A SURVEY OF U.S. ENVIRONMENTAL
ENFORCEMENT
AUTHORITIES, TOOLS AND REMEDIES
by
Edward E. Reich*
and
Quinlan J. Shea, III**
* Deputy Assistant Administrator, Office of
Enforcement, United States Environmental Protection Agency
** Special Assistant,
Office of Enforcement, United States Environmental Protection Agency
To accomplish its mission of protecting human health and the
environment, the United States Environmental Protection Agency (EPA)
promulgates regulations to implement each of the environmental laws. Whenever members of the regulated community
fail to comply with one or more of these laws and regulations, EPA utilizes a
wide array of enforcement authorities to correct noncompliance and punish
violators. Prompt and effective action
on the part of the government is particularly imperative in this age of
heightened environmental awareness and public scrutiny of the federal
government’s response to insults to the environment. This paper will examine the bases for EPA’s enforcement powers,
some of the specific enforcement tools and remedies available to the Agency,
and a few of the more notable means being employed to invigorate and streamline
the enforcement process.
Section I addresses the sources of enforcement authority,
EPA’s partnership with state governments, and the roles of Congress and the
judiciary in shaping and interpreting environmental laws. Section II begins to explore the scope of
EPA’s administrative, civil judicial, and criminal programs while focusing on
the challenges associated with the simultaneous pursuit of both civil and
criminal actions (parallel proceedings).
The specific enforcement tools available under the environmental
authorities are covered in Section III.
The various remedies EPA pursues, particularly penalties and injunctive
relief, are outlined in Section IV.
Section V outlines several of the unique internal resources and formal
working relationships maintained with other federal agencies. Finally, Section VI examines the utility of
using alternative dispute resolution techniques, an increasingly popular means
of streamlining the enforcement process, to facilitate settlement agreements.
____________________
The authors would like to thank their colleagues for their
review and helpful comments and Pamela Proctor who attended to the problems of
providing a finished manuscript.
The views expressed in this article are the personal views
of the authors. No official support or
endorsement by the EPA is intended or implied.
1.0 Enforcement Authority in the United
States, the Role of Legislative Direction, and the Role of the Judiciary
1.1 Introduction
Under the U.S. Constitution, the federal government has no
explicit duty to protect the environment from polluters. Federal regulations affecting the
environment must come from one of four sources, 1 the most notable
of which is the commerce power. An
important case which demonstrates the ability of the U.S. Congress to shape and
the courts to interpret events in domestic environmental policy-making is Hodel
v. Virginia Surface Mining and Reclamation Assoc., 452 U.S. 264
(1981). In Hodel, the surface
coal mining industry challenged a regulation that required strict performance
standards, including the restoration of mined lands, minimal disruption to
waterways, and careful disposal of wastes.2 The coal industry argued that the government
was attempting to regulate the use of privately owned land which was not
subject to the parameters of the commerce clause.
The Supreme Court disagreed, noting that the commerce power
protected not only the interstate channels of commerce, but also those
“activities affecting commerce,” and therefore could come into play when
several such activities combined to affect commerce between the states.3 The Court held that there was a “rational
basis” for the Congress to find that strip-mining affected interstate commerce
and that regulation of the industry was a valid exercise of Congressional
authority.4
In sum, Congress and
the courts affect, directly and indirectly, the formulation, implementation,
and interpretation of environmental laws even though it is the task of the
executive branch agencies to enforce them.
This section will examine enforcement authorities, the contributions of
the legislative branch in helping to craft them, and the role of the courts.
1.2 Environmental Federalism
In the United
States, the traditional roles of the executive and legislative branches have
decreed that the former is responsible for identifying the need for
legislation, and the latter for the crafting and passage of appropriate laws,
whereupon the compromise reached by the two is then implemented by regulatory
agencies.5 In practice, the
actual implementation and enforcement of environmental laws has taken the form
of a mixture of federal and state standards, goals, and enforcement
authorities. This relationship is often
referred to as the “state-federal partnership,” or “new federalism.”6 The principal federal role is often
described as being one of oversight as the states are tasked with the direct
application of the law under most federal statutes.7 With few exceptions, environmental laws and
EPA policy give the states the primary role in environmental enforcement.8
These same laws,
however, grant the Agency residual or concurrent enforcement authority. Because EPA remains responsible to the
Congress and to the public for ensuring overall compliance with and enforcement
of federal statutes, the Agency is empowered to pursue its own direct
enforcement action, particularly when the state action is unreasonably delayed
or perceived to be inappropriate given the gravity of the violation. In the past several years, EPA has formulated
policies with regard to establishing criteria for direct federal action and
oversight of state enforcement programs, and has developed protocols for
notifying and consulting states in advance of any federal action.9 While the states and EPA have had
disagreements on the meaning and scope of environmental enforcement, both must
work in partnership to ensure the most productive use of limited resources in
pursuing enforcement actions and achieving compliance.
