SUMMARY OF ENFORCEMENT ACCOMPLISHMENTS 

Fiscal Year 1987 

Office of Enforcement and Compliance Monitoring 

U.S. Environmental Protection Agency 

Washington, DC 

April 1988 
.. FOREWORD/ACKNOWLEDGEM ENT 

The purpose of this report is to summarize the combined 

enforcement and compliance accomplishments of EPA, the Regions and 

the States in Fiscal Year 1987. 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 G. Banks, Jr. of the Compliance Evaluation Branch of OECM. 

We would like 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 

EXECUTIVE SUMMARY ...................... 

I. 

11. 

111. 

i 

IV. 

V. 

Record Levels of National Environmental Enforcement 

Activity.. .................... A Stable and Consistent National Enforcement 

Program.. ..................... Strategies, Guidance and Initiatives 

Major Enforcement Litigation and Establishing Key 

for Compliance and Enforcement ........... 

Legal Precedents .................. Media Specific Enforcement Performance; 

Successful Resolution of Significant Violators ... 

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EXECUTIVE SUMMARY 

In Fiscal Year 1987, EPA and the States achieved record levels 

of environmental enforcement, using the full range of enforcement 

authorities. The Agency referred 304 civil cases to the Department 

of Justice, which is the second highest number of civil referrals 

from EPA to DOJ. The DOJ filed 285 cases in FY 1987, compared to 

260 last year. State agencies referred 723 cases to their Offices 

of State Attorneys General or State attorneys for prosecution, 

nearly twice the number of referrals from the previous year. EPA 

and the States also carried out a strong administrative program 

with EPA and the States each issuing over 3,000 administrative 

orders. The Agency established an all-time record for the largest 

amount of civil penalties imposed in a year. EPA imposed over 

$24 million in penalties. The criminal enforcement program 

referred 41 cases for criminal prosecution, which was one of the 

highest numbers of criminal referrals in the program's history. 

In FY 1987, EPA also increased its use of the contractor listing 

sanctions under the Clean Air and Clean Xater Acts. 

During FY 1987, EPA continued to enhance and reinforce the 

foundation for the State/EPA enforcement relationships by revising 

the Policy Framework for StatejEPA Enforcement Agreements and by 

continuing to evaluate the State/EPA implementation of the timely 

and appropriate response guidance. EPA and State timely and appropriate enforcement response helps assure that enforcement actions 

are taken quickly once a violation is discovered and that the 

penalty fits the seriousness of the violation. EPA and the States 

have improved timeliness in responding to significant violations 

over the last several years. In FY 1987, the Agency created a work 

group on Inspector Training and Development to develop an inspector 

training program. EPA continued to work closely with the National 

Association of Attorneys General (NAAG) to increase the awareness 

by Attorneys General of environmental enforcement issues. As part 

of an effort to exchange and disseminate informa tion on environmental enforcement, EPA funds and contributes information to the 

National Environmental Enforcement Journal. 

Numerous strategies, guidance and initiatives were developed 

or improved upon in FY 1987. These include the National Municipal 

Policy, which had a primary goal in FY 1987 of assuring successful 

implementation of the policy by the July 1988 deadline. The RCRA 

Enforcement Response Policy was revised during FY 1987. The policy 

provided a general framework identifying violations and violators 

of concern and describing timely and appropriate enforcement 

response to noncompliance. The Agency also issued a lead banking 

penalty policy that dealt slith the potentia1 profits that could 
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be gained by creating and trading unlawful lead rights. Several 

other strategies, guidance and intiatives were developed during the 

year and are detailed later in this summary. 

Major enforcement civi 

were concluded in FY 1987. 

legal, program and regional 

The largest Clean A 

collected; 

, criminal and administrative cases 

Following is a partial list of key 

precedents established in FY 1987: 

r Act penalty in Region I was 

I 

Region IX referred its first civil suit of a Public 

Water Supply System under the SDWA; 

The first multi-party de minimus cash-out settlement 

in the country was reached; 

The first administrative cost recovery case was settled; 

The first judicially-approved mixed-funding consent 

decree was filed; 

The first judicial interpretation of SARA'S broadened 

access authority was obtained; 

The Agency received one of the largest civil penalties 

paid for PMN violations; 

The first EPA case to criminally convict for violations 

of CWA pretreatment requirements was successfully tried; 

The highest prison term yet in an EPA case was handed 

down; and, 

The Agency received the first judicial opinion upholding 

"record review" under SARA. 

During FY 1987, EPA and the States maintained high levels of 

enforcement actions in specific media programs. Program Dffices 

continued to focus on high priority areas while maintaining an 

overall enforcement presence in all regulated areas. Progress in 

addressing significant violator: continued to improve in most 

programs. 
I. RECORD LEVELS OF NATIONAL ENVIRONMENTAL ENFORCEMENT ACTIVITY 

National and State Enforcement Activity 

In FY 1987, EPA and the States achieved another record 

setting year in environmental enforcement activity. The Agency 

referred the second highest number of enforcement cases in its 

history to the U.S. Department of Justice and set an all-time 

dollar record for the total amount of civil penalties assessed. 

EPA also expanded its administrative 3penalty and contractor 

listing programs while maintaining and resolving a large civil 

and criminal judicial case docket. In addition, state agencies 

developed and referred their highest number of civil cases to 

state courts and maintained strong administrative enforcement 

programs. 

State environmental agencies, which now enforce most of 

the federal environmental laws under authority delegated by 

EPA, referred 723 cases .to State Attorneys General for prosecution under sta:e law, compared with 408 in the previous 

year. In addition, the States took a total of 3,183 administrative enforcement actions under the air, water and hazardouswaste laws, compared with 4,106 in FY 1986. 

EPA referred 304 civil and 41 criminal cases to the 

Justice Department, compared with 342 and 41 in those categories in FY 1986 (see chart on following page). The Justice 

Department filed 285 EPA civil cases in FY 1987, compared with 

260 cases last year. At the end of FY 1987, EPA had 387 active 

civil judicial orders and consent decrees, compared with 322 in 

FY 1986 and 282 in FY 1985. 

EPA issued 3,194 administrative orders in FY 1987 compared 

with 2,626 in 1986 and 2,609 in FY 1985 (see chart). The largest increase in administrative orders -- from 781 in FY 1986 to 

1,051 in FY 1987 -- occurred under the Toxic Substances Control 

Act, primarily in the PCB and asbestos programs. 

The Agency established a new all-time record for the 

largest amount of civil penalties imposed in a year. EPA 

imposed over $24 million in penalties in FY 1987 compared with 

$20.9 million in 1986, and $22.9 million in FY 1985. The penalties imposed in these three years account for 60 percent of 
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all of EPA's penalties imposed since 19i4. EPA program offices 

generally have increased their use of penalties and the size of 

typical penalties under both judicial and administrative . 

authorities. 

EPA's criminal enforcement program has referred 82 cases 

'for criminal prosecution over the past two years. In 1987, 58 

defendants were convicted or entered guilty pleas, compared 

with 66 in 1986 and 40 in 1985. During 1987, federal judges 

imposed fines totqlling $3.6 millkon and prison terms of 84 

years against individuals convicted of violations of federal 

environmental laws. 

EPA also is increasing its use of the contractor listing 

sanctions under the Clean Air and Clean Xater Acts. As of 

September 30, 12 facilities were on EPA's "List of Violating 

Facilities." Facilities automatically go on the list when 

their owners or operators have been convicted of criminal 

violations of.the clean air and clean water laws (or which have 

had. continuous or recurring violations of those laws) or may be 

'added at EPA's discretion if there is a continuous pattern of. 

violation of these statutory requirements. Listed facilities 

are barred from receiving future contracts, grants, loans or 

any other form of assistance from any branch of the federal 

government. A facility remains on the list until it demonstrates that it has corrected the condition that gave rise to 

the listing. 

A STABLE AND CONSISTENT NATIONAL ENFORCEMENT PROGRAM 

Updating State/EPA Enforcement Agreements 

During FY 1987, EPA continued to enhance and reinforce 

the foundation for the State/EPA enforcement relationship 

carefully established over the past four years. The Policy 

Framework for State/EPA Enforcement Agreements, originally 

issued in FY 1984, and the corresponding program specific implementing guidance, serves as the blueprint for the State/EPA 

enforcement agreements. These agreements spell out criteria 

for good performance, state-federal roles and relationships 

and na,&onal reporting of accomplishments. EPA revised the 

Policy "amework in August of 1986, with the assistance of the 

Steering Committee on the State/Federal Enforcement Relationship, to incorporate new policy and integrate all related 

guidance developed since its issuance.. This included oversight 
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of state civil penalties, guidance for timely and appropriate 

enforcement response, involvement of the State agency attorneys 

and Attorneys General and sharing of penalties. The revisions 

were reinforced in the guidance issued this fiscal year for the 

FY 1988 enforcement agreements process. 

Evaluating State/EPA Implementation of Timely and Appropriate 

Enforcement Response Guidance 

Relationship continues to monitor implementation of the Policy 

Framework. A report on implementation of the timely and appropriate enforcement response guidance for the RCRA, NPDES, Air, 

TSCA, FIFRA, PWSS, and UIC programs addressed the extent to 

which both EPA and States are meeting the timeframes for 

enforcement response as established by each program. The 

report shows that EPA and States have made improvements in 

implementing the timely and appropriate enforcement response 

system and that the guidelines are generally having a favorable 

impact. 

o There are two notable improvements in timeliness of 

The Steering Committee on the State/Federal Enforcement 

enforcement actitons. When compared to FY 1986 performance, 

States in the RCRA program had a six percent increase in 

timeliness; EPA in the Air program had an eleven percent 

increase in timeliness. 

o Overall, program timeliness is slightly better than the 

FY 1986 results and State and EPA performance in meeting 

the timeframes is fairly comparable. Much more needs to 

be done to improve timeliness of response and continuing 

to assess how realistic the goals are. 

o States made a substantial improvement in assessing penalties 

in enforcement actions when compared to FY 1986. The most 

dramatic change is in the Air program, where States increased 

the percentage of enforcement actions with penalty from 62% 

to 92%. In RCRA, States increased the percentage of cases 

in which penalties are assessed in formal enforcement actions 

from 34% to 41%, however, there is still a significant 

difference in the extent to which States and EPA use penalties and sanctions in RCRA enforcement actions. 
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The trends are promising. Formal enforcement response by 

States has been increasing over the past few years in both 

absolute numbers and the proportion of total EPA and Stateactions as is the appropriate use of penalties or other sanctions. Efforts to further improve both State and federal 

performance in meeting T&A goals will be undertaken over the 

next fiscal year. 

Supporting Inspector Training and Development 

The Agenck-wide Work Group on Inspector Training and 

Development was organized in FY 1987 to create an inspector 

training program. As part of this project, Region 11, organize8 the Agency's first profile of Agency personnel performing 

compliance inspections and field investigations. Each compliance program worked with its Regional and State counterparts to 

develop curricula. The Office of Enforcement and Compliance 

Monitoring began developing a cross-cutting basic inspector 

training course to teach the fundamentals of inspections to all 

agency compliance inspections and field investigations personnel. The Office of Enforcement and Compliance Monitoring 

assembled necessary materials for the Basic Curriculum in 

five areas; legal, administrative, technical, communication and 

health and safety. The Office of Administration and Resources 

Management led an analysis of the compliance inspection job, 

focusing on knowledge, skills and abilities to be developed 

through training. The Work Group reviewed a draft policy statement and guidance on program implementation. Subsequently, an 

EPA Order was drafted that would establish the training program. 

Work is continuing in FY 1988 to polish the EPA Order and 

Program description for Agency-wide review and approval. The 

program will also emphasize the importance of assessing State 

training needs and providing assistance to states in meeting 

those needs. 

Improved Coordination Between State Attorney General, EPA and 

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, EPA continued to work closely with the National 

Association of Attorneys General to increase the awareness by 

Attorneys General for environmental enforcement issues. As 

part of an effort t~ exchange and disseminate information on 

environmental enforcement, EPA has continued to fund and contribute feature arcicles, major case decisions and settlements, 

indictments, federal enforcement policy, etc. to the National 

Environmental Enforcement Journal. The Journal is distributed 

within EPA and to DOJ, the U.S. Attorneys, State Attorneys 
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General, State regulatory agencies and is an important tool in 

developing stronger and more coordinated environmental enforcement efforts. With EPA assistance, NAAG has conducted a series 

of training sessions and roundtable discussions on such topics 

as hazardous waste enforcement and managing complex environmen tal litigation. 

EPA also continues to work with the National Environmental 

Enforcement Council (NEEC) to exchange views about issues on 

environmental laws and policy among law enforcement officials 

from EPA, DOJ, U.S. Attorneys, State Attorneys General, 

District Attorneys, and State Environmental Program Directors. 

EPA speakers discuss relevant environmental enforcement topics 

with NEEC. The Assistant Administrator for OECM was the ViceChair for 1987 and will be the Chair for 1988. 

111. STRATEGIES, GUIDANCE AND INITIATIVES FOR COMPLIANCE AND 

ENFORCEMENT 

Fiscal Year 1987 was a year in which the Agency continued 

the 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 discussions at the beginning of the planning cycle. 

Written strategies and guidance for compliance and 

enforcement especially for new programs, serve as important 

communications tools and frameworks for program operations. 

Highlighted below are several example accomplishments for 

improved strategies and guidance in FY 1987. 

Small VOC Source Compliance Strategy 

Agency's small VOC source compliance strategy. The strategy 

provides a process for identifying VOC categories that are 

dominated by small sources who are important contributors to 

ozone non-attainment for specific areas. The strategy creatively links three components of a compliance approach for addressing small VOC sources, i.e., compliance promotion through 

publicity and technical assistance, statistical targetting of 

inspections, and swift enforcement. 

In July 1987, the Office of Air and Radiation issued the 
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Lead Banking Penalty Policy 

The regulatory changes that allowed refiners to bank -lead 

rights created the need for a new penalty policy that could 

deal with the potential profits that could be gained by creating and trading unlawful lead rights. Such a policy was 

developed in FY 1987 and resulted in the issuance of several 

multi-million dollar notices of violation for lead phasedown 

violations. 

Despite vehement industry opposition to the higher banking 

penalties, the majority of these cases have already been 

resolved. Settlements have typically involved payment of 

substantial penalties plus the elimination of large quantities 

of lead from the lead pool. Millions of grams of lead that 

otherwise would have been used in gasoline production have been 

eliminated as a result of these settlements. 

National Municipal Policy (NMP) 

successful implementation of the Policy by the July 1988 deadline. It was critical that the Agency demonstrate that it was 

serious in enforcing against violations of established schedules, 

other noncompliance with the Policy's objectives and Clean 

Water Act requirements for municipals. Following an EPA audit 

of State and Regional actions in the Spring, and bolstered by 

schedule violation data collected in a survey performed by 

ASIWPCA, OWEP prepared an Enforcement Strategy directed at the 

worst cases. The heart of the Strategy is a list of candidates 

for referral, including Federal overfile actions. Based on the 

trends evident in the EPA and ASIdPCA surveys, the Administrator 

sent a directive to the Regional Administrators, requesting 

that they work directly with their States to carry out the 

Policy during this "final push" to July 1, 1988. Since the NMP 

Enforcement Strategy took effect in September, over 100 major 

POTWs have been targeted for EPA or State action. During FY 

1987, the number of NMP majors not under enforceable schedules 

was reduced from 63 to 23 (over 1,500 originally required 

schedules under the NMP). The nunber of majors that had achieved 

compliance rose by 234 to 503. Thirty-seven NMP majors were 

referred to DOJ and 36 were r!ferred. to State Attorneys General. 

Forty-six State and EPA NMP cases (some referred before FY 

1987) were settled in FY 1987, placing these POTWs on judicial 

schedules. 

The primary NMP goal during FY 1987 was to assure 
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Clean Water Act Amendments-Authority to Assess Administrative 

Penal ties 

Section 314 of PL 100-4 (Section 309(g)-CWA), effective 

February 4, 1987 added a new subsection (9) to section 309 of 

the Clean Water Act which authorizes the Administrator or his 

delegatees to assess administrative penalties for violation of 

National Pollutant Discharge Elimination System (NPDES) 

requirements, (including violations of NPDES permits and discharging without an NPDES permit) and for discharges without a 

dredge and fill permit required under Clean Water Act S404. 

The new statute provides for assessment of Class I and Class I1 

penalties in maximum amounts of $25,000 and $125,000. Immediately following the passage of PL 100-4 a joint Office of WaterOECM work group was formed to develop procedures, policy and 

guidance for implementation of this new authority. This work 

group included representation from all the Regions. By the end 

of August, 1987, procedures for Class I and Class I1 proceedings 

had been formulated and announced in the Federal Register, 

Interim Delegations of the Administrator's authority had been 

issued and a guidance package including various forms and 

explanatory guidance concerning the operations of Section 

309(g), was transmitted to all Regions. Additional Section 404 

guidance, which requires coordination with the Corps of Engineers is proceeding, and work towards the final promulgation of 

procedural hearing rules for both classes of penalties and of 

final delegations is also going forward. 

