September 1990
Office Of
Environmental
Enforcement
A Law Enforcement
Officer's Guide
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Contents
Preface
Introduction 1 Vigorous and effective enforcement is
a cornerstone of the Environmental
Who Are the Enforcers? 2 Protection Agency's (EPA) effort to
improve the environment and protect
Compliance Monitoring — human health. Enforcement prevents
Checking Up 6 pollution. Enforcement minimizes risk.
EPA enforcement makes clear that the
Inspections 7 American people view environmental
degradation as not only an
Criminal Investigations — unacceptable business practice, but as
Catching Environmental an assauit on our shared notions of
Criminals 12 responsible citizenship.
, , The pages that follow explain the
Enforcement Actions — complex functions of EPA's
The Tools We Use 14 environmental law enforcement
on. r» j ou j mechanism. The structure of the
The Broad Shadow Agency's enforcement apparatus, the
of Deterrence 18 methods and the enforcement officials
TT ,. _ TT , rt_ who use them are identified and
How You Can Help 20 described
cv«. T? ,.*i,<». T»f™™Qfi«« OA I*3™ enforcement officers and
For Further Information 24 ^^^ haye ^ important role to play
Environmental Agencies 25 J? environmental enforcement.
0 Together, we can make great progress
toward environmental improvement.
Project Coordinator:
William H. Frank
James M, Strock
Assistant Administrator for
Enforcement
Printed on Recycled Paper
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Introduction
What if lawmakers passed an
environmental law and nobody
obeyed?
Environmental laws set standards
for what people and institutions must
do to control or prevent pollution.
After enactment, it becomes the job of
the federal, state and local
governments and, if applicable, Indian
tribes, to make sure that those who are
subject to the laws know what they
must do to comply. The primary
federal environmental role is carried
out by the Environmental Protection
Agency (EPA).
Enforcement is the governmental
response to people who fail to obey
the laws. Some become violators out
of ignorance. And there are always
some who dislike the new laws and
think they can violate them with
impunity. EPA's enforcement program
aims to deter all violations of the law.
"Enforcement" as we will discuss it
here consists of all efforts to encourage
compliance with environmental laws.
"Compliance" refers to the condition
that exists when a person or company
fully obeys the law (when it complies
with the law).
An environmental law without
compliance would mean that pollution
problems would continue and grow
worse. EPA has an enforcement
program to make sure the laws get the
results Congress and the public want.
The fundamental aim of
enforcement is to convince those who
are regulated by environmental laws
that it is better to comply quickly than
to wait until they are caught.
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Who Are The
Enforcers?
Environmental enforcement is a
comprehensive program involving
federal, state and local governments.
From the nation's capital to the
neighborhood you live in, there is a
far-reaching network of enforcement
personnel to make sure the
environmental laws are obeyed.
Federal
Government
EPA leads the federal government's
environmental enforcement efforts,
applying the latest sophisticated law
enforcement techniques and drawing
upon the specialized abilities of other
federal agencies.
The headquarters organization of
EPA includes a central enforcement
office, the Office of Enforcement,
which advises all other EPA offices on
enforcement and manages EPA's
litigation program. There are also
specialized enforcement units attached
to the offices that manage the
programs pertaining to air, water,
hazardous wastes, and pesticides and
toxic substances.
Ten regional offices manage EPA
programs in the field and conduct
most of the day-to-day enforcement
activities of the Agency. Where a state
has been approved by EPA to
implement the program, the regional
office oversees the state's performance
to assure consistency with the federal
law. In unapproved states, the EPA
regional office administers the
program. Enforcement activities are
carried out by three types of units:
• Program divisions for water, waste,
and air (including pesticides and
toxics) conduct inspections and
initiate administrative enforcement
actions.
• The environmental services division
conducts inspections on behalf of
program divisions.
• The regional counsel conducts
enforcement litigation and gives legal
advice to the program divisions.
The National Enforcement
Investigations Center (NE1C) is a
technical resource and investigative
unit for EPA's civil and criminal
enforcement efforts. It maintains a staff
of trained criminal investigators who
are located in EPA regional offices
throughout the country, where they
work closely with the Regional
Counsel's office and U, S. Attorneys in
pursuing environmental criminals.
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Remedial worker collecting
toxicity data from abandoned
drums
The Department of Justice (DOJ)
plays a crucial role in EPA's
enforcement activities. When EPA
wishes to prosecute a violator in the
U.S. Court system, EPA refers the case
to DOJ, recommending prosecution.
This recommendation is considered by
DOJ attorneys who specialize in
environmental litigation, and DOJ
makes the final decision whether or
not to file the case. When the case
goes to court, DOJ legally represents
EPA in court though EPA's legal and
technical staff remain actively
involved in the case.
The Federal Bureau of Investigation
(FBI) assists EPA in investigating and
apprehending environmental
criminals.
State
Governments
Virtually every federal environmental
law allows state governments to
develop programs for implementing
the federal law in their states. When
EPA has determined that the state
program meets the federal
requirements, EPA approves the state
program. Such programs are called
"delegated" or "approved" programs.
