OVERVIEW OF EPA FEDERAL PENALTY PRACTICES
FY 1989
April 1990
Compliance Policy and Planning Branch
Office of Enforcement
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OVERVIEW OF EPA FEDERAL PENALTY PRACTICES
FY 1989
I. EXECUTIVE SUMMARY 1
II. PURPOSE, SCOPE AND LIMITATIONS OF THIS REPORT 2
III. GENERAL OVERVIEW
1. General Profile
Highlights 5
Median and Average Penalties 12
Percentage of Cases Concluded with a Penalty 17
Range of Penalty Amounts 17
Highest Penalties 22
Types of Cases 23
New and Increased Penalty Authorities 23
2. Program Summary
Highlights 24
Criminal Enforcement 25
Relative Contributions 25
Major Changes in FY 1989 26
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ACKNOWLEDGMENTS
This report -was coordinated by the Compliance Policy and Planning
Branch of the Office of Enforcement. George Alderson was the
project manager and principal author. The following contributed
the program-specific data:
Criminal Enforcement
Clean Hater Act
Judicial
Administrative
Safe Drinking Water Act
UIC
PWSS
Wetlands Protection
Marine and Estuarine
Protection
Stationary Source Air
Mobile Source Air
RCRA
Judicial
Administrative
EPCRA Sections 302-312 and
CERCLA Section 103
Toxics Release Inventory,
TSCA and FIFRA
John Dugdale, OE
Marcia Colvin, OE
Kathy Summerlee, OE
Ken Keith, OWEP
Peter Bahor, ODW
Betsy Devlin, ODW
Joseph DaVia, OWP
Rosanna Ciupek, OMEP
Elise Hoerath, OE
Marcia S. Ginley, QMS
Ren£ Webb, OE
Robert Small, OWPE
Jeffrey Heiraerman, OWPE
Mike Hackett, OCM
These authors and their colleagues devoted many long hours to the
collection, verification, analysis and display of these data.
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EXECUTIVE SUMMARY
General Findings
EPA has obtained over $186 million in civil penalties from
FY 1974 through FY 1989 in some 9,500 civil judicial and
administrative enforcement cases.
FY 1989 brought the second highest total penalty dollars in
EPA's history, with $35.1 million in civil penalties.1
Criminal fines attained a new record, with $12.5 million
assessed in FY 1989 (before deducting suspended sentences).
Twenty-seven years of incarceration were imposed (also
before suspension). After suspension, fines of
$10.2 million and incarceration of 17 years were ordered by
the courts.
Seventy-five percent of all EPA's civil penalties to date
were imposed in the last five years, from FY 1985 through
FY 1989. Some 19 percent of all penalties were imposed in
FY 1989 alone.
EPA obtained $1.7 million less in penalties than in FY 1988.
This appears to be a result of two factors: (1) a drop in
dollars in the Clean Air Act program, which traditionally
obtains large totals from a relative small number of high-
dollar cases, and (2) a drop in number of cases in the TSCA
program because the program priorities this year shifted
emphasis to issuing warning letters to school districts
under the asbestos-in-schools program.
Penalties were obtained in 91 percent of the cases concluded
in FY 1989.
Program Highlights
Five EPA programs, more than ever before, made substantial
use of both administrative and judicial enforcement cases.
The penalty dollars were dominated by Clean Water Act cases
(36 percent). These were followed by RCRA (19 percent),
Stationary Source Air (14 percent) and Mobile Source Air (14
percent) cases.
1 This does not include the $15 million penalty in the
consent decree in the Texas Eastern Pipeline case, which was
concluded early in FY 1990.
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The numbers of cases were dominated by four penalty programs
that heavily use administrative enforcement cases —
TSCA (22 percent), Mobile Source Air (21 percent),
FIFRA (18 percent) and Clean Water Act (16 percent).
Four programs set new records for total dollars. These were
the Safe Drinking Water Act, Wetlands Protection, Mobile
Source Air, and RCRA programs.
Four programs set new records for number of cases — Clean
Water Act, Safe Drinking Water Act, Wetlands Protection, and
FIFRA.
Three programs obtained their first penalties in FY 1989 —
the Toxics Release Inventory and the programs under EPCRA
sections 302-312 and CERCLA section 103.
Five programs established new records for highest individual
penalty in either administrative or judicial cases.
Seven programs attained the highest median penalties in
their history in administrative or judicial cases.
Five programs attained record high average penalties in
administrative or judicial cases.
II. PURPOSE. SCOPE AND LIMITATIONS OF THIS REPORT
This overview report summarizes the penalty practices of EPA in
FY 1989 in civil judicial, civil administrative, and criminal
enforcement actions. Except where specifically noted, the term
"penalties" is used in this overview to refer only to civil
(administrative and judicial) penalties, not criminal fines.
This report does not attempt to portray a complete picture on
penalties obtained during enforcement of federal environmental
laws, because it does not reflect penalties obtained by state
governments. States conduct the vast majority of enforcement
actions under these laws, working through programs approved by
EPA to carry out federal requirements.
Programs Covered
Thirteen EPA penalty programs are addressed in this report.
Table 1 gives their names, the types of enforcement cases each
used in FY 1989, and any acronyms by which they are cited in this
report.
