El INVIRONMENTAL lNSTITUTE Final Draft STATE HAZARDOUS WASTE ENFORCEMEMT STUDY Summary and Analysis WASHINGTON D. ------- This report was prepared prior to the issuance of EPA's Revised RCRA Enforcement Response Policy and prior to the initiation of revisions to the regulations governing compliance monitoring and enforcement requirements for state hazardous waste management programs. Final Draft STATE HAZARDOUS WASTE ENECJfcCEMSNT STUDY Summary, and Analysis Prepared by the Environmental Law Institute for the Office of Waste Programs Enforcement, RCRA Enforcement Division U.S. Environmental Protection Agency October 1987 ------- TABLE OF CONTENTS I . INTRODUCTION A. PURPOSE OF STUDY ......................... ! B. THE RESEARCH .................................. "..'/.'. ............. 2 C. ORGANIZATION OF THE REPORT .......................... ............ ! 3 D. THE FUNDA1VEOTAL PRINCIPLES OF ENFORCEMEOT ............ ............ 4 1 1 . STATE ENFORCEMEOT AUTHORITIES, PROCEDURES, AND INSTITUTIONS .......... 7 A. THE INTEGRATED ENFORCEMENT PROGRAM .............................. 7 B. PERMITS AND LICENSES AS ENFORCEMENT TOOLS ................. ..."...' .*9 1. Federal [[[ g 2 . State ............................................ .'.'.'.'.".'.'.'.'.'.'.' io a. Licenses .................................................. 10 (1) Substantive transporter licensing requirements ........................................ 10 (2) Enforcement implications of transporter licensing ........................................... 11 b. Permits [[[ 12 (1) Substantive issues relating to use of permits as enforcement tools ........................ 13 (a) Standards for Issuance of TSD Permits ............. 13 (b) Substantive Standards for Permit Suspension or Revocation ........................ 16 (c) Permit Bars and Bad Actor Provisions .............. 18 (2) Procedural provisions relating to use of permits and licenses as enforcement tools ........... 21 (a) Permit Issuance ................................... 21 (b) Permit Revocation and Suspension .................. 22 (3) Institutional issues relating to use of permits and licenses as enforcement tools ........... 23 c. State Laws Prohibiting a Release Without a Permi t ................................................ 25 d. Bond Forfeiture ................................... 27 C. ADMINISTRATIVE ORDER AUTHORITIES ........................ .".".".'."."." 28 1. Federal ................................................. ^28 2. State .................................................. "28 a. Substantive Issues ........................................ 28 b. Administrative Order Procedures ........................... 30 (1) Procedural effectiveness of administrative orders ..... 30 (2) Preconditions to enforcement .......................... 32 (3) Burdens of proof and presumptions in administrative order cases ......................................... 34 (4) Attorneys' fees and expenses in administrative order cases ......................................... 36 c. Institutional Issues ...................................... 37 (1) Administrative review of enforcement orders ........... 37 ------- Page The Agency/Board Mode 1 38 The Board Control Model 38 The Illinois Model 38 Systems in Use 39 Resources 39 (2) Judicial review of administrative enforcement decisions 40 (3) Assignment of legal representation for administrative enforcement cases 42 (4) Inspection effects on administrative enforcement 43 D. ADMINISTRATIVE AND JUDICIAL CIVIL PENALTIES 45 1. Federal 45 2. State 45 a. Description of Existing Civil Penalty Provisions 45 b. Procedural and Institutional Obstacles to Civil Penalty Enforcement 47 E. CIVIL JUDICIAL ENFORCEMENT 50 1. Federal 50 2. State 50 a. Substantive Issues 50 (1) The standard for issuing an injunction 50 (2) Public Nuisance 52 b. Procedural Issues 53 (1) Statutes of limitations 53 (2) Recovery of fees and costs 53 c. Institutional Issues 54 (1) The decision to take judicial enforcement action 54 (2) Attorneys handling judicial enforcement cases 55 (3) Court in which a civil judicial enforcement action may be filed 56 F. CRIMINAL ENFOHCEMENr 59 1. Federal 59 2. State 59 a. Substantive issues affecting criminal enforcement 59 b. Procedural and Institutional Issues 62 G. OTHER PROGRAM TOOLS - 64 1. Federal 64 2. State 64 a. Property Transfer Bars and Super liens 64 b. Contractor Debarment 65 c. Other Debarment 66 d. Professional Discipline 66 e. Publicity 66 III. THE EFFECT OF RCRA AND EPA POLICIES ON STATE ENFORCEMENT 68 A. DIFFERENCES AMONG THE STATES AND BETWEEN EACH STATE AND EPA 68 1. States are Not Mini-EPAs 68 2. Every State is Different 68 ------- 3. Effective Oversight Requires an Understanding of the Unique Features of Each State 69 B. STATE LEGAL AND INSTITUTIONAL IMPEDIMENTS TO THE DEVELOPMENT OF CREDIBLE, DETERRENT ENFORCEMENT PROGRAMS 71 1. The Vitiation of the Permit as Enforcement Tool '.'.'.'.'.!72 a. Obstacles to Enforcement: Burdensome Standards 72 b. Obstacles to Enforcement: Burdensome Procedures 75 c. Limiting the Agency's Ability to Deny Permits 76 2. Burdening and Delaying The Enforcer: Legislative Pre- conditions To The Issuance of An Administrative Order 77 a. Delay and the "Free Ride" 77 b. An Unfavorable Institutional Structure Compounds the Problem 78 c. "Emergency" Order Authority is Not a Solution ..'..*!. ...78 3. Burdening And Delaying The Enforcer: Obstacles To Judicial Relief And Civil Penalty Assessment 79 a. Legislation That Undermines Penalty Assessment 80 b. Administrative Civil Penalties That May Be Worse Than None 80 c. No Ability to Select the "Best" Forum 82 d. "Capping" the Penalty 83 e. Hampering the State's Ability to Obtain Equitable Relief..83 4. The Civil and Criminal Investigative Void 85 C. EPA POLICIES DISCOURAGE THE USE OF STRONG, DETERRENT STATE ENFORCEMENT AUTHORITIES 87 1. EPA Policies Have Not Recognized Effective State Enforcement Authorities or Strategies 88 a. General and Specific Deterrence and Enforcement Leverage: The License and Permit as Enforcement Tool 88 b. General and Specific Deterrence and Enforcement Leverage: The Irrmediately Effective "Shut-Down" Order 95 c. The Strengths and Breadth of the Police Power: Integrated, Multi-Media Enforcement 97 (1) The "Problem-Oriented" Approach 97 (2) The Prohibition Against Releases to Groundwater 98 (3) The Inherent Conflict with EPA Pol icy/Expectations 99 2. EPA Policies Do Not Require, and May Even Discourage, the Intensive Investigative Approach Necessary to the Detection and Punishment of Major Violations 100 D. EPA POLICIES DO NOT ENCOURAGE—AND MAY EVEN DISCOURAGE—THE CREATICN/IMPLEMENTATICN OF A GENERAL, DETERRENT STATE-WIDE ENFORCEMENT STRATEGY 102 1. The "Mix" of Authorities: The Importance of Leverage in the Enforcement Program 102 2. The Inevitable Failure of a "Case-by-Case" Oversight Policy 102 IV. IMPLEMENTATION OF THE STUDY AND ANALYSIS 106 ------- TABLES Page Table 1 States Requiring Transporter Licenses T-l Table 2 Statutory Standards For Permit Revocation, Suspension T-5 Table 3 States With Permit Bar/Bad Actor Provisions T-ll Table 4 Institutional Issues Affecting Cross-Media Enforcement Using Hazardous Waste and Water Laws T-15 Table 5 State Superfund Provisions (Fifteen State Study) T-19 Table 6 States In Which, According To State Law, A Non-Emergency Compliance Order May Be Issued Without Prior Hearing And Is Treated As Immediately Effective Even While A Request For Hearing Is Pending T-21 Table 7 Statutory Preconditions To Enforcement Actions T-23 Table 8 Final Decision On Administrative Review T-29 Table 9 Geographic Forum (Venue) For Judicial Review Of Final Administrative Enforcement Actions (Fifteen State Study) T-33 Table 10 Assignment Of Attorneys To Handle Administrative And Judicial Civil Enforcement Cases T-35 Table 11 Do The Same Attorneys Handle Administrative Enforcement And Civil Judicial Enforcement Actions? T-39 Table 12 Attorneys Handling Administrative And Judicial Civil Enforcement Cases (Fifteen State Study) T-43 Table 13 Civil Penalties Under Hazardous Waste Laws T-45 Table 14 Civil Penalty Authority (Fifteen State Study) T-49 Table 15 Procedure For Imposing Administrative Civil Penalties (Fifteen State Study) T-51 Table 16 Legal Standard For Issuance Of Enforcement Injunction (Fifteen State Study) T-53 Table 17 Decision To File/Or Refer For Filing A Civil Judicial Enforcement Case (Fifteen State Study) T-55 Table 18 Venue For Direct Civil Judicial Enforcement Actions (Fifteen State Study) T-57 ------- Table 19 Criminal Enforcement Of Hazardous Waste Laws (Fifteen State Study) T-59 Table 20 Hazardous Waste Crimes T-61 Table 21 Primary Responsibility For Criminal Prosecutions Of Hazardous Waste Crimes (Fifteen State Study) T-75 ------- REPORT ON STATE AUTHORITIES, PROCEDURES AND INSTITUTIONS FOR HAZARDOUS WASTE ENFORCEMENT SUMMARY AND ANALYSIS L INTRODUCTION This report is a summary and analysis of the results of a year-long study of state hazardous waste enforcement conducted by the Environmental Law Institute (ELI) for the Environmental Protection Agency's Office of Waste Programs Enforcement, RCRA Enforcement Division. The study embraces all fifty states and the District of Columbia, and examines the statutory, common law, regulatory, procedural, and institutional features bearing on the effectiveness of enforcement. The study addresses not only the state "RCRA" authorities, but also other enforcement authorities available to the states for hazardous waste enforcement. — A. PURPOSE OF STUDY This study identifies the factors necessary to evaluate state hazardous waste enforcement programs, in order to assist EPA in developing policies and guidances that recognize and deal with state-specific variation. This information also will assist EPA in providing to Congress a clear understanding of state enforcement authorities, procedures, and institutions. The analysis contained in the study will strengthen state enforcement by showing how reform of federal oversight and administration of state authorization can eliminate institutional, substantive and procedural obstacles to effective state enforcement. The study further provides states with information on the procedures, policies, institutions and substantive provisions used in other states, with the goal of improving state enforcement.— \J State hazardous waste regulation is a product of state statutory, regulatory and common law, which reflects not merely "adoption" of federal RCRA program requirements, but also historic and variable state focuses on groundwater, water, public nuisance and other issues. Many state civil, administrative and criminal laws are significantly different from federal laws in both substance and procedure; consequently, they vary significantly in their legal and practical effect even when they appear superficially to be the same as federal RCRA authorities. The study identifies and assesses these differences for enforcement purposes. 21 The study also provides information requested by EPA on: (1) state criminal enforcement of the hazardous waste laws, and (2) the relationship between administrative and judicial civil penalty authorities in state hazardous waste laws. ------- B. THE RESEARCH ELI conducted this study of hazardous waste enforcement in all 50 states and the District of Columbia. The study was conducted in two segments. The larger segment of the study consisted of an in-depth analysis of hazardous waste programs in fifteen states designated by EPA. Twelve of these states were designated on the basis of their having the largest aggregate numbers of hazardous waste treatment, storage or disposal (TSD) facilities—California, Connecticut, Florida, Illinois, Indiana, Louisiana, Michigan, New Jersey, New York, Ohio, Pennsylvania, and Texas. Three additional states—Maryland, Missouri, and Washington—were selected by EPA to provide sufficient regional representation and broader program representation. I/ For each of the fifteen states, ELI examined: o the state's hazardous waste, groundwater, surface water, air, criminal, and administrative procedure laws and regulations, and all relevant constitutional and common law provisions that might be used in enforcing the state's hazardous waste program; o the state's institutional organization and allocation of responsibility for investigation, inspection, enforcement, permitting, civil and criminal litigation, appeals, and administrative and judicial decisions; o state policy documents, manuals, program descriptions, information supplied to EPA, and state documents made available to ELI during the course of the study; and o relevant legal briefs, administrative and judicial opinions, and orders. ELI also traveled to each state and interviewed key program officials, agency enforcement staff, assistant attorneys general and agency counsel, and, where applicable, state's attorneys and district attorneys. These detailed interviews were further supplemented by telephone interviews, followup calls, and letters seeking or providing additional information. ELI also selected case studies illustrative of the states' enforcement procedures and practices, and obtained detailed data on these cases. The second segment of the study consisted of a documentary review and critical analysis of the hazardous waste enforcement authorities, procedures and institutions in the remaining 35 states and the District of Columbia. For each of these states, ELI obtained the state's hazardous waste, groundwater, surface water, air, criminal and 3/ The fifteen study states are shown in Chart 1. -2- ------- North Dakota Minne sola Wiscon- sin South Dakota Nebraska Kentucky . — Tennessee North Carolina South Carolina Oklahoma 1 Arkan- sas Arizona New Mexico ------- administrative procedure laws and relevant constitutional provisions. In certain instances, ELI conducted followup telephone interviews and review of relevant regulations and administrative procedures. Together the two segments of the study provide a detailed picture of hazardous waste enforcement at the state level The study further serves as a guide to understanding state-by-state variations in procedure, substance, and institutions, and how these variations significantly influence not only the effectiveness of enforcement by the states but also the effectiveness of EPA oversight policies. C. ORGANIZATION OF THE REPORT The final report on the study consists of two parts: (1) this Summary and Analysis and (2) fifty-one individual State Reports. The Summary and Analysis addresses each of the primary enforcement tools available to the federal and state governments for the enforcement of hazardous waste laws. Although in practice these tools are integrated into comprehensive state programs of enforcement (Section H.A., infra), they have been divided for purposes of analysis into the following categories: permits and licenses as enforcement tools (Section H.B.), administrative orders (Section II.C.), administrative and judicial civil penalties (Section H.D.), civil injunctions and judicial contempts (Section H.E.), criminal enforcement (Section H.F.), and "other" enforcement tools (Section H.G.). Each of these tools is placed preliminarily in its federal context under RCRA, and then discussed in its comparable state context with critical enforcement evaluation and analysis. The Summary and Analysis gives particular attention to (1) substantive standards, (2) procedures and (3) institutional features found among the states, and their impact on enforcement effectiveness. The Summary and Analysis contains numerous tables and charts designed to highlight some (but by no means all) of the significant features and differences found in the states. The tables and charts should be read in connection with the accompanying text rather than used independently, as the relationships among the substantive enforcement authorities, procedures, and institutional factors are fairly complex. In Section III, the Summary and Analysis examines where EPA's policies and oversight practices do and do not currently take into account the state variability observed. It describes certain critical differences between EPA and the states (Section III.A.), and shows where EPA has approved state authorities that are weaker than RCRA (Section ffl.B.). It then identifies where EPA oversight policies have actually or potentially discouraged the adoption and use of strong state enforcement authorities and -3 - ------- practices (Section III.C.) and state-wide enforcement programs (Section III.D.). Section IV provides a blueprint for dissemination of the results of the study to strengthen enforcement oversight and state authorization. The State Reports set forth the relevant enforcement authorities, procedures and institutions for each of the fifty states and the District of Columbia, and discuss salient features of each. For the 15 principal study states, the State Reports also include a detailed analysis of the implementation of the enforcement authorities, as well as discussion of illustrative cases demonstrating the practical effect of these authorities, procedures and institutions. Together the State Reports provide the detailed supporting data and state-specific analysis which undergird the Summary and Analysis. The State Reports also contain substantial amounts of state-specific data and analytical material not included in the Summary and Analysis. The State Reports may be used as an introduction or guide to the enforcement programs and authorities of particular states, even apart from this Summary and Analysis. D. THE FUNDAMENTAL PRINCIPLES OF ENFORCEMENT In this study, state hazardous waste enforcement programs and program features- are analyzed in light of the fundamental principles of enforcement. Enforcement is best understood as those elements of leverage that a governmental entity exerts to obtain both specific and general compliance. Specific compliance is the correction of a detected violation by the particular entity against which an enforcement action is taken. General compliance is the prevention of violations and the correction of undetected violations by all regulated entities. Any effective program of enforcement should be designed to: 1. detect violations; 2. compel the correction of all detected violations; 3. exert leverage to assure that compliance is achieved in a timely manner; and 4. deter other violations by the same and all other regulated entities. These standards for enforcement effectiveness can be achieved jf the governmental entity: o devotes sufficient resources to investigation (i.e., does not simply detect the "easy" or obvious violations). o recognizes the most persuasive economic incentives for industry compliance (including loss of revenue for periods or shut-down, -4- ------- litigation expenses incurred for contesting enforcement actions, and loss of revenue or business opportunities due to denial or withholding of a license, permit or request for modification). o eliminates incentives for delay in compliance (i.e., assures that enforcement litigation occurs on the violator's "time" rather than on that of the public). o ensures that any litigation is conducted in the administrative or judicial forum most favorable to the government o makes the elements of violation required for the government to prevail few, clear, and simple; and minimizes the government's requirements for proving these elements through the creation of favorable presumptions and rules of decision. o ensures that the agency retains maximum control over the framing of the remedy. o operates a credible criminal program that obtains sanctions more significant than those achievable civilly or administratively. An enforcement program will deter violations, secure substantial voluntary compliance, and achieve significant settlement leverage only if the violator perceives that there is a greater risk and "cost" in violation than there is in compliance. This means not only that the government must be capable of detecting violations, but also that the government's authorities must provide no incentive to a regulated entity to wait until its violations are detected to avoid or eliminate these violations. Simply put, there should not be a "free ride" effect such as that created by a program that treats in the same manner: (1) a facility that invests time, resources and effort in forestalling the occurrence of any violation, and (2) a facility that allows violations to occur but which corrects them only after they have been detected by the government. An enforcement program that treats either type of facility behavior the same will inevitably produce behavior of the second type (Le., waiting until violations are detected), to the obvious detriment of the public and the environment. An understanding of deterrence is also important. Because it is impossible ordinarily to achieve specific deterrence (site-by-site detection and citation of every violation ever committed), credible enforcement programs must also rely on general deterrence (voluntary compliance induced by awareness of the risk of detection and the net effect of the likely sanction as compared with the benefit of noncompliance). Credible general deterrence efforts generally require (1) public awareness of active enforcement personnel, (2) public awareness that there is a hidden enforcement presence (i.e., investigators), (3) credible sanctions timely imposed upon a cross-section of the -5- ------- regulated community, and (4) some number of severe sanctions that have been imposed. These elements are important to bear in mind when designing and funding an enforcement program. In analyzing the state authorities and programs, we have referred to these simple and fundamental principles. We have done so to illustrate the practical strengths and weaknesses of the various enforcement authorities adopted and implemented by the states, as well as to highlight distinctions between EPA and state programs that dramatically influence oversight and program effectiveness. -6- ------- H. STATE ENFORCEMENT AUTHORITIES. PROCEDURES. AND INSTITUTIONS A. THE INTEGRATED ENFORCEMENT PROGRAM Although the analysis in this report necessarily focuses on specific enforcement authorities, procedures, and institutions, state enforcement of hazardous waste laws and regulations must be understood programmatically rather than as an aggregation of individual enforcement provisions. Permit-based enforcement, state institutions, the uses and availability of various administrative and judicial remedies, and the other enforcement features, are all closely interrelated. For example, a state may have an exemplary array of judicial and administrative tools and nevertheless have an ineffective program because of one or two seemingly minor institutional weaknesses. Conversely, a state may have generally inadequate tools, but nevertheless accomplish enforcement because of an emphasis on those few things (e.g., permit-based enforcement) that work. It is, therefore, important to keep the organic quality of state enforcement in mind while scrutinizing the specifics. Many times, the critical difference between effective and ineffective enforcement will turn on the effect of a little-noticed provision, institution, or procedure, often not even identified in the EPA authorization or oversight process. For example, are the state's orders immediately effective while administrative review is pending or are they automatically stayed? Does the state require that the violator be given a grace period to negotiate? Are administrative orders issued by the enforcement agency itself or must they be sought before a board that has no enforcement mission? May a violator receive a permit or permit modification while outstanding violations are at issue? What are the standards for obtaining judicial injunctive relief? Who may make the decision to take judicial action against a violator? Are appeals of administrative actions decided by an experienced central court or by local county courts? What burdens of proof are placed upon the state and what upon the violator? Are the permitting and enforcement staffs coordinated in any way? Is there a criminal investigative process? Is it centralized or decentralized? Are violators sent to jail upon criminal conviction or treated the same way as in civil cases? These issues are significant program matically. There may be a variety of sets of answers to these questions consistent with effective enforcement. Nevertheless, some answers are more "right" than others when reviewed in light of fundamental enforcement principles. Moreover, it is the leverage exerted by the combination of enforcement program features that ultimately dictates the practical result of any state enforcement action. Specifically, resolution of violations by administrative settlement will occur frequently in every state and under -7- ------- every quality of enforcement program. This does not mean, however, that only administrative enforcement is important, even in those states that purport to rely chiefly on the administrative enforcement process. Operator compliance and enforcement settlements are always driven by the whole range of leverage available to the state. (Cases may be settled administratively on terms favorable to the state chiefly because a violator desires to avoid possible criminal investigation and prosecution, for example.) Therefore, states with effective enforcement tools and those with ineffective enforcement tools will (apart from those few cases that go to hearing or trial) be recognized only by the quality of their settlements—a difficult feature for any oversight program to assess. The only reasonable surrogate for this assessment is to determine that each state has available a range of enforcement tools (including not only substance, but procedures and institutions) that are capable of accomplishing deterrence (i.e., that satisfy the fundamental principles of effective enforcement). This requires an understanding of deterrence that recognizes that all of the state's leverage influences violator behavior, and that the selection of a particular enforcement tool to commence a formal enforcement action is only part of the picture. The understanding that each state must be looked at programmatically underlines the significance of the in-depth State Reports resulting from the fifteen state study. They analyze the organic relationship among the various program elements operating in each state. Specifically, the operation of some strong enforcement program elements (substantive, procedural, or institutional) cannot excuse the functioning (or non- functioning) of weak elements. _A11 elements contribute to the enforcement leverage, or lack thereof, that is brought to bear on any violation. The succeeding sections of this Summary and Analysis highlight the specific enforcement effects of particular state enforcement elements. -8- ------- B. PERMITS AND LICENSES AS ENFORCEMENT TOOLS Perhaps the most powerful enforcement tool available to regulatory authorities is the permit or license. Permits and licenses enable the enforcement agency to exercise substantial direct control over the potential "source" of pollution (e.g., the treatment, storage or disposal facility) or the business entity itself (e.g., the transporter company). The agency can determine not only how the source or operator may operate, but also whether it may operate at alL The permit thus provides a significant opportunity for leverage in securing compliance. In fact, several states have adopted enforcement approaches and procedures designed to optimize this leverage. Permits may be used to compel periodic reviews of compliance (i.e., requiring an operator to seek a permit modification for each new waste stream or each new customer); and the application process may place the burden of demonstrating such compliance upon the owner/operator. The state may also provide for automatic termination of permits after a relatively short period and require the renewal application to affirmatively demonstrate the absence of any current violations. Using the permit in this way conserves enforcement resources and places the onus of noncompliance upon the owner/operator. By denying a permit (or modification or renewal), or threatening such denial, some states can achieve immediate and full compliance by the applicant even at facilities other than that for which the permit is sought Clear and simple substantive and procedural standards for permit revocation or suspension can also provide a credible deterrent to violations. In contrast, where permit revocation or suspension is procedurally difficult or where it requires heavy substantive elements of proof by the regulatory authority, the state is deprived of this enforcement leverage. Because permits and licenses provide the ultimate power to control, limit or prohibit the existence or operation of a business, their use as an enforcement tool provides an optimal means of affecting facility compliance behavior. 