Enforcement Litigation—

Resolving Violations

Litigation is the process of resolving
an alleged violation through the
courts. EPA uses both administrative
and judicial litigation.

Administrative and judicial
litigation involve similar processes,
carried out in different settings.
Administrative litigation cases are
heard by EPA’s own administrative
law judges or hearing officers, while
judicial cases are tried in the U.S.
Court system. Both usually result in
correction of the violation and the
payment of penalties; criminal judicial
cases may also involve a prison term
for the violator.

Administrative Litigation - The vast
majority of EPA’s administrative
enforcement cases are handled through
adjudicatory proceedings. Five key
procedural steps are involved, though
many cases are settled prior to a
formal decision of an ALJ or federal
judge. The basic steps are:

a. The Complaint (the Accusation) -
EPA issues a document (often
called a Complaint) which
describes the alleged violations,
states what corrective action EPA
is seeking, and may propose a
penalty of a specified dollar
amount. The Complaint also tells
the alleged violator of the right to
a hearing and how to use that
right.

b. The Answer (the Denial or
Excuse) - The person who receives
the Complaint (the “Respondent”)

must file a written response, often
called an Answer. The Respondent
must specifically admit or deny
each allegation made in the
Complaint, and state any defenses
for the alleged violations.

Many cases are settled at this stage,
if the Respondent admits the
allegations and pays the proposed
penalty. Or the Respondent may
negotiate with EPA seeking to lower
the proposed penalty.

c. Motions - The Respondent or
EPA may file written requests to
help narrow the issues in the case
or to gather more information to
help prepare for the hearing.

d. Hearing - If the case has not yet
been settled, a hearing is held. At
the hearing, both sides are
permitted to present their cases to
the Hearing Examiner (ALJ).

e. Order - After the hearing, the AL]
renders an initial decision. The
Respondent may appeal the
decision to the Administrator of
EPA. After any such appeal is
completed, a final order will be
issued, concluding the case.

A case can be settled at any time in
the process. A settlement is usually
documented with a Consent
Agreement and a Final Order by the
ALJ, which are binding on both EPA
and the violator.

All final administrative orders can
be appealed to the U.S. Courts.


Criminal Investigations—
Catching Environmental Criminals

Those who knowingly violate
environmental laws may be considered
environmental criminals. In certain
circumstances, under the Clean Water
Act, negligent acts can also be
construed as criminal violations. EPA
and state agencies have criminal
enforcement programs to bring these
violators to justice.

The consequences of a criminal
violation are more severe than those
for civil violations. Criminal violations
of environmental laws may be either
misdemeanors or felonies, punishable
by a fine of up to $50,000 per day or
per violation, or by imprisonment for
up to five years per day of violation,
or both.

Both corporations and their
executives have paid heavy fines for
criminal violations, and company
managers have gone to prison. The
growth of criminal enforcement has
provided a powerful incentive for
voluntary compliance.

EPA’s National Enforcement
Investigation Center (NEIC) stations
special agents at each EPA regional
office. The special agents are
deputized by the Department of Justice
as Special Deputy U.S. Marshals, with
full power as law enforcement officers.
They are authorized to execute search
warrants, make arrests, and carry
firearms.

How A Criminal
Investigation Begins

The “initial lead,” an allegation of
potential criminal activity, usually
comes to EPA’s criminal investigation
staff from other EPA employees, from
state agencies, from citizens, or from
company employees who suspect a
problem.

Criminal investigations often grow
from compliance inspections.
Inspectors are always on the lookout
for possible criminal violations, which
involve knowing or willful behavior,
fraudulent reporting, or negligent
actions (under the Clean Water Act).
EPA inspectors are prepared to call on
EPA’s criminal investigation staff
when they encounter incidents such
as:

Conflicting data - When the
company has two sets of records on
the same incident, or its monitoring
data is not consistent.

Conflicting stories - When an
inspector is told one thing and sees
something quite different, either in
records or through observation.

Unsubstantiated data - When the
inspector is given monitoring data for
which there is no supporting record or
documentation.

Deliberate actions - When an
employee says he or she was told to
do something the inspector knows to
be illegal.

Claims of ignorance - When an
employee claims to be unaware of
established requirements, but the
inspector discovers records in the


behavior of the specific regulated
community involved, and how each
will be used from year to year as the
program matures. Strategies commonly
include the following elements:

© An outreach plan, indicating the
efforts EPA will make to promote
voluntary compliance.

© A compliance monitoring plan,
indicating how EPA will monitor
compliance and detect violations, such
as through inspections and reporting
by the regulated facilities. This plan
also usually sets priorities for EPA’s
monitoring efforts in different
segments of the regulated community.

The regulatory development process brings
together representatives from government,
business, environmental groups, and other
interests in an effort to craft the best
standards possible.

n enforcement response policy,
outlining the different ways in which
the regulation can be violated. This
policy establishes how serious EPA
considers each of the potential
violations, and indicates the
appropriate level of enforcement
action and penalties associated with
each,

The “strategy” is not usually a single}
comprehensive document, but rather a
combination of guidance memoranda,
plans and policies that together form
EPA's strategy for achieving
compliance for a given law or
regulation.



suits to be filed by the attorney
general.

The states’ environmental
enforcement programs vary greatly, so
EPA encourages efforts among states to
pool their experience and knowledge
to raise their overall effectiveness. For
example, one area of current sharing is
criminal enforcement, because many
states still lack criminal enforcement
programs, even though their state
legislatures may have authorized
criminal prosecution.

EPA strives to work out an effective
enforcement partnership with each
state. This is accomplished through
enforcement agreements with the
separate state agencies. These
agreements usually define the
characteristics of a good program,
using the same criteria by which EPA
judges its own performance.