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Table 1
Penaltv Proarams Covered in This Report
Prooram
Criminal Enforcement
Clean Water Act - NPDES (CWA)
Safe Drinking Water Act (SDWA)
Wetlands Protection
Marine and Estuarine Protection
Stationary Source Air
Mobile Source Air
Resource Conservation and
Recovery Act (RCRA)
Emergency Planning and
Community Right-to-Know Act
(EPCRA) Sections 302-312
Comprehensive Environmental
Response, Compensation and
Liability Act (CERCLA, or
Superfund)
Toxics Release Inventory
(TRI, or EPCRA Section 313)
Toxic Substances Control
Act (TSCA)
Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA)
Types of cases
Judicial
Judicial
Administrative
Judicial
Administrative
Judicial
Administrative
Administrative *
Judicial
Administrative
Judicial
Administrative
Judicial
Administrative
Administrative *
Administrative *
Administrative *
Administrative
Administrative
Programs appearing in this report for the first time.
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Cases Covered
The penalties discussed in this report are cash amounts assessed
in EPA enforcement cases that were concluded in FY 1989. They
reflect final judgments by a court, consent decrees and consent
orders reflecting settlements, and final administrative orders.
This report does not include "proposed penalties" or other
amounts under discussion prior to the conclusion of a case, and
it does not include penalties paid to entities other than the
Federal Government. Contempt enforcement actions (cases seeking
to invoke sanctions for a failure to comply with a prior court
order, decree, or administrative order) are not included.
"Stipulated penalties" and "deferred penalties" also are not
included in this report; they are penalties stipulated in an
administrative or court order that are due only if the violator
fails to carry out certain other requirements of the order. Nor
does the report reflect the use of other sanctions, such as
contractor listing, sewer moratoriums, or the suspension or
revocation of permits.
This report also does not reflect "credits," "benefit projects,"
or non-monetary actions which parties in enforcement cases often
agree to carry out as part of a settlement. Such actions may
yield large environmental benefits of substantial dollar value.
One element of this report is an analysis of the extent to which
EPA used penalties in its enforcement cases. Some cases did not
obtain penalties. The cases without penalties included in this
report are enforcement actions in which a penalty is authorized
by the statutes and regulations on which the case is based. If
Congress did not authorize EPA to assess a penalty for a given
type of violation, an enforcement action for such a violation
would not be counted as a case in this report.
Penalties are counted in this report as assessed in a final
administrative action or in a court order; appeals and collection
of penalties are not considered here. The word "obtained" is
used in this report as a general term referring to penalties that
were assessed by a court or by EPA administrative orders. Its
meaning is the same as "assessed" or "imposed."
There may be some overlap between the number of cases counted for
different programs, because EPA increasingly is acting against
violations of more than one statute at a single facility in a
single enforcement action. In the past, each case has normally
been attributed to a single lead program. Now, insofar as the
final order attributes the penalties to more than one statute and
the programs track them separately, this report will attempt to
report them accordingly. In FY 1989, for instance, some cases
involved both EPCRA sections 302-312 and CERCLA section 103,
which concern related subject matter dealing with emergency
notification following releases of hazardous chemicals.
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Purposes and Limitations
This overview report is not an evaluation of practices by EPA
programs, and it should be viewed in the context of the total
enforcement effort. The report may illuminate individual
characteristics of programs and provide a helpful comparison
among programs. Identifying differences may stimulate further
thinking about penalties in general, advancing the goal of more
effective use of penalties as part of an overall enforcement
program.
The reader should bear in mind that the data presented here are
historical in nature, and do not necessarily represent present
penalty practices. Nothing in this report may be used as a
defense or guide to future settlements of federal cases involving
penalties.
The specific penalty data used in this report were obtained from
several federal data systems. The data have been approved by the
responsible program offices, but the quality and completeness of
the data may vary. For example, Region 9 was not able to
complete a quality-assurance review of its penalty data because
its offices were unusable after an earthquake.
III. GENERAL OVERVIEW
1. General Profile
Highlights
EPA has obtained over $186 million in cash civil penalties from
FY 1974 through FY 1989 in some 9,500 civil judicial and
administrative cases.
Fiscal Year 1989 brought the second highest civil penalty dollars
in EPA's history, with $35.1 million in civil penalties.2
in the three years EPA's criminal enforcement program has been
tracking penalty data (FY 1987-1989), $24.5 million in criminal
fines and 142 years of incarceration have been imposed, before
deduction of suspended sentences. After suspension, fines in
these three years totaled $13.8 million, and incarceration
totaled 50 years.
2 This does not include the $15 million penalty in the
consent decree in the Texas Eastern Pipeline case, which was
concluded early in FY 1990.
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In FY 1989 criminal fines attained a new record, with
$12.5 million assessed (before deducting suspended sentences).
After suspension, fines totaled $10.2 million. Twenty-seven
years of incarceration were imposed (before suspension), and 17
years were ordered by the courts.
Seventy-five percent of all civil penalty dollars in EPA's
history were obtained in the last five years (FY 1985-1989).
More than 51 percent of the civil penalty dollars and 45 percent
of the cases with penalties (4,230 of 9,498) were obtained in the
last three fiscal years (FY 1987-1989). Some 19 percent of all
civil penalty dollars were imposed in FY 1989 alone.
The total amounts of civil penalties for each program in FY 1989
are shown in Table 2. Criminal penalties are shown in Table 3.
The historical picture is shown in Figure 1, displaying total
penalties by fiscal year.
The relative contributions of the different EPA programs to the
FY 1989 totals of civil penalty dollars and number of cases with
penalties are shown in Figures 2 and 3.
Two programs set new records for total penalty dollars: Mobile
Source Air with $4,855,356, and RCRA with $6,799,878. In
addition, the Safe Drinking Water program set new records in
FY 1989 for both total dollars ($872,290) and total number of
cases with penalties (76).
The largest penalty obtained in FY 1989 was $2,778,000, in a RCRA
judicial action. This penalty was the largest civil penalty ever
obtained in a RCRA judicial case. Top judicial penalties over
$1 million were also obtained by the Mobile Source Air and Clean
Water Act programs. Top administrative penalties over $600,000
were obtained by the Mobile Source Air and TSCA programs.