1. Federal The federal RCRA statute does not require the licensing of transporters, but does require that all TSD facilities obtain a permit. Pending agency action on Part B permit applications, such facilities may continue to operate pursuant to "interim status" provided that they have met certain financial assurance and certification provisions. Permits may be issued for up to ten years in duration, and each land disposal permit is to -9- ------- be reviewed and "modified" as necessary, after the first five years. The permit is effective upon issuance, but permit conditions are stayed during administrative appeals. Permits require financial assurance, which may be satisfied by a financial test as an alternative to bonds or letters of credit. Compliance with permit terms and conditions constitutes compliance with the statute and regulations for enforcement purposes. Section 3005(d) provides that a permit "shall" be revoked for noncompliance. The federal regulations provide for the termination or nonrenewal of a permit for enumerated causes. EPA's permit termination and revocation procedures are fairly complex and provide substantial procedural advantages to permittees. 2. State a. Licenses (1) Substantive transporter licensing requirements Twenty-eight states require licensing of hazardous waste transporters. See Table 1. In general, these licenses regulate the business enterprise itself - that is, the ability to remain in business - not just the practices used in transportation of hazardous waste between particular points.!/ At least one state, Maryland, also requires the certification of individual vehicles and hazardous waste drivers. Substantive requirements vary. Many of the states with transporter licensing provisions have financial responsibility and insurance requirements. This provides additional protection to the public in the event of a spill or release from the transporter, or a transporter violation resulting in a need to clean up an unpermitted TSD site, and may provide an additional enforcement authority. South Carolina, for example, requires liability coverage of up to $1 million, and New York up to $5 million. Maryland requires posting of a $50,000 bond. — Some states require individual vehicle certification (e.g., California, Maryland, Michigan) and certification and/or training of drivers (e.g., California, Maryland, South Carolina). Michigan and California require physical inspection of a hauler's terminal and equipment as a precondition to licensing. The duration of the transporter license is ordinarily fairly short. For example, Connecticut, Indiana, Maryland, Michigan, Missouri, New Jersey, New York, Rhode Island 4/ In some states, however, the only requirement for receiving or maintaining a transporter license is proof of adequate liability insurance, e.g., Kansas. j>/ At least one state with no transporter licensing requirement - Florida - requires transporters to provide insurance to cover spills of hazardous waste. -10- ------- and Tennessee have 1 year licenses; California and Pennsylvania provide by statute for a 2-year license duration (limited to one year in California's regulations); and Minnesota provides for 3 years. Arkansas, however, requires two licenses, an annual license from the Transportation Commission verifying compliance with insurance requirements, and a 5-year license from the Department of Pollution Control and Ecology covering substantive requirements. In some states there is no "expiration" except in the sense that an annual fee must be paid and proof of insurance supplied. (2) Enforcement implications of transporter licensing The enforcement significance of the licensing requirements varies from state to state. In part this depends upon the duration of the license (usually one to three years), the standards for renewal (automatic, or requiring a new demonstration of current compliance and fitness), and the standards for revocation (ranging from a simple violation in some states, to the requirement in Wisconsin that there must have been a "grievous and continuous failure to comply"). Some states (e.g., New York, Pennsylvania) require transporter licenses to specify particular generators and TSD facilities between which hazardous wastes may be handled, or specific waste streams. This provides optimal control and enforcement leverage to the states because it requires transporters to subject themselves to frequent regulatory scrutiny in order to obtain license amendments. Because the transporter must periodically seek a privilege from the state (i.e., the amendment) in order to service a new customer or carry a different waste, it must carry the burden of remaining in compliance and of demonstrating continued compliance in order to justify the grant of the amendment. The existence of a "permit bar" or "bad actor" provision can also be quite important. See discussion infra, at pp. 18-21, 93-94. A number of states prohibit the grant or renewal of a license to an entity with current unresolved violations or a specific history of violations. If transporter licenses must be renewed frequently, or modified frequently, the licensee is exposed to the potential loss of its ability to continue in business if it allows violations to occur or to recur. Thus, the existence of a license requirement, coupled with a short license duration and a permit bar or bad actor provision, may accomplish substantial deterrence. Transporter licensing may also provide leverage for enforcement against generator and TSD violations. Some generators transport their own hazardous waste. If they face the potential loss of their transporter license for outstanding generator violations there - 11 - ------- is a substantial incentive to avoid such violations. Similarly, TSD facilities that have transporter fleets whose licenses must be renewed annually (rather than at 5-10 year intervals like the underlying TSD permit) will have a significant incentive to avoid violations at their TSD facilities. Potential denial of renewal is significant as an enforcement tool because in some states such denial cannot be "stayed" while review of the denial decision is pending. A/ The transporter must cease operating upon such denial Transporter licenses are less effective in the enforcement context if renewal is essentially automatic (or if renewal is not required). They are also less effective in those states where a nonrenewal must be handled like a termination (e.g.. requiring the agency to prove the underlying conduct, as opposed to requiring the operator to demonstrate its entitlement to renewal). Transporter licensing appears to provide significant enforcement leverage to states that keep track of the movement and handling of hazardous waste, and that use licensing to integrate with generator and TSD enforcement. It is particularly useful to those with n I permit bar and bad actor provisions. -' In some other states, it appears to be essentially a paperwork requirement without significant enforcement effect. I/ b. Permits Permits are the cornerstone of the regulation of TSD facilities. In many states they also serve as significant enforcement tools. Apart from the federally-required RCRA "Part B" permit, a significant number of states have previously required permitting of hazardous waste facilities under state laws, and have gained experience in permit-based hazardous waste enforcement. —' State permit provisions, both substantive and procedural, vary significantly from state to state. Some states have less stringent substantive and procedural requirements, 6/ Essentially, while the revocation of a transporter license may be stayed pending administrative review (because the status quo is the existence of the permit), there is nothing to stay when a transporter license renewal is denied (because the status quo is the scheduled expiration of the prior license by its own terms). ]_l E.g., Pennsylvania, Maryland. &/ E.g., Illinois. £/ Some states do not recognize "interim status" and have required TSD facilities to operate pursuant to state permits (e.g., Maryland, Florida, New York) even prior to final "Part B" approvals. - 12 - ------- some more stringent requirements, than EPA's. Highlighted below are some legal and institutional differences that are relevant in assessing the strength and effectiveness of the permit as an enforcement tooL This section will also address the highly significant (and indeed, typical) state requirement that prohibits the release into the groundwater of any contaminant or pollutant without specific authorization by permit. (1) Substantive issues relating to use of permits as enforcement tools (a) Standards for Issuance of TSD Permits In some states, the issuance of a TSD permit is mandated where the applicant has made a showing that it meets the statutory requirements. This is also the approach taken under RCRA S3005(e)(l). In other states, however, the regulatory agency has greater discretionary authority to deny a permit application. For example, in Maryland the agency may deny a permit application that otherwise fully meets the statutory requirements if it concludes that the facility could nevertheless pose an undue threat to the environment. In Pennsylvania, an environmental constitutional amendment requires the agency to deny a permit application, even if otherwise fully in compliance with the law and regulations, if the potential risk of any harm to the environment outweighs the potential benefits, or if any potential environmental effects that could reasonably be mitigated have not been mitigated. —/ The ability discretionarily to deny a permit otherwise in compliance with the law and regulations provides substantial regulatory leverage to an agency. Such leverage may be used to secure particularly advantageous permit provisions or conditions to facilitate future enforcement; or the possible denial of desired permits (or permit modifications) may be used as leverage to secure operator compliance at other facilities. Some states require more than one permit for facility construction and operation. Michigan, for example, requires separate permits for construction and for operation of a TSD facility. This gives the regulatory authority two opportunities to scrutinize operator compliance, and two points for application of leverage on outstanding violations or prior compliance history. Colorado requires both a certificate of designation from the county 10/ See Pennsylvania Report, at pp. 8-9. Louisiana also has an environmental constitutional amendment, which its courts have interpreted as requiring the regulatory agency to protect natural resources and the environment in rendering permit decisions. This amendment has served as the basis for reversal of an agency grant of a permit to a hazardous waste facility. Louisiana Report, at pp. 6-8. -13- ------- and a permit from the state. This, too, provides opportunities for enforcement leverage. Some states have more stringent permit requirements than found in RCRA or the federal regulations. Several states, for example, do not allow a permit applicant to use a "financial test" to meet financial assurance requirements. — Such states may require a bond sufficient to cover the total estimated cost to the state of completing facility closure, corrective action and post-closure care. The required financial assurance may consist of a surety bond, cash, irrevocable letter of credit, or certificates of deposit and 127 must be effective for the duration of operation plus ten years.— In some ways, state access to the financial security funds is even more important than the level of "assurance." If a bond is adequate there will be a strong incentive for the operator (or its bonding company) to avoid bond forfeiture at all costs. At least one state has a provision allowing the regulatory agency to execute on the financial security (bond, letter of credit, etc.) simply upon notice to the permittee that the agency deems there to have 137 been a failure to close properly or to carry out post-closure. — This immediate access to the financial security means that the owner/operator has nothing to gain from delay or resistance to the agency. Also, in accordance with the principles of enforcement, it places the maximum leverage in the hands of the agency and the cost of delay in compliance upon the violator. Other substantive permit provisions create significant enforcement advantages. One useful permit provision requires the permittee to fund the presence of permanent onsite state monitoring personnel during the active life of the facility. —' This provision serves the enforcement principle of providing a continuous, visible enforcement presence, thus enhancing specific deterrence. It also makes detection of violations easier, thus serving the enforcement principle of detecting as many violations as 117 E.g., Pennsylvania, New Jersey, Massachusetts. New York prohibits commercial TSD"Facilities from using the financial test. 127 E.g.; Pennsylvania. Even among states allowing use of the financial test, some are more stringent than EPA. Michigan, for example, requires a tangible net worth of at least $50 million exclusive of the facility itself. See Michigan Report, at p. 17. 137 Michigan. Such notice is followed by an opportunity for informal review, but the execution is not stayed pending a formal execution proceeding. This provision applies to Michigan facilities not using the financial test. See Michigan Report, at p. 18. 147 New York, for example, requires commercial land disposal facilities to pay for permanent onsite state personnel These individuals are rotated among facilities to prevent them from being co-opted by the facility. See New York Report, at p.8. - 14- ------- possible. The specific activity authorized by the permit, and the permit duration, are also extremely significant substantive provisions. A number of states do not simply permit the facility, but specifically provide that the permit must authorize the facility's receipt of waste from each identified generator and the particular waste type received from such generator. —' Thus, if a facility receives one type of waste from generator X, it cannot automatically receive such waste type from generator Y without a permit modification; nor can such a facility add additional waste types from an existing generator customer (e.g., generator X) without such a modification. The significance of this approach to permitting is that it requires the facility at each juncture to affirmatively demonstrate to the regulatory authority its ability to handle the waste in question. It further requires the facility to remain in compliance in order to be afforded the privilege of adding the additional waste stream or additional customer. Some of these states have provisions that permit applications (and permit modifications) may be denied whenever there are outstanding violations. These requirements provide a strong incentive to prevent violations from occurring.—' This permit-based approach also means that any delay in compliance works against the financial interests of the violator, and hence satisfies the enforcement principle that any resistance to compliance should be on the violator's "own time11 and not that of the public. A similar function is served by permits that have relatively short expiration dates. While RCRA §3005(c)(3) authorizes issuance of permits for fixed terms up to ten years (with a review after the first five years), a number of states have established shorter periods for permit duration. IZ/ Shorter permit expiration dates enable the regulatory agency to exercise the leverage of possible denial of permit renewal. This leverage creates strong incentives for (1) 15_/ E.g., New York, Maryland, Pennsylvania. 16/ Such an incentive is stronger than that provided by the threat of civil penalties at some remote date (e.g., following lengthy negotiations and/or administrative or judicial trials). IT/ E.g., Connecticut (5 years), Florida (5 years), New Jersey (5 years). EPA and some states do not exercise such tight control Idaho, for example, provides for issuance of permits for ten-year periods "or the maximum authorized by RCRA, whichever is greater." Like EPA, Idaho authorizes review and modification at 5-year intervals to bring permits into conformance with technological and regulatory or statutory changes. A right to "modify" is weaker than a 5-year expiration, however, because the burden of sustaining the need for modification is upon the agency rather than the permit "applicant," thus giving the permittee more leverage than if it were seeking a permit renewal. This weakness also exists in the federal RCRA permit system. - 15- ------- continued compliance and prevention of violations, and (2) acceptance of modifications and amendments without litigation. Compliance and acceptance are tied to renewal of a permit that the applicant needs. (b) Substantive Standards for Permit Suspension or Revocation The states have a variety of substantive standards for permit suspension or revocation that range from difficult to simple in their utility for obtaining compliance. __ 1 fi / See Table 2 -- Some states authorize suspension or revocation for any violation of the hazardous waste facility permit, law, rules, regulations, or orders, li/ Others allow suspension or revocation only for violation of the permit or permit conditions and not for other violations of law, rules or orders that are not expressly incorporated in the 207 permit. — One state authorizes permit suspension or revocation for violation of any federal or state environmental law, permit, rule, regulation or order (vis^- not limited to violations of hazardous waste laws), H/ Still other states have imposed statutory limitations on their ability to suspend and revoke permits for violations. Laws in these states provide that only certain types of violations or recurrences of violations or egregious conduct in connection with violations 187 Both statutory and regulatory standards differ. By way of comparison, RCRA f3~005(d) mandates permit revocation for "noncompliance" with the regulatory requirements, and §3008 authorizes suspension or revocation for violations. 40 CFR 270.43 lists three bases for permit "termination": (1) violation of a permit condition, (2) failure to disclose relevant facts, or misrepresentation, (3) danger to human health or the environment that can only be regulated to "acceptable levels" by termination. J9/ E.g., Missouri, Maryland, New Jersey, Louisiana, Michigan, Massachusetts, Ohio, Kentucky. 207 E.g.. Mississippi, New Hampshire, South Dakota, West Virginia. See also Utah (failure to comply with operating plan). This also appears to be the approach taken by EPA in 40 CFR 270.43, which authorizes termination for violation of permit conditions but not for other violations of the law or regulations or orders. Many states have expressly adopted the 270.43 standards (e.g.. Arizona, Arkansas, Colorado, Delaware, Iowa, Kansas and others). Interestingly, Alabama adopted the 270.43 language in its rules, but inserted additional language to make it clear that violations of the law, regulations, or orders—and not just violations of permit conditions—authorize permit revocation. Illinois took the same approach in its rules. 21/ Pennsylvania. New Jersey allows suspension or revocation for violation of any New Jersey pollution control law. -16 - ------- will allow the state to revoke or suspend a permit. —/ Other states have placed a "materiality" condition upon the type of violation that may sustain a permit revocation or suspension. —/ While most states would not suspend or revoke a permit for a non- material violation, the express inclusion of a materiality provision in a revocation or suspension statute may create a difficult issue for litigation when such a state attempts to suspend or revoke a permit. It is probable that Congress did not include such a provision in §3005 and §3008 in part for this reason. The state should not be faced with the burden of proving that a given permit condition is "material" or that a given violation reflects lack of "substantial" compliance, as such a requirement hinders enforcement and is inconsistent with the fundamental principles of enforcement (i.e., simplifying the KM I elements that must be proved and minimizing the burden upon the agency). — A variety of other substantive grounds other than "violations" exist for permit suspension and revocation. Some states have been quite expansive in providing these grounds while others have not. With respect to revocation for threats to health or the environment not caused by violations, a number of states have adopted EPA's approach in 40 CFR 270.43 that authorizes permit revocation only if the danger can "only be oc/ regulated to acceptable levels" by such revocation. —' Other states allow suspension or revocation where such a danger exists without requiring the demonstration that revocation or suspension is the only means for reducing the danger to "acceptable 22/ For example, Oklahoma does not authorize revocation or suspension of a permit for "aviolation or even several violations, but only for "flagrant or consistent" violations. Virginia law provides that a TSD permit may only be suspended or revoked for a violation if such violation causes a "substantial present or potential hazard to human health or the environment." Idaho law provides that a permit may be revoked or suspended for a violation only if such violation creates a "substantial hazard" to health or the environment, is repetitious of prior violations, or continues for more than 30 days after a notice of violation. California law allows suspension or revocation for a violation or violations only when such conduct shows a "recurring pattern" or a threat to health, safety or the environment, but has regulations that allow revocation for any permit violation. 23/ E.g., Colorado (failure to operate in "substantial compliance with permit"); Oregon TTpeTmit violation must be "material"). Oregon does, however, allow suspension or revocation for any violation of the statute or regulations. 24/ Attempted "correction" of a weak statute through regulations may also raise considerable obstacles to an attempt to use or threaten to use revocation authority. At a minimum it will create difficult issues for litigation, thus weakening the state's leverage. 25/ E.g., Arizona, Arkansas, California, Colorado, Delaware, Indiana, Iowa, Kansas, Louisiana, New Jersey, South Carolina, Vermont, Washington, West Virginia. -17 - ------- levels."!!' States that do not have an "acceptable levels" requirement have greater enforcement leverage and flexibility as their elements of proof are simplified. (e) Permit Bars and Bad Actor Provisions Far more effective than permit suspension and revocation are so-called "permit bar" provisions. —' While suspension and revocation provisions require the agency to prove a case for taking away a privilege already held by an operating concern, the permit bar provides a means for the agency to deny the privilege of operating to a business concern, which must affirmatively prove its compliance status and fitness to operate. Permit bars usually apply not only to initial permit grants and denials, but also to renewal applications and modifications. A permit bar is a provision that either requires or authorizes the regulatory agency to deny a permit to any applicant that has any current outstanding violation or a history of violations. Some permit bars apply to violations at the facility in question or to violations of particular statutes (i.e., hazardous waste violations), while others apply to violations occurring at any facility owned, operated or controlled by the applicant or its affiliates and to any type of environmental violation. A weaker version of the permit bar is the so-called "bad actor" provision. Such a provision authorizes or requires permit denial based upon an applicant's history of noncompliance. Bad actor provisions usually require that there have been formal adjudications of violation or specific criminal statute convictions. These provisions are useful for keeping "bad actors" from operating hazardous waste facilities, but have somewhat less utility in providing enforcement leverage to achieve current compliance at facilities owned, operated or controlled by a permit applicant. Both the permit bar and bad actor provisions are important enforcement tools, but the permit bar is far more useful and effective. Table 3 sets out those states with permit bars and with bad actor provisions. Pennsylvania and Maryland make frequent use of their permit bar provisions to obtain compliance. Pennsylvania essentially has discretion to deny any permit or license application (or renewal application or modification) whenever an applicant or affiliate 267 E.g., Kentucky, Pennsylvania. 