CHAPTER 9 GOVERNMENT ENFORCEMENT AND INVESTIGATIVE POWERS
| Jurisdiction | United States |
(Nov 1999)
GOVERNMENT ENFORCEMENT AND INVESTIGATIVE POWERS
Kirkpatrick & Lockhart LLP
Washington, D.C.
Cynthia A. Drew
Environmental Defense Section U.S. Department of Justice
Washington, D.C.
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Table of Contents
I. Introduction
II. Pre-enforcement authorities
A. Recordkeeping and Reporting
B. Spot visits (warrants, etc.)
C. Acquiring records
D. Availability of information to public (and industry)
E. Citizens as supplemental investigatory bodies
III. Administrative enforcement
A. Administrative Penalties
B. The Appeals Process
1. Review of Administrative Orders
2. Administrative Hearings
3. Settlements
4. The Environmental Appeals Board
IV. Civil suits
A. Civil Penalties
B. Injunctions
C. Limitations
1. Relationship to state actions (and overfiling)
2. Relationship to citizen suits
D. Settlements
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V. Criminal Suits
A. Criminal Sanctions Available
B. Misdemeanors Versus Felonies
C. Knowing Violations
D. Negligent Violations
E. Strict Liability Violations
F. Endangerment Violations
G. Violations by Corporations
H. Responsible Corporate Officers
VI. Conclusion
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I. Introduction
The United States Environmental Protection Agency (EPA) is the primary federal agency with the mission to ensure, through the use of its enforcement powers, that our natural resources are protected from unnecessary degradation. The authority of EPA to protect the environment is established in legislation passed by the United States Congress. That legislation contains substantive environmental obligations and details the agency's enforcement powers to ensure that these obligations are met. Legislation passed by Congress and signed into law creates the essential power of EPA. Without this legal authority, EPA may not act because the scope of its authority is defined by these laws. There are eight major laws under which the vast majority of EPA enforcement actions are taken.1 These laws are, as follows:
• Resource Conservation and Recovery Act (RCRA) 2
RCRA also encompasses the Solid Waste Disposal Act of 1980 and the Hazardous and Solid Waste Amendments of 1984. This statute regulates the treatment, storage, and disposal of solid and hazardous waste.3
• Federal Water Pollution Control Act 4
Commonly called the Clean Water Act (CWA), this law regulates the discharge of various substances into the "waters of the United States."5
• Clean Air Act (CAA) 6
CAA regulates the emission of various substances into the air.7
• Toxic Substances Control Act (TSCA) 8
TSCA regulates the development and use of certain chemical substances.9
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• Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 10
FIFRA regulates the registration, labeling, and use of these substances.11
• Emergency Planning and Community Right-to-Know Act (EPCRA) 12
EPCRA regulates the public dissemination of information on certain chemicals and other substances present within local communities and requires local preparedness programs for emergencies involving these chemicals.13
• Public Health Service Act 14
Commonly known as the Safe Drinking Water Act (SDWA), this statute governs the protection of drinking water sources.15
• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 16
Commonly known as the Superfund law, CERCLA governs the cleanup of abandoned sites containing hazardous substances.17
In addition to the statutory provisions themselves, these laws direct EPA to promulgate legislative regulations to implement these statutory directives. These regulations define and explain many of the requirements imposed by Congress. Promulgated regulations have the force and effect of law. Therefore, the obligations and requirements that are created by EPA regulations may be enforced in the same manner as congressional laws.
Finally, EPA develops a wide variety of guidance documents that further explain and interpret the requirements of the law and regulations. Although not legally binding on the regulated community, EPA often relies on them in enforcement actions when the language of the statute or regulation is unclear. Many hearing officers and judges also defer to them. Accordingly, these documents have a significant and practical impact on persons and entities attempting to comply with the law and regulations of EPA.
The level of enforcement activities EPA has engaged in over the last 20 years has grown substantially. On the criminal side, 266 cases were referred to United States the Department of justice (DOJ) in 1998.18 Administrative and civil judicial enforcement actions increased in 1998.