A comprehensive summary of the programs' civil penalty data
appears in Table 4.
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40
30
Figure 1
TOTAL PENALTIES BY FISCAL YEAR
CML JUDICIAL AND ADMINISTRATIVE
o?
Q
25
20
111
a.
15
10
1981 1982 1983
1984 1985
FISCAL YEAR
1986 1987 1988
TOTAL PENALTY DOLLARS BY FISCAL YEAR
1989
1989 (18.8%)
1988 (19.8%)
THRU 1980 (11.3%)
1981 (3.4%)
1982 (2.4%)
1983 (4.2%)
1984 (3.7%)
1985 (12.3%)
1987 (13.1%)
1986 (11.1%)
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8
Figure 2
PERCENT PENALTY DOLLARS BY PROGRAM
FY 1989
OTHERS (5.4%)
T5CA (12.0%)
RCRA (19.4%)
CWA (35.8%)
MOBILE (13.8%)
STAT AIR (13.5%)
Figure 3
PERCENT PENALTY CASES BY PROGRAM
FY 1989
OTHERS (2.9%)
F1FRA (17.755)
TSCA (21.8%)
CWA (15.5%)
5DWA (5.3%)
STAT AIR (4.9%)
MOBILE (20.8%)
RCRA (1 1.0%)
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9
Table 2
Total Amount of Civil Judicial and Administrative Penalties
in FY 1989
Total dollars No. All Cases*
(percent) (percent)
Clean Water Act $ 12,545,525 (36%) 222 (14%)
Judicial 9,744,000 56
Administrative 2,801,525 166
Safe Drinking Water Act 872,290 (2%) 112 (7%)
Judicial 131,000 8
Administrative 741,290 104
Wetlands Protection 347,450 (1%) 17 (1%)
Judicial 150,000 5
Administrative 197,450 12
Marine and Estuarine Protection 60,000 (<1%) 2 (<1%)
Administrative
Stationary Source Air 4,769,912 (14%) 74 (5%)
Judicial 4,668,171 72
Administrative 101,741 2
Mobile Source Air 4,855,356 (14%) 296 (19%)
Judicial 2,312,416 16
Administrative 2,542,940 280
RCRA 6,799,878 (19%) 169 (11%)
Judicial 4,287,500 15
Administrative 2,512,378 154
EPCRA 302-312 - Administrative . 63,916 (<1%) 4 (<1%)
CERCLA 103 - Administrative . . . 21,884 (<1%) 3 (<1%)
Toxics Release Inventory -
Administrative 193,480 (1%) 15 (1%)
TSCA - Administrative 4,204,386 (12%) 321 (21%)
FIFRA - Administrative 337,869 (1%) 318 (20%)
TOTAL $ 35,071,946 1,553
*"Number of all cases" here includes all cases with or without
penalties. Percentages shown here will differ from analyses presented
elsewhere in this report, based on only those cases with cash
penalties.
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Table 3
Total Amount of Criminal Fines and Incarceration
in FY 1989
Number of defendants convicted 69
Total fines assessed
Before suspension $ 12,484,666
Ordered (after suspension) 10,190,116
Total months incarceration
Sentenced (before suspension) 324 (27 years)
Ordered (after suspension,
before parole) 208 (17 years)
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Table 4
Summarv of Civil Penalties bv Proaram
Program
Oft ADM
on JUD
CM ADM+JUD
UIC ADM
UK JUD
UIC ADM+JUD
mm
PUS JUD
PUS ADM+JUD
SDWA ADM
sum JUD
SDWA ADM+JUD
NETLD ADM
VffiTLD JUD
HETLD ADM+JUD
MARINE ADM
STATAIR ADM
STATAIR JUD
STAT ADM+JUD
MOBAIR ADM
MOBAIR JUD
MOB ADM+JUD
RCRA ADM
RCRA JUD
RCRA ADM+JUD
EPCRA 302-312
CERCLA 103
TRI
TSCA
FIFRA
Total
Dollars
2,801,525
9,744,000
12,545,525
675,290
75,000
750,290
66,000
56,000
122,000
741,290
131,000
872,290
197,450
150,000
347,450
60,000
101,741
4,668,171
4,769,912
2,542,940
2,312,416
4,855,356
2,512,378
4,287,500
6,799,878
63,916
21,884
193,480
4,204,386
337,869
Cases with
Penalty
165
55
220
56
2
58
14
4
18
70
6
76
12
5
17
2
2
67
69
280
16
296
146
11
157
4
3
15
310
252
Cases w/o
Penalty
1
1
2
34
1
35
0
1
1
34
2
36
0
0
0
0
0
5
5
0
0
0
8
4
12
0
0
0
11
66
in
Total
Cases
166
56
222
90
3
93
14
5
19
104
8
112
12
5
17
2
2
72
74
280
16
296
154
15
169
4
3
15
321
318
FY 1989
Percent
w/Penalt;
99*
981
99*
621
67*
62*
100*
80*
95*
67*
75*
68*
100*
100*
100*
100*
100*
93*
93*
100*
100*
100*
95*
73*
93*
100*
100*
100*
97*
79*
Average
Penalty
16,979
177,164
57,025
12,059
37,500
12,936
4,714
14,000
6,778
10,590
21,833
11,478
16,454
30,000
20,438
30,000
50,871
69,674
69,129
9,082
144,526
16,403
17,208
389,773
43,311
15,979
7,295
12,899
13,563
1,341
Avg All
Cases
16,877
174,000
56,511
7,503
25,000
8,068
4,714
11,200
6,421
7,128
16,375
7,788
16,454
30,000
20,438
30,000
50,871
64,836
64,458
9,082
144,526
16,403
16,314
285,833
40,236
15,979
7,295
12,899
13,098
1,062
Median
Penalty
10,000
55,000
4,000
37,500
5,000
9,000
5,000
16,000
8,000
25,000
30,000
50,871
32,253
1,000
35,875
9,792
61,500
13,958
3,334
4,500
7,000
1,014
MedAll
Cases
10,000
50,000
1,000
20,000
5,000
6,000
1,600
9,000
8,000
25,000
30,000
50,871
30,000
1,000
35,875
8,797
43,000
13,958
3,334
4,500
5,000
620
Highest
Penalty
100,000
1,540,000
1,540,000
125,000
55,000
125,000
5,000
37,500
37,500
125,000
55,000
125,000
75,000
50,000
75,000
40,000
100,000
600,000
600,000
656,931
1,166,666
1,166,666
137,751
2,778,000
2,778,000
30,000
15,550
57,800
615,650
10,000
Notes to Table 4
Figures are not additive in vertical columns because program
totals are included as well as components of those totals. In
the SDWA program, figures are also shown for the UIC and PWS
subprograms, followed by the combined totals for SDWA as a whole.
