EPA enforcement

• Author: Jeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
• Pages: 655-790

655

CHAPTER X:

EPA ENFORCEMENT

A. INTRODUCTION

EPA has an impressive arsenal of enforcement weapons available to use

against members of the regulated public who violate the requirements of the

Clean Water Act (CWA). Most, but not all, are provided in § 309, autho-

rizing the U.S. Environmental Protection Agency (EPA) to address viola-

tions of the CWA with three basic tools: (1) administrative orders; (2) civil

judicial actions; and (3) criminal prosecutions. Each of these tools, in turn,

encompasses dierent remedies and procedures. Administrative orders may

be issued to require compliance and assess penalties. §309(a), (g). EPA may

commence civil actions in federal district court for injunctive relief and civil

penalties. §309(b), (d). EPA may pursue criminal prosecution for negligent

violations, knowing violations, and knowing violations resulting in knowing

endangerment of life and limb. §309(c). Criminal sanctions include nes

and incarceration. Id.

Other enforcement remedies are dispersed throughout the Act and, per-

haps because they are not included in §309, they seem to be forgotten by

EPA, as well as by the regulated public. Section 504(a) authorizes EPA to

issue administrative orders and seek injunctive relief in federal district court

to abate “imminent and substantial endangerment” to public health or the

“welfare of persons where such endangerment is to the livelihood of such

persons,” regardless of whether the polluter has violated the CWA. As dis-

cussed in Chapter VII, permits may be revoked or modied because of a

violation. §402(b)(1)(C). Section 402(h) authorizes courts to “restrict or pro-

hibit” unauthorized sewer connections to publicly owned treatment works

(POTWs). is provision is rarely used at the federal level, but it is frequently

used by some state enforcement agencies and can be a potent enforcement

tool against growth-oriented cities. Section 508(a) bans federal agencies from

contracting with criminally convicted violators of the Act at least “until the

Administrator certies that the condition giving rise to such conviction has

been corrected.” Building on this and the government’s inherent power to

manage its own contracts, EPA has established an expanded program under

which it may “blacklist” facilities it alleges are violating the Act. See, e.g.,

Contractors Ass’n of E. Pa. v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971).

656 Water Pollution Control, 2d Edition

Facilities may contest such listing by undertaking administrative proceed-

ings followed by judicial review, but, in the meantime, they are ineligible for

federal contracts, grants, or loans. 40 C.F.R. pt. 15.

Of course, statutory sanctions alone do not constitute an enforcement

program. As we saw in Chapter IX, information-gathering and inspection

authorities are needed as well as the resources, organization, training, experi-

ence, and willingness to use the authorities and sanctions.

1. THE ENFORCEMENT SYSTEM

Compliance tracking and detection of violations are relatively simple for

EPA and national pollutant discharge elimination system (NPDES) states,

thanks to the comprehensive reporting system established in the NPDES

permit regulations. See 40 C.F.R. §§122.41(j), (l), 122.44(g), (i), 122.47(a)

(4), 122.48(b), (c). e regulations require permittees to report permit viola-

tions and to submit periodic discharge monitoring reports (DMRs) contain-

ing the results of required sampling and analysis of their discharges. e

requirements of each permit are stored in a computerized database and, as

the reports and DMRs are received, they are entered into the database for

automatic comparison. e computer program notes disclosed violations

and missing reports. Enforcement personnel then prioritize the violations

for enforcement action. EPA has developed a matrix that indicates the t ype

of enforcement action considered to be appropriate for dierent types of vio-

lations. is DMR-based compliance system can be eective because the

reports of violations in DMRs establish a prima facie case for the existence

of those violations. See, e.g., Sierra Club v. Simkins Indus., 847 F.2d at 1109;

United States v. Smitheld Foods, Inc., 965 F. Supp. 769(E.D. Va. 1997);

United States v. Town of Lowell, 632 F. Supp. 254 (N.D. Ind. 1985); Connecti-

cut Fund for the Env’t v. Job Plating Co., 623 F. Supp. 207, 16 ELR 20596 (D.

Conn. 1985); Student Pub.Interest Research Group of N.J., Inc. v. Georgia-Pac.

Corp., 615 F. Supp. 1415, 16 ELR 20039 (D.N.J. 1985); Student Pub. Interest

Research Group v. Monsanto Co., 600 F. Supp. at 1479.

Of course, no comprehensive enforcement program can rely solely upon

paper shuing. EPA and NPDES states supplement the reporting system

with a eld force of inspectors that perform periodic inspections of permit-

ted facilities. Inspections of major permittees generally are conducted on an

annual basis. 40 C.F.R. § 123.26(e)(5). Inspections include sampling and

analysis of the discharge to determine compliance and examination of the

records of and apparatus for the permittee’s own sampling and analysis. is

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helps to determine the reliability of the information in the permittee’s DMRs.

e reliability of the permittee’s DMR information is also enhanced by EPA’s

specication of the analytical procedures to be used, 40 C.F.R. § 136, and

by its specication of quality control procedures for the permittees’ labo-

ratories. With this level of scrutiny, signicant recurring DMR reporting

violations are not dicult to detect. EPA treats seriously false reporting viola-

tions, often responding to them with criminal prosecution. See United States

v. Brittain, 931 F.2d 1413, 21 ELR 21092 (10th Cir. 1991); United States

v. Hopkins, 53 F.3d at 533; United States v. Olin Corp., 465 F. Supp. 1120

(W.D.N.Y. 1979); United States v. Little Rock Sewerage Comm’n, 460 F. Supp.

6 (E.D. Ark. 1977).

EPA is required to evaluate the adequacy of the enforcement activities

undertaken by its 10 regional oces and those states with Agency-approved

NPDES programs. e regional oces and NPDES states must all le quar-

terly noncompliance reports (QNCRs) with EPA that list those major per-

mittees with signicant violations and the enforcement actions the regions

and states are undertaking to address the violations. 40 C.F.R. § 123.45.

ese QNCRs are publicly available. For example, exceeding a monthly aver-

age euent limitation for biochemical oxygen demand (BOD) by more than

40% in two out of the last six months must be reported and should lead to

some enforcement response. 40 C.F.R. §123.45, app. A.

e general outline of the NPDES enforcement program is specied in

40 C.F.R. §§123.26, and 123.27. ese sections also delineate some of the

requirements for a state’s NPDES program to be approved. e text of these

two sections is provided below.

REQUIREMENTS FOR COMPLIANCE EVALUATION PROGRAMS

40 C.F.R. §123.26 (2012)

(a) State programs shall have procedures for receipt, evaluation, retention

and investigation for possible enforcement of all notices and reports required

of permittees and other regulated persons (and for investigation for possible

enforcement of failure to submit these notices and reports).

(b) State programs shall have inspection and surveillance procedures to

determine, independent of information supplied by regulated persons, com-

pliance or noncompliance with applicable program requirements. e State

shall maintain: