SUMMARY OF ENFORCEMENT ACCOMPLISHMENTS 

Fiscal Year 

Office of Enforcement and Compliance Monitoring 

U.S. Environmental Protection Agency 

Washington, D.C. 
FOREWORD/ACKNOWLEDGEMENT 

The purpose of this report is to summarize the combined 

enforcement and compliance accomplishments of EPA, the Regions 

and the States in Fiscal Year 1986. This report was prepared by 

the Office of Enforcement and Compliance Monitoring -(OECM) and 

is based on information and data from various EPA enforcement 

offices and data management systems. The principal author of 

the report was Robert Banks of the Compliance and Evaluation 

Branch of OECM. We would li.ke to thank each of the Regional 

Offices and Program Offices for their valuable contributions 

which aided in the production of this report. 

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SUMMARY OF ENFORCEMENT ACCOMPLISHMENTS REPORT 

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EXECUTIVE SUMMARY ..................... 1 

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I,-% OG RG. * 

I. ational Enforcement - 1 

Program. ....................... 4 

......... 9 

Building a Stable and Predictable National Enforcement 

uidance der 

-t.. ............. 11 

Major Enforcement Litigation and 

Key Legal Precedents .................. 17 

- Enforcement Actions and 

mignificant Violations in 

Specific Hedia Programs ................. 30 

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EXECUTIVE SUMMARY 

In Fiscal Year 1986, EPA sustained the record level of 

enforcement activity established in FY 1985. In FY 1986, state 

and federal environmental civil, criminal and administrative 

enforcement actions continued to be undertaken at record levels. ~ 

compliance by enforcing the environmental laws vigorously, consistently and equitably to achieve the greatest possible environmental results. This was achieved in part by putting in place more 

systematic approaches to managing EPA's compliance monitoring 

and enforcement programs to ensure more stable, predictable and 

timely responses to violators and assuring.efEective deterrence 

to future violations. 

I- During the year, the Agency continued to achieve high levels of 

Fiscal Year 1986 was a banner year for national enforcement 

activity. In FY 1986, the Agency referred 342 judicial actions 

to the Department of Justice, compared to 276 last year. The 

Regions referred an all time high number of 386 civil cases to 

EPA Headquarters. The Criminal Enforcement Program experienced 

its most successful and productive year since the program commenced by referring an'all time high of 45 criminal cases to DOJ. .... .. . 

One of the ways the Agency continued to build 'a stable 

.: enforcement program was by improving the State/EPA enforcement 

relationship. The Policy Framework for State/EPA Enforcement 

Agreements,"which serves as a blueprint for the,State/EPA relationship, wa.s revised in FY 1986 to improve upon the basic guidelines 

necessary for an effective working partnership with the States. 

In FY 1986, a report on implementation of timely and appropriate 

(T&A) enforcement response guidance was developed and concluded 

that the guidelines are generally having a favorable impact. 

Also, EPA strengthened the relationships between EPA, State 

Agencies and the State Attorneys General offices by assisting in 

the publication of a national environmental journal and joint 

sponsorship of several seminars. The Agency revised a draft 

report on Federal Penalty Practices during the year. The study 

concluded that the number of cases involving penalties and the 

Size of penalties is increasing. EPA also developed a data base 

to describe and provide a profile of new civil referrals. 

c In :FY 1986, the Agency implemented and cont'i'nued several 

multi-case enforcement initiatives in priority areas. 

initiatives included the Asbestos NESHAP, Volatile Organic 

Injection Control and Public Water Systems. 

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These 

..' Compounds (VOC), the National Municipal Policy, Underground 
Several compliance and enforcement strategies were designed 

and implemented during the year. The Loss of Interim Status 

Enforcement Strategy supplemented earlier guidance that outlined 

major elements of the enforcement strategy. The OfEice of Water 

Enforcement and Permits (OWEP) issued the Pretreatment Compliance 

Monitoring and Enforcement Guidance which is intended to be a 

comprehensive guide for POTW implementation of the pretreatment 

Inclusion of Environmental Auditing Provisions in Enforcement 

Settlements. OECM also issued draft guidance on the use of 

alternative dispute resolution, third party neutrals, in EPA 

enforce me n t ac t ions . 

-- program. During the year, OECM issued the EPA Guidance on the 

Major enforcement civil, criminal and administrative cases 

were concluded during FY 1986. Following is a list of highlights 

of some key precedents established in FY 1986: 

One of the largest penalty settlements to date for EPA 

for violations of the Clean Water Act by a large municipality: 

authority to regulate the management of radioactive mixed 

wastes: 

O The first case in which a defendant was charged with 

knowingly endangering human health or life under RCRA: 

O The first case in which a public ofEicial has been 

charged and convicted of federal environmental crimes: 

O The first case to criminally convict for a violation of 

an Air State Implementation Plan: 

The first agreement in the country that gives a State 

O One of the first cases to construe the responsibilities 

of an owner or operator of a building under the asbestos 

regulations: and, 

. 

... 

O Successful action against the largest uncontrolled 

source of sulfur dioxide in the western United States. 

O The most significant criminal sentences (includes 

imprisonment) to date for asbestos removal and handline 

violations under the Clean Air Act. 

O The first Federal case charging violations of the Safe 

Drinking Water Act's underground injection control program. 
Completion of the Federal pretreatment enforcement 

initiative hy the end of which virtually all major municipalities had adopted acceptable local pretreatment programs 

regulating the discharge oE industrial wastewater into 

municipal sewage treatment systems. 

During FY 1986, EPA/States achieved successful resolution of 

.- significant violators and set record levels of enforcement actions 

in specific media programs. Except for those programs with 

changes in their significant noncomplier definition, most programs 

returned a higher percentage of significant violators to compliance 

compared to FY 1985. 

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I. SETTING RECORD LEVELS OF NATIONAL ENFORCEMENT ACTIVITY 

National Enforcement Activity 

Over the past 15 years, Congress has passed a number of 

environmental laws and EPA intends to ensure the protection 

of human health and the environment to the extent that the 

laws provide. EPA has significantly increased its enforcement 

efforts to put the regulated community on notice that the 

Agency will not tolerate violations of the nation's environmental laws. 

In Fiscal Year 1986, the Agency referred 342 judicial 

cases to the Justice Department, compared with 276 last year 

(see page 2). Cases involving violations of the federal 

clean air and water acts accounted for over 200 of these 

referrals; over 80 case referrals involved violations under 

federal hazardous waste laws. The Department of Justice 

filed 245 cases in 1986 which were referred by EPA. The 

year before, Justice filed 214 cases. The States referred 

543 cases, compared to 513 last year. 

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The overall level of compliance and enforcement activity 

continued at record levels in FY 1986. By the end of the 

yea*, 2,603 administrative orders had been issued by EPA. 

This is the one highest number of administrative orders issued 

since 1982 (see page 3). Administrative enforcement actions 

by States also increased compared to last year from 3,978 to 

4,877. 

In FY 1986, the Regions referred the hiqhest number of 

civil cases in the Agency's history (page 3). The national 

figure of 386 civil referrals represents an increase of 20% 

over FY 1985 and includes six air mobile cases. Since 1982, 

the number of civil cases referred by the Regions has more 

than doubled. Civil referrals are those cases referred by 

the Regions to EPA Headquarters and direct from the Regions 

to the Department of Justice. 

The best measure of accomplishment of the Criminal 

Enforcement Program is the success of its investigations to 

seek and uncover environmental crime and bring those responsible to justice. Using this measure, the Program experienced 

its most successful and productive year since the Program 

commenced. 
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In Fiscal Year 1986, the Agency referred 45 criminal 

cases (an all time high) to the Department of Justice (DOJ) 

for prosecution, compared to 36 last year. There were 41 . 

criminal referrals to EPA Headquarters from the Off' ---s of 

Criminal Investigations and the Regions compared 6, last 

year. Criminal charges were filed against 94 defendlds by 

DOJ for environmental crimes (which includes a very small 

number of referrals from other federal agencies). The year 

before only 40 such charges were filed and 123 in all previous 

years combined. Sixty-seven defendants were convicted or. 

 entered guilty pleas this year, COmpared..with 37 last year 

and 109 in all previous years.' This and past year's investigative activities resulted in the federal courts imposing 

fines totalling $1.9 million against environmental criminal 

defendants, and prison sentences totalling more than 124 

years, of which over 31 years will'be served (the remaining 

years suspended) in Fiscal Year 1986. 

It,is also important to note that it is EPA's and DOJ's 

policy whenever appropriate to charge responsible individuals 

at 'the highest corporate level, rather than merely charging, . 

the corporation, as is done in most civil enforcement cases. 