(This is done for the sake of historical comparison, because past
reports showed only SDWA as a whole.)
Abbreviations not explained elsewhere: UIC=Underground Injection
Control (part of SDWA program), PWS=Public Water System
Supervision (part of SDWA program), Marine=Marine and Estuarine
Protection, Statair=Stationary Source Air, Mobair=Mobile Source
Air.
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Median and Average Penalties
This section of the report attempts to look beyond the aggregate
figures to see what the typical penalties were for each program.
Average and median penalty figures represent different aspects of
the program.
The average penalty is the total dollars divided by the number of
penalty cases in a given program. While an average is useful in
seeing overall program accomplishments, it may give a misleading
picture if the penalties within that program went to extremes.
One high-penalty case and a large number of low-penalty cases
could produce a mid-level average, even though no cases had a
mid-level penalty.
The median is useful to gain a different perspective on a program
without the heavy influence of a few extremely large or small
penalties. The median penalty represents the middle number in
the series of all penalties for a given program arranged in order
of size. That is, there were as many penalties below the median
as above it.
Medians - Figure 4 shows trends in medians over several years for
the largest EPA penalty programs during that period. Among the
programs with fewer than five years of penalty history, only RCRA
judicial cases are shown. In the Mobile Source Air and TSCA
programs, the data reflect several different penalty authorities,
including some that lead to higher-dollar penalties. However,
most of the cases in both these programs are in lower-dollar
categories, which results in low median penalties.
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Figure 4
3i
PROGRAM MEDIANS BY FISCAL YEAR
JUDICIAL PENALTIES
1975 76 77 78 79 80 81 82 83 84 55 86 87
88 1989
PROGRAM MEDIANS BY FISCAL YEAR
JUDICIAL PENALTIES
HbCAL YEAR
Q Cloon Waler Act
Air - Stationary
1989
10
9 -
5 -
7 -
6 —
5
4
J -
2 -
PROGRAM MEDIANS BY FISCAL YEAR
ADMINISTRATIVE PENALTIES
1980 81 62
LJ RCRA Administrative
—l—
83
84
FISCAL YLAR
—1—
85
86
s|
ll
0 1-
y w
2
PROGRAM MEDIANS BY FISCAL YEAR
ADMINISTRATIVE PENALTIES
Air - Mobile
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14
Medians increased in seven programs in FY 1989 over the previous
year's levels. Record high medians were achieved in the Clean
Water Act program in both judicial and administrative cases, in
SDWA judicial cases, and in administrative cases in the
Stationary Source Air, RCRA and TSCA programs. Median penalties
increased over FY 1988 in judicial cases in the Wetlands and
Stationary Source Air programs and in administrative cases in the
SDWA and Mobile Source Air programs.
Medians decreased in two programs. In RCRA judicial cases the
decrease may reflect the large variation in penalties among a
small population of cases (18 with penalties in FY 1988, 11 in
FY 1989). In FIFRA the decrease continues a pattern of slightly
decreasing medians since the record high in FY 1986.
In the foregoing discussion of change in medians, there is no
mention of Wetlands judicial or administrative cases or
Stationary Source Air administrative cases, because there were
too few cases in FY 1988 or 1989 or both years to make these
categories suitable for such analysis. The programs included for
the first time in this FY 1989 report are also not mentioned
above.
• Clean Water Act; The median judicial penalty rose from its
FY 88 level of $37,500 to a record high of $55,000 in FY 89. The
median administrative penalty rose from $8,500 in FY 88 to
$10,000.
• Safe Drinking Water Act: The median judicial penalty rose from
$4,900 in FY 88 to a record high of $16,000. (This reflects
FY 89 medians of $37,500 for two UIC cases and $9,000 for four
PWS cases.) The median administrative penalty rose from $2,750
in FY 88 to $5,000 in FY 89. (The subprogram medians in FY 89
were $4,000 for 56 UIC cases and $5,000 for 14 PWS cases.)
• Wetlands Protection: In this second year of administrative
cases concluded by the program, the median was $8,000, compared
to a FY 88 level of $19,000. However, no conclusions are
warranted because in FY 88 there were only three cases. The
median judicial penalty was $25,000, an increase over $6,250 in
FY 88. (This is the second year Wetlands judicial penalties have
been presented separately in this report. They were included as
part of Clean Water Act data in penalty reports prior to FY 88.)
• Marine and Estuarine Protection; This program concluded its
first cases in FY 89, establishing a median penalty of $30,000.
