This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
In news stories and online comments, one side of the debate asks whether, by relying on industry self-monitoring, the state has stationed the fox in the pollution henhouse. The other side contends that reliance on self-monitoring is essential, given the government agency's size and resources, and is standard practice in environmental management.
Conspicuously absent from this debate (perhaps unintended by Utah Department of Environmental Quality Executive Director Amanda Smith or others) was the logical and reasonable middle ground: Industry self-monitoring augmented by periodic, sometimes unannounced, government inspection and monitoring to ensure the integrity of the system, along with sufficient penalties where noncompliance is found.
Pollution control in a complex world involves thousands of permits under a laundry list of environmental laws. Those permits cover a large number of facilities that release pollution every day and engage in other activities that pose environmental risks. State monitoring of every release and activity that might cause pollution would require a huge army of state inspectors. It would also entail large-scale intrusion on routine private business operations.
To address this balance of interests, the pollution-control system relies extensively on industry self-monitoring and reporting, which necessarily assumes that most businesses will do so fairly and honestly. It would be naïve, however, to assume that no one ever "cheats" in this system (without meaning to express any opinion about EnergySolutions or any other specific entities involved in the Radiation Control audit).
Cheating is just as unfair to honest businesses as it is to the public. The public is exposed to more harmful pollution, and honest businesses pay more money for monitoring and pollution control than the cheaters. That disparity places honest businesses at a competitive disadvantage in the marketplace.
A fair analogy is our income tax system, which relies on tax returns filed by individuals and businesses. We assume that most people and businesses are honest, but we all know that some people cheat. Cheating robs the government of revenue, but is also unfair because everyone else pays more taxes while the cheaters enjoy the same services.
The IRS could not possibly scrutinize every return, and doing so would risk widespread government intrusion into our lives. By auditing questionable returns, with some random checks, the IRS tries to catch cheaters without being unduly intrusive. That only works, however, if penalties are severe enough widely publicized to deter would-be cheaters.
The first question to ask about our pollution-control programs, then, is not whether we should rely on self-monitoring and reporting. It is whether the Department of Environmental Quality has sufficient resources to conduct routine, sometimes random, spot checks to ensure that cheaters are caught. The second is whether DEQ is using those resources effectively to punish the malefactors sufficiently to deter future violations.
Not all of our pollution programs are the same, of course, and each might require different kinds and levels of scrutiny. In the radiation-control program that generated the current debate, single waste shipments occur only periodically, yet remain on-site permanently or for very long periods of time. This may mean that it is more appropriate for DEQ to check each individual shipment of radioactive waste than a pollution discharge that occurs daily.
The problem with the "fox in the henhouse" metaphor is that not all businesses are foxes, and perhaps most are not, but a few likely are. It is not fair to let those few steal all of the chickens from both the public and from their more honest competitors.
Robert W. Adler is the James I. Farr chair and professor at the University of Utah, S.J. Quinney College of Law. He has taught and practiced environmental law for over 30 years.