The possibility of serving.a prison term eliminates the corporate notion of writing-off penalties as merely a cost of 

doing business. Of the 94 defendants charged in FY 1986, 66 

defendants were individuals. Of those 66, there were 25 

presidents or owners of firms, 13 vice-presidents, 6 directors or other officers, .7 managers, 3 foremen, 3 supervisors, 

1 chief chemist and 7 other employees charged. 

of environmental crimes in FY 1986. 0f"the 67 pleas and 

convictions, 22 were corporations. Of the remaining 45 

convictions, there were 17 presidents or owners, 8 vicepresidents, 4 directors or other officers, 5 managers, 2 

foremen, 1 supervisor, 1 chief engineer, 1 chief chemist and 

6 other employees convicted. 

The same is true with respect to pleas and convictions 

-. 11. BUILDING A STABLE AND PREDICTABLE NATIONAL ENFORCEMENT PROGRAM 

State/EPA Relationship 

During FY 1986, EPA continued to enhance the State/EPA 

enforcement relationship and build on the solid foundation 

established over the past three years. The Policy Framework 
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for State/EPA Enforcement Agreements, originally issued in I. 

1984, along with program-specific implementing guidance, 

will continue to serve as the blueprint for the State/EPA 

enforcement relationship. The Policy Framework was revised 

and reissued in August of 1986, so that there is a comprehensive document that integrates all the related guidance. The 

revisions are primarily intended to incorporate addenda 

developed over the. past two years in the areas of oversight 

of state civil penalties, involvement of the St,ate Attorneys 

General in the enforcement agreements process, and implementati0.n of nationally'managed or coordinated cases. Through. 

the process of revising the Policy Framework, with the assistance of the Steering Committee on the State/EPA Enforcement 

Relationship, EPA and the States clearly reaffirmed that 

the basic approaches put in place in 1984 for an effective 

working partnership are sound and that all parties continue 

to be committed to its effective implementation. 

The Regions and States have State/EPA Enforcement 

Agreements for..FY 1987 in place for all programs and all 

St'ates. Changes in the basic agreements focused on implementing the new areas covered by the revised Policy Framework, 

improving the implementation and monitoring of timely and 

appropriate enforcement response and clarifying the involvement. of the States in the Federal facilities compliance 

process. 

A major activity in FY 1986 was the development of a 

report by each of the three major programs (RCRA, NPDES, and 

Stationary Air) on the implementation of the timely and 

appropriate enforcement response guidance that was set in 

place in' 1984. The report addressed the extent to which 

both EPA and the States are meeting the established timeframes 

and taking the appropriate action. In summary, the report 

shows that EPA and the States have made a good start in 

implementing the timely and appropriate enforcement response 

system and that the guidelines are generally having a favorable impact. A wide variation exists among the three programs 

in meeting the established timeframes. The NPDES'program 

hasibeen the most consistent in meeting its timeframes (75%), 

followed by RCRA (46%) and Air (22%). 

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These differences appear to depend primarily on the length 

of the timeframe established (it varied from a possible 180-270 

days in NPDES to 90 days in RCRA). When performance is compared across programs based on a set number of days (approximately 270 days) it took to formally respond to the violations, 

the results are: NPDES 75%; RCRA 72%; and Air 39%, (although 

79% were addressed by the time of the report). It appears 

that the State/Federal partnership in this area is also 

working well, with the States' performance in meeting the 

timeframes in each program comparable to EPA's. EPA sought 

penalties in 93% of its enforcement actions for RCRA and 81% 

of the Air actions; while the States sought penalties in 49% 

of the enforcement actions for RCRA and 62% of the actions 

for Air. 

In addition to the Agency's activities to strengthen the 

relationship between EPA and the State environmental agencies, 

the Agency tried to improve the ties between the State Agencies 

and the State Attorneys General and between EPA and National 

Association of Attorneys General (NAAG) and the State AGs. 

The revised Policy Framework encourages the Regions and State 

Agencies to improve the involvement of the State AGs in the 

enforcement agreements process. 

OECM has also worked closely with the NAAG to increase 

awareness by the AGs of environmental enforcement issues. As 

part of an effort to exchange information among the various 

aqencies involved in environmental enforcement, the Dublication of the National Environmental Enforcement Journal was 

started in FY 1986. This Journal reports major case decisions 

and settlements, indictments, federal enforcement policy, 

etc. It is distributed within EPA, DOJ, the U.S. Attorneys, 

State AGs, State regulatory agencies, etc., and is an important tool in developing stronger and more coordinated environmental enforcement efforts. With EPA assistance, NAAG has 

also conducted a series of seminars on waste oil enforcement 

which brought together both the legal and technical staffs, 

in an effort to develop a more cooperative and coordinated 

enforcement program. 
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Federal Penalty Practices 

During FY 1986, OECM revised the draft report on Federal 

Penalty Practices to incorporate FY 1985 data. This study of 

federal penalties concluded through FY 1985 revealed that the 

percentage of cases involving a final penalty is increasing 

in nearly all programs and that the size of typical penalties 

is also increasing. It appears that the 1984 Uniform Penalty 

Policy has, in part, led to greater use of penalties. To 

illustrate, the draft analysis revealed that nearly one-third 

of :all federal penalties were assessed in Fiscal Yea~r 1985 ' 

(excluding mobile source penalties which will be added to the 

final report). A separate study was completed by OECM-Water 

in FY 1986 penalties under the NPDES program. This study 

revealed further, very significant increases in the size of 

typical penalties compared to 1985 and a large increase in 

the percentage of cases which were concluded with a penalty. 

Strategic Profiles Data Base 

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the major components of civil referrals, including both the 

main elements of the case (e.g., the types of program violations) and the major process-related elements which can 

influence the referral process (e.g., whether program-specific 

"timely and appropriate" requirements were met). This 

"strategic profile" data base will eventually be used during 

the annual strategic planning cycles, and during Regional 

and national program reviews, to help ensure that the civil 

enforcement docket continues to consist of a good mix of cases 

which reflect program priorities. The data base will become 

fully operational in FY 1987. 

Improving Inspector Training and Development 

.. OECM began developing a data base in FY 1986 to describe 

The Deputy Administrator launched an Agency-wide Work 

Group in Inspector Training and Development, led by the 

Office of Enforcement and Compliance Monitoring, to establish 

the objectives and policy for inspector development applicable 

to all agency programs and to create a framework for more 

systematic training of EPA's field investigative personnel 

engaged in compliance and enforcement-related field activities. 

The group is addressing policy and implementation issues 

such as: the scope and purpose of the program, career paths 

and grade levels tor EPA employees, long-term planning process 
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for cross-media and media speciEic training, training of EPA 

contract inspectors and States. An Agency policy should be 

issued by FY 1988, which will establish a consistent and - 

increase the credibility and effectiveness of our compliance 

monitoring programs. A generic, basic training course for all .. EPA inspectors, currently being developed by an OECM-chaired 

work group, will be pilot-tested next year. 

_. systematic approach to training and development and will 

Air Mobile Sources Enforcement Program 

EPA's Mobile Source air enforcement activity experienced 

a major shift in program focus during FY 1986. Oversight of 

petroleum refineries has been expanded to assure compliance 

with the Lead Phasedown regulations while tampering enforcement activities have been augmented. An increased emphasis 

has been placed on testing in-use light-duty trucks to determine their compliance with the more stringent emission standards while new heavy-duty engines were tested on the production line for the first time. 

Because of concern over violations of the lead phasedown 

regulations, the Agency has significantly shifted its focus 

to expand enforcement of the Lead Phasedown regulations 

during FY 1986 by instituting a retinery inspection/audit 

program. The office will continue that shift even further 

during FY 1987. These audits are critical components of 

efforts to assure compliance with the regulations. They are 

resource intensive, but will help assure that the otfice 

uncovers any violations of these regulations. Historically, 

such violations have resulted in multi-million dollar proposed 

penalties with the potential for criminal referrals as well. 

As a result of Lead Phasedown regulations, Federal, State 

and local enforcement activities and expanded refinery oversight, there has been a significant reduction in the rate of 

contaminated unleaded gasoline found at retail gasoline 

outlets. This reduction has resulted in a similar reduction, 

therefore, in the number of Notices of Violation (NOV's) 

issued by EPA. 