1.3 Statutory Scheme
The changing outlook
in the United States as to the value of and threat to the environment, and,
hence, the need for environmental laws, has necessarily resulted in stronger
enforcement provisions. The
environmental statutes now possess a wide assortment of enforcement authorities
which include: notices of violation,
administrative orders, recourse to the courts for civil penalties and
injunctive relief, criminal sanctions, and citizen suits to enforce the
statutes in the absence of effective government action. These provisions differ, however, from
statute to statute. Perhaps more
significantly, the extent which Congress has required EPA to actually utilize
these authorities differs from statute to statute.
1.3.1 Enforcement Discretion
EPA is often
criticized by the public and environmental organizations for not bringing
enough enforcement actions, and by the regulated community for bringing too
many actions, or bringing the wrong actions, or seeking unwarranted
remedies. The nexus between the two
opposing viewpoints is the principle of enforcement discretion. In deciding whether to bring an action,
enforcement officials will typically examine the severity of the violation, the
potential deterrence value, the strength of the case, the available resources,
and so on.10 Moreover, the
concept of environmental federalism, discussed above, may also factor into a
decision to defer to a state’s desire to initiate an enforcement action.
The leading case on
enforcement discretion is Heckler v. Chaney, 470 U.S. 821. After Heckler, there exists strong
support for the principle that decisions by the government whether to enforce
are discretionary.11 The
presumption can be discarded only by explicit statutory language or legislative
history. The net result for
environmental statutes is that enforcement powers are, with few exceptions,
generally discretionary.12
1.3.2
Congressional Action
Beginning with the
passage of the National Environmental Policy Act (NEPA) of 1969,13
and the creation of EPA in 1970, Congress has established in the ensuing twenty
years a comprehensive environmental protection regulatory system by passing and
amending a number of environmental laws.
EPA has been given substantial discretion as to how best to implement
those laws.
However, more
recently, Congress has been less willing to vest wide discretion in the
Agency. An example of this phenomenon
is the Resource Conservation and Recovery Act (RCRA),14 which
addresses solid and hazardous wastes.
This statute has consistently been the subject of Congressional interest
and periodic revision.
Congress passed RCRA
in 1976, which was before the full extent posed by the dangers of hazardous
waste disposal were known. As with most
other statutes, Congress prescribed only broad goals and timetables. The only substantive direction was a
requirement that EPA regulations “protect health and the environment.”15 As noted, the enforcement provisions of RCRA
were deemed discretionary.16
By the 1980s,
evidence of the seriousness and scope of the hazardous waste problem mounted
while, in the eyes of Congress, EPA floundered in its efforts to promulgate
adequate regulations.17 In
1983, over five years after the mandatory deadline for publication of RCRA
standards and permits, Congress began a reauthorization process for RCRA. There was still no enforceable system for
regulating the disposal of hazardous waste.18 Congress responded, over strong opposition
from the executive branch, with a multitude of new deadlines and statutory
requirements. Much of EPA’s regulatory
discretion with respect to regulated facilities and waste disposal processes
was modified or removed.
The case of RCRA
suggests that Congress is increasingly willing to make specific policy and
implementation decisions, normally the provence of the agencies, if more
informal oversight mechanisms prove ineffective.19
1.3.3
Role of the Judiciary
Although the Supreme
Court has indicated that the scope of review for environmental matters is very
broad, there are Congressionally-mandated limitations, particularly where
Congress has afforded agencies broad grants of discretion. However, it is important to note that in the
absence of clear statutory language as to Congressional intent, courts will
often seek to infer Congressional intent, with a bias in favor of judicial
review. The textbook case that typifies
this situation is Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402 (1971). A citizen
environmental group sued in order to preserve a park that was facing imminent
damage from a planned federally-approved highway. The government argued that approval of the highway was a
discretionary activity which could not be reviewed by the courts.20 The Supreme Court disagreed, holding that
there was no indication that Congress sought to prohibit review because the
statute provided “criteria” rather than “discretion,” and that actions taken
thereunder were subject to judicial review.21
Aside from the
pervasive issue of agency discretion, there are many other areas where there is
a judicial presence with respect to environmental protection. The dominant vehicle EPA uses to implement
federal environmental laws is administrative rulemaking, which utilizes
established public notice and comment procedures.22 The procedures for rulemaking enunciated in
the Administrative Procedure Act have been adopted almost without qualification
in each of the major environmental laws.23 In the early days of EPA’s existence, the courts played an
important role by regularly insisting that EPA discuss the technical questions
it faced in acceptable technical detail if it wanted its rules sustained by the
court.24 Once that discussion
was provided, however, the rules were generally upheld.