Reportable Noncompliance for POTW Pretreatment Program 

Implementa tion 

On September 30, 1987, the Office of Water Enforcement and 

Permits (OWEP) issued "Guidance for Reporting and Evaluating 

POTW Noncompliance with Pretreatment Implementation 

Requirements. The Guidance provides the basis for evaluating 

the compliance status of a POTW which must implenent an approved 

pretreatment program. POTWs that meet the criteria for failing , 

to implement their approved pretreatment program are considered 

in "Reportable Noncompliance" (RNC) and must be listed by EPA 

and approved States on the Quarterly Noncompliance Report. The 

criteria cover principal POTW activities including the issuance 

of Industrial User (IU) control mechanisms: compliance monitoring and inspections of IUS; enforcement of pretreatment standards; and reporting to the Approval Authority. During FY 1988, 

Regions and States will use this guidance to identify POTWs 

that are failing to implement their approved programs and 
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report them on t B QNCR. These icilities will be priorities 

for enforcement, for permit. modifications, or for technical 

assistance, where appropriate. The effectiveness of this - Guidance in identifying the most serious noncompliers will be 

evaluated during FY 1988, and, with appropriate revisions, will 

become the basis for a definition of significant noncompliance 

for pretreatment implementation in the future. 

Analysis of State Administrative Mechanisms for Enforcement 

In FY 1987, a major project was initiated to analyze 

State administrative mechanisms for enforcement to assure that 

those counted as "equivalent" to Federal Clean Water Act administrative compliance orders for reporting in Quarterly Noncompliance Reports and other Agency tracking and reporting systems 

(SPMS/OWEP) also met the Agency's definition of formal enforcement actions. OWEP, in conjunction with OECM-Water, developed 

the specific criteria. Regional program and counsel staff used 

these criteria to review and evaluate the State administrative 

enforcement documents and their statutory and regulatory bases. 

The Regional analyses were completed in March 1987. Only one 

State was found to lack any equivalent mechanism and this is 

presently being remedied. 

Pretreatment Permits and Enforcement Tracking System ('PPETS) 

In response to requests by the Regions and States, OWEP 

worked with the Regions and States during FY 1987 to develop an 

automated tracking system for overseeing the implementation of 

the pretreatment program. This system, which is a subset of 

the NPDES data system, PCS, is known as the Pretreatment Permits 

and Enforcement Tracking System (PPETS), became operational on 

November 10, 1987. The system consists of a small set of 

required information collected from existing pretreatment data 

sources, and also has the capability to allow for the entry of a 

broad range of optional information. PPETS is expected to: 

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identify national problem areas in implementation 

provide data on significant industrial users; 

provide a basis for assessment Jf the national 

program's progress and success; and 

of the pretreatment program; . .. 

provide data for assessing POTW implementation in 

terms of reportable noncompliance. 
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Effective January 4, 1988, the Regions and States are required 

to begin data' entry of the mandatory PPETS information for all 

pretreatment data collected after September 30, 1987. 

Enforcement Response Policy 

The RCRA Enforcement Response Policy (ERP) was revised 

during fiscal year 1987. Originally issued in December 1984, 

the ERP provides a general framework identifying violations 

and violators of concern and describing timely and appropriate 

enforcement response to noncompliance. The changes were made 

to reflect changes in the program and the regulated universe. 

Since the development of the original ERP, which placed priority on enforcement against interim status land disposal facilities which were out of compliance .with groundwater monitoring, 

closure/post-closure, or financial responsibility requirements, 

new program initiatives have developed. HSWA and overall 

development of the RCRA program have mandated closer scrutiny 

of other segments of the regulated community and other types 

of violations, This expansion of focus required a broadening 

of programmatic emphasis. For example, corrective action 

requirements and land disposal resttictions direct more attention to hazardous waste treaters, storers, and generators, as 

well as to land disposal facilities. 

The Environmental Priorities Initiative 

The Environmental Priorities Initiative (EPI) is an 

integrated RCRA/CERCLA Management System designed to enable 

the Agency, and ultimately the States, to identify, evaluate, 

rank and clean up first those sites that present or may present 

the greatest threat to human health and the environment. 

Off-Site Policy 

The Off-Site Policy describes procedures that should be 

observed when a response action under CERCLA or Section 7003 

of RCRA involves off-site treatment, storage or disposal of 

CERCLA waste. The procedures also apply to actions taken 

jointly under CERCLA and another statute. The purpose of the 

Off-Site Policy is to avoid having CERCLA wastes contribute to 

present or future environmental problems by directing these 

wastes to facilities determined to be environmentally sound. 
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Interim Guidance: Streamlining the CERCLA Settlement Decision 

Process 

This guidance deals with ways to improve the negotiation 

and settlement process, focusing on three areas: 

- Negotiation preparation 

- Management review of settlement decisions 

- Deadline management 

Entry and Continued Access Under CERCLA 

In June 1987, OECM issued guidance that set forth the 

Agency's policy on gaining entry and continued access to 

hazardous waste sites. The guidance discusses changes to the 

Agency's access authority brought about by SARA, and describes 

the use of consent, administrative orders, warrants, and court 

orders to facilitate access. 

Interim Guidance on Settlements with De Minimis Waste 

Contributors Under Section 122(g) of SARA 

In June 1987, OECM and OSWER issued guidance that examined 

which contributors of hazardous waste qualify for de minimis 

treatment under CERCLA and provides direction on the form and 

timing of settlement with such parties. 

Covenants Not To Sue Under SARA 

In July 1987, OECM, OSWER and DOJ issued guidance that 

provides information on implementing the mandato'ry and discretionary provisions of SARA relating to the use of releases from 

liability, or "covenants not to sue," in CERCLA consent decrees. 

Guidance on the Use of Stipulated Penalties in Hazardous Waste 

Consent Decrees 

This guidance issued in September by OECM, provides direction 

on how to structure the stipulated penalties provision in 

consent decrees. 

Guiaance on Federal Superfund Liens 

This guidance issued by OECX in September 19P/, implements 

the new lien authority created'by SARA. The document discusses 

when liens should be issued and what they should contain. 
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Final RCRA Comprehensive Ground-Water Monitoring Evaluation 

Guidance 

In December, 1986, OSWER issued guidance which provides a 

framework for evaluating inspections/evaluations of groundwater 

monitoring systems under RCRA. 

RCRA Corrective Action Interim Measures Guidance 

In June 1987, OSWER issued guidance intended to assist the 

Regions in determining the need for an interim measure and 

directing the work which must be performed as part of the 

corrective action program to mitigate or remove the exposive 

threat presented by release. 

RCRA Corrective Act ion Plan 

In November 1386, OSWER issued a plan to aid the Regions 

and States in detarmining and directing the specific work which 

must be performed as part of a complete corrective action program. It provided a technical framework for use during the 

development of Corrective Action Orders and corrective action 

permit requirements. 

Waste Oil Interim Enforcement Guidance 

This guidance provides informa tion to the Regions about 

the technology of the waste oil industry as well as strategies 

for enforcement. 

RCRA Groundwater Monitoring Technical Enforcement Guidance 

This guidance describes in detail what EPA deems to be 

the essential components of a ground-water monitoring system 

that meets the goals of the Resource Conservation and Recovery 

Act. The guidance is to be used by enforcement officials, 

permit writers, field inspectors and attorneys at the federal 

and state levels to assist them in making informed decisions 

regarding the adequacy of existing or proposed ground-water 

monitoring systems or modifications thereto. 
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Criminal Press Policy 

Administrator for External Affairs, states the importance of 

media (press) releases to maximize deterrence, and describes 

the timing and content of media releases allowed in criminal 

cases. 

Requests for Parallel Proceedings 

This policy, issued jointly with the Assistant 

This policy establishes procedures within the criminal 

and civil sides of OECM for expeditious handling of regional 

referrals which present parallel proceeding issues. 

Criminal Cases and Injunctive Relief 

This policy provides for direct regional responsibility - 

a far more workable alternative than OECX review - to evaluate 

criminal referrals and determine whether immediate civil relief 

may be needed. 

IV. 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 

U.S. v. Ford Motor Co.: The Sixth Circuit held that the U.S. 

can enforce the current federallv-aooroved State ImDlementation 

Plan (SIP) even though the defen&ani-and the State bf Michigan 

had entered a consent judgment in State court invalidating the 

SIP regulation. The court held that the State could only 

revise its SIP by submitting a revision to EPA for approval. 

The court distinguished this case from previous cases which 

recognized a State court invalidation of SIP regulations ab 

initio based on procedural deficiencies in adoption of thF 

regulations. The Sixth Circuit also ruled that federal 

enforcement of the current SIP regulation could proceed 
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despite the pendency of a SIP revision proposed by the State. 