Under this arrangement, the states
apply the national standards and
regulations by issuing and enforcing
their own rules and permits.
State governments carry out the
lion's share of environmental
enforcement actions. For instance,
most of the inspections in the state
programs are done by state
governments (some 80 to 90 percent as
of 1988). And most of the enforcement
actions are taken by states (some 70
percent of the national total under the
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federal air, water and hazardous waste
programs).
Enforcement at the state level is
carried out by a number of different
agencies:
• State environmental agencies
usually have responsibility for
permits, inspections, and certain types
of enforcement actions. In some states
a single environmental agency handles
all EPA programs, while in others
several agencies divide the
responsibilities. States may also
delegate some of the activities to
county or city governments. Your local
health department may be the
front-line troops against pollution.
• The state attorney general is the
chief law enforcement official for the
state, and his or her decisions have a
major influence over the strength of
the environmental enforcement
program in the state. The attorney
general also has responsibility for
suing violators, at the request of state
environmental agencies.
• District attorneys may also have
responsibility for suing violators and
typically represent municipalities. In
some states, the District Attorney's
approval is required for enforcement
suits to be filed by the attorney
general.
The states' environmental
enforcement programs vary greatly, so
EPA encourages efforts among states to
pool their experience and knowledge
to raise their overall effectiveness. For
example, one area of current sharing is
criminal enforcement, because many
states still lack criminal enforcement
programs, even though their state
legislatures may have authorized
criminal prosecution.
EPA strives to work out an effective
enforcement partnership with each
state. This is accomplished through
enforcement agreements with the
separate state agencies. These
agreements usually define the
characteristics of a good program,
using the same criteria by which EPA
judges its own performance.
The agreements also spell out the
circumstances under which EPA will
step in and take enforcement action in
an approved state program. The most
common are:
• if the state requests it;
• if the state's enforcement response
is not timely and appropriate (this
criterion will be discussed later in this
booklet);
• if the case involves national
precedents; or
• if there is a violation of an EPA
order or consent decree (settlement
agreement).
EPA assists the states through
training of technical and enforcement
staff and helping state agencies
develop their enforcement strategies.
EPA also conducts oversight
inspections to identify needs and
opportunities for strengthening the
state's inspection program.
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Conducting an environmental etiforcement seminar for an international audience at the Federal
Law Enforcement Training Center.
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Compliance Monitoring —
Checking Up
The essential first step in enforcing a
law is to find out who is obeying it
and who is violating it. This is
"compliance monitoring."
There are three basic types of
compliance monitoring, and they are
used differently by EPA's major
programs, depending upon the nature
Overflights are used to monitor facilities
suspected of noncompliance with
environmental laws.
of the regulated pollutants and the
types of facilities involved:
Self-Monitoring - Most U.S.
environmental laws require the
regulated facilities to keep track of
their own compliance status and
report all or part of the resulting data
to the responsible agency. This not
only gives the agency data it needs; it
helps to alert the company's top
management to its progress in obeying
the law. Fraudulent reporting is a
serious offense under federal law, and
inspections serve as a check on the
data submitted by regulated facilities.
Inspections - Inspections are the
backbone of EPA's compliance
monitoring programs. They are the
government's main tool for officially
assessing compliance. An inspection is
an examination into the environmental
affairs of a single regulated facility, to
see whether it is in compliance with
environmental requirements.
Inspection findings become the basis
for a variety of possible actions EPA
might take to bring the facility into
compliance.
Area Monitoring - Used less often
than inspections or self-monitoring,
area monitoring looks at
environmental conditions in the
vicinity of a facility, or over a larger
area. Methods used for area
monitoring include ambient
monitoring, remote sensing, and
overflights. For example, the air
quality reports given in local news
broadcasts are one result of area
monitoring.
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Inspections
An inspection is intended to attain the
following objectives, thereby
advancing the goal of maximum
compliance:
Assess Compliance Status -
Inspectors observe the facility and
identify specific environmental
On-site inspections are widely used by EPA
to identify, examine, and remedy violations.
problems, if any exist. This
information will enable EPA to
determine whether the facility is in
compliance.
Collect Evidence - Inspectors collect
and preserve evidence of any specific
problems that appear to be violations.
The evidence will be used in the
resulting enforcement action to bring
the facility into compliance.
"Show the Flag" - The inspection
itself creates a visible, credible
presence of the interest and power of
the government in the eyes of
managers at the regulated facility. This
helps to deter violations at that facility
and other similar facilities.
How Inspections
Are Allocated
In theory, it might be desirable to
inspect every regulated facility on a
regular basis. No government program,
however, has the funds and personnel
to do that. As a result, each EPA
program has a strategy or policy for
allocating inspections to various
segments of the regulated community,
and ultimately to particular facilities.
Inspections are conducted for any of
four reasons:
Routine - The largest number of
inspections are routine inspections,
conducted because the facility is
within a segment of the regulated
community that has been targeted for
inspection.