• Stationary Source Air; The median judicial penalty rose from
$30,000 in FY 88 to $32,253 in FY 89. This is below the record
set in FY 87 of $65,750 but in the rough range of three out of
the last four years.
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15
« Mobile Source Air; The median judicial penalty was $35,875,
reflecting 16 cases. (In FY 88 there was only one judicial case,
with a penalty of $10,000.) The median administrative penalty
rose from $500 in FY 88 to $1,000 in FY 89, returning to the same
level as in FY 87.
• RCRA: The median judicial penalty was $61,500, lower than the
FY 88 median of $96,479. The median administrative penalty
continued rising for the sixth year in a row, attaining a new
record of $9,792, compared to the FY 88 level of $9,440.
• EPCRA 302-312; In the first year of concluded cases, this
program established a median penalty of $13,958.
• CERCLA 103; In the first year of concluded cases, this program
established a median penalty of $3,334.
• Toxics Release Inventory: In this first year of concluded
cases, this program established a median penalty of $4,500.
• TSCA; The median penalty attained a record high of $7,000,
rising from $1,500 in FY 88. Prior to FY 86, TSCA medians were
not calculated on a program-wide basis.
• FIFRA; The median penalty decreased from $1,200 in FY 88 to
$1,014 in FY 89, the third year of decrease from the program's
record high of $1,852 in FY 86.
Averages - Average penalties increased in five programs in
FY 1989 and declined in four. However, it should be noted that
averages may be influenced by a few large cases. A year with one
or two extremely large cases may have a much higher average
penalty than a year without any, even though the latter may have
had larger penalties in most enforcement cases.
Averages rose to record highs in the Clean Water Act and Safe
Drinking Water Act programs, in both judicial and administrative
cases. RCRA judicial cases and TSCA cases also achieved record
highs. Wetlands judicial cases attained a new high in the second
year of reporting these data separately from CWA data.
Lower average penalties were reported in judicial cases in the
Stationary Source Air program and in administrative cases in the
Mobile Source Air, RCRA and FIFRA programs.
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16
In the foregoing discussion of change in averages, the following
categories are not mentioned because there were too few cases in
either FY 1988 or FY 1989 or both years to make this analysis
productive: administrative cases in Stationary Source Air and
Wetlands, and judicial cases in the Mobile Source Air program.
The programs included for the first time in this FY 1989 report
are also not mentioned above.
• Clean Water Act: The average judicial penalty rose to a record
high of $177,164. In this second year of administrative
penalties, the average attained a record of $16,979.
• Safe Drinking Water Act; The average judicial penalty rose to
a new high of $21,833, and the average administrative penalty
rose to a record of $10,590.
• Wetlands Protection; The average judicial penalty rose to
$30,000, compared to $6,250 in FY 88. In this second year of
administrative penalties, the average was $16,454, reflecting 12
cases, compared to the FY 88 average of $24,400, reflecting 4
cases.
• Marine and Estuarine Protection; In this first year of
administrative penalties, the average was $30,000.
• Stationary Source Air: The average judicial penalty declined
from $125,555 in FY 88 to $69,674 in FY 89, partly reflecting the
fact that the FY 88 data included three cases with penalties over
$1 million each. The average administrative penalty rose from
$37,028 in FY 88 (reflecting 4 cases) to $50,871 in FY 89
(reflecting 2 cases).
• Mobile Source Air; The average administrative penalty declined
from $11,217 in FY 88 to $9,082 in FY 89. The average judicial
penalty was $144,526, reflecting 16 cases. (In FY 88 there was
only one judicial case, with a penalty of $10,000.)
• RCRA; The average judicial penalty rose to a new high of
$389,773, compared to $209,791 in FY 88. The average
administrative penalty declined slightly to $17,208, compared to
$17,576 in FY 88.
• EPCRA 302-312; In this first year of concluded cases, the
average penalty was $15,979.
• CERCLA 103: In this first year of concluded cases, the average
penalty was $7,295.
• Toxics Release Inventory: In this first year of concluded
cases, the average penalty was $12,899.
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• TSCA: The average penalty rose to a new high of $13,563,
compared to $8,615 in FY 88. (Averages were not calculated on a
TSCA program-wide basis before FY 86.)
• FIFRA; The average penalty declined to $1,341, compared to
$1,716 in FY 88. The FY 89 level is the lowest average since
1981.
Percentage of Cases Concluded with a Penalty
A high percentage of cases were concluded with a penalty in all
programs except one. Excluding this one program from the
calculation, 93 percent of all FY 1989 cases were concluded with
a penalty, slightly down from FY 1988 (95 percent). (See Table 4
for each program's percentage with penalty.)
The atypical program was the Underground Injection Control
program (one of the two programs under the Safe Drinking Water
Act), which obtained penalties in 62 percent of its cases. The
UIC program was in its third full year of administrative penalty
cases, and this figure reflects a notable increase from the
42 percent noted in FY 1988. The low percentage figure is in
part a result of the structure of the SDWA, which does not
separate EPA's authority for non-penalty UIC administrative
orders from the authority for penalty orders, as was done in the
Clean Water Act, the Public Water System provisions of SDWA, and
the Clean Air Act. In this report, every UIC administrative
order is counted as a potential penalty case, while in some other
programs the only orders counted are the ones issued under the
statute's penalty provisions. The agencywide figure including
the UIC cases is 91 percent.
The percentage of cases with a penalty ranged from 62 percent in
UIC administrative cases to 100 percent in SDWA Public Water
System Supervision administrative, Wetlands judicial and
administrative, Marine and Estuarine, Stationary Source Air
administrative, Mobile Source Air administrative and judicial,
EPCRA sections 302-312, CERCLA section 103, and Toxics Release
Inventory cases.
