatment, similar violations should be met with similar 

enforcement responses, regardless of geographic location. Concerned that 

environmental requirements are not being enforced with sufficient 

consistency among EPA’s regional offices, the Chairman, Senate Committee 

on Small Business, asked us to provide information on (1) the extent to 

which variations exist among EPA’s regional offices in the actions they take 

to enforce environmental requirements, (2) what factors contribute to any 

variations, and (3) what the agency is doing to achieve consistency in 

regional enforcement activities.

Background Since its creation in 1970, EPA has been responsible for enforcing the 

nation’s environmental laws. This responsibility has traditionally involved 

monitoring compliance by those in the regulated community (such as 

factories or small businesses that release pollutants into the environment 

or use hazardous chemicals), ensuring that violations are properly 

identified and reported, and ensuring that timely and appropriate 

enforcement actions are taken against violators when necessary. 

Most major environmental statutes allow EPA to authorize qualified states 

to implement key programs and to enforce their requirements. EPA 

establishes, by regulation, the requirements for state enforcement 

authority, such as the authority to seek civil and criminal penalties. EPA 

also outlines, by policy and guidance, its views as to the elements of an 

acceptable state enforcement program, such as the type and timing of the 

action that should be taken for various violations, and tracks how well 

states comply. Environmental legislation generally provides authority for 

EPA to take appropriate enforcement action against violators in states that 
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have been delegated authority for these programs when states fail to 

initiate an enforcement action. The statutes also provide that EPA may 

withdraw approval of a program if the state is not adequately administering 

or enforcing it.

EPA issues regulations, policies, and guidance to help ensure a consistent 

approach nationwide in the implementation of environmental 

requirements. OECA expects the regions to take a systematic approach in 

administering and overseeing the enforcement programs among delegated 

and nondelegated programs and, in doing so, to follow EPA’s policies and 

guidance. Of particular note, agency officials maintain that enforcement 

responses selected should be directly related to the severity of the violation 

and that like violations should generally be met with comparable penalties. 

While federal and state enforcement officials agree that basic program 

elements should be largely consistent, some variation is to be expected—

and, in some cases, encouraged. According to EPA, for example, some 

variation is to be expected in how regions target resources to the most 

significant compliance issues in different regions and states and in the level 

of regional oversight of state enforcement programs (with the greater 

oversight provided for weaker programs).

Results in Brief Variations exist among EPA’s regional offices in the actions they take to 

enforce environmental requirements, as illustrated by a number of key 

indicators that EPA headquarters enforcement officials have used to 

monitor regional performance. These indicators include, for example, (1) 

inspection coverage by EPA and state enforcement staff of facilities 

discharging pollutants within each region, (2) the number and type of 

enforcement actions taken, and (3) the size of the penalties assessed and 

the criteria used in determining penalties assessed. GAO also found 

variations in regions’ overall strategies in overseeing the states within their 

jurisdiction, which may result in more in-depth reviews in some regional 

programs than in others. The type of variations shown in these data 

corroborate earlier findings detailed in a series of reports by EPA’s Office of 

Inspector General and by headquarters own internal evaluations. EPA 

headquarters enforcement officials emphasize that the data, by themselves, 

do not offer the appropriate context to help determine the extent to which 

the variations pose problems. The officials note, however, that the data are 

useful for identifying general trends and possible strengths and weaknesses 

in regional and state programs, along with potential issues to investigate at 

greater length.
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Also corroborating the variation it identified among regional enforcement 

activities, GAO found broad agreement in its interviews with EPA and state 

enforcement officials on key factors that contribute to such variations. 

Among the factors most commonly cited by these officials are (1) 

differences in the philosophical approaches among enforcement staff 

about how to best achieve compliance with environmental requirements; 

(2) differences in state laws and enforcement authorities, and in the 

manner in which regions respond to these differences; (3) variations in 

resources available to both state and regional enforcement offices; (4) the 

flexibility afforded by EPA policies and guidance that allow states a degree 

of latitude in their enforcement programs; and (5) incomplete and 

inadequate enforcement data which, among other things, hamper EPA’s 

ability to accurately characterize the extent of variations. 

EPA headquarters and regional enforcement officials have a number of 

efforts underway to help achieve greater consistency in regional 

enforcement activities. At the headquarters level, for example, 

enforcement officials are developing performance information that will 

allow for comparisons among both regions and states in their conduct of 

key enforcement responsibilities. Such assessments are expected to 

highlight any major variations and will be communicated through the 

issuance of periodic “Program Status Reports.” A number of EPA regional 

offices have also sought to ensure more consistency in their state oversight 

by developing and applying new audit protocols in their state reviews and 

by encouraging more effective communication between and among 

regional and state enforcement staff. Notwithstanding these efforts, 

however, a number of factors will continue to challenge EPA’s ability to 

ensure consistent enforcement across its regions. Among the most 

important of these factors is the absence of reliable data on how both 

states and regions are performing their enforcement responsibilities. 

Without such data, EPA is hampered in its ability to ascertain the extent to 

which inconsistencies do in fact exist, the impact they may have on human 

health and the environment, and the manner in which they should be 

addressed. This report makes a number of recommendations to further 

EPA’s efforts to promote greater consistency in how EPA’s regions 

approach the agency’s nationwide enforcement program.
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Principal Findings

Variation in Regional 

Enforcement Activities

Variations exist among EPA’s regional offices in the actions they take to 

enforce environmental requirements, as illustrated by a number of key 

indicators that EPA headquarters enforcement officials have used to 

monitor regional performance. EPA’s enforcement program, for example, 

depends heavily upon inspections by regional and/or state enforcement 

staff as the primary means of detecting violations and evaluating overall 

facility compliance. Thus, EPA maintains that the quality and the content of 

the agency’s and states’ inspections, and the number of inspections 

undertaken to ensure adequate coverage, are important indicators of an 

enforcement program’s effectiveness. Fiscal year 1998 EPA data show that 

regional and state inspection coverage for Clean Air Act-related programs 

ranged from a low of 27 percent of facilities inspected in the Chicago region 

to a high of 74 percent for facilities in the Philadelphia region. For major 

dischargers under the Clean Water Act, inspection coverage also varied 

from a low of 57 percent of facilities in the Denver region to a high of 92 

percent in the Atlanta region. The examples, however, also illustrate the 

importance of getting behind the data to understand the cause of 

apparently wide disparities to understand whether they reflect a problem. 

OECA’s Deputy Assistant Administrator noted, for instance, that the 

Chicago office’s relatively low 27-percent inspection figure could be 

explained by that office’s recent emphasis on conducting detailed and 

resource-intensive investigations of the region’s numerous electric power 

plants, which rely on resources from that office’s inspection budget.

EPA Inspector General and OECA reports also found that regions vary in 

the way they oversee state-delegated programs. Among their findings were 

that, contrary to EPA policy, some regions did not (1) conduct an adequate 

number of oversight inspections of state programs; (2) sufficiently 

encourage states to consider economic benefit in calculating penalties; (3) 

take more direct federal actions where states were slow to act; and (4) 

require states to report all significant violators. A number of regions have 

recently begun to develop and implement state audit protocols in response 

to these findings, believing that having such a protocol could help them to 

review the state programs within their jurisdiction with greater 

consistency. Here too, regions’ approaches differ. The Boston region has 

adopted a comprehensive “multimedia” approach in which it 

simultaneously examines all of a state’s delegated environmental programs. 

The Philadelphia region, however, favors a more targeted approach where 
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air, water, and waste programs are audited individually. On the other hand, 

the Chicago office’s air enforcement branch chief said that he did not view 

an audit protocol as particularly useful, noting instead that he prefers 

regional staff to engage in joint inspections with states to assess their 

performance in the field and to take direct federal action where a state 

action is inadequate.

Regional and state officials GAO interviewed generally indicated that it was 

difficult for them to ascertain the extent of variation in enforcement 

activities among regions, given their focus on activities within their own 

geographic environment. However, EPA headquarters officials responsible 

for the air and water programs noted that such variation is fairly 

commonplace and does pose problems. The director of OECA’s water 

enforcement division, for example, said that in reacting to similar 

violations, enforcement responses in certain regions are weaker than they 

are in others. He also said that such inconsistency has increased in recent 

years. The director of OECA’s air enforcement division said that given the 

considerable autonomy of the regional offices, it is not surprising that 

variations exist in how they approach enforcement and state oversight. 

According to the director, for the air inspection program, disparities exist 

among regions in the number and quality of inspections conducted and in 

the number of permits written in relation to the number of sources 

requiring permits.

Factors Contributing to 

Variations in Regional 

Enforcement Programs

EPA data and recent studies document variation in key measures 

associated with the agency’s enforcement program, but do little to explain 

the causes of the variation. Without such information, it is difficult to 

determine the extent to which variation represents a problem, whether it is 

preventable, or the extent to which it represents the appropriate exercise 

of flexibility by regions and states to apply national program goals to their 

unique circumstances. Accordingly, in visits to regional offices and states 

and in discussions with headquarters officials, GAO sought to identify the 

factors that may be contributing to variation. Among the factors most 

commonly cited were the following:

Differences in philosophical approach to enforcement. While OECA has 

issued policies, memorandums, and other documents to guide regions in 

their approach to enforcement, the considerable autonomy built into EPA’s 

decentralized, multilevel structure allows regional offices considerable 

latitude in adapting headquarters direction in a way they believe best suits 

their jurisdiction. Such differences often reflect alternative enforcement 
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approaches such as whether the region should (1) rely predominantly on 

fines and other traditional enforcement methods to deter noncompliance 

and to bring violators into compliance or (2) place greater reliance on 

alternative strategies such as compliance assistance (e.g., workshops and 

site visits to identify potential compliance problems). Regions have also 

differed as to whether deterrence could be achieved best through (1) a 

small number of high profile, resource-intensive cases or (2) a larger 

number of smaller cases that establishes a more widespread, albeit lowerprofile enforcement presence. Further complicating matters are the 

similarly wide differences among states in their enforcement approaches 

and the various ways in which regions respond to these differences. Some 

regions step more readily into cases where they consider a state’s action to 

be inadequate, while other regions are more concerned about infringing on 

states’ discretion if they have been delegated enforcement responsibilities.

Differences in state laws and enforcement authorities. According to nearly 

all regional and state enforcement officials GAO interviewed, differences in 

state laws and enforcement authorities also contribute significantly to 

variations in enforcement programs. The enforcement director in EPA’s 

Philadelphia office, for example, noted that Maryland, among other states, 

does not specifically provide that when calculating penalties, the penalties 

should be large enough to offset the economic benefits achieved by 

noncompliance (as provided for by EPA policy). States also vary widely as 

to whether they can pursue enforcement actions administratively or must 

instead use the more time-consuming and resource-intensive approach of 

referring a case to the state’s Office of the Attorney General for judicial 

action. 

Incomplete and inaccurate national enforcement data. OECA needs 

accurate and complete enforcement data to help it determine whether core 

program requirements are being consistently implemented by regions and 

states and whether there are significant variations from these requirements 

that should be corrected. Responsibility for inputting data to EPA’s national 

databases resides with the region or with the state responsible for carrying 

out the enforcement program. Both the quality of and quality controls over 

these data were criticized by state and regional staff GAO interviewed. 

Recent internal OECA studies have also acknowledged the seriousness of 

the problem. For example, an internal OECA work group, the “Targeting 

Program Review Team,” stated in its November 1999 report that key 

functions related to data quality, such as the consistent entry of information 

by regions and states, were not working properly and that there were 

important information gaps in its enforcement-related data bases. Another 
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OECA work group concluded that “. . . OECA managers do not have 

available to them timely, complete, and detailed analyses of regional or 

national performance.” A third OECA work group asserted that the 

situation has deteriorated from past years, noting that “. . . managers in the 

regions and in OECA headquarters have become increasingly frustrated 

that they are not receiving from [the Office of Compliance] the reports and 

data analyses they need to manage their programs,” and that there “...has 

been less attention to the data in the national systems, a commensurate 

decline in data quality, and insufficient use of data by 

enforcement/compliance managers . . ..” OECA has recognized the 

seriousness of its data problem. Noting that the resources devoted to data 

quality may have been insufficient in recent years, the Acting Director of 

the Office of Compliance indicated headquarters intention to shift some 

resources internally to help alleviate the problem. GAO concluded, 

however, that in light of the scope and seriousness of the problem, EPA still 

needs a strategy that will bring to bear sufficient priority and resources so 

that the problem can be adequately addressed.

