EPA's enforcement efforts go too far, GOP senators contend

By Stephen Davies

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WASHINGTON, June 29, 2016 - Too much enforcement and not enough assistance. That was the complaint voiced by Republican senators at an oversight hearing today focusing on EPA enforcement efforts.

Rather than assisting with compliance, the EPA chooses to simply impose aggressive and - at times - unreasonable penalties using questionable enforcement methods,” said Sen. Mike Rounds, R-S.D., chairman of the Environment and Public Works Committee's Subcommittee on Superfund, Waste Management, and Regulatory Oversight.

Guns were also targeted, when in the hands of EPA enforcement agents.  Sen. Dan Sullivan, R-Alaska, said he does not believe EPA agents should carry them, pointing to a 2013 raid in Chicken, Alaska, of a placer mining operation suspected of Clean Water Act violations.

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Rounds' only witness at the hearing was Cynthia Giles, assistant administrator of EPA's Office of Enforcement and Compliance Assurance (OECA). She defended OECA's record, saying the office “has developed innovative compliance assistance tools to help the regulated community understand and comply with environmental requirements - particularly small businesses.”

One example of those tools is Small Entity Compliance Guides, which the agency prepares “when a rule may have a significant economic impact on small entities.”

Giles said the agency also is currently modernizing its enforcement program under the Next Generation (Next Gen) Compliance initiative, which will use more electronic reporting and promote new technologies to detect pollutant emissions and discharges.

Sens. James Inhofe, R-Okla., chairman of the full EPW committee, and Sullivan joined Rounds in criticizing EPA, while Sen. Ed Markey, D-Mass., EPW's ranking minority member, defended Giles, arguing that EPA's enforcement budget, which has dropped by 9 percent since 2010, is “strained by diminished resources.”

Rounds and Inhofe both mentioned Clean Water Act enforcement actions in their statements, but did not dwell on CWA enforcement in their questioning of Giles. They were more concerned about the use of what are known as Section 114 letters, named for the part of the Clean Air Act that authorizes their use.

EPA can send such letters to companies asking for information about Clean Air Act-related activities at their facilities.

Rounds said EPA “has increasingly issued section 114 letters to companies who are not the target of an enforcement action but merely may have information relevant to a separate investigation, of which they are not a part of.” He called the requests “extremely burdensome” and said they can cost a company “hundreds of thousands of dollars.”

In addition, “despite the fact that the company receiving the request is not involved in an enforcement action, they can still be subject to criminal and civil penalties if they do not accurately comply with these requests in a timely fashion,” he said.

Giles, however, said that the authority was given to EPA by Congress when it passed the Clean Air Act. She said she did not know whether there has been an increase in their use, but said she would get back to the committee with more information.

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Sullivan told Giles that the EPA's 2013 armed raid on the mining operation “scared the living daylights out of a bunch of Alaska miners,” adding that the EPA agents looked “more like the U.S. Army.”

But in answer to questions from Markey, Giles said EPA agents have been assaulted while performing their duties. She noted that President Ronald Reagan signed the legislation authorizing EPA agents to carry guns.

Sullivan, however, said there is no need for agents to have guns.

“I believe in an armed citizenry, but I don't believe in an armed bureaucracy,” he said.

Markey, however, again came to Giles' defense. “We know the person behind the door could have a gun,” he said. “It just doesn't make any sense whatsoever” for EPA agents not to be allowed to use firearms when guns are so easy to obtain in the U.S.

“We know people can go on Instagram and buy an insta-gun,” he said.

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