The agreements also spell out the
circumstances under which EPA will

Remedial worker collecting
Mal toxicity data from abandoned
ENS drums

step in and take enforcement action in
an approved state program. The most
common are:

© if the state requests it;

© if the state’s enforcement response
is not timely and appropriate (this
criterion will be discussed later in this
booklet);

© if the case involves national
precedents; or

© if there is a violation of an EPA
order or consent decree (settlement
agreement).

EPA assists the states through
training of technica] and enforcement
staff and helping state agencies
develop their enforcement strategies.
EPA also conducts oversight
inspections to identify needs and
opportunities for strengthening the
state’s inspection program.


Judicial Litigation - In judicial
cases, the federal government sues a
violator in the U.S. Courts, seeking to
remedy the alleged noncompliance
and obtain penalties. The key steps in
civil litigation are:

a. The Complaint - On behalf of
EPA, the Department of Justice
files a document called the
Complaint in a U.S. District Court,
naming the alleged violator,
describing the alleged violation,
and stating the remedy and
proposed penalty the government
is seeking.

A criminal case begins differently. If
it is a felony case, a grand jury issues
an Indictment. In the less serious
misdemeanor cases, the U.S. Attorney
brings a charge by filing an
Information.

b. The Answer - The alleged
violator (called the Defendant)
files an Answer to the allegations
in the Complaint.

c. Discovery - In the discovery
phase of a case, both the
government and the Defendant
work to discover potentially useful
facts which are in the possession
of the other side. This is done
through formal procedures
overseen by the judge, who may
tule to resolve disputes.

As discovery expands, one or both
sides may become more interested in
settling the case, particularly if the
cost of continuing the case weighs
more heavily than the likelihood of
winning it.

In criminal cases, generally the
Defendant is not entitled to use
discovery procedures.

d. Motions - Each side attempts to
narrow the case by filing motions.
This is used to apply leverage and
push the other side to settle.

e. Trial - Trial is the time when the
two sides present the facts to the
judge or jury. Most cases never
come to trial, because they have
been settled at an earlier stage.

As in administrative cases,
settlements can happen at any stage in
the process. In a judicial case, the
settlement often takes the form of a
Consent Decree, signed by all the
parties and the judge. A person who
violates the terms of a Consent Decree
may be penalized for contempt of
court and may be subject to certain
penalties called for in the Consent
Decree (‘‘stipulated penalties”).


pollution controls or by gaining a
competitive edge over competitors that
did install them.

Fear of change, the unconscious
belief that known and familiar
practices are safe, while new and
unfamiliar things are risky and
possibly harmful.

How Enforcement
Compels Compliance

Federal, state and local government
agencies intervene in the conflict
between incentives and disincentives
to comply with enforcement, adding
new motivating forces to tip the scales
in favor of compliance. Two broad
approaches are used:

Compliance Promotion - The agencies
make systematic efforts to lead people
to voluntarily comply with the law,
tailored to the target audience and the
circumstances involved in a particular
law. Some compliance promotion
efforts focus on strengthening the
natural incentives, while others work
to counteract disincentives.

For instance, EPA frequently mounts
efforts to provide training and
technical assistance to industries that
must meet new requirements. Other
efforts are aimed at the consumer, as
was the case with EPA’s television
spot announcements intended to
counteract the mistaken belief that
unleaded gasoline would damage car
engines.

Enforcement Actions - Enforcement
actions are specific actions in which
EPA or another agency seeks to
compel a particular person or
company to comply. These actions,
which have already been discussed in
this booklet, include civil and criminal
prosecution in the courts,
administrative orders, and other forms
of action.

Enforcement actions take place after
a violation has occurred; this is why
they are often called “enforcement
responses.” Although directed at a
specific violator, enforcement actions
create a deterrent effect that motivates
other people to comply.

25


Organizing The Team —
How EPA Achieves High Compliance

Enforcement of any environmental law
requires systematic effort by many
players. For every law, EPA must
build an enforcement program suited
to the particular law and designed to
achieve compliance by the particular
people or industries that are regulated
by that law.

Regulations

EPA’s environmental regulatory
programs begin with laws which are
enacted by the U.S. Congress. The
environmental laws direct EPA to deal
with specific environmental problems
by regulating the activities of

REGULATIONS

industries and other segments of the
public that contribute to those
problems.

To put such laws into effect, EPA
issues regulations which interpret
them and tell the regulated community
precisely what standards they are
required to meet under the laws, and
by what date.

A well-written regulation helps to
answer such questions as: Is my
facility subject to this law? What
would be acceptable performance
under this law? What would be a
violation? Am I required to submit any
documents to EPA? When are they
due, and to whom do I send them?

When the regulations are being
drafted, EPA enforcement specialists
are involved to make sure they are
enforceable. Particular attention is
given to making clear who is subject to
the law and what is required of them,
so it will be clear to EPA enforcement
officials when a person is in violation.

Enforcement
Strategies

For each new regulatory program, EPA
develops a compliance and
enforcement strategy. The strategy is a
plan for deploying EPA’s resources in
ways that will achieve the highest
possible compliance.

In developing this strategy, EPA
considers the whole range of tools that
might be used to influence the

yal


Civil judicial responses are formal
lawsuits taken in the U.S. Court
system by the U.S. Department of
Justice (DOJ) at the request of EPA.
They are normally used against the
more serious or recalcitrant violators
of environmental laws or to seek
prompt correction of imminent
hazards that pose an immediate threat
to human health or the environment.

Civil judicial cases generally result
in penalties and court orders requiring
correction of the violation and
requiring specific actions to prevent
future violation (such as specialized
monitoring by the facility).

Preparation of civil judicial cases
requires more staff effort and money
than administrative enforcement, and
judicial cases sometimes take several
years to complete. Therefore, EPA
often responds to violations through
administrative actions, where it has
this authority.