EPA Efforts to Achieve 

Greater Consistency

Headquarters and regional enforcement officials identified a number of 

activities it believes will further help to achieve greater consistency in how 

regional offices take direct enforcement action, and in how they oversee 

state enforcement programs within their jurisdiction. GAO acknowledges 

the merit of many of these activities but believes that additional action, and 

in some cases changes to its approach, would further EPA’s effort to 

achieve an appropriate level of consistency in regional enforcement:

Providing comparative data on regional performance. OECA is developing 

a system in which periodic “Program Status Reports” would provide 

comparative information on each region’s performance and the 

performance of the states within each region. According to senior OECA 

officials, the reports would allow for comparisons on a broader array of 

information that focuses increasingly on the results the enforcement 

program is trying to achieve. Additionally, OECA is developing a system of 

“Program Element Reviews,” which would be in-depth reviews targeting 

the regions’ implementation of a particular program element. Both reviews 

have the potential to convey useful information to both EPA managers and 

to the public on the extent to which the enforcement program is being 

implemented consistently and fairly nationwide. However, the example 

cited previously concerning the Chicago office’s relatively low 27-percent 

air inspection rate illustrates how a data point, unaccompanied by an 

explanation of the circumstances behind the data, can lead to incorrect 
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conclusions. OECA officials have also acknowledged that such data can be 

easily misinterpreted without the contextual information needed to clarify 

whether variation in a given instance is inappropriate, or whether it reflects 

the appropriate exercise of flexibility by regions and states to tailor their 

needs and priorities to their individual circumstances. GAO, therefore, 

concluded that the Program Status Reports can better serve their intended 

purpose for EPA management and the public if they (1) clarify what aspects 

of EPA’s enforcement program the agency expects to see implemented 

consistently from region to region and where it believes greater variation is 

appropriate and (2) supplement their region-by-region data with contextual 

information that helps to explain why variations occur and thereby clarifies 

the extent to which variations are problematic.

Improving regional-state communications. Regional officials cited 

improved communication as a key component in their efforts to initiate 

new processes and effect change among their staff and among their states. 

Senior officials in the Seattle region, for example, instituted a Regional 

Enforcement Forum that brought together all regional program directors 

and top managers to share information and to ensure they are aware of 

how enforcement is approached elsewhere in the region. Other regional 

officials conveyed similar experiences, noting that better communication 

among federal and state enforcement officials within a region helps to 

identify approaches or performance levels that deviate significantly from 

the norm, thereby promoting a more consistent approach. 

Regional development of audit protocols. A number of regional offices 

have developed protocols that they hope will achieve more effective and 

more consistent oversight of the states within their jurisdiction. One of the 

more comprehensive of these new protocols is the Denver office’s “Unified 

Oversight System.” Under the system, regional staff evaluate all state 

environmental programs using certain performance criteria such as data 

entry, timeliness of actions, penalties recovered, and the effectiveness of 

inspections. Each state is graded on each category and then given an 

overall rating. The system is built, in part, on the concept of a comparative 

review system to pinpoint the weakest states and programs needing the 

most oversight attention. The belief is that by developing and disseminating 

comparative data among the region’s states, the states with the lowest 

rating will, over time, be assisted and encouraged to rise to the level of their 

peers. GAO acknowledges the potential of these protocols to achieve 

greater consistency by a region in its oversight of its states, and that such 

protocols should be tailored to meet the needs of each region. However, 

GAO concluded that headquarters guidance on key elements that should be 
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common to all protocols would help to engender a higher level of 

consistency among all 10 regional offices in the way oversight of states is 

conducted nationwide.

Recommendations GAO recommends that the Administrator of EPA

• provide, as part of the agency’s efforts to develop Program Status 

Reports containing comparative data on regional and state enforcement 

performance, the contextual information needed to help EPA 

management and the public properly understand them;

• develop a comprehensive strategy that will bring to bear sufficient 

priority and resources so that the problems affecting the quality of the 

agency’s enforcement data can be adequately addressed; and

• issue guidance to EPA regions describing the required elements of audit 

protocols to be used in overseeing state enforcement programs.

Agency Comments GAO provided a draft of this report to EPA for its review and comment. 

EPA said that it shared GAO’s view on the importance of consistency of 

regional enforcement but raised a number of issues concerning the draft 

report’s discussion of that issue. Among them, EPA noted that the draft 

report was not clear as to whether GAO was evaluating consistency among 

EPA regions or between EPA regions and states. In GAO’s view, the draft 

report was clear on this point. The report stated that GAO’s evaluation 

focused on “the extent to which there are variations among EPA’s regional 

offices in enforcing environmental requirements.” The report’s “Objectives, 

Scope, and Methodology” section further clarified that while variation 

among states’ enforcement programs has also been the subject of study by 

various organizations, “[GAO] examined such variations only to the extent 

that they provide insights into the actions of, and variations among, EPA’s 

regional programs.”

EPA also said that the draft report did not define consistency or provide 

parameters for defining consistency in a way that would be instructive for 

EPA. At the outset of its review, GAO worked with EPA headquarters 

enforcement staff to identify the criteria or areas where EPA would expect 

to see consistency among regions in conducting enforcement programs and 

overseeing state delegated programs. These staff identified several 

elements that should be “consistent or largely consistent.” These elements 

included such issues as whether inspections consistently detect 
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noncompliance; the selection of enforcement response; the manner in 

which enforcement data are entered into databases and used for 

performance measurement; and whether comparable penalties are 

imposed for like offenses. During its field work, GAO discussed these 

elements with EPA regional and state officials, who generally concurred 

that these elements should be largely consistent from region to region. 

EPA noted that GAO’s draft report did not identify any inconsistent 

enforcement results or present evidence that unequal treatment of similarly 

situated violators is occurring. GAO met with EPA officials on several 

occasions to explore the possibilities of identifying similar violations in 

different regions to allow for such cross-regional comparisons. EPA staff 

pointed out that such an approach would require detailed follow-up work 

for each violation to determine the specific circumstances in each case. 

The staff also acknowledged that regardless of the follow-up work 

conducted, questions could still be raised as to whether the selected 

violations were truly comparable. Consequently, GAO focused its review on 

the elements of EPA’s enforcement program that are most likely to 

determine whether consistent treatment of violators is likely to occur.

EPA said that GAO’s draft report incorrectly implied that in a number of 

areas of program management, variation is inappropriate and that it is a 

widespread problem. GAO believes the report neither stated nor implied 

that variation was either widespread or that it was always inappropriate. 

GAO believes it took a cautious approach in characterizing both the extent 

and appropriateness of variation. The draft report states, for example, that 

variation in some cases may represent “...the appropriate exercise of 

flexibility by regions and states to apply national program goals to their 

unique circumstances.”

EPA emphasized that it has principles and management mechanisms that 

ensure national consistency among its regional enforcement programs. The 

draft report did include a description of many of these principles and 

mechanisms but was revised to provide a fuller description of these items 

in response to EPA’s comment. Importantly, however, GAO’s findings 

suggest that the effectiveness of principles and management systems in 

“ensuring” consistency depends heavily on their implementation by the 

regions.

EPA disagreed with GAO’s recommendation that the agency’s Program 

Status Reports include the contextual information needed to help EPA 

management and the public better understand raw data characterizing 
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regional performance. EPA noted that the reports are not intended for 

public distribution and, consequently, do not “need contextual information 

... since they are designed to be used by Agency program managers who 

understand how to use them.” GAO disagrees with this statement. First, 

past experience indicates that whether intended or not as public 

documents, the Program Status Reports will likely be made public and will 

be used by interested parties. Consequently, the contextual information 

explaining the variations is essential if the reports are to clarify, rather than 

confuse, the public’s interpretation of the data. Second, while EPA notes 

that the reports are designed for agency managers “who know how to use 

them,” GAO’s experience during this review indicates that without better 

contextual information, even agency managers have had difficulty 

interpreting the raw data to determine the extent to which variations are 

problematic, whether they are preventable, or whether they represented 

the appropriate exercise of flexibility.

EPA did not respond directly to GAO’s recommendation that the agency 

issue guidance identifying elements that should be common to all regions’ 

state oversight audit protocols. However, the agency expressed concern 

about the comprehensiveness of some of the protocols, noting that they 

“do not all review State performance against all national policies, including 

the 1986 State Guidance, other national policies, and the [Memorandum of 

Agreement] process.” GAO acknowledges EPA’s concern about the 

comprehensiveness of the various protocols being tested in different 

regions and continues to believe that the recommended guidance would 

help to address the problem identified by EPA while still allowing each 

region to tailor its protocol to meet its unique circumstances.

EPA’s comments and GAO’s responses are discussed in detail at the end of 

chapters 2 and 4. The full text of EPA’s comments and GAO’s responses are 

included in appendix I. 
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Chapter 1

Introduction Chapte1r

Since the Environmental Protection Agency’s (EPA) creation in 1970, the 

agency has been responsible for enforcing the nation’s environmental laws. 

This responsibility has traditionally involved monitoring compliance by 

those in the regulated community (such as factories or small businesses 

that release pollutants into the environment or use hazardous chemicals), 

ensuring that violations are properly identified and reported, and ensuring 

that timely and appropriate enforcement actions are taken against violators 

when necessary. 

Most major federal environmental statutes permit EPA to allow states 

meeting specified requirements the authority to implement key programs 

and to enforce their requirements. EPA establishes by regulation the 

requirements for state enforcement authority, such as the authority to seek 

injunctive relief1

 and civil and criminal penalties. EPA also outlines by 

policy and guidance its views as to the elements of an acceptable state 

enforcement program, such as necessary legislative authorities and the 

type and timing of the action for various violations, and tracks how well 

states comply. Environmental statutes generally provide authority for EPA 

to take appropriate enforcement action against violators in states that have 

been delegated authority for these programs when states fail to initiate 

enforcement action. The statutes also provide that EPA may withdraw 

approval of a state’s program if the program is not administered or 

enforced adequately.

EPA administers its environmental enforcement responsibilities through its 

headquarters Office of Enforcement and Compliance Assurance (OECA). 

While OECA provides overall direction on enforcement policies, and 

sometimes takes direct enforcement action, it carries out much of its 

enforcement responsibilities through its 10 regional offices. (See fig. 1.). 

These offices are responsible for taking direct enforcement action and for 

overseeing the enforcement programs of state agencies in those instances 

in which the state has been delegated such enforcement authority.

1

The authority to order a party that is violating a provision of the law to refrain from further 

violation is referred to as injunctive relief.
Chapter 1

Introduction

Page 17 GAO/RCED-00-108 Environmental Enforcement

Figure 1: EPA’s10 Regions and Regional Office Locations

Although EPA acknowledges that some variation in environmental 

enforcement is necessary to take into account local conditions and local 

concerns, core enforcement requirements must nonetheless be 

consistently implemented. EPA also maintains that to ensure fairness and 

equitable treatment, like violations in different regions of the country 

should be met with comparable enforcement responses.
Chapter 1

Introduction

Page 18 GAO/RCED-00-108 Environmental Enforcement

EPA and State Roles in 

Enforcing 

Environmental 

Programs

Most major federal environmental statutes allow EPA to delegate 

responsibility to states to administer environmental programs. One of the 

key conditions for delegating this responsibility to a state is that the state 

acquire and maintain adequate authority to enforce the federal law. For 

example, to obtain EPA approval to administer the Clean Air Act’s title V 

permitting program for major air pollution sources,2

 states must have, 

among other things, adequate authority to ensure compliance with title V 

permitting requirements and to enforce permits, including authority to 

recover civil penalties and provide appropriate criminal penalties.3

Similarly, the Clean Water Act allows EPA to approve state water pollution 

programs under the National Pollutant Discharge Elimination System if the 

state programs contain, among other things, adequate authority to issue 

permits that ensure compliance with applicable requirements of the act, 

and to abate violations, using civil and criminal penalties and other ways 

and means of enforcement.4

 For permitting programs, such as those 

authorized by the Clean Air Act and Clean Water Act, facilities either report 

periodically to the cognizant state or federal regulatory authority on 

whether they are in compliance with their permit, or are subject to periodic 

inspections that check for compliance.

EPA develops enforcement policies for these programs. The enforcement 

policies outline EPA’s traditional regulatory approach to enforcement, 

including what constitutes a violation−especially the significant violations 

that are likely to require an enforcement action. When a violation is 

discovered, the policies generally require an escalating series of 

enforcement actions, depending on the seriousness of the violation and the 

facility’s level of cooperation in correcting it. Actions might start with a 

verbal warning, or a warning letter, and escalate to administrative orders to 

change the facility’s practices. These enforcement policies also define 

timely and appropriate enforcement actions for various types of violations. 

In the most serious cases, EPA or the states can assess penalties or refer 

the case to the U.S. Department of Justice or the states’ Office of Attorney 

2

Title V requires large sources of air pollutants to obtain permits that specify the maximum 

amount of pollutants that can be released and monitoring requirements.

3

Clean Air Act § 502(b)(5)(A),(E), 42 U.S.C. § 766a(b)(5)(A),(E). 

4

Clean Water Act § 402(b)(2)(A),(7), 33 U.S.C. § 1342(b)(2)(A),(7). The National Pollutant 

Discharge Elimination System of the Clean Water Act requires major sources of discharges 

to surface water to obtain permits that control the amount of pollutants that may be 

discharged to surface water and sets monitoring requirements.
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Page 19 GAO/RCED-00-108 Environmental Enforcement

General for prosecution. The monetary penalties EPA assesses include two 

amounts: one amount based on the seriousness of the violation and the 

other amount designed to remove any financial advantage the violator 

obtained over its competitors through noncompliance. EPA may also 

pursue criminal enforcement action if the situation warrants.

Whether EPA or state personnel take the lead in taking enforcement 

actions depends on whether the state has been delegated the authority to 

administer the program. If EPA retains the program, the cognizant EPA 

regional office generally takes the lead in taking enforcement actions, often 

with support and/or guidance from EPA headquarters program offices, 

OECA, and the Office of General Counsel.

In situations in which the state has been delegated authority to administer 

the program, EPA’s enforcement polices provide guidance to the states. 

Moreover, EPA’s regions and the states work together each year to establish 

enforcement expectations and lay out their respective roles. EPA also 

provides grant funds to states to assist in the implementation of the federal 

programs and can, under certain circumstances, condition receipt of grant 

funds on compliance with EPA guidance.

EPA oversees the states’ enforcement in a variety of ways, including 

reviewing inspection reports and enforcement actions, and accompanying 

state inspectors. EPA also requires states to report information on various 

aspects of their enforcement efforts, such as the number and type of 

inspections the state has taken, the results of those inspections, and any 

enforcement actions resulting from discovered violations. EPA’s 

enforcement policy under the Clean Air Act and Clean Water Act is 

concentrated primarily on large facilities and large sources of pollution. 

States have more autonomy to determine how they will enforce the law at 

smaller sources and smaller facilities.

EPA Tries to Achieve 

Consistency in Its 

Enforcement Programs 

Nationwide

EPA has established consistent principles to define a quality enforcement 

and compliance program. State guidance, providing the framework for 

state/EPA enforcement agreements, has been in place since 1986. 

According to EPA, this state guidance, together with statute-specific 

guidance, is the blueprint for both EPA and state enforcement and 

compliance programs and serve as the basis for both authorizing and 

reviewing state programs. Additionally, EPA has established (1) 

enforcement response policies that classify types of violations, appropriate 

responses, and the timeline in which those violations must be addressed; 
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Introduction

Page 20 GAO/RCED-00-108 Environmental Enforcement

(2) penalty policies that specify the dollar amount assigned to classes of 

violations; and (3) a national model that can be used for the recovery of the 

economic benefit so that violators do not gain an economic advantage over 

law abiding competitors. EPA has also established a management system 

that includes mechanisms to (1) agree on enforcement priorities at the 

national, regional, and state levels; (2) allow EPA to determine whether 

states are adhering to national policies and principles; and (3) provide 

oversight of both regional and state enforcement of environmental laws 

throughout the nation. The management system also includes strategies 

and procedures for compliance monitoring.

OECA expects the regions to take a systematic approach to administering 

and overseeing the enforcement programs among delegated and 

nondelegated programs and, in doing so, to follow the policies and 

guidance issued for this purpose. While federal and state enforcement 

officials agree that core enforcement requirements should be generally 

implemented consistently, some variation is to be expected—and, in some 

cases, encouraged. According to EPA, for example, some variation is to be 

expected in how regions target resources to the most significant 

compliance issues in different regions and states, the level of enforcement 

activity (which should vary with the severity of the problem), and the level 

of regional oversight of state enforcement programs (with the greater 

oversight provided for weaker programs).

EPA officials use a number of methods to oversee regional and state 

enforcement programs. An important first step undertaken every 2 years 

between EPA headquarters and the regions is the Memorandum of 

Agreement, which contains the core program requirements and national 

priorities that both headquarters and the regions agree must be addressed. 

In addition to the national priorities, the agreements with each individual 

region contain region-specific priorities that are reviewed and approved by 

OECA. The regions share this agreement with their states so that all key 

parties understand the regions’ goals and commitments with headquarters. 

Senior OECA managers visit the regions during the year to review regional 

progress in meeting the agreed-upon enforcement goals and commitments 

in the memorandum and to make mid-year corrections. OECA also 

sponsors national meetings, routinely scheduled conference calls between 

headquarters and regional media program staff, and conducts periodic 

evaluations of regional enforcement programs. EPA regional enforcement 

program staff frequently communicate with state enforcement staff 

through routinely scheduled telephone conferences. In addition, a number 

of regions have implemented protocols for overseeing state performance.
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Objectives, Scope, and 

Methodology

This report examines (1) the extent to which there are variations among 

EPA’s regional offices in the action they take to enforce environmental 

requirements, (2) what factors contribute to the variations in regional 

enforcement activities, and (3) what the agency is doing to achieve greater 

consistency in regional enforcement activities.

Our review examined the extent of variation among EPA regional 

enforcement programs, focusing in particular on air and water pollution 

programs. While variation among states’ enforcement programs have been 

the subject of study by a number of organizations, we examined such 

variations only to the extent that they provide insights into the actions of, 

and variations among, EPA’s regional programs.

To respond to the first objective, we examined past studies by GAO, OECA, 

EPA’s Office of Inspector General, and other organizations to ascertain the 

elements of program implementation where issues of inconsistent regional 

performance may exist (e.g., the extent to which variations exist in the 

penalties assessed in different regions for comparable violations and 

variations in the number and type of enforcement actions taken). We also 

examined the most current available EPA data on a variety of these 

elements, much of which is in the agency’s Reporting for Enforcement and 

Compliance Assurance Priorities system. This system compiles 

information from other databases containing compliance and enforcement 

information, such as the Permit Compliance System for water programs, 

the Aerometric Information Retrieval System Facility Subsystem (AFS) for 

air programs, and the EPA civil docket. These data are summarized in EPA’s 

April 1999 Measures of Success Management Report, which was used for 

some of the information presented in chapter 2 of this report. In situations 

where we needed more detailed information, we obtained OECA’s 

assistance in extracting and interpreting the additional information from its 

databases. 

We did not perform an independent test of the data’s accuracy and 

completeness. However, we did seek information concerning their 

accuracy and completeness in our interviews with headquarters, regional, 

and state officials and by examining past studies and EPA documentation.

To supplement our interpretation of these data and to address the second 

and third objectives, we interviewed officials responsible for enforcement 

issues, and more specifically for the enforcement of air and water 

programs in three EPA regions—Chicago, Philadelphia, and Seattle. We 
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Page 22 GAO/RCED-00-108 Environmental Enforcement

selected these regions based largely on the history of enforcement 

performance (as indicated by EPA’s national databases and prior work by 

EPA’s Inspector General and us) and on a desire to assess regions in 

different geographical settings and with different environmental and 

regulatory issues. (For example, the Chicago region is more industrialized 

than most other regions, and the Seattle region includes some states that 

have and have not been delegated either air or water programs.) To obtain 

diverse state perspectives within each region on the key research questions 

for this review, we selected two states within each region for detailed study. 

These states included Maryland and West Virginia in EPA’s Philadelphia 

region; Indiana and Ohio in the Chicago region; and Idaho and Washington 

in the Seattle region. We also obtained pertinent data and other 

documentation from these officials. In some cases, we contacted officials 

in other regions and in other states to obtain additional perspectives and to 

substantiate findings from the states and regions we selected for detailed 

study. We verified statements attributed to these state officials and other 

information provided by them in our draft report.

We also contacted senior enforcement officials at EPA headquarters to 

ensure that we had current information on agency regulations, policies, and 

guidance and to obtain their perspectives and other information on our 

issues of inquiry. In addition, we contacted other groups to obtain a 

national perspective on these issues, including the Association of State and 

Interstate Water Pollution Control Administrators, the Environmental 

Council of the States, the Environmental Law Institute, the Environmental 

Working Group, the National Petrochemical and Refiners’ Association, and 

the State and Territorial Air Pollution Program Administrators.

We conducted our work from July 1999 through March 2000 in accordance 

with generally accepted government auditing standards.
Page 23 GAO/RCED-00-108 Environmental Enforcement

Chapter 2

Variations in Regional Enforcement Activities Chapte2r

Variations exist among EPA’s regional offices in the actions they take to 

enforce environmental requirements, as illustrated by a number of key 

indicators that EPA headquarters enforcement officials have used to 

monitor regional performance. These indicators include (1) the percentage 

of regulated facilities that are inspected by EPA and/or state enforcement 

staff for compliance (and the comprehensiveness of those inspections), (2) 

the number and type of enforcement actions taken, (3) the size of the 

penalties assessed and the criteria used in determining the penalties, and 

(4) the extent to which violations are referred to the Department of Justice. 

The type of variations conveyed by these data corroborate earlier findings 

detailed in a series of reports by EPA’s Office of Inspector General and by 

OECA’s own internal evaluations. We also found variations in regions’ 

overall strategies for auditing state enforcement programs to determine 

whether program requirements are being met.

OECA officials emphasize that enforcement data, by themselves, do not 

offer the appropriate context to help determine the extent to which the 

variations pose problems. Rather, the officials maintain that the data are a 

useful starting point for identifying general trends and possible strengths 

and weaknesses in regional and state programs, along with potential issues 

to investigate at greater length. 

Inspection Coverage EPA’s enforcement program depends heavily upon inspections by EPA 

regional and/or state enforcement staff as the primary means of detecting 

violations and evaluating overall facility compliance. Thus, EPA maintains 

that the quality and the content of the inspections, and the number of 

inspections conducted to ensure adequate coverage, are important 

indicators of an enforcement program’s success. Where programs are 

delegated to the states, regional offices retain oversight responsibility for 

ensuring that state inspection programs meet EPA’s criteria in terms of how 

inspections are conducted and how the results are reported.

Data in OECA’s most recent Measures of Success Management Report do, 

in fact, show that there is wide variation in inspection rates nationwide. 

The April 1999 report noted, for example, that for fiscal year 1998, regional 

and state inspection coverage for Clean Air Act-related programs ranged 

from a low of 27 percent of facilities inspected in the Chicago region to a 

high of 74 percent for facilities in the Philadelphia region. For major 

dischargers under the Clean Water Act, inspection coverage also varied 

from a low of 57 percent of facilities in the Denver region to a high of 92 

percent in the Atlanta region. The example, however, also illustrates the 
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Page 24 GAO/RCED-00-108 Environmental Enforcement

importance of getting behind the data to understand the cause of 

apparently wide disparities to understand whether they reflect a problem. 

OECA’s Deputy Assistant Administrator said that the Chicago office’s 27-

percent inspection figure could be appropriately explained by that office’s 

recent emphasis on conducting detailed investigations of the region’s 

numerous electric power plants. According to this official, such 

investigations can be extremely resource-intensive, and that the resources 

to conduct them would most likely come from the region’s budget for 

inspections.

In addition to the variation in the percentage of facilities inspected, EPA’s 

Inspector General reports in recent years have documented variations in 

the comprehensiveness of inspections. In its 1998 consolidated report on 

air enforcement audits completed in EPA’s Boston, Philadelphia, Dallas, 

and Seattle offices, the Inspector General points out that to adequately 

evaluate a facility’s compliance with the Clean Air Act, it is necessary to 

perform at least a level 2 inspection−designed at a level of sufficient detail 

as to detect violations−at major stationary sources. The report found that 

in four of the six states included in the audit, inspectors did not always 

complete the tests required for such an inspection and noted that the 

regions did not ensure that state inspectors completed the tests and 

evaluations required.

In response to the Inspector General’s report, OECA contracted to 

undertake a review of its 1991 compliance monitoring strategy for the air 

program to determine the extent that it is used and whether it needs to be 

updated. The compliance monitoring strategy contains guidance for 

regions and states for, among other things, determining sources to target 

for inspections and the appropriate level of inspection that should be 

conducted. The contractor’s July 1999 review documented considerable 

variations among the 10 regions in their approach toward the compliance 

monitoring strategy. Specifically, the review noted that only five regions 

implement major components of the strategy. The other five regions 

reported that they do not implement the strategy and engage in only 

minimal inspection planning and oversight with their states. According to 

the study, almost all regions agreed that compliance monitoring requires 

some guiding method or strategy, but many were resistant to any guidance 

that was highly prescriptive and imposed new requirements on the states.
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Page 25 GAO/RCED-00-108 Environmental Enforcement

Number and Type of 

Enforcement Actions

While EPA recognizes that differences may exist in the choices that regions 

and states make in selecting enforcement actions, agency officials maintain 

that enforcement responses selected should be directly related to the 

severity of the violation and that like violations should generally be met 

with comparable penalties. As discussed later, EPA data show that the 

number and type of formal enforcement actions have varied considerably 

from one regional office to another.

Administrative Versus 

Judicial Remedies

Where a facility fails to achieve compliance within a specified period of 

time and/or fails to respond to an informal action such as a notice of 

violation, EPA and approved states may proceed with a formal 

enforcement action. A formal enforcement action requires compliance, lays 

out a specific timetable for completing certain items, contains 

consequences for not doing so, and subjects a person or facility to adverse 

legal consequences for noncompliance. Such actions may be imposed 

either administratively by the region or state enforcing agency, or judicially 

by the courts. 

Administrative actions can generally be processed more quickly and easily 

than can civil judicial actions. In choosing an administrative action, the 

region or state issues an administrative compliance order requiring the 

facility to return to compliance within a certain time frame and/or an 

administrative penalty order, which assesses a certain dollar amount.

Civil judicial actions tend to be more complex and resource-intensive than 

administrative actions. At the federal level, such actions are generally 

initiated by regional offices and then referred to the Justice Department. 

Justice, in turn, generally files a formal lawsuit in U.S. federal court. This 

course of action is generally used for cases that may set a precedent, 

involve serious environmental harm, or where a violator is deemed likely to 

be uncooperative. For state-delegated agencies, such judicial remedies are 

sought through the state’s Office of the Attorney General. Judicial actions 

generally result in penalties and court orders requiring correction of the 

violation, along with specific actions to prevent future violations, and tend 

to be taken more seriously by the regulated community. 

Variation in the Number and 

Type of Actions Taken

Simply presenting the absolute numbers of enforcement actions across 

regional offices does not take into account important factors, such as the 

varying size of different regions and the enforcement resources available to 
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Page 26 GAO/RCED-00-108 Environmental Enforcement

them. Accordingly, the agency has accounted for these factors by 

comparing the number of actions to the size of the enforcement staff in 

each region. Thus, for example, OECA’s Measures of Success Management 

report observes that the Chicago office made considerably more civil 

referrals to Justice for judicial action—as a function of its available 

enforcement resources−than did other regions. Similarly, the report’s data 

show that the Philadelphia office obtained the greatest percentage of civil 

judicial penalties in comparison to its allocation of resources. On the other 

hand, citing corresponding data from the previous year, OECA’s evaluation 

of the Seattle office’s performance observed that the region was less 

“productive” when comparing its enforcement activity to its allocation of 

resources. The study noted specifically that while the region was allocated 

6.5 percent of the national enforcement resources, its percentage of output 

of civil judicial referrals was only 4.5 percent, and its issuance of 

administrative penalty orders was only 4.3 percent of the national total.

OECA notes that the complexity of a region’s enforcement actions may 

affect its relative productivity as compared with other regions. In its 1998 

evaluation of the Chicago office, OECA reported that while the air, water, 

and waste programs historically produced lower outputs of administrative 

penalty orders relative to their enforcement resources, these numbers 

needed to be considered in light of the office’s higher outputs of more 

resource-intensive judicial referrals by each of these programs. For 

example, in fiscal year 1997 the Chicago air program with 24 percent of all 

regions’ air resources produced about 30 percent of all regions’ judicial 

referrals. The Chicago water and waste programs in fiscal year 1997 also 

outpaced their enforcement resources in producing judicial referrals.

The impact on productivity of a region’s reliance on more complex actions 

was reinforced by OECA water enforcement officials, who provided 

comparative information among the regions concerning their enforcement 

of the National Pollutant Discharge Elimination System under the Clean 

Water Act.1

 The officials noted that the Chicago office emphasizes civil 

judicial actions and currently has a large docket of open judicial cases. 

They noted that the region’s choice of these more complex, resourceintensive actions could help to explain the lower numbers in other aspects 

of its enforcement program (e.g., lower inspection coverage previously 

discussed). The officials also cited other regions in which high numbers of 

1

 The National Pollutant Discharge Elimination System is the primary regulatory program 

governing the discharge of pollutants by facilities into U.S. waters.
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administrative orders may also reflect an inventory of cases that are more 

straightforward, or in which the region chooses lower-level actions and 

does not escalate them when compliance is not achieved.

The EPA Inspector General’s 1997 consolidated audit report for Chicago, 

Dallas, and San Francisco regional air enforcement programs also 

considered the productivity of the three regions in its review of regional 

actions and similarly found variation. The report found that with 

approximately 50 percent of the resources among the three regions 

studied, the Chicago office completed approximately 50 percent of the 

actions. However, with 24 percent of the regions’ resources, the Dallas 

office was responsible for 3 percent of the actions completed, and with 22 

percent of the regions’ resources, the San Francisco office completed 42 

percent of the actions. The report noted that the Chicago office had more 

staff and thus it was reasonable that they could complete more actions. 

However, the Dallas and San Francisco offices had similar resource levels 

but widely different numbers of enforcement actions completed. The 

report suggested that the variation and the disparity between the Dallas 

and San Francisco offices may be due to factors other than resources (such 

as the region’s attitude toward enforcement, the type of industry in each 

region, among other factors), but did not evaluate the impact of these 

factors.

Variations in Penalties 

Assessed 

Penalties play a key role in environmental enforcement by deterring 

potential violators and by ensuring that members of the regulated 

community cannot gain a competitive advantage by violating 

environmental regulations. EPA’s penalty policy provides that all penalties 

should include two components. The first is an “economic benefit” 

component that reflects the benefit achieved by avoiding compliance. The 

economic benefit component is considered important to “level the playing 

field” among companies within an industry and eliminates any economic 

advantage violators gain through delayed or avoided compliance costs. The 

second component is called a “gravity-based component,” which reflects 

the seriousness of the violation, the actual or possible harm it causes, and 

the size of the violator. 

EPA’s penalty policies provide that, at a minimum, a penalty should remove 

any significant economic benefit resulting from noncompliance but allows 

negotiators more flexibility in assessing the gravity component. For 

example, EPA’s small business and self-policing policies allow mitigation or 

the elimination of the gravity portion of a civil penalty for qualifying 
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Page 28 GAO/RCED-00-108 Environmental Enforcement

companies. Recognizing that it may not always be feasible to recoup the 

full amount of the economic benefit of noncompliance plus some amount 

based on the gravity of the violation, the agency’s policy allows for 

mitigating or adjusting the penalty to a lesser amount. Such a decision may 

be reached in cases where the violator demonstrates an inability to pay the 

full penalty or where the risks and costs to litigate a case justify a smaller 

amount. The policy requires documentation of the amount of the economic 

benefit and any decision to lessen a penalty.

Fiscal year 1998 data published in OECA’s Measures of Success 

Management Report show that the number and size of administrative 

penalties assessed by regional offices varied. The data show, for example, 

that the Philadelphia office assessed $422,000 in Clean Air Act 

administrative penalties for 22 cases during fiscal year 1998, and the 

Chicago office assessed over $1 million for 27 cases. On the other hand, the 

Seattle office assessed $10,000 for one case. The disparity was less 

pronounced for the regions’ Clean Water Act programs: the Philadelphia 

office assessed $523,000 in administrative penalties for 23 cases during 

fiscal year 1998, the Chicago office assessed over $1 million for 39 cases, 

and the Seattle office assessed $441,000 for 25 cases. 

The Inspector General’s 1997 consolidated report for the air enforcement 

program in Chicago, Dallas, and San Francisco offices similarly found that 

over an 18-month period, the regions varied in both the number of 

administrative actions completed and penalties assessed. Specifically, the 

Chicago office completed 33 actions and assessed more than $6 million in 

penalties; the San Francisco office completed 25 actions and assessed 

about $3.5 million in penalties; and the Dallas office completed 2 actions 

and assessed penalties of just over $100,000. 

The Inspector General also found that penalties assessed varied 

significantly among the states in the three regions and that the regions 

could do more to address the variations. The primary factor appeared to be 

that the state penalty assessments did not always consider or assess the 

economic benefit of noncompliance. The 1997 report recommended, 

among other things, that the regions (1) hold discussions about recovering 

economic benefit with the states when negotiating various EPA-state 

agreements and (2) assist states in calculating economic benefit and in 

securing state legal authority where necessary. At an EPA/State 

Enforcement Forum in February of 2000, EPA discussed the importance of 

recovering economic benefit and followed up with a letter to state 
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Page 29 GAO/RCED-00-108 Environmental Enforcement

commissioners in March of 2000 that included a fact sheet and sources for 

training and help in recovering and calculating economic benefit.

On average, civil judicial actions result in significantly higher penalties than 

do administrative actions. For example, according to fiscal year 1998 data 

in OECA’s Measures of Success Management Report, the average civil 

judicial penalty for Clean Air Act programs was about $603,453 compared 

with the average administrative penalty of $17,656. Some regions, however, 

obtained a significantly higher percentage of their overall penalties through 

civil judicial versus administrative action. The Dallas office, for example, 

obtained 62 percent of its penalties ($1.46 million) through civil judicial 

action. On the other hand, the Chicago office obtained over 87 percent of 

its penalties ($7.22 million) through civil judicial action.

Referrals of Violations 

to the Department of 

Justice

Regions refer to the Department of Justice larger, more complex cases 

involving violators of environmental laws, as well as cases they believe may 

set a precedent. The Department then brings these cases to U.S. federal 

court. Settlement of cases and agreements reached between the agency 

and responsible parties are formalized in a court-approved consent decree. 

Consent decrees for civil judicial cases generally will contain provisions for 

penalties, requirements for correction of the violations, and specific 

actions to prevent future violations. 

OECA also maintains that it is important to track the status of all active 

consent decrees to ensure that such agreements are carried out. 

Accordingly, each region is required to maintain a database of consent 

decree milestones and, to determine the defendants’ current compliance 

with the decree. 

OECA data show variation in both (1) the extent that violations of consent 

decrees are referred to Justice among regions and (2) the extent to which 

the regions track the status of compliance with the consent decrees. 

Regarding the extent of referrals, OECA’s Measures of Success 

Management Report concluded that, “There continues to be a wide 

disparity among the regions in terms of how frequently they refer violations 

of consent decrees to the Department of Justice.” The report shows that 

from fiscal years 1990 through 1998, the New York and Chicago offices 

referred about 60 and 40 consent decree violations, respectively, to Justice; 

the Boston and Philadelphia offices each referred between 10 and 20 

consent decree violations; and the Atlanta, Kansas City, San Francisco, and 

Seattle offices each referred less than 10 consent decree violations. The 
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Page 30 GAO/RCED-00-108 Environmental Enforcement

data indicate that the Dallas and Denver offices did not refer any violations 

of consent decrees to Justice over the same 9-year period.

Tracking and reporting on the status of consent decree implementation 

also varied widely, based on data submitted by the regions to EPA 

headquarters by the end of fiscal year 1998. The Dallas, Kansas City, San 

Francisco, and Seattle offices did not report or did not know the status of 

any of their active cases. On the other hand, the Atlanta, Chicago, and 

Philadelphia offices reported that they had tracked 97 percent of their 

cases. 

Regions’ Approaches 

to Enforcement 

Oversight 

EPA Inspector General audit reports and OECA regional evaluations, 

issued since the mid-1990s, found that regional oversight of state delegated 

programs had been reduced or varied considerably from program to 

program. The Inspector General and OECA reports criticized the regions 

for inadequate oversight of state programs. Among other things, the reports 

cited the regions for not conducting an adequate number of oversight 

inspections; not sufficiently encouraging that economic benefit be 

considered in calculating penalties; not taking more direct federal actions 

where states were slow to act; and not requiring states report all significant 

violations. Regional officials acknowledged that at least to some extent, the 

criticisms were valid. Seattle officials, for example, explained that there 

had been a downturn in oversight activities in their region for some time 

prior to the Inspector General reports. They noted that decisions were 

made to conduct less oversight because (1) their own resources were 

inadequate to continue all their oversight activities and (2) their 

agreements with states to build more cooperative partnerships warranted 

less intense and detailed review.

In recent years, a number of regions have begun to develop and implement 

state audit protocols in response to these criticisms. The regions also noted 

that having such a protocol—which lays out the type of oversight 

inspections that will be conducted and the specific program elements that 

will be examined—could help them to review the state programs within 

their jurisdiction with greater consistency. In most cases, the protocols 

were developed with the support and participation of the states within each 

region and exhibit a number of key differences from one region to another.

The Boston region’s protocol is particularly unique in that the region has 

adopted an approach in which it simultaneously examines a state’s entire 

array of delegated air, water, and waste programs. Given the resource-
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Page 31 GAO/RCED-00-108 Environmental Enforcement

intensive nature of the audit, the region is only able to examine one state 

every year and a half. Regional enforcement officials commented that this 

approach provides both the region and the states with a holistic view of 

their enforcement efforts. The officials also pointed to one particular case 

in which they were able to make the head of the state’s environmental 

agency aware that the waste management division took a considerably 

more stringent approach to enforcement than the water division. The 

officials said the state commissioner took steps to resolve the differences 

so that the enforcement programs were more consistent. Regional officials 

said that absent the multimedia audit, such a finding would not have been 

so readily apparent to them.

Philadelphia regional enforcement officials, however, told us that the 

Boston office’s multimedia audit would not likely be acceptable to states in 

their region. They explained that in contrast to the Boston office, which has 

a centralized organizational structure with a multimedia focus, the 

Philadelphia office focuses its efforts on individual environmental 

programs. Accordingly, officials in Philadelphia’s regional air protection 

division developed an audit protocol, in concert with states in the region, to 

aid the region in its oversight and evaluation of the effectiveness of statedelegated air enforcement programs. The audits are to be conducted by 

Philadelphia air enforcement staff along with state enforcement staff. The 

Deputy Director of West Virginia’s Division of Environmental Protection 

said that the agency not only participated in the development of the 

Philadelphia air enforcement protocol, but volunteered its air enforcement 

program to undergo one of the first audits believing that the audit could 

help identify strengths and weaknesses in the program. West Virginia 

officials are currently awaiting the results. 

The Seattle office jointly developed a set of Compliance Assurance 

Program Evaluation Principles that the region and states agree define the 

elements of a successful compliance assurance program and constitute a 

broad framework for evaluating programs delegated to the states. For 

example, the principles identify what environmental results are to be 

achieved and how they will be measured; what kinds of facilities will be 

targeted for inspection; and what process is to be used by the region and its 

states to resolve disputes. In addition, regional enforcement officials 

negotiate separate Compliance Assurance Agreements with their states for 

each delegated program outlining in more detail responsibilities for 

conducting certain functions, including regional oversight. The region 

undertook evaluations based on the Compliance Assurance Program 

Evaluation Principles of various media programs in two of the region’s 
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delegated states. The first state reviews were focused reviews in Oregon, 

where the region focused on compliance assurance programs for separate 

environmental media. Subsequently, a contextual review was conducted of 

the Washington State air program. This review was broader in scope and 

addressed the full range of the state air program activities, including the 

compliance assurance component. 

