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

 

SUMMARY

 

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 resolving this long-standing problem.  After considerable discussion, the parties agreed to a process involving both mediation and fact-finding.  One of the mediator’s first acts was to bring in additional parties not directly involved in the enforcement action, but whose participation was essential to solving the underlying environmental problem, such as the county government, relevant state agencies, and citizen groups.

 

Because the negotiations with the city were considered to be in the nature of settlement discussions to resolve potential litigation, they were not open to the public.120  This obviated any posturing by either party which undoubtedly saved time.  A solution was reached after less than a year of mediated discussions and included the formation of a joint city-county committee to address long-range drinking water problems throughout the valley where the city is located.  This solution has since resulted in improved drinking water for 5,000 people, far more than the 300 who were targeted in EPA’s original enforcement action.  This resolution would have been unlikely to emerge from the traditional adversarial process.121

 

EPA views ADR processes as means of resolving selected enforcement disputes more efficiently.  The Agency’s willingness to consider the use of ADR does not imply that EPA would settle a case using these techniques on terms which would be less protective of human health or the environment than if the case were resolved by the familiar approach of negotiation and litigation.  EPA’s enforcement program is designed such that the use of ADR will always be accompanied by an aggressive enforcement program utilizing all administrative, civil and criminal sanctions available under the law.122

 

1.                The power to regulate commerce between the states (U.S. Const. Art I, §8, cl.3); the power to regulate the use of publicly owned lands (U.S. Const. Art IV, §3, cl.2); the power to tax and spend (U.S. Const. Art. I, §8, cl.1), and the power to enter into treaties (U.S. Const. Art. II, §2, cl.2).

2.                Hodel, 452 U.S. at 269.

3.                Id. at 277.

4.                Id. at 281.

5.                In an article by James M. Strock, the recently-appointed Assistant Administrator for Enforcement at EPA, the author argues that this balance had been disrupted by 1987 such that it was the executive branch which consistently opposed legislation, and the Congress which consistently proposed legislation and dictated terms of implementation to the agencies.  See Strock, The Congress and the President:  From Confrontation to Creative Tension, 17 Envtl. L. Rep. (Envtl. Law Inst.) 10006 (1987).  This situation resulted from a “two-edged assault on the regulatory process,” with a well-intentioned but scientifically and technically uninformed Congress on the one hand, and a fiscally cautious but environmentally insensitive executive branch.  Id.

6.                See e.g., Symposium, The New Federalism in Environmental Law:  Taking Stock, 12 Envtl. L. Rep. (Envtl. Law Inst.) 15065 (1982).

7.                See McElfish, “State Environmental Law and Programs,” in Law of Environmental Protection §6 at 14 (S. Novick ed. 1989).

8.                One exception, for example, is under the Federal Toxic Substances Control Act (TSCA), 15 U.S.C. §§2601-2609, where state law is preempted and states have no significant role in the federal program.  Federal preemption is a concept whereby Congress, acting under its delegated powers, has immersed itself so completely that there is literally no room for any state action.  Historically, federal preemption has occurred only when Congress has perceived a need for uniform, national standards (motor vehicle regulations are another example).  In the case of TSCA, Congress is keenly aware of public concerns with respect to the development and disposal of new toxic chemicals.  Accordingly, only EPA is empowered to regulate any new toxic substance which presents an “unreasonable risk of injury to health or the environment.” 15 U.S.C. §2601(b).

9.                See Wasserman, “Oversight of State Enforcement,” in Law of Environmental Protection §8 at 105 (S. Novick ed. 1989).  See also Policy Framework for Implementing State/Federal Enforcement Agreements, April 9, 1984; Memorandum from A. James Barnes, Deputy Administrator, Revised Policy Framework for Implementing State/Federal Enforcement Agreements, August 26, 1986.

10.            See Miller, “Federal Enforcement,” in Law of Environmental Protection §8 at 17 (S. Novick ed. 1989).

11.            Id. at 11.

12.            The following examples provide a good reference:

Section 309 of the Clean Water Act essentially says that when EPA finds a source in violation of the Act, it “shall” take some enforcement action against the source by issuing an administrative order or commencing a civil action.”  See CWA §309(a)(1).  However, in cases where parties have sought to compel EPA enforcement, courts have consistently ruled that the decision to enforce is discretionary.  See, e.g., State Water Control Board v. Train, 559 F.2d 921 (4th Cir. 1977).

