EPA enforcement

AuthorJeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
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 a ll, 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. Ad ministrative 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 t hroughout 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 federa l district court
to abate “imminent and substantial endangerment” to public hea lth or t he
“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 t he
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 a re v iolating 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 underta king 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.
Compliance track ing and detection of violations are relatively simple for
EPA and national pollutant discha rge elimination system (NPDES) states,
thanks to t he 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 perm it are stored in a computerized databa se and, as
the reports and DMRs are received, they are entered into the database for
automatic comparison. e computer progra m 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 DMR s 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 ca n 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 genera lly 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
EPA Enforcement 657
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ce s and those states w ith 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 w ith signic ant 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 t wo 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.
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 surveilla nce procedures to
determine, independent of information supplied by regulated persons, com-
pliance or noncompliance with applicable progra m requirements. e State
shall maintain:

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