OECA’s 1998 evaluation of the Seattle office’s performance, however, raised 

concerns that the principles may conflict with agency policy and limit EPA’s 

oversight authority to certain areas. Also, OECA noted that it is not clear 

whether certain provisions in the principles document limit EPA’s ability to 

(1) take issue with a state’s policy-level decision not to seek economic 

benefit or (2) review a state’s decision concerning allocations of resources 

that affects the implementation of the state enforcement program. 

Therefore, OECA recommended that the Seattle office ensure that the 

states understand that EPA retains the latitude to take the enforcement 

lead in instances described in its guidance and to take the lead in any case 

in which the agency determines that there are issues of national 

significance or precedence that require federal action.

Officials from EPA’s Chicago office had mixed opinions as to whether an 

established audit protocol would improve their oversight of their states. 

Chicago’s water enforcement branch chief and the region’s enforcement 

coordinator said that they would consider developing a protocol for their 

respective programs, although they do not have one underway at this time. 

The region’s air enforcement and compliance assurance branch chief, 

however, said that he did not believe an audit protocol would be 

particularly useful, noting instead that he prefers regional staff to engage in 

joint inspections with states to assess their performance and to take direct 

federal action where a state action is inadequate.

State and EPA 

Perspectives on the 

Extent of Regional 

Variation 

To supplement the information from EPA’s databases and recent studies, 

we interviewed officials from the states and EPA regional offices and 

headquarters on their perceptions as to whether variation exists in key 

components of the enforcement program and whether such variations are 

problematic. Regional officials generally indicated that it was difficult for 

them to assess whether variations are problematic, given their limited 

vantage point. Some noted in particular that while they were aware of 

various cases and reports of alleged inconsistency among regions through 

exchanges at national meetings and through publications, they do not have 

sufficient information for an informed opinion. They added that without 
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more detailed information and a better grasp of the national data, they are 

hesitant to suggest that variation or differences among regions are either 

extreme or harmful. The state officials we interviewed essentially agreed, 

frequently noting that they were mainly concerned that their EPA regional 

office apply consistent treatment to all states within the region. 

EPA headquarters officials’ expressed substantially more definitive views 

on these issues, perhaps because their vantage point provides them with a 

broader overview of the national program. The EPA officials we 

interviewed noted that variation is fairly commonplace and that it does in 

fact pose a problem. They expressed the concern that in reacting to similar 

violations, enforcement responses in certain regions are weaker than they 

are in other regions. The director of OECA’s water enforcement division 

noted in particular that the lack of consistency in regional enforcement of 

water programs has worsened over the years. 

The director of OECA’s air enforcement division said that given the 

considerable autonomy regional offices possess, it is not surprising that 

there is substantial variability in how they approach enforcement and state 

oversight. He illustrated the point with the inspection program. Specifically, 

he said that because the air program does not have continuous monitoring, 

facilities found in compliance some years ago may fall into noncompliance 

without being detected unless they are periodically retested. Therefore, he 

said a good indicator of variation is the number and quality of inspections 

that a region or state conducts because this tells him whether a region 

knows what its states are doing and whether it “has the will to press the 

issue.” He said that based on the numbers of inspections, as well as the 

number of permits written in relation to the number of sources, there is 

clearly disparity among both regions and states.

Agency Comments In commenting on the draft report, EPA said it shared our view on the 

importance of consistency of regional enforcement, but raised a number of 

issues concerning our discussion of that issue in this chapter. First, the 

agency said that the draft report was not clear in the scope of consistency 

being evaluated, particularly whether we were evaluating the consistency 

in enforcement activity between federal and state activities or among EPA 

regions themselves. The draft report had stated that, as requested, our 

evaluation focused on “the extent to which there are variations among 

EPA’s regional offices in enforcing environmental requirements.” Our 

“Objectives, Scope, and Methodology” section further clarified that while 

variation among states’ enforcement programs has also been the subject of 
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study by various organizations, “we examined such variations only to the 

extent that they provide insights into the actions of, and variations among, 

EPA’s regional programs.” This approach is consistent with the approach 

OECA used in past evaluations of regional office enforcement programs. 

For example, its 1998 evaluation of the Seattle office’s enforcement 

program noted that its review “... includes data and a review of state 

performance only to the extent necessary to evaluate the region’s 

performance in overseeing state compliance and enforcement activity.”

Second, EPA said that the draft report did not provide parameters defining 

what was meant by “consistency,” or discuss where variations might be 

acceptable. At the outset of our review, we worked with EPA headquarters 

enforcement staff to identify the criteria or areas where EPA would expect 

to see consistency among regions in conducting enforcement programs and 

overseeing state-delegated programs. The former Director of OECA’s Office 

of Planning and Policy Analysis identified several elements that should be 

“consistent or largely consistent.” These elements included such issues as 

whether inspections consistently detect noncompliance; the selection of 

enforcement response; the manner in which enforcement data are entered 

into databases and used for performance measurement; and whether 

comparable penalties are imposed for like offenses. During our fieldwork, 

we discussed these elements with EPA regional and state officials, who 

generally concurred that these elements should be largely consistent from 

region to region. 

EPA’s comment that the draft report did not discuss where variations might 

be acceptable is incorrect. For example, the draft report noted EPA’s 

position that some variation was to be expected in how regions target 

resources to the most significant compliance issues, and in the level of 

regional oversight of state enforcement programs (with the greater 

oversight provided for weaker programs). The draft report also 

acknowledged that there were circumstances under which variation may 

represent a problem, but that there are also circumstances in which 

variation “represents the appropriate exercise of flexibility by regions and 

states to apply national program goals to their unique circumstances.”

Third, EPA noted that our draft report did not identify any inconsistent 

enforcement results or present evidence that unequal treatment of similarly 

situated violators is occurring. We met with EPA officials on several 

occasions to explore the possibilities of identifying similar violations in 

different regions to allow for such cross-regional comparisons. EPA staff 

pointed out that such an approach would require detailed follow-up work 
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for each violation to determine the specific circumstances in each case. 

They also acknowledged that regardless of the follow-up work conducted, 

questions could still be raised as to whether the selected violations were 

truly comparable. Consequently, we focused our review on the elements of 

EPA’s enforcement program that are most likely to determine whether 

consistent treatment of violators is likely to occur.

Fourth, EPA said that the draft report implied that, in a number of areas of 

program management, variation was inappropriate and was a widespread 

problem. We disagree. We believe we took a cautious approach in 

characterizing both the extent and appropriateness of variation. For 

example, the draft report acknowledged EPA’s position that “some 

variation is to be expected—and, in some cases, encouraged.” It also stated 

that variation in some cases may represent “...the appropriate exercise of 

flexibility by regions and states to apply national program goals to their 

unique circumstances.” Indeed, the only instance in which the report 

documented a view of a serious and persistent problem was in noting the 

observation expressed by some senior OECA managers that variation in 

regional approaches to enforcement was fairly commonplace and that it 

did pose problems.

Fifth, EPA emphasized that it has principles and management mechanisms 

that ensure national consistency among its regional enforcement programs. 

The draft report had discussed these principles and mechanisms but was 

revised to include a fuller description of them in response to EPA’s 

comment. Importantly, however, consistent principles and management 

systems, by themselves, cannot “ensure” consistency. As documented in 

this report, and by past reports of both OECA and EPA’s Inspector General, 

the key is implementation: the mere existence of enforcement principles 

and management systems does not ensure they will be followed. 

Last, EPA said the draft report did not sufficiently acknowledge that 

specific data on such measures as “penalty amounts” must be analyzed in 

conjunction with other facts and circumstances. We agree that specific 

data on such measures are not useful indicators of variation unless 

analyzed in conjunction with other facts and circumstances, and had made 

that point in the draft report. For example, the draft report’s executive 

summary cited the concerns of OECA officials that “the data, by 

themselves, do not offer the appropriate context to help determine the 

extent to which the variations pose problems.” The draft report also 

highlighted “the importance of getting behind the data to understand the 

cause of apparently wide disparities to understand whether they reflect a 
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problem.” Indeed, as discussed in chapter 4, our concern with EPA’s current 

approach regarding its planned use of Program Status Reports, which will 

present region-by-region information on enforcement practices, is that it 

makes no provision for the “facts and circumstances” and other contextual 

information needed to interpret regional variation.
Page 37 GAO/RCED-00-108 Environmental Enforcement

Chapter 3

Key Factors Contributing to Variations in 

Regional Enforcement Activities Chapte3r

EPA’s data and recent analyses by OECA and EPA’s Inspector General show 

variation in the quantity and quality of inspections, the number and type of 

enforcement actions, and other key elements of the agency’s enforcement 

program. However, the data themselves do little to explain the causes of 

the variation. Without such causal information, it is difficult to determine 

the extent to which variation represents a problem, whether it is 

preventable, or the extent to which it represents the appropriate exercise 

of flexibility by regions and states to apply national program goals to their 

unique circumstances. Accordingly, in our visits to regional offices and 

states and in our discussions with headquarters officials, we sought to 

identify the factors that may be contributing to the variations.

Overall, we found broad agreement among EPA and state enforcement 

officials on the factors that contribute to variations in regional enforcement 

activities. Among those factors commonly cited were (1) differences in the 

approaches among enforcement staff about the best way to achieve 

compliance with environmental regulations, (2) differences in state laws 

and enforcement authorities and the manner in which regions respond to 

these differences, (3) variations in resources available to both state and 

regional enforcement offices, (4) the flexibility afforded by EPA policies 

and guidance that allow states a degree of latitude in their enforcement 

programs, and (5) incomplete and inadequate enforcement data that 

hamper OECA’s ability to detect variation. 

Differences in Regions’ 

and States’ 

Enforcement 

Approaches

While OECA has issued policies, memorandums, and other documents to 

guide regions in their approach to enforcement, the considerable autonomy 

built into EPA’s decentralized, multilevel structure allows regional offices 

considerable latitude in adapting headquarters direction in a manner that 

they believe best suits their jurisdiction. The majority of regional and 

headquarters officials cited differences in approaches to enforcement 

among regional staff as accounting for a major share of the variation that 

exists among regions’ enforcement programs.

Such differences also exist among state enforcement authorities—perhaps 

even more so, given their dual accountability to their governors’ offices as 

well as to EPA. While our review focused on variations in enforcement 

practices among regions, the wide variation in approaches among states 

poses additional complications for the regions that oversee them. How the 

regions respond to widely differing state enforcement approaches offers 

yet additional ways in which regions may exhibit variation in the exercise 

of their enforcement responsibilities.
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Differences Among Regions’ 

Enforcement Approaches

Differences at the regional level often reflect alternative views on the 

extent to which traditional enforcement measures should be relied upon to 

deter noncompliance and to bring violators into compliance, with some 

regional staff preferring a greater reliance on alternative strategies such as 

compliance assistance (e.g., workshops, site visits to identify potential 

compliance problems) to a more traditional reliance on taking enforcement 

action. EPA’s Chicago office, for example, has long held a reputation for 

having an aggressive enforcement program in which the region would act 

quickly and forcefully if it determined that the state was not performing its 

responsibilities adequately. A Chicago office official told us that the region 

believes that it is important to maintain an “enforcement presence” in 

states as a deterrent to the regulated community, in contrast to other 

regions that believe having to take an enforcement action is a sign of 

failure. 

Other variations reflect differences over whether deterrence could be 

achieved best through a small number of high profile, resource-intensive 

cases or a larger number of smaller cases that establishes a more 

widespread, albeit lower-profile enforcement presence. According to a 

number of EPA officials we interviewed, these alternative approaches help 

to explain some of the discrepancies between regions in the numbers of 

enforcement actions they take. For example, a Boston office official told us 

that the region tends to focus on a small number of large, high-profile 

penalty cases while other regions tend to focus on a large number of small 

penalty cases. Similarly, EPA’s enforcement data for fiscal years 1996 

through 1998 indicate that the Chicago office led regions in pursuing 

judicial actions while the Dallas office led in taking administrative penalty 

actions. 

Regions’ Responses to 

Varying State Approaches 

State enforcement authorities also exhibit differences in their approaches 

to enforcement. The variations derived from states’ enforcement 

approaches can lead not only to differential treatment of violators from one 

state to another but can also pose a complicated landscape for regional 

overseers. In cases where states do not take sufficiently strong action, each 

region decides how far to let states go before it intervenes.

An enforcement official in the Chicago office told us that each of the states 

in the region has a different enforcement philosophy in dealing with 

violators. He said states range from those who strive to identify violators 

and take strong deterrent actions, to those who view themselves as 

partners with industry and, therefore, adopt a more cooperative approach. 
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The official said that such philosophical differences among their states play 

a significant role in determining the level of oversight the region exerts 

over each state’s enforcement program.