27/ In some states and programs this has also been called the "permit block." - 18- ------- has ever committed any environmental violation, whether or not the violation has been formally adjudicated. In addition, the statute requires Pennsylvania to deny an application whenever there has been a violation of the Pennsylvania Solid Waste Management Act unless the applicant can prove that the violation has been corrected. This permit bar provision employs three of the fundamental enforcement principles by (1) recognizing the strongest economic incentives for industry compliance, (2) eliminating incentives for industry delay in achieving compliance, and (3) minimizing the government's requirements for proof (by requiring that the applicant show that it is currently in full compliance and by not limiting the range of violations at issue to those that have been formally adjudicated). The leverage provided by the permit bar is usable to achieve rapid correction of violations and to encourage prevention of violations (because no permittee wants to risk creating a history of violations for itself). The Pennsylvania permit bar is particularly effective because Pennsylvania is also one of those states that requires the TSD permit to specify waste types and generators from whom the wastes are accepted, and hence requires a modification application whenever a facility proposes to add a new customer or new waste type from an existing customer. The permit bar also applies to transporter licensing. Several states have found that the permit bar can be a more effective tool for achieving compliance than the usual compliance order/civil penalty approach. There are several reasons for this: (1) the threatened sanction (viz. - denial) is immediate; (2) the burden (of showing compliance) is upon the owner/operator rather than the burden (of proving noncompliance) on the agency; (3) there is no incentive for the owner/operator to "string out" the administrative process, because it needs the permit or permit modification (i.e., litigation and noncompliance is on the violator's "time"); and (4) the consequence of noncompliance is significant (viz. - loss of revenue) rather than speculative and possibly minor (i.e., a civil penalty proceeding).-^/ Fourteen states have statutory bad actor provisions, which are less powerful enforcement tools than the permit bar. Some of these state provisions provide a strong 29 / basis for initially screening permit applicants and discretionarily denying permits. — 28/ See e.g., Pennsylvania Report, at pp. 5-6, 9-11. Maryland Report, at pp. 4, 27-28; see also Florida Report, at pp. 4-5. Florida has made little use of its regulatory "permit bar," however. 29/ E.g., Ohio (applicant must affirmatively demonstrate prior good record of nnmrtlinnrtoV compliance). -19- ------- Most such provisions, however, have limited utility in encouraging the prevention of violations and continuing compliance during the term of the permit. They are seldom applied to permit renewals or modifications; and, because they customarily require particularly egregious conduct for denial, they ordinarily serve chiefly as an initial screening device rather than as an ongoing compliance tool —! Many of the bad actor provisions require prior criminal convictions, or previous permit denials or revocations as 0 1 / a basis for permit denial. —' Some bad actor provisions require such a detailed list of convictions or are so constrained by time limitations that they essentially serve no nn l practical function Indeed a few such provisions may be counterproductive to the extent that they suggest that applicants with records not quite as egregious as those expressly set out in the provision may be entitled to a permit (i.e., that the agency may arguably lack discretion to deny a permit to an individual with two misdemeanor hazardous waste convictions if the "bad actor" provision merely authorizes permit denial for an applicant convicted of a felony). Some states have used bad actor provisions aggressively to prevent habitual violators from doing business or continuing to do business in the state. Missouri, for example, has denied transporter licenses based on out-of-state violations. Those states whose bad actor provisions do not expressly require criminal convictions or formal final adjudications of the prior underlying violations have found these bad actor provisions 307 Some provide a basis for denying a permit where a previous business entity has had its permit revoked. See e.g.. New Jersey Adm. Code 7:26-16.12 (After license denial, a business entity is considered to be the entity previously denied if the management structure includes the person or persons that were the cause of the original disqualification); see also Jerry-Russell Bliss, Inc. v. Hazardous Waste Mgmt. Comm.. 702 S.W. 2d 77 (Missouri Sup. Ct. 1985) (In denial of transporter license, business entity found to be "mere continuation" of previous entity). 317 Criminal convictions (Arizona, Connecticut, Indiana, New Hampshire); previous permit denial or revocation (Massachusetts). Other states with bad actor provisions include criminal convictions or prior revocations among alternative reasons for permit denial (e.g., California, New Jersey, Illinois, Missouri). 327 New York, for example, has a substantial bad actor provision, which allows denial for a variety of violations, convictions, etc., but which is undermined by a limitations provision that states that such wrongful conduct may be considered only if it occurred within the two years preceding the application. New York Report, at pp. 10-11. -20- ------- useful —' other states have gotten little use from their provisions. A number of states have "consideration" provisions that require the regulatory authority to consider the applicant's compliance history but that do not specify the basis n A l for permit denial —! These may serve the same function as either permit bars or bad actor provisions if they are aggressively used. The lack of specificity, however, means that a permit denial based upon such agency "consideration," or the effective use by the agency of threatened permit denial to obtain correction of violations, depends in part upon the extent to which the state courts are perceived as willing to defer to agency discretion in the event of an appeal from a permit denial (2) Procedural provisions relating to use of permits and licenses as enforcement tools (a) Permit Issuance Procedures applying to the denial, revocation or suspension of a permit/license can create or eliminate state enforcement leverage. The stronger procedures link permit benefits to acceptance of permit obligations. Several states maintain significant control. over permit conditions by requiring permit applicants to consent to the conditions before issuance of the permit or modification. Essentially some states withhold permit renewals or modifications unless the conditions are included. They are aided in this stance by administrative review provisions that, unlike EPA's permit regulations, do not allow a facility to enjoy the benefits of holding a permit while simultaneously contesting the «e / permit conditions, ii' Thus, the agency may have considerable leverage by threatening denial unless a permit's conditions are agreed to. If the agency denies the permit, the applicant may be legally precluded from obtaining a "stay" allowing it to commence or 337 E.g., Ohio, Missouri. Contrast Indiana (criminal conviction required), and Oklahoma (applicant must have been "finally adjudicated" as guilty of "flagrant and consistent" violations). 347 E.g., Texas, Louisiana. 357 These states do not deem an administrative appeal to stay the contested conditions oTa permit. Compare 40 CFR Part 124. Other states, however, have adopted Part 124 procedures (e.g., Kansas). -21 - ------- continue operations or to expand its operations. —/ Variance provisions may undermine permit-based leverage. In Mississippi, for example, a permittee may seek a variance from permit conditions in a separate proceeding (ultimately reviewable by a permit board), even where the permittee has accepted the conditions proposed by the agency in order to obtain the permit. Variance provisions in other states can have a similar effect on the state's ability to make stringent permit conditions "stick." (b) Permit Revocation and Suspension If revocation or suspension is so difficult to accomplish procedurally that it is used rarely, if ever, or if it will take 3-5 years to accomplish an effective revocation, these procedural disabilities will defeat any advantage arising from otherwise excellent substantive provisions for suspension or revocation. EPA's own permit suspension and revocation procedures are fairly cumbersome, and even if pursued cannot ordinarily result in an effective suspension or revocation until after a lengthy administrative hearing process. Most of the states have revocation hearing procedures much like those of EPA. — Others are even more cumbersome or difficult to use. —/ In contrast, some states have suspension and revocation procedures that are so favorable that they assure the state's ability to use the permit as an enforcement tool A number of states have summary procedures that provide for permit suspensions without 36/ In Pennsylvania, for example, a permit denial cannot be "stayed," as the status quo to which a stay would restore the owner/operator is the status of having no state permit or only an expired permit. Any litigation contesting a permit denial therefore occurs only on the owner/operator's time. This produces a strong incentive to accept the permit conditions proposed by the agency in lieu of taking a denial. Michigan has adopted a regular procedure of obtaining agreement to conditions, together with a waiver of the owner/operator's right to appeal such conditions. See Michigan Report, at pp. 15-16. EPA and many states have not used this leverage, and their appeal procedures work against it. 37/ E.g., notice of intent to revoke, and formal adjudicatory hearing; revocation or suspension not effective until after final decision following hearing. 387 In Kansas, for example, a permittee is entitled to a formal adjudicatory hearing and TTnal decision by the Secretary of the agency on a permit revocation. If the permittee is dissatisfied with the outcome of the administrative review process, however, it is entitled to de novo review in the district court in the county where it is located. Kansas Report, at p.2. In Colorado, the state Administrative Procedures Act suggests thaTa permittee must be given a grace period to bring itself back into compliance if the state initiates a permit suspension or revocation. Colorado Report, at p.2. -22- ------- hearing where certain emergency showings can be made and where a hearing is provided 39/ shortly thereafter. — Of greater significance, agencies in other states may suspend or permanently revoke a permit entirely without a formal hearing and such action remains effective unless overturned in a regular administrative appeal. — The ability to revoke or suspend a permit without numerous procedural prerequisites and delays in the action's effectiveness makes this a powerful tool for negotiating purposes. EPA's own revocation and suspension procedures are, in this respect, a hindrance to optimal enforcement effectiveness—a hindrance not shared by a number of states with effective procedures. (3) Institutional issues relating to use of permits and licenses as enforcement tools An agency's attempt to use the permit or license as an enforcement tool is only as credible as (1) the procedural ability to do so quickly and certainly, while putting the risk of challenge (i.e., transaction costs, loss of opportunity) upon the permittee or applicant, and (2) the likelihood that the reviewing entity will sustain the agency action. Therefore, effective permit-based enforcement is necessarily concerned with administrative and judicial review of permit decisions. Use of permit actions as an enforcement tool may be more likely to be impaired where the agency's actions are reviewed by an independent permit board than when such review is by the agency secretary or director; this is particularly likely to be true where 39/ E.g., Maine, Maryland, New York. This is the functional equivalent of a summary or emergency shut-down order, such as can be issued by most states for short periods of time preceding a hearing. 40/ E.g., Pennsylvania. The permittee may seek administrative review before the Environmental Hearing Board, but may not operate pending the appeal unless the Board grants a supersedeas (stay) of the permit revocation or suspension. The permittee has a heavy burden of proving its entitlement to a supersedeas by showing (1) that the suspension or revocation is causing irreparable injury, (2) that it is likely to prevail on the merits, and (3) that the public will not be injured if the supersedeas is granted. Pennsylvania Report, at p. 7. Ohio follows a procedure similar to that of Pennsylvania for permit revocation or suspension. The Ohio statute, however, requires the agency to give the permittee notice and a "reasonable period of time in which to make corrections" prior to issuing the unila- teral order revoking or suspending the permit. As in Pennsylvania, the revocation or suspension is immediately effective regardless of the request for a hearing. Ohio Report, at pp. 8,22. -23 - ------- such board is required to be composed of representatives of various interest groups. —' Another important issue is what court reviews agency or board administrative decisions. In many states, such review takes place in a local district or county court, which is typically unfamiliar with agency practices and regulations and which may be disinclined to give any deference to the agency's presumed expertise even if required to do so by the judicial review statute. In contrast, review of permit actions is centralized in other states. —' In these states and the other states where review is placed in one court, there is an opportunity for the court to become familiar with the agency and the issues and a lesser likelihood of the agency being "hometowned" by the permittee. There are probably more states in which judicial review of permit decisions is decentralized rather than placed in a single experienced court. —' Attorneys and enforcement personnel interviewed in this study tended to praise centralized judicial review systems and to note the difficulties with decentralized systems, regardless of whether their own state had one or the other. A final institutional issue in the permit context is the division of responsibilities for enforcement and permitting. Enforcement tends to operate more effectively when the permit staff and the enforcement staff are either the same, or are located physically and organizationally in proximity. This coordinated organizational approach is possible, and actually occurs not only in states with small staffs, such as Nevada, but in larger states such as Pennsylvania. Permit-based enforcement is difficult, however, when processing of permits and permit applications is carried on independently of dealing with current violations. — In many states, the permit process (including modifications, renewals and the like) is carried on almost entirely independently of enforcement activities (presumed 4J7 E.g., Illinois. Not all independent boards reduce agency leverage, however. In Pennsylvania, for example, the independent Environmental Hearing Board gives deference to agency permit actions even as it reviews such actions in the first instance. See p. 75, note 172, infra (Section III). 42/ E.g., Connecticut, Louisiana, Missouri, Pennsylvania, Texas, Ohio. Ohio plainly recognizes the value of centralizing at least review of technical permit decisions. While judicial review of Ohio administrative enforcement actions is decentralized, the review of permit decisions has been placed in a single appellate court. 43/ Of the states in the fifteen state study, nine have decentralized judicial review of permit decisions. 44/ Missouri, for example, has its staffs split significantly, and has the added constraint ^Thaving its hydrogeologists located in a different city from its enforcement and permit personnel. -24 - ------- in such states to consist solely of notices and orders and civil penalties) largely because of the organizational split. This prevents such states from taking advantage of permit- based leverage to assure compliance. c. State Laws Prohibiting a Release Without a Permit Most states find it easier to effectively address a release of hazardous waste or other industrial substances than does EPA, by resorting to general discharge prohibition laws. Virtually every state has a law that prohibits the discharge of any pollutant or other substance into the "waters of the state" without a permit. —/ While these are commonly part of the states' Clean Water Act equivalents, they extend beyond the simple prohibition of point source discharges into surface waters. In every state, the term "waters of the state" or its equivalent includes groundwater (although there is significant variation among the states in their use and interpretation of these provisions). The existence of these "no discharge" provisions enables the states to address any release as a "violation" and to require cleanup without needing to engage in tortuous statutory construction regarding whether the release was from an interim status facility (as with RCRA §3008(h)) or whether the particular pollutant satisfied the definition of a "hazardous waste." !§/ Similarly, they do not require an "imminent and substantial" danger, or any health or environmental effects at all—merely a discharge. Some of the provisions have been drafted to clearly proscribe even discharges that have not yet reached the groundwater. The best among these provide a good tool for dealing with nearly any release of waste or other substance before contamination has actually occurred. Texas, for example, proscribes unpermitted discharges "into or adjacent to" the waters of the state including groundwater. Louisiana defines unpermitted discharge to include not only the placing or release of pollutants to "air, waters, subsurface water, or ground," but also the placing of pollutants where such "leaking, seeping, draining or escaping of the pollutants can be reasonably anticipated." Oregon also has a fairly strong version of this provision prohibiting not only discharges to 45/ Minnesota is an exception, but reaches the same result by making it a violation to Tail to give notice of and clean up any discharge. 46/ Most of the states define the prohibited discharge fairly broadly. E.g.. Maryland Fany contamination or other alteration of the physical chemical, or biological properties of any waters of this state"); Pennsylvania ("any liquid, gaseous, radioactive, solid or other substance, not sewage, resulting from any manufacturing or industry, or from any establishment"). -25 - ------- the groundwater, but placement of wastes in any location where they are "likely" to escape or be carried into the waters of the state. Illinois prohibits discharges into the environment that may "tend to cause water pollution," and placement of contaminants "upon the land in such place or manner so as to create a water pollution hazard." il/ These provisions provide a significant vehicle for charging a violation and obtaining remediation or corrective action even apart from the state "RCRA" programs. —/ Some states (including Pennsylvania, New Jersey, and Texas) have used these provisions aggressively in their enforcement efforts. £J Other states, however, have not made significant use of these provisions. In some cases this is because the responsibility for enforcing water law violations resides in a different agency or division than hazardous waste enforcement, and in other cases it is because the procedures that attach to water law violations differ from those for hazardous waste violations, thus raising the prospect of inconsistent adjudications in different forums. Table 4 shows some of these institutional constraints. It identifies those states in which the same agency is not responsible for both hazardous waste and water law enforcement, and further identifies those states where administrative appeals are heard by different tribunals. Although only three states (California, North Carolina, and Virginia) have different state agencies responsible for hazardous waste and water law enforcement, problems of division of responsibilities are not limited to these states. Many of the other 47 states have rigid divisions between their program offices, resulting in the same lack of coordination or integrated enforcement. In addition, twelve states have different tribunals review administrative enforcement actions under the hazardous 47/ Similar provisions exist in the states with respect to the release of pollutants into the air without a permit. 48/ These provisions may also serve as the basis for subsequent invocation of the permit bar in those states with permit bar provisions. For example, if a facility has a release it violates the no-discharge provision. Because "violations" can serve as the basis for permit denial in the permit bar states, the regulatory authority has substantial leverage to obtain correction of the release. 497 Pennsylvania, for example, virtually always cites the no-discharge provision of its Clean Streams Law when it charges a hazardous waste civil, criminal or administrative violation. Pennsylvania Report, at pp. 11,28. New Jersey uses its provision to accomplish involuntary permitting of dischargers, adding detailed reporting and enforcement obligations merely by issuance of the permit. The permit can be issued by the state without affirmative proof of the discharge, thus conserving state enforcement resources. New Jersey Report, at pp. 32-33. See also Texas Report, at pp. 2,8; Connecticut Report, at pp. 7-8; Louisiana Report, at pp. 4-5, 9-10. -26- ------- waste and water laws. This makes the use of more than one type of authority less attractive, and to some extent discourages hazardous waste enforcement personnel from looking to creative uses of the water laws; in part this division is further exacerbated through lack of staff familiarity in a significant number of states with the procedures under the respective programs. d. Bond Forfeiture Bond forfeiture or threatened forfeiture is potentially a very powerful tool for obtaining compliance. It has not been widely used as an enforcement tool in the environmental area in the past. States with procedural provisions allowing for ease in bond forfeiture will be able to make use of the leverage provided by forfeiture to obtain hazardous waste facility and transporter compliance.—/ states with more complex forfeiture procedures will not be able to exercise the same leverage. States that rely on operator self-certification (i.e., a financial test) will, in contrast, not have any forfeiture-based leverage to compel current compliance. —I SO/ See discussion supra, p. 14; see also Michigan Report, at p. 18. 51/ According to the General Accounting Office, approximately 75% of RCRA facilities are using the financial test. U.S. General Accounting Office Report "Environmental Safeguards Jeopardized When Facilities Cease Operations" RCED-86-77 (February 1986). -27 - ------- C. ADMINISTRATIVE ORDER AUTHORITIES 1. Federal The federal RCRA statute provides for several types of administrative order authorities. Section 3008(a) authorizes the basic compliance order, which permits the Administrator to direct a violator to cease the violation and to pay a civil penalty. If the violator requests a hearing within thirty days after service of the order, the order is not final until after an administrative law judge (ALJ) has upheld its validity following an adjudicatory hearing. Administrative law judge decisions are appealable to EPA's chief judicial officer (who acts for the Administrator) and then to federal district court. RCRA also provides for a §3008(h) corrective action order whereby the agency may order an interim status facility to clean up a release of hazardous constituents. EPA has recently issued proposed rules providing for review of corrective action orders. EPA may also issue §3013 information gathering orders if the presence or release of hazardous waste may present a substantial hazard to human health or the environment, and §7003 orders for cleanup of solid waste or hazardous waste that "may present an imminent and substantial endangerment to health or the environment." There is no administrative review for §3013 and §7003 orders, and EPA takes the position that there is no pre- enforcement judicial review. No civil penalty is associated with the issuance of a §3008(h), §3013, or §7003 order; violation of such an order may result in a civil penalty. EPA uses its administrative order authorities as a primary enforcement mechanism under RCRA, and evaluates state enforcement primarily based on use of state order authorities. State order authorities differ from one another, however, and often differ significantly from the EPA authorities. 2. State a. Substantive Issues The standards for issuance of state administrative orders and the scope of relief afforded by such orders are highly relevant to the effectiveness of enforcement. In most states, a compliance order may be issued when there is a violation of a statute, rule or 52/ permit condition. — In addition, nearly all of the states may issue emergency orders for imminent danger situations. Some states also may issue orders where a given condition is creating a "public nuisance" even though the condition does not itself violate a law, 527 Unlike most states, Idaho does not have a unilateral administrative compliance order, but must seek injunctive relief in court if a violator does not voluntarily comply. -28 - ------- CO / regulation or permit. —' Other states can use administrative orders to enforce their "no discharge" provisions. A number of states have adopted super fund-type orders. Table 5 shows those states in the fifteen state study that have such authority. All fifteen have some ability to require abatement by potentially responsible parties, and if such abatement is not accomplished, to do the work themselves and charge the parties for the work. Several of the states have provisions that, like the federal super fund law, enable them to charge the noncomplying parties with treble the cost of abatement. —' The states generally have more flexibility in securing relief through administrative orders than does EPA. EPA under §3008(a) can only order the violator to come into compliance; corrective action must be obtained under §3008(h) or §7003, both of which have significant constraints on their applicability (viz. §3008(h) applies only to interim status facilities, and §7003 only to imminent and substantial danger situations). Most states' compliance orders include not only coming into compliance, but also accomplishing corrective action with respect to the contamination caused by the violation. — Thus the cleanup is not split off from the cessation of the violation. Perhaps even more significant than the ability to issue compliance orders and to obtain corrective action is the ability of a number of states to issue shut-down Sfi/ orders.