The review of final
rules has been supplemented by an additional basis for judicial review of EPA’s
activities. As discussed in the context
of RCRA reauthorization, Congress has begun to consistently provide deadlines
for many EPA actions which, if not met, allow citizen suits to compel the
Agency to perform such “non-discretionary” duties.25 Environmental groups have taken full
advantage of these opportunities, particularly to require the Agency to take
specified rulemaking action. EPA has never won a suit where the statute in
question provided a definite time for action by the Agency, the Agency failed
to act, and a citizen suit was initiated.26
In the enforcement
context, virtually all of the environmental enforcement authorities provide EPA
with recourse to the courts for civil penalties, injunctive relief and criminal
sanctions. Though each type of
authority will be subsequently discussed in more detail, it is interesting to
note at this junction that the courts have a significant role in the penalty
assessment process in that they are not limited to making determinations based
on the relevant statutory provisions.
Courts are free to consider the appropriate amount of civil penalties in
each case.27 Even assuming
some level of uniformity in the assessment of penalties from court to court,
there is clearly the opportunity for an environmentally-conscious judge to make
a statement.
2.0 Criminal and Civil Enforcement and Issues Raised by
Parallel Proceedings
2.1 Civil Enforcement
The decision whether
to proceed in a given case through a judicial complaint or administrative order
often depends on whether the Agency is seeking penalties for past violations,
or injunctive relief which can best utilize the equitable and enforcement
powers of a federal court. While EPA’s
largest enforcement cases, and particularly those involving precedential or
complex legal environmental restoration issues, are generally brought
judicially,28 the overwhelming number of federal environmental
enforcement cases are administrative civil penalty actions. The authority to bring administrative
actions is expressly set forth in most U.S. environmental statues. In FY 1989, EPA initiated 4,136
administrative cases which resulted in significant penalties and actions to
correct environmental violations.29
This number has steadily increased in the past few years because of new
administrative enforcement authorities given to the Agency in recent amendments
to the various environmental statutes.
Each EPA regulatory
program establishes detailed criteria for determining what sanctions are
preferable in response to a given violation.
While these criteria differ between programs, EPA will usually initiate
an administrative action where the violation appears to constitute a fairly
isolated occurrence and has not resulted in extensive environmental harm. In such an action, the Agency will seek
correction of the violation (if necessary) and the payment of a monetary
penalty.
Though EPA has the
authority under several statutes to order or prohibit specific actions,30
there is no corresponding authority to compel compliance with those same orders
without resort to the courts.
Accordingly, administrative actions may not be appropriate where
injunctive relief is an essential element of the remedy and compliance with the
order is uncertain.31 Where
immediate action is necessary to prevent continuing violations, and especially
so in a case where there is a grave threat to human health or the environment,
a civil action in federal court is pursued.
Further, where the injunctive powers of the court are necessary to
ensure long-term compliance, judicial action is again proper. Civil/administrative tools and remedies are
covered in more detail below in Sections III and IV.
2.2 Criminal Enforcement
The enforcement
provisions in each of the environmental statues provide that persons who
knowingly violate specified requirements or prohibitions shall be fined,
imprisoned or both. The standard for
criminal prosecution differs slightly from statute to statute.32 Each of these types of cases is developed
through an investigation by EPA’s criminal investigators or the Federal Bureau
of Investigation and referred to the Department of Justice for further grand
jury investigation, and possibly persecution.
EPA established its
criminal office in the early 1980s. The
number of criminal case referrals to the Department of Justice, defendants
charged, and defendants convicted have increased steadily up to the present
day.33 Indictments are
sought against both corporations (including responsible corporate officers) and
individuals, as appropriate. As the
Agency’s criminal program further develops, more states develop similar
programs, and courts become more familiar with the seriousness of environmental
crimes and implement new Sentencing Guidelines, penalties will become more
severe and the number of successful prosecutions will increase.34 Criminal sanctions are covered in more
detail in Section IV.
2.3 Parallel Proceedings
EPA’s mission is on
occasion best served by the pursuit of simultaneous civil or administrative
enforcement actions and criminal investigations and prosecutions of the same
violator which relate to the same essential subject matter. These are known as parallel proceedings and
are discussed in detail in EPA policy memoranda.35
Despite a deluge of
due process (fairness) arguments to the contrary, it has been held
unequivocally that parallel proceedings are constitutional. In United States v. Kordel,
397 U.S. 1 (1970), the Supreme Court established the legality of these
proceedings after recognizing that the government often must pursue both civil
and criminal routes to protect the public.
In the environmental arena, a violator’s misconduct may create a
substantial danger requiring immediate remedial relief through a civil action
(e.g., a site cleanup), and yet the misconduct itself (e.g., a willful
violation) can only be appropriately punished by a criminal prosecution.
Notwithstanding the
legality of parallel proceedings, several circumstances dictate that the use of
these dual actions should be kept to a minimum.36 In criminal cases, there are often
opportunities for defense counsel to obtain valuable information that would not
otherwise be available to them, to engage in procedural tactics that may delay
or complicate the prosecution, and to raise additional defenses. These defenses may include allegations of
abuse of the grand jury (criminal investigative) process, and improper use of
civil discovery to obtain information for the criminal case. The presumption under the Federal Rules of
Civil Procedure is that discovery should be available to each party to the
fullest extent possible. The Federal
Rules of Criminal Procedure, however, limit discovery to only that information
specifically covered within the rules.37
A second inhibiting
factor in the pursuit of parallel proceedings is the inherent cost.38 It would be an inappropriate use of Agency
resources, as well as a questionable exercise of enforcement discretion, for
EPA to seek criminal and civil sanctions in every case where both are legally
permissible. Where there is no need for
injunctive or remedial relief, and the purpose of a civil/administrative action
would be limited to the assessment of penalties for past misconduct, parallel
proceedings will normally be avoided and the civil action delayed while the
criminal enforcement process unfolds.