During this transition, the Agency has been able to 

offset the reduced fuels NOV's by enhancing its tampering 

enforcement activities for FY 1986 Dy issuing 73 NOV's with 
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proposed penalties of $1.4 million compared to 23 NOV's for 

.$600,000 during FY 1985. Similarly, the Agency settled 352 

cases with penalties of $1.4 million for FY 1986 compared to285 with penalties o€ $570,000 for FY 1985. ._ 

111. UNDERTAKING ENFORCEMENT INITIATIVES .. 

A major goal for the enforcement and compliance monitoring 

functions of the Agency is to ensure they further the most important goals and objectives of Agency programs. In FY 1986, the 

Agency implemented and continued several multi-case enforcement 

initiatives in priority areas. This approach supplements the 

systems established for predictable enforcement by streamlining 

EPA referral and DOJ filinq procedures for similar cases, and 

generating greater publicity from the filing of a number of related cases over a relatively short time period through use of a 

coordinated communications strategy. EPA has taken these innovative steps to enhance the deterrence impact of individual cases 

on the broader regulated community. This is achieved in well 

targeted and planned enforcement actions. Experience to date 

indicates that handling a number of similar cases at one time is 

also more efficient as many of the technical and legal issues are 

similar and can be resolved in a more standardized and consistent 

manner . 

Asbestos Multi-Case Initiatives 

On January 16, 1986, EPA filed 11 civil actions throughout 

the country for violations of the asbestos NESHAP (National 

Emission Standard for Hazardous Air Pollutants) which occurred 

during the demolition or renovation of buildings. The purpose 

of the coordinated filinq was to increase public awareness 

of EPA regulations and their applicability to both contractors 

and building owners, and the initiative did receive considerable media coverage. To date, of the 11 cases filed, five 

have been settled, with penalties totaling $112,000. 

Volatile Organic Compounds (VOC) Multi-Case Initiative 

On June 30, 1986, EPA initiated Clean Air Act civil 

enforcement actions against eiqht metal coating facilities 

located in the Los Angeles Basin for violations of California 

State Implementation Plan (SIP) limits on VOC emissions. The 

purpose of the coordinated filing was to increase awareness 

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within the regulated community that VOC compliance is an EPA 

enforcement priority. (VOC emissions are precursors to the 

criteria pollutant ozone.) The cases are strategically important since the Los Angeles Basin is the worst ozone non-attainment area in the nation. Settlement agreements have been 

reached in four of the eight cases, with civil penalties 

ranging from $20,000 to $50,000. 

National Municipal Policy (NMP) 

The NMP enforcement initiative was undertaken to emphasize 

the Agency's intent to carry out the Policy and to underscore 

the need for noncomplying communities to agree to enforceable 

schedules to complete their requirements under the CWA. 

Beginning in August 1985, OWEP and OECM worked with the Regions 

to bring cases against the candidates for immediate enforcement. In March 1986, the effort climaxed with a press release 

and briefing at which the Agency announced the filing of 

actions against 15 faclities in five Regions. The impact of 

the initiative continued well after the press release and by 

the end of the fiscal year, 20 additional cases were brouqht 

aqainst major NMP facilities. At the beginning of FY 1986, 

approximately 580 majors were not on an enforceable schedule. 

By the end of the fiscal year, over 500 sdhedules were established in permits, administrative orders, and over 50 in 

judicial orders. 

Clean Water Act Industrial Pretreatment Enforcement Initiatives 

In FY 1986, civil cases were filed in district court 

against twenty-seven Region I1 electroplating facilities 

located in the New York City metropolitan area. Each of these 

facilities had failed to comply with applicable pretreatment 

standards. This massive effort served notice to the industrial 

community that Region I1 was intent on obtaining timely compliance with pretreatment standards. Four of these cases were 

settled in FY 1986, or shortly thereafter, for penalties 

ranging from $24,000 to $82,500, recouping economic benefit in 

each of these cases. In addition to the Region.11 cases, in 

the first quarter of FY 1986, Region IX issued thirty-six pretreatment administrative orders, in cooperation with the County 

Sanitation District of Los Angeles County, to electroplating 

facilities which had failed to comply with the applicable pretreatment standards. This effort, and the publicity which it 

received, provided strong incentives for industrial users to 

achieve compliance. 
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Underground Injection Control (UIC) Enforcement Initiative 

The Agency initiated the UIC Enforcement Initiative in. 

FY 1986 to establish a Federal enforcement presence. By the 

end of FY 1986 there were 10 referrals for a program which had 

only - one referral prior to FY 1986. 

Public Water System Enforcement Initiative 

EPA sponsored a public water system enforcement initiative 

designed to encourage State action against systems (mostly with 

fewer than 1,000 users) which have persistently violated 

Federal requirements for the past three years. Of the 200-plus 

target systems, by the end of FY 1986, EPA had either 

"resolved" the violations, given the State statutorily-required 

notice to take enforcement action, or taken Federal action 

against all but 16. Follow-through on this initiative will 

continue in FY 1987. 

IV. IMPROVING STRATEGIES AND DEVELOPING GUIDANCE FOR COMPLIANCE 

AND ENFORCEMENT 

Fiscal Year 1986 was the year. in .which the Agency continued 

to design and implement an ongoing strategic planning process 

for refining and improving compliance and enforcement strategies 

and programs that is now an integral part of the Agency's overall 

Strategic Planning and Management System (SPMS). The process is 

designed to promote strategic thinking and focus on addressing 

emerging problems in the compliance and enforcement programs 

through joint meetings at the beginning of the planning cycle. 

Written strategies,for compliance and enforcement especially 

for new programs, serve as important communications tools and 

frameworks for proqram operations. Highlighted below are several 

example accomplishments for improved strategies in FY 1986. 

Loss of Interim Status Enforcement Strateqy .. 

I 

I The Loss of Interin.~Status (LOIS) 'Enforcement Strategy 

was 'issued in October, 1985, to supplement the guidance on 

the Loss of Interim Status Provision for Land Disposal Facilities which was issued in FY 1985. The LOIS Enforcement Strategy was developed by the OEfice of Waste Programs Enforcement 

(OWPE).and the Hazardous Waste Division of OECM. The guidance 
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delineated four major elements of the enforcement strategy, 

including a communication strategy, an inventory of tacilities, 

the targeting of facilities for priority entoncement, and . 

.evaluation of ground-water monitoring systems of facilities 

which retain interim status or submit closure plans. 

Interpretation of Section 3008(h) of the Solid Waste Disposal 

- Act 

This guidance was developed and issued jointly by-the 

Office of Solid Waste and Emergency Response (OSWER) and OECM 

in January, 1986. Section 3008(h) was added to the Solid 

Waste Disposal Act by the Hazardous and Solid Waste Amendments 

of 1984 to address environmental problems by requiring cleanup 

at facilities that operated or were continuing to operate 

subject to RCRA interim status requirements. The purpose of 

the guidance was to provide guidelines on the scope of Section 

3008(h) and to summarize appropriate procedures for use of 

the Section 3008(h) authority. 

Enforcement Management System 

On February 27, 1986, the Assistant Administrator for 

Water signed the revised Enforcement Management System (EMS) 

Guide. The EMS Guide establishes the basic principles for 

compliance monitoring and enforcement within the Clean Water 

Act's NPDES program. The Guide had not been maintained, new 

concepts and policies have been incorporated into the basic 

management framework. The revised Guide requires that all 

NPDES administering agencies (EPA and State) develop their 

own written EMS and include procedures and controls needed to 

implement each principle in the EMS Guide. The Guide covers 

procedures for oversight of State NPDES programs, reviewing 

violations (Violation Review Action Criteria), determininy 

appropriate responses to noncompliance (Enforcement Response 

Guide) and managing permit compliance and enforcement information. 

Pretreatment Compliance Inspection (PCI) and Audit Manual for 

Approval Authorities 

The PCI/Audit manual, which was issued July 1936, provides 

EPA and State pretreatment Approval Authorities with information and material on audits and inspections of approved local 

POTW pretreatment programs. The manual should assist Approval 

Authorities in providing effective oversight of approved 
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pretreatment programs under their jurisdiction. The PCI and 

audit procedures were consolidated into one manual because 

the preparation and follow-up steps for the two activities 

are similar. Separate checklists for conducting PCIs and 

audits are included. Audits and PCIs are complementary means 

of achieving effective pretreatment program oversight. Audits, 

,which are more comprehensive and resource-intensive than PCIs, 

are most useful when conducted approximately one year after 

program approval and again during the POTWs five-year permit 

term. In cases where the POTW has failed to implement impor- : tant aspects of its program, the audit may also provide an 5 

opportunity to determine whether enforcement action against 

the POTW is needed. PCIs are less resource-intensive than 

audits. The PCI focuses on the POTWs compliance monitoring 

and enforcement activities. Optimally, PCIs should be per- 

.formed annually during the interim years 'between audits as 

part of routine NPDES municipal inspections. PCIs should be 

included in the comp1,iance inspection plan developed between 

Regions and States. 

Permit Compliance System (PCS) Policy Statement 

.The Permit Compliance System (PCS) is the national data 

base for the Clean Water Act's NPDES permitting and enforcement program. It serves as the primary source,of NPDES 

information for EPA, NPDES States, Congress, and .the public. 