This case was subsequently settled for $1.75 million and 

resulted in the elimination of approximately 800 tons of VOC 

annually. (Region V) 

U.S. v. Wheeling-Pittsburgh Steel Corp.: The Third Circuit 

ruled that federal enforcement of an existing SIP could proceed 

despite the pendency of a SIP revision. 

district court had ordered a modification to a consent decree ’ ’ 

based on a “bubble” proposal which the State had not formally 

submitted to EPA. The court ruled that the district’court 

erred and held that the company was not relieved of its’obligations to comply with existing SIP requirements. (.Re.gion, 111) 

U.S. v. SCM Corp.: The court in this case assessed $350,000 in 

civil penalties against SCM Corporation for violations of SIP 

particulate matter and acid mist regulations.. Among other 

things, the’ court ruled that penalties may be assessed beginning with the earliest provable date of violation, even prior 

to EPA’s issuance of a Notice of Violation, subject to a five 

.year .statute of limitations. (Region 111) 

U.S. v. Magma Copper Company: 

brought by EPA against the second largest sulfur dioxide (SO ) 

Douglas Reduction Works in Douglas, Arizona, shut down on 

January 15, 1987 due in part to a Region IX civil action.) A 

consent decree entered in Federal District Court in Tucson 

between the United States and Magma Copper Company requires 

Magma to bring their primary copper smelter into full compliance with Arizona emission 1irnit.ation.s by.November, 1988, by 

upgrading the smelting furnaces and air pollution control 

equipment. The consent decree requires iflagma to adhere to a 

strict construction schedule for installation of new equipment, 

to post a $20 million letter-of-cradit to insure shutdown of 

the existing smelting furnaces, to meet the SO2 NAAQS, and to 

limit short term peak SO2 concentration limits to ‘pro,tect 

penalties and requires Magma to pay .. a civil , .. penalty of $600,000. 

In this case, the 

~ 

A successful civil action was 

source in Region IX. (The largest SO2 source, the Phelps Do 2 ge 

asthmatics. The consent decree also cont,ains stiff stipulated .. 

.. ,. 

U.S. v. Borden, Inc.: In an action to enforce a consent decree 

requiring installatinn of air pollution control equipment, the -- 

District-Court awaLJed EPA $55b,000 in stipulated penalties. 

The court agreed with EPA that Borden had failed to properly 

organic compounds, and to apply for a State operating permit, 

as required by the decree. (Region 11) 

-install and operate equipment for the control of volatile 
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- U.S. V. General Motors: On August 17, 1987, Region I filed a 

complaint under the Ciean Air Act against General Motors in 

Framingham, Massachusetts, to collect $13 million in penalties 

for a 20-month period during which GM operated in violation of 

the federally-approved Massachusetts ozone State Implementation 

Plan (SIP). This case is a central piece of a larger Region I 

initiative to address violations by sources emitting volatile 

organic compounds (VOCs) which are ozone precursors. The 

initiative also included issuance of the Region's first Notices 

of Noncompliance under Section 120 on December 19, 1986, to 

Archer Rubber Company and on December 30, 1986, to Haarz-Mason 

Company; and entry on January 16, 1987, of a consent decree 

with National Gypsum collecting the largest Clean Air Act 

penalty to date in the Region. 

Vinyl Chloride Cases: The Agency settled several civil actions 

for violations of the National Emission Standard for Vinyl 

Chloride, a hazardous air pollutant. The settlaments typically 

require operator training, detailed operation and maintenance 

procedures, and where necessary, payment of substantial civil 

penaltie;. The settlement penalty amounts were: Occidental 

Chemical Corp. (NJ), $490,000; B.F. Goodrich Co. (LA), 

$395,000; Goodrich - Louisville (KY), $333,500; PPG Industries 

(LA), $225,000; Union Carbide Corp. (TX), $142,000; Goodrich - 

Calvert City (KY), $123,500; Dow Chemical Co. (TX), $105,000; 

Dow (LA), $87,400; and Occidental (LA), $75,000. 

The City of Indianapolis, Indiana entered into a Consent Decree 

with the United States Environmental Protection Agency (U.S. 

EPA), Region V to remedy air pollution violations from eight 

sewage sludge incinerators at its Nunicipal Waste Water 

Treatment facility. These sewage sludge incinerators emitted 

particulate matter in excess of the rate allowed under the 

Indiana State Implementation Plan (SIP). Indianapolis agreed 

to install new high-energy venturi scrubbers on each of the 

incinerators at a total cost of approximately $4.5 million and 

pay a civil penalty of $75,000. Currently, four scrubbers have 

been installed and have demonstrated compliance with the Indiana 

SIP. (Region V) 

Air (Mobile) Enforcement 

U.S. v. Nobek Distributors, Inc.: This gasoline distributor 

was issued an NOV in 1984 for the distribution of contaminated 

gasoline. The proposed penalty was $16,100. When settlement 
- 15 - 

discussions failed, an action was brought in federal district 

court. On June 30, 1987, a judgement was issued against the 

company on a motion for summary judgment for the full statutory 

penalty of $18 0,000. 

Mac's Muffler: EPA initiated an enforcement action for the 

removal of emission control devices by a repair facility. 

After trial, the court found the facility, and the owner, 

liable and assessed $21,000 in penalties. 

Ceds, Inc.: A $75,000 settlement was reached with the largest 

manufacturer of catalytic converter replacement pipes. The 

manufacturer is also prohibited from any further marketing of 

the devices. EPA worked with the state of Indiana to resolve 

this and related cases against parts distributors who sold the 

devices and repair facilities who installed them on vehicles. 

The state cases also involved a large number of catalyst 

replacements as a condition of settlement and the collection 

of substantial penalties against the distributors, installers 

and Ceds, as well. 

Geo-Plex Corporat'ion: EPA investigated this manufacturer of 

aftermarket catalysts and determined that the devices did not 

perform the esseniial function of a catalytic converter. The 

court granted EPA's request for an injunction preventing further marketing of the device, and ordered the company to notify 

each purchaser that installation of the device could result in 

tampering liability. EPA's actions in this case received 

excellent trade press coverage and conveyed a strong message 

to this industry of the Agency's intent to firmly enforce these 

requ ire men t s . Will Petroleum, et al.: An extensive EPA investigation led to 

the issuance of an $11 million NOV to this comDany based on an 

alleged scheme to profit from illegal leaded gasoiine blending. 

Three other companies were also implicated and received NOVs 

for similar penalties. These cases have not yet been resolved. 

The announcement of these actions prompted other companies to 

initiate their own internal audits for compliance with these 

regulations. 

Good Hope Refinery: An action rlas filed against this company 

seeking $18 million in penalties for lead phasedown violations. 

The company filed for chapter 11 bankruptcy. EPA resolved the 

case via a court approved restructuring plan. EPA accepted a 

$2.3 million cash-out settlement over another option that would 

have amounted to approximately $10 million in eight years. 
- 16 - 

Canal Refining Co. : EPA negotiated 

lead Dhasedown case in which an NOV 

a $74b,OOO penalty. 

a $710,000 settlement in a 

had been issued proposing 

Water (CWA h SDWA) Litigation 

The CWA enforcement program recorded a significant improvement 

over previous years in concluded cases and civil penalty assessments. The Federal program concluded 74 civil cases in FY 1987, 

the highest number since 1977, and received judgments for 

$6,602,587 .in civil penalties, the highest amount ever. 

Region I initiated use of EPA's new Clean Water Act 

administrative penalty authority by issuing one of the first 

administrative penalty orders in the nation. In a Class I 

proposed penalty order, the Town of Biddeford, Maine, a penalty 

of $25,000 was proposed to be assessed for failure to implement 

a pretreatment program. In a Class I1 proposed penalty order, 

the Dartmouth Woolen Company of New Hampshire a $125,000 penalty 

was proposed for continuous failure to submit discharge monitoring reports and ot:ier data. Five days later, on September 23, 

the Regional Administrator, Region VI, proposed the entry of 

Class I penalties against 10 respondents for various alleged 

NPDES program violations. 

U.S. V. Joint Meeting, Rutherford, East Rutherford and 

Carlstadt, NJ: An amended consent decree was lodged with the 

court resolving the above-captioned case. In this action, 

municipal defendants have been assessed a civil penalty of 

$50,000, pursuant to Section 309(d) of the Clean Water Act, for 

their violations of their NPDES permit. The defendants also 

violated a previously entered partial consent decree embodying 

interim effluent limits and a compliance schedule. For their 

violation of the previous consent decree, defendants are 

assessed an additional $350,000, based upon the stipulated 

penalties provided in the original decree. Of this $350,000, 

$100,000 is payable in cash, with the balance suspended pending 

defendants' final compliance with the amended decree's requirement to "cease discharging" by December 31, 1987. (Region 11) 

U.S. v. General Development Utilities: 

Florida facilities operated by General Development Utilities 

This case involved two 

which were originally intended to be no discharge systems. 

Due to insufficient design capacity, increasing flows, and 

operations changes, both facilities had unpermitted discharges. 
- 17 - 

As a result of extensive pre-filing negotiations a consent 

decree was signed with a $487,000 upfront penalty and schedules 

(with stipulated penalties) for the construction of a multimillion dollar facility at each location to cease discharge. 