Criminal judicial responses are
used when a person or company has
knowingly and willfully violated the
law. In a criminal case, the
Department of Justice prosecutes an
alleged violator in the U.S. Court
system, seeking criminal sanctions,
usually including fines and
imprisonment.

Criminal actions are often used to
respond to flagrant, intentional
disregard for environmental laws (such
as “midnight dumping” of hazardous
wastes) and deliberate falsification of
documents or records.

Criminal cases are the most difficult
type of enforcement response to
pursue. They require special

16

procedures for investigations and case
development, and the government
bears the burden of proof to show
intent of the violator to commit the
violation.

Enforcement Response

Policies

EPA issues “enforcement response
policies” to help assure that violators
in similar circumstances are treated
similarly. These policies guide EPA
enforcement officials as they decide
how to respond to specific violations,
either in selecting the type of
enforcement action to be used, or
determining the penalty to be
proposed.

Two EPA enforcement policies
apply to all EPA programs and are
implemented through specific policies
adopted by the programs:

Penalties - EPA’s policy on civil
penalties explains how a proposed
penalty figure should be calculated.
Each penalty should, at a minimum,
reclaim any economic benefits the
violator obtained by not complying
(the “benefit component”). In addition,
the penalty should include an amount
reflecting the seriousness of the
violation (the “gravity component”).

Finally, the preliminary figure may
be increased or decreased to account
for differences between cases such as
the degree of willfulness or negligence
by the violator, the violator’s history of
compliance or noncompliance, the
violator’s ability to pay, and the
violator’s degree of cooperation.


violation exists. The stimulus may be
a tip, a citizen’s complaint, a
self-monitoring report, or a referral
from another agency. Data available
from other EPA programs, such as the
Toxic Release Inventory, may be cause
for an inspection.

Case development support -
Sometimes an initial inspection did
not collect enough evidence to support
an enforcement action, and a second
inspection is needed to collect specific
types of evidence requested by EPA
enforcement attorneys.

Follow-up - Follow-up inspections
are performed to check on facilities
that were found in violation and have
been ordered to comply through an
enforcement action. If the facility is
still out of compliance, EPA will
usually escalate to a stronger
enforcement action.

The Inspection
Scheme

Each EPA program has an overall
inspection scheme allocating a
proportion of inspections to each of

Action by federal and state
environmental agencies is often
prompted by tips from
concerned citizens who come
across possible violations
during their daily routine.


But these guidelines should help
citizens decide which types of things
are potential pollution problems that
should be reported to the authorities
for investigation.

In identifying potential pollution
problems, citizens should make careful
observations by writing their
observations on paper and even
photographing the situation if
possible. Refer to Section 15 for
suggestions on how to reach the
agencies that are equipped to do
something about the problems you
report.

Citizen

Suits

In 1970, when Congress enacted the
Clean Air Act (“CAA”), it included in
this new environmental statute a
provision allowing concerned citizens
to bring lawsuits against both the EPA
and air polluters for violations of the
CAA. Specifically, this provision of
the CAA allowed citizens to sue
polluters who violated certain
requirements of the Act and to sue the
EPA if it failed to carry out a
non-discretionary duty set forth in the
Act.

This was the first time individual
citizens had been empowered by
Congress to bring a lawsuit under a
federal environmental statute for the
purpose of enforcing that statute.
Congress chose to grant citizens this
right for two primary reasons:
Congress anticipated that the federal
government, due to limited resources,
would need assistance in order to
obtain broad enforcement of the CAA.

Congress also perceived the necessity
of holding the EPA accountable for
undertaking the many
non-discretionary statutory duties that
Congress required the EPA to fulfill.
Out of a desire to assure that the
environment would be adequately
protected, and not merely on paper,
Congress gave the citizens the
powerful tool of the “Citizen’s Suit” to
ensure both that polluters were
brought to justice and that EPA
fulfilled its duties.

A citizen suit provision has been
included in almost every federal
environmental statute enacted since
1970, including the Clean Water Act,
the Solid Waste Disposal Act
(commonly called “RCRA”), the Toxic
Substances Control Act, the Noise
Control Act, the Endangered Species
Act, the Marine Protection, Research,
and Sanctuaries Act, the
Comprehensive Environmental
Response, Compensation, and Liability
Act (commonly called “Superfund”) ,
and, most recently, the Safe Drinking
Water Act. Under each of these
statutes Congress has granted citizens
the power to initiate an enforcement
action in federal court in order to
ensure adequate protection of the
environment.

Citizen suits have proved to be an
important tool for the enforcement of
the various environmental statutes.
EPA and the states, despite limited
resources with which to conduct their
environmental compliance and
enforcement programs, have taken
thousands of enforcement actions
against environmental polluters.
Nevertheless, the number of


How
You Can Help

Every citizen has two vital roles to
play in enforcement of environmental
laws. First and foremost, each of us
must be thoughtful about our own
compliance with the laws, both at
home and on the job. We can also
encourage others to comply and, when
we discover clear violations, take steps
to resolve those problems.

Compliance at Home
and on the Job

Few environmental laws focus on
what we do at home, but a host of
pollution problems are caused by what
we do there. We must begin to ask
ourselves, “How can I prevent
pollution at home?”

Some of the everyday sources of
pollution are: exhaust from poorly
maintained cars and trucks; solvents
from discarded paints, paint thinners
and nail polish remover; waste
crankcase oil; household cleaners; and
garden poisons and fertilizers that are
discarded or used too heavily. Also,
waste paper and trash add a burden
either to the solid waste problem (if
buried in municipal landfills) or to air
pollution (if burned). And wasteful
use of electric power causes excess
pollution at the power plant where it
is generated. All these problems can
be reduced by our actions at home.
There are many environmental books
and magazines which give step-by-step
advice on how to do this.

