Environmental Enforcement in the United States

Both federal and state governments can enforce the pretreatment regulations. However, the EPA generally holds the permittee (the publicly owned treatment works) responsible for violations of its permit, even if an industry caused them. Thus the treatment works, typically owned by a city or similar jurisdiction, is required to prevent industries from sending incompatible wastes to it. This arrangement results in cities issuing permits to industrial users, testing for quality control, and offering financial incentives to pretreat. If the treatment system is large enough, it must have an approved pretreatment program detailing the procedures.

If the city does not control the industrial user’s input, it will frequently wind up the defendant in a lawsuit, along with the industry causing the violation. The threat of federal intervention is helpful in many communities, since the polluting industry may be important to the city as a major employer of its inhabitants. Often, when the EPA brings a lawsuit involving a small city and one primary industry, it finds itself fighting not only the industry but the city’s fear of reprisal from the industry. Many cities resort to assessing taxes based on the volume or toxicity of industry waste instead of holding the industries to pretreatment requirements. This tactic can result in more income, but it often fails as a means of control. The most common threat made by the industry is moving to another location, crippling the small town economically. Such threats create the fear necessary to gain the city as an ally, but they are often based on an untrue assumption: the industry will not have to pretreat its waste in another jurisdiction. Unsophisticated cities are, however, vulnerable to this possibility and fear the worst.
Based on “Environment and the Law. A Dictionary”.

Enforcement in Environmental Law

Advisory agencies, unlike regulatory agencies, have no power to enforce the law; they simply give advice. Regulatory agencies get their power from the statutes they implement. If enforcement is not specifically mentioned within the law, the agency does not have the power to enforce. The specific types of relief, penalties, cases, and actions within the administrator’s authority are usually spelled out in a discrete section of the statute, with reference to the section numbers that explain what is regulated.

The Clean Water Act, for example, begins with a general prohibition against discharges into waters of the United States without a permit. It goes on to describe the permitting process and gives the administrator the power to permit, set conditions in the permit, and promulgate regulations about permits. The statute then explains the penalties for not obeying the law and grants the EPA administrator the power to apply those sanctions. In the Clean Water Act, a special section says that if a person violates the statute, the permit conditions, reporting requirements, or the regulations, the administrator of the EPA has a number of enforcement options, including assessing penalties, issuing orders for compliance, and bringing a civil or criminal lawsuit for penalties and injunctive relief. Under other statutes, the EPA has additional powers, especially when a violation of the law is causing an imminent threat to health or the environment.

Administrative Orders

One by one, environmental statutes have granted the EPA more power to deal with violations through the administrative process rather than the courts. This saves the agency time and money and allows it to address the problems more quickly.

Before it issues an order for compliance, the agency often issues some type of notice to the regulated party. The name of the notice varies, depending on the statute underlying the violation. It may be a notice of non compliance, a notice of violation, a show cause order, or a letter requesting information. The purpose of this step is to allow the person to meet with the agency before the order is issued.

The compliance order may be issued first as a proposed compliance order, which corrects the problem but does not collect fines. It puts the violator on notice, but it also creates another standard that the regulated person must meet. In fact, violating an administrative order is yet another offense the regulated party must face if a case is brought later, and penalties may be written into the order for failure to meet the deadlines.

A compliance order does not replace the permit, but it sometimes gives relief to the person having difficulty meeting the terms of a permit. Generally compliance orders are issued after discussion of the problems and a technical evaluation of the solution. They may be consent orders, in which the regulated person agrees to the specifications in the order. Deadlines are set for reaching interim goals and for final compliance. The orders carefully preserve the right of the government to ignore the order and require compliance with the terms of the permit, but in reality, the government generally respects the order as long as the regulated party is complying with it.

The EPA administrator can issue penalty orders under a number of statutes. The process will vary based upon the amount of the proposed penalty, and a cap has been placed on the total amount of the penalty that may be assessed through a penalty order.

Until the Clean Water Act was amended in 1987, the administrative penalty order process was used most frequently with the Toxic Substances Control Act (TSCA). The procedure involves issuing a complaint, which is filed with the administrative law judge, and proceeding through the hearing before a penalty is assessed. Penalties under TSCA must be assessed by the administrator before a civil suit can be brought. If the violator refuses to pay or chooses to appeal, the case is brought before a federal court. TSCA cases go immediately to court only for imminent hazards.