3.0 Enforcement Tools:
Characteristics and Impacts
3.1 Introduction
When the regulated
community fails to comply with environmental laws, EPA, in partnership with
state agencies, can call upon several enforcement authorities provided under
these laws. They include administrative
actions, civil judicial actions, and criminal prosecutions. There are also additional enforcement “tools”
available to EPA under specific statutes, such as permit revocation and bars from
future government contracts, which are used as appropriate.
3.2 Selected Administrative Tools
Administrative
actions are direct enforcement actions taken by EPA without going through the
courts. EPA uses administrative actions
to order companies to comply with regulations or to take other measures
necessary to protect the environment.
Administrative actions are also used to assess penalties, designed to
remove the economic benefit gained by the violator and reflect the gravity of
the risk the violation poses to human health or the environment.39
3.2.1 Administrative Orders
Most of the major
environmental laws authorize EPA to issue administrative orders. The Agency believes that administrative
orders are an efficient and effective means of promoting compliance,
particularly for less serious violations.40 They are also used to document and make
enforceable measures agreed to be undertaken by cooperative violators. EPA is careful, however, to not rely on
administrative orders to the exclusion of stronger remedies because this could
lead to a perception in the regulated community that there is an unwillingness
or inability to take court action.
Administrative orders are not self-enforcing, in that only the courts
can enforce administrative orders in the event of non-compliance.41
All of the
environmental laws contain administrative order provisions, though there are
significant differences from statute to statute.42 Most require than an order state with
reasonable specificity the nature of the violation, contain valid evidence of a
violation,43 and a schedule for compliance. The order must also take into account the
seriousness of the violation and any good faith efforts on the part of the
violator to comply.
3.2.2
Bars to Government
Contracts
EPA is provided
authority under the Clean Air Act and the Clean Water Act to prohibit any
facility owned, leased or supervised by a person convicted of violating certain
provisions of those Acts,44 or found to be a source of continuing or
recurring violations despite previous enforcement actions, from receiving any
federal contract or subcontract.45
Executive Order1173846 authorizes EPA to issue the
regulations necessary to carry out the purposes of the Order, and provides
criteria for when exemptions may be granted.
The prohibition is facility-specific in that it attaches to goods,
materials, or services only from the facility at which the offense was
committed. EPA regularly provides other
federal agencies (through the General Services Administration) with notice of
ineligible contractor facilities.
The prohibition
against the use of specified facilities continues in the case of a listing
action resulting from a criminal conviction until EPA certifies that the
condition giving rise to the conviction has been corrected.47 Once the condition is corrected, the
facility is removed from the EPA List of Violating Facilities (“the List”).
The contractor
listing provisions of the CAA and CWA establish mandatory and discretionary
listing procedures.48 The
statutes require mandatory listing of a facility at which a violation occurs
that leads to the criminal conviction of a person who owns, operates, or leases
the facility. Such a facility is
automatically placed on the List and barred from contracting with any federal
agency until delisted.49
A discretionary
listing action may be initiated when a facility has a record of continuing or
recurring noncompliance, and a civil violation of federal or state clean air or
clean water standards occurs.50
A facility with a record of continuing or recurring noncompliance may
also be subject to discretionary listing when the facility has violated an
administrative order or is the subject of an administrative enforcement
proceeding under either the Clean Air or Water Act.
3.2.3
Permit Revocation
The regulations
established under the CWA, RCRA, and the State Drinking Water Act (SDWA)
authorize the discretionary revocation by EPA of permits issued under these
statutes in several circumstances.51 They authorize the termination of a permit when the permittee
fails to comply with a permit condition, a permit applicant fails to fully
disclose all relevant facts in the application or permit issuance process or
any time thereafter, or EPA determines that the permitted activity endangers
human health or the environment.52
3.3
Civil Judicial
Enforcement
Where administrative enforcement authority is not available, where
administrative remedies have not succeeded in achieving compliance, or where a
compliance schedule subject to the supervision and sanction of the court is
desired, EPA pursues civil actions in federal court with the assistance of the
Department of Justice. Court action is
particularly appropriate when the nature of the violation requires that the
Agency initiate action to stop further environmental damage or to force a
company or individual to initiate cleanups.
A federal court has continuing jurisdiction over a case until a violator
completes all specified remedial actions.