 

Section 113 of the Clean Air Act is less clear, stating that “whenever on the basis of any information available,” EPA determines that a violation exists, it “shall” notify the violator and thereafter “may” issue an administrative order or “may” commence a civil action.  Some courts have held that the notification stage of enforcement is mandatory, but that the initiation of an action is discretionary.  See, e.g., Wisconsin’s Environmental Decade v. Wisconsin Power & Light Co; 395 F. Supp. 313 (W.D. Wisc. 1975).  Other courts, however, have been critical of this holding and have deferred to EPA’s interpretation of the Act as including the presumption of discretionary enforcement powers.  See, e.g., City of Seabrook v. Costle, 659 F.2d 1371 (5th Cir. 1981).

 

Section 3008(a)(1) of the Resource Conservation and Recovery Act states that when EPA finds a violation, it “may” issue an administrative order or “may” commence a civil action.”  Courts have found the use of the term “may” dispositive in RCRA cases.  See, e.g., U.S. v. Liviola, 605 F. Supp. 96 (N.D. Ohio 1985).

13.            42 U.S.C. §§4321-4370.

14.            42 U.S.C. §§6901-6987.

15.            Id. at §6924.

16.            See supra note 12.

17.            See J. Florio, Congress as Reluctant Regulator:  Hazardous Waste Policy in the 1980s, 3 Yale J. Reg. 351, 367 (1986).

18.            Id.

19.            James Florio, Governor of New Jersey and formerly Representative from New Jersey and Chairman of the House Subcommittee on Commerce, Transportation, and Tourism, which has jurisdiction over hazardous waste issues, has maintained that Congress will always seek to effect environmental policy through investigations and appropriations review, before resorting to statutory cures.  Id. at 376.

20.            Overton Park, 401 U.S. at 411.

21.            Id. at 409-13.

22.            The Administrative Procedure Act outlines the steps of the rulemaking process for regulatory agencies.  See 5 U.S.C. §553

23.            When EPA was created, most important Agency decisions were still made by formal trial-type hearings before Administrative Law Judges.  It quickly became apparent, however, that the passage of additional major environmental laws was placing a great strain on this system.  Accordingly, there was a need to provide a responsible forum for decision making that could also yield a record for judicial review.  See Novick, “Administrative Agencies and Procedures,” in Law of Environmental Protection §4 at 9 (S. Novick ed. 1989).

24.            See Portland Comment Ass’n. v. Ruckelshaus, F.2d 375 (D.C. Cir.1973).

25.            See Novick, supra note 23 at 19.

26.            EPA has increasingly attempted to settle these types of cases.  Settlement with a party bringing up a citizen’s suit might take the form of an agreement by EPA to act (e.g., promulgation of a rule) within a specified period of time.

27.            See Miller, supra note 10 at 81.  There have been few such cases to date, probably due to EPA’s practice of attempting to negotiate the terms of civil settlements prior to trial (or even prior to the filing of the complaint). Id.

28.            By statute, the Attorney General represents U.S. agencies in court.  28 U.S.C. §§523, 528.  Cases deemed appropriate for civil enforcement actions by EPA are referred to the Department of Justice for approval and filing with the proper court.  The initiation, conduct, and termination of litigation are controlled in this manner principally to ensure that the United States does not take contradictory positions of law or policy in federal courts and to ensure that the resolution of a lawsuit does not involve concessions that would adversely impact other federal agencies in future litigation.  See Habicht and Hunt, “Negotiated Settlement of EPA Civil Enforcement Cases,” in Law of Environmental Protection §8 at 133 (S. Novick ed. 1989).

29.            See Enforcement Accomplishments Report: FY 1989 (EPA, February, 1990) [hereinafter cited as Accomplishments Report].

30.            For example, pursuant to RCRA §3008(h) EPA may order corrective remedial action at a site where a release of hazardous waste into the environment has occurred.

31.            See Habicht and Hunt, supra note 28 at 159.

32.            For example, the Federal Clean Water Act empowers criminal prosecutions for “negligent” violations.  33 U.S.C. §1319(c).  In determining whether to initiate a criminal prosecution, EPA assesses whether the violator’s conduct was intentional, repeated, would cause extremely serious environmental harm, is of a type which should especially be deterred, or included direct involvement by policy level corporate officers or employees.  See H. Habicht, The Federal Perspective on Environmental Criminal Enforcement:  How to Remain on the Civil Side, 17 Envtl. L. Rep. (Envtl. Law. Inst.) 10478 (1987).