For cause - In this case, there is
some reason to suspect that an actual
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violation exists. The stimulus may be
a tip, a citizen's complaint, a
self-monitoring report, or a referral
from another agency. Data available
from other EPA programs, such as the
Toxic Release Inventory, may be cause
for an inspection.
Case development support •
Sometimes an initial inspection did
not collect enough evidence to support
an enforcement action, and a second
inspection is needed to collect specific
types of evidence requested by EPA
enforcement attorneys.
Follow-up - Follow-up inspections
are performed to check on facilities
that were found in violation and have
been ordered to comply through an
enforcement action. If the facility is
still out of compliance, EPA will
usually escalate to a stronger
enforcement action.
The Inspection
Scheme
Each EPA program has an overall
inspection scheme allocating a
proportion of inspections to each of
Action by federal and state
environmental agencies is often
prompted by tips from
concerned citizens who come
across possible violations
during their daily routine.
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the categories described above, in
accordance with the program's
enforcement goals and priorities.
Each EPA program has its own
approach to establishing enforcement
goals and priorities. However, no
matter what program is involved, three
central questions govern
priority-setting:
• How likely is it that a violation in a
particular class of facilities would
present a significant risk to human
health and the environment?
• How likely is it that a class of
facilities will violate environmental
laws or regulations?
• How likely is it that inspections of a
particular class of facilities will help
deter violations?
In a high-priority class, every facility
might be inspected. In lower-priority
classes, only a small proportion of the
facilities might be inspected.
Each EPA program has developed a
"neutral administrative inspection
scheme" setting out how the regulated
community is divided into classes or
segments for the purpose of targeting
routine and follow-up inspections.
Typical criteria for these segments
include type of industry, size of
facility, and amount of pollutants they
handle.
The scheme is "neutral" in that the
specific facilities within each class or
segment are selected for inspection on
a random basis.
Getting ready for an inspection.
Levels
of Inspection
Inspections range from a quick
walk-through by a single inspector,
which might take less than half a day,
to an inspection by a team of
inspectors involving extensive
collection of samples, which could
take up to several weeks.
Each EPA program has its own
terminology for its inspections.
However, there are three general
categories that describe the range of
possibilities:
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.
A technician analyzes collected physical
samples at one of EPA's many laboratories.
Walk-through inspection - would
generally be limited to a quick survey
of the facility, checking only for the
existence of control equipment,
observing work practices and
housekeeping, and checking as to
whether there is'a records repository.
Such inspections help to establish an
enforcement presence, and they can
also serve as a screening process to
identify facilities that should be
targeted for more intensive inspection.
Compliance evaluation inspection -
the most common form of inspection.
It might include visual observations
(as in the walk-through), review and
EPA regularly uses
specially modified aircraft
for aerial sampling
and monitoring.
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evaluation of records, interviews with
facility personnel, and collection of
other evidence, such as physical
sampling. It might also include
detailed review and critique of
self-monitoring methods, instruments
and data, and probing for details about
process and control devices that are in
place.
Sampling inspection - always
involves pre-planned collection of
physical samples. Sampling
inspections are the most
resource-intensive, since they involve
advance planning of the sampling as
well as laboratory analysis of the
samples.
Less frequently used techniques
include aerial photography and
airborne laser instrumentation. EPA is
constantly seeking new and more
effective inspection methods to use in
the fight against pollution.
The
Inspector
The inspector's fundamental mission
is to examine the state of compliance
of a single regulated facility.
Inspectors for EPA and state agencies
are often the only environmental
officials the plant manager and facility
workers will ever see in person. EPA
considers its inspectors a vital element
of its contact with the public.
Inspectors have technical
competence in the subject of the
inspections they perform, are skilled
in obtaining the crucial facts, and
know how to collect and preserve
evidence of noncompliance for use in
enforcement actions. They also
prepare inspection reports and serve
as witnesses in court.
An expertly prepared inspection
report, which clearly documents
violations and includes samples of
polluted materials, can be highly
persuasive to a judge, a jury, or an
administrative law judge. The
inspector is often the key witness for
the government in an enforcement
case.
EPA conducts a training and
development program for inspectors to
assure that they have the legal,
technical, administrative and
communications skills needed to
conduct compliance inspections. The
Agency requires its inspectors to take
a basic training course on
environmental compliance
inspections; specific EPA programs
also conduct training to prepare
inspectors for particular types of
inspections.
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Criminal Investigations—
Catching Environmental Criminals
Those who knowingly violate
environmental laws may be considered
environmental criminals. In certain
circumstances, under the Clean Water
Act, negligent acts can also be
construed as criminal violations. EPA
and state agencies have criminal
enforcement programs to bring these
violators to justice.
The consequences of a criminal
violation are more severe than those
for civil violations. Criminal violations
of environmental laws may be either
misdemeanors or felonies, punishable
by a fine of up to $50,000 per day or
per violation, or by imprisonment for
up to five years per day of violation,
or both.
Both corporations and their
executives have paid heavy fines for
criminal violations, and company
managers have gone to prison. The
growth of criminal enforcement has
provided a powerful incentive for
voluntary compliance.