The Clean Water Act establishes two classes of penalties: Class I and Class II. Class I penalties are limited to a total of $25,000, with a limit of $10,000 per day on individual violations. Class II penalties cannot exceed $125,000 total, with the same daily violation penalty. For comparison, consider the statute’s maximum: for a violation of the Clean Water Act, the penalty may go as high as $25,000 per day per violation. If a person has a permit, violates it for one day, but three of the limits were exceeded, the potential penalty is $75,000 for that day. But if the agency wants to obtain that amount, it cannot assess a penalty under an order; it must go to court.

Since the punishment increases significantly when the penalty goes from Class I to Class II, the administrative procedures change, too. A person who received a proposed order for a Class I penalty is entitled to an informal hearing before the penalty is assessed. But a person who is subject to a Class II penalty gets more protection: he is allowed a formal Administrative Procedures Act hearing before an administrative law judge.

In addition to the EPA, two other agencies have penalty power under the Clean Water Act: the Coast Guard and the Corps of Engineers. However, they have specific duties in relation to the act and can only enforce certain violations.

In 1990, the Clean Air Act Amendments added administrative penalties to the EPA’s arsenal for violations of that law. The EPA may assess higher penalties than those allowed under the Clean Water Act up to $200,000. In addition to those types of penalties, the EPA can now issue field citations during inspections and assess up to $5,000 per day in that manner. Field citations are subject to an informal hearing.

Emergency Orders

Like other agencies that handle problems that could be life-threatening, the EPA has the right to act quickly if the need arises. Because emergency orders are not subject to review before they are issued, the standard for the EPA is stringent: an imminent threat to health or the environment must be present.

The EPA can issue emergency orders for seizure of toxic substances. The most common emergency actions, however, deal with hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), releases of petroleum under the Clean Water Act and the Oil Pollution Act, or other spills of hazardous or toxic substances governed by the Emergency Planning and Community Right To Know Act. They center around removal of the threat or neutralizing the danger.

Civil Law Suits

The EPA does not act as its own lawyer if a case is to be brought through the judicial system. Even though the agency hires attorneys, once the case becomes a civil action, it is required by statute to refer the case to the Department of Justice (DOJ). The EPA does not have the authority to file a lawsuit directly unless the DOJ refuses to handle it and the region, with the agreement of the Office of General Counsel, notifies the DOJ that it will proceed on its own.

If it chooses to proceed, the regional office pursuing the lawsuit prepares a referral package, which includes a description of the facility, the laws alleged to have been violated, the history of the violations, previous attempts to bring the facility into compliance, summaries of the applicable penalty provisions, a discussion of the strengths and weaknesses of the case, and a recommendation that the Department of Justice file a lawsuit. Penalty calculations are based on the EPA’s computer model for penalty assessment.

The regional administrator forwards the case to the Office of General Counsel (OGC) of the EPA in Washington, D.C. The Department of Justice may receive a courtesy copy of the referral from the region, but it does not act on the information unless OGC concurs with the region. Once the referral is rolling toward the DOJ, the regional office can begin negotiations with the defendant. Whether it does so or not depends on the likelihood of settlement, which the Office of Regional Counsel will determine. It is not unusual for the consent decree to be filed at the same time as the complaint.

Another office involved in the civil lawsuit is the U.S. Attorney’s Office in the district where the lawsuit is filed. Participation of that office will vary from jurisdiction to jurisdiction. Sometimes the DOJ will act as lead counsel throughout the case, but some Attorney General’s offices are more involved and may be primary counsel.

Under most of the major environmental provisions, the penalty for non compliance is up to $25,000 per day per violation. When the government files a lawsuit, it requests the maximum penalty allowed by law. Environmental statutes now specify guidelines for assessing the penalties. They are commonsense considerations: how severe was the violation, how long did it continue, what is the defendant’s history of compliance, did the defendant cooperate in correcting the problem, and what was the economic benefit of not complying with the law? If an economic benefit has been realized, it must be part of the penalty; however, even the determination of economic benefit is subjective to some extent. The reason is simple: deferring expenses for compliance may be greatly beneficial economically. The purpose of the economic benefit segment of the penalty is to make sure the violator does not gain an advantage over law-abiding citizens. These factors are programmed into the computer model the EPA uses when it prepares a settlement figure for the referral package. The EPA also addresses one other issue: the likelihood that the lawsuit will succeed.

Much of the EPA’s enforcement, both civil and administrative, ends in a consent agreement, which means that the defendant has already agreed to pay a stipulated penalty if it fails to comply with the agreement. If the EPA has made a demand for payment and the demand is not honored, the DOJ gets the case. It handles the collection cases. It also handles Superfund and Resource Conservation and Recovery Act lawsuits for the EPA.