After a complaint has been filed, a civil judicial action may be settled
only by a consent decree, or where appropriate, a stipulation of dismissal.53 Each EPA medial program – air, water, hazardous
waste, toxics, and so on – has crafted enforcement policies which establish the
parameters of what relief EPA and the Department of Justice will seek in a
given case. In approving settlement
agreements, it is not the function of the court to comment on the merits of a
case or determine if a violation has actually occurred.54 Rather, the court’s role is limited to
assessing the decree’s “overall fairness to beneficiaries and consistency with
the public interest.”55
Approval is conditional upon a determination by the court that the
settlement is consistent with the statute in question.56
3.4
Criminal Enforcement
EPA considers criminal violations of environmental laws to be crimes of
violence, warranting the imposition of tough sanctions. Each of the environmental laws authorizes
the use of criminal sanctions against firms or individuals who knowingly or
willfully violate environmental standards.
As a matter of policy, EPA will seek criminal sanctions against responsible
corporate officers as well as the corporation itself in dealing with corporate
crimes. Because of the stigma that
attaches to criminal prosecution, and the potential for mail terms, criminal
enforcement is EPA’s most powerful tool; careful and selective use generates a
strong deterrent impact. Federal judges
have increasingly been willing to sentence criminal defendants to large fines
and substantial prison or probationary terms.
4.0 Enforcement Remedies
4.1
Penalties
4.1.1 Administrative
Penalties
The environmental laws generally authorize the administrative assessment
of civil penalties for most violations.
Penalties are typically assessed based on a computation derived from the
total number of days during which a violation continues multiplied by a
constant figure which can be any amount up to but not exceeding the statutory
limit. The penalty authorities differ
from statute to statute. The Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA) 57 authorizes
assessed penalties of only up to $5,000 per day of violation, while the CAA and
RCRA authorize penalties of up to $25,000 per day.58
Recent amendments to several of the statutes have created distinctions
between different types of administrative penalty provisions, with differing
limits and procedures for assessment.
For example, under the Clean Water Act, there are Class I penalties
which may not exceed $10,000 per violation and $25,000 in total, and Class II
penalties which may not exceed $10,000 per violation and $125,000 in total.59
Procedures for assessing Class II
penalties are considerably more formal.
The enhancement of the Agency’s ability to efficiently allocate time and
resources is the rationale behind the introduction of this system. The less serious the violation, the more
streamlined the process for assessing the penalty. Neither Class I nor Class II proceedings will be initiated where
a civil or criminal enforcement action is needed to ensure compliance with the
CWA.60
Despite considerable numbers of administratively assessed penalties,
there are very few reported cases challenging assessments. This is because courts have required
violators who have been assessed penalties to exhaust their administrative
appeals before seeking judicial review.61 Further, courts have refused to overturn or remand penalty
amounts even if they would not have assessed as high a penalty had the action
originally been brought in court.62
In essence, the courts appear to be respecting the Congressional
delegation to EPA of the responsibility to set and compromise the penalty
amounts, and have remanded cases rather than judicially determining the amount
of the penalty in cases where they were unable to uphold the Agency’s action.63
4.1.2 Civil Judicial
Penalties
Most, but not all, of the major environmental laws have civil judicial
penalty provisions; of those that do not have them, there is a wide variance in
terms of severity and impact. The first
comprehensive penalty provision was under the Clean Air Act, which authorizes
federal courts to assess civil penalties of up to $25,000 per day of violation
for most of the Act’s requirements.64
The Clean Air Act authorizes judicially assessed civil penalties of up
to $25,000 per day of violation for major facilities or “statutory sources,”65
and up to $10,000 per motor vehicle or vehicle engine which does not conform to
air pollution emission limitations.66
The Safe Drinking Water Act authorizes judicially assessed civil
penalties of up to $25,000 per day of violation by public water supply systems.67
On the other hand, there are no provisions for judicially assessed
penalties under the Toxic Substances Control Act (TSCA)68 or FIFRA,
and such penalties must be assessed administratively.
Despite the disparities of the penalty provisions, there are some
general conclusions that can be drawn about how the courts address penalty
questions, regardless of the statute involved.
Courts repeatedly refer to the “fairness” of a penalty in their
assessments, and usually refuse to assess large penalties for violations of
requirements that violators were unable to comply with for “technical”
violations, or for those which would result in bankruptcy.69 Interestingly, substantial penalties might
be warranted in such circumstances if a court determines that Congress was
either deliberately intending to force the development of new technology or
knew that the requirements could in fact result in some bankruptcies.70
4.1.3
Criminal Penalties and
Imprisonment
The criminal sanctions under each of the major environmental laws apply
to any “person” who violates the statue.
Each statute’s definition of “person” provides for the potential
criminal liability of corporate officers as well as employees. With the exception of the Clean Water Act,
where there can be criminal responsibility for negligent violations, criminal
sanctions are applicable only where a violation is knowing or willful.