EPA's National Enforcement
Investigation Center (NEIC) stations
special agents at each EPA regional
office. The special agents have
full power as law enforcement officers.
They are authorized to execute search
warrants, make arrests, and carry
firearms.
How A Criminal
Investigation Begins
The "initial lead," an allegation of
potential criminal activity, usually
comes to EPA's criminal investigation
staff from other EPA employees, from
state agencies, from citizens, or from
company employees who suspect a
problem.
Criminal investigations often grow
from compliance inspections.
Inspectors are always on the lookout
for possible criminal violations, which
involve knowing or willful behavior,
fraudulent reporting, or negligent
actions (under the Clean Water Act).
EPA inspectors are prepared to call on
EPA's criminal investigation staff
when they encounter incidents such
as:
Conflicting data - When the
company has two sets of records on
the same incident, or its monitoring
data is not consistent.
Conflicting stories - When an
inspector is told one thing and sees
something quite different, either in
records or through observation.
Unsubstantiated data - When the
inspector is given monitoring data for
which there is no supporting record or
documentation.
Deliberate actions - When an
employee says he or she was told to
do something the inspector knows to
be illegal.
Claims of ignorance - When an
employee claims to be unaware of
established requirements, but the
inspector discovers records in the
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- I, 1
company's files showing knowledge of
those requirements or where
co-workers make statements during
interviews showing that the employee
had knowledge.
If the criminal investigation
confirms that a criminal violation
occurred, it may lead to a criminal
prosecution. This will be discussed
later in this booklet.
Clockwise from top—EPA investigators
participate in a "vehicle stop and search"
exercise, which involves chasing after and
apprehending fleeing suspected felons; EPA
uses many "high tech" tools in its
investigations. Pictured here is a lidar gun,
which is essentially a laser that is used to
detect the contents of emissions from suspect
sources; state and local law enforcement
personnel participate in a hazardous waste
investigations training program sponsored by
EPA.
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Enforcement Actions—
The Tools We Use
An enforcement action is a response to
something a person or company has
done in violation of a law or
regulation. (For this reason, it is often
called an "enforcement response.") It
is EPA's policy that every violation
will be responded to in some way, and
the type of response will be in keeping
with the seriousness and
circumstances of the violation.
EPA has a range of options at its
disposal when contemplating an
enforcement response against a
violator, and these options differ from
one law to another. They range from
informal actions that take little effort
to formal ones involving large
commitments of time and money.
To EPA, these options are tools.
Together they comprise EPA's
enforcement tool kit, from which the
most appropriate tool will be chosen
for the job at hand.
The Goals
of Enforcement Actions
In choosing the most appropriate
enforcement response to a given
violation, EPA aims to achieve several
goals:
• Correction of the violation as
quickly as possible.
• Deterrence of future violations by
the same party or other parties.
Removing contaminated materials from a facility—one of the first of many steps to correct the
violation
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• Fairness to the regulated
community by treating similar
violations similarly.
• Punishment of serious, willful
wrongdoing through criminal
sanctions, such as fines and jail time.
• Effective use of enforcement
resources by using the enforcement
response that achieves environmental
and health goals at the least
expenditure in money and staff time.
Types of
Enforcement Actions
There is a wide array of possible
enforcement actions under the laws
EPA administers. These different tools
can be grouped in four "levels of
action," differing in severity and in the
scale of agency resources required.
A given violation may be handled
by actions at more than one level.
And, if a lower-level response fails to
get results, it is EPA's policy to
escalate to a higher level. The four
levels of action are listed below in
order of increasing severity:
Informal responses are
administrative actions that are
advisory in nature, such as a notice of
noncompliance or a warning letter. In
these actions, EPA advises the
manager of a facility what violation
was found, what should be done to
correct it, and by what date. Informal
responses carry no penalty nor power
to compel action, but if they are
ignored, they can lead to more severe
actions.
Formal administrative responses
are legal orders that are independently
enforceable; require the recipient to
take some corrective/remedial action
within a specified period of time;
require the recipient to refrain from
some certain behavior, and require
future compliance. These
administrative actions are strong
enforcement tools; if a person violates
an order, EPA may obtain U.S. Court
action to force compliance.
Administrative actions are usually
the most expeditious way of dealing
with a violation. They are resolved
quickly, and they absorb less staff time
and money than cases in the U.S.
Court system. Therefore, they are used
heavily by most EPA programs that
have the authority for them. Congress
has given EPA authority for
administrative enforcement in more
programs during recent years, as the
effectiveness of this approach has
become clear.
Administrative actions are handled
under EPA's internal administrative
litigation system, which is comparable
to any court system, except that it is
presided over by EPA's administrative
law judges (ALJs). A violating
company may appeal an ALJ's ruling
to the EPA Administrator and may
appeal the Administrator's final
decision to the U.S. Courts. In
practice, most violators do not pursue
these appeal opportunities.
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Civil judicial responses are formal
lawsuits taken in the U.S. Court
system by the U.S. Department of
Justice (DOJ) at the request of EPA.