Range of Penalty Amounts
This section examines how EPA's penalties in FY 1989 ranked along
the scale from low dollars to high dollars. The penalty cases
are sorted into eight ranges from no-penalty cases ("zero
dollars") to cases of $1 million or more.
Figure 5 shows the penalty distribution of all FY 1989 cases.
Overall, the profile is similar to that in FY 1988, but there was
slight movement toward higher penalty categories, with increases
in the ranges between $10,000 and $100,000. The overall
distribution shown in Figure 5 is dominated by the large number
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18
of cases brought by the TSCA, FIFRA and Mobile Source Air
programs, in which the penalties are generally lower than in
other programs.
Figure 6 omits the two programs with the lowest medians, FIFRA
(median of $1,014) and Mobile Source Air administrative cases
(median of $1,000), to better show the distribution of penalties
in the other programs.
The distribution of penalties in most programs maintained
position approximately in the profile established in FY 1988.
However, there have been changes in the penalty distributions of
some programs. Figures 7 and 8 show the distributions for CWA,
SDWA, Stationary Source Air and RCRA cases, comparing the
combined data for FY 1985-1988 against FY 1989.
In FY 1989 the Clean Water Act penalty distribution shows growth
in all categories except $100,000 and above, with the greatest
increases coming in penalties under $5,000 and between $10,000
and $25,000. The increases reflect growth in judicial penalty
amounts and the rapidly growing use of administrative enforcement
cases in the CWA program.
The SDWA and FIFRA programs also showed change in FY 1989. SDWA
administrative cases show a relative decline in zero-penalty
cases and growth in cases with penalties under $5,000. The
profile of FIFRA cases shows a shift to lower-dollar ranges. The
ranges between $10,000 and $50,000 dropped from a few cases in
FY 1988 to none in FY 1989, while there was a notable increase in
zero-penalty cases and cases with penalties under $5,000.
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2
3
Z
1/1
bJ
u.
0
It
Id
DJ
Figure 5
PENALTY DISTRIBUTION - ALL PROGRAMS
FY 1989
1
0.9 -I
0.8 -
0.7 -
i/i
U
If] ~ c
<^ °'6
O -o
b_ c
0 5 0.5 -
0.4 -
0.3 -
0.2 -
0.1 -
839
132
212
142
100
73
JUDICIAL
ZERO $ <=$5.000 <$10,000 <$25,000 <$50,000 <$100,000 <$1 MILL >=$1 MILL
RANGES
ADMINISTRATIVE
400
350 -
300 -
250 -
200 -
Figure 6
PENALTY DISTRIBUTION FY 1989
MINUS MOBILE AND FIFRA ADMINISTRATIVE
150 -
100 -
ZERO $ <=$5,000 <$10,000 <$25,000 <$50,000 <$100,000 <$1 MILL >=$1 MILL
JUDICIAL
RANGES
ADMINISTRATIVE
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70
60 -
30 -
20 -
PENALTY DISTRIBUTION - CWA
19B5-198B
Figure 7
ZERO S <=$5.0OO =$1 MILL
RANGES
JUDICIAL KgS ADMINISTRATIVE
20 -
10 -
PENALTY DISTRIBUTION CWA
FY 1989
(SS3 JUDICKL
ZERO $ <=$5.0OO =$1 MILL
RANGES
ADMINISTRATIVE
PO
o
PENALTY DISTRIBUTION SDWA
PENALTY DISTRIBUTION - SDWA
FY 1985-1988
ZEFO $ <=$5.0OO <$10.00O <$25.OOO <$50.OOO <$1OO.OOO <$1 MILL >=$1 MILL
RANGES
u.
o
nr 1989
ZERO $ <=$5.000 <$10,OOO <$25.OOO <$50.OOO <$1OO,OOO <*1 MILL >=$1 MILL
JUDICIAL
ADMINISTRATIVE
RANGES
ADMINISTRATIVE
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IALT) DISTRIBUTION STATIONARY AIR
FY 1985-1988
in
V •
SN
,W 1
ID
-fr.OOO =$! MILL
RANGES
.I'idiriAl gO§2 ADMINISTRATIVE
'LNALTY DISTRIBUTION RCRA
FY 1985-1988
.If-'- »
<$in.OOO =tl MILL
RANCLb
Figure 8
20
19
IB
17
16
15
14
13
12
1 i
10
9
8
7
6
5
4
3
2
1
0
PENALTY DISTRIBUTION STATIONARY AIR
FY 1989
Note different scales
^
^
ZERO $ <=t5,OOO <$10.0OO <$25.OOO =$1 MILL
JUDICIAL
RANGES
ADMINISTRATIVE
F3ENALTY DISTRIBUTION RCRA
nr 1989
Note different scales
ADMINISTRATIVE
ZERO I ' =$5.000 <$ 10.0015
] .lUDiriAi
t'r-o.ooo <-fioo.ooo •;$! MILL >=$i MILL
RANGES
APUINISIRATIVf
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22
Highest Penalties
Five programs established new records for highest individual
administrative or judicial penalties — that is, the highest
penalty assessed in a single case. Record judicial penalties
were set in FY 1989 in the Safe Drinking Water Act and RCRA
programs. Record administrative penalties were set in the Clean
Hater Act, Wetlands and Stationary Source Air programs. The
highest penalties in each program are shown in Table 5.
Table 5
Highest Penalty in FY 1989 by Program
Judicial Administrative
Clean Water Act $ 1,540,000 $ 100,000
Safe Drinking Water Act 55,000 125,000
Wetlands Protection 50,000 75,000
Marine and Estuarine Protection — 40,000
Stationary Source Air 600,000 100,000
Mobile Source Air 1,166,666 656,931
RCRA 2,778,000 137,751
EPCRA Sections 302-312 — 30,000
CERCLA Section 103 — 15,550
Toxics Release Inventory — 57,800
TSCA — 615,650
FIFRA — 10,000
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Types of Cases
Roughly $21 million, or 62 percent, of all EPA federal penalty
dollars in FY 1989 came from judicial cases. The remaining
$14 million-(39 percent) came from administrative cases.