33.            See Accomplishments Report, supra note 29 at 16.  In FY 1989, 60 cases were referred to the Department of Justice, 95 defendants charged, and 72 defendants convicted – the highest totals sincer the inception of the criminal program.

34.            See Habicht and Hunt, supra note 28 at 99.

35.            See Guidelines on Investigative Procedures for Parallel Proceedings, June 21, 1989 [hereinafter cited as Investigative Procedures]; Procedures for Requesting and Obtaining Approval of Parallel Proceedings, June 15, 1989.

36.            See Investigative Procedures, supra note 35 at 3.

37.            Prior to trial, a criminal defendant has the right to obtain from the government any statements alleged to have been made by the defendant to agents of the government, the defendant’s criminal record, and any documents or other tangible evidence the government intends to use in its case.

38.            Perhaps the most significant cost associated with parallel proceedings is the need for two distinct staffs.  EPA’s guidelines dictate that the civil/administrative staff, including supporting technical and legal personnel, be separate from criminal investigation personnel to protect against allegations of misuse of the discovery process.  See Investigative Procedures, supra note 35 at 13 and 18.

39.            See Guidance for Calculating the Economic Benefit of Noncompliance for a Civil Penalty Assessment (EPA, November 54, 1984).  See also Habicht and Hunt, supra note 28 at 143-146.

40.            It is important to note that these very real but less serious violations may be less attractive to U.S. Attorneys and to federal district court judges for purposes of prosecution and review, respectively.  An administrative order usually prompts compliance but, if not, a violator’s refusal presents a more compelling case to the same U.S. Attorney or federal judge.  See Miller, supra note 10 at 30.

41.            See, e.g., Student Public Interest Research Group of N.J., Inc. v. Fritzche, Dodge, and Olcott, Inc., 759 F.2d 1131 (3d Cir. 1985).

42.            See, e.g., Clean Air Act §7413; CWA §§309 and 404; RCRA §3008.  However, it is noteworthy that while the administrative order provisions of the Clean Air served as the model for many successive provisions in other statutes, they themselves do not provide for the establishment of compliance schedules and the assessment of penalties.  Pending revisions to the Clean Air Act would establish such authorities.

43.            See, e.g., United States v. Independent Stove Co., 406 F. Supp. 886 (W.D. Mo. 1975).

44.            Clean Air Act §115(c)(1) and Clean Water Act §309(c).  See also 40 CFR Part 15.

45.            See Policy on Correcting the Condition Giving Rise to Listing Under the Contractor Listing Program (EPA, October 8, 1987).

 

The legislative histories of the Clean Water and Air Acts provide that a key purpose of the contractor listing program is to ensure that “the federal government will not patronize or subsidize polluters through its procurement practices and policies.”  See S. Conference Rep. No. 1236, 92nd Congress, 2d Session, reprinted in 1972 U.S. Code Cong. & Ad. News 3776, 3824.  The regulations provide:

It is the policy of the federal government to improve and enhance environmental quality. This regulation is issued to ensure that each agency in the executive branch that is empowered to enter into contracts…undertakes such…activities in a manner that will result in effective enforcement of the Clean Air Act…and the Clean Water Act…and does not favor fines where production costs may be lower due to noncompliance. 40 CFR §15.1.  In addition to the general policy stated above, EPA policies note that the contractor listing program should achieve three additional goals:  compliance with environmental regulations and swift resolution of environmental problems; fair and equitable treatment for the regulated community; and deterrence.  See Policy on Correcting the Condition Giving Rise to Listing Under the Contractor Listing Program, supra note 45 at 2.

46               38 Fed. Reg. 25161 (1973), reprinted in 42 U.S.C. §7606 at 314-315 (1982).

47               42 U.S.C. §7606, 33 U.S.C. §1368.

48               50 Fed. Reg. 36188, 36191 at 36193 (codified at 40 CFR §§15.10 and 15.11).

49               Id.

50               Id.

51               40 CFR §§122.64, 270.43, 144.40.