They are normally used against the
more serious or recalcitrant violators
of environmental laws or to seek
prompt correction of imminent
hazards that pose an immediate threat
to human health or the environment.
Civil judicial cases generally result
in penalties and court orders requiring
correction of the violation and
requiring specific actions to prevent
future violation (such as specialized
monitoring by the facility).
Preparation of civil judicial cases
requires more staff effort and money
than administrative enforcement, and
judicial cases sometimes take several
years to complete. Therefore, EPA
often responds to violations through
administrative actions, where it has
this authority.
Criminal judicial responses are
used when a person or company has
knowingly and willfully violated the
law. In a criminal case, the
Department of Justice prosecutes an
alleged violator in the U.S. Court
system, seeking criminal sanctions,
usually including fines and
imprisonment.
Criminal actions are often used to
respond to flagrant, intentional
disregard for environmental laws (such
as "midnight dumping" of hazardous
wastes) and deliberate falsification of
documents or records.
Criminal cases are the most difficult
type of .enforcement response to
pursue. They require special
procedures for investigations and case
development, and the government
bears the burden of proof to show
intent of the violator to commit the
violation.
Enforcement Response
Policies
EPA issues "enforcement response
policies" to help assure that violators
in similar circumstances are treated
similarly. These policies guide EPA
enforcement officials as they decide
how to respond to specific violations,
either in selecting the type of
enforcement action to be used, or
determining the penalty to be
proposed.
Two EPA enforcement policies
apply to all EPA programs and are
implemented through specific policies
adopted by the programs:
Penalties - EPA's policy on civil,
penalties explains how a proposed
penalty figure should be calculated.
Each penalty should, at a minimum,
reclaim any economic benefits the
violator obtained by not complying
(the "benefit component"). In addition,
the penalty should include an amount
reflecting the seriousness of the
violation (the "gravity component").
Finally, the preliminary figure may
be increased or decreased to account
for differences between cases such as
the degree of willfulness or negligence
by the violator, the violator's history of
compliance or noncompliance, the
violator's ability to pay, and the
violator's degree of cooperation.
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Timely and Appropriate
Enforcement Response - Under EPA
policy, the response to any violation
should be both timely and appropriate.
Each EPA program has defined the
acceptable number of days (or
"timeliness") from detection of the
violation to an initial response for the
types of violation that occur in that
program. The program offices have
also spelled out the appropriate
enforcement responses for different
types of violations. State agencies also
apply these concepts through their
own policies and enforcement
programs.
These generic EPA policies are
usually applied by the specific
program offices when they draw up an
enforcement response policy for a
given law or set of regulations.
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The Broad Shadow
Of Deterrence
Enforcement casts a broad shadow of
deterrence which dissuades people
from violating the laws. Specific
enforcement actions are taken against
relatively few violators at specific sites
where inspections have revealed
violations; yet, these relatively few
actions are capable of fostering
compliance by an entire industry at
facilities all over the country.
Enforcement is the essential driving
force that makes environmental laws
work. Without enforcement,
environmental laws would be largely
words on paper, because there are
powerful disincentives working
against compliance. Enforcement
evens the scales by adding a powerful
incentive in favor of compliance.
The Elements
of Deterrence
Enforcement stays the hand of the
would-be violator and encourages the
person who wants to comply. It does
this chiefly by creating a fear of
detection and an assurance of
fairness.
The manager of a company fears
being caught in violation of
environmental laws and suffering the
consequences. The manager may fear
that the company will lose money
through a penalty, that bad publicity
will harm the company's sales, or that
company managers will have to serve
a prison sentence. The manager may
also fear a salary cut or loss of his or
her job as a result of an enforcement
action.
A manager who is willing to comply
with the law wants an assurance that
competitors will not be free to ignore
the law and, as a result, keep their
prices lower or accumulate more
profit. If enforcement is applied fairly
and consistently, it gives this
assurance of fairness (or "equity") to
the cooperative manager.
Credible
Enforcement
Presence
In practice, environmental agencies
create the fear of detection and the
assurance of fairness by maintaining a
credible enforcement presence. The
following elements go into creating
this presence:
Credible likelihood of detection - The
managers of a company believe
detection is likely if they know
inspectors are active in visiting similar
companies.
Serious consequences of detection -
Managers believe detection will lead
to serious consequences if they know
that inspections of similar companies
have led to enforcement actions
resulting in heavy penalties or jail
sentences.
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Swift and sure response - When
managers see that EPA or state
response to detection of a violation is
quick and unavoidable, they know
they cannot escape the consequences
by giving excuses or gaining time
through lengthy bargaining,
Fair and consistent response - When
company managers see that EPA and
state inspections and enforcement
actions are fair and consistent, they
perceive the assurance of fairness they
need to comply. It also tells them the
enforcement process is not open to
favoritism or bargaining for special
treatment.
A credible enforcement presence
gives company managers a substantial
incentive to comply with the law.
Many managers have concluded that it
is good business strategy to comply
and take the credit for good
community citizenship. Better that
than fall into noncompliance and get a
black eye through the unfavorable
publicity that attaches to
environmental violations. Although
some consider such action to be
voluntary compliance, it owes much to
enforcement, because the manager's
decision to comply is influenced
partly by the knowledge that
noncompliance involves serious risks.