There were more administrative cases than judicial cases. Some
89 percent (1,258) of all cases with penalties were
administrative enforcement actions, compared to 11 percent
(160 cases) that were judicial actions.
In general, the penalty is likely to be higher in a judicial case
than in an administrative case, but the ranges overlap. For
instance, among EPA's larger penalties in FY 1989 were
administrative cases brought by the Mobile Source Air and TSCA
programs. Both were over $600,000.
Considered on an agencywide basis, the proportions of dollars and
cases from the judicial and administrative categories in FY 1989
are similar to those in the past three fiscal years. The
percentages within that period varied within a range of
15 percentage points for penalty dollars, and 4 percentage points
for cases. Although the big picture has remained the same, the
roles of these two types of cases have changed in some programs,
with dramatic results.
An example is the Clean Water Act program, which first received
administrative enforcement authority in the Water Quality Act of
1987. The first 40 administrative cases were concluded in
FY 1988 with penalties totaling about $500,000. Then in FY 1989,
165 cases were concluded, with penalties of $2.8 million. This
growth in dollars from administrative cases in FY 1989 served to
offset a drop in judicial dollars and cases, enabling the CWA
program to maintain approximately equal penalty dollars in
FY 1988 and 1989 and raise the total number of cases.
A contrasting example is the Mobile Source Air program, which had
one or two judicial cases a year in FY 1986, 1987 and 1988, with
record total dollars of $240,000 in FY 1986. Then in FY 1989
this program concluded 16 judicial cases, with penalties totaling
$2.3 million.
New and Increased Penalty Authorities
Two programs obtained their first administrative penalties in
FY 1989, using new authorities. The Toxics Release Inventory
program is authorized by section 313 of the Emergency Planning
and Community Right-to-Know Act of 1986 (EPCRA). The first
penalties were also obtained under EPCRA sections 302-312 and
CERCLA section 103, concerning emergency planning, notification,
and community right-to-know.
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This report for the first time incorporates penalties from the
Marine and Estuarine Protection program, under section 105 of the
Marine Protection, Research and Sanctuaries Act of 1972 (MPRSA).
Although EPA has assessed penalties for violations of MPRSA since
1973, this is the first time the program has been covered in this
report. Starting in FY 1990, the program expects to obtain
penalties under the Shore Protection Act of 1988 as well as
MPRSA.
2. Program Summary
Highlights
Programs differ in the length of time they have had civil and
judicial penalty authority and in the time since Congress last
increased the amount of penalty authorized. There are also
differences among the types of violations to which the penalties
aPPly/ and tne different types of pollution sources regulated by
programs. These differences will inevitably be reflected in the
penalties the programs obtained. The following observations are
not evaluations of the programs' use of penalties, but rather an
attempt to illuminate differences among the environmental media.
Five programs showed significant penalty efforts in both judicial
and administrative categories in FY 1989: Clean Water Act, Safe
Drinking Water Act, Wetlands Protection, Mobile Source Air and
RCRA. These programs had significant total dollars and numbers
of cases in both categories. More programs were using both kinds
of authority than ever before in EPA history.
Although each program is different, the programs' penalty efforts
can be seen as falling in four groups on the basis of the kind of
authority used, the size of typical penalties, and the number of
cases concluded with a penalty in FY 1989.
Group One; Judicial Penalties - Six programs are represented
in this group. Two programs had relatively large numbers of
judicial cases: Clean Water Act (NPDES) with 55 cases (median
of $55,000) and Stationary Source Air with 67 cases (median of
$32,253). Two programs had smaller numbers of cases but
relatively high typical penalties: RCRA with 11 cases (median
$61,500) and Mobile Source Air with 16 cases (median $35,875).
Other programs with fewer cases were Safe Drinking Water Act
with 6 cases (median $16,000) and Wetlands with 5 cases (median
$25,000).
Group Two; High Administrative Penalties,. High Volume - Three
programs had relatively high median administrative penalties
and large numbers of administrative cases in FY 89. These are
the Clean Water Act (median $10,000 from 220 cases), RCRA
(median $9,792 from 146 cases) and TSCA programs (median $7,000
from 310 cases). In most prior years the TSCA program had much
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25
lower typical penalties; TSCA cases reflect several different
penalty authorities, including some that lead to higher-dollar
penalties.
Group Three; High Administrative Penalties. Low Volume - Six
programs had relatively high administrative penalties and low
numbers of cases. These included two continuing programs:
Wetlands (median $8,000 from 12 cases) and Stationary Source
Air ($50,871 from 2 cases). Four programs reporting for the
first time this year are in this group: Marine and Estuarine
Protection (median $30,000 from 2 cases), EPCRA sections 302-
312 (median $13,958 from 4 cases), CERCLA section 103 (median
$3,334 from 3 cases) and Toxics Release Inventory (median
$4,500 from 15 cases).
Group Four; Low Administrative Penalties f High Volume - Two
programs had relatively low administrative penalties and large
numbers of cases. These were Mobile Source Air (median $1,000
from 280 cases) and FIFRA (median $1,014 from 252 cases).