—' Such orders can provide extremely strong leverage to the state to obtain compliance. They plainly provide more incentive for compliance than an order that simply directs the violator to comply (an obligation that the violator already had) and that assesses a civil penalty. A shut-down remedy can assist an enforcement program substantially. A number of states have shut down operations or used this authority to obtain compliance. —' 537 See e.g., Pennsylvania Report, at p. 12. 54/ California, Illinois, Indiana, Missouri, New Jersey. 557 E.g., Maryland and Florida ("corrective action" for violation). 567 E.g., Louisiana, Pennsylvania. 577 See Maryland Report, at pp. 25-30; Pennsylvania Report, at p. 20; Michigan Report, at pp. 7-8; Connecticut Report, at p. 19; Louisiana Report, at p. 20; Ohio Report, at pp. 27-29. -29- ------- b. Administrative Order Procedures State procedures governing the issuance and review of administrative orders substantially affect the states' enforcement leverage. They influence the states' success in achieving prompt correction of violations and in securing stringent settlements in negotiation. (1) Procedural effectiveness of administrative orders Nearly every state has a provision for the issuance of emergency orders without hearing, to be followed by a hearing immediately thereafter (either as a matter of course or upon request). Ordinarily these orders are available only where there is an "imminent danger" (i.e., where the state can provide proof of imminent and substantial danger to the public health or the environment). Several states have provisions for emergency oral orders, which must be reduced to writing thereafter but which must be complied with immediately.—' The states also have non-emergency order authorities. In general, the states fall into two groups with respect to the procedures for non-emergency orders. The first group essentially follows the EPA model: an order/complaint is issued, but it is not final or effective until the violator fails to request a hearing or until after the order is upheld by an administrative law judge or the agency director following hearing. The majority of states have adopted this approach. In some of these states the order must be sought from an independent body by the filing of an administrative complaint. —/ in others the order is issued but is not final or effective until default or until it is upheld by the administrative law judge or agency director following hearing. 52/ The second group of states provides for the issuance by the agency of enforcement orders that are immediately effective. In these states administrative orders must be complied with even though a request for hearing has been made and such review is pending. Table 6 identifies the eight states in which this approach is followed. The states are Indiana, Maine, Nevada, New Jersey, Ohio, Pennsylvania, Washington and West 587 Pennsylvania, Ohio. J5J[ E.g., Illinois. 607 This is the case in the majority of states as well as with EPA. E.g., Connecticut, Florida, Missouri, New York, et aL -30 - ------- fi 1 / Virginia In each state, the law presumes that the agency has properly evaluated the basis for an order and has exercised its informed judgment in issuing the order. While the recipient of the order is entitled to review, the legislature has essentially determined that it is in the public interest that the order remain in effect while such review is conducted. The violator may obtain relief from compliance pending review only if it can show that it is entitled to a stay of the order. The burden of showing such entitlement rests go / upon the violator. 2±' in order to obtain a stay, the violator must show that it is likely to prevail on the merits of the case when it receives a full hearing, that it will suffer irreparable injury without a stay, and that the public will suffer no injury or minimal go / injury. — The Ohio review board regulations expressly provide that "except for compelling reasons justifying a stay, a stay shall be denied." The recognition that an agency order is deemed worthy of compliance in the first instance is highlighted by an additional provision in the Ohio statute that if a stay is granted, the hearing on the merits must be held immediately. Similar recognition occurs in Pennsylvania. In Pennsylvania, the violation of an administrative order that has not been stayed subjects the violator to immediate contempt of court. £!/ The existence of orders that are immediately effective renders these orders different from EPA §3008 orders. The agency obtains substantial leverage in dealing with or negotiating with violators, because it will not be tied up for months or years awaiting an eventual decision while the wrongful condition continues. An agency issuing such an order, however, must be immediately prepared to defend against a petition for 61/ Indiana differs from the other states in this group. Its statute requires the agency to wait for 60 days prior to issuance of the effective unilateral order. Indiana Report, at pp. 16-17. Three other states—Colorado, Maryland, and New Hampshire—have statutory or regulatory authority to issue immediately effective orders, but have elected to operate like the majority of states (viz.-treating the order as stayed, or not effective, pending completion of administrative review). 62/ Except in Washington, where, if the violator seeks a stay, the agency must show a "compelling reason" why the order must be complied with pending the hearing. See Washington Report, at p. 12. 63/ These stay standards are used in Maine, Ohio, and Pennsylvania. In West Virginia, the violator must only show that it will suffer "unjust hardship." There are no express standards in Indiana, Nevada and New Jersey. 647 Ohio Report, at p. 8; Pennsylvania Report, at p. 13. -31 - ------- stay. The immediately effective order serves the fundamental principles of enforcement because it enhances deference to the agency and control over the remedy, shifts the burden of proof to the violator, and requires the violator to litigate on its own time. (2) Preconditions to enforcement A significant number of states have adopted statutory preconditions to the initiation of administrative enforcement actions. — All of these states are also within the group of states that have EPA-type compliance orders (i.e., orders not immediately effective). These preconditions provide impediments to enforcement'by establishing preliminary procedural steps not required (or authorized) by the federal RCRA statute. These procedural steps may delay enforcement, provide additional bargaining leverage to violators, and immunize periods of violation from the imposition of sanctions. Table 7 sets out the states that have adopted preconditions to enforcement actions. Most of these preconditions apply to the issuance of compliance orders or other administrative orders, although a few states have also imposed such preconditions to the bringing of judicial cases against violators. —' The precondition provisions are generally of two types, both of which produce enforcement delay and neither of which encourages the prevention of violations, or the correction of violations before their discovery by the agency. Four states require that upon discovery of a violation, the agency must engage in "conference, conciliation and persuasion" with the violator as a precondition to issuing an order/complaint. 1Z/ Essentially this provision assumes that all violations are minor or accidental (i.e., will be resolved in good faith), that no importance should be attached to the failure to prevent violations, and that the agency should be compelled in all instances to negotiate first rather than to issue an order initiating the administrative process. In these states, the "clock" cannot start ticking on the eventual administrative hearing and final decision 657 Twelve states have adopted such procedural preconditions to the issuance of (or seeking of) administrative enforcement orders: Alaska, Delaware, Georgia, Idaho, Illinois, Indiana, Missouri, New Mexico, Oklahoma, Oregon, Wisconsin, Wyoming. Two other states, Massachusetts and Minnesota, have preconditions to assessment of administrative penalties, discussed infra at pp. 47-48 and 80-81. 667 Idaho, Wisconsin, New Mexico. 67/ Georgia, Missouri, Oregon, Wyoming. -32 - ------- until after this procedural hurdle has been cleared. JZ§/ The other eight states with statutory preconditions to formal enforcement require that the agency first issue a notice and allow the violator up to 30 days (or 60 days in the case of Indiana and Idaho) to correct the violation or to enter into an "agreed order" to correct the violation at some still later time, before they may issue a com plaint/order jii' These provisions are much less stringent than federal RCRA, and essentially provide a free ride or "grace" period for violators with discovered violations. This "grace" period reduces any incentive for an owner/operator to invest time and resources in prevention of violations, because an owner/operator that corrects a discovered violation is treated in the same manner as an owner/operator who never 70/ commits a violation. -i^/ The lowered incentive for preventive compliance is therefore troubling not just because of the free ride for the discovered violations but because it does not deter the many violations that are not discovered. An effective enforcement program should create a disincentive for the occurrence of any violations. —/ The worst of the preconditions are those that hamstring not only administrative but also judicial enforcement. In Idaho, for example, a violator, even one caught in a blatant violation, can always buy 60 days' grace period by requesting a conference. This type of provision is not limited to states without RCRA authorization. Wisconsin does not allow even referral of a case to the attorney general until a discovered violation has continued beyond 30 days after issuance of a notice of violation. Presumably the civil case could 68/ None of these states is one in which an agency order is immediately effective. 69/ Alaska (no set time); Delaware (30 days); Idaho (60 days); Illinois (30 days); Indiana days); New Mexico (30 days); Oklahoma (15 days); Wisconsin (30 days). 70/ EPA has evidently attempted to overcome these statutory weaknesses not through th~e program authorization process, but through Enforcement Response Policy provisions that require some penalty for High Priority violations. In these states, however, the order cannot be issued nor the penalty sought until after the violation has been allowed to continue. If rapid compliance is achieved, often the ultimate penalty is minimal 7JY In some ways, the states that provide that an order may not issue until a violation has continued for more than 30 days beyond its discovery are more troubling than those that provide a specified period for "negotiation." In the latter states the period of the continuation is not necessarily immunized. Still, there is no reason to require a grace period of "negotiation" before inaugurating formal enforcement proceedings, especially where such enforcement proceedings are also often fraught with delay. -33- ------- not be prepared and filed until still later. 1U New Mexico also bars a civil action, except in imminent danger cases, until a violation has continued beyond 30 days after a notice of violation. (3) Burdens of proof and presumptions in administrative order eases The existence of a violation is always a matter for proof by the regulatory agency if an administrative order or complaint/order is contested by request for administrative hearing. In most states, the order, if not already effective upon issuance, is automatically final and effective if no hearing is requested by the violator. In several states, however, the regulatory agency must present its case even in the absence of a request for hearing or appearance by the violator. 1^1 In any of these states when the violator requests a hearing, the agency must carry the burden of proof in order to sustain the violation and to have the order become final In those states where a violator must obtain a stay to be relieved from complying with an immediately effective order,ll/ however, the burden of proof is essentially reversed and rests upon the violator. Il/ The shift for the stay hearing provides the agencies in these states with substantial enforcement leverage. While in the subsequent hearing on the merits the agency must carry its normal burden, the stay hearing is most important because it determines whether or not the violator must comply with the order duing the months (or longer periods) that the merits proceeding is pending. Some states have established presumptions to aid the state in meeting the statutory burden of proof. One particularly useful and innovative presumption has been enacted by Pennsylvania; it has simplified both administrative and judicial cases involving proof of 72/ A number of the states with precondition provisions contend that the provisions do no harm because they have emergency authorities for imminent and substantial endangerment situations that are not subject to such preconditions. What this overlooks, however, is the effect on deterrence noted above, and the weakening of the states' negotiating position in ordinary violations, including blatant violations, because of time and procedural advantages ceded to the violator. 73/ In Illinois, only an independent board may issue an order. It reviews the evidence of the regulatory agency. 7£/ See Table 6. 75/ E.g., Maine, Ohio and Pennsylvania. (The burden in the state of Washington stay hearings remains with the agency; and the burden in West Virginia - although belonging to the violator - is relatively light). -34- ------- groundwater contamination. ' Louisiana and Florida have also enacted presumption provisions shifting the burden of proof. —' These states have found presumptions to be extremely important not only in litigating cases, but also in obtaining settlements on terms favorable to the public. T6/ The provision, 35 P.S. §6018.611, states: It shall be presumed as a rebuttable presumption of law that a person or municipality which stores, treats or disposes of hazardous waste shall be liable without proof of fault, negligence or causation, for all damages, contamination or pollution within 2500 feet of the perimeter of the area where hazardous waste activities have been carried out. Such presumption may be overcome by clear and convincing evidence that the person or municipality so charged did not contribute to the damage, contamination or pollution. IV Louisiana Rev. Stat. §30:1147.1(8): The pollution of waters of the state beneath or adjacent to any site to or from which hazardous waste has been transported or where hazardous waste has been treated, stored, or disposed, intentionally or accidentally, shall be presumed to be evidence of pollution from such site unless evidence is shown to rebut it, and the secretary may issue such orders in accordance with R.S. 30:1073 as may be necessary to contain, abate, control, and cleanup the pollution and may suspend, revoke, or terminate the operating authority of the site in addition to any other action provided by this Chapter. (Emphasis provided) Fla. Stat. §403.727(3): (a) Any person who violates the provisions of this act, the rules or orders of the department, or the conditions of a permit is liable to the state for any damages specified in §403.141 and for a civil penalty of not more than $50,000 for each day of continued violation, except as otherwise provided herein. The department may revoke any permit issued to the violator. In any action by the department against a small hazardous waste generator for the improper disposal of hazardous wastes, a rebuttable presumption of improper disposal shall be created if the generator was notified pursuant to §403.7284; the generator shall then havelhe burden of proving that the disposal was proper. If the generator was not so notified, the burden of provinglrnproper disposal shall be placed upon the department. (Emphasis provided) -35- ------- New Jersey has another approach that reduces its need for proof in issuing orders requiring ground water monitoring. It has the power to issue ground water discharge permits to involuntary recipients without having to prove the existence of the discharge^/ Conversely, some states have introduced elements into administrative proceedings that make enforcement more difficult. In Illinois, for example, if the agency proves the occurrence of the violation before the Pollution Control Board, the violator is permitted by statute to present evidence that "compliance with the Board's regulations would produce an arbitrary or unreasonable hardship." —/ (4) Attorneys' fees and expenses in administrative order cases Other procedural disincentives to enforcement include provision in some states that create a risk to the state agency. Illinois has a provision, somewhat like the federal Equal Access to Justice Act, which provides that the state agency must pay the attorneys' fees and costs of the hazardous waste defendant in an administrative hearing proceeding if the Board determines that the agency's enforcement action was without "reasonable cause and untrue." —• The prospect of paying substantial attorneys' fees following litigation before an independent board may place additional incentives on the agency to reach a settlement; it may also lead the agency to avoid bringing worthy enforcement actions where the outcome is uncertain or theory of liability is untried. In contrast, Delaware has a provision that requires the hazardous waste violator to pay the state's costs and expenses if the state prevails at the administrative hearing.!!/ This provision probably produces some incentive for the violator to reach a settlement rather than to elect to pursue a questionable position through formal hearing. 787 See New Jersey Report, at pp. 32-33. 797 I1L Rev. Stat. Ch. 111-1/2, S1031(c). Such a provision was not found in other states with administrative enforcement procedures. 80/ I1L Rev. Stat. Ch. 127, §1014.1. In contrast, the Board may award the state its costs and attorneys' fees only if the violations were willful, knowing or repeated. Ill Rev. Stat. Ch. 111-1/2, §1042. DeL Code §6006. -36- ------- c. Institutional Issues (1) Administrative review of enforcement orders A leading institutional difference among the states is that of who makes the final decision upon administrative review. There are several models. In some states, the agency director or secretary makes the final decision after a hearing before an administrative law judge results in a recommended decision (e.g., Maryland, Michigan, New York) ("ALJ/Secretary Model"). In others, the agency action is immediately effective but an independent review board or commission hears the administrative appeal and renders a decision (e.g., Ohio, Pennsylvania, West Virginia) ("Agency Final/Board Review Model"). In a few states, the agency issues an order, but an independent board or commission passes upon its validity at hearing before it is deemed final (e.g, Missouri) ("Agency/Board Model"). In still others, the agency is itself headed by a board or commission, which renders a decision based on the evidence presented before it or before an administrative law judge who renders a recommended decision (e.g., Texas, Virginia, Alabama) ("Board Control Model"). Finally, in one state - Illinois - the agency may not issue an order but must apply to an independent board for an order, which may be issued by the independent board only after an administrative evidentiary hearing at which the agency must prove its case ("Illinois Model"). —' The ALJ/Secretary Model The advantages of a system wherein the director or secretary renders the final decision are efficiency, control over the timing of review, and the fact that the ultimate decision is made by an official who is publicly charged with enforcement and protection of the environment as part of his or her official public duties. The vulnerability of such a system is that it may be perceived as unfair or "stacked" against the regulated community because the authority issuing the order is also responsible for passing upon its validity. As a result, courts reviewing such a decision (even if an administrative evidentiary hearing has been held) may give the administrative decision less deference than they otherwise might (even if the courts purport to apply the usual "substantial evidence" judicial review standard for review of agency decisions). 82/ Delaware has a hybrid system. There the agency order is subject to review by an administrative law judge with final review by the agency director (the Secretary). The Secretary's final decision, however, is itself reviewable by the Environmental Appeals Board rather than in court. See Delaware Report, at pp. 1-3. -37 - ------- The Agency Final/Board Review Model Those states in which the director or secretary issues immediately effective, final orders that are then subject to administrative review by a separate board upon appeal have the advantages of the ALJ/Secretary Model The system is, however, insulated from the perception of unfairness (and from judicial second-guessing) by the availability of an independent forum for review. They avoid the disadvantages of subservience to the independent board as under the Illinois system or the Agency/Board Model, moreover, because of the ability to act by issuing an immediately effective final order. The Agency/Board Model Those states in which the agency issues an order that is not final or effective during the pendency of administrative review by an independent board, have some of the advantages of the first two groups, but are disadvantaged by depending upon the board to act promptly. The may also be disadvantaged to the extent that the reviewing board membership by law represents various interest groups (e.g., Wyoming, Missouri) or takes a different view of enforcement than the agency. The Board Control Model States in which the review board also directs the agency (e.g., Texas, Virginia) share some of the advantages and disadvantages of the first three groups. Essentially, however, they lack the flexibility of agency director-headed review while not providing the "independence" of the independent board. The Illinois Model The unique Illinois system poses problems. There the agency is utterly dependent for orders upon an independent board, which has no enforcement function itself. The agency is unable to act, or even to settle a case upon consent with a violator without approval and entry of an order by the board. This gives it even less enforcement flexibility than systems that rely entirely upon judicial enforcement, or that rely solely on injunctions to enforce administrative orders (e.g., those that lack administrative civil penalties). The agency must constantly calculate whether it can persuade the board to act, to act quickly, and to sustain the proposal to take an action. The board, for its -38 - ------- part, is entirely free to give no deference to the agency. 511 The state agency's experience under the Illinois system raises serious questions of institutional 84/ organization.— Systems in Use Table 8 identifies those states in which the final administrative decision before judicial review is made by the agency director or secretary. Twenty-eight states fall into this group. Thus, the final administrative decision under review by the courts in these states is the one made by the chief enforcement official. The remaining states fall under one of the board-type review systems. The distinction of greatest importance among these board systems is whether the order under review by the board or commission was or was not immediately effective upon its issuance by the agency director. See Table 6. Resources The allocation of sufficient resources to staff the administrative review process is also an important institutional issue. Despite having adequate administrative order authorities, Louisiana, for example, has encountered difficulty in administrative enforcement because of a critical shortage of hearing examiners. Because its orders are not final or effective pending completion of administrative review, this deficiency has produced significant difficulties for effective enforcement. —' Most states do not require that their hearing examiners be lawyers, but in practice many of these positions are held by lawyers. The use of non-lawyer hearing examiners has presented obstacles to timely and reliable enforcement in some states. For example, 83/ One commentator, curiously, argues that Illinois has the best institutional system because of the total independence of the board from any enforcement function, and the total dependence of the agency upon its persuasive powers to obtain relief from the board through formal presentation of evidence. Currie, Enforcement Under the Illinois Pollution Law, 70 Northw. U.L. Rev. 389, 444-49 (1975). Currie. State Pollution Statutes, 48 U. Chi. L. Rev. 27, 69 (1981). Essentially, this system has all of the disadvantages of a court, with few of the advantages (since its decisions are themselves reviewable in a county court). 84/ See Illinois Report, at pp. 4-5, 18-20. See also p. 78 (Section III). This system has been responsible for a fairly significant number of referrals to EPA Region 5 for enforcement. 857 Louisiana Report, at pp. 25, 27. See also Illinois Report, at pp. 18-19. -39- ------- because many of the New York Department of Environmental Conservation hearing examiners are non-lawyers, while the environmental defense bar is fairly sophisticated, agency lawyers have been somewhat reluctant to take an administrative order to hearing. This reluctance arises from concern both with administrative delay and the possibility of an undesirable result arising from this institutional factor. Accordingly, an impetus for negotiated settlement (beyond that normally present in most cases) may be supplied by this institutional feature. —/ (2) Judicial review of administrative enforcement decisions The ability of a state to ensure that review of administrative enforcement action occurs in a single designated court appears to be important to effective enforcement. In the majority of states administrative enforcement actions are judicially reviewable in the local court (usually the trial court, although sometimes the regional appellate division) for the county where the violation was committed or where the violator maintains its place of business. This provision for judicial review in the local court occurs in many states even where the administrative hearing (conducted by the administrative law judge, the agency director, or the independent hearing board) is centralized. Thus even though the administrative review process may have been conducted centrally, judicial review often reverts to the local court. These local courts ordinarily hear very few hazardous waste enforcement cases or environmental violations of any type. As a result, in each instance the state agency, or attorney general, must educate the court as to the reasons underlying the system of hazardous waste regulation, the basis for listing hazardous wastes, the unusual strict liability concepts often applied to hazardous waste violations (e.g., a release is a "violation" in most states, irrespective of whether there was "fault" on the part of the party responsible for the release), and other issues. Because these concepts and their applications are unfamiliar to many of the judges, the local courts frequently borrow on their experiences with other—quite inapplicable—types of cases of administrative review (e.g., zoning appeals, liquor license revocations). —/ In addition, the local factor often works in favor of a violator that either is, or is associated with, a major employer in the community. Administrative 86/ New York Report, at p. 16. 