The Clean Air Act, Clean Water Act, and Toxic Substances Control Act all
provide for fines up to $25,000, up to one year in jail, or both, for each day
of violation. Under the Safe Drinking
Water Act, fines range from $5,000 to $10,000 with no imprisonment. Under the Resource Conservation and Recovery
Act, penalties range up to $50,000 in fines and up to two years in jail for
most violations. If a RCRA violation
places another person in danger of death or serious bodily injury, penalties
increase up to $25,000 ($1 million for companies) and up to five years
imprisonment.71
In addition, most of the statutes provide for penalties in fraud-related
cases, such as under the Clean Air Act’s false reporting provisions. Typical examples include the deliberate
filing of inaccurate information with the Agency or tampering with air
monitoring devices at a facility. It is
important to recognize that may of these cases are also violations of more
common provisions of the U.S. criminal code, such as mail fraud.72 Because the latter are felonies rather than
less serious misdemeanors, and are more familiar to prosecutors, they have been
used in the past as the basis for criminal cases.73 With the passage of time, criminal sanctions
of the various environmental statutes have been generally amended to upgrade
misdemeanor provisions to felonies. It
can therefore be anticipated that prosecutors will begin to rely more
frequently on the environmental statutes to build their cases.
4.2
Injunctive Relief
The most significant remedy available under most of the major
environmental laws is injunctive relief.
Typically, EPA is authorized to initiate an action for a temporary or
permanent injunction and the courts are granted jurisdiction to order the
cessation of an ongoing violation and require compliance.74 Once a violation of one of the environmental
laws has been proven to exist, thus providing the foundation for an injunction,
a court must require compliance but retains discretion in how to do so.75
Courts craft remedies on a case-by-case basis so that the individual
circumstances of each case are properly addressed. The concept of “fairness” again enters the equation as courts
have been reluctant to shut down violators’ operations where no real benefit
would accrue to the environment at that point in time, or where additional time
would allow the violator to completely correct the violation.76 Where there is no other means of compliance,
however, courts will shut down a facility.
In sum, courts balance the equities involved in determining whether to
issue an injunction and what the limits will be. Factors to be considered include the technical feasibility of
compliance, costs, the public importance of the violator’s operation, and the
potential threat to human health.77
Injunctive orders are enforced by contempt proceedings.
4.2.1
Compliance Requirements
Most injunctions mandate schedules of compliance to meet the
requirements being violated. The
schedules are as detailed as necessary, often committing the violator not only
to a particular course of action by a final date, but to interim actions as
well.78 The compliance
provisions of a consent decree will also state the precise methods, such as
testing or written reports, that EPA thinks are appropriate to evaluate the
violator’s progress. EPA routinely
requires documentation of performance and seeks to stipulate its right of
access and entry to monitor compliance on an as needed basis.79 More stringent monitoring provisions will be
required by the Agency when the violator has a history of repeated
noncompliance. EPA policy also requires
stipulated penalties to be paid in the event of violations of key provisions of
the decree.
4.2.2
Restoration Provisions
Injunctions ordering restoration or cleanup of the environment to its
condition prior to the violation are common for certain types of
violations. These decisions normally
consider the feasibility of restoration, the financial ability of the violator,
and the environmental benefits of restoration.
EPA invariably seeks restoration in Clean Water Act cases when a
violator has engaged in illegal dredge or fill activities in navigable waters,
and particularly so where “wetlands” are involved.80 In those instances where wetlands
restoration is not feasible, courts will sometimes order the violator to
develop a comparable wetland at another location.81 The enforcement provisions of several of the
environmental laws authorize “appropriate” relief, which could include
restoration.82
4.3.1
Environmental Auditing
The environmental statutes provide EPA with broad authority to compel
regulated entities to collect and analyze compliance-related information.83 On July 9, 1986, EPA announced its
environmental auditing policy statement which encourages the regulated
community’s use of environmental auditing to help achieve and maintain compliance
with environmental laws and regulations.84 The policy states that EPA may propose environmental auditing
provisions in consent decrees and in other settlement negotiations where
auditing could provide a remedy for identified problems and reduce the likelihood
of similar problems recurring in the future.85
Environmental auditing provisions are most likely to be proposed, in
settlement negotiations when a pattern of violations can be attributed, at
least in part, to the absence or poor functioning of an environmental
management system, or where it appears likely that similar noncompliance
problems may exist elsewhere in the facility, or at another facility operated
by the violator.86 I most
cases, either a compliance audit or a management audit is appropriate. The first is an independent assessment of
the current status of a party’s compliance with applicable statutory and
regulatory requirements.87
The other is an independent evaluation of a party’s internal
environmental compliance policies, practices, and controls.88 Whether to seek a compliance audit, a
management audit, or both will depend upon the unique circumstances of each
case.89
To date, Agency negotiators have achieved numerous settlements that have
required regulated facilities to audit their operations. These innovative settlements are effective
in ensuring future environmental compliance, and are not simply means of
rectifying violations once they have already occurred.