Superfund is an unusual statute. It has been around since 1980, and its main purpose is to get hazardous waste sites cleaned up. To accomplish that purpose, it identifies certain persons as potentially responsible parties (PRPs), that is, persons who may be held separately and jointly responsible for all of the costs of cleanup. That designation is not based on fault or an allegation of a violation but depends on the party’s relationship to a hazardous waste site. If the EPA has already done some work at the hazardous waste site, it will also sue for cost recovery. Superfund lawsuits may involve hundreds of PRPs and their attorneys, a battery of attorneys from the DOJ and at least two from the EPA. The PRPs often form a committee, called a Steering Committee, that speaks for the majority on common issues. Though the cleanup costs are not penalties, they are likely to be much higher than penalties.

When Congress addressed the problems associated with hazardous waste sites in the Resource Conservation and Recovery Act, it decided to regulate all facilities that could contribute to the problem. Thus treatment/ storage/disposal (T/S/D) facilities are not only highly scrutinized but also subject to permit provisions requiring corrective action for all hazardous waste components at the facility. The corrective action requirement includes remediating areas that are no longer active. If the T/S/D facility has used other property in the site and a hazardous waste is being released there, the permit will also include offsite cleanup provisions. Since T/S/D facilities must have a permit, the corrective action condition, though not strictly an enforcement tool, is a powerful weapon for the EPA.

Criminal Enforcement

In environmental cases, the distinction between criminal and civil violations is slim. For example, under the Clean Water Act, negligence ordinarily a tort can be the basis of a crime. Generally, though, a violation is viewed most seriously when it is knowing, reckless, or willing. The EPA makes the decision about how to proceed, and lately it has filed criminal cases more and more often. In the last few years, the number of investigators and criminal attorneys within the EPA has increased to accommodate prosecuting more offenders.

Civil lawsuits still have clear advantages: the criminal process guarantees in the Constitution do not apply, the burden of proof is lower, and information will be easier to obtain. Nevertheless, criminal cases generate significant press coverage because of public interest in the penalties and in the possible incarceration of people involved. Criminal cases also communicate a clear message: environmental compliance is not optional.

Criminal penalties may range in the millions of dollars, with the highest penalties reserved for repeat offenders and corporations. But the EPA’s best weapon in criminal cases is not penalties but the power to put offenders in jail. Under the new sentencing guidelines, federal courts are incarcerating record numbers of environmental violators. The person who goes to jail may be the one who actually committed the offense or the chief executive officer or other official in a business.

Natural Resources Damages

Natural resources damages, a type of damages available under environmental statutes, are relatively new. Their object is to compensate the federal and/or state government for loss of vegetation, wildlife, and uses of the environment due to pollution. The oil spill caused by the Valdez, for example, resulted in large natural resource damages.

One major difference between natural resources damages and ordinary penalties is the destination of the funds. According to statute, when penalties are collected by the government, the money goes into the general treasury funds. Natural resource damages, however, go into a fund specifically created to benefit the impacted environment. The enforcer of the natural resource damages provisions is also different. Instead of the EPA, the Secretary of the Interior has the right to enforce for damage to land; the Coast Guard for damage to sea.

Citizen Enforcement

If the EPA or the state environmental agency, using its prosecutorial discretion, decides to allow a particular violation to slide, it may have solid reasons for doing so. However, the infraction, along with all the evidence associated with it, still exists. To the people in the affected community, ignoring the violation may not be acceptable. In that case, they may be able to file a suit to compel enforcement. A past violation by itself is not sufficient for a citizen suit, however. The Supreme Court has held that the suit must allege continuing violations.

Most environmental statutes recognize the right of a citizen to enforce the law if the government declines to do so. Public interest groups, such as the Sierra Club, the Natural Resources Defense Council, and the Environmental Defense Fund, often initiate this type of action, which is called a citizen’s suit. A citizen’s suit may be brought by an individual or group of individuals within the affected environment as well as or instead of public interest groups.

Before a citizen’s suit can be brought, sixty days notice must be given to the state and federal agencies involved, the violator, and the Department of Justice. The agencies, usually the EPA and the state environmental agency, evaluate the allegations to determine whether they will sue the regulated party themselves instead of allowing the citizen’s suit to proceed. If the government sues, the citizens may intervene in the lawsuit but cannot initiate their own independent suit.

Citizen suits are often based on information contained in, and obtained from, government records through use of the Freedom of Information Act. The government itself may be named a defendant along with the violator. Another type of citizen suit is one against the EPA administrator for failure to do something the law requires him or her to do. These cases are often brought when the deadline for promulgating regulations is not met. Even if they do not go to trial, they are very effective in establishing, through settlement, deadlines that are enforceable by the court. Based on “Environment and the Law. A Dictionary”.

Environmental Enforcement