87/ By way of example, the penalties associated with hazardous waste violations are far higher than those associated with many other types of conduct (including willful or directly injurious behavior). Local courts are reluctant to uphold such penalties, based on their experiences with other types of administrative cases. -40- ------- enforcement decisions appear less likely to be second-guessed when the review is conducted by a single centralized court. Whether the reviewing court is a trial court or an appellate court appears to make far less difference than the venue. In either court, review of administrative actions is generally conducted by a judge who scrutinizes the existing administrative record and 00 / does not hold a trial or take new testimony. — It is possible, however, that the state might be better off in an appellate-type court even for such record review, because (1) appellate judges are arguably more accustomed to applying a standard of judicial deference to decisions under review, and (2) the violator may be less likely to appeal an adverse decision of an appellate court because the next appeal is to the state supreme court (rather than to an intermediate appellate court, as would be the case if review were in the trial court)»S:L' Table 9 sets forth the venue for judicial review of administrative enforcement final decisions in the fifteen major study states. —• In ten states, the judicial appeal is Ql / decided by a local trial court or local appellate court. —' In five states, the appeal is no/ decided by a central court. — The central venue and experience of the reviewing court. can be extremely important to an enforcement effort. One Pennsylvania official, for ex- ample, identified the Pennsylvania Commonwealth Court (a central court that handles all appeals from Environmental Hearing Board decisions), as the most important advantage the state has in its enforcement efforts. In contrast, the need to rely on local courts in 88/ There are some exceptions. North Carolina offers violators denovo judicial review of administrative civil penalty cases. See discussion infra at pp. 48-49, 82-83. 897 This second point has less significance in those few states (e.g., Nebraska) that have only a two-tiered judicial system. 907 The designation of a venue for judicial review is not evidently controlled by the size of the state. For example, while California requires that judicial appeals be in a local court, Texas appeals are heard centrally. 917 California, Indiana, Maryland, Michigan, Washington (local trial court); Florida, Illinois, New Jersey, New York, Ohio (local appellate court). 927 Connecticut, Missouri, Texas (central trial court); Louisiana, Pennsylvania (central appellate court). -41 - ------- many states may undermine effective and uniform enforcement.—'' Other judicial review provisions may provide cause for concern. In Iowa, for example, a person who has complied with an order issued by the agency may, in addition to taking a direct appeal, seek relief from the order in a local court within six months "on the grounds that the requirements imposed by the order are excessive, that the benefits to society are not commensurate with the costs of complying with the order and that society can be protected in a less costly manner." The court may modify or vacate an order "[u]pon a finding that the requirements imposed by the order are excessive."—/ (3) Assignment of legal representation for administrative enforcement cases A third significant institutional issue is the assignment of legal responsibility for the preparation and presentation of administrative enforcement and administrative enforcement review cases. The most important factor (apart from staffing levels and the adequacy of funding) is whether or not the same attorneys are responsible for handling both administrative and civil judicial enforcement cases. Table 10 identifies the. division of administrative and judicial representation responsibilities in the fifty states and the District of Columbia. A significant number of states (39) have combined these responsibilities, either in the state's attorney general's office or the office of agency counsel. Table 11 identifies the breakdown. Of the major states analyzed in the fifteen state study, eleven combined these responsibilities. See Table 12. A significant advantage of unifying administrative and judicial enforcement responsibilities in a single office is that the choice of proceeding administratively or judicially can be made primarily on the basis of optimum effectiveness rather than for QC / institutional reasons. — Other factors also have an impact, however. Artificial 93/ See also discussion of direct judicial enforcement actions in local and central courts, infra, at pp. 56-58, 84. 94/ Iowa Report at p.3. In Oklahoma, an administrative order "shall" be stayed on appeal to court if the recipient submits an affidavit of "irreparable impairment" of its rights, and posts a bond. Oklahoma Report, at p.2. 95/ For example, administrative cases in Texas are handled by agency attorneys and Hvil cases by assistant attorneys general. Since adopting administrative penalty authorities, Texas has initiated almost no civil actions, in substantial measure because of this institutional division. Texas Report, at pp. 21-22, 24-25. In contrast, in Maryland the assistant attorneys general handle both types of cases. The choice of a civil judicial remedy is hence not influenced by these institutional issues in Maryland, and is used to a greater extent. Maryland Report, at p. 21. -42 - ------- constraints may force a choice of administrative remedies even in some states that have the same attorneys handling both types of cases. For example, some states do not involve attorneys in case preparation, but only in the handling of the administrative review case after the administrative order was issued by non-lawyer enforcement 967 personnel Still other states require a formal referral to initiate a civil action, even though the same attorneys handle both civil actions and administrative review 977 proceedings Such states operate much more like those in which there is a formal separation of functions. The unification of enforcement functions is an important institutional distinction between many of the states and EPA. EPA is often constrained to select administrative enforcement, in part, because of the difficulty of referring a case for judicial action (viz. - regional and headquarters approval, litigation report and case development, referral to U.S. Department of Justice (DOJ), eventual filing in district court by DOJ or U.S. Attorney). In contrast, most states have much readier access to their courts. Part of this ease in access comes from the unification of functions in the same legal staff in many states. (4) Inspection effects on administrative enforcement The allocation of agency resources to detection of violations can affect administrative order enforcement. For example, Maryland has emphasized inspection as an enforcement tool in its own right, and has allocated substantial enforcement resources (proportionally) to this function. It inspects TSD facilities, generators (and transporters) with much greater frequency than EPA requires, and substantially more often than many other states. This "show-the-flag" approach is an enforcement strategy designed to no I enhance prevention of violations. — The impact of this allocation is difficult to measure in real terms. The frequent presence of inspectors is likely to result in the detection of more violations, and hence more enforcement actions than in those states with less frequent, or infrequent inspections. On the other hand, the same presence 967 E.g., North Carolina. These states are deprived of the advantage of attorney evaluation of potential remedies (except informally) because of the timing of the first attorney involvement in administrative enforcement. 977 E.g., Missouri. See discussion infra, at pp. 54-55. 987 See Maryland Report, at pp. 15-16. The New York approach of having a permanent onsite state inspector at land disposal facilities is another variation on this strategy. -43 - ------- should also reduce the incidence of violations by increasing operator vigilance and prevention. Because federal oversight is concerned with the number of enforcement actions taken, the result for oversight purposes may appear as a "wash." A different oversight approach may more accurately reflect the effectiveness of this institutional priority. Another inspection-related approach is that taken by Colorado. Colorado requires that the state provide advance notice of inspections to TSD facilities, generators and transporters unless there is either "an emergency" or the agency has reason to believe QQ / that an "unlawful" act is being committed or will be committed. — Plainly, the activity detected in the course of an announced inspection will not necessarily be the same as that which would have been detected otherwise. -^- Thus the Colorado approach is likely to lead to a reduced detection of violations. Advance notice may encourage quasi- voluntary compliance (at least immediately before the inspection), thus reducing the need for formal enforcement actions to bring facilities into compliance. Essentially, however, the Colorado approach completely foregoes the element of general deterrence (compliance by all members of the regulated community through fear of detection) in exchange for ease in obtaining specific compliance ("voluntary" correction of violations by the specific operator that knows it will be inspected). -^-' 99/ See Colorado Report, at p. 6; see also Table 7. 100/ At a minimum this statutory impediment will lead to successful concealment of intentional violations. 101/ See discussion at pp. 5-6, supra. -44 - ------- D- ADMINISTRATIVE AND JUDICIAL CIVIL PENALTIES 1. Federal Under §3008 of RCRA, EPA has the authority to obtain civil penalties either through administrative order, followed by opportunity for administrative review, with judicial review in federal district court, or through filing a civil suit in federal district court against the violator. Both the administrative penalty and the judicial penalty are authorized up to $25,000/day and apply to the underlying violation as well as to any violation of an EPA administrative order. EPA also may obtain $5,000/day penalties in federal district court for violation of §3013 and §7003 administrative orders. EPA relies on civil penalties as the chief enforcement mechanism under RCRA. EPA has not required the states to have both administrative and judicial civil penalties in order to receive final program authorization, but only the ability to proceed either administratively or civilly. 40 CFR §271.16. 2. State a. Description of Existing Civil Penalty Provisions Just as the federal enforcement system uses civil penalties as the chief deterrent and enforcement mechanism, so do the hazardous waste enforcement programs of most of the states. Despite their limitations in comparison with permit-based enforcement mechanisms and shut-down orders, civil penalties are the focus of many of the states' enforcement efforts, and compelled by federal oversight of these efforts. Table 13 delineates the administrative and judicial civil penalty authorities of the fifty states and the District of Columbia. Forty-four states have the authority to seek civil penalties in direct judicial enforcement actions against violators. Twenty-three of these states have only judicial civil penalty authority and cannot assess administrative civil penalties. Twenty-eight states have authority to assess administrative penalties unilaterally (i.e., without the consent of the violator). -^/ of the twenty-eight states with administrative civil penalty authority, twenty-one have judicial civil penalty 102/ Several other states (e.g., Virginia, Idaho) claim that they have "administrative civil penalties" because they are authorized to obtain a violator's agreement to pay such penalties absent a court case. Of course, any state may obtain compromised penalties upon agreement by the violator. (See e.g.. Maine Report, at p.4; Florida Report, at p.16; Ohio Report, at p.24). Therefore, these states have not been classified as possessing administrative penalty authority. -45 - ------- authority. In seven states, the administrative process is the only procedure for imposing civil penalties. -^-' The agency cannot file suit in court and seek a civil penalty; the penalty must be assessed administratively. —^' Because EPA did not require states to have administrative civil penalty systems in the initial round of state authorizations under RCRA (i.e., pre-1984 HSWA), many of the states have not elected to enact such provisions. Twenty-two states and the District of Columbia currently lack administrative penalty provisions for hazardous waste. ^/ This group includes four nonauthorized states (vte.-Alaska, Idaho, Maine, Wyoming). Chart 2 shows those states that have hazardous waste administrative civil penalty authority. In general, such authorities are found in the Deep South, the West Coast and the Mid-Atlantic States. Central Appalachia, the Great Basin states, northeastern New England and Florida, are the areas generally lacking these authorities.-!^ In the last three years a growing number of states have moved to adopt hazardous waste administrative civil penalty authority (e.g.. Alabama, California, Connecticut, Massachusetts, Minnesota, New Mexico, Texas). No state has repealed such authority. Of the fifteen states studied in depth, eleven have administrative civil penalty authority. See Table 14. It is important, however, to distinguish among the civil penalty authorities of the states. Administrative penalty authorities can vary dramatically. For example, Oklahoma has an extremely limited administrative civil penalty provision. It authorizes administrative penalties only for violation of an order—not for a violation of law, a regulation, or a permit. Other states have authorized only limited amounts for administrative penalty assessment, apparently not wishing to entrust an administrative 103/ Arkansas, Georgia, Mississippi, North Carolina, Oregon, Tennessee, Washington. 104/ In these states the courts become involved with civil penalties only if the violator appeals from the final administrative determination (i.e., judicial review); or if the violator refuses to pay and the agency must file for entry of a judgment allowing it to use judgment enforcement procedures (such as seizure of assets) to collect the administratively assessed penalty amount (i.e., enforcement of the final order). 105/ Some of these states have administrative penalties for other environmental programs, however. E.g., Surface Mining Act violations (Colorado, Wyoming, Ohio, Kentucky, West Virginia, Virginia). 106/ The upper Midwest is divided among states having and lacking such authority. -46- ------- Montana Idaho Nevada Utah Arizona Hawaii Wiscon- Missouri Vy Kentucky ^ M \ Indi amia/ Virginia Maine Rl o -DEL > Sd •D > cn o t-> 2: H I-H -< CO -6 > 50 C > H ^ 5G M O < ------- agency with quite as much essentially "penal" authority as the legislature is willing to entrust to the courts. -i5Z/ b. Procedural and Institutional Obstacles to Civil Penalty Enforcement Several states have very recently adopted administrative penalty provisions with "preconditions" to enforcement not shared by the EPA administrative penalty scheme.-^/ These preconditions are shown in Table 7, supra. Massachusetts allows the assessment of administrative (in contrast with judicial) penalties only where a written notice of noncompliance has first been issued and the violator has failed to bring the facility into compliance within a "reasonable time" specified in the notice. -iPJL/ Minnesota enacted its administrative penalty provision in 1987. The new provision limits administrative penalty assessments to a maximum of $10,000 for all violations identified in any inspection regardless of the number of violations or days of violation. It further provides that the violator must be given 30 days to correct the violations (regardless of the number or seriousness of the violations or the violator's ability to correct them faster than in 30 days), and that the administrative civil penalty "must be forgiven" if compliance is achieved within 30 days or "appropriate steps" have been taken. This new provision is illustrative of potential problems raised by administrative penalty enactments not closely monitored by federal oversight. Although it was intended to add a new authority to pre-existing enforcement authorities, its effect (if used) may be to undermine enforcement. For example, if the agency elects to proceed administratively against violators, it essentially foregoes any opportunity to penalize them, as the penalty "must be forgiven" if they thereafter comply. The new provision also creates a grace period (30 days) of sanctioned noncompliance, in contravention of the fundamental 107/ E.g., Maryland ($l,000/day with $50,000 "cap"); Iowa ($l,000/day); Massachusetts ($l,000/day; except for major violations, up to $25,000/day); Minnesota ($10,000 per inspection). Some such "limitations," however, are so minor as to produce little or no practical difference between the capacity of administrative penalty assessment and judicial assessment. E.g., Alabama (administrative civil penalty of $25,000/day "capped" at $250,000); Texas (administrative civil penalty limited to $10,000/day, while maximum judicial penalty is $25,000/day). 108/ Massachusetts and Minnesota. See also discussion at pp. 80-81, infra (Section III). 1097 Mass. Gen. Laws, Ch. 21A-16. Such a prior notice and "reasonable time" requirement does not apply if the violation was part of a pattern, was willful, resulted in "significant impact on public health, safety, welfare or the environment," or consisted of failure to report any unauthorized disposal of hazardous waste or any unauthorized release or discharge of hazardous material into the environment. -47 - ------- principles of effective enforcement. 1I2/ The enactment of provisions like these may hamper enforcement even if the parallel judicial remedies remain without preconditions. There are strong institutional pressures to use administrative penalties when the agency has such power. These include the fact that the agency controls the process, can avoid depending on other agencies and personnel, and can routinize the enforcement process (orders, penalties, hearings). Because of these factors, EPA makes almost exclusive use of its RCRA administrative enforcement authorities rather than using judicial authorities. Similarly, when Texas adopted administrative civil penalty authority in 1985 (as an addition to its existing judicial authority), use of the judicial tools virtually disappeared. ILL/ This perfectly predictable response can be problematic jf the administrative tools are not adequate or if they contain provisions or conditions that hamper agency enforcement. Thus, it is not sufficient that either the judicial or the administrative process can be found effective under the principles of effective enforcement; if a state has both systems, the administrative system must be effective in order for the enforcement program to operate effectively. -LL1/ To the extent to which EPA is considering requiring states to adopt administrative penalty authorities, it must be cognizant of the potential weaknesses in such authorities. Careful oversight of the authorization process will be needed. The North Carolina system of administrative penalties raises serious enforcement concerns. The other six states that have only administrative penalties provide that judicial review of the penalty shall be conducted on the administrative record made IIP/ The provision, Minn. Stat. §116.072(1)-(11) (1987), also has other peculiarities. It allows the violator to choose between administrativeTeview of the penalty before an administrative law judge, or direct review in a local district court. The agency retains the burden of proof; thus, the provision essentially is a judicial penalty provision (at the violator's option), but with a $10,000 "cap" and a forgiveness provision. Ill/ See Texas Report, at pp. 21-25. The overall study indicates that particularly where states have divided the duties for administrative and judicial cases among different attorneys, in those states where administrative penalties exist judicial enforcement is reduced significantly. 112/ Because of the strong institutional incentives to use administrative procedures and remedies where they exist, it is even more important that the administrative system be strong and free of conditions. To the extent to which Massachusetts and Minnesota use their administrative penalty authorities, their programs may arguably have been somewhat weakened by the addition of new remedies. See also discussion at pp. 80-81, infra (Section III). -48 - ------- during the administrative review proceeding, and that the assessment shall be upheld if the administrative decision is supported by substantial evidence in the record. -^^ The North Carolina law, however, grants the violator de novo judicial review of the penalty on appeal This means that in order to prevail against a violator in a civil penalty case, the state must be able to prepare it and win it twice. The violator need only win 1147 once.—- This system, therefore, is essentially a judicial civil penalty system, except that the violator gets one "free bite" during an administrative hearing on the penalty. This system gives significant advantages to the violator not present in the federal RCRA enforcement program nor in any other state's civil penalty system. Finally, state administrative civil penalty provisions differ as to how such penalties are assessed institutionally. Eleven states in the fifteen state study have administrative civil penalty authority. Of these, eight proceed by issuing an order containing a penalty assessment, which is subject to review upon the violator's request for an administrative hearing. In three states - California, Illinois, and Maryland - the state must itself request an administrative hearing for the purpose of imposing a civil penalty. See Table 15. In practice, however, this operates much like the administrative hearing process in the other states, 1137 This is also the standard of review in the other states that have both administrative and judicial civil penalties. 1147 If the violator wins at the administrative level, the case is over. If the violator loses, it may by appealing obtain a new hearing in court where it has another chance to prevail. 1157 The only significant difference is in Illinois where the independent hearing board— the authority that issues the penalty assessment in the first instance—is in some respects less inclined to uphold the administrative penalty amount sought. -49 - ------- E. CIVIL JUDICIAL ENFORCEMENT 1. Federal Under RCRA §§3008, 3013 and 7003, EPA may seek injunctive relief as well as civil penalty relief in federal district court. Cases are developed by EPA's regional offices, but must be formally referred through headquarters to the Department of Justice, where they are again evaluated. EPA generally uses judicial relief as a last resort, or in cases where administrative enforcement has already proven ineffective. Judicial action has not been emphasized as a primary RCRA enforcement method. 2. State Use of judicial enforcement of the hazardous waste laws is more important in the states than to EPA. For the most part, the states do not face the same institutional and procedural obstacles that EPA does in getting a case brought to court if the enforcement agency elects to proceed judicially. Several states rely almost entirely on judicial enforcement or the threat of judicial enforcement to obtain compliance (including operator assent to negotiated administrative orders). Many states actively use a mix of judicial and administrative tools. The injunction is the most important civil judicial enforcement tool Court-ordered compliance is enforceable not only via civil penalties, but by the judicial contempt power, which can include both fines and imprisonment if a defendant fails to comply. Such fines and imprisonment may continue indefinitely if the defendant fails to comply. Injunctions are used by the states both in emergency and non-emergency situations. There are substantive, procedural, and institutional features of the civil judicial process in each state that affect enforcement and enforceability. Most of these features apply equally to injunction actions and to the judicial civil penalty actions discussed supra. It is common for a civil complaint filed in court to seek both injunctive relief and a civil penalty, although for tactical or procedural reasons a state may elect to seek only injunctive relief and defer its request for civil penalties. a. Substantive Issues (1) The standard for issuing an injunction The most critical substantive issue is what the states must prove in court in order to obtain an injunction. The common law injunction standard ordinarily requires that a party seeking an injunction must prove first that it has no adequate remedy at law, and -50- ------- then prove that (1) it will be irreparably injured absent the injunction, and (2) the opposing party will be only minimally injured (if at all) by entry of the injunction. - There is, however, substantial case law supporting the proposition that where the legislature has declared an action to be a "violation," the government need only prove the commission of the violation in order to obtain an injunction ordering compliance. -i-LL' The logical rationale underlying these cases is that the legislature has made a legislative determination of these other factors by defining the conduct as a violation in the first instance. Thus, proof of the fact of violation is all that should be needed in order to obtain an injunction. Table 16 shows the standard for obtaining an injunction in the fifteen major study states. In most of these, the state need only prove the fact of violation. In several states, however, the state must also prove the other injunction elements. Sometimes, the standard is not clear; and particularly in those states where suit must be brought in local trial courts, judges may require proof of irreparable injury and balancing of the equities despite case law supporting the issuance of an injunction upon mere proof of the 118/ violation. -=-^-' In Missouri, the legislature has specifically barred the courts from granting the state a preliminary injunction or temporary restraining order unless the I I Q / state can prove both irreparable injury and the lack of an adequate remedy at law. —- 1167 In preliminary injunction cases, the party seeking the injunction must also prove that it is likely to succeed as a matter of law when the court hears the full case on the merits. 1177 This is arguably the case even for federal RCRA injunctions even though the courts may retain some "inherent" equitable discretion. Environmental Defense Fund v. Lamphier, 714 F.2d 331 (4th Cir. 1983) (proof of violation sufficient for injunction). 1187 In Pennsylvania injunction cases the state never has to present evidence of harm (or lack thereof), and violators are not permitted to introduce evidence that the violation did not produce harm. This simplifies case preparation and eases the burden on the state in accordance with the fundamental principles of effective enforcement. In contrast, in neighboring Maryland despite some case law supporting the proposition that proof of a violation is sufficient, the assistant attorneys general nearly always must prepare and present evidence of harm to the local circuit court judges in order to obtain an injunction. New York and Indiana have had similar experiences. 1197 See Missouri Report, at p. 24. R.S. Mo. §260.420.2. Idaho (not one of the fifteen major study states) requires proof of "long term irreparable damage" or an "imminent hazard" for an injunction. Mississippi requires proof of irreparable injury or an imminent and substantial endangerment. -51 - ------- Most states, but far from all, appear to authorize entry of an injunction upon proof of the violation. -^2.' Massachusetts has a variation on this approach. Its law creates a "rebuttable presumption" that any violation constitutes irreparable injury, thus satisfying that element of proof. This is, however, weaker for enforcement purposes than a standard that excludes evidence of harm, or lack thereof, and requires only proof of the fact of violation. —/ (2) Public Nuisance Many states are able to seek injunctions against releases and other potentially damaging conditions under common law principles of "public nuisance." This remedy is not available to the federal government. The doctrine of public nuisance allows the state to require anyone injuring the public health and welfare to cease doing so, regardless of whether the condition causing the public nuisance is itself prohibited by any law. -I^/ New York and Pennsylvania, among other states, have made substantial use of the public nuisance doctrine in groundwater and hazardous waste enforcement. It is not ordinarily usable in administrative proceedings as it is a judicially-created remedy. Public nuisance gives the states the ability to deal with (1) issues involving the so-called "innocent landowner," and also (2) situations where a physical condition is producing public harm even though the nature of the "violation," if any, may be uncertain or 1 00 / obscure, as well as with other issues. -i-=^-' State public nuisance injunction actions may be used only to abate the nuisance (i.e., to accomplish corrective action, cleanup, monitoring). They do not support the assessment of penalties or fines, or recovery of damages by the state. Such remedies must be sought on a statutory basis in a different action, or in a separate count of a 1207 See Table 16. Also other states, e.g., Arkansas, Kansas, West Virginia. 121/ Massachusetts Report, at p.4. 122/ See Halper, L., "Public Nuisance and Public Plaintiffs: Rediscovering the Common Law," 16 Environmental Law Reporter 10292 (October 1986) and "Public Nuisance and Public Plaintiffs: Ownership, Use and Causation," 17 Environmental Law Reporter 10044 (February 1987), and cases cited therein. 123/ Such enforcement problems can be potentially troubling for EPA, which is limited to its defined statutory and regulatory jurisdiction, definition of violations, and prescribed rights and remedies. Public nuisance judicial actions enable the states to accomplish actions that may be difficult for EPA. -52 - ------- lawsuit. b. Procedural Issues (1) Statutes of limitations One potential obstacle to judicial enforcement is the "statute of limitations." Such statutes basically provide that a court action must be brought within a specified period after the commission of a wrongful act, such as a violation, or it may not be brought at all. Such limitations do not apply ordinarily to public nuisance suits, but do apply to suits for injunctions or penalties based on statutory violations. Several states have fairly short statutes of limitations. For example, Maryland has a one-year statute of limitations for judicial civil penalties. Alabama has a two-year statute of limitations for both administrative and judicial civil penalties; Idaho has a two-year statute of limitations for judicial enforcement actions. In contrast, Pennsylvania's statute provides that for hazardous waste cases, the statute of limitations is twenty years. -^1' The shorter statutes may pose serious problems where violations are not immediately discovered, or where the violation was known to the state (at least in part) and enforcement resources and priorities did not enable the state to get to the violation in time. (2) Recovery of fees and costs One significant feature of some states' judicial enforcement remedies is the ability to recover investigative costs and attorneys' fees and expenses from the violator. The usual common law rule in the United States is that each party bears all of its own costs and expenses regardless of the outcome, except that certain minimal court costs (usually filing fees, transcripts, and witness fees) are assessed against the loser and awarded to the prevailing party. Some of the states have modified this rule by statute in favor of the state as plaintiff. Illinois and Minnesota permit such recovery by the state only if the violation is "willful." In Texas judicial civil penalty cases, however, the attorney general may recover attorneys' fees and investigative costs and expenses from the defendant whenever the state prevails. This has been a powerful incentive both for compliance and for settlement by defendants before trial. West Virginia may also 124/ 35 P.S. §6018.617. -53 - ------- recover costs and attorneys' fees. 125/ c. Institutional Issues (1) The decision to take judicial enforcement action In most states the decision to proceed administratively or through a civil court action is made routinely by the agency director or enforcement staff, or is not made at all in those states where all matters are usually handled administratively unless compliance or negotiations break down. As we have seen, the division of responsibilities between attorneys handling civil cases and those handling administrative cases may also have a significant impact on whether a case is pursued judicially. Usually, however, the decision to take a judicial approach is an internal, informal decision made by the agency or its lawyers (including the assistant attorneys general assigned to it). The fifteen state study, however, revealed two states with unusual formal referral systems. See_ Table 17. These states - Texas and Missouri - require the director of the agency (or the enforcement staff) to present a formal petition for referral before the board that renders final administrative decisions on administrative enforcement 1267 actions.-^- In each state, the violator is notified that the referral request will be considered by the board, and is given an opportunity to appear and present argument on why the matter should be handled administratively or otherwise not referred to the attorney general. In each state, the board then votes on whether or not to refer the case. This procedure is extremely unusual in that (1) it enables the violator to get an advance look at the state's case; (2) it gives the violator a basis to resist a subsequent administrative enforcement action if the board votes jiot to refer (i.e., thereby showing some sympathy for the violator's legal or technical position in advance of the case reaching the board on eventual administrative review); and (3) it gives the violator an opportunity to attempt to stop an enforcement action entirely on the basis of a brief presentation, which is not subject to cross-examination or other testing. These opportunities and the public nature of the process provide some internal incentives for the agency to proceed administratively even when a judicial referral might be more 125/ In Alaska, either party may recover its attorneys' fees and costs if it prevails. 1267 In Missouri, this is the independent seven-member Hazardous Waste Management Commission. In Texas, this is the three-member Water Commission that controls the agency. (In California, referrals to the attorney general by the Water Resources Control Board may also be subject to hearing. 23 CaL Admin. Code §648.) -54- ------- 127/ appropriate. -tu it appears that the less formal the referral process, the more likely it is that judicial action will be taken. (2) Attorneys handling judicial enforcement eases We have previously discussed the significance of the handling of administrative cases by the same attorneys that handle judicial cases. -^I/ More active civil judicial enforcement efforts appear to occur in those states where the same attorneys handle both types of cases. Where there are different staffs of attorneys (i.e., agency counsel and attorney general), fewer cases seem to get referred. This is particularly true where the agency has administrative civil penalty authority. It is important to note not only whether the same attorneys handle both administrative and judicial cases, but also which attorneys have these responsibilities. Table 10 identifies the assignment of hazardous waste enforcement attorneys in the fifty states and the District of Columbia. Nothing of significance can be said concerning whether it is better to have agency attorneys or assistant attorneys general handling civil enforcement cases. -^JL In Florida, however, the agency attorneys have felt themselves constrained to use only their agency statute in civil actions rather than the whole range of authorities and remedies available to the state. ^/ To that extent, the allocation of civil litigation functions to agency counsel is somewhat weaker for enforcement purposes than civil actions by the attorney general. In contrast, Pennsylvania's agency counsel use all types of causes of action and available state remedies in their civil cases. 127/ Relatively few cases have been presented for judicial referral in these states. 128/ See discussion, supra, at pp. 42-43; Table 9, Table 10. 1297 It does seem apparent, however, that each of these is preferable to heavy reliance on district attorneys (sometimes known as states' attorneys). There is generally a lack of uniformity in enforcement, and differing levels of commitment from county to county, where these attorneys are the primary civil enforcers (e.g., California, Idaho, Nebraska). 130/ See Florida Report, at pp. 1, 14. -55 - ------- Nineteen states employ agency counsel for administrative cases; ten of these have agency counsel litigate their civil enforcement cases as well. -^-^ An advantage of having "in-house" counsel try both administrative and civil cases is familiarity with the enforcement procedures, as well as involvement in early stages of investigation, case development, and potential case development. A number of states that rely on assistant attorneys general lack these advantages (even where the assistant attorneys general handle administrative as well as civil cases). In a significant number of states, the assistant attorney general has no involvement in an administrative case until an administrative hearing has been requested on an enforcement action already taken. ^-' This means that in these states there is no opportunity for attorney-supervised case development until after the agency has already staked out its position and taken the action at issue. (3) Court in which a civil judicial enforcement action may be filed The location (venue) for direct judicial enforcement actions is an important institutional feature in state enforcement. In almost every state the violator may be sued only in the county where the violation occurred or where it maintains its place of I 00 / business. -^- This requirement means that the state will often be litigating before a trial court that lacks experience in the hazardous waste regulatory scheme. Such courts, as noted above, may be reluctant to impose the strict "violation" standard as the basis for granting an injunction, and may be unsympathetic to stringent state penalty schemes. In addition, whether or not this is the case, there may be wide disparity in the results of enforcement cases brought in different counties. 131/ Seven more states have assistant attorneys general specially designated as agency counsel and permanently assigned to the agency. These attorneys handle both administrative and civil litigation. Essentially, then, seventeen states have their civil litigation as well as administrative litigation conducted by "in-house" attorneys. (This includes five of the fifteen major study states.) 132/ E.g., North Carolina, Missouri, Washington, Georgia. In Vermont, administrative cases are handled by non-attorney agency personnel. The attorney general becomes involved only if the final administrative decision is appealed or if a direct judicial enforcement action is needed. 133/ This local venue provision is found even in several states that require judicial review of administrative appeals to be conducted in a central court, e.g., Texas, Missouri, Louisiana. See discussion supra, at pp. 40-42. -56- ------- Several states have attempted to overcome these difficulties by authorizing the agency to file suit in a single court. Table 18 shows those states in the fifteen state study that enjoy this option. Pennsylvania's Commonwealth Court, for example, serves not only as an appellate court for the review of all administrative cases, but also as the trial court for any case brought by the state (or against the state), -^l/ Connecticut environmental cases may be brought either in the superior court for Hartford, or the local superior court. Important enforcement advantages flow from the ability of a state to control the selection of the forum, and to prevent the defendant from doing so. Some states with central venue provisions allow transfers to take this choice away from the state. In Michigan, for example, judicial enforcement cases may be brought, at the option of the state, in either the circuit court for Ingham county (i.e., a central forum) or in the county where the defendant resides or does business. Unfortunately, some defendants have successfully persuaded the central court to transfer the case to a local circuit court. This underscores the importance of having the state control the selection of forum, and of making that selection sustainable. -^' In Indiana, the state may bring suit in any court for a county where the state agency maintains an office (i.e., a central court), or in the county of the violation or the residence or place of business of the defendant. Each party, however, has the chance to change the venue to any adjacent county. Thus, the defendant may engage in some forum shopping (but the state may do I OC / so in return). —?-- In Wisconsin, normal venue rules allow the state to file either in a central court (Dane county) or where the violation occurred. The law has been made more restrictive for hazardous waste enforcement, however. The legislature has provided that the state must file its action in the county of the violation, and that the case may be transferred to Dane county only if both the state and the violator agre Various states have identified local court bias or lack of familiarity with the environmental laws as elements that have hampered enforcement (and potentially 1347 The Pennsylvania DER has the option, however, to file suit against a violator in a county Court of Common Pleas if it so desires. This judicial scheme allows the state, and not the defendant, to pick the most hospitable forum for a given case. 135/ See Michigan Report, at pp. 13-14. 136/ See Indiana Report, at pp. 11, 32. 1377 See Wisconsin Report, at p. 4. -57 - ------- strengthened violators' negotiating positions). The availability of a central forum can be an important advantage to state enforcers. 138/ This is also supported by other available information. For example, in the December 31, 1986 "Thirteen State Study" prepared by the National Association of Attorneys General (NAAG), several states identified the local forum issue as a leading problem for their hazardous waste civil enforcement cases. Id. at p.30. -58- ------- F. CRIMINAL ENFORCEMENT 1. Federal Criminal enforcement is authorized under RCRA §3008(dHf). The federal criminal enforcement effort is coordinated by the National Enforcement Investigations Center (NEIC) in Denver. Prosecutions are generally handled by the U.S. Department of Justice, sometimes in conjunction with local U.S. Attorneys. The federal criminal enforcement effort is just beginning to show significant convictions in the hazardous waste area. 2. State a. Substantive issues affecting criminal enforcement Interest in state criminal enforcement of the hazardous waste laws is increasing. Several states have initiated new criminal enforcement programs within the last year. Other states with more developed criminal enforcement programs have increased their use of these enforcement tools and developed more complex cases. Table 19 identifies those states within the fifteen state study that have hazardous waste criminal enforcement programs. Of the fifteen states, only four have no criminal enforcement efforts; -=£•' three more have only nascent programs. -^L Eight of the study states have active criminal enforcement programs: California, Connecticut, Illinois, Maryland, New Jersey, New York, Ohio and Pennsylvania, ill/ Not all of these programs have the same focus, nor are they all equally effective. Their effectiveness depends in part upon the substantive provisions of their respective criminal laws, in part upon the organization of the investigative and prosecutorial effort, and in part upon the state's "philosophy" or strategy for the proper role of criminal prosecutions in the overall enforcement effort. Table 20 sets out the substantive criminal enforcement authorities of all fifty states and the District of Columbia. A substantial range of crimes, mental states 1397 Florida, Indiana, Louisiana and Texas. 140/ Michigan, Missouri and Washington. 1417 Of the remaining thirty-five states and the District of Columbia, very few have active criminal enforcement programs. Several, however, (e.g., Maine) have developed criminal enforcement efforts comparable to those of the eight study states with criminal programs. -59 - ------- required for criminality, iii/ and punishments have been enacted by the states. Many of the states have far more sophisticated criminal provisions than those set forth in RCRA §3008. Others, however, have very minimal prohibitions, or have established proof requirements that make prosecutions difficult to bring (even if such states were more inclined to use criminal enforcement). For example, four states - South Carolina, Virginia, Wisconsin, and Wyoming - have criminal provisions that impose a criminal intent requirement beyond that authorized in §3008(d)-(f). Their statutes allow criminal prosecutions only if unlawful hazardous waste acts by a defendant were "intentional" or "willful," while the federal statute requires only that the act have been committed 1437 "knowingly." —-' Many of the other states, however, have intent provisions that enable them to prove criminal violations far more easily than the federal government. *44/ While a number of states have enacted criminal fines and sentencing provisions that are more stringent than those found in RCRA, -^£/ a substantial number of states have only minimal sanctions. Utah's hazardous waste law, for example, does not provide for prison terms. Vermont's law provides for a maximum prison sentence of six months. Table 20 highlights the wide disparity in criminal sanctions among the states. Ii§/ Many of the states also have creative sentencing provisions. Several provide for doubling of penalties and terms of imprisonment for subsequent convictions. Others provide for the calculation of a fine based upon some multiple of the economic benefit 142/ Most crimes are defined to include as an essential element the mental state of the person committing the wrongful act. These scienter requirements establish the level of intent, if any, required to make a given action criminal. They range from "willful" or "intentional," through "knowing," "reckless," and "negligent," to "strict." Under strict liability, the mere commission of the act is a crime and no proof of mental state is required. RCRA §§3008(d)-(f) establishes a scienter requirement of "knowing" for federal hazardous waste crimes. 143/ 40 CFR §271.16(b)(2) states that the "degree of knowledge or intent required under state law for establishing violations [criminal and civil)... shall be no greater than the .. . degree of knowledge or intent EPA must provide when it brings an action under the Act." 1447 E.g., Pennsylvania, Maryland, Michigan, Ohio. (Scienter requirements include strict liability and reckless.) Many other states also have such provisions. See Table 20. 1457 At least as defined prior to the 1984 Hazardous and Solid Waste Amendments. 1467 Some states' laws also define a far more limited scope of criminal conduct than does §3008. E.g., Hawaii, Montana (no "violation" crime). -60 - ------- derived from the crime, in addition to or in lieu of the statutory fine. —/ Others have forfeiture provisions. -ii§/ More important than the substantive requirements, however, is each state's approach to criminal enforcement. Many states entirely lack such programs in the hazardous waste area. Among those that have such programs, there is a wide disparity in enforcement philosophy, -lii' Two states with active criminal enforcement efforts illustrate and exemplify these differences - New York and Pennsylvania. New York handles numerous violations criminally. It makes substantial use of a ticket-like summons for smaller violations, and initiates a significant number of criminal investigations of waste handlers, transporters and TSD facilities. In general, New York uses its criminal enforcement tools to impose fines and to achieve on-the-ground abatement. Almost no criminal cases go to trial in New York, and frequently abatement is achieved through plea bargaining. Apart from several 10-30 day jail sentences, hazardous waste criminal defendants have not received any prison terms. This enforcement approach is essentially much like a civil enforcement effort with the additional leverage of the possible stigma resulting from criminal investigation and the threat of conviction. It achieves "specific" compliance by the target entities, and some ' measure of general deterrence because of the awareness of the criminal remedy. In contrast, the Pennsylvania criminal enforcement approach focuses very heavily on deterrence and punishment. Thus where a criminal prosecution occurs, the goal is conviction and criminal sanction; cleanup or abatement is handled civilly. i!P-/ The effect of this dichotomy is to discourage the "trading" of abatement in Pennsylvania for a plea and a minimal criminal fine. Instead, Pennsylvania strives for significant prison terms and high criminal fines. The result has been a series of substantial prison sentences for violators not matched in the other states in the study. -1^-L' The Pennsylvania criminal enforcement philosophy emphasizes the goal of general deterrence over the goal of a specific compliance, which is the focus of the New York criminal 147/ E.g.t New York. 148/ E.g., Indiana, Maine, Pennsylvania. 