52               Id.

53               See Form of Settlement of Civil Judicial Cases (EPA, July 24, 1985).

54               See Bauer, “The Distinguishing Characteristics of Judicial Consent Decrees,” in Law of Environmental Protection §8 at163 (S. Novick ed. 1989).  See also United States v. Swift & Co., 286 U.S. 106, 114 (1932).

55               See United Stages v. Allegheny-Ludlum Indus., 517 f.2d 826, 850 (7th Cir. 1975).

56               See Bauer, supra note 54 at 163.

57               7 U.S.C. §136(1).

58               42 U.S.C. §113(b), 42 U.S.C. §3008(g).

59               CWA §311(b)(6)(A).

60               See Guidance on the Implementation of Administrative Penalty Authorities Contained in the 1987 Clean Water Act Amendments, August 28, 1987.

61               See e.g., United States v. Beatty, Inc., 501 F. Supp. 1040 (N.D. Ky. 1975).

62               Id.

63               See Miller, supra note 10 at 45.  See also Yafee Iron & Metal Co. v. EPA, 774 F.2d 1008 (10th Cir. 1985).

64               33 U.S.C. §1319(d).

65               42 U.S.C. §7413.

66               42 U.S.C. §7424.  In an effort to increase the effectiveness of EPA’s remedies, Congress has also authorized administratively assessed civil penalties pursuant to CAA §120 which are intended to recover from the violator the economic benefit from delayed compliance.  The existence of two penalty provisions in the Clean Air Act applicable to many of the same violations (most §113 violations are susceptible to section 120 penalties) could lead to duplicative penalties.  See Miller, supra note 10 at 80.

67               42 U.S.C. §300(g).  The SDWA carries the federalism theme of joint responsibility for environmental enforcement between the federal government and the states to an extreme.  Congress has determined that states have the primary interest in enforcing drinking water statutes.  Before EPA can take federal action against a public water supply system, EPA must notify the state and provide technical assistance to the state and the violator.  If the violation extends past 30 days, EPA must issue an order.  Only then, if the violation continues, can EPA bring an action.  Id.

68               15 U.S.C. §2623.

69               See e.g., State Water Control Board v. Train, 559 F.2d (4th Cir. 1977).  See also Miller, supra note 10 at 82.

70               Id.  Professor Miller has likened the inconsistencies of judicial penalty assessment to the possible outcomes in a game of chance, but believes that courts are, on balance, becoming more stringent each year with respect to environmental violations.

71               RCRA §3008(d).

72               See Miller, supra note 10 at 101.

73               However, it is equally important to note that the interplay of environmental and other types of laws does not always work to the exclusion of the former.  In a recent case, federal and state narcotics-related investigations were brought to trial as environmental crimes (illegal drug labs and chemicals on the premises thereof posed a substantial danger to human health) when it became clear that evidentiary problems threatened the termination of an action based solely on drug-related statutes.  EPA expects that these types of relationships with other federal and state agencies will continue to develop in the near future.  See supra Section V, for a discussion of EPA’s working relationships with other organizations.

74               See, e.g., §113(b) of Clean Air Act.

75               See Miller, supra note 10 at 90.

76               See, e.g., O’Leary v. Moyer’s Landfill, Inc., 516 F. Supp 517 (E.D. Pa. 1981), where RCRA and CWA violations did not prompt closure of a landfill because closure would not prevent pollutants from draining from the landfill anyway.  Instead the court required the company to design plans to stop the drainage.

77               See Miller, supra note 10 at 93.

78               See Guidance for Drafting Judicial Consent Decrees 10-12 (EPA, October 19, 1983).  See also Verification of Consent Decree Provisions (EPA, March 11, 1988); Habicht and Hunt, supra note 28 at 140-141.

79               Id.

80               See, e.g., United States v. Lambert, 589 F. Supp. 366 (M.D. Fla. 1984).  The preservation of wetlands is one of the key environmental priorities of the Bush administration.

81               See, e.g., United States v. Board of Trustees of Fla. Community College, 531 F. Supp. 267 (S.D. Fla. 1981).

82               See Miller, supra note 10 at 97.

83               See, e.g., CAA §§113 and 114, CWA §§308 and 309, and RCRA §§3007 and 3008.

84               51 Fed. Reg. 25004 (1986).

85               Id. at 25007.

86               See EPA Policy on the Inclusion of Environmental Auditing Provisions in Enforcement Settlements (EPA, November 14, 1986).