These included spray irrigation at the Silver Springs Shores 

site and spray irrigation and deep well injection at the North 

Port site. An extremely important factor in the negotiations 

involved EPA's presentations of calculations per the penalty 

of $100,000 was their maximum based on their perception of 

other settlements that they were aware of. Firm insistence on 

obtaining more than the economic bene'f i t of non-compliance, 

under the EPA Civil Penalty Policy, was successful in bringing 

about agreement on the much larger penalty. Another unusual 

aspect of the case relating to the North Port site was extensive public controversy. By close coordination with local and 

State officials, agreement was reached with no public 

objections. (Region IV) 

Ashland Exploration Administrative Order: An Administrative 

Order was negotiated and signed between Ashland Exploration 

and EPA regarding underground injection activities in the 

Xartha Field of Kentucky. The Order requires Ashland to plug 

and abandon 600 injection wells, 1200 production wells, provide, 

alternate water supplies to replace contaminated private wells 

and to clean up the areas around the oil-brine separators. In 

addition, Ashland has paid a penalty of $125,000, the maximum 

allowable under the Safe Drinking Water Act. The Order was 

finalized in September of 1987. (Region IV) 

Region IX referred its first civil suit of a Public 'dater 

Supply System undar the SDWA in :-larch, 1987. This case, if 

decided in favor of EPA, will have precedential value of 

national significance in defining a Public Water Supply System 

under the act. The defendant in this case is one of perhaps 

several dozen systems in California serving raw OK partially 

treated irrigation water to hundreds of residences. As this 

case unfolds, the Region will prepare a strategy including 

administrative Orders and further lawsuits to bring these 

systems into compliance with the act. 

Hazardous (RCRA E, CERCLA) Waste Litigation 

MUlti-PaKty Settlements: Probably the ntust significant: 

accomplishments in the Superfund area during the past fiscal 

year were the several multi-party settlements achieved. A few 
- 18 - 

merit special note. Under the judicial settlement in the 

aeacon Heights (Connecticut) case, 32 generators will undertake remedial action at the site that is projected to cost. 

more than $20,000,000 and will pay EPA's oversight costs in 

excess of the first $500,000. In the Cannons case, the first 

multi-Dartv de minimis cash-out settlement in the countrv was 

reachei; 267 parties combined to contribute $10,900,000 toward 

the cleanup of the four Cannons sites in New Hampshire and 

Massachusetts. The negotiations in the Union Chemical (Maine) 

case culminated in the first administrative cost recovery 

xlement in the country. Two hundred sixty-three parties 

have agreed to pay 80 percent of EPA's and the State of Maine's 

past casts at the site, for a total of $1,649,600, and to 

conduct the RI/FS for the site. In the settlement concerning 

the McKin (Maine) site, more than 200 parties have signed on 

to complete tne necessary rsmedial action by desianina - and 

constricting a groundwater treatment system; pay past and 

'future costs to the U.S. in the am0un.t OE $1,950,000, and pay 

pait and future costs to the State of 4laine in the amount of 

j 1,15 0 ,'O 0 0 .' 

A consent decree between the United States and General Motors, 

governing remedial work at the Harvey and Knotts Site, was 

filed in .the United States District Court for the District of 

Delaware on August 23, 1397. General i4otors agreed to perform 

tne' relnedial action, pay $979,638 toward EPA's past rosponse 

costs, and pay two-thirds of EPA's future oversight costs. 

Pursuant to the terns of the decree, ??A will reimburse General 

?lotors for one-third of the cost of the remedial iction. This 

is the first judicially-approved mixed funding consent decree 

in the nation. (Region 111) 

(, 229 ion I ) ,.. 

ilaxey Flats Site: On >larch 24, 1337, Region IV signed an 

Administrative Order bv Consent with 75 of the 332 ootentiallv 

responsible parties (?ips) at the Xaxey Flats Nucleir Disposai 

Site in Fleming County, Kentucky. The Xaxey Flat site was the 

second if six commercial radioactive disposal sites commissioned 

in the United States. The site, which was active from 1963 to 

1977, had been included on Superfund's National Priorities List 

in October 1996. The order requires the PRPs to complete a 

remedial investigation and feasibility study by July 1988. The 

cost of the investigation and study has been estimated to be in 

excess of $1.3 million. The order raquires the PRPs to refund 

EPA's oversight costs. (Region IV) 
! 

- 19 - 

During FY 1987, the first judicial interpretation of SARA'S 

broadened access authority was obtained in U.S. V. Long in an 

order granting EPA access to the Pristine NPL site. In the 

Bofors-Nobel case, a settlement was achieved with a potential 

purchaser of the site obtaining $15 million for cleanup of 

this highly contaminated Michigan facility. This agreement, 

is now serving as the principal model for the development of 

national guidance on potential purchaser settlements. 

(Region V) 

Perhaps one of the most significant interlocutory rulings 

achieved in FY 1987 was in the Seymour Recycling case. A 

judicial opinion was achieved in that action clearly confirming 

that judicial review of EPA's selected remedy would be "on the 

record" rather than at a full trial. Such review is very 

favorable to EPA, both in terms of our burden of proof and the 

resources required. This was the first judicial opinion 

upholding "record review" under SARA, and narrowly limited a 

very unfavorable opinion in Ottati and Goss case to its 

somewhat unique procedural circumstances. 

In Laskin, the Sixth Circuit Court of Appeals granted EPA's 

mandamus petition, holding that the reference of dispositive 

motions to a special master was not authorized by the Federal 

Rules of Civil Procedure. The opinion set national precedent 

concerning the appointment of special masters, a circumstance 

arising in an increasing number of environmental cases. 

A district court order denying the defendant's motion to 

dismiss our Conservation Chemical Corporation of Indiana (CCCI) 

RCRA case provides precedent clearly upholding U.S. EPA authority to enforce RCRA in States that have authorized RCRA 

programs. The argument that EPA lacks such authority has 

clouded RCRA enforcement nationwide since Administrative Law 

Judge Yost adopted it in his unfavorable - CID decision early 

in the year. 

Several of the administrative orders issued set national 

precedents for implementation of new SARA provisions. The 

Elyria/Republic order was the first in the nation to exercise 

new SARA authority to administratively order access ar face 

penalties. The Rasmussen order was the first to exercise new 

administrative subpoena authority under SARA. The ,'CAAP order 

was the first ever issued under new 5120 of SARA adlressing 

federal agencies. This $50 million remedial action agreement 

.. 
- 20 - 

broke an impasse that had arisen between federal agencies and 

EPA, and is currently serving as a national model for our 

federal facility negotiations. 

U.S. v. Conservation Chemical Company et al. In FY 1987, the 

parties to tnis case reached agreement on the terms of a 

settlement and a Consent Decree has been lodged with the United 

States District Court for the Western District of Missouri. 

This settlement resolves one Of EPA's longest running, most 

hotly contested hazardous waste cases. The Conservation Chemical Company site, a former treatment, storage and disposal 

facility, which operated from approximately 1960 to 1980, is 

one of the original sites addressed by the pre-CERCLA uncontrolled hazardous waste site program. Initial site investigation was conducted beginning March 1979. In September, 1980, 

the first of two lawsuits regarding ths site was filed in 

Federal District court for the Western District of Missouri 

under Section 7003 of RCRA. In November 1982, the United 

States filed its second suit involving this site, under 

Sections 106 and 108 of CERCLA and Section 7003 of RCRA, 

seeking to obtain responsible party clehnup of the site. The 

suit named not only the site owner/operators but also the 

parties believed to be the principal generators of the hazardous wastes/hazardous substances of concern at the site. In 

1984, these companies sued approximately 250 additional 

parties, including 16 insurance companies and 10 Federal agencies and departments, for contribution or indemnification. 

In May 1935, on the eve of trial, an agreement was reached 

which called for partial reimbursement of past response costs 

and initiation of implementation of the remedy by the defendants. The defendants agreed to complete all remedial design 

and construction work, operate the treatment system and undertake all operation and maintenance activities required to keep 

the pump and treat system functioning properly. In addition, 

the generator defendants will pay response costs. The CCC 

defendants, through their insurers, will pay past response 

costs of $1,600,000. This case is one of the most often cited 

cases in favor of the Government, since it has resulted in the 

establishment of a number of favorable legal precedents, 

relating to constitutional issues, as well as questions of 

liability and the meaning of "imminent and substantial endangerment." This case was one of the first cost recovery cases 

to have tile Government's cost accounting techniques exposed to 

the scruti .y of extensive discovery, which in turn lead to the 

adoption of improved cost accounting procedures. This case 
-'21 - .. 

was also one of the first to make extensive use of computerized 

data bases for litigation support. Computerized document control and transactions analysis currently in use by €PA arelargely the offspring of similar systems first developed for 

- CCC. (Region VII) 

Bunker Hill: Bunker Hill, a Superfund site since 1983, is one 

of the largest Superfund sites in the region. Over 5,000 

people live in the vicinity of the site. When Gulf Resources 

and Chemical Corporation was still running the Bunker Hill 

site, negotiations between the company and €PA proceeded at an 

excrutiatingly slow pace. In FY 1987, EPA and Gulf Resources 

signed a consent order initiating a Remedial Investigation/ 

Feasibility Study (RI/FS) at the site. The RI/FS, one of the 

largest being conducted nationally, is being funded by Gulf 

Resources. The RI/FS is expected to cost between $5-6 million. 