In contrast, EPA’s Inspector General’s 1998 analysis of Idaho’s Air 

Enforcement Program showed a different regional approach to identified 

weaknesses in a state’s environmental program. Specifically, the report 

found that the state often did not take appropriate enforcement actions, did 

not assess sufficient penalties, and did not inspect facilities in accordance 

with EPA guidance. The report concluded that the main reason for these 

deficiencies was the state’s policy of focusing on compliance assistance 

rather than enforcement to bring sources back into compliance. When 

compliance assistance efforts did not achieve their intended results, the 

state failed to pursue enforcement actions against violators. The Inspector 

General faulted the Seattle office for entering into an agreement with the 

state that did not require them to follow EPA’s enforcement guidance. 

OECA acknowledged the particular challenge posed by varying state 

approaches in its formal response to EPA’s Inspector General’s 1997 

Consolidated Review of the Air Enforcement Compliance Assistance 

Programs. OECA noted that EPA’s enforcement partnership with the states 

is complicated by the fact that some states “...do not place enough 

emphasis on deterrence of noncompliance through strong enforcement 

programs...” and that this “...reflects differences in philosophy that cannot 

be addressed solely through more effective oversight or better technical 

assistance to states.”

Variations in State 

Laws and Enforcement 

Authorities

Differences in state laws, and in the enforcement authority granted to 

environmental agencies by state legislatures, can significantly impact the 

operational aspects of state environmental programs. Nearly all regional 

and state enforcement officials interviewed agreed that differences in state 

laws and enforcement authorities contribute to variations in enforcement 

programs. Among the most commonly cited variations were in states’ 

authority to (1) resolve compliance problems through administrative action 

rather than relying solely on civil judicial action and (2) recover the 

economic benefit a violator may have gained through noncompliance.

Enforcement officials in EPA’s Chicago office noted that whether a state 

has administrative authority to resolve compliance problems can be a 

significant factor contributing to variations. If delegated agencies can 

pursue violations administratively, they can avoid lengthy delays associated 
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with going through judicial channels to assess penalties. As noted in EPA’s 

1997 Inspector General’s Consolidated Review of Air Enforcement and 

Compliance Assistance Programs, having such administrative authority is 

particularly important to delegated agencies that do not have strong legal 

support from their state’s Attorney General’s office. The Inspector General 

reported that limited legal support from Attorney General’s offices in 

California, Illinois, Indiana, and Wisconsin, combined in some cases with a 

lack of administrative order authority, contributed to lengthy delays in 

resolving enforcement cases, and in some cases, a reluctance to refer cases 

to legal authorities because of the delays.

In those states without administrative order authority to assess penalties, 

the region’s role becomes more important. West Virginia officials, for 

example, noted that while they have the administrative authority to order 

violators to correct violations, they do not have the administrative 

authority to assess penalties. Nevertheless, West Virginia officials said they 

have been successful in negotiating “consent settlements” with violators in 

lieu of penalties in large part because the Philadelphia office is viewed by 

the regulated community as a credible enforcement threat if the state’s 

negotiations fail. 

Another key difference among state enforcement authorities is the extent 

to which they provide for the recovery of the economic benefit of 

violations. EPA policies for determining appropriate penalties provides that 

consideration be given to a number of factors, one of which is the recovery 

of any economic benefits gained by the violator as a result of not complying 

with environmental requirements.1

 While some states’ penalty policies 

provide for recovery of economic benefits in accordance with EPA 

guidelines, other states’ policies do not. Among the six states included in 

our review, four states either have, or are in process of developing, written 

penalty policies that include economic benefit recovery provisions. 

Enforcement officials in West Virginia, a state that does not have a written 

penalty policy, said that they consider economic benefit recovery in their 

penalty calculations, but do not follow the specific EPA calculation 

procedures because they believe the calculation procedures result in 

excessively high penalties. Maryland officials said that their state statutes 

1

 Past reports by both GAO and the EPA’s Inspector General have concluded that repeated 

violations have occurred in the absence of adequate penalties that at least recover the 

economic benefits of noncompliance. See, for example, Environmental Enforcement: 

Penalties may Not Recover Economic Benefits Gained by Violators (GAO/RCED-91-166, 

June 17, 1991).
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do not require nor list the use of economic benefit as a determining factor 

in calculating or recovering penalties. Thus, Maryland’s penalty policy does 

not mention economic benefit. Officials stated, however, that in assessing 

penalties they do consider the broad concept of economic benefit but they 

do not believe they are compelled to use or follow EPA’s guidance in their 

penalty calculations.

Senior OECA officials acknowledge that variations in states’ enforcement 

authorities have contributed to wide variation in states’ enforcement 

capabilities and have noted that their past efforts to address the disparity 

have been difficult. They noted, for example, that several years ago they 

proposed requiring economic benefit as a requirement for the delegation of 

a program under the Resource Conservation and Recovery Act but that it 

was dropped in the midst of considerable state resistance. They further 

noted that if economic benefit were required and a state did not adopt the 

provision, EPA would be faced with a decision whether to take back 

delegation from the state altogether. Furthermore, if a state did not recover 

economic benefits in all cases, EPA would be faced with the decision 

whether to “overfile” the state’s action with its own enforcement action. 

Either alternative could be extremely controversial.

Variations in Resource 

Commitments to 

Enforcement

Senior OECA officials point out that resource shortages at both the federal 

and state level have been amplified in recent years by the expansion of the 

universe of facilities inspected which could be subject to potential 

enforcement action. As examples, they cited increased emphasis on new 

requirements that municipalities address problems associated with 

combined sewer overflows2

 and new discharge requirements facing animal 

feeding operations. In this resource-constrained environment, a majority of 

the enforcement officials we interviewed in EPA regions and states agreed 

that differences in resource allocations can contribute significantly to 

variations in regional enforcement activities. In such an environment, 

regions and states must make choices about where to focus their attention. 

Where state agencies are particularly understaffed, EPA regional staff 

sometimes help the states carry out their enforcement responsibilities. 

2

 Combined sewer overflows affect municipalities whose storm water and wastewater sewer 

systems are combined. During large rainstorms, the surge in water volume can cause the 

system to overflow, resulting in untreated sewage flowing directly into a body of water.
Chapter 3

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Enforcement officials in EPA’s Seattle office told us that civil judicial cases 

have been particularly taxing on resources of some of their states. As a 

result, some states have been very selective about which cases they decide 

to pursue with legal action. According to the EPA officials, these states 

sometimes settle for less of a penalty than they believe is warranted to 

avoid litigation that would otherwise consume considerable resources. As 

long as environmental compliance is achieved, some states in the region 

generally view compliance assistance and working with violators as a 

cheaper way to achieve the environmental results. To ease the burden on 

states with particular resource limitations, Seattle regional staff are 

engaging in “work sharing” to take some of the load off the states. Work 

sharing is also practiced among some states’ agencies as a means of 

reducing the impact of resource limitations. The Idaho Department of 

Agriculture, for example, incorporates environmental inspection objectives 

into their annual inspections of dairy farms subject to the Clean Water Act 

requirements, relieving the state environmental agency of this inspection 

responsibility.

Among the regions we visited, EPA’s Philadelphia office was most direct in 

pointing to resource constraints as affecting their basic enforcement 

responsibilities. Regional enforcement officials noted, for example, that a 

lack of travel funds in fiscal year 1999 hampered both training and 

inspections. Additionally, the director of the water protection division in 

this region said that he has about 10 vacancies on his enforcement staff that 

he is unable to fill.

Senior OECA officials acknowledged that while they try to allocate 

resources fairly and efficiently among the 10 regions, regional management 

sometimes exercises discretion in assigning enforcement staff to what they 

view as higher responsibilities. The officials note that in some cases, such 

decisions reflect an appropriate exercise of management discretion, but 

that in some instances, they have found it necessary to ask the region to 

alter its decision to ensure that minimum program requirements are met.

Flexibility in EPA 

Policies and Guidance

Inspector General reports during the past decade have documented 

confusion among both EPA regional and state enforcement officials as to 

the extent regions and states are permitted to vary from EPA policies and 

guidance. Most notably, in a series of air program audits during this period, 

EPA’s Inspector General found a widespread failure among states to report 

all significant violators to EPA. This situation was attributed, in part, to 

regional and state confusion over the air program’s significant violator 
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guidance and the extensive flexibility it contained. To remedy this 

situation, EPA and states jointly developed a new “High Priority Violations” 

policy to replace the old guidance. 

Even where EPA’s enforcement policies and guidance are clear, they often 

provide latitude that is wide enough for state and regional enforcement 

actions to differ substantially and yet still abide by the policy or guidance. 

EPA’s penalty response policies, for example, provide for a range of 

appropriate responses for given scenarios. Depending on the situation, 

appropriate responses could include warning letters for minor violations, 

or civil or criminal remedies and sanctions for more serious violations. 

Civil remedies and sanctions may be imposed either administratively by the 

enforcing agency or by the courts. The Director, Office of Enforcement, 

Compliance and Environmental Justice in the Philadelphia office noted 

that the latitude provided by EPA’s penalty calculation policies helps to 

explain why different states can calculate different penalties for essentially 

the same or very similar violations. She said that while penalty calculations 

are subjective and can never be done identically in different states, it is 

nonetheless important that penalties are calculated in a comparable 

manner, and that extremes are avoided.

EPA’s policies for assessing penalties takes into consideration such factors 

as severity of the violation, litigation considerations, and the economic 

benefit of noncompliance. These factors are largely subjective, and the 

values assigned to each factor can vary widely. Consequently, it is unlikely 

that any two enforcement professionals could look at the same violation, 

consider the same calculation factors, and come up with precisely the same 

penalty amount. EPA officials noted, however, that one could reasonably 

expect that the calculated penalties would be in the same broad range.

Incomplete and 

Inaccurate 

Enforcement Data

OECA needs accurate and complete data as a key tool to assess whether 

minimum program requirements are being met by regions and states, and 

whether there are significant variations from these requirements that 

should be corrected. Responsibility for entering data into EPA’s national 

databases resides with the region or state responsible for the enforcement 

program. Both the quality of and quality controls over these data have been 

widely criticized by the regional and state officials we interviewed, and 

recent internal OECA studies have acknowledged the seriousness of the 

problem. 
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Many state enforcement programs we reviewed maintain their own 

databases to manage their programs and do not use EPA’s national 

databases. Consequently, keeping the information in the EPA databases 

current is a low priority for the states in an environment of limited 

resources—which has only further aggravated the problem for OECA. For 

example, an internal OECA enforcement work group called the Targeting 

Program Review Team commented in its November 1999 report that while 

EPA’s air and water databases indicated very different enforcement 

programs across states, it could not determine whether the variation was a 

function of real differences or the fact that data are not getting into the 

databases for some states. This work group reported that functions related 

to data quality, such as the consistent entry of information by regions and 

states, is not working properly. The work group also cited important 

information gaps in the databases. The group noted, for example, that EPA 

has little compliance information about minor Clean Water Act dischargers, 

even though two-thirds of all Clean Water Act enforcement actions are now 

taken at these facilities.

Other work groups also underscored the seriousness of the data problem. 

The report by OECA’s National Planning work group concluded that “...one 

of the difficulties in current planning and evaluation is that OECA 

managers do not have available to them timely, complete, and detailed 

analyses of regional or national performance.” The Data Quality work 

group reported that “Data is viewed by most state, regional, and 

Headquarters programs as a reporting exercise for ‘bean-counting,’ rather 

than as a day-to-day management tool to identify problems and determine 

progress against commitments and goals.” Additionally, the Data Quality 

work group asserted that the situation has deteriorated from past years, 

noting that “Over the past several years, managers in the regions and in 

OECA have become increasingly frustrated that they are not receiving from 

the Office of Compliance the reports and data analyses they need to 

manage their programs.” The group further noted that there “...has been 

less attention to the data in the national systems, a commensurate decline 

in data quality, and insufficient use of data by enforcement/compliance 

managers in managing their programs.” The various internal work groups 

made a number of recommendations to OECA to ease the problems they 

had discovered. At the time of our review, OECA was considering what 

action to take on these recommendations.
Page 45 GAO/RCED-00-108 Environmental Enforcement

Chapter 4

Recent EPA Efforts to Achieve Greater 

Consistency in Regional Enforcement 

Activities Chapte4r

EPA has an array of principles, policies, guidance documents, and other 

tools that are intended to ensure that minimum program requirements are 

met and to help ensure reasonable consistency in the way regional offices 

across the country take direct enforcement action and in the way they 

oversee state enforcement programs. However, as discussed earlier in this 

report, these traditional tools have not ensured consistency because their 

implementation has often varied across EPA’s 10 regions.

EPA headquarters and regional enforcement officials identified a number 

of planned and ongoing activities that could help to achieve greater 

consistency in how regional offices take direct enforcement action and in 

how they oversee state enforcement programs within their jurisdiction. 

This chapter describes these activities and, in some cases, suggests how 

they may be modified to more effectively foster greater consistency in 

EPA’s nationwide enforcement program.

Developing 

Comparative 

Information on 

Regional Enforcement

During fiscal years 1997 and 1998, OECA engaged in broad-based, regionby-region performance reviews on a rotating 2-year schedule, with half of 

the regions being reviewed each year. In addition to examining 

enforcement practices associated with regions’ air, water, and other media 

programs, these detailed reviews included extensive examinations of 

cross-cutting program activities, such as setting enforcement priorities, 

addressing multimedia problems, conducting regional oversight of states’ 

activities, and managing data systems.

