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"Compliance Assitance": Rhetoric vs. Reality

August 1, 2000 | By Patty Cantrell
Great Lakes Bulletin News Service

Why hound businesses into complying with environmental laws? Why not work with them to prevent pollution?
This hand-in-hand concept of environmental regulation caught on with voters back in the economic doldrums of the early 1990s when “regulatory reform” leaders, such as Gov. Engler and former U.S. House Speaker Newt Gingrich, came to power promising to get “big government” off business’ back.
This battle cry was popular because proponents were able to show how, in some cases, environmental regulations did not let companies try new and better ways of achieving targeted results. In other cases, they showed that the cost of complying with some regulations far outweighed the benefits, or caused businesses to avoid their environmental responsibilities. Gov. Engler gained national prominence in the early 1990s, for example, by showing that the cost of toxic waste cleanup programs were a factor in killing redevelopment programs in Michigan cities, and accelerating development in rural areas.
The reality of what has happened, however, is much different than the rhetoric, which promised more efficient, not less effective, regulatory agencies.

Enforcement By the Wayside
Michigan under Gov. Engler is a case study in how states have dismantled regulatory agencies and shifted pollution costs and oversight onto an unwary public. The Administration likes to say it is “partnering with business” to provide “compliance assistance.” But the facts tell another story:
• Catching environmental violators is the first step to sound enforcement. But the public lost 93% of its environmental police force when Gov. Engler created a separate Department of Environmental Quality. Before the DEQ, conservation officers at the Department of Natural Resources caught hazardous waste dumpers as well as hunting and fishing poachers. But Gov. Engler left the vast majority of conservation officers behind at the DNR to police parks and recreation. They no longer work with the regulators, who are now at DEQ. The DEQ does have the state’s police force at its disposal. But police officers’ training and daily work are primarily concerned with assaults and robberies, not E. coli levels in streams or choking levels of smog in the air.
• Enforcement problems caused by the lack of officers at DEQ are real, according to a 1998 report to the U.S. Environmental Protection Agency by DEQ’s own Land and Water Management Division. The report reads that in 1997, “reduced assistance from conservation officers now employed by a separate agency (DNR) was having an adverse impact on enforcement efforts.”
• In 1998, Public Employees for Environmental Responsibility, a Washington-based organization, surveyed agency employees and concluded that DEQ’s Land and Water Management Division closed — without investigation — 80% of all cases and complaints it received about damage to wetlands.
• In 1998, the DEQ assessed fines in just 11 out of 784 cases (1.5%) of confirmed violations of the state’s wetlands and inland lakes and streams laws. It issued “after-the-fact” permits or accepted voluntary restoration activities in 48%, or 375 of those cases. The agency closed another 50% with either a simple notice of violation (78 cases) or no enforcement action (313 cases).
• The Washington-based Environmental Working Group, a national research organization, reported this year that Michigan ranked second worst in the nation, after Texas, for DEQ’s failure to inspect “significant” and “high priority” violators of clean water and air laws. Another EWG report this year showed that, from 1997 to 1999, Michigan did not fine any of the 10 major plants that state records show violated the Clean Water Act. Most of those plants had multiple violations, and three were in violation every quarter for the two years studied.
• The same “hands-off” pattern appears in the DEQ’s Surface Water Quality Division, which is charged with enforcing water quality laws. From 1991 to 1994 the division averaged 29 cases a year against polluters. From 1995 to 1998, the average number of cases was less than half, or 13 per year.
• And a 1998 survey by the Ecology Center of Ann Arbor, found a marked decline in DEQ permitting and inspection statistics across several of the agency’s programs. In 1996, for example, DEQ sent out 28 notices of noncompliance, or half the average of 1992 and 1994. Reconnaissance inspections dropped from 575 in 1992 to 369 in 1996. And pre-treatment inspections and audits dropped from 99 in 1992 to 51 in 1996.
• Budget cutbacks at DEQ have compromised both the staff’s ability to do its jobs and the public’s ability to evaluate the agency. The state’s water quality monitoring system, for example, was until the 1990s a national model for sound science. But by 1995, under Gov. Engler, it had disintegrated to the point that the state’s Auditor General concluded Michigan could not say “whether the water quality statewide has improved, remained the same, or degraded.”
• The public lost much of its ability to discipline environmental authorities when Gov. Engler in 1991 eliminated by Executive Order 19 citizen advisory councils, including those with authority to override the permitting and enforcement decisions of top officials. About the only remaining way to change DEQ’s ways — short of expensive private lawsuits — is to convince one of DEQ’s own “administrative law judges” that the agency is breaking the rules.
• Under the Engler Administration, however, the DEQ’s administrative law judges have consistently ruled against citizens and for business development. A series of ALJ decisions in the 1990s, for example, gave developers the right to build in many wetland areas. This policy did not change until former Attorney General Frank Kelley sued the DEQ and forced it to close the loophole its judges had opened for real estate speculators.

Other Authorities Step Up Efforts
Senior Engler Administration officials defend their compliance assistance policies as the most effective way to protect the environment. The administration also contends environmental agencies are performing well. “Our enforcement activities are as good or better than they’ve ever been,” Mr. Silfven of the DEQ says.
But other environmental authorities are not as content. In April the Michigan Attorney General’s office and five federal agencies formed an interagency task force to aggressively prosecute criminal violations of state and federal environmental laws.
Most violations are civil offenses that should trigger civil enforcement, such as cleanup orders, fines, and penalties. As the legal arm of state government, the Attorney General’s office generally works on those enforcement cases that agencies such as the DEQ bring forward. The number of such cases, however, has declined along with DEQ’s “compliance assistance” push. The average annual number of DEQ/DNR referrals to the Attorney General’s office between 1992 and 1995 was 113. The average number from 1996 to 1999 was 84.
The Attorney General’s office can, however, pursue criminal violations of environmental laws on its own. Fewer civil enforcement actions make criminal prosecution more important for holding environmental violators accountable, says Mike Leffler, head of the Attorney General’s Environmental Division.
“We think criminal environmental prosecutions are going to increase in importance as a tool to go after polluters,” he said.
The environmental crimes task force, which DEQ did not join, will help the state’s attorneys and federal agencies combine their knowledge and resources to send businesses the message that they will not get away with criminal misconduct in Michigan.

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