This is quite possibly the largest settlement with a single 

party for an RI/FS, representing a sizeable cost savings to 

the government. (Region X) 

Region I has been one of the national leaders in addressing 

the serious problems resulting from lead contaminated soil. 

The Region has embarked in a major project in the City of 

Boston. The Region was granted over $6 million to abate lead 

contaminated soil in Boston's inner city neighborhoods. The 

project is intended to be a pilot program which demonstrates 

the positive effects of removing contaminated soil from 

children's environments. In addition, the Region began efforts 

to require owners of lead contaminated properties to undertake 

cleanup efforts under Section 7003 of RCRA. During FY 1987, a 

landmark agreement was reached with the City of Boston under 

which the City will cleanup 25 contaminated properties which 

it owns. 

Lancaster Metals and Fulton Financial Realty Co.: In this 

case, Region 111 issued its first enforcement action for violation of RCRA's financial assurance requirements to provide 

In'Region VI, as a resuit of a three. week multi-media. 

inspection which included participation by the Groundwater 

Task Force, a civil action was filed in federal court against 

Cecos/BFI in Livingston, Louisiana. A penalty in the amount 

of $70,000,000 is -being sought. The filing of this action 

followed six weeks of intense negotiations between the company, 

the Department of Justice and the EPA. An agreement could not 

be reached; therefore, the civil action was initiated: 

proof of a bond and liability insurance. .. 
- 22 '- 

.Pesticides and Toxics Litigation 

In one noteable action, EPA filed a Motion To Show Cause in 

the District Court of Alaska to require the Alyeska Pipeline 

Service Company to comply with a.n investigative subpoena 

issued to Alyeska in response to allegations tnat they were 

mis-handling chemical substances or waste materials. In 

December, 1987, Chief Judge Fitzgerald; of the District Court 

of Alaska, .issued a written opinion upholding the Agency's 

authority to use TSCA subpoenas to conduct investigations. 

The decision in United States v. Alyeska Pipeline Service 

Company is the first written decision of any court concerning 

EPA's TSCA subpoena authority. This decision is currently on 

appeal to the Ninth Circuit Court of Appeals. 

American Telephone 6 Telegraph Company: This action was 

brought seeking civil penalties for the illegal production and 

use of two chemical substances that the American Telephone and 

Telegraph Company (AT&T) had manufactured without listing the 

chemicals with the TSCA Chemical Substances Inventory, as 

required by Section 5 of TSCA. A civil penalty of $2.65 

million was sought in the complaint. Although AT&T voluntarily 

disclosed the violations to EPA, the €PA viewed these violations as serious because the Agency was precluded from conducting required premanufac ture safety review of the chemicals 

before the substances were manufactured and distributed in 

commerce. In settlement, AThT agreed to pay 3 civil penalty 

of $1.0 million and to implement a number of specific types of 

compliance activities, including: corporate-wide employee 

education concerning TSCA requirements, payment of all costs 

for a number of public service announcements about TSCA 

requirements applicable to the electronics snd semiconductor 

industry, and the initiation and completion of a comprehensive 

TSCA compliance survey audit at all AThT domestic facilities. 

The compliance survey which began in July, 1987, will assess 

compliance with Sections 5, 8(a), 8(c), 8(d), 12 and 13 of 

TSCA. €PA retained the authority to initiate criminal enforcement actions or actions to abate situations involving imminent 

hazards during the term of the compliance survey. For violations discovered by AT&T as the result of the audit, AT&T 

agreed to pay as a stipulated penalty the sum of 10,000 for 

each chemical or chemi-a1 substance found to be in violation 

of any or all of TSC- Sections 5 8(a), 8(c), 8(d), 12 or 13, 

unless EPA determines that the chemical or chemical substances 

presents an unreasonable risk to health or the environment. 
- 23 - 

For chemicals identified in the survey and -~nd by EPA to 

represent an unreasonable risk, EPA reserved the right to seek 

penalties of up to $1.0 million per chemical substance. The 

$1.0 million civil penalty is the largest penalty paid to date 

for PMN violations. 

Canon U.S.A. , Incorporated: Canon U.S.A. of Lake Success, 

New York, the American subsidiary of the Japanese Canon Corporation, was charged in this administrative complaint with violations arose in connection with the manufacture and import into 

the United States of two photocopier toners containing chemical 

substances not listed on the TSCA inventory. The complaint 

sought civil penalty of $1.6 million. Canon voluntarily dis- ' closed the violations to EPA upon their discovery. The consent 

agreement negotiated in the Canon case requires the payment of 

a civil penalty of $400,000 and the initiation and satisfactory 

completion of a number of items of specific performance, 

including: development and implementation of a training program 

on United States TSCA requirements for Canon personnel in both 

Japan and the united States, translation of EPA TSCA requirements, regulations and guidance documents into the Japanese 

language and presentation of a comprehensive seminar on American TSCA requirements for Japanese businesses involved in the 

export of chemicals to the United States. This seminar was 

held in Tokyo, Japan in the spring of 1987 and included the 

participation of several representatives of EPA's Office of 

Pesticides and Toxic Substances. 

Delonghi America, 1n.c.: This action concerns the illegal 

ImDort. sale and distribution in commerce of oil-filled Dortabie electric space heaters from Italy by Delonghi. 

violation was initially discovered by Environment Canada. EPA 

tests confirmed that several shipments of heaters contained 

high levels of oil contaminated with PCBs. Import of PCBs or 

FCB Items were banned in 1978. Since these heaters were sold 

in commerce of the United States to consumers for home use, 

EPA considered the violations to be serious. Delonghi has 

subsequently terminated all import and distribution of PCB 

contaminated heaters. EPA issued a civil penalty of $1,507,000 

for the violations. 

The- 

?litsubishi International Corporation: This Complaint charged 

:4itsubishi International witn the illesal import of a chemical 

substance on nine separate occasions pkior to the submission 
- 24 - 

of a Premanufacture Notice (PMN), as required by TSCA 55, and 

of violation of the U.S. Customs Service regulations promulgated pursuant .to TSCA 513. An adjusted gravity based penalty 

of $280,000 was proposed. In settlement of this action, 

Mitsubishi agreed to pay a civil penalty of $98,000 and to 

return 31,000 pounds of the unregistered chemical to Japan. 

'BASF Corporation and BASF Inmont Division: The. Agency issued 

an administrative civil comDlaint aaainst BASF CorDoration and 

one of its divisions, Inmonk, seeking a civil penaity of $4.3 

million for violation of the TSCA Sections 5 and 13 requirements when it imported seven chemical substances into the 

United States without completing the Premanufacture Notice 

requirements of TSCA and for false certification of U.S. 

Customs Service import certifications. Manufacturers or 

importers are required to notify the Agency of their intent to 

manufacture or import new chemicals so the Agency can evaluate 

any hazards posed by the chemicals before they are manuEartured 

or brought into the United States. This was the sixth civil 

complaint filed against BASF or its subsidiaries for violations 

of TSCA and the proposed penalty included an increased civil 

penalty for prior TSCA violations, in conformance with the 

Agency's TSCA Civil Penalty Policy, 45 FR 59770, September 10, 

1980. This penalty was the largest ever sought under TSCA for 

violations other than PCBs. €PA is barred from disclosing 

which chemicals or chemical substances are involved, the 

amounts produced or actual uses. Under TSCA such information 

is considered confidential business information. On April 19, 

1988, the case was settled in which BASF has agreed.to pay a 

$1.3 million penalty and establish a comprehensive TSCA 

training program for its employees both in this country and its 

parent company's headquarters in West Germany. BASF is also 

required to encourage TSCA compliance by advertising in 

national trade publications and conducting TSCA seminars, and 

it must perform an extensive TSCA compliance audit at 151 of 

its facilities. This is the largest penalty ever for illegally 

importing and processing PFlN chemical substances. 

Union Carbide: A Consent Agreement and Fina.1 Order wa.s signed 

on,July I, 1987, in the Union Carbide TSCA Section 8(e) 

enforcement case. 

1985 for $3.9 million. This setl.lemsnt sets a penalty of 

$80,000 and calls for Union Caruide to conduct a comprehensive 

review of its potential TSCA substantial risk information 

acquired since 1977. This case represented the first 8(e) 

case issued by the Agency. 