The use and support of PCS by EPA Regions and NPDES States 

are crucial to the effectiveness and proper oversight of the 

NPDES program. The PCS Policy Statement, signed by the Assistant Administrator for Water, establishes for EPA and NPDES 

States the key management practices and responsibilities central.to PCS' ability to contribute to the overall integrity 

of the NPDES program and the achievement of our long-term 

environmental goals. One of the requirements was to have 

Regions and States enter all required data into PCS by September 30, 1986 and then keep the data entry current. While the 

aim of the policy is a consistent approach across Regional 

and State NPDES programs, it retains flexibility €or Regions 

and States to tailor agreements to the unique conditions of 

each State. .. .. . .,. 
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Guidance Concerning EPA Involvement in RCRA 57002 Citizen 

Suits 

This guidance was issued in September, 1986 and was 

written to establish a procedure for systematic review of RCRA 

citizen suit notices and to provide guidance for EPA enforcement staff to use in deciding what involvement by EPA is 

appropriate when a notice of intent to file suit is received 

or when an action is filed under RCRA 57002. 

Timinq of CERCLA Cost Recovery Actions 

This guidance, issued jointly by OECM and OSWER on 

October 7, 1985, provides guidance on when cost recovery 

action under CERCLA Section 107 should be initiated. Its 

purpose is to assist Regional offices in management of cost 

recovery actions. 

Procedural Guidance on Treatment of Insurers Under CERCLA 

This guidance was issued in November 1985 and focuses 

attention on the defense bar's efforts to look to insurance 

carriers for legal representation and indemnification in 

CERCLA enforcement cases. The guidance is intended to assist 

Regional ofEices in developing procedures for issuing notice 

letters, developing referrals, and tracking CERCLA enforcement 

cases that may include insurers as third party defendants. 

Authority to Use CERCLA to Provide Enforcement Fundinq to 

States 

This guidance issued by the Office of General Counsel 

(OGC) February 12, 1986, provided a broader definition of 

state enforcement activities which may be eligible for CERCLA 

funding. A draft addendum of March 26, 1986, identified a 

number of activities which might he among allowable costs. 

Revised Hazardous Waste Bankruptcy Guidance 

Issued on May 23, 1986, this guidance updates Brevious 

guidance on enforcement against bankrupt parties. The 

Agency's recent experience in CERCLA and RCRA enforcement 

against bankrupt parties identified the need for updated, 

revised guidance. Among the topics covered are specific 

criteria for evaluating the merits of a potential bankruptcy 
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referral, policy reyarding settlement with bankrupt parties, 

arid review of recent judicial decisions on the automatic 

stay, abandonment, discharge, and claims of administrative - expenses. 

Pretreatment Compliance Monitoring and Enforcement Guidance 

In July 1986, the Office of Water Enforcement and Permits 

(OWEP) issued the Pretreatment Compliance Monitoring and 

Enforcement Guidance. This document.is intended to be a 

comprehensive guide for POTWs t'o pretreatment implementation, 

particularly on-going compliance monitoring and enforcement 

activities. It provides a detailed discussion of: 

1) establishing monitoring requirements for industrial 

users ; 

.2) sampling and inspecting industrial users; 

3). reviewing industrial user reports; 

4) determining industrial user compliance status; 

5). setting priorities for enforcement actions; and, 

6) reporting progress to Approval Authorities. 

-. 'Additionally, it establishes a definition of a Significant 

Industrial User for use by Control Authorities in targeting 

primary implementation activities and recommends a definition 

of Significant Noncompliance to be applied in evaluating 

industrial user performance in complying with effluent and 

reporting requirements as well as compliance schedules. This 

document provides POTWs with a basis for establishing and 

carrying out an effective program to monitor and enforce 

against industrial users who fail to comply with pretreatment 

standards--responsibilities which are new to most POTWs. 

Clean Water Act Civil Penalty Policy 

Water Act Civil Penalty Policy to be used by EPA in calculaIn February 1986, OWEP and OECM jointly issued the Clean 

ting the penalty that the Federal yovernment will seek in .. 

.settlement of judicial actions brought under.,Section 309 of 

the Clean Water Act. This Policv was'develoued in resDonse 

to EPA's Policy on Civil Penalties and a Framework for-StatuteSpecific Approaches to Penalty Assessments. This penalty 

policy is designed to promote a more consistent, Aaencv-wide 

ipproach to the assessment of civil penalties and will-promote 

the goals of increasing the recovery of economic benefit or' 
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noncompliance, providing a more fair and equitable treatment 

of the regulated community, and achieving a swift resolution 

of environmental problems and enforcement actions. 

Administrative Order Authorities Under SDWA 

The Safe Drinking Water Act Amendments of 1986 provided 

the UIC and PWS programs with new Administrative Order authorities. In 1986, ODW and OECM jointly developed all the necessary policies and guidelines to quickly begin to use these new 

authorities. 

Revised PWS Compliance Strateqy 

During 1986, the PWS program evaluated its 1984 Compliance 

Strategy, and decided to develop an updated strategy. The new 

Strategy goes beyond the earlier revision in terms of establishinq the direction of compliance and enforcement activities 

and incorporates the new Administrative Order authorities. 

The Compliance Strategy focuses on using innovative approaches 

to compliance promotion and discusses how to leverage other 

groups (such as HUD) to ensure better compliance. 

Environmental Auditinq 

In FY 1986, OECM worked to finalize the EPA Guidance on 

the Inclusion of Environmental Auditing Provisions in Enforcement Settlements. The Guidance provides Agency enforcement 

personnel with general critaria for and guidance on selecting 

judicial and administrative enforcement cases in which EPA 

will seek to include environmental auditing provisions among 

the terms of settlement. The inclusion of environmental 

auditing provisions is expected to enable EPA to accomplish 

more effectively its primary mission, namely, to secure 

environmental compliance. 

In addition, several case-specific auditing initiatives 

were launched by OECM during FY 1986, including an attempt 

to resolve compliance problems of Chemical Waste Management 

faci.lities nationwide on a comprehensive basis. 

In conjunction with the multi-media audits, the National 

Enforcement Investigation Center (NEIC) provided training to 

DOD and DOE personnel on multi-media audit procedures. The 

training included discussions of regulation requirements, 
- 17 - 

techniques for the collection and shipment of samples, waste 

management practices and field safety requirements. In 

conjunction with EPA's compliance strategy to improve the 

quality and quantity of information on Federal facilities, 

NEIC prepared multi-media priority rankings on selected 

facilities in Reigons V and IX. The facilities were ranked 

based on their potential to cause major environmental problems. 

Alternative Dispute Resolution 

On December 2, 1986, OECM issued draft guidance on the 

use of alternative dispute resolution (ADR), and the use of 

third-party neutrals, in EPA enforcement actions. The draft 

guidance describes the various ADR mechanisms such as mediation and arbitration, suggests criteria by which enforcement 

personnel can nominate appropriate cases for ADR from existing 

caseloads, describes the method for processing case nominations, provides guidelines for the selection of neutrals, 

describes how to proceed upon selection of a neutral, and 

provides sample agreements and procedures. 

V. CONCLUDING MAJOR ENFORCEMENT LITIGATION AND ESTABLISHING KEY 

LEGAL PRECEDENTS 

Each enforcement action, be it administrative, civil or 

criminal judicial is important in bringing a violator back to 

compliance, deterring future violations by that source or others 

and establishing useful legal precedent. Following are highlights 

from key cases which go beyond simple success in an individual 

action. Examples are selected from each media program. 