Criminal Enforcement
The Criminal Enforcement program operates on a cross-media basis,
serving all the major programs that have been authorized by
Congress to use criminal sanctions against violators. Most
criminal cases include charges under more than one environmental
law, but for statistical purposes each case is listed under one
predominant statute. On this basis, the programs with the
largest numbers of defendants convicted in FY 1989 were Clean
Water Act (29) and RCRA (22), followed by Clean Air Act (12),
CERCLA (2), TSCA (2) and FIFRA (1). (The foregoing numbers are
sums of corporations and individuals convicted.)
Relative Contributions
The Clean Water Act program dominated civil penalty dollars in
FY 1989, with 36 percent of the total (see Figure 2). It was
followed by RCRA (19 percent), Stationary Source Air (14 percent)
and Mobile Source Air (14 percent). This reflects a notable gain
in share over FY 1988 by Mobile Source Air (up from 7 percent).
Stationary Source Air was down from 25 percent.
The majority of cases with penalties in FY 1989 were concluded by
programs that made heavy use of administrative cases (see
Figure 3): TSCA (22 percent), Mobile Source Air (21 percent),
FIFRA (18 percent), Clean Water Act (16 percent), and RCRA
(11 percent). This reflects notable gains in share by Mobile
Source Air, FIFRA and Clean Water Act (up from 17 percent, 13
percent and 9 percent, respectively) and a drop in share by TSCA
(down from 42 percent).
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Major Changes in FY 1989
In FY 1989 the total penalties declined slightly, and the number
of cases held even, compared to FY 1988. The following section
will analyze this change.
Dual Enforcement Efforts; Fiscal Year 1989 marks a new high-
water mark in the use of both administrative and judicial cases
by EPA programs. Five programs concluded substantial numbers of
cases in both categories and obtained substantial penalties from
both. This is a change from earlier years, when each EPA program
relied primarily on either judicial or administrative cases, but
not both. This change reflects the implementation of new
statutory authorities granted by Congress, enabling programs to
use the two approaches as complementary parts of an integrated
enforcement effort.
Decline in Dollars; In FY 1989, EPA obtained $1.7 million less
in penalties than in FY 1988. This appears to be attributable
mainly to the following changes in program accomplishments:
• One of the programs with traditionally high penalty dollars,
Stationary Source Air, obtained fewer penalties in the
highest-dollar ranges. In FY 88 there were three cases over
$1 million, which represented 49 percent of all penalties in
FY 88; in FY 89 there were no cases over $1 million. This
program's total was down $4.3 million, or 47 percent, from
the FY 88 level. The number of cases remained level, with
74 in FY 88 and 72 in FY 89. In a program with relatively
few cases and typically high dollars, a few cases at the
upper end of the spectrum can make a dramatic difference in
the total. The fluctuation may be due in part to the large
number of asbestos cases the program has been pursuing,
which typically yield lower penalties.
• The TSCA program concluded barely half as many cases in
FY 89 as the year before (310 compared to 595) as a result
of changing program strategies, and obtained about $900,000
less in penalties (an 18 percent drop from $5.1 million in
FY 88), although its median penalty was at a record high
level.
The decline of $1.7 million took place in the same year when two
mature penalty programs made solid dollar gains: Mobile Source
Air was up $2.2 million (83 percent), and RCRA was up almost
$600,000 (9 percent). And there were modest gains in median
penalties in several programs. However, these gains were not
enough to offset the drop observed in Stationary Source Air and
TSCA penalties.
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Number of Cases: Although the number of cases was almost the
same as in FY 1988, there were dramatic changes in some programs.
There was a net growth in eight programs totaling 300 cases more
than the FY 1988 figures, but that gain was offset by a drop of
the same magnitude in the TSCA program.
The Clean Water Act program rose from 125 cases to 220. A drop
in CWA judicial cases from 85 to 55 was offset by rapid growth in
CWA administrative cases (from 40 to 165). The Safe Drinking
Water Act program rose from 46 cases to 76, the Mobile Source Air
program rose from 237 cases to 296, and the FIFRA program rose
from 185 cases to 252. The four new programs had a total of 24
cases (Marine and Estuarine Protection, EPCRA sections 302-312,
CERCLA section 103, and Toxics Release Inventory). Stationary
Source Air and RCRA maintained the same levels as last year.
The TSCA program declined from 595 cases to 310 primarily as a
result of the strategy for the Asbestos in Schools program. In
FY 1989 this effort concentrated on promoting compliance by
school districts through issuance of warning letters. The
program will emphasize enforcement actions against recalcitrant
school districts in later years.
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>
?: L'NITED STATES ENMROMV1ENTAL PROTECTION AGENCY
WASHINGTON. D.C. 2 'II I V MHi 1 \|l \ I
\V" ilMI'l ' \M I
\MSllilHiM,
MEMORANDUM
SUBJECT: National Penalty Repert^f or FY 1989
FROM: James M. Strock«_J
Assistant Administrator
TO: The Administrator
Deputy Administrator
Assistant Administrators
Associate Administrators
Regional Administrators
Attached is the final national penalty report for FY 1989,
entitled "Overview of EPA Federal Penalty Practices FY 1989."
The Office of Enforcement greatly appreciates the assistance of
the program offices and Regions that contributed data and
analyses, reviewed drafts, and maintained accurate penalty
records throughout the year.
The report shows that FY 1989 was the second highest penalty
year in EPA's history, with $35.1 million in civil penalties.
Criminal fines attained a new record, with $12.5 million assessed
in FY 1989. Seventy-five percent of all EPA's civil penalties to
date were imposed in the last five years, from FY 1985 through
FY 1989. Some 19 percent of all civil penalties were imposed in
FY 1989 alone.
Attachment
cc: General Counsel
Inspector General
Headquarters Compliance Office Directors
Deputy Regional Administrators
Regional Counsels
Regional Division Directors
Steering Committee on the State/Federal
Enforcement Relationship
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