4.3.2
Pollution Prevention
Projects
EPA recently published a proposed policy which identifies “pollution
prevention” as a major priority and commits the Agency to instituting pollution
prevention planning and implementation throughout every regulatory program.90 Pollution prevention is defined as the
“reduction or elimination of environmental discharges and/or emissions to the
environment through the implementation of source reduction and
environmentally-sound recycling practices.”91 The Agency’s emphasis on preventing
pollution at the source is intended to reduce or eliminate root causes of some
violations and thereby increase the prospects for continuous compliance in the
future. It is anticipated that final
EPA guidelines will explicitly encourage enforcement personnel to incorporate
pollution prevention conditions in enforcement settlements.92
5.0 EPA’s Working Relationships with Special
Organizations to Enhance Enforcement Efforts
5.1 Introduction
Given the intense public and Congressional scrutiny being focused on
environmental issues, as well as the increasing number of programs subject to
environmental statues, it is not surprising that EPA’s enforcement program has
become the central means of implementing the Agency’s regulatory goals. In turn, the ability of EPA professionals to
draw upon all available enforcement resources is crucial to the success of the
civil and criminal enforcement programs.
Preceding sections have outlined some of the specific “tools” used in
the day-to-day operations of EPA’s enforcement program. No analysis of this program would be
complete, however, without noting both the important organizational resources
that exist within the enforcement-oriented professional relationships
maintained with other federal and state agencies.
5.2
Federal Agencies
5.2.1 Federal Bureau of
Investigation (FBI)
As EPA began to develop a credible criminal enforcement program in the
early 1980s, it became necessary to discuss with the FBI the relative
responsibilities of the two agencies with respect to environmental-related
criminal investigations.93
Though EPA is the Agency with specialized expertise in environmental
issues, the FBI has independent authority to investigate all criminal cases,
regardless of subject matter, within the borders of the United States. The agreement reached between the two
agencies has proven beneficial to both, as EPA volunteers the use of its
laboratory and technical support in return for being able to call upon the
Bureau for agent support.94
In the ensuing years, EPA and FBI personnel have conducted hundreds of
joint investigations resulting in steadily increasing numbers of criminal
referrals to the Department of Justice.95 Investigative and technical personnel from both agencies often
engage in environmental enforcement and other training sessions together.
In view of the tremendous growth in the criminal program in the past few
years, EPA and the FBI are currently preparing a new Memorandum of
Understanding which will establish revised operating policy between the two
agencies.96
5.2.2
Army Corps of Engineers
EPA recently negotiated an agreement with the Department of the Army’s
Corps of Engineers (COE)97 concerning the enforcement of violations
under the Clean Water Act’s provisions addressing illegal dredging and filling
activities in wetlands areas, which are considered U.S. waterways.98 Because of the existence of overlapping
regulatory authority, the two agencies are interested in minimizing any waste
of resources through duplication of effort, and effectively support each
other’s efforts. Accordingly, the COE
will normally be the “lead enforcement agency” unless the violations are
flagrant and/or repeated, or if EPA requests the case.99
5.2.3
Other Agencies
Several other working relationships exist, including two which are
notable because of their emphasis on deterring the improper reporting of
financial liabilities associated with environmental violations. The first involves the U.S. Internal Revenue
Service (IRS), which now regularly receives information relating to EPA penalty
decisions and settlement agreements.100 The IRS can use this information in ascertaining the tax
liability of companies and individuals, particularly with respect to the
verification of a taxpayer’s treatment of EPA penalties on tax returns, which
are not deductible.101
The second involves the U.S. Securities and Exchange Commission (SEC),
which requires publicly-held companies to report certain environmental
liabilities so that investors have adequate access to relevant information
regarding the value of traded securities.102 The SEC has received compliance-related
information from EPA on an irregular basis for a number of years, but this
process has not been formalized.
EPA is currently assessing whether or not SEC shareholding disclosure
data could be of assistance in alerting the Agency as to whether a corporation
had found and resolved an environmental problem at any one of its facilities,
but in conjunction with other facility data for targeting purposes, or to
indicate whether the corporation is in violation of any statutory
self-reporting requirements or those contained in a consent decree.103
5.3
State Environmental
Enforcement Associations
Achieving a high rate of regulatory compliance is critical to the
success of both EPA’s and the states’ environmental protection efforts. Without credible enforcement programs, there
will be less incentive in the regulated community to comply with environmental
laws. In an effort to strengthen
national criminal enforcement efforts, EPA, in cooperation with state
environmental enforcement organizations,104 has formulated national
criminal program priorities.105
Though many of the states have initiated criminal enforcement programs,
there is an insufficient level of coordinated effort between the states, particularly
with respect to training programs. In
addition, most state enforcement programs lack the resources (lab support,
technical expertise and criminal investigators) that exist at the federal
level.