1497 Procedural and institutional differences will be discussed infra at pp. 62-64. ISO/ Pennsylvania's view is that it is entitled both to abatement and to prosecute and convict anyone in violation of the hazardous waste laws. 151/ See Pennsylvania Report, at pp. 16-19, 28-30. -61 - ------- effort. Both the New York and Pennsylvania approaches show the benefit of maintaining a significant criminal enforcement program as part of a hazardous waste enforcement effort. With respect to its effect on enforcement, the Pennsylvania approach has significant advantages in the creation of a general deterrent, which cannot be created by other means (i.e., an aggressive civil enforcement program can create many of the same benefits as the New York program; it cannot, however, produce the same effect of general deterrence produced by convictions with prison terms). Thus, an effective criminal enforcement program should result in some trials and convictions resulting in prison terms for violators. In part, the prospect of prison terms produces a response in the behavior of managers and officers. They evidently express awareness that it may be sufficient to plead the company guilty, pay a fine and accomplish abatement, in states where the criminal enforcement effort produces sanctions more stringent than those achievable civilly or administratively. The mission of a criminal enforcement program, therefore, should not be limited to achieving specific compliance by a given company. General deterrence should also be a significant goal b. Procedural and Institutional Issues Criminal enforcement programs may either be coordinated centrally or conducted by local investigators and prosecutors. Of the eight states in the fifteen state study that have criminal enforcement efforts, six have a centralized investigative program. See Table 19. The two with decentralized criminal efforts are California and New York. California relies upon local district attorneys to a far greater extent than any of the other criminal program states in the fifteen state study. They are substantially autonomous in developing their own cases and determining the level of effort devoted to criminal enforcement in a given county. In contrast, the attorney general's offices of Maryland, New Jersey, Ohio, and Pennsylvania conduct substantially all of the hazardous waste criminal investigation and prosecution in those states. Each of the latter states has a fairly strong criminal enforcement presence. Hazardous waste criminal enforcement in Connecticut is conducted by a central office of the local state's attorneys. Essentially, this is the functional equivalent of the centralized approaches of the Maryland, New Jersey, Ohio and Pennsylvania programs. In New York, criminal enforcement is divided among various units of the attorney general's office, district attorneys, and the agency. The result is a mixture of levels of enforcement not -62 - ------- necessarily coordinated statewide. Table 21 sets out the criminal enforcement responsibilities in the fifteen study states, -i^/ The key to hazardous waste criminal enforcement appears to be the availability of trained criminal investigators. Those states that rely solely on agency-developed cases or local tips appear to lag behind those with an investigative team or "strike force" in the development and prosecution of hazardous waste cases. It is also important to provide a mechanism whereby cases identified by the agency can be referred to these criminal investigators and not simply handled civilly. Several different approaches exist in those states with active criminal programs. In Maryland, for example, a Hazardous Waste Strike Force (three full-time criminal prosecutors, five state police investigators, and a technical staff member) operates out of the same location as the Waste Management Administration. A substantial number of cases originate out of agency referrals investigated by the Strike Force. In Pennsylvania, the Toxic Waste Investigation and Prosecution Section conducts criminal investigations with its own personnel and delegated personnel assigned by the Department of Environmental Resources. In Ohio, all cases referred to the attorney general are reviewed for potential criminal enforcement action. The cases are investigated by the Special Investigations Unit and the Bureau of Criminal Investigation's environmental unit. The Ohio approach assures that the criminal remedy is always considered, and contributes to the state's overall enforcement leverage as a violator may settle civilly rather than face even the possiblity of prosecution. Effective criminal enforcement in the fifteen study states appears to depend upon the combination of (1) a specialized unit staffed with trained criminal investigators (not just environmental inspector personnel), and (2) close coordination with the regulatory agency. -i§^/ The availability of a state-wide investigating grand jury is also a boon to prosecution efforts. Institutional obstacles can arise when a prosecutor is forced to 1527 With the exception of California and New York, those states with significant criminal enforcement programs all follow the Attorney General-lead model (including Connecticut with its Chief State's Attorney): Maryland, Illinois, New Jersey, Ohio, Pennsylvania and Connecticut. 153/ Those states lacking either feature have potentially weaker programs. The Los Angeles County Strike Force provides these critical features on a county basis in California. There is, however, no comparable state-wide effort in the state. -63 - ------- "borrow" a local grand jury for enforcement purposes. M G. OTHER PROGRAM TOOLS 1. Federal In addition to its administrative and judicial authorities and remedies, EPA also has the authority to "list" hazardous waste violators for water and air pollution violations at RCRA sites to debar them from federal government contracts for a period of time. i5£/ 2. State The states have adopted a number of other provisions designed to assist in coercing compliance. These include property transfer bars, super liens, contract debar ment, state benefits debarment, professional discipline, and use of publicity. a. Property Transfer Bars and Superliens New Jersey has pioneered the use of "non-regulatory" economic sanctions to produce cleanup of hazardous waste sites. Its Environmental Cleanup and Responsibility Act (ECRA) imposes a "precondition on any closure or transfer of real property utilized for the generation, handling, storage and disposal of hazardous substances, by requiring the adequate preparation and implementation of acceptable cleanup procedures i 'ifi / therefor." Under ECRA, the owner or operator of any industrial establishment or site planning to close, sell or transfer operations must notify the state agency and either submit a negative declaration (that there has been no discharge or release or that any such discharge or release has been cleaned up), or a cleanup plan for agency approval. Failure to comply makes the transfer voidable by the transferee, allows recovery of damages by the transferee and renders the owner/operator strictly liable for all costs, 154/ Compare, e.g., Pennsylvania Report, at pp. 19, 28-30, with New York Report, at p. 4. Ohio, however, suggests that county grand juries provide some advantages as a gauge of public sentiment in deciding whether to prosecute. See Ohio Report, at p. 31, n. 41. 155/ 40 CFR Part 15. While criminal violators of the Clean Air Act and Clean Water Act are automatically listed, civil violators may be listed only for "continuing or recurring noncompliance." Listing may only occur for adjudicated violations, and applies only to the facility actually in violation (not to the entire company). Moreover, the listing expires automatically after one year. 156/ NJSA 13:lK-6. -64 - ------- plus penalties for failure to comply. 1ZL/ The result is to make the cleanup obligation commercially self-enforcing. Both transferees and transferors tend to conduct environmental audits to avoid hidden liabilities and to accomplish the "due diligence" (required of corporate officers and directors under the general corporation laws) as applied to these transactions. "Superlien" statutes have similar commercial self-enforcement effects. A number of states have enacted laws providing that where the state must expend funds to clean up a site, the expenditure creates a lien against the property, which is superior to all other 1 CO / security interests regardless of when created. -^2. These provisions create a powerful incentive for lenders to require their debtors to remain in compliance and to avoid the creation of situations that might lead to the creation of a lien with priority over the lender's security interest in the property. Again, this promotes self-enforcement. -!££/ b. Contractor Debarment Few states have made attempts to use state contracting as an enforcement tool, except, perhaps in an informal way. California and Texas, however, have enacted limited provisions directed at denying contracts to hazardous waste violators. -^' Some states without such provisions may in fact practice a policy of such denials, but there is no 157/ Connecticut has a similar property transfer bar, but does not make the transaction voidable, which is one of ECRA's chief strengths. Conn. Stat. S22a-134 et. seq. 158/ E.g., New Jersey, Connecticut, New Hampshire, Massachusetts, Arkansas, Tennessee. The strongest of these is the New Jersey provision, which gives the lien priority status with respect to all of the real property owned by the responsible party. The other state statutes have limitations such as giving the lien absolute priority only as against the cleaned-up property, but lesser priority over liens on other property; or limiting the lien itself only to the cleaned up property. 159/ Some states with cleanup lien statutes will not experience this commercial enforcement effect. For example, the Texas "super lien" is only superior to interests recorded after its recordation, unless the prior lienholder had knowledge of the basis for a cleanup action at the time the prior lien was created. 160/ CaL Health & Safety Code 25358.3(d) (no cleanup contracts awarded to violators); Cal. Gov't Code 4477 (state may not purchase from entity subject to Water Code cease- and-desist order, determined to be in violation of federal air/water pollution laws, or in violation of state air pollution order); Texas Rev. Civ. Stat. Ann., Health-Public, Article 4477-7, S8(h) (contracting agencies to "consider" record of person guilty of unlawful hazardous waste release within preceding three years). -65 - ------- formal record, lil/ Without a listing or tracking mechanism for violators these potentially useful provisions may be of limited utility. c. Other Debarment Some states have considered denying certain discretionary benefits to hazardous waste violators, such as grants, industrial revenue bonds, and state guaranteed loans. New York's Environmental Facilities Corporation, for example, has denied environmental revenue bond financing to recalcitrant violators that ultimately are compelled to conduct cleanup. ^ d. Professional Discipline In some states with professional licensing requirements, some enforcement-related provisions are relevant to hazardous waste practices. For example, California law requires the Regional Water Quality Boards to refer for state disciplinary action any professional person submitting false geological information concerning a surface impoundment. iM/ e. Publicity A number of states have made conscious use of publicity to carry the message of deterrence. The fundamental principles of general deterrence require regulated community awareness of frequent inspections and timely sanctions against a cross- section of the regulated community, and certain heavy sanctions imposed upon others. Texas, for example, publishes a bi-monthly listing of facilities inspected and enforcement actions taken, including penalty amounts and abatement requirements. It also publishes a semi-annual list of "best" and "worst" facilities, making use of public 161/ In some instances, very narrow debarment provisions may be worse than none at alL For example, because the Texas provision refers to a "release," a violator may argue that even a flagrant violation that did not involve a release cannot be used for debarment. States should assert an inherent authority to debar violators for violations of any type, and draft any debarment statutes or regulations carefully. 162/ See New York Report, at pp. 19-20. 163/ CaL Health & Safety Code 25208.9. -66 - ------- perception to influence compliance. —/ Louisiana makes extensive use of publicity about its enforcement actions, probably in part to help make up fop its constrained resources. !§§/ it publishes a monthly update on all enforcement actions. Such publicity can be helpful for deterrence purposes, but only if sufficient enforcement is occurring to be credible to the reader in the regulated community. Some other states have a more narrow approach. For example, Pennsylvania uses publicity chiefly to emphasize the severity of its criminal enforcement actions. !§£/ Such a focused approach capitalizes on the principle of general deterrence, which requires not only that a number of severe sanctions be imposed, but that they be publicized. Indeed, the deterrent effect of sanctions is lost unless the regulated community is made fully aware of them, and of the possibility of their recurrence. Because of the focused nature and resource-intensiveness of criminal investigations and prosecutions, it is particularly important to get substantial public exposure for such actions. -I5Z/ This can be an important aspect of deterrence, and not just a public relations venture. Certain states and officials have recognized this distinction. 1S4/ Texas Report, at p. 14. 165/ Louisiana Report, at pp. 25-26. 166/ Pennsylvania Report, at pp. 29-30. 167/ Other states publicize their criminal conviction and guilty plea successes. E.g., California's Los Angeles District Attorney's office. See also Ohio, New Jersey, Maryland, New York Reports. -67- ------- m. THE EFFECT OF RCRA AND EPA POLICIES ON STATE ENFORCEMENT A. DIFFERENCES AMONG THE STATES AND BETWEEN EACH STATE AND EPA 1. States are Not Mini-EPAs The RCRA federal enforcement authorities and approaches do not translate directly to the states. The states do not and (absent major legislative and other changes) cannot operate as "mini-EPAs." In fact, state authorities and procedures are often quite different from their presumed federal counterparts. EPA and Congress must recognize that no state program, and no individual state enforcement case—whether administrative, civil, or criminal—can be tested by a straightforward comparison to the federal system or model To understand how the RCRA program "works" in any state, it is necessary to understand that the "RCRA-imposed" changes were overlaid on existing institutions and laws. Many (if not most) states had environmental laws even before Congress provided for the federal "authorization" of state RCRA programs. These state laws often included judicially created common law as well as statutory and regulatory provisions and remedies covering protection of the quality of ground and surface water and regulation of hazardous wastes and air quality. EPA's "authorization" of the states often required modifications to and some strengthening of existing legal (substantive and procedural) powers. But the modifications necessary to achieve EPA "approval" or "authorization" frequently left many existing standards, procedures, practices and institutions intact. These standards, procedures, practices and institutions often significantly affect state enforcement agendas and capabilities in ways not readily apparent to EPA. 2. Every State is Different Effective federal oversight of state programs requires an understanding of the legal, procedural, and institutional features of each state. As discussed in Section II, there are myriad and significant differences among the states, as well as between the states and EPA, which may lead to different results even under a uniform national policy. Any EPA policy, oversight program, or evaluation of any state program must recognize the significant variations in each of three major areas: institutional, procedural, and substantive. The most important differences among the states include: o variations in the administrative and judicial institutional mechanisms by which the federal laws and EPA policies are implemented; -68 - ------- o variations in the common law and statutory and regulatory laws governing enforcement procedures, which may (or must) be followed by the state; and o variations in the substantive laws of each state. For example, even the decision to exercise or refrain from exercising the power to issue an "administrative order" is a different decision in every state, with dramatically different ramifications and results. As shown in Section n, the issuance of the order in one state may result in an immediate administrative hearing or a petition for supersedeas (stay), and will subject any person who violates the administrative order pending review to immediate contempt sanctions by a court. In another state, however, the decision to issue an order will result only in the filing of a "complaint" before an understaffed commission, which may or may not issue any order after several months of administrative proceedings. If the order may only be issued by an independent governmental unit, it may not contain the relief sought by the agency responsible for the enforcement of the law or for detecting the initial violation (i.e., the agency that has the training and experience to craft the necessary relief). Also, once the order is issued, any violator of the order may be subject to no more than the risk of a potential complaint for injunctive action and civil penalties filed before a local court. The court may not be required to schedule the case as a priority matter and may be politically hostile to the agency's position and sympathetic to local industry. That court may refuse to impose significant penalties, if any, and may merely afford the violator additional time to comply with the very same requirements of law to which it had been subject months, or even years, before. It is apparent that, in examining any state program or reviewing any state enforcement case, EPA and Congress must take into account the complex, synergistic interaction among the institutional, procedural, and substantive factors that support or impede the state's success. 3. Effective Oversight Requires an Understanding of the Unique Features of Each State State enforcement choices may be influenced by the existence of enforcement authorities differing from those of EPA. For example, a state may wish to temporarily delay the institution of an administrative or judicial action in order to continue an investigation into matters that may be substantively broader than those regulated by RCRA (e.g.; to encompass PCB violations or certain groundwater releases from an old abandoned site). The state may wish to continue an investigation beyond that required to -69- ------- satisfy RCRA administrative enforcement policy requirements (e.g., it may wish to conduct surveillance to determine the intent and knowledge of a high-level corporate official). Or the state may elect to use permit "bars" or other tools unique to the state, but which are not recognized by EPA policies, to leverage immediate, stringent, and enforceable settlement orders or decrees. In seeking to identify those institutional, procedural, and substantive variations, which uniquely affect the strength of a state's enforcement program and which, therefore, should be the necessary focus of a federal oversight program, it is useful to return to the Fundamental Principles of Enforcement described in Section I of this Summary and Analysis. The important variations that should be considered in ascertaining the overall credibility and general deterrent force of the agency's program are those that control whether: o the effect of delay associated with litigation is adverse to the violator rather than to the agency (i.e., to the public); o the agency's burden of proof is relatively clear, simple and easy to satisfy, and the burden of proof with respect to some or all elements of the case is shifted to the violator; o the case is heard in the most favorable forum for the agency; and o the sanctions are promptly imposed and are a significant factor in influencing behavior. Sections III.B., C., & D. of this Summary and Analysis highlight state legislative impediments to effective enforcement that have been approved by EPA, and the institutional, procedural, and substantive strengths of state programs that have been discouraged by EPA policies. Section B. addresses state standards and procedures that are part of state RCRA programs, but which may actually either "chill" or prevent vigorous agency enforcement and that encourage—rather than deter—industry recalcitrance and violations. Section C. offers examples of state authorities or laws that are powerful and effective within the procedural and institutional framework of particular states, but which are nevertheless discouraged by federal policy and oversight practices—often merely because they are different from and have no counterpart within a federal program (which operates subject to very different procedures). Finally, Section D. discusses the effect of EPA policies on the development of credible, effective, deterrent state-wide enforcement strategies and programs. -70- ------- B. STATE LEGAL AND INSTITUTIONAL IMPEDIMENTS TO THE DEVELOPMENT OF CREDIBLE. DETERRENT ENFORCEMENT PROGRAMS The Fundamental Principles of Enforcement introduced in Section I of this Summary and Analysis compel the recognition that a state enforcement program should be evaluated by its ability to deter violations, secure substantial voluntary compliance, and achieve significant settlement leverage. This means that review of a state's program must consider the general, state-wide, deterrent effect of its laws and procedures, as well as the ability of the laws and procedures to achieve compliance and punishment in the context of the specific case. In assessing the legal capabilities of state programs, therefore, and in comparing the programs to the federal laws and procedures, EPA may "test" the programs by looking to o relevant substantive standards; o procedural standards; and o the way in which the enforcement authorities are construed or applied. EPA can readily determine, for example, whether a given law or procedure minimizes the government's requirements for proof of the elements of a violation through the creation of favorable presumptions or limitations on judicial discretion; whether the elements of violation are few, clear, and simple; or whether the state law or procedure recognizes and encourages use of the most persuasive economic and other incentives for industry compliance. In this section of the Summary and Analysis we will analyze only examples of legal, procedural and institutional impediments that are clearly inconsistent with (and may even undermine) the substantive and procedural requirements and objectives of RCRA. Although certain provisions of RCRA itself, as well as many federal rules and policies implementing RCRA, also operate as obstacles to effective enforcement, an identification of those federal obstacles is beyond the scope of this Summary and IgQ/ Analysis. —-' We will focus here only upon examples of state impediments to enforcement that have been implicitly or explicitly approved by EPA through its state authorization process. 168/ We recommend, in Section IV of this document, preparation of a separate federal RCRA analysis based substantially on the information derived by this study. Such analysis would outline regulatory and congressional changes necessary to eliminate obstacles to effective federal enforcement of RCRA by EPA. -71 - ------- 1. The Vitiation of the Permit as Enforcement Tool One of the most powerful state enforcement tools is the license or permit. Congress has recognized the power of the permit as an enforcement tool by mandating the revocation of a permit for the violation of any statutory standard applicable to owners and operators of TSD facilities.-^-' Even the credible threat of a permit suspension or revocation operates as a powerful enforcement mechanism. The temporary dislocation of a profit-making business is a dramatic and immediate economic sanction, which affects the violator both directly and indirectly (e.g., through effects on customers and insurers, ability to achieve financing for future projects, stock prices). Such dislocation is likely to be much more effective than the mere initiation of an administrative or judicial action that seeks penalties that may not be "made final" or reduced to judgment for years. -Ill/ In contrast to the congressional mandate to suspend or revoke a permit for violation of any applicable standard, many state statutes contain provisions that do not even authorize permit revocation or suspension for such violations. These provisions clearly offend the Fundamental Principles by removing the necessary credibility of the most potent enforcement tool a. Obstacles to Enforcement! Burdensome Standards Some states do not authorize the agency to revoke or suspend a permit for other than extraordinary circumstances. For example, some legislation authorizes a state to 169/ See discussion at pp. 9-27, supra, (Section II). 170/ Section 3005(d) of RCRA states: "[u]pon a determination by the Administrator (or by a State...) of noncompliance by a facility having a permit under this title with the requirements of this section or section 3004, the Administrator (or State...) shall revoke such permit." (Emphasis supplied). EPA's regulations authorize, but do not mandate, "terminating a permit during its term" for a violation of a permit condition, but not of all program requirements. 40 CFR 270.43. 171/ The contrast in effectiveness between permit revocation and civil penalties is even stronger in light of what generally appears to be a reluctance by many state (and even federal) judiciary and reviewing boards and agencies to impose maximum penalties. Instead, the trend has been to impose penalties in an amount even less than the cost that would be incurred by a temporary shut-down. One may compare the cost of even a temporary, short-term cessation of profit-making authorities to the average EPA RCRA civil penalty assessment of $14,210 per case in 1986. Study of EPA Federal Penalty Practices (Sept. 1986), Appendix E. (Between 1981-85, the average assessment per case was $9,144.) -72- ------- revoke a permit only upon allegation and proof: of "flagrant and consistent" violations; of a "substantial" present or potential hazard to human health OP the environment; of the causation or continuation of an environmentally unsafe condition; that the violation is "repetitious" of prior violations; or that the violation has continued beyond 30 days after receipt of a notice of violation. Each of these additional, burdensome substantive standards may undermine a state effort to create a program of general deterrence. Certainly, these laws do not foster compliance or the imposition of punishment in individual cases. These burdensome standards maximize, rather than minimize, the government's burden of proving the elements of violation. In the first place, the elements of violation themselves are not few, clear, or simple. An agency that is required to prove that a violation is "flagrant," environmentally "unsafe," or constitutes a "substantial" hazard to health or the environment must develop sophisticated and often massive evidence of potential or actual harm or injury (requiring, e.g., technical investigations and the testimony of expert witnesses). The agency must also devote legal resources to briefs and arguments supporting a favorable interpretation of the vague and complicated concept of "substantial," "unsafe," or "flagrant." The agency is also less likely to prevail in litigation than one which must merely and simply prove a "violation." Secondly, legislation that requires proof of "consistent" violations, "repetitious" violations or that the violation "has continued" beyond 30 days after receipt of notice from the state, does not deter violations. It actually allows and tolerates violations, allows and even encourages substantial delays in compliance, and affirmatively promotes the troubling concept that the regulatory process and litigation should operate on the public's "time," rather than that of the violator. These substantive obstacles to effective use of the permit as an enforcement tool effectively eliminate the major economic incentive to assuring prevention of violations and continued compliance. The loss of this tool is critical. The ability of the enforcement agency to control the timing and nature of the permit revocation and suspension, the powerful economic deterrent and sanction created by the existence of such clear authority, and the ease and speed of proving entitlement to the relief, are all -73 - ------- potentially powerful deterrents to violators. - Where there are burdensome provisions that constrain the state's ability to use this tool (or to credibly threaten to do so), the permit may be "written off" as an enforcement tool The attempt of some states to "fix" bad statutory revocation standards by adopting regulations does not solve the problem. A sophisticated permittee facing a threatened revocation will always advance the legal argument that the regulations are invalid as inconsistent with the authorizing statute. The mere existence of this legal question will "chill" the ability of state regulators to make credible use of permit revocation leverage. It has been argued that these burdensome provisions are not real obstacles to enforcement because a state agency would not shut-down—even temporarily—a facility that has only a "minor" violation, a facility that does not pose a "substantial hazard" to the public health, or a facility that is not causing "flagrant and continous" violations. These arguments are not sound, however, and they are not supported by the information obtained by this study. Moreover, even jf a state agency would, in reality, employ the revocation authority only in an extremely conservative manner, this would not justify the adoption of legislative standards that make the threatened use of the authority next to impossible. First of all, a number of states have—by permit suspension, revocation, or shut- 1 170 / down order—closed facility operations. -^ In some cases the shut-down was used to leverage a speedy settlement and immediate compliance. In other cases, the state sought to close a company simply because it did not demonstrate a willingness or ability 172/ The permit revocation/suspension authority is particularly powerful for the additional reason that the initial state agency action (i.e., the revocation/suspension) is often accorded significant deference by the administrative reviewing board/commis- sion/officer as well as by the court. In Pennsylvania, for example, the Environmental Hearing Board (EHB) defers to the agency's action (Western Hickory Coal Co. v. Commonwealth, Commw. No. 1733 C.D. (Dec. 31, 1984)), and the Commonwealth Court then defers to the EHB. Moreover, by selecting revocation/suspension rather than compliance order/civil penalty action or injunctive action, the agency can control the choice of reviewing forum. It effectively selects the administrative forum rather than judicial forum as the initial forum and then—in many states—is assured that judicial review is by the central (rather than local county) court. (See e.g., Table 9). In most, but not all, states central judicial review is regarded by the agency as more favorable to the agency. 