If the inspections and enforcement
actions are done well, their effect is
multiplied many-fold, so that many
people are deterred from violating the
law.
WhtMi an agency focuses on
deterring violations, it is using
leverage to influence others to comply
without having to deal with them
one-by-one through enforcement
actions. EPA uses deterrence to get
maximum compliance from its
enforcement budget.
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How
You Can Help
Every citizen has two vital roles to
play in enforcement of environmental
laws. First and foremost, each of us
must be thoughtful about our own
compliance with the laws, both at
home and on the job. We can also
encourage others to comply and, when
we discover clear violations, take steps
to resolve those problems.
Compliance at Home
and on the Job
Few environmental laws focus on
what we do at home, but a host of
pollution problems are caused by what
we do there. We must begin to ask
ourselves, "How can I prevent
pollution at home?"
Some of the everyday sources of
pollution are: exhaust from poorly
maintained cars and trucks; solvents
from discarded paints, paint thinners
and nail polish remover; waste
crankcase oil; household cleaners; and
garden poisons and fertilizers that are
discarded or used too heavily. Also,
waste paper and trash add a burden
either to the solid waste problem (if
buried in municipal landfills] or to air
pollution (if burned). And wasteful
use of electric power causes excess
pollution at the power plant where it
is generated. AH these problems can
be reduced by our actions at home.
There are many environmental books
and magazines which give step-by-step
advice on how to do this.
Home activities that are federally
regulated include: use of pesticides
(the label must show EPA approval,
and the product must be used as the
label directs); cars must pass any
emissions testing requirement in effect
20
in your state; and filling of wetlands is
usually prohibited.
Most workplaces in the United
States are subject to some form of
environmental regulation, because we
now know that pollution comes from
many sources large and small. Even
neighborhood dry cleaners are now
required to take proper care of the
cleaning fluids they use. Look around
you for possible problems at your
workplace.
One of the main reasons for
noncompliance at the workplace is
that top management of businesses
and governments is ignorant of
problems that lower-level employees
do not report. This institutional
breakdown can be solved if employees
alert upper management to the
possibility that the company may be
violating the law. You can help by
telling your superiors about pollution
problems you know about. In many
organizations there is also an
environmental officer or staff to whom
employees can report potential
problems.
Federal employees should be aware
that federal facilities are, in almost all
cases, not exempt from environmental
laws. They are subject to the same
environmental requirements and
standards as private businesses.
Federal employees should advise their
superiors of pollution problems they
see. If follow-up with superiors does
not resolve the problem, reporting
such problems outside the agency is
an option, although a less effective
one. (Information on "whistleblower"
protection laws is available from the
Government Accountability Project, 25
E Street, N.W., Washington, D.C.
20001.)
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How to Recognize a Potential
Pollution Problem
While some pollution is an
unfortunate consequence of modern
industrial life, there are national and
state laws that limit the amount and
kinds of pollution allowed, and in
some cases these laws completely
prohibit certain types of pollution.
Sometimes it will be easy for a citizen
to identify pollution that is a violation
of the law and sometimes it will be
difficult to identify the pollution
problem without sophisticated
equipment.
The U.S. EPA encourages the public
to "keep their eyes and ears open" and
to contact the appropriate local, state
or federal authorities whenever they
notice a potential pollution problem.
There are a few general guidelines a
citizen can use to identify a pollution
problem. While the following
guidelines will not identify all
pollution problems, they will help
citizens identify those pollution
problems that should be reported to
the appropriate authorities:
Unusual Does the type or source of the
pollution seem unusual; i.e.,
something that is different from
how similar things appear to work
or from how they used to work?
For example, is there a particular
truck company that appears to
operate vehicles that belch out
black smelly smoke? Or, has the
smoke from a smokestack changed
recently, such that it now has a
much darker look or a much more
noticeable smell? Or. does your
drinking water have an unusual
odor or taste, or a particular color
to it?
Odor Does the pollution present a
strong odor or smell that is
unpleasant? If the odor from the
pollution burns your eyes, mouth,
nose, or skin, you should
immediately leave the area,
contact local public health
officials, and seek medical
attention if the burning sensation
continues after you leave the area.
Sight Does the pollution look nasty or
foul? While everyone will have
their own views on what this
means, many of us will agree that
certain things are offensive. For
example, is there a strongly
colored water discharge from a
pipe going into a clear stream? Are
there dead fish or animals in the
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area of the pollution? Is there an
area of dead grass or damaged
vegetation near the pollution? Is
dark black smoke coming out of a
smokestack, so dark in fact that
you cannot see through it at all?
This is a likely air pollution
violation. Similarly, is there a pipe
discharge wastewater containing
foam and visible solids, or that
leaves a visible oil sheen on the
water? This is a likely water
pollution violation.
Secretive Is there something secretive
or suspicious about the potential
pollution-causing activity? For
example, is a bulldozer operating
at night in a marsh or wetland?