Air Stationary Litigation 

Rope Resource Recovery, Inc. - In the first case to 

criminallv charae a violation of a State ImDlemantation Plan 

(adopted pursuant to the Clean Air Act), Hope Resource 

Recovery, Inc., a refuse incineration company located in the 

Long Island City area of Queens, New York City, was sentenced 

to a fine of $10,000 upon its plea of guilty entered in July 

to one count of violating the federally-approved New York 

State Implementation Plan (SIP). The SIP prohibits, inter 

- alia, operation of an air pollution source without a certificate to operate. The company was charged with operating its 
- 18 - 

incinerat3r without such a certificate an several occasions 

during 1983 and 1984, despite havinq been issued a Notice of 

Violation by EPA. (Region 11) 

U.S. v. Geppert Brothers, Inc., and Amstar Corp. - This 

case 1s siqnificant because it is one of the first to construe 

the responsibilities of an owner or operator of a building 

under the asbestos regulations. On June 30, 1986, the United 

States District Court for the Eastern District of Pennsylvania 

ruled that an owner of a building may be held liable for violations of the asbestos NESHAP regulations.. (40 CFR Part 61, 

Subpart M), which occur during demolition of the building by 

a subcontractor. In this case, the court rejected the arguments of Amstar, the building owner, that it should not be 

held liable because the subcontractor, Geppert Brothers, Inc., 

controlled the demolition operations. The court held that 

both Amstar and Geppert Brothers, Inc., were subject to the 

requirements of the NESHAP regulations. (Region 111) 

U.S. v. Phelps Dodqe Corp. - The largest uncontrolled 

source of sulfur dioxide in the western United States was the 

target of a successful action brought by Region IX. On 

July 29, 1986, the United States, Arizona, and Phelps Dodge 

Corporation executed a consent decree resolving Clean Air Act 

violations at the company's Douglas Reduction Works copper 

smelter, located on the U.S.-Mexican border in Douglas, Arizona. The Environmental Defense Fund was subsequently joined 

in the settlement as a plaintiff-intervenor. The facility, 

which is located in a non-attainment area for both sulfur 

dioxide (S02) and, particulate matter (PN), is the only copper 

smelter in the United States operating without continuous 

controls for S02. The smelter has historically emitted in ' 

excess of 300,000 tons per year of SO2 and over 4,000 tons 

per year of PM (sulfates, arsenic, lead, etc.), making it one 

of the largest sources of air pollution in the country. The 

consent decree requires final compliance no later than 

January 15, 1987 by permanent cessation of smelting, as well 

$400,000 for past violations. 

as stringent interim control measures and civil penalties of .. 

.. . 

U.S. V. Occidental Chemical Corp. - In this civil action 

for violations of the vinyl chloride NESHAP, the district 

court held that the defendant has the burden of proving its 

claim that relief valve discharges of vinyl chloride should 
- 19 - 

be excused as "emergencies." The court construed the emergency exception to the prohibition against relief valve discharges to he an affirmative defense. This decision is 

significant because there are a number of cases pending, 

including several in the same district, in which EPA is 

pursuing claims for violations of this particular provision 

of the vinyl chloride NESHAP regulations. 

U.S. v. Jones & Laughlin Steel Corp. - This decision by 

the Sixth Circuit Court of Appeals _- is important - for two 

reasons--it reaffirms the limited role of a trial court in 

reviewing a consent decree, and it adds weight to the numerous case decisions holding that EPA is not stayed by the 

Bankruptcy Code from enforcing environmental statutes against 

polluters who are in bankruptcy. 

EPA appealed after a district court judge rejected a 

proposed judgment order because it did not provide for sharing 

penalties assessed aqainst J&L with the City of Cleveland. 

The appellate court found that the trial court had exceeded 

its authority by not approving an order which met the standard 

of being fair and adequate and protecting the environment. 

The appellate court also found that the Bankruptcy Code provision which protects debtors from having to pay creditors 

except when the debt is owed to the government as a result OE 

an enforcement action, applies to settlements of enforcement 

actions as well. 

U.S. V. St. Joe Minerals - The decree in this case called 

for the payment of a $2.2 million penalty. The company had 

been violating the Pennsylvania SO2 SIP standard applicable 

to coal-fired boilers for over three years and during the pendancy of the lawsuit had been pursuing a revision to the SIP 

standard by means of a "bubble" proposal. Under the settlement, St. Joe is converting its two coal-fired boilers to 

allow combustion of both natural qas and coal and will comply 

with the applicable SO2 regulation by June 1, 1987. 

(Region 111) 

Water (CWA & SDWA) Litigation 

City of Los Angeles - This case represents one of the 

largest penalty settlement to date for EPA and the only case 

penalty recovered from violations of the Clean Water Act bv a 

iarge municipality. An amended consent decree was lodged with 
- 20 - 

the Central District Court on October 2, 1986. The settlement 

includes provisions that the city terminate sludge discharge 

to the Pacific Ocean by December 31, 1987, and that the City 

meet secondary treatment efEluent limits at the Hyperion 

Treatment Plant by December 31, 1998. In order to settle the 

dispute over penalties for violations of the original consent 

decree and for violations of their NPDES permit limitations, 

the City agreed to pay $3,925,000 in fines. Of this amount, 

$625,000 will be paid to the U.S. Treasury and $3,300,000 

will be spent on an assessment of and actions to reduce the 

pollutants entering Santa Monica Bay via storm drain effluent. 

(Region IX) 

U.S. v. City of Key West and the State of Florida - On 

June 23, 1986, in U.S. District Court in Miami, Florida, 

Judge Scott entered a Consent Decree and a related Stipulation regarding the City of Key West. The Decree provides for 

the construction of a 7mgd sewaqe treatment plant (estimated 

cost $30 million), a civil penalty of $600,000, and stipulated 

penalties in the event of a failure to meet the milestone 

dates in the construction schedule or effluent limitations. 

The Key West case is part of the National Municipal 

Policy (NMP) Enforcement Initiative. The settlement reached 

in this case compares quite favorably with other settlements 

under this initiative and, indeed, is the second highest civil 

penalty ever received by EPA from a nunicipaltiy for NPDES 

violations. This will be an important precedent for EPA's 

municipal enforcement program. (Region IV) 

U.S. v. City of Moore, Oklahoma - On November 27, 1985, 

the Federal District Court for the Western District:of Oklahoma granted the United States motion for partial summary 

judgment against the City of Moore for violations of the 

requirements in both its NPDES permit and several administrative orders issued by EPA. The defendant raised a number of 

defenses to the government's motion. 

The court rejected all but one of the defendant's arguments against summary judgment, holding that:- (1) the Clean 

Water Act is a strict liability statute and that the plaintif€ 

only had to show violations of the permit or order (here, 

through submission of DMRs as admissions of liability). The 

court stated that harm and/or intent are irrelevant except 

where criminal liability is alleged; (2) "when engaged in the 

exercise of sovereign power to protect the public interest 
- 21 - 

the government is not subject to estoppel" because it did 

not previously enforce the permit limits at issue; (3) a 

municipality's "duty to comply with the Clean Water Act is 

not contingent on qrant funding"; (41 the City cannot avoidliability for violations occurring a€ter withdrawal of an 

administrative order containing less stringent interim limits 

where the City had clear oral notice and subsequent written 

notice of the withdrawal; and finally, (5) evidence of the 

City's progress in improving its compliance record was pertinent to the issue of the amount of the penalty but not to 

the issue of liability. 

On the issue of whether the alleged inaccurately reported 

test results prevented the granting of summary judgment, the 

court ruled that there were sufficient issues of fact, in this 

particular case, to warrant a hearing as to those alleged 

violations. The court pointed out, however, that its ruling 

on this issue was different from that of other courts which 

had held that "a denial of the accuracy of reported data would 

not operate to defeat summary judgment on the issue of liability." 

City of Lafayette - On December 5, 1985, the Federal 

District Court for the Northern District of Indiana, qranted 

a motion for partial summary judgment aqainst the City of 

Lafayette, Indiana, on the issue of liability for failure to 

establish a pretreatment program as required by its NPDES 

permit. 

In this case, the defendant's permit required that an 

approvable pretreatment program be submitted by November I, 

1951. After numerous delays and-communications among EPA, 

the City and the State, an approvable program was submitted 

in March 1985, except for a sewer use ordinance. EPA filed 

suit in April 1985 and the ordinance was passed on May 28, 

1985. Therefore, at the time the motion was argued, the 

pretreatment program had been developed and approved. 

The City argued, (1) that because the program had now 

been approved, plaintiff's motion for summary judgment should 

be denied; (2) that the City had acted in qood faith to comply 

with Federal requirements; and (3) that any delays were caused 

by Federal and State agencies. 

the City had ample opportunity and assistance to enable it to 

comply with its pretreatment requirements and that it had 

In rejecting the City's arguments, the court found that 
- 22 - 

violated its permit, the regulations at 40 C.F.R. S403, and 

an administrative order issued by EPA. In addition, the 

court found no evidence that the City was properly implemeny 

ting its program. The court held, therefore, that the Federal 

government was entitled to judgment on liability as a matter 

of law even in light of any progress the City had made. 

Hazardous Waste (RCRA/CERCLA) Litiqation 

U.S. v. South Carolina Recycling and Disposal, Inc. 

(Bluff Road) - Final judgment was entered in the SCRDI Bluff 

Road CERCLA cost-recovery case with the United States being 

awarded the entire $1,561,134.55 claimed. While the Bluff 

Road liability decision had been and continues to be frequently cited to by the United States in other CERCLA cost-recovery 

cases because of its favorable language regarding the liability standards, final judgment on the issue of costs had been 

long awaited. With the’cost judgment the Bluff Road case 

constitutes a significant CERCLA enforcement success. 

(Region IV) 

Denver-Arapahoe Chemical Waste Processing Facility - 

FY 1986 saw the completion of a major phase of closing the 

Denver-Arapahoe Chemical Waste Processing Facility. This 

action was the result of a closure plan that was issued by 

EPA in 1984. This was the first RCRA administrative penalty 

challenged and upheld in the Federal District Court. 

The closing consisted of removing approximately 34,000 

drums of hazardous waste, which had been disposed in a burial 

cell between 1980 and 1982 at the site, as it operated as a 

commercial hazardous waste=land disposal facility. The 

exhumed drums were each tested, categorized, and shipped to 

disposal facilities out of state. All contaminated soil was 

excavated, piled into a huge “mountain“ and covered with a 

(CPER) liner, pending final disposition. The burial cell 

itself was then sampled, found to be “clean“, and completely 

regraded. Also, during the closure process, the company 

discovered and reported to EPA that a few drums contained 

PCBs. Since this facility was never approved for PCB disposal, the burial of the PCRs was a violation of the PCB regulations. In March of 1986, EPA filed an administrative complaint 

proposing a $20,000 civil penalty for the improper disposal 

of PCBs. In addition, relative to the Denver-Arapahoe Chemical Waste Processing Facility, an EPA RCRA enforcement action 
for violations of the interim status regulations has been in 

litigation for over three years. EPA finally won its case 

which resulted in a fine of $40,000 plus interest. 

Queen City Farms - Three years of negotiations has 

culminated in the cleanup of three hazardous waste disposal 

ponds (approximately one million gallons) at the Queen City 

Farm site near Maple Valley, WA. This cleanup is unique in 

that there was very little expenditure of government resources. 

The $5,000,000 cleanup was completed prior to RI/FS. The PKP's 

did the testing of the materials in the hazardous waste ponds. 

The consent decree includes a perpetual trust of $100,000 to 

monitor the site. EPA will be negotiating with the PRP's for 

a RI/FS. The RI/FS will help determine if tne clay cap and 

diversion trenches installed as part of this cleanup are 

effective. (Region X) 

Rocky Flats - An agreement was negotiated between DOE, 

the Colorado State Department of Health and €PA, regarding 

the management of radioactive mixed wastes that are generated 

at Rocky Flats outside of Denver, CO (a DOE facility that 

manufactures trigger devices for nuclear warheads). This 

agreement was the first in the country that gives a state 

authority to regulate the management of radioactive mixed 

wastes. The agreement also puts DOE on a schedule to submit 

plans on its activities relative to managing its wastes. 

(Region VIII) 

Feed Materials Production Center, Fernald, OH - On 

July 18, 1986, EPA and DOE entered into a compliance agreement 

r,eqiiring DOE to bring its Fernald, OH, facility into compliance with RCRA, CERCLA and the CAA. The Agreement provides 

for much needed oversight of DOE compliance by EPA. 

Thirty (30) years of operation at the DOE, Fernald, OH, 

plant have caused radioactive contamination of the groundwater 

and nearby soils. In addition, DOE, until very recently, 

maintained that it was not required to comply with RCRA interim 

status and Part B requirements. Poor operation and maintenance 

(O&M) procedures at Fernald have resulted in large reieases of 

radioactive particulates from baghouses and stacks at the 

plant; and several hundred tons of thorium and radium are 

stored in structurally unsound silos. The agreement requires 

DOE to develop and implement initial remedial measures to abate 

and prevent the release of radioactive gases from the silos; 
- 24 - 

to conduct a remedial investigation/feasibility study at the 

plant and off-site and to implement corrective measures selected by EPA; to bring the facility into compliance with RCRA 

and the NESHAPS provisions of radionuclides promulgated under 

5112 of the Clean Air Act: and to develop and implement effective O&M at the site. Implementation of each of these requirements is made subject to the availability of appropriated funds 

for such purposes. The latter provision represents agreement 

on funding language reached between EPA Headquarters and DOE. 

(Region VI 

Pesticides and Toxics Litiqation 

Commonwealth Edison Company - In a Consent Decree f 

in Federal District Court on SeDtember 29, 1986, Edison, 

led 

of 

Chicago, IL agreed to cleanup more than 300 sites contaminated 

with PCBs. EPA had filed a civil suit in 1984 alleging that 

PCB spills resulting from capacitor ruptures constituted 

improper disposal and that Edison was not effective in decontaminating spill sites. Specifically, the decree requires 

Edison to discontinue and physically remove all pole-mounted 

PCB capacitors by January 1, 1987. Edison must adopt inspection and decontamination techniques to insure that spilled 

PCBs are cleaned up in high contact residential areas to 5 

parts per million. Edison estimated that it will cost 6 to 7 

million dollars to decontaminate all old spill sites. The 

company expects to pay an additional 20 million dollars to 

remove and replace the poll-mounted capacitors. (Region V) 

MIBAR Inc. - On May 27, 1986, a complaint was tiled in 

the United States District Court for the District of Colorado 

against MIBAR and its president, seeking an injunction against 

numerous violations of FIFRA including the sale and distribution of unregistered pesticides, improper formulation and 

waste disposal. On May 30, 1986, a Consent Decree was filed 

with the same court in which MIBAR agreed to comply with 

FIFRA, initiate a product recall, correct all label misbranding and properly dispose of a number of drums of pesticide 

and chemical waste. These violations of FIFKA were among 

the most serious ever discovered by EPA and resulted in the 

first use of FIFRA injunctive authority in five years. 

In addition to negotiating a favorable consent decree, 

Region VI11 negotiated a separate $60,000 civil penalty for 

the violations alleged in the Complaint. This was the largest 

FIFRA civil penalty in 10 years. (Region VIII) 
- 25 - 

Union Carbide Corporation - 

enforcement action charaed Union 

This administrative penalty 

Carbide with failure to 

provide to the Agency sGbstantia1 risk information, a cance-r 

study on dietnyl sulfate, as required by section 8(e) of 

TSCA. Following a year of administrative lltigation, the 

innovative settlement agreement requires a comprehensive 

environmental audit of the company's risk information and 

provides for a novel alternative dispute resolution procedure 

(ADR), the first such use of ADR in an EPA enforcement action. 

Advanced Genetic Sciences - On March 24, 1986, the Office 

of Compliance Monitoring filed an administrative civil complaint against Advanced Genetic Sciences (AGS), Oakland, CA, 

for violations of the Federal Insecticide, Fungicide and 

Rodenticide Act (FIFRA). The case, the first of its type by 

the Agency, involved two genetically engineered microbial 

pesticides. The intended use of the microbes was to ?revent 

frost on plants. The complaint charged that AGS falsified 

an application for an experimental use permit and conducted 

experiments contrary to the conditions set forth in an 

experimental use permit. The complaint proposed a total 

penalty of $20,000. 

assessing AGS $13,000 and upholding the Agency's charges 

against AGS. 

On July 21, 1386, the Judicial Officer signed an Order 

DuPont Corporation - In this action, DuPont was charged 

with violations of TSCA Section 5 premanufacture notification 

requirements for new chemicals and-paid a $100,000 fine. >' .. , Under the terms of settlement, DuPont's Finishes and FaSricated Products Department, the Division involved in this 

action, is required to formalize a series of TSCA Section 5 

compliance assurance procedures. These procedures were compiled into a guidance manual for employees affected by TSCA 

requirements. The manual has been distributed at plants and 

laboratories throughout the country. Training programs, with 

respect to the compliance procedures, have been held at many 

of: DuPont's facilities.. The settlement required DuPont to 

produce a broadcast quality videotape.on the'requirements of 

TSCA, to be used as part of the Company's employee education 

program on TSCA compliance. In addition, DuPont is developing 

an "artificial input" system to monitor TSCA compliance. 
- 26 - 

Under the program, test inputs will be designed to test the 

Company's ability to recognize and prsvent the unlawful manufacturing or importation of new products containing components 

not on the Inventory. Results of these tests will be reported 

to EPA. 

BASF Systems Corporation - In this action, BASF voluntarily disclosed that it imported and used chemical substances 

that had not been listed on the TSCA Chemical Substances 

Inventory. In the settlement of the subsequent enforcement 

action, BASF agreed to pay a fine of $80,000 and to initiate 

a comprehensive environmental compliance audit of its operations at Bedford, MA. BASF is required to report any violations discovered in the course of the audit to EPA within 15 

days of discovery, and pay a minimum of $10,000 for each 

chemical violation reported for chemicals that do not represent 

a threat to health or the environment. For other chemicals, 

EPA is free to seek the maximum civil penalty. In addition to 

these terms, BASF agreed to conduct an evaluation of the TSCA 

compliance program of its parent corporation, BASF, A.G. of 

West Germany. 