Recognizing these and other concerns, there is now a concerted effort
underway to develop a consensus national program. Key agenda items include the drafting of model state
environmental criminal enforcement legislation; the enhancement of information
exchange capabilities between EPA and the states; the development of new
training programs; determining the role of local governments, and finding
additional sources of funding.106
6.0 The Use of Alternative
Dispute Resolution (ADR) Techniques to Facilitate Compliance Agreements
6.1
Overview
In order to effect compliance with the nation’s environmental laws, EPA
has sought to develop and maintain a vigorous judicial and administrative
enforcement program. It is critical
that cases instituted pursuant to the enforcement program be resolved, either
through settlement or decision by the appropriate authority, as quickly as
possible in order to ensure the integrity and credibility of the program, and
to reduce any backlog of cases.107
By 1985, EPA was initiative new enforcement cases faster than it was
closing existing ones, and the gap was widening. In the past couple of years alone, over 6,000 administrative
enforcement actions were initiated.
Despite aggressive attempts by EPA to streamline case initiation and
settlement practices, the Agency’s docket of administrative cases grew to over
2.500 active cases.108 This
situation forced the Agency to examine new ways of making the enforcement
program ore efficient, particularly given that no additional fiscal resources
were forthcoming. The use of ADR processes
was suggested as a partial solution.109
In August of 1987, EPA published its internal memorandum, Guidance on
the Use of Alternative Dispute Resolution Techniques in Enforcement Actions. The memorandum establishes as policy the use
of ADR in the resolution of appropriate civil enforcement cases; describes the
various ADR processes available; formulates Agency case selection procedures;
establishes qualifications for neutral third parties who hear cases, and
formulates internal Agency management procedures for cases submitted in whole
or in part for ADR. Significantly, this
guidance establishes the only formal program to date for the use of ADR in an
enforcement program by a U.S. federal agency.110
6.2
ADR Techniques
The ADR techniques currently employed by EPA include mediation,
arbitration, mini-trails, fact-finding, and the use of settlement judges. A mediator is a neutral third party who
monitors the exchange between disputants and serves as a “facilitator,” though
not as a judge, of the positions taken during negotiations.111 The mediator also schedules and structures
negotiations and acts as a catalyst when discussions falter. Nonetheless, as in traditional negotiations,
the parties retain the absolute power to resolve the issues in dispute; the
results of a mediated settlement are binding only if all parties agree.
Arbitration involves the use of a third party to hear stipulated issues
pursuant to procedures specified by the parties. Depending on the agreement of the parties, the decision of the
arbitrator may or may not be binding.
Factual and legal issues may be submitted to the arbitrator. Because the process is less formal than a
courtroom proceeding, parties usually relax evidentiary rules in an effort to
save time. There are severe restrictions
on the use of binding arbitration by federal agencies at the present time; the
process is rarely available and then only for factual issues. EPA’s experience with binding arbitration
has been limited to a few small cases under the Superfund law. Its future use for factual issues in other
contexts is currently being considered.112
Mini-trials permit parties to present their case, or some portion
thereof, to principals (e.g., company or EPA officials) who have the authority
to settle their dispute. Limited
discovery and preparation precede the case presentation which, with the consent
of the parties, usually takes the form of an abbreviated hearing with testimony
and cross-examination.
Following the presentation, the principals reinstitute negotiations,
possibly with the aid of a neutral third party mediator. Mini-trials are useful in narrowing factual
issues or mixed questions of law and fact, and in giving the parties a
realistic view of the strengths and weaknesses of their cases.114
Fact-finding involves the investigation of specified issues by a third
party neutral who is acceptable to the parties and who has expertise in the
subject matter forming the basis for the dispute. The process may be binding or nonbonding; moreover, if agreed
upon, the results of the fact-finger’s investigations may be admissible as
established facts in a subsequent judicial or administrative hearing. This process is often used in resolving
technical issues.115
The role of a settlement judge is similar to that of a mediator in that
a neutral, court-appointed jurist facilitates a settlement between the parties
by focusing negotiations and offering opinions on the likely outcome of key
issues at trial.
6.3
Practical Applications
ADR processes may reinvigorate a pending case which has been in
litigation for several years and is apparently at an impasse.116 Impasses can arise from personality
conflicts between counsel, poor communication with between parties, inflexible
negotiating stances, multiple parties with conflicting interests, or even
political or public policy interest. An
experienced third party neutral may be able to refocus and change the dynamics
of the negotiations, serve as an intermediary between conflicting interests, or
provide new perspectives on possible solutions.
Parties may choose to place technically complex issues before a neutral
with specialized expertise in an effort to foster resolution and avoid the risk
that a non-specialized judge may order an inappropriate or inadequate remedy. A practical example where EPA might agree to
ADR would be where a determination was necessary as to the required level of
cleanup at an industrial plant with a chemical contamination problem.117
EPA’s guidance memorandum notes that the government should perhaps
anticipate the referral of a complex issue to a third party neutral by a court
by suggesting that the parties themselves select a mediator to assist with
negotiations. It further notes the
desirability of considering ADR in instances where the parties demonstrate
their good faith willingness to use it.118
EPA has had several successful enforcement ADR experiences. In a case involving the City of Sheridan, Wyoming, EPA and the city had been attempting to resolve a violation of the Safe Drinking Water Act since 1979.119 The violations of drinking water standards involved the water supply to 300 persons by the city. In 1986, EPA proposed ADR as a means of re