The initial complaint was issued in March 
- 25 - 

Gonzaga University in Spokane, Washington: EPA's first 

inspection of Gonzaga University revealed the presence of six, 

large transformers which were leaking. EPA assessed a final 

penalty of $29,325, but settled for a cash penalty of about 10% 

in exchange for a unique and unusually ambitious program of 

early disposal and other activities whose value far exceeded 

the penalty. First, Gonzaga disposed of the six transformers 

and replaced them with non-PCB transformers. Then, Gonzaga 

developed an outreach program to identify all PCB Transformers 

in the metropolitan Spokane area. By working with the Washington Water Power Authority and the Spokane Fire Department, the 

outreach program contacted the owners of known and potential 

PCB Regulations. In particular, the University worked with the 

Spokane Fire Department to develop a PCB Transformer registration program to insure that all the PCB Transformers which had 

been identified were also registered with the Fire Department. 

The value in the increased awareness of PCBs in the Spokane 

area should go well beyond the amount of penalty which was 

mitigated. 

Pacific Power and Liyht Co. of Portland, Oregon: In a firstof-a-kind Consent Agreement, EPA has agreed to forgive a 

$66,000 assessed penalty exchanqe for cleanup of a site. In 

six separate transactions, Pacific Power and-Light Co. sold 

discarded, undrained electrical equipment to Portable Equipment 

Salvage. The equipment, which had not been tested for PCBs, 

was drained at Portable Equipment Salvage and the liquid was 

either resold, drained onto the ground or burned in an on-site 

incinerator not approved by EPA. The unique feature of this 

agreement is that clean-up of the entire site will be accomplished by Pacific Power pursuant to the Superfund Amendments 

and Reauthorization Act (SARA) regardless of the involvement 

of other potentially responsible parties who may have contributed to improper disposal at the site. Pacific Power will 

perform stabilization and a Remedial Investigation and Feasibility Study, and will then implement all such actions as EPA 

deems necessary. Other potentially responsible parties will 

be encouraged to participate in the cleanup, but it will be 

accomplished with or without their participation. However, 

if Pacific Power does not complete the requirements of the 

Consent Agreement, it will be required to pay the $66,000 

penalty. (Region X) 
Criminal Litigation 

Robert E. Derecktor: In this multi-media case, guilty pleas 

encompassed four EPA statutes (the indictment has charged 

violation of six EPA statutes); in addition to substantial 

fines, the sentence includes the requirement that the president certify monthly to the probation department for five 

years that his corporation has not violated any environmental 

law. 

USM: The first EPA case to criminally convict (by guilty plea) 

for violations of CWA pretreatment requirements; the fine of 

$1,025,000 was the largest since the 1976 kepone case against 

Allied Chemical Corporation. 

Harwell and Baggett: In this case (involving unlawful 

transportation, storage and disposal in violation of RCRA) , two 

individuals pled guilty and were sentenced; one received three 

years of incarceration, the highest prison term yet in an EPA 

case: the other, a Eormer employee of a state environmental 

protection division, received 1 1/2 years. 

Edmund Xoods: The first EPA case to criminally convict (by 

guilty pleas) for falsehood arising out of the UIC requirements 

of the SDWA. 

- 

Mercier and McLeod: The first €PA case to criminally convict 

(by -. guilty pleas) for violations of CAA lead phase-down 

requiremen ts. 

Custom Engineering: The testing laboratory and its president 

pled quiltv and were sentenced; this is another in a series 

if CAA criminal cases involving falsification to meet automobile emissions standards. 

Marine Power: The dry dock company and its officers pled 

guilty and were sentenced; this is one of three CWA criminal 

cases involving discharge of ship-repair wastes, and is notable 

in part because the investigation included the use of.SCUBA 

di vets. 

Assisted and joint investigations - 

Jack E. Xhite - a major, joint investigatiln involving milk 

and cattle contaminated by a restricted pesticide; White was 

convicted at the conclusion of a two-week jury trial of counts 
- 27 - 

under Title 18, FDCA, and CWA (for discharge of pesticidecontaminated wastewaters) , and he was sentenced to three years 

of incarceration. 

In a case with international ramifications which is pending 

sentencing, as a result of a joint investigation the second 

convictions (by guilty pleas) were obtained for the export of 

hazardous wastes for unlawful disposal (the first was the 

Colbert brothers case for shipment to Africa: in this case the 

wastes were shipped to Nexico). 

In another case with international ramifications which has not 

yet been tried, as a result of a major, joint investigation 

into the ocean dumping of hazardous wastes, twenty-one defendants (including a foreign company and many of its ship captains) 

were indicted in this first case to enforce MPRSA. 

v. NEDIA SPECIFIC EXFORCEHENT PERFORMANCE; SUCCESSFUL RESOLUTION 

OF SIGNIFICANT VIOLATORS .. .. 

In Fiscal Year 1987, the Agency ma.intained high levels of 

enfoccement actions in specific media programs, as well as on 

the national level. Also, 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 violators." 

Air Enforcement Activity 

EPA has maintained a strong Federal enforcement program 

directed at violations of State Implementation Plan requirements ( SIPS), New Source Performance Standards (NSPS) , and 

'National Emission Standards for Hazardous Air Pollutants 

(NESHAPs). The Agency has also increased its emphasis in the 

last year on enforcement of Prevention of Significant Deterioration (PSD) and nonattainment new source review (NSR) 

requirements. .. .. i -. 

' The initiation of stationary source civil cases was down 

slightly from the record level of 112 cases initiated in 

L~' 1986 to 98 in FY 1987. The decline of about 15% may be 

a'-tributable to some extent to an adverse court decision 

affecting enforcement of SIPS where SIP revi-sions are pending. 

However, the air program issued the highest number of administrative orders-(191) within the last five years. 
- 28 - 

In 

Based on initial penalty data which is currently being 

assembled, the median Stationary Air judicial penalty increased 

65% from FY 1986 to $62,000 in FY 1987. The percentage of. Air 

cases which involved a penalty was maintained at 96% in FY 1986 

and 1987. 

The Mobile Source program has achieved significant 

increases in penalty sizes in FY 1986 and 1987. The program 

doubled its yearly penalty total from $2.3 million in FY 1986 

to $4.6 in FY 1987, principally due to the fact that the average 

penalty increased from $5,500 to $13,100. 

Compliance 

i t ial Enforcement 

Action Taken 

Progress in Returning Significant Air Violators to Compliance 

In FY 1987, EPA and the States made progress in returning 

significant air violators to compliance. At the beginning of 

the year, EPA/States identified 637 significant air violators 

including 160 with enforcement action initiated. At the end 

of the year, 490 significant violators had been addressed by 

returning 247 placing 108 on acceptable compliance schedules, 

leaving a total of 147 to be addressed next year (see page ). 

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. 

previous years, good performance has been maintained as 

detailed in the chart below: 

In comparing the air enforcement efforts in FY 1987 to 

BOY SVs 

FY 1985 

513 

391 (76% 

187 

109 

36%) 

21%) 

95 (19% 

122 (24% 

FY 1986 

6 47 

509 (73% 

241 (37% 

. .. 

148 (23% 

120 (19% 

138 (21% 

FY 1987 

637 

490 (77%) 

247 (39%) 

135 (21%) 

10r (17%) 

147 (23%) 
- 29 - 

EPA and the States identified 586 new significant 

violators in FY 1987 compared to 472 in FY 1986. Of the 586 

new significant noncompliers 399 (68%) remain unaddressed as 

compared to 342 (72%) for FY 1986. 

' Water Enforcement Activity 

CLEAN WATER ACT - NPDES 

The decrease in the referral of Clean Water Act cases to 

the Department of Justice from FY 1986 t3 FY 1987 reflects a 

decrease in pretreatment referrals against industrial users 

(four in FY 1987 and 29 in FY 1986). The Agency continued its 

emphasis on municipalities that need construction to meet the 

July 1988 deadline under the National Municipal Policy. To 

support this effort EPA had 33 referrals in FY 1987 compared 

with 23 in the previous year. Administrative orders issued by 

EPA remained essential: the same as last year. 

Judicial penalties continued to increase in FY 1987; based 

on initial figures, the total amount of penalties imposed in 

1987 was nearly $6.8 million, up from 30% from the FY 1986 

total of $5.2 million. The medial penalty for all cases also 

increased from $37,500 in FY 1986 to over $50,000 in FY 1987. 

With the new CiiA amendments €PA was given the authority to 

administratively assess penalties against violations of water 

pollution requirements. Tn some cir:umstances, an administrative order with penalties may be a more appropriate enforcement 

tool than a civil referral. The Regions will be using this new 

enforcement tool in place of the traditional civil referral to 

address many kinds of violations in the future. 

In addition, the Regions have been providing additional 

legal and technical support to a growing on-going case docket. 

Supporting on-going litigation has required resources to be 

redirected from development of new cases, 

SAFE DRINKING WATER ACT 

EPA's Safe Drinking Water program was given a new 

enforcement t2ol this year -- authority under the Safe Drinking 

Water Act t, issue administrative orders, with penalties if 

appropriate, rather than having to work solely through the 

courts. Under the amended SDWA, EPA proposed 123 and issued 61 
- 30 - 

final administrative orders for .the Public Water System program. 