This might be an indication that
someone is illegally filling a
wetland. Is a truck pouring
wastewater into a sewer on the
side of a road? This might be an
indication that someone is
illegally dumping hazardous
waste. Is someone dumping
garbage (in barrels, cans, or bags)
at a site where it probably should
not go, for example, in the back of
a parking lot, in an alley, in the
woods, or in someone else's trash
dumpster?
If the answer to these kinds of
question is yes, citizens should notify
local or state authorities about their
observations. These guidelines are not
perfect, and thus they may fail to
identify some pollution problems
while occasionally identifying some
legal activities as pollution problems.
Unfortunately, depressing sights such as this can be found all over the United States. EPA
encourages the public's participation in identifying pollution problems.
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But these guidelines should help
citizens decide which types of things
are potential pollution problems that
should be reported to the authorities
for investigation.
In identifying potential pollution
problems, citizens should make careful
observations by writing their
observations on paper and even
photographing the situation if
possible. Refer to Section 15 for
suggestions on how to reach the
agencies that are equipped to do
something about the problems you
report.
Citizen
Suits
In 1970, when Congress enacted the
Clean Air Act ("CAA"), it included in
this new environmental statute a
provision allowing concerned citizens
to bring lawsuits against both the EPA
and air polluters for violations of the
CAA. Specifically, this provision of
the CAA allowed citizens to sue
polluters who violated certain
requirements of the Act and to sue the
EPA if it failed to carry out a
non-discretionary duty set forth in the
Act.
This was the first time individual
citizens had been empowered by
Congress to bring a lawsuit under a
federal environmental statute for the
purpose of enforcing that statute.
Congress chose to grant citizens this
right for two primary reasons:
Congress anticipated that the federal
government, due to limited resources,
would need assistance in order to
obtain broad enforcement of the CAA.
Congress also perceived the necessity
of holding the EPA accountable for
undertaking the many
non-discretionary statutory duties that
Congress required the EPA to fulfill.
Out of a desire to assure that the
environment would be adequately
protected, and not merely on paper,
Congress gave the citizens the
powerful tool of the "Citizen's Suit" to
ensure both that polluters were
brought to justice and that EPA
fulfilled its duties.
A citizen suit provision has been
included in almost every federal
environmental statute enacted since
1970, including the Clean Water Act,
the Solid Waste Disposal Act
(commonly called "RCRA"), the Toxic
Substances Control Act, the Noise
Control Act, the Endangered Species
Act, the Marine Protection, Research,
and Sanctuaries Act, the
Comprehensive Environmental
Response, Compensation, and Liability
Act (commonly called "Superfund"] ,
and, most recently, the Safe Drinking
Water Act. Under each of these
statutes Congress has granted citizens
the power to initiate an enforcement
action in federal court in order to
ensure adequate protection of the
environment.
Citizen suits have proved to be an
important tool for the enforcement of
the various environmental statutes.
EPA and the states, despite limited
resources with which to conduct their
environmental compliance and
enforcement programs, have taken
thousands of enforcement actions
against environmental polluters.
Nevertheless, the number of
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For Further
Information
environmental violations often exceeds
the federal and state enforcement
resources available to prosecute
violations. Citizen suits have been
important in filling the gap.
There are innumerable citizen suit
success stories. A brief example of just
one of these lawsuits paints a picture
of the vital role citizens have played
in protecting the environment through
the use of citizen suits.
In a recent citizen suit, Sierra Club
v. Simkins Industries, Inc., [847 F.2d
1109 (4th Cir. 1988)] a citizen group
sued a Maryland paper mill for
violating the Clean Water Act. The
citizen group alleged that Simkins was
discharging pollutants into the
Patapsco River in violation of
limitations established in Simkins'
permit. The Court first determined that
Simkins had, in fact, violated the
Clean Water Act and then fined
Simkins $977,000. The Court also
ordered Simkins to fully comply with
the Clean Water Act in the future. The
citizen group was successful in
remedying the specific pollution
problem caused by Simkins' illegal
wastewater discharges and also
obtained a tough penalty which
should help deter other would-be
polluters from violating the law and
polluting our environment.
In sum, Congress established citizen
suit provisions under the various
environmental statutes in order to help
ensure that EPA and the regulated
entities actually complied with the
requirements of those statutes. As a
result of the efforts of those who have
brought citizen suits, the state of our
environment has been improved.
The progress of environmental
enforcement is analyzed and reported
every year by EPA. Annual documents
include:
• Enforcement Accomplishments
Report. Published every year, usually
in January, this report discusses the
enforcement activities of the previous
fiscal year, including statistics and
reports on specific judicial cases.
• Overview of EPA Federal Penalty
Practices. This annual report includes
analysis of the penalties assessed by
EPA against violators in cases
concluded during the previous fiscal
year.
Single copies of either report are
available on request by writing to EPA,
Office of Enforcement and Compliance
Monitoring (LE-133), 401 M Street,
S.W., Washington, D.C. 20460.