Home activities that are federally
regulated include: use of pesticides
(the label must show EPA approval,
and the product must be used as the
label directs); cars must pass any
emissions testing requirement in effect

28

in your state; and filling of wetlands is
usually prohibited.

Most workplaces in the United
States are subject to some form of
environmental regulation, because we
now know that pollution comes from
many sources large and small. Even
neighborhood dry cleaners are now
required to take proper care of the
cleaning fluids they use. Look around
you for possible problems at your
workplace.

One of the main reasons for
noncompliance at the workplace is
that top management of businesses
and governments is ignorant of
problems that lower-level employees
do not report. This institutional
breakdown can be solved if employees
alert upper management to the
possibility that the company may be
violating the law. You can help by
telling your superiors about pollution
problems you know about. In many
organizations there is also an
environmental officer or staff to whom
employees can report potential
problems.

Federal employees should be aware
that federal facilities are, in almost all
cases, not exempt from environmental
laws. They are subject to the same
environmental requirements and
standards as private businesses.
Federal employees should advise thei
superiors of pollution problems they
see. If follow-up with superiors does
not resolve the problem, reporting
such problems outside the agency is
an option, although a less effective
one. (Information on “whistleblower”
protection laws is available from the
Government Accountability Project, 2!
E Street, N.W., Washington, D.C.
20001.)


ae

Conducting an environmental enforcement seminar for an international audience at the Federal
Law Enforcement Training Center.


Federal

Government

EPA leads the federal government’s
environmental enforcement efforts,
applying the latest sophisticated law
enforcement techniques and drawing
upon the specialized abilities of other
federal agencies.

The headquarters organization of
EPA includes a central enforcement
office, the Office of Enforcement,
which advises all other EPA offices on
enforcement and manages EPA’s
litigation program. There are also
specialized enforcement units attached
to the offices that manage the
programs pertaining to air, water,
hazardous wastes, and pesticides and
toxic substances.

Ten regional offices manage EPA
programs in the field and conduct
most of the day-to-day enforcement
activities of the Agency. Where a state
has been approved by EPA to
implement the program, the regional
office oversees the state’s performance
to assure consistency with the federal
law. In unapproved states, the EPA
regional office administers the
program. Enforcement activities are
carried out by three types of units:

e Program divisions for water, waste,
and air (including pesticides and
toxics) conduct inspections and
initiate administrative enforcement
actions.

@ The environmental services division
conducts inspections on behalf of
program divisions.

© The regional counsel conducts
enforcement litigation and gives legal

advice to the program divisions.

The National Enforcement
Investigations Center (NEIC) is a
technical resource and investigative
unit for EPA’s civil and criminal
enforcement efforts. It maintains a staff
of trained criminal investigators who
are deputized U.S. Marshals.
Investigators are located in EPA
regional offices throughout the
country, where they work closely with
the Regional Counsel’s office and U.S.
Attorneys in pursuing environmental
criminals.

The Department of Justice (DOJ)
plays a crucial role in EPA’s
enforcement activities. When EPA
wishes to prosecute a violator in the
U.S. Court system, EPA refers the case
to DOJ, recommending prosecution.
This recommendation is considered by
DOJ attorneys who specialize in
environmental litigation, and DOJ
makes the final decision whether or
not to file the case. When the case
goes to court, DOJ legally represents
EPA in court though EPA's legal and
technical staff remain actively
involved in the case.

Like EPA, the Department of Justice
has its field organization, although its
environmental cases are mostly
handled by DOJ headquarters
attorneys. DOJ’s field officials are the
U.S. Attorneys.

The Federal Bureau of Investigation
(FBI) assists EPA in investigating and
apprehending environmental
criminals. The FBI also provides
training for EPA staff at its Federal
Law Enforcement Training Center in
Glynco, Georgia.


Timely and Appropriate
Enforcement Response - Under EPA
policy, the response to any violation

should be both timely and appropriate.

Each EPA program has defined the
acceptable number of days (or
“timeliness”) from detection of the
violation to an initial response for the
types of violation that occur in that
program. The program offices have
also spelled out the appropriate
enforcement responses for different
types of violations. State agencies also
apply these concepts through their
own policies and enforcement
programs.

These generic EPA policies are
usually applied by the specific
program offices when they draw up an
enforcement response policy for a
given law or set of regulations.


Inspections

An inspection is intended to attain the
following objectives, thereby
advancing the goal of maximum
compliance:

Assess Compliance Status -
Inspectors observe the facility and
identify specific environmental

On-site inspections are widely used by EPA
to identify, examine, and remedy violations.

problems, if any exist. This
information will enable EPA to
determine whether the facility is in
compliance.

Collect Evidence - Inspectors collect
and preserve evidence of any specific
problems that appear to be violations.
The evidence will be used in the
resulting enforcement action to bring
the facility into compliance.

“Show the Flag” - The inspection
itself creates a visible, credible
presence of the interest and power of
the government in the eyes of
managers at the regulated facility. This
helps to deter violations at that facility
and other similar facilities.

How Inspections
Are Allocated

In theory, it might be desirable to
inspect every regulated facility on a
regular basis. No government program,
however, has the funds and personnel
to do that. As a result, each EPA
program has a strategy or policy for
allocating inspections to various
segments of the regulated community,
and ultimately to particular facilities.

Inspections are conducted for any of
four reasons:

Routine - The largest number of
inspections are routine inspections,
conducted because the facility is
within a segment of the regulated
community that has been targeted for
inspection.

For cause - In this case, there is
some reason to suspect that an actual


Budget

The amount of enforcement activity
EPA conducts at any time is based on
the funds available, determined
through the federal budgeting process
and appropriations by the U.S.
Congress.

Every year EPA analyzes the relative
seriousness of noncompliance in
various programs and the enforcement
efforts necessary in the coming year to
deal with that noncompliance. Based
on this analysis, EPA submits its
enforcement budget as part of the
annual EPA budget for approval by the
President and for action by Congress.