Summary of Administrative Litiqation 

During 1986, 38 Initial or Final TSCA and FIFRA Administrative Law Judge Decisions were rendered in response to EPA 

civil penalty litigation. All but two cases were rendered in 

favor of EPA litigators. Of the two cases, one was dismissed 

for insufficient evidence and the other case is currently on 

appeal to the Administrator. 

Of the 36 favorable decisions, '15 were in TSCA and 21 

were in FIFRA. Agency Administrative Law Judges upheld or 

imposed some of the highest penalties in the history of FIFKA: 

Kay-Dee, $30,000, Region VII; Custom Cnemical, $21,850, 

Region IX; and Chemical Commodities, $20,000. 

Criminal Litigation 

! Nabisco - A technically sophisti'cated night-time surveillance by ZPA Special Agents involving the use of infra-red 

enhancement uncovered a regular dumping practice at Nabisco's 

yeast and vinegar plant in Sumner, WA, that had been going for 

years. Up to 80,000 gallons of yeast waste was discharged 

almost nightly into the White .River. The corporation pled 
- 27 - 

guilty to Clean Water Act violations and was sentenced to pay 

a $450,000 fine of which $150,000 was suspended. ThP corporation was directed to place $150,000 into an environmental 

trust for the enhancement of fish and game €ish resources and 

hatcheries in the Stuck, Pay - allup and White Rivers. In 

addition, the corporation was placed on three years probation 

on the condition that its plants nationwide commit no Clean 

Water Act violation for the period. 

The plant manager pled guilty to mail fraud (in connection 

with filing false discharge reports) and conspiracy charges 

for his part in the nightly discharge scheme and was sentenced 

to one year and one day in jail, a $5,000 fine, three years 

and 250 hours of community service. (Region X) 

Greer - A proprietor and operator of a now defunct 

hazardous waste handling companies based in Orlando, FL was 

criminally charged with multiple violations of the federal 

hazardous waste laws (RCRA and CERCLA), mail fraud, making 

false statements, and the first case in which a defendant was 

charged with knowlingly endangering human health or life under 

newly adopted provisions of RCRA. Among other acts, the 

defendant was accussed of dumping 1,000 gallons of principally l,l,l-trichloroethane, intentionally mislabeling drums 

of hazardous waste as dirt, and endangering employees by 

directing them to test chemicals such as cyanide, l,l,ltrichloroethane, toluene, methyl ethyl ketone and xylene by 

sniffing samples or lighting them in soft drink cans, rather 

than performing required chemical analysis. 

The judge directed a verdict against the knowing 

endangerment counts before trial over the objection of 'the ; 

prosecutors. After a multi-day trial the jury found the 

defendant guilty of 13 counts of mail fraud, one false statement count, one of failure to notify of a release of a reportable quantity of a hazardous substance under CERCLA, one 

mislabeling count and one count of.illegal disposal. On 

imprisonment (all but three months suspended), four years 

and'nine months probatidn, 1,000 hours .of conhunity service 

and!$23,000 fine. 

September 16, 1986, the defendant was sentenced to five years .. 

The defendant has appealled the jury verdict and the 

government has appealled the directed verdict against the 

knowing endangerment counts. (Region IV) 
- 28 - 

Hoflin - In the first case in which a public official 

has been charged with federal environmental crimes, the former 

city public works director of Ocean Shores, WA, was found - guilty, after a five-day jury trial, of burying drums of old ' 

road stripping paint at the City's sewage treatment plant (in 

violation of RCRA) adjacent to a national wildlife refuge in 

sandy soil next to the ocean, and dumping 3,500 gallons of 

raw sewage into a sandy depression (in violation of CWA) also 

next to the ocean. The defendant was sentenced to two years 

probation and 200 hours of community service. 

Waterbury House Wrecking - The most significant sentences 

to date for asbestos removal and handling violations under the 

Clean Air Act were handed down by the United States District 

Court for the District of Connecticut. 

Waterbury House Wrecking Company was contracted by the 

Old Pin Shop in Oakville, CT, to demolish its building. The 

building was demolished without removing substantial amounts 

of asbestos nor wetting the material to prevent its being 

carried in the air. 

After pleading guilty the president of Waterbury was 

sentenced to a 1 year suspended sentence, five years probation, 

$25,000 fine, 1,000 hours of community service, and must 

attend, at his own expense, seminars on disposal of asbestos. 

The owner of the Old Pin Shop was sentenced to one year 

imprisonment (all but 30 days suspended), five years probation, 

$25,000 fine and 1,000 hours of community service. 

Mardikian - Prom mid-1984, the detendants in this case, 

used a California-based luxury automobile import and sales 

enterprise and an emission testing facility, to carry-on a 

scheme to defraud the government. Durinq that time over 

2,000 European-version high performance cars were supposedly 

imported, modified to meet American emission and safety 

requirements and tested by the Mardikian facility. Tests by 

EPA's Office of Mobile Sources of over 500 of those vehicles 

showed that the test data submitted to EPA was erroneous and 

that on many occasions dummy test results were submitted 

without the required test being conducted. 

'I 
- 29 - 

On the second day of trial two defendants pled guilty. 

On November 25, 1985, one was sentenced to five years imprisonment (all but six months suspended), five years probation, plus 

2,080 hours of community service, consisting of at least eight 

hours per week over a five-year period teaching under-privileged individuals how to improve job seeking skills, and to 

place no fewer than 20 individuals each year into jobs, plus 

restitution to the injured parties. Another defendant was 

sentenced to five year imprisonment (all but 30 days suspended 

and to be served on weekends), five years probation plus an 

indefinite amount of community service. 

false statements to the government, pled guilty and was sentenced to five years imprisonment (all but 20 days suspended 

and served on weekends), five years probation, plus 2,500 

hours of community service. 

The third defendant was charged with one count of making 

Derecktor - During fiscal year 1986, a widely-publicized 

major indictment was returned against a large ship-building 

and dry-dock company in Wode Island and its owner. The 

46-count indictment charged violations of TSCA (PCB violations), 

CERCLA (failing to report releases of PCB's and asbestos), 

Clean Water Act (discharging pollutants from a dry-dock 

without a permit), RCRA (illegal storage and disposal of 

hazardous wastes), Clean Air Act (asbestos removal and handling 

violations), and the Aazardous Materials Transportation Act 

(illegal transportation of hazardous wastes). This was one 

of three cases charged in fiscal year 1986 against shipyards 

for discharges of sandblasting pollutants into the water. 

Assisted Cases - Besides the environmental criminal cases 

investigated and referred for prosecution soley by EPA, 

special agents gave invaluable assistance in several other 

major environmentally-related criminal investigations. In one 

case, the defendants were sentenced to 13 years imprisonment 

each for shipping a waste solvent mixture instead of the 

ordered chemicals to an import business in Zimbabwe. In 

another, the defendant was sentenced to two years imprisonment 

(all but 180 days suspended)-for dumping hazardous wastes into 

unlined pits. EPA also assisted with a case where large quantities of hazardous wastes were shipped from California and 

dumped in Mexico and are suspected of causing illness to 

Mexican residents. 

.. 
VI. ACHIEVING RECORD LEVELS OF ENFORCEMENT ACTIONS AND SUCCESSFUL 

RESOLUTION OF SIGNIFICANT VIOLATIONS IN SPECIFIC MEDIA PROGRAMS 

In Fiscal Year 1986, the Agency achieved record levels of 

enforcement a,ctions in specific media programs, as,well as on 

the national level. 

Starting in FY 1984 each program defined within some broad 

criteria what it considers to be its most important violations 

.to receive highest priority in enforcement actions. These 

are'called "significant noncompliers or significant violat ions. ,, 

Air Enforcement Activity 

EPA's stationary air enforcement activity has remained at 

a consistently high level during FY 1986. EPA issued 123 

112 civil cases, the highest"number of referrals in the last 

cases were referred in the air. enforcement program. 

In the air mobile sources enforcement program, civil 

referrals decreased to six in FY 1986 from 22 in FY 1985 and 

14 in FY 1984. The Federal program to regulate lead in gasoline and automobile inspection and maintenance programs relies 

heavily on administrative settlements to address violations. 

In FY 1986, EPA initiated approximately 400 administrative 

cases proposing penalties of nearly $4 million. EPA settled 

about 350 of the cases and assessed total penalties of about 

$1.3 million. Where no settlement is reached Mobile source 

matters are'referred to the Department of Justice for prosecution, thus the decline in civil referrals is in large part due 

to the success of the program via administrative settlements. 

Progress in Returning Siqnificant Air Violators to Compliance 

Implementation Plans (SIPS) .in nonattainment..areas and .viola- .. 

tors of New Source Performance Standards (NSPS), National 

Emissions Standards for Hazardous Air Pollutants (NESHAPS), 

and Prevention of Significant Deterioration (PSD) regulations. 