87               Id. at 3.

88               Id.

89               Id. See also Wasserman, “Environmental Auditing Provisions in Consent Decrees and Orders,” in Law of Environmental Protection §8 at 185 (S. Novick ed. 1989).

90               See Pollution Prevention Statement (EPA, January 26, 1989).

91               Id. at 1.

92               See Draft Interim EPA Policy on the Inclusion of Pollution Prevention Provisions in Enforcement Settlements (EPA, September 29, 1989).

93               See EPA-FBI Memorandum of Understanding, March 1982.

94               Id.

95               See supra, note 29 at 16.

96               There has been an expansion in the number of EPA Special Agents who, in 1988, were granted their own law enforcement powers by Congress.  Also, several criminal provisions in environmental statutes have been enhanced to felony levels.  These developments, coupled with new and stiffer U.S. Sentencing Guidelines, means there will be an increased likelihood of more cases going to trial.  In addition, as the prominence of cases and violators increases, there is certain to be more Congressional oversight, press attention, and interest from state and local authorities.

97               See EPA-COE Memorandum of Understanding on Enforcement of Clean Water Act Section 404, January 19, 1989.

98               33 U.S.C. §1362.  See supra, note 80 and accompanying text.

99               See supra note 97.

100           See Agreement Between the Environmental Protection Agency and the United States Internal Revenue Service Concerning Disclosure of Penalty Information, January 9, 1989.

101           Id.

102           See Memorandum to Thomas L. Adams, Jr., Assistant Administrator for Enforcement and Compliance Monitoring, January 30, 1989.

103           Id. at 2.

104           A majority of states are members of one of four geographically oriented state enforcement organizations:  the Northeast Hazardous Waste Project, the Midwest Environmental Enforcement Association, the Southern Environmental Enforcement Network, and the Western States Hazardous Waste Project.  These organizations provide an effective framework for negotiations between states as well as the furtherance of the federal-state relationship.

105           See Memorandum from Carroll G. Wills, Acting Director, National Enforcement Investigations Center, March 16, 1989.

106           Id.

107           See Guidance on the Use of Alternative Dispute Resolution Techniques in Enforcement Actions (EPA, August 6, 1987) [hereinafter cited as Guidance].

108           See T. Hunt, “Innovative Settlement Techniques:  Use of Alternative Dispute Resolution Tools in Resolving Environmental Litigation,” in Environmental Management Review 50 (Government Institutes, Inc. 1989).

109           See R. Robinson, “The Use of ADR in Enforcement Actions in the U.S. Environmental Protection Agency,” in Sourcebook:  Federal Agency Use of Alternative Means of Dispute Resolution (Administrative Conference of the United States, June 1987).  See also R. Mays, Alternative Dispute Resolution and Environmental Enforcement, 18 ELR 10087 (1988), at 10088.

110           See The Administrative Dispute Resolution Act of 1989:  Hearing on S.971 Before the Senate Committee on Governmental Affairs, September 19, 1989 (Statement of Edward E. Reich, Acting Assistant Administrator for Enforcement, EPA) [hereinafter cited as Reich testimony.]

111           See Guidance, supra note 107 at 4.

112           See Reich testimony, supra note 110.

113           Discovery is a set period of time occurring prior to trial which is used by parties to a dispute to ascertain relevant facts.  This is usually accomplished through oral depositions of potential witnesses and written questions directed to the other parties.

114           See Guidance, supra note 107 at 5-6.

115           Id. at 5.

116           See Hunt, supra note 108 at 61.

117           Id.

118           See Guidance, supra note 107 at 10-11.  It is equally true that a routine case might warrant the use of ADR given the potential costs associated with litigation.

119           The case was referred by EPA to the Department of Justice for filing in federal court in 1978.  In view of concerns about evidentiary issues and questions about the financial status of the city, the case was ultimately withdrawn.

120           See Reich testimony, supra note 110 at 20.

121           In most cases, records and communications arising from ADR are confidential and cannot be used in litigation or disclosed to the opposig party without permission.  Public policy interests in fostering settlements compel the confidentiality of ADR negotiations and documents.  U.S. federal courts have constructed the Federal Rules of Evidence to preclude admission of evidence regarding the defendant’s settlement of similar cases.  See, e.g., Scaramuzzo v. Glenmore Distilleries Co., 501 F. Supp. 727 (N.D. In. 1980).

122           See Hunt, supra note 108 at 66.