EPA/300/B-90/100

March 1990
ection
gency

Office Of Enforcement (LE-133)

Environmental
Enforcement

A Citizen’s Guide



10

am -:
Sow , & eae

A technician analyzes collected physical
samples at one of EPA’s many laboratories.

EPA regularly uses
specially modified aircraft
for aerial sampling

and monitoring.

Walk-through inspection - would
generally be limited to a quick survey
of the facility, checking only for the
existence of control equipment,
observing work practices and
housekeeping, and checking as to
whether there is a records repository.
Such inspections help to establish an
enforcement presence, and they can
also serve as a screening process to
identify facilities that should be
targeted for more intensive inspection.

Compliance evaluation inspection -
the most common form of inspection.
It might include visual observations
(as in the walk-through), review and



the categories described above, in
accordance with the program’s
enforcement goals and priorities.

Each EPA program has its own
approach to establishing enforcement
goals and priorities. However, no
matter what program is involved, three
central questions govern
priority-setting:

© How likely is it that a violation in a
particular class of facilities would
present a significant risk to human
health and the environment?

© How likely is it that a class of
facilities will violate environmental
laws or regulations?

© How likely is it that inspections of a
particular class of facilities will help
deter violations?

In a high-priority class, every facility
might be inspected. In lower-priority
classes, only a small proportion of the
facilities might be inspected.

Each EPA program has developed a
“neutral administrative inspection
scheme” setting out how the regulated
community is divided into classes or
segments for the purpose of targeting
routine and follow-up inspections.
Typical criteria for these segments
include type of industry, size of
facility, and amount of pollutants they
handle.

The scheme is “neutral” in that the
specific facilities within each class or
segment are selected for inspection on
a random basis.

Getting ready for an inspection.

Levels
of (Inspection

Inspections range from a quick
walk-through by a single inspector,
which might take less than half a day,
to an inspection by a team of
inspectors involving extensive
collection of samples, which could
take up to several weeks.

Each EPA program has its own
terminology for its inspections.
However, there are three general
categories that describe the range of
possibilities:



area of the pollution? Is there an
area of dead grass or damaged
vegetation near the pollution? Is
dark black smoke coming out of a
smokestack, so dark in fact that
you cannot see through it at all?
This is a likely air pollution
violation. Similarly, is there a pipe
discharge wastewater containing
foam and visible solids, or that
leaves a visible oil sheen on the
water? This is a likely water
pollution violation.

Secretive Is there something secretive
or suspicious about the potential
pollution-causing activity? For
example, is a bulldozer operating
at night in a marsh or wetland?
This might be an indication that
someone is illegally filling a

wetland. Is a truck pouring
wastewater into a sewer on the
side of a road? This might be an
indication that someone is
illegally dumping hazardous
waste. Is someone dumping
garbage (in barrels, cans, or bags)
at a site where it probably should
not go, for example, in the back of
a parking lot, in an alley, in the
woods, or in someone else’s trash
dumpster?

If the answer to these kinds of
question is yes, citizens should notify
local or state authorities about their
observations. These guidelines are not
perfect, and thus they may fail to
identify some pollution problems
while occasionally identifying some
legal activities as pollution problems.

Unfortunately, depressing sights such as this can be found all over the United States. EPA
encourages the public’s participation in identifying pollution problems.

30



How to Recognize a Potential
Pollution Problem

While some pollution is an
unfortunate consequence of modern
industrial life, there are national and
state laws that limit the amount and
kinds of pollution allowed, and in
some cases these laws completely
prohibit certain types of pollution.
Sometimes it will be easy for a citizen
to identify pollution that is a violation
of the law and sometimes it will be
difficult to identify the pollution
problem without sophisticated
equipment.

The U.S. EPA encourages the public
to “keep their eyes and ears open” and
to contact the appropriate local, state
or federal authorities whenever they
notice a potential pollution problem.
There are a few general guidelines a
citizen can use to identify a pollution

problem. While the following
guidelines will not identify all
pollution problems, they will help
citizens identify those pollution
problems that should be reported to
the appropriate authorities:

Unusual Does the type or source of the
pollution seem unusual; ie.,
something that is different from
how similar things appear to work
or from how they used to work?
For example, is there a particular
truck company that appears to
operate vehicles that belch out
black smelly smoke? Or, has the
smoke from a smokestack changed
recently, such that it now has a
much darker look or a much more
noticeable smell? Or, does your
drinking water have an unusual
odor or taste, or a particular color
to it?

Odor Does the pollution present a
strong odor or smell that is
unpleasant? If the odor from the
pollution burns your eyes, mouth,
nose, or skin, you should
immediately leave the area,
contact local public health
officials, and seek medical
attention if the burning sensation
continues after you leave the area.

Sight Does the pollution look nasty or
foul? While everyone will have
their own views on what this
means, many of us will agree that
certain things are offensive. For
example, is there a strongly
colored water discharge from a
pipe going into a clear stream? Are
there dead fish or animals in the

23


Compliance Monitoring —

Checking Up

The essential first step in enforcing a
law is to find out who is obeying it
and who is violating it. This is
“compliance monitoring.”

There are three basic types of
compliance monitoring, and they are
used differently by EPA’s major
programs, depending upon the nature

mee
Overflights are used to monitor facilities

suspected of noncompliance with
environmental laws.

of the regulated pollutants and the
types of facilities involved:

Self-Monitoring - Most U.S.
environmental laws require the
regulated facilities to keep track of
their own compliance status and
report all or part of the resulting data
to the responsible agency. This not
only gives the agency data it needs; it
helps to alert the company’s top
management to its progress in obeying
the law. Fraudulent reporting is a
serious offense under federal law, and
inspections serve as a check on the
data submitted by regulated facilities.