'administrative orders during the year. The Regions referred ... 

five years (see page 31). Also in FY 1986, three criminal . .. 

- .. 

.. 

.. The air enforcement program focuses on violators of' State 
.. 

... . .. . 

. .. .. .. 

. .. 

.. 

.. 
- 32 - 

In FY 1986, EPA and the States made progress in returning 

significant air violators to compliance. At the beginning of 

the year, EPA/States had 647 significant air violators remaining from the previous year (fixed base). At the end of the year, 

509 significant violators had been addressed by returning 241 

to compliance, taking enforcement action against 148, and 

placing 120 on acceptable compliance schedules, leaving a 

total of 138 to be addressed next year (see page 33). During 

FY 1986, EPA/States identified 472 new significant violators. 

In responding to these new violators, EPA returned 89 to 

compliance and placed 41 on acceptable compliance schedules. 

In comparing the air enforcement efforts in FY 1985 to 

FY 1986 in this area, good performance has been maintained. 

At the beginning of FY 1985, there were 513 significant violators versus 647 at the beginning of FY 1986. In FY 1985, 

187 (36%) of the BOY violators were returned to compliance, 

.while in FY 1986, 241 (37%) were returned. A total of 95 

(19%) violators were placed on acceptable schedules in FY 

1985 compared..to an increase to 120 (19%) in PY 1986. In 

in FY 1986 and 109 (21%) in the previous year. At the end of 

PY 1985, 122 (24%),violators were pending, versus 138 (21%) 

pending at the end of FY 1986. Overall, in FY 1986 EPA/States 

391' in FY 1985. 

Water Enforcement Activity 

.~ 

taking enforcement actions, EPA/States acted against 148 (23%) . ... 

. _

,. 

addressed 509 of the BOY significant violators compared to .. . : 

EPA's NPDES enforcement efforts continued at a high level 

.' of ,activity for issuance of administrative order and civil case 

referrals. EPA issued 988 administrative orders and the 

Regions referred 107 civil cases, which is the second highest 

number of referrals in the last five years (see page 35). 

This is a 9% decrease in the number of referrals from FY 1985. 

The Safe Drinking Water enforcement program doubled the number 

of civil referrals from eight in FY 1985 to. 17 in FY 1986. The 

Regions also made 15 criminal case referrals in FY 1986. The ' States fil.ed two criminal cases in their courts. The SDWA did 

not provide for Federal-.administrative order"authority'for 

regulatory violations in FY 1985 and FY 1986. The three orders 

issued in FY 1985 were for emergency orders related to drinking 

water systems. The SDWA totals should increase in FY 1987 once 

administrative order authority is delegated to the Regions. 

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- 34 - 

Water - Response to Significant Noncompliance - Exceptions 

Report 

At the beginning of FY 1986, the NPDES program implemented 

Quarterly Noncompliance Report regulations and modified its 

definition of SNC to promote greater consistency in noncompliance reporting and to clarify quantifiable and qualitative 

violations. This major change involved how to report permit 

effluent violations, as well as a stronger emphasis on violations of reporting requirements and violations of formal 

enforcement orders. 

Unlike the other Agency enforcement programs, the NPDES 

program no longer tracks SNC against a "fixed base" of SNC 

that is established at the beginning of the year. Instead, 

it uses the Exceptions List to track instances of SNC as they 

are reported throughout the fiscal year. The exceptions report 

identifies those facilities that have been in SNC for two or 

more quarters without returning to compliance or being 

addressed by a formal enforcement action. At the beginning 

of FY 1986, there were 139 major municipal industrial or 

Federal Facility permittees unaddressed from FY 1985 or newly 

identified. During FY 1986, there were 542 permittees identified on the exceptions report. The Regions and/or the States 

returned 204 of them to compliance and took enforcement actions 

against 176 others leaving 301 facilities on the exceptions 

report unaddressed at the end of FY 1986. The number 

unaddressed represents about 4% of all major NPDES permittees. 

Superfund and RCRA Enforcement Activity 

enforcement activity in FY 1986. Under Superfund, by the end 

of FY 1986, 139 administrative orders had been issued, a 

decrease from the 160 issued in FY 1985. Superfund civil 

referrals also decreased slightly from 54 in FY 1985 to 45 in 

FY 1986. The somewhat lower levels of Superfund enforcement 

activity are attributable to the effects of the delays in 

obtaining reauthorization of the program. The program exceeded 

its Agency commitments for referring S107 Cost Recovery cases. 

Additional progress was made in Superfund and RCRA 
-" 3.5 .- .. . ,- . 
.. 36 - 

For RCRA, 235 administrative complaints and consent 

agreement and final orders were issued. In FY 1986, 66 RCRA 

civil cases were referred compared to 19 in FY 1985. The 

more than threefold increase in the number of RCRA referrals 

is largely attributable to vigorous enforcement of the Loss 

of Interim Status (LOIS) provisions of RSWA. Most of the 

referrals were to land disposal facilities listed on the 

Strategic Planning and Management System's Significant Noncomplier List. RCRA and Superfund combined for a total of 111 

civil referrals. This is the highest number of referrals in 

the last five years (see page 37). There were also 20 criminal 

referrals in the RCRA program. 

RCRA - Progress on Addressing Land Disposal Facilities in 

Significant Noncompliance 

.The RCRA program considers a significant noncomplier as 

a land disposal facility with one or more Class I violations 

of regulatory or statutory'requirements related to groundwater, 

closure, post-closure, or financial responsibility. . .. .. . .. 

their efforts to address significant noncompliance over the 

. .. .. .. 

.'.In FY 1986, EPA and the States substantially increased . .. 

.. .. 

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levels achieved in the previous year. At the beginning of 

FY 1986, EPA and the States identified 792 land disposal facilities as significant noncompliers. By the end of the year, 

772 had been addressed including 331 which were returned to 

compliance, 219 were under a final, effective administrative 

order, court judgment or consent decree, 222 received an 

20 pending (see page 39). During FY 1986, EPA and the States 

addressed a higher percentage (97% compared to 94%) of signi-' 

ficant noncompliers than in FY 1985. 

initial administrative or judicial complaint, leaving only .. 

TSCA and FIFRA Enforcement Activity 

.. 

.. In both the TSCA and FIFRA enforcement programs, each 

five.years (see page 40). For TSCA, 781 administrative orders 

were issued compared to 733 in FY 1985. FIFRA administrative '. 

orders rose dramatically from 236 (FY 1985) to 337 (FY 1986). 

Also, both programs approximately doubled the number of 

civil case referrals. For TSCA, civil referrals increased 

from six to 13 in FY 1986. FIFRA civil referrals increased 

from 11 to 20 in FY 1986. The levels of both judicial and 

administrative action rose in both programs during FY 1986. 

issued the highest number of administrative orders in the last .. 
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- 38 - 

The rise in judicial enforcement is largely attributable to 

an increase in the number of collection actions for penalties 

assessed in previously issued administrative orders. There. 

were two TSCA criminal referrals and one FIFRA criminal 

referral in FY 1986. .. Response to TSCA Siqnificant Noncompliance 

. . The TSCA program significant noncomplier is any violator 

of a PCB, asbestos, or premanufacturing notice rule which 

warrants the issuance of an administrative complaint for 

penalties. 

The Regions had a beginning of year inventory in FY 1986 

of 782 TSCA significant noncomplier cases. During the year, 

the Regions closed 614 (78%) cases on the inventory (see page 

41) by completing an agreement and final order. In FY 1985, 

.342 (75%) cases were closed against a beginning of year 

violators. Of the 5,985 inspections conducted, 913 (15%) 

significant violators were detected by the end of the year. 

More than half of these, a total of 527, had action taken; 118 

the year. 

inventory of 454.. During the year, EPA made progress in .. 

identifying and initiating actions against new significant .. .. 

.. 

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of these were closed, leaving 409 new cases open at the end of ' , .! 

. 

Response to FIFRA Significant Noncompliance 

Beginning in 'FY 1986, FIFRA significant noncompliance was 

redefined to focus on pesticide misuse violations and to 

reflect the major role of the States..in enforcing these types 

of violations. EPA Regions and each of their States 'agreed on 

significant violation categories, given patterns of use unique 

to each State. They also established timeframes for investigating and taking enforcement actions against these significant 

violations. During the year, 274 significant violations were 

identified. Of these, 182 (66%) were addressed within the 

agreed-upon timeframes. Only 14 (5%) of violations were 

carried beyond the timeframes; 12 of these,were address-ed and 

twqwere not addressed by the end of the year. The remaining 

78 '(29%) were pending action within timeframes at the end of 

the year. In addition,. 56 significant use violations were 

identified for action by the EPA Regions during FY 1986. 

Of the 56, '45 (80%) were addressed within timeframes. Seven 
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