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There were 411 civil case referrals to DOJ and 1,400 administrative complaints.19 In total, EPA concluded 3,479 formal actions or settlements in fiscal year 1998.20
EPA's overall enforcement objective is to protect the environment through assuring compliance with all environmental laws. Its enforcement goals in environmental cases are thus to (1) ensure that the alleged violator is and will be in compliance; (2) punish non-compliance; (3) deter the alleged violator and others from not complying; and (4) correct the harm caused by non-compliance.
There are three ways EPA can exercise its enforcement powers, thereby achieving its goals of compliance, deterrence and correction. The agency may use administrative, civil, and/or criminal proceedings. Administrative enforcement involves a proceeding brought by one of the EPA Regional Offices. Review of these sanctions is conducted by an EPA hearing officer. Civil judicial enforcement involves a formal federal law suit filed by DOJ, on behalf of EPA in federal district court, seeking civil fines and/or court orders to comply or act in a particular way. Criminal sanctions involve the filing of an indictment or information in federal district court, again by DOJ on behalf of EPA, seeking criminal fines, jail terms, and other sanctions against the violators.
For each of these means of enforcement, EPA has two general types of sanctions it can pursue: equitable orders and monetary penalties. In addition, if criminal prosecution is pursued, jail time may be imposed. Equitable orders are wide-ranging, and their availability is determined by the statute being enforced. These orders may range from simply requiring the responding party to stop violating the law, to ordering cleanup of a site or seizure of a product or substance, or to ordering changes in a business structure or operation. Monetary penalties that EPA may pursue are also determined by statute, and are authorized at levels of up to $27,500 per day.21
EPA also has informal and indirect enforcement sanctions available. The most typical of these is the use of its information-gathering power. If information requests are not responded to properly, such inadequate response may form the basis of or help trigger, a formal enforcement action.
Finally, many of these statutes contain an additional enforcement power called citizen suits. These suits authorize private persons to bring civil judicial actions to enforce many environmental laws when EPA or the appropriate state authority fails to file suit.
II. Pre-enforcement authorities
Inspections and investigations are the linchpin of the EPA enforcement program. EPA is authorized under various statutes to conduct inspections and investigations of both public and private facilities.
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EPA has four basic categories of inspections and investigations. The first type, routine program-specific compliance inspections (Category A), are conducted in order to determine the compliance status of the facility for a particular program (e.g., air, water, waste, toxics). The second type is a program-specific inspection (Category B) in which the inspectors first screen for potential violations. This inspection tends to be multimedia in nature but usually focuses on particular problems at smaller facilities. The third type (Category C) is more investigatory in the sense that it involves a team of inspectors, and tends to focus on larger, more complicated facilities. This inspection will involve extensive preparation and will target various program-specific areas. The fourth type of investigation (Category D) is a comprehensive evaluation to address both compliance and other potential environmental problems. This inspection is resource-intensive and may involve tracing waste streams throughout a facility and carefully evaluating new or modified manufacturing processes. It may last from several days to several weeks.22
Historically, most EPA site visits occur as a result of scheduled, routine compliance inspections. More recently, EPA has focused on Category C and D multimedia inspections. The basic protocol is the same. Routine inspections are conducted at permitted facilities within a certain class and are usually conducted at least annually. For example, National Pollutant Discharge Elimination System (NPDES) facilities discharging one million gallons per day or more will generally be inspected annually. RCRA requires that certain facilities be inspected every two years. Other visits occur as a result of a particular problem raised in connection with citizen or employee complaints. EPA will also visit a site as a follow-up to information obtained in response to the facility's submittal of reports or information that indicated the facility is not in compliance with a particular law.
A. Recordkeeping and Reporting
Faced with the difficulties of measuring and monitoring compliance, environmental enforcement authorities rely heavily on self-monitoring and self-reporting requirements as a means for detecting violations.23 The pollution control statutes generally authorize EPA to impose monitoring, recordkeeping, and reporting requirements24 on dischargers...
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