Inspections - Inspections are the
backbone of EPA’s compliance
monitoring programs. They are the
government’s main tool for officially
assessing compliance. An inspection is
an examination into the environmental
affairs of a single regulated facility, to
see whether it is in compliance with
environmental requirements.
Inspection findings become the basis
for a variety of possible actions EPA
might take to bring the facility into
compliance.

Area Monitoring - Used less often
than inspections or self-monitoring,
area monitoring looks at
environmental conditions in the
vicinity of a facility, or over a larger
area. Methods used for area
monitoring include ambient
monitoring, remote sensing, and
overflights. For example, the air
quality reports given in local news
broadcasts are one result of area
monitoring.


The Results Of An
Enforcement Case

An enforcement action has several
results that foster compliance. Perhaps
most important, it deters other people
and companies from violating
environmental laws.

A case usually produces both a
remedy and a penalty. Both are
specific results for which the violator
charged in the case will be
responsible. These may result from
either administrative or judicial cases,
and either from a settlement or from a
final decision in court or in
administrative enforcement.

The remedy includes returning the
violating facility to compliance and
sometimes other remedial actions:

Compliance - The violator will be
required to comply with the law. If the
violation has not already been
corrected, the violator is usually
placed under a court-ordered
schedule, with severe penalties for
failure to comply with the order.

Benefit projects - In some cases, the
violator agrees to carry out a project
that will yield environmental benefits
partly offsetting the harmful effects of
the violation.

Penalties - The violator is required
to pay a cash penalty (in criminal
cases, a fine).

The penalty includes sanctions
intended to deter the violator from
falling into noncompliance again and
to deter others from similar violations:

20

Imprisonment - In criminal cases,
the violator may be sentenced to jail
time, or placed on probation.

Contractor Listing - A facility that
has violated the Clean Water Act or
Clean Air Act may be placed on EPA’s
List of Violating Facilities. Listed
facilities are not eligible to receive
federal contracts, grants or loans from
EPA or any other federal agency.
Facilities that commit environmental
criminal violations of other
environmental statutes may be subject
to possible suspension and/or
debarment from receiving or entering
into EPA or other federal agency
contracts.


The Broad Shadow
Of Deterrence

Enforcement casts a broad shadow of
deterrence which dissuades people
from violating the laws. Specific
enforcement actions are taken against
relatively few violators at specific sites
where inspections have revealed
violations; yet, these relatively few
actions are capable of fostering
compliance by an entire industry at
facilities all over the country.
Enforcement is the essential driving
force that makes environmental laws
work. Without enforcement,
environmental laws would be largely
words on paper, because there are
powerful disincentives working
against compliance. Enforcement
evens the scales by adding a powerful
incentive in favor of compliance.

The Elements
of Deterrence

Enforcement stays the hand of the
would-be violator and encourages the
person who wants to comply. It does
this chiefly by creating a fear of
detection and an assurance of
fairness.

The manager of a company fears
being caught in violation of
environmental Jaws and suffering the
consequences. The manager may fear
that the company will lose money
through a penalty, that bad publicity
will harm the company’s sales, or that
company managers will have to serve

a prison sentence. The manager may
also fear a salary cut or loss of his or
her job as a result of an enforcement
action.

A manager who is willing to comply
with the law wants an assurance that
competitors will not be free to ignore
the law and, as a result, keep their
prices lower or accumulate more
profit. If enforcement is applied fairly
and consistently, it gives this
assurance of fairness (or “equity”) to
the cooperative manager.

Credible
Enforcement
Presence

In practice, environmental agencies
create the fear of detection and the
assurance of fairness by maintaining a
credible enforcement presence. The
following elements go into creating
this presence:

Credible likelihood of detection - The
managers of a company believe
detection is likely if they know
inspectors are active in visiting simila
companies.

Serious consequences of detection -
Managers believe detection will lead
to serious consequences if they know
that inspections of similar companies
have led to enforcement actions
resulting in heavy penalties or jail
sentences.


Who Are The
Enforcers?

Environmental enforcement is a
comprehensive program involving
federal, state and local governments.
From the nation’s capital to the
neighborhood you live in, there is a
far-reaching network of enforcement
personnel to make sure the
environmental laws are obeyed.

State
Governments

Virtually every federal environmental
law allows state governments to
develop programs for implementing
the federal law in their states. When
EPA has determined that the state
program meets the federal
requirements, EPA approves the state
program. Such programs are called
“delegated” or “approved” programs.
Under this arrangement, the states
apply the national standards and
regulations by issuing and enforcing

their own rules and permits.

State governments carry out the
lion’s share of environmental
enforcement actions. For instance,
most of the inspections in the state
programs are done by state
governments (some 80 to 90 percent as
of 1988). And most of the enforcement
actions are taken by states (some 70
percent of the national total under the
federal air, water and hazardous waste
programs).

Enforcement at the state level is
carried out by a number of different
agencies:

State environmental agencies
usually have responsibility for
permits, inspections, and certain types
of enforcement actions. In some states
a single environmental agency handles
all EPA programs, while in others
several agencies divide the
responsibilities. States may also
delegate some of the activities to
county or city governments. Your loca
health department may be the
front-line troops against pollution.

© The state attorney general is the
chief law enforcement official for the
state, and his or her decisions have a
major influence over the strength of
the environmental enforcement
program in the state. The attorney
general also has responsibility for
suing violators, at the request of state
environmental agencies.

© District attorneys may also have
responsibility for suing violators and
typically represent municipalities. In
some states, the District Attorney’s
approval is required for enforcement


company’s files showing knowledge of
those requirements or where
co-workers make statements during
interviews showing that the employee
had knowledge.

If the criminal investigation
confirms that a criminal violation
occurred, it may lead to a criminal
prosecution. This will be discussed
later in this booklet.