The Underground Injection Control program proposed 89 administrative orders and issued 18 final orders in FY 1987. Because 

of its use of the new administrative authority, the SDWA - 

program referred seven cases in FY 1987, compared with 11 cases 

in FY 1986. 

Water - Response to Significant Noncompliance (SNC) - Exceptions 

Report 

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 

At the beginning of FY 1986, the NPDES .program implemented 

.. . en force men t orders . Unlike the other Agency enforcement programs, the NPDES 

program'no longer tracks 3NC 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. 

During FY 1987, there were 494 new permittees reported on 

the Exceptions List (those in SNC two quarters) , 230 formal 

enforcement actions taken and 299 facilities returned to compliance. Overall, of the total facilities appearing in SNC on the 

QNCR for the first time during FY 1987, an average of 76 percent 

were resolved (i.e., either returned to compliance or addressed 

by formal enforcement action) prior to appearing on the Exceptions List the subsequent quarter. The number of facilities in 

SNC for four or more quarters decreased during FY 1987 from 70 

1st Quarter to 57 by 4th Quarter. 

Superfund and RCRA Enforcement' Activity 

SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT 
- 31 - 

Reauthorization of CERCLA in late FY 1986 reinstituted 

funding for the Superfund program and provided strong enforcement and settlement provisions in the statute. The Agency 

increased its administrative and judicial enforcement activity 

under Sections 106 and Section 107 SARA. There was an increase 

in the number of judicial referrals to DOJ, 54 in FY 1987 from 

41 in FY 1986. In addition, there were administrative orders 

or consent decrees with PRPs for 64 RI/FS (including 14 takeovers by PRPs from Fund initiated actions), 57 removal actions 

and 19 remedial responses. These agreements require actions by 

PRPs with a value close to $200 million. The value of RD/RA 

settlements was in excess of $110 million. The Agency achieved 

43 cost recovery settlements with PRPs with a total value of 

almost $36 million. The cost recovery program referred 49 

cases to headquarters with a combined value of more than 

$82 million. 

RESOURCE CONSERVATION AND RECOVERY ACT 

Fiscal Year 1987 also marked continued prosecution of the 

many civil judicial cases filed last year as part of the "Loss 

of Interim Status" initiative. 

The Hazardous and Solid Waste Amendments of 1984 required, 

among other things, that land disposal facilities for which 

owners and operators did not (1) certify compliance with 

groundwater monitoring and financial responsibility requirements and (2) submit a final (Part B) permit application would 

lose interim status on November 8, 1985. This loss of interim 

status (LDIS) provision requires that all noncomplying land 

disposal facilities be closed. 

The Agency's response to the LOIS violations that are 

potentially the most harmful to the environment -- the cantinued operation of facilities lacking adequate groundwater 

monitoring, insurance or closure resources -- has been comprehensive. Enforcement actions have been taken to address 97% 

of these violations, and the prosecution of these actions 

remained a high priority for the Agency in 1987. 

in FY 1987 compared to 43 cases referred in FY 1986. The large 

majority of the cases referred last year, FY 1~86, were part of 

the one-time LOIS initiative. The 1987 number; reflect the 

changing nature of the LOIS initiative from referral of cases 

to litigation and settlement of these cases. Seven of these 

filed cases have been settled. 

Under RCRA, the Agency referred 23 judicial cases to DOJ 
. 

- 32 - 

At this time, EPA does not anticip te that many dditional 

LOIS violations will be discovered. The focus of EPA s effort 

with regard to LOIS in FY 1988 will be to continue litigating 

the LOIS cases which have been filed, and to monitor the - closure of all the facilities that were required to close. 

EPA took 243 administrative actions in FY 1987, compared 

with 235 actions in FY 1986. According to initial calculations, the RCRA program maintained its high level of administrative penalties, and increased the numbers of very large 

cases. 

In addition, RCRA increased its percentage of cases with 

a penalty to 88% in FY 1986 and 89% in FY 1987. 

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 statu-tory requirements related to groundwater, 

closure, post-closure, or financial responsibility. 

In FY 1987, .EPA and the States increased their efforts to 

address significant noncompliance over the levels achieved in 

the previous year. 

FY 1986 FY 1987 

BOY SNC 79 2 753 

Total Addressed at EOY 772 7 37 

- Re.turned to Compliance 331 (42%) 165 (22%) 

- On Compliance Schedule 219 (28%) 320 (42%) 

- Initial Action Taken 222 (28%) 252 (33%) 

- Pending .. . . .20 (2%) 16 (3%) '. 

- TSCA a'id FIFRA Enforcement Activity 

- TOXIC SUBSTANCES CONTROL ACT/FEDERAL INSECTICIDE, FUNGICIDE AND 

RODENTICIDE ACT 
.. , 

- 33 - 

The number of administrative enforcement actions rose for 

both the toxic substances (TSCA) and pesticides (FIFRA) programs. Penalties collected this past year were .the highest 

ever obtained under the TSCA premanufacturing notice program. 

In addition, five civil. judicial actions were referred under 

FIFRA and eight actions were referred under TSCA during the 

fiscal year. Most judicial actions are for collection of 

penalties previously assessed through administrative orders. 

'One TSCA case (Noble Oil) was significant in that it represented enforcement of an administrative order issued in the 

first TSCA enforcement case to be appealed to the .U.S. Supreme 

Court. The Agency also obtained, in the first reported.decision on the subject, a favorable decision in U.S. District 

Court upholding its right to require information under a TSCA 

investigative subpoena. 

Response. to TSCA Significant Noncompliance 

In the TSCA program; significant noncompliance is defined 

as PCB disposal, manufacturing, processing, distribution, 

,storage, record-keeping, or marking violations, Asbestos-inSchooI violations, testing or premanufacturing notification 

violations, import certificaiton and recordkeeping violations. 

In FY 1987, the Regions had a. beginning of year inventory 

of 584 open TSCA SNC cases. By the end of the year, the 

Regions had closed 520 (89%) cases on the inventory. Sixtyfour cases remained on the, inventory. During the year, EPA 

made progress in identifying and initiating actions against 

new violators. The Regions identified 1,316 new significant 

violators .in FY 1987, compared to 923 in FY 1986. Of the 1,316 

new violators, 923 had action taken. 

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 uniqueto 'leach State. They also established timeframes for investigating and taking enforcement actions against these signi'icant 

viola t ion s. 
- 34 - 

In FY 1987, the Regions referred to the States a total of 

155 significant use violations for investigation and enforcement action. Last year, the Regions referred 274 cases. At 

the end of the year, of the 155 cases; nine were addressedbeyond the timeframe, 23 were pending action within the timeframe and 123 were addressed within the timeframe. 

By the end of the year, the Regions had identified 40 

significant violator cases for EPA action. Seventeen of the 

cases were addressed and six of these were closed by the end 

of the year. 

Criminal Enforcement Activity 

The Criminal Enforcement program maintained steady 

progress during FY 1987. EPA Special Agents, building on 

earlier successes, have begun to investigate matters of greater 

. complexity, and beginning in 1987 in a number of Regions, 

matters to be investigated criminally were selected by SAICs 

and RAICs acting in closer consultation with regional personnel 

As a result, investigations will be more likciy to produce 

indictments in areas of programmatic priority and thus of 

greater deterrent value to EPA. During 1988, EPA expects the 

trend to greater sophistication to continue, so that criminal 

enforcement will even more directly support EPA media programs. 

The historical statistics are as follows: 

(Pre-1982 data is omitted.) ------ 1982 1983 1984 1985 1986 1987 

Investigations (referrals) 20 26 31 40 41 41 

to DOJ (does not include investigations 

jointly with FBI and/or other aqencies) 

Investigations (referrals) 7 13 16 16 40 25 

to DOJ resulting in filing of charges 

(individuals and corporations) 

(resulting in ,-. finding of guilty) 

Number of defendants charged 14 34 36 40 98 66 . 

Successful cases prosecuted 7 12 14 15 26 27 

Number of defenc'ants 

convicted 

11 28 26 40 66 58 

Number of special agents 0 23 26 34 34 40 
- 35 - 

Beginning in ' early 1987 , the Agency began keeping more 

detailed data with which to produce additional statistics of 

interest, including the following totals: 

- 1987 

Ref erra Is of invest i ga t ions 

resulting in a conviction 

in which all charges were dismissed 

or all defendants acquitted 

Defendants sentenced 

entities 

individuals 

Total amount of fines assessed 

(before suspension) 

27 

2 

16 

48 

Total 64 

$3, 6 22,876 

Total months 

sentenced (before suspension) 1,015.25 months 

O of incarceration ordered 302.5 months 

(after suspension, before parole)