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Environmental
Agencies
State and Local
Governments
State and local governments have
responsibility for enforcing most
environmental laws in the area where
you live. You can locate them through
your telephone directory. In most
communities, the responsible agency
is the city or county health
department. At the state level, there is
usually an environmental agency that
carries.out the pollution-control laws,
while an agriculture agency often
handles regulation of pesticides.
Principal Offices
of EPA
EPA principally operates through ten
Regional Offices, which should be able
to help answer your questions if your
state or local agencies have been
unable to do so. Each Region has a
staff specializing in each of the
environmental programs discussed in
this publication. To locate a person
who can help you, call on the public
affairs office in your EPA Regional
Office.
These offices and the states they
cover are:
Region 1:
Region 2:
Region 3:
Region 4:
Region 5:
Region 6:
Region 7:
Region 8:
Region 9:
Region 10:
Boston
(617) 835-3424
New York City
(212) 264-2515
Philadelphia
(215) 597-9370
Atlanta
(404) 257-3004
Chicago
(312) 353-2073
Dallas
(214) 255-2200
Kansas City
(913 757-2803
Denver (303)
564-7666
San Francisco
(415) 484-1050
Seattle
(206) 399-1466
CT, MA, ME, NH, RI, VT
NY, NJ, PR, VI
DE, DC, MD, PA, VA
AL, FL, GA, KY, MS,
NC, SC, TN
IL, IN, MI, MN,
OH, WI
AR, LA, NM, OK, TX
IA, KS, MO, NE
CO, MT, ND, SD,
UT, WY
CA, HI, NV,
Guam, American Samoa
AK, ID, OR, WA
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EPA Regional Offices
2(
The following is a list of the EPA criminal
investigators assigned to each EPA Regional Office:
Law Enforcement Offices
James L. Prange - Director, OCI 303-236-3215
Martin ]. Wright - Deputy Director, OCI 303-236-3215
Boston Resident Office (Region 1) 617-565-3059
Robert Harrington, Resident, Agent-in-Charge . FTS 835-3059
New York Area Office (Region 2) 212-264-8917
Joseph Russo, Special Agent-in-Charge FTS 264-8917
Philadelphia Resident Office (Region 3) 212-597-1949
Robert Boodey, Resident Agent-in-Charge FTS 597-1949
Atlanta Area Office (Regions 4 & 5) 404-347-4885
Bruce Mirkin, Special Agent-in-Charge FTS 257-4885
Chicago Area Offices (Regions 5 & 7) 312-886-9872
Louis Halkias, Special Agent-in-Charge FTS-886-9872
Dallas Resident Office (Region 6) 214-655-6600
Thomas Kohl, Resident Agent-in-Charge FTS 255-6600
Kansas City Resident Office (Region 7) 913-551-7060
Gregory Spalding, Resident Agent-in-Charge . . FTS-276-7060
Denver Resident Office (Region 8) 303-293-1879
William Smith Resident Agent-in-Charge FTS 330-1879
San Francisco Resident Office (Region 9) 415-556-7020
David Wilma, Resident Agent-in-Charge FTS 556-7020
Seattle Area Office (Regions 9 & 10) 206-442-8603
Dixon McClary, Special Agent-in-Charge FTS 399-8306
NEIC Investigative Unit (Regions 8 & 9) 303-236-4070
John West, Special Agent-in-Charge FTS 776-4070
Federal Law Enforcement Training Center - Glynco, Georgia
Philip Andrew, Special Agent 912-267-2726
Agency Training Representative FTS 230-2726
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State Environmental Enforcement Organizations
Chairs Directors
Northeast Hazardous Waste Project
Anne Whiteley
Environmental Conservation Legal Advisor
Department of Environmental Conservation
Building One South
103 South Main Street
Waterbury, Vermont 05676
(802) 244-8755
Anita Salzano, Acting Director
Northeast Hazardous Waste Project
Richard J. Hughes Justice Complex
25 Market Street, CN 085
Trenton, New Jersey 08625
(609) 984-4482
Western States Hazardous Waste Project
Douglas ). Martin, Supervisor
Compliance, Enforcement & Planning
Waste Management Section
Nevada Division of Environmental Protection
Capitol Complex
201 South Fall Street
Carson City^ Nevada 89710
Roger L. Hartzog, Director
Western States Hazardous Waste Project
1275 West Washington
Phoenix, Arizona 85007
(602) 542-3881
Midwest Environmental Enforcement Association
Rolland Lee
Enforcement Division
Wisconsin Dept. of Natural Resources
P.O. Box 7921
Madison, Wisconsin 53707
(60S) 266-1369
Susan L. Sylvester, Director
Midwest Environmental Enforcement
Association
595 State Street
Elgin, Illinois 60123
(708) 742-1249
Southern Environmental Enforcement Network
John Costigan, Chief
Environmental Litigation
Department of Legal Affairs
The Capitol, Suite 907
Tallahassee, Florida 32399-1050
(904) 488-8182
A. Geary Allen, Director
Southern Environmental Enforcement
Network
Office of the Attorney General
State of Alabama
11 South Union Street
Montgomery, Alabama 36130
(205) 242-7369
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