Clockwise from top—EPA investigators
participate in a “vehicle stop and search”
exercise, which involves chasing after and
apprehending fleeing suspected felons; EPA
uses many “high tech” tools in its
investigations. Pictured here is a lidar gun,
which is essentially a laser that is used to
detect the contents of emissions from suspect
sources; state and local law enforcement
personnel partictpate in a hazardous waste
investigations training program sponsored by
EPA.

13


© Fairness to the regulated
community by treating similar
violations similarly.

© Punishment of serious, willful
wrongdoing through criminal
sanctions, such as fines and jail time.

e Effective use of enforcement
resources by using the enforcement
response that achieves environmental
and health goals at the least
expenditure in money and staff time.

Types of

Enforcement Actions

There is a wide array of possible
enforcement actions under the laws
EPA administers. These different tools
can be grouped in four “levels of
action,” differing in severity and in the
scale of agency resources required.

A given violation may be handled
by actions at more than one level.
And, if a lower-level response fails to
get results, it is EPA’s policy to
escalate to a higher level. The four
levels of action are listed below in
order of increasing severity:

Informal responses are
administrative actions that are
advisory in nature, such as a notice of
noncompliance or a warning letter. In
these actions, EPA advises the
manager of a facility what violation
was found, what should be done to
correct it, and by what date. Informal
responses carry no penalty nor power
to compel action, but if they are
ignored, they can lead to more severe
actions.

Formal administrative responses
are legal orders that are independently
enforceable; require the recipient to
take some corrective/remedial action
within a specified period of time;
require the recipient to refrain from
some certain behavior, and require
future compliance. These
administrative actions are strong
enforcement tools; if a person violates
an order, EPA may obtain U.S. Court
action to force compliance.

Administrative actions are usually
the most expeditious way of dealing
with a violation. They are resolved
quickly, and they absorb less staff time
and money than cases in the U.S.
Court system. Therefore, they are used
heavily by most EPA programs that
have the authority for them. Congress
has given EPA authority for
administrative enforcement in more
programs during recent years, as the
effectiveness of this approach has
become clear.

Administrative actions are handled
under EPA’s internal administrative
litigation system, which is comparable
to any court system, except that it is
presided over by EPA’s administrative
law judges (ALJs). A violating
company may appeal an ALJ’s ruling
to the EPA Administrator and may
appeal the Administrator’s final
decision to the U.S. Courts. In
practice, most violators do not pursue
these appeal opportunities.


Introduction

w if lawmakers passed an
environmental law and nobody
obeyed?

Environmental laws set standards
for what people and institutions must
do to control or prevent pollution.
After enactment, it becomes the job of
the federal, state and local
governments and, if applicable, Indian
tribes, to make sure that those who are
subject to the laws know what they
must do to comply. The primary
federal environmental role is carried
out by the Environmental Protection
Agency (EPA).

Enforcement is the governmental
response to people who fail to obey
the laws. Some become violators out
of ignorance. And there are always
some who dislike the new laws and
think they can violate them with
impunity. EPA’s enforcement program
aims to deter all violations of the law.

“Enforcement” as we will discuss it
here consists of all efforts to encourage
compliance with environmental laws.
“Compliance” refers to the condition
that exists when a person or company
fully obeys the law (when it complies
with the law).

An environmental law without
compliance would mean that pollution
oroblems would continue and grow
worse. EPA has an enforcement
rogram to make sure the laws get the
results Congress and the public want.

The fundamental aim of
enforcement is to convince those who
are regulated by environmental laws
that it is better to comply quickly than
to wait until they are caught.

Obviously, the ultimate goal is 100
percent compliance, that is, every
person or company regulated by a
given law would be fully obeying that
law.


24

Why People Obey
The Law

What motivates a person or business
to comply with an environmental law?
Several forces may be at work, both for
and against compliance. There are
incentives and disincentives we call
“natural” because they exist without
any intervention by environmental
agencies.

Natural incentives that favor
compliance include:

Societal or moral factors, such as
the fundamental sense of social
responsibility to obey the laws, and
the belief that protection of the
environment is a civic and personal
duty. Both of these examples reflect
widely held values in the United
States today.

Economic advantages of
compliance, which may include both
short-run advantages, such as reduced
materials costs as a result of recycling,
and long-run advantages such as
avoiding bad publicity that could hurt
a company’s sales.

Natural disincentives that work
against compliance include:

Concern for individual property
rights, which leads some people to
view environmental! regulations as an
intrusion on their right to enjoyment
of their private property.

Economic advantages of
noncompliance, which a company
may reap by not installing the require:


Contents
Introduction. . 1
Who Are the Enforcers?........... 2
Compliance Monitoring —

Checking Up................0005 6
Inspections...........0.see scenes 7

Criminal Investigations —
Catching Environmental
Criminals ............00000s eee 12

Enforéement Actions —
The Tools We Use..

Enforcement Litigation —
Resolving Violations............ 18

The Results of an Enforcement
Case 0. eee e eee e ee 20

Organizing the Team —
How EPA Achieves
High Compliance...

Why People Obey the Law........ 24

The Broad Shadow

of Deterrence. . 26
How You Can Help.............. 28
For Further Information .......... 32
Environmental Agencies.......... 33

Project Coordinator: Quinlan Shea

Preface

Vigorous and effective enforcement is
a cornerstone of the Environmental
Protection Agency’s (EPA) effort to
improve the environment and protect
human health. Enforcement prevents
pollution. Enforcement minimizes risk
EPA enforcement makes clear that the
American people view environmental
degradation as not only an
unacceptable business practice, but as
an assault on our shared notions of
responsible citizenship.

The pages that follow explain the
complex functions of EPA’s
environmental law enforcement
mechanism. The structure of the
Agency’s enforcement apparatus, the
methods and the enforcement officials
who use them are identified and
described.