According to senior OECA officials, these intensive reviews were 

discontinued because they were viewed as both burdensome and costly for 

the regional offices and for headquarters officials. They also expressed 

doubts as to whether the reviews produced sufficiently useful information 

for improving regional performance because they took too long to 

complete and did not always identify the most critical problems. An OECA 

official explained, for example, that the reviews typically took a year to 

complete and were based on the prior year’s data. He noted that by the time 

a review was completed and published, any problems identified would be 2 

years old and possibly not representative of current conditions.

As an alternative, OECA is presently developing a system in which Program 

Status Reports would be issued about twice a year and would provide a 

variety of information, by region, that would gauge both regional office 

performance and performance by states within each region. According to 

the Director of the Enforcement Planning, Targeting, and Data Division, the 
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Program Status Reports will draw information from existing data systems 

and other sources. Information to be included will extend well beyond the 

historic focus on “output measures” such as the number of inspections 

conducted and enforcement actions taken. Instead, the reports will provide 

comparative information on a broader array of information that focuses 

increasingly on the results the enforcement program is trying to achieve. 

Thus, for example, in addition to providing regional and state trend data on 

the number of inspections conducted and the number of enforcement 

actions taken, the report will attempt to convey, by region, the duration in 

which significant violators remained in noncompliance; the extent to which 

past violators returned to compliance have remained in compliance; and 

the qualitative impact of enforcement actions taken (e.g., the extent to 

which pollutants are reduced).

According to OECA, the Program Status Reports will be used, in 

combination with other information sources, to identify specific program 

elements where more detailed examination of regional and state 

performance is warranted. These program elements will be prioritized, and 

then Program Element Reviews will be used to examine specific aspects of 

selected programs. During these reviews, a team of experts will review 

their implementation by EPA headquarters, by most or all regions, and by 

one or two states in each region. According to a letter dated June 1999 from 

the former Director of the Office of Compliance to a member of the 

Environmental Council of the States’ executive committee, the reviews “. . . 

willl enable [OECA} to describe how effectively the program elements are 

being implemented by both EPA and the states.” OECA maintains that in 

contrast to the discontinued regional reviews, the Program Element 

Reviews will be more narrowly focused, cover headquarters and most 

regions and several states in each region, and provide more timely 

information. The agency currently envisions completing two Program 

Element Reviews each year. According to the Director of the Enforcement 

Planning, Targeting, and Data Division, the Program Element Reviews are 

expected to provide a logical vehicle for assessing consistency and 

identifying areas for improvement.

Program Status Reports and Program Element Reviews have the potential 

to convey useful comparative information to both EPA managers and to the 

public on the extent to which the enforcement program is being 

implemented consistently and fairly nationwide. However, as OECA 

officials acknowledge, raw enforcement data, such as the number of 

inspections conducted or the number of enforcement actions taken, can be 

easily misinterpreted. Consequently, for the Program Status Reports to 
Chapter 4

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Activities

Page 47 GAO/RCED-00-108 Environmental Enforcement

provide useful, comparative information on regions’ enforcement programs 

to both agency officials and the public, it is essential that the data be 

accompanied by the contextual information needed to clarify whether 

variation in a given instance is inappropriate, or whether it reflects the 

appropriate exercise of flexibility by regions and states to tailor their needs 

and priorities to their individual circumstances.

Recognizing the 

Seriousness of the Data 

Quality Problem

The unavailability among OECA program managers of comprehensive and 

reliable enforcement data, particularly at the state level, significantly 

impedes OECA’s ability to diagnose and address unwarranted variation 

among regional enforcement practices. While this issue will take both time 

and funds to address, OECA has at least acknowledged the seriousness of 

the problem and is exploring alternatives to deal with it. OECA’s Office of 

Compliance has organized a number of work groups which, in a series of 

reports in 1999, identified a number of problems and made a series of 

recommendations to address them. Of particular note, the Data Quality 

work group found that data quality needs to be fully integrated into 

strategic planning, staffing levels, agreements with the regions, regional 

reviews, and reporting in order to convey a clear message of the 

importance of data in all aspects of the enforcement program. In addition, 

the Targeting work group acknowledged problems with the quality and 

uses of enforcement data and made a series of recommendations designed 

to “...make OECA a more information driven, and thus strategic 

organization.” The Targeting work group recommended that “The use of 

targeting methods that incorporate risk, environmental quality, and 

pollutant data...be promoted to augment or replace existing methodologies 

that are driven almost exclusively by policy mandates that tend to be 

inflexible.”

The Acting Director of the Office of Compliance noted that the resources 

devoted to data quality may have been insufficient in recent years and 

indicated headquarters’ intention to shift some resources internally to 

alleviate the problem. He also indicated that his office is studying the work 

groups’ recommendations to decide which should be adopted and how they 

should be implemented. We believe such a study should be an important 

part of a comprehensive strategy that identifies the key actions needed to 

address OECA’s data quality problems, and then brings to bear sufficient 

priority and resources needed to address them.
Chapter 4

Recent EPA Efforts to Achieve Greater 

Consistency in Regional Enforcement 

Activities

Page 48 GAO/RCED-00-108 Environmental Enforcement

Improving Regional 

and State 

Communications

Regional officials cited improved communication as a key component in 

their efforts to initiate new processes and effect change among their staff 

and among their states. Senior officials in the Seattle region, for example, 

instituted a Regional Enforcement Forum attended by all regional program 

directors and top managers to share information and to ensure that they 

are aware of what is going on in other programs in the region. The Seattle 

Regional Administrator told us that the region looks at data, such as 

penalties, and puts all of the states’ data in a matrix for comparison and 

analysis. Seattle officials noted that program reviews have highlighted 

diametrically opposed philosophies between the states of Oregon and 

Washington in targeting their enforcement efforts. One state believes in 

using its limited resources to target a few large violators that have a large 

impact on the environment while the other state believes in targeting many 

small violators that, cumulatively, also have large impacts on the 

environment. The Regional Administrator also said that when top-level 

state directors see something amiss when their own data are arrayed in a 

matrix with neighboring states, they question their own staff for 

explanations for the differences. He said that this process has created peer 

pressure and has helped to bring about a greater level of consistency 

among the states in the region.

Other regional officials conveyed similar experiences. The Director of the 

Office of Enforcement, Compliance and Environmental Justice in EPA’s 

Philadelphia office said the regional office’s decentralized enforcement 

structure (i.e., enforcement is organized as a separate component within 

each media program)—and the need to work closely with six states in the 

region with evolving political leaderships−makes frequent and effective 

communication critically important. Therefore, the office holds regularly 

scheduled conference calls with regional and state staff to discuss issues 

that may arise, and she also holds annual meetings to improve 

communication between the region and its states and among the states.

Developing Regional 

Audit Protocols to 

Improve Oversight

A number of regions have developed and implemented audit protocols to 

improve the consistency and effectiveness of their oversight of the states 

within their jurisdiction. Among the most recent and comprehensive 

experiments with such a protocol is in the Denver region, where the 

Denver Regional Office recently developed a Unified Oversight System. 

Under this new system, the regional office will review all state 

environmental programs using a broad range of performance criteria such 

as data entry, timeliness of actions, penalties recovered, and effectiveness 
Chapter 4

Recent EPA Efforts to Achieve Greater 

Consistency in Regional Enforcement 

Activities

Page 49 GAO/RCED-00-108 Environmental Enforcement

of inspections. Each state will be graded on each category and then given 

an overall rating. The system is built, in part, on the concept of a 

comparative review system to pinpoint the weakest state programs needing 

the most oversight attention by the regional office. The protocol is also 

premised on the belief that over time, states with the lowest rating will 

eventually rise to the level of their peers.

Senior OECA officials acknowledged that regional protocols may help a 

region oversee its state programs, although they cautioned that the 

protocols should not be viewed as a regional “report card.” Our interviews 

with regional officials also suggest that oversight protocols, negotiated 

between regional and state officials, offer a promising mechanism to 

improve regional oversight that can help to ensure that each region’s 

oversight is fairer and more consistent among all the states within its 

jurisdiction. Moreover, we also acknowledge the view among many 

regional staff that in light of the different organizational structures among 

regional offices, working relationships between different regions and their 

states, and other factors, these protocols should be tailored to meet the 

needs of each region. Nonetheless, EPA’s guidance on elements that should 

be common to all protocols could help to engender a minimal level of 

consistency in the way the 10 regional offices oversee their states.

Conclusions While noting that some variation among regions’ environmental 

enforcement activities may be appropriate, OECA has underscored the 

importance of an appropriate level of consistency to ensure fairness and 

equitable treatment, and to help ensure that minimum requirements will be 

met. OECA has relied on a number of traditional tools to ensure reasonable 

consistency, such as the use of formal memorandums of agreement 

outlining regions’ and states’ enforcement responsibilities, and periodic 

visits by senior enforcement managers to each regional office. Yet, 

maintaining a consistent approach among 10 regional offices and 50 states 

has proven to be a difficult challenge. EPA has also experienced problems 

in identifying and communicating the extent to which variation (1) 

represents a problem, (2) is preventable, or (3) represents the appropriate 

exercise of flexibility by regions and states to apply national program goals 

to their unique circumstances.

Headquarters and regional enforcement officials have identified a number 

of planned and ongoing activities that could further help to improve 

consistency in how regional offices take direct enforcement action and in 

how they oversee state enforcement programs within their jurisdiction. We 
Chapter 4

Recent EPA Efforts to Achieve Greater 

Consistency in Regional Enforcement 

Activities

Page 50 GAO/RCED-00-108 Environmental Enforcement

acknowledge the merit of many of these activities but believe that 

additional action, and in some cases changes to its approach, will further 

the agency’s effort to achieve an appropriate level of consistency in 

regional enforcement.

First, OECA is planning to use Program Status Reports to provide 

comparative data on regional enforcement practices and on the practices 

of states within each region. Program Status Reports have already been the 

subject of much discussion in the environmental media and among EPA 

and state enforcement officials. The reports have the potential to convey 

useful information to both EPA managers and to the public on the extent to 

which the enforcement program is being implemented consistently and 

fairly nationwide. However, as OECA officials acknowledge, the data can 

be easily misinterpreted without the contextual information needed to 

clarify whether variation in a given instance is inappropriate, or whether it 

reflects the appropriate exercise of flexibility by regions and states to tailor 

their needs and priorities to their individual circumstances. We, therefore, 

believe that EPA’s Program Status Reports can better serve agency 

management and the public if EPA (1) clarifies what aspects of its 

enforcement program it expects to see implemented consistently from 

region to region and where it believes greater variation is appropriate and 

(2) supplements its region-by-region data with contextual information that 

helps to explain the causes of variation and thereby clarifies the extent to 

which such variation is problematic. 

Second, the effort to develop such comparative information will only 

succeed if it draws from data systems that are complete and reliable. 

However, the reliability of the agency’s enforcement data has been widely 

challenged from both outside and inside the agency. Senior OECA officials 

have acknowledged that it will require additional staffing and resources to 

deal with the issue and have indicated that they are considering the 

reallocation of some resources from other functions to augment their data 

quality efforts. Nonetheless, EPA still needs to articulate a comprehensive 

strategy that will build on internal analyses and recommendations 

concerning the agency’s enforcement databases, and will bring sufficient 

resources to bear in a manner that will sufficiently address this critical and 

complex problem.

Third, a number of regional offices have worked with their states to 

develop audit protocols that are designed, in part, to achieve more effective 

and more consistent oversight of the states within their jurisdiction. We 

acknowledge the potential of these protocols and believe there are good 
Chapter 4

Recent EPA Efforts to Achieve Greater 

Consistency in Regional Enforcement 

Activities

Page 51 GAO/RCED-00-108 Environmental Enforcement

reasons that such protocols should be tailored to meet the needs of each 

region. However, we also believe that headquarters guidance on elements 

that should be common to all protocols would help to engender an 

improved level of consistency in the way the 10 regional offices oversee 

their states.

Recommendations We recommend that the Administrator of EPA

• provide, as part of the agency’s efforts to develop Program Status 

Reports containing comparative data on regional and state enforcement 

performance, the contextual information needed to help EPA 

management and the public properly understand them;

• develop a comprehensive strategy that will bring to bear sufficient 

priority and resources so that the problems affecting the quality of the 

agency’s enforcement data can be adequately addressed; and

• issue guidance to EPA regions describing the required elements of audit 

protocols to be used in overseeing state enforcement programs.

Agency Comments In its comments on our draft report, EPA disagreed with our 

recommendation that the agency’s Program Status Reports include the 

contextual information needed to help EPA management and the public 

better understand raw data characterizing regional performance. EPA 

noted that the reports are not intended for public distribution and 

consequently do not “need contextual information . . . since they are 

designed to be used by Agency program managers who understand how to 

use them.” We disagree with this statement. First, past experience indicates 

that whether intended or not as public documents, the Program Status 

Reports will likely be made public and will be used by interested parties. 

This occurred in the case of OECA’s regional evaluations discussed in our 

report, which were released on the basis of a Freedom of Information Act 

request and were reported widely in the trade press. Recent press coverage 

anticipating EPA’s Program Status Reports provide a strong indication that 

they too will be used by members of the public. Consequently, the 

contextual information explaining the variations is essential if the reports 

are to clarify, rather than confuse, the public’s interpretation of the data. 

Second, while EPA notes that the reports are designed for agency managers 

“who know how to use them,” our experience during this review indicates 

that without better contextual information, even agency managers have 

had difficulty interpreting the raw data to determine the extent to which 
Chapter 4

Recent EPA Efforts to Achieve Greater 

Consistency in Regional Enforcement 

Activities

Page 52 GAO/RCED-00-108 Environmental Enforcement

variations are problematic, whether they are preventable, or whether they 

represented the appropriate exercise of flexibility.

EPA did not respond directly to our recommendation that the agency 

develop a comprehensive strategy to improve the quality of its enforcement 

data. The agency noted that the “root causes of the data quality problems 

are many and varied.” EPA noted in particular the importance of the state 

role in both the causes and solutions to data quality problems in EPA’s 

national data systems, since they are the repository of most of the data and 

are typically responsible for entering this data into the national data 

systems. We agree that the states must be part of the solution if EPA is to 

have a useful and reliable national enforcement database. However, EPA 

itself suggests that solving the problem will require its leadership. EPA 

notes, for example, that its data systems have aged to the point where many 

states have built their own parallel data systems that incorporate more 

modern, user-friendly architectures. Data entry by states into the national 

databases has therefore waned as they have placed greater emphasis on 

maintaining their own systems. EPA also points to “system or definitional 

incompatibilities” between EPA enforcement databases and those of a 

number of states, and the added burden on both states and EPA regional 

offices of entering data into national databases that do not help them 

manage their programs. This point echoes the findings of the agency’s Data 

Management and Quality Program Review Team which, as discussed in 

chapter 3, observed that “Data is viewed by most state, regional, and 

Headquarters programs as a reporting exercise for ‘bean-counting,’ rather 

than as a day-to-day management tool to identify problems and determine 

progress against commitments and goals.” The team’s November 1999 

report recommended that data quality needs “be elevated to an OECA 

priority . . .” and that such needs “be considered in strategic planning, 

budget formulation, and reporting to ensure a clear articulation of the 

importance of good data and how it fits into all aspects of the enforcement 

program.”

EPA did not respond directly to our recommendation that the agency issue 

guidance identifying elements that should be common to all regions’ state 

oversight audit protocols. However, the agency cautioned that the 

protocols are not a substitute for a comprehensive oversight program. EPA 

also expressed concern about the comprehensiveness of some of the 

protocols, noting that they “do not all review State performance against all 

national policies, including the 1986 State Guidance, other national 

policies, and the [Memorandum of Agreement] process.” We acknowledge 

that the protocols are not a substitute for a comprehensive regional 
Page 53 GAO/RCED-00-108 Environmental Enforcement

oversight program. We also acknowledge EPA’s concern about the 

comprehensiveness of the various protocols being tested in different 

regions and continue to believe that the recommended guidance would 

help to address the problem identified by EPA while still allowing each 

region to tailor its protocol to meet its unique circumstances.
Page 54 GAO/RCED-00-108 Environmental Enforcement

Appendix I

Comments From the Environmental Apendxies

Protection Agency ApendxiI

See comment 1.

See comment 2.

See comment 3.

Note: GAO’s comments 

supplementing those in the 

report text appear at the end 

of this appendix.
Appendix I

Comments From the Environmental 

Protection Agency

Page 55 GAO/RCED-00-108 Environmental Enforcement

See comment 4.

See comment 5.
Appendix I

Comments From the Environmental 

Protection Agency

Page 56 GAO/RCED-00-108 Environmental Enforcement
Appendix I

Comments From the Environmental 

Protection Agency

Page 57 GAO/RCED-00-108 Environmental Enforcement

See comment 6.

See comment 7.

See comment 8.

See comment 9.
Appendix I

Comments From the Environmental 

Protection Agency

Page 58 GAO/RCED-00-108 Environmental Enforcement

See comment 10.

See comment 11.
Appendix I

Comments From the Environmental 

Protection Agency

Page 59 GAO/RCED-00-108 Environmental Enforcement

See comment 12.
Appendix I

Comments From the Environmental 

Protection Agency

Page 60 GAO/RCED-00-108 Environmental Enforcement

See comment 13.
Appendix I

Comments From the Environmental 

Protection Agency

Page 61 GAO/RCED-00-108 Environmental Enforcement

See comment 14.
Appendix I

Comments From the Environmental 

Protection Agency

Page 62 GAO/RCED-00-108 Environmental Enforcement

See comment 15.

See comment 16.
Appendix I

Comments From the Environmental 

Protection Agency

Page 63 GAO/RCED-00-108 Environmental Enforcement

See comment 17.

See comment 18.
Appendix I

Comments From the Environmental 

Protection Agency

Page 64 GAO/RCED-00-108 Environmental Enforcement

See comment 19.
Appendix I

Comments From the Environmental 

Protection Agency

Page 65 GAO/RCED-00-108 Environmental Enforcement

See comment 20

See comment 21.
Appendix I

Comments From the Environmental 

Protection Agency

Page 66 GAO/RCED-00-108 Environmental Enforcement
Appendix I

Comments From the Environmental 

Protection Agency

Page 67 GAO/RCED-00-108 Environmental Enforcement

The following are GAO’s comments on the Environmental Protection 

Agency’s letter dated March 30, 2000.

GAO’s Comments 1. EPA noted that the draft report was not clear as to whether we were 

evaluating the consistency among EPA regions or between EPA regions and 

states. Our response is discussed at the end of chapter 2.

2. EPA’s letter states that the report does not define consistency nor does it 

provide parameters for defining consistency in a way that would be 

instructive for EPA or discuss where variations might be acceptable. Our 

response is discussed at the end of chapter 2.

3. EPA noted that our draft report did not identify any inconsistent 

enforcement results or present evidence that unequal treatment of similarly 

situated violators is occurring. Our response is discussed at the end of 

chapter 2.

4. EPA states that our report incorrectly implies that, in a number of areas 

of program management,variation is inappropriate and that it is a 

widespread problem. Our response is discussed at the end of chapter 2.

5. The draft report had included a description of EPA policies, procedures, 

and management systems that the agency maintains will ensure national 

consistency among its regional enforcement programs. We revised chapter 

1 of the draft report to provide a fuller description of these items. 

Importantly, however, consistent principles and management systems, by 

themselves cannot “ensure” consistency. As documented in this report, 

and by past reports of both OECA and the EPA Inspector General, the key 

is implementation: the mere existence of enforcement principles and 

management systems does not ensure they will be followed. 

6. EPA notes that its “timely and appropriate” response policies ensure that 

there is roughly equal treatment under the law for violators in similar 

circumstances. As noted in comment 5 above, while it is critical that EPA 

have such policies in place, the existence of national program guidance 

such as “timely and appropriate” response policies does not ensure that 

such policies will be implemented consistently.

7. EPA states that our report does not adequately note the role that EPA 

penalty policies and criteria play in oversight. We disagree. Chapter 1 of 

the draft report presented an extensive discussion on EPA and state roles 
Appendix I

Comments From the Environmental 

Protection Agency

Page 68 GAO/RCED-00-108 Environmental Enforcement

in enforcing environmental programs, including EPA’s oversight of states’ 

performance. The draft report also noted that these policies provide for a 

range of different responses for given scenarios. 

8. EPA states that we do not present significant evidence that unequal 

treatment under the law for violations in similar circumstances are a 

widespread problem. As noted earlier in comment 4, the draft report did 

not state, nor do we believe it implied, that variation is always 

inappropriate and that it is a widespread problem.

9. EPA points out that specific data on such measures as “penalty 

amounts” are not useful indicators of variation unless analyzed in 

conjunction with other facts and circumstances. Our response is discussed 

at the end of chapter 2.

10. EPA states that the draft report did not fully articulate the importance 

of the memorandum of agreement planning process in achieving national 

consistency. We disagree. The draft report noted that “an important first 

step defining expectations between Regional Offices and OECA is the 

Memorandum of Agreement negotiated between the parties every 2 years.” 

The draft also pointed out that the agreement contains the core program 

requirements and national priorities that the regional offices and OECA 

have agreed will be addressed and the steps that OECA takes to follow up 

with the regions. 

11. EPA states that national priorities and initiatives targeting specific 

industry sectors ensure consistent results since violators receive like 

treatment. We agree that management systems and establishing national 

priorities are important in an effort to help ensure consistency. However, 

as we note in comment 5, implementation is the key to whether 

consistency is actually achieved.

12. EPA states that the draft report did not note that variation is not only 

allowed, but in some cases encouraged by headquarters to address regional 

problems, or that it is sometimes reviewed and approved by headquarters. 

We disagree. Chapter 3 of the draft report had already acknowledged that 

variation in some cases may represent “...the appropriate exercise of 

flexibility by regions and states to apply national program goals to their 

unique circumstances.” With regard to headquarters approval of instances 

of variation, we added language in chapter 1 to more fully address the 

establishment and approval of region-specific problems and priorities. 
Appendix I

Comments From the Environmental 

Protection Agency

Page 69 GAO/RCED-00-108 Environmental Enforcement

13. EPA points to our discussion of regional variations between regions 3 

and 5 and states that we present no evidence that the two regions were 

making irrational and unfounded management judgments. The comment 

does not accurately reflect the report’s discussion of this issue. We made 

no attempt to comment on the regions’ performances but present data that 

show variations do exist--a fact that points up the need to get behind the 

data to evaluate regional performance. The draft report did not imply that 

either region was making irrational or unfounded management judgments.

14. EPA states that the report did not sufficiently consider compliance 

monitoring as a way EPA achieves consistency. We have added information 

to chapter 1 to further emphasize that EPA’s compliance monitoring 

strategy is a key mechanism under EPA’s management system. However, as 

noted in comment 5, the existence of a strategy does not guarantee 

consistent implementation. In fact, consistent implementation has proven 

to be difficult. In the air program, for example, Inspector General audits 

have found problems with how compliance monitoring is conducted and 

the extent to which the compliance monitoring strategy is being followed 

by some regions and states. As noted in chapter 2 a more recent 1999 OECA 

review of the air program’s compliance monitoring strategy found wide 

variation among regions in how they are implementing the strategy. The 

review found that five regions reported that they implement some major 

components of the strategy while five other regions do not implement the 

strategy and engage in only minimal inspection planning and oversight with 

their states. 

15. EPA states that it takes a number of actions to ensure that national 

priorities are being addressed and that enforcement policies are followed 

by the regions. We added information in chapter 1 of the draft report to 

amplify the discussion of these activities. As noted in comment 5, we 

acknowledge the value of these efforts but do not believe they have 

“ensured” consistent implementation.

16. EPA notes that federal oversight assures fair and consistent 

implementation and enforcement of federal environmental laws across the 

nation and that one purpose of federal oversight is to preserve a level 

economic playing field for law-abiding companies. We acknowledge the 

importance of federal oversight to, among other things, help promote 

consistent enforcement among regions. For the reasons discussed in our 

report, however, such a consistent approach has yet to be “assured.”
Appendix I

Comments From the Environmental 

Protection Agency

Page 70 GAO/RCED-00-108 Environmental Enforcement

17. EPA states that it is unclear whether the draft report examined variation 

“among federal actions (between regions) or State and federal actions 

combined across geographic regions of the country.” As noted in our 

response to comment 1, the draft report stated that, as requested, “our 

review examined the extent to which there are variations among EPA’s 

regional offices in enforcing environmental requirements.” It also 

explained that the report examined states’ enforcement programs ”... to 

the extent that they provide insights into the actions of, and variations 

among, EPA’s regional programs.” 

18. EPA notes that some differences in approach to regional oversight of 

states is necessary to address variations in performance. We agree that 

regions’ oversight needs to take into account the capabilities and 

performance of states, providing less attention to states that have 

demonstrated their ability to meet program requirements and greater 

attention to those experiencing difficulty in doing so.

19. EPA expresses concern about the comprehensiveness of some regions’ 

audit protocols, noting that they “do not all review State performance 

against all national policies, including the 1986 State Guidance, other 

national policies, and the [Memorandum of Agreement] process.” We 

acknowledge this concern and believe it serves as further justification for 

our recommendation that EPA issue guidance identifying elements that 

should be common to all regions’ state oversight audit protocols.

20. EPA states that its Program Status Reports are not intended for public 

distribution, and, therefore, do not need the contextual information we 

recommend because “they are designed to be used by Agency program 

managers who understand how to use them.” Our response is discussed at 

the end of chapter 4. 

21. EPA states that our report should recognize the importance of the state 

role in both the causes and solutions to data quality problems in EPA’s 

national data systems, since they are the repository of most of the data and 

are typically responsible for entering this data into the national data 

systems. We agree that the states must be part of the solution if EPA is to 

have a useful and reliable national enforcement database but continue to 

believe that solving these problems will require EPA leadership.
Page 71 GAO/RCED-00-108 Environmental Enforcement

Appendix II

GAO Contacts and Staff Acknowledgments ApendxiI

GAO Contacts Steven Elstein, (202) 512-6515

Acknowledgments In addition to those named above, Maureen Driscoll, Barbara Johnson, 

Gerald Laudermilk, and Lisa Pittelkau made key contributions to this 

report.

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