Citizens have an important role to
play in environmental enforcement.
Together, an informed citizenry and
EPA can make great progress toward
environmental improvement.

James M. Strock
Assistant Administrator for
Enforcement


environmental violations often exceeds
the federal and state enforcement
resources available to prosecute
violations. Citizen suits have been
important in filling the gap.

There are innumerable citizen suit
success stories. A brief example of just
one of these lawsuits paints a picture
of the vital role citizens have played
in protecting the environment through
the use of citizen suits.

In a recent citizen suit, Sierra Club
v. Simkins Industries, Inc., [847 F.2d
1109 (4th Cir. 1988)] a citizen group
sued a Maryland paper mill for
violating the Clean Water Act. The
citizen group alleged that Simkins was
discharging pollutants into the
Patapsco River in violation of
limitations established in Simkins’
permit. The Court first determined that
Simkins had, in fact, violated the
Clean Water Act and then fined
Simkins $977,000. The Court also
ordered Simkins to fully comply with
the Clean Water Act in the future. The
citizen group was successful in
remedying the specific pollution
problem caused by Simkins’ illegal
wastewater discharges and also
obtained a tough penalty which
should help deter other would-be
polluters from violating the law and
polluting our environment.

In sum, Congress established citizen
suit provisions under the various
environmental statutes in order to help
ensure that EPA and the regulated
entities actually complied with the
requirements of those statutes. As a
result of the efforts of those who have
brought citizen suits, the state of our
environment has been improved.

32

For Further
Information

The progress of environmental
enforcement is analyzed and reported
every year by EPA. Annual documents
include:

e Enforcement Accomplishments
Report. Published every year, usually
in January, this report discusses the
enforcement activities of the previous
fiscal year, including statistics and
reports on specific judicial cases.

© Overview of EPA Federal Penalty
Practices. This annual report includes
analysis of the penalties assessed by
EPA against violators in cases
concluded during the previous fiscal
year.

Single copies of either report are
available on request by writing to EPA,
Office of Enforcement and Compliance
Monitoring (LE-133), 401 M Street,
S.W., Washington, D.C. 20460.


Swift and sure response - When
managers see that EPA or state
response to detection of a violation is
quick and unavoidable, they know
they cannot escape the consequences
by giving excuses or gaining time
through lengthy bargaining.

Fair and consistent response - When
company managers see that EPA and
state inspections and enforcement
actions are fair and consistent, they
perceive the assurance of fairness they
need to comply. It also tells them the
enforcement process is not open to
favoritism or bargaining for special
treatment.

A credible enforcement presence
gives company managers a substantial
incentive to comply with the law.
Many managers have concluded that it
is good business strategy to comply
and take the credit for good
community citizenship. Better that
than fall into noncompliance and get a
black eye through the unfavorable
publicity that attaches to
environmental violations. Although
some consider such action to be
voluntary compliance, it owes much to
enforcement, because the manager’s
decision to comply is influenced
partly by the knowledge that
noncompliance involves serious risks.

If the inspections and enforcement
actions are done well, their effect is
nultiplied many-fold, so that many
deople are deterred from violating the

aw.

When an agency focuses on
deterring violations, it is using
leverage to influence others to comply
without having to deal with them
one-by-one through enforcement
actions. EPA uses deterrence to get
maximum compliance from its
enforcement budget.

27


evaluation of records, interviews with
facility personnel, and collection of
other evidence, such as physical
sampling. It might also include
detailed review and critique of
self-monitoring methods, instruments
and data, and probing for details about
process and control devices that are in
place.

Sampling inspection - always
involves pre-planned collection of
physical samples. Sampling
inspections are the most
resource-intensive, since they involve
advance planning of the sampling as
well as laboratory analysis of the
samples.

Less frequently used techniques
include aerial photography and
airborne laser instrumentation. EPA is
constantly seeking new and more
effective inspection methods to use in
the fight against pollution.

The
Inspector

The inspector’s fundamental mission
is to examine the state of compliance
of a single regulated facility.
Inspectors for EPA and state agencies
are often the only environmental
officials the plant manager and facility
workers will ever see in person. EPA
considers its inspectors a vital element
of its contact with the public.
Inspectors have technical
competence in the subject of the
inspections they perform, are skilled
in obtaining the crucial facts, and
know how to collect and preserve
evidence of noncompliance for use in
enforcement actions. They also

prepare inspection reports and serve
as witnesses in court.

An expertly prepared inspection
report, which clearly documents
violations and includes samples of
polluted materials, can be highly
persuasive to a judge, a jury, or an
administrative law judge. The
inspector is often the key witness for
the government in an enforcement
case.

EPA conducts a training and
development program for inspectors to
assure that they have the legal,
technical, administrative and
communications skills needed to
conduct compliance inspections. The
Agency requires its inspectors to take
a basic training course on
environmental compliance
inspections; specific EPA programs
also conduct training to prepare
inspectors for particular types of
inspections.


Enforcement Actions—

The Tools We Use

An enforcement action is a response to
something a person or company has
done in violation of a law or
regulation. (For this reason, it is often
called an “enforcement response.”) It
is EPA’s policy that every violation
will be responded to in some way, and
the type of response will be in keeping
with the seriousness and
circumstances of the violation.

EPA has a range of options at its
disposal when contemplating an
enforcement response against a
violator, and these options differ from
one law to another. They range from
informal actions that take little effort
to formal ones involving large
commitments of time and money.

To EPA, these options are tools.
Together they comprise EPA’s
enforcement too) kit, from which the
most appropriate tool will be chosen
for the job at hand.

The Goals
of Enforcement Actions

In choosing the most appropriate
enforcement response to a given
violation, EPA aims to achieve several
goals:

© Correction of the violation as
quickly as possible.

@ Deterrence of future violations by
the same party or other parties.

Removing contaminated materials from a facility—one of the first of many steps to correct the

violation