173/ See e.g., Maryland Report, at pp. 25-30; Pennsylvania Report, at pp. 9-11, 20; Michigan Report, at p. 7-8; Connecticut Report, at p. 19; and Louisiana Report, at p. 20. See also use of the "emergency order" power in Ohio to shut down a facility and leverage a settlement. Ohio Report, at pp. 27-29. -74 - ------- to remain in compliance with the law, and the state recognized that the issuance of a multiplicity of compliance orders and civil penalty actions was not a sufficiently punitive, practical, or cost-effective response to the company's behavior. These cases are important because in many instances, the agency had not found—or could not have proven—that the conditions at the facility or the site were "substantially hazardous," or "flagrant" or that the conduct was "continuous." Yet the additional leverage obtained from the permit enforcement authority allowed these states to achieve their objective. Moreover, even if state agencies were to exercise the shut-down power only in "serious" cases, burdensome substantive language would needlessly create significant obstacles to effective enforcement. The successful proof by an agency that a condition is in fact "substantially" hazardous or unsafe requires a severe drain on the technical, legal, and financial resources of the agency; may require substantial time to prepare and present in the context of a complex case; and—in any event—minimizes the likelihood that the agency will prevail. Because the agency bears the burden of going forward and the burden of proving that the standard (e.g.. "substantially hazardous") has been met, a timid, political, or unsophisticated judge or hearing examiner can easily "find" that the agency has failed to satisfy those burdens. Thus, the existence of the difficult substantive standard may well prevent the agency from acting against even the most flagrant violator who is committing what the agency knows to be a substantially hazardous violation. The mere existence of the burdensome standard necessarily creates a chilling effect on the agency's use of this crucial—most powerful—enforcement tool. In states with such weak permit powers, a program official or attorney developing an enforcement strategy against a recalcitrant violator is less likely to consider use of the shut-down power against the violator. The official or attorney is likely, instead, to turn to the slow, inefficient, and significantly less effective, strategy of multiple civil penalty actions and compliance orders. Conversely, regulated industry in a state that is reluctant, or unable, to easily use its permit suspension/revocation/shut-down authority is less likely to perceive the state agency as having significant powers, and is therefore less likely to be deterred by the possibility that its profit-making activities will be temporarily or permanently curtailed. b. Obstacles to Enforcement; Burdensome Procedures The effectiveness of the permit revocation/suspension/cease-order enforcement authority to deter violations and compel compliance is dependent upon the procedural -75 - ------- and institutional mechanisms established in each state, as shown in Section II. Unfortunately, most states employ procedures similar to that employed by EPA. The violator is notified of the "proposed" revocation/suspension, an administrative hearing is scheduled, and weeks, or even months later, a decision is rendered affirming or reviewing the "proposed" action,!!!/ This means that the agency is precluded from effecting immediate shut-down and thus from gaining the significant and immediate economic leverage for achieving compliance that flows from that immediate shut-down. These cumbersome procedures, which allow litigation to take place while the violation continues, and which diminish the economic "sting" of speedy enforcement, are not even the weakest (i.e., most favorable to industry) procedural mechanisms employed to enforce the hazardous waste laws. A number of states are burdened by their legislatures with even weaker provisions. For example, some states require that the notice and an opportunity for administrative hearing on the proposed permit suspension/revocation be followed by a lengthy public comment period before that suspension/revocation even becomes effective. c. Limiting the Agency's Ability to Deny Permits Other procedural disabilities imposed by state legislatures, but which are not imposed by RCRA, may limit the discretion of state agencies to deny permits or permit amendments. For example, state legislatures that specifically "authorize" permit denial only if the applicant has been convicted of a felony, or only where a prior permit was denied or revoked, arguably create a defense to an attempt by the agency to deny or withhold a permit because of a series of consistent (if minor) violations, or for a serious current violation. Even if the explicit authority does not conclusively prevent an agency from denying a permit to an applicant with an erratic compliance history, it certainly "chills" the state's agency's willingness and ability to compel disclosure of, consider, and 174/ EPA's revocation procedures are the same as those applicable to the grant of a permit, i.e., preparation of a "draft" permit revocation with a statement of basis or fact sheet; public notice of the "draft" permit, with a comment period and an optional public hearing; an (optional) public hearing and the preparation of an administrative record; the final permit decision by the regional administrator; a request for an evidentiary hearing within 30 days of the regional administrator's final decision; an evidentary hearing, in which the agency has the burden of proving that the permit should be revoked; filing of proposed findings of fact, conclusions of law and briefs after a hearing transcript is filed; and the presiding officer's decision, which is still not final if a petition for judicial review is filed within 30 days of the decision or if the Administrator files notice that he will review the decision. Then, of course, there is judicial review. See 40 C.F.R. Part 124 (incorporated by reference in 40 C.F.R. 270.43.). -76- ------- deny permits upon the applicant's past history of violations unless those violations were the basis of permit denials or felony convictions. Although RCRA and the EPA regulations are silent as to compliance history, EPA is arguably authorized to consider and evaluate the applicant's prior history to determine if the applicant will achieve compliance with all regulatory requirements. Therefore, the adoption by a state legislature of even apparently well-meaning permit language could in fact operate to "chill" the agency's will and discretion in considering factors relevant to the permit process. 2. Burdening And Delaying The Enforcer; Legislative Pre-Conditions To The Issuance Of An Administrative Order EPA has authorized a number of state programs containing cumbersome pre- conditions to the institution of enforcement action, which discourage rather than encourage voluntary compliance. These prerequisites—which are in addition to those borne by EPA under the federal program—are obstacles to the effective state enforcement of RCRA. H^/ a. Delay and the "Free Ride" Some authorized states are precluded by state statute from issuing even a mere compliance order (i.e., an order that directs the regulated entity to obey a law it is already required to obey) unless the enforcing agency first notifies the violator that it is in violation and then provides the violator some further opportunity to comply. In some states an order may only be issued after the violator has been notified and provided a requisite time to comply—sometimes 30 days, sometimes longer. In other states, issuance of the order must be deferred an indeterminate amount of time because the agency must first attempt to "persuade and conciliate." Moreover, as we will discuss below, the violator may have a "free ride" for several weeks of violation, as some of the states with such provisions do not even authorize penalties for the underlying violation, but only for violation of the order that eventually issues. -=-^-' 175/ See discussion supra pp. 32-34 (Section II), and Table 7. 176/ Apart from these preconditions, which are inconsistent with RCRA, these states also must contend with the obstacles to enforcement that are consistent with EPA procedures. For example, in most states, as with EPA, if the violator merely files a request for a hearing on the compliance order, the order loses its effect, i.e., it is stayed and unenforceable, pending the outcome of the hearing. -77- ------- b. An Unfavorable Institutional Structure Compounds the Problem The procedural burdens and their ramifications are exaggerated when imposed within an unfavorable institutional structure. In one state, for example, the state agency responsible for enforcement of RCRA is not even empowered to issue an order. *77/ That agency is only authorized to request that a separate, independent quasi-judicial agency issue orders. The "enforcement" agency thus essentially has only the same power that it has to obtain a court order—i.e., only the power to seek the directive. Thus, it lacks even the administrative order authority enjoyed by EPA under RCRA §3008. It has no power to control the relief or remedy; it has no power to settle a case. Not only does it lack any enforcement power of its own, but it is not even empowered to request that an order be issued until it has first notified the violator and allowed a "reasonable" time to attempt an "informal resolution" of the violation. The administrative process in such a state effectively operates to protect industry from effective enforcement. The law can have virtually no deterrent effect upon a violator, and creates no incentive to quick settlement or voluntary compliance. c. "Emergency" Order Authority is Not a Solution It has been argued that preconditions are not a major obstacle to enforcement because most agencies are authorized to take "emergency" action (effective immediately) where there is an "imminent and substantial" threat to public health or welfare. After all, the argument goes, the agency would surely elect to address all but emergency cases by first issuing notice and offering the violator the "opportunity" to comply. This argument, however, ignores both the enforcement burdens imposed upon the agencies by the "emergency" provisions, and the deterrent effect of orders. This argument also tacitly accepts a system that provides an "opportunity" to do that which the order recipient was already legally bound to do, or to correct a condition that it was already bound to prevent. First, under "emergency" provisions, substantial public legal and technical resources must be devoted to plead and prove that the threat posed by the violation is, in fact, "imminent and substantial" Not only will such a case be more expensive to try than one involving an order effective immediately for any violation, but the more stringent standard may not even be capable of being satisfied because of the absence of 177/ See pp. 38-39, supra (Section II). -78 - ------- sufficient state surveillance or investigation. Even if the agency does obtain and offer sufficient evidence, a case may be lost because of the willingness of a reviewing forum sympathetic to the violator to "find" that the vague standard has not been satisfied. The higher standard of proof has a chilling effect on the agency's ability to enforce. The agency is simply less likely to respond to violations by instituting action under these emergency provisions—not only because of the additional resources it must commit to the effort, but also because if it loses, its credibility will be damaged and the general state deterrent presence weakened. Second, in states where "emergency" orders are the only immediately effective orders, members of the regulated community correctly assume that they benefit economically by waiting until they are ordered to comply with the law, rather than complying voluntarily. In all but the few cases where the agency devotes an unusual amount of technical and legal resources, any penalty eventually assessed for noncompliance, moreover, is likely to be no more than what the company saved by failing to comply timely (e.g., by delaying the outlay of funds for capital improvements or operation and maintenance expenses). Moreover, in some states where the law mandates a waiting period between issuance of notice of violation and a compliance order, there is no penalty at all available for the time a violation continues between the notice and a subsequent order. In these states, there is no question but that it is economically advantageous for companies to avoid compliance until an order issues. Finally, where the only authority to issue orders is an "emergency" order the agency is left with no leverage with which to obtain settlements and voluntary compliance. A reasonable corporation whose very purpose is to maximize its profit margin will not settle a case if it is more profitable to simply challenge the agency's position. In fact, it may well be more profitable to delay compliance and litigate with the agency if immediate and substantial sanctions are not available to the enforcement agency to address violations of the law. 3. Burdening And Delaying The Enforcer; Obstacles To Judicial Relief And Civil Penalty Assessment Although RCRA authorizes EPA to assess penalties administratively and to seek injunctive relief without first issuing a "notice" or affording the violator a period of time to stop violating the law, several authorized states are_ burdened by such requirements. -79- ------- a. Legislation That Undermines Penalty Assessment In at least one state no civil judicial action or administrative order may even be commenced against a violator until the agency has first provided notice to the violator and waited at least thirty days to allow the violator the opportunity to comply within that period. !!§/ Even a recent amendment to the statute only authorizes the assessment of a penalty after the 30-day noncompliance period following the state notice. Although the agency is authorized to assess a penalty for the violation that continues during the 30-day period, it may do so only after the thirty days has expired. Even then, the order assessing the penalty "must" provide for compliance "within a specified period," suggesting that the agency is expected—and the violator allowed—to delay compliance even longer. Obviously, these legislative impediments appear to tolerate continued noncompliance, to eliminate the potential deterrent effect of the order and injunction authority, and to signal quite clearly to the judiciary and administrative agency that penalties during the "reasonable period for compliance" are only symbolic. Certainly, such a penalty would be unlikely to approach the cost of compliance. In essence, if the violator comes into compliance during the thirty days, or even during the "specified period" thereafter, there is virtually no likelihood that a significant daily penalty would be assessed or, if assessed, would be upheld. The legislature has, in effect, sanctioned these periods of noncompliance. b. Administrative Civil Penalties That May Be Worse Than None Many state legislatures do not empower the state to assess administrative penalties. -IlZ/ Even in those states that &> authorize the agency to assess penalties, many legislatures have imposed burdensome pre-conditions and other requirements upon the enforcing agency. For example, a state may be precluded from assessing administrative penalties unless it first issues a notice of violation and the violation continues for more than thirty days or other indefinite period. 178/ See p. 34, supra (Section II). Of course, the agency may proceed directly to court jf it can generate the resources and evidence to plead and prove "imminent and substantial endangerment." Other states have similar provisions. 179/ See Table 13 and pp. 45-46. supra (Section II). -80 - ------- In one state the administrative penalty must be waived if the violation is abated within the 30-day period or even if only "appropriate steps" have been taken within that period. M/ In another state, no penalties may be administratively assessed unless it can affirmatively prove that the violation is part of a "pattern;" is willful; has a significant impact on health or the environment; consists of a failure to report an unauthorized release; or has continued after the state has issued a notice of violation, lii/ In a third state, an administrative civil penalty can only be obtained for violation of an order—and that order cannot even be issued until the agency has first issued notice, waited fifteen days, returned and found that the violation is still continuingJM/ In all of these states, the legislature is signaling a tolerance for continued violations and a reluctance to severely punish violators. Similarly, an agency official who is not aggressive or who fears unfavorable political fall-out is encouraged to seek penalties administratively, where the violator will be treated more favorably. In all, the burdened and ill-conceived administrative penalty authorities may encourage lax enforcement, discourage voluntary compliance, and operate as an impediment to even the best prepared judicial civil penalty action. A skilled defense litigator in these states could successfully argue in a judicial civil penalty action that the same affirmative burdens of proof, or at least the same defenses, should apply to any civil penalty action for the same violation. -=^-' Another state, which purports to have administrative civil penalty authority, actually has a mechanism that requires the agency to proceed through a lengthy administrative process before it may seek penalties judicially. ^-' The legislature 180/ See pp. 47-48, supra (Section II). 181/ See pp. 47-48, supra (Section II). 1827 See pp. 32-33, 46, supra (Section II). 183/ One may persuasively argue that the state's purely "arbitrary" choice of the forum (i.e., administrative or judicial) before which the penalty has been sought should not conclusively determine whether or not a violator should be sanctioned: therefore, if compliance is achieved within 30 (or 15) days, no judicial penalty should be imposed. Even if this argument does not prevail, it is likely to lead to a judicial reduction in penalties or to the provision of additional time for compliance. 184/ See pp. 48-49, supra (Section II). -81- ------- authorizes the agency to assess penalties. However, if the violator is dissatisfied with the results of the administrative hearing, it may then request a judicial hearing. Because the judicial hearing is de novo, the agency must start all over again—i.e., it must plead and prove its case as if the first case has never been tried. The decision below is afforded no deference. The agency retains the same burden of proof and burden of going forward. The violator is thereby afforded two chances to win and the agency only "wins" (i.e., may recover any penalty) if it wins twice. Moreover, the violator is given the opportunity to "discover" the state's case and the opportunity to litigate on the public's time. The agency risks the insolvency or bankruptcy of the violator (and thereby the risk of recovering no penalty whatever) while the lengthy proceedings continue. The absurdity of the process is highlighted by the absence of any power to proceed directly to court to seek penalties for violations. The penalty process in this state may therefore be construed as a judicial penalty power that is significantly burdened by the procedural requirement to first initiate and pursue an administrative penalty. In this state, the violator has little incentive either to avoid prolonged litigation, or to remain in compliance, particularly in the absence of a provision authorizing the state to recover the potentially exorbitant costs of litigation. The provision is likely instead to discourage the state from litigation and consequently to encourage the state to settle penalty cases. c. No Ability to Select the "Best" Forum A number of state legislatures have not empowered the state program to recover any penalties by judicial action. -^/ This is significant because, often, judicial enforcement is simply more timely and effective than administrative enforcement.-^-' Some administrative hearing boards, commissions, or agencies are so understaffed or so politicized, unsophisticated, or otherwise ineffective that the agency would prefer to have the option to seek penalties by judicial action, and not be delayed or subject to distorted rulings by a slow or incompetent administrative process. An effective enforcement agency should have the option of selecting the forum that is likely to be the most favorable to the agency under the circumstances of the particular case. 185/ See pp. 45-47, supra (Section II) and Table 13. 186/ Judicial civil penalty enforcement is particularly effective in Texas, where juries (not judges) assess the penalties. See Texas Report, at pp. 22-25. -82- ------- d. "Capping" the Penalty Some states, through a statute of limitations, preclude the filing of civil penalty actions for any violations occurring more than one year prior to filing. -HZ/ The significance of such an artificial "cap" on the ability to recover civil penalties for a continuing violation is highlighted by comparing the one-year limitation to Pennsylvania's 20-year limitation. 1M/ e. Hampering the State's Ability to Obtain Equitable Relief In some states the injunctive process cannot even be initiated affirmatively by the attorneys authorized to file the action unless and until (1) the agency responsible for enforcement has presented its case in a public proceeding, before an independent, quasi- judicial board/commission, (2) the violator is given an opportunity to object to the initiation of the case, and (3) the board/commission then authorizes the case to be re- ferred for filing. !2i' This very public, "objective" oversight process may be contrasted with the confidential relationship between EPA and the DOJ. It varies significantly from the absolute discretion of EPA (the enforcing agency) and DOJ to determine whether or not to file a case—unhampered by a quasi-judicial board/commission not directly charged with the responsibility for enforcing the RCRA requirements. In most states, the agency also does not have the option of selecting the court in which the enforcement action must be brought. The agency must file suit in the local county court where the violation occurred or the company maintains its business. 19Q/ It 137/ See p. 53, supra (Section II). 188/ EPA's own ability to seek penalties is arguably unlimited. At worst, the statute of limitations applicable to EPA action may be 5 years. 28 U.S.C. §2462. 189/ See pp. 54-55, supra (Section II). 190/ See pp. 56-58, supra (Section II) and Table 18. This means that agencies with limited monetary and professional resources must travel to outlying areas of the state to enforce orders, stressing those resources to a much greater extent than they would be if the choice of forum was up to the agency or if all proceedings could be brought only in one central court where government offices are located. The availability of a central court also promotes consistency in interpretation of the law and regulations of the agency's program because the court becomes familiar with the law and the agency's mission. Finally, the local forum may be unfavorable to the agency in a particular case. The obverse of a forum sympathetic to the agency's mission and familiar with its program is the forum located where the violator resides or has its principal place of business, which may be both unfamiliar with the program and hostile to the agency for taking action against a local business—action which it perceives as threatening to the economy of the region. -83 - ------- is only in a few states that the agency can opt for filing in either a central state court OP the local county court. In several states the violator can directly influence the choice of forum in which agency proceedings will take place and use that very process to delay the proceedings as well. -^-' Finally, in many states authorized by EPA, the state cannot seek and secure injunctive relief for a violation of a state order, a statutory program, regulation, or permit requirement without first proving that "irreparable injury" will result if the relief is not granted and that the "equities" of the state's case outweigh the equities (including, ejgy financial concerns) of the defendant. 1§2/ The significance of this unreasonable impediment to the effective judicial enforcement of RCRA requirements and agency orders is in sharp contrast to federal RCRA law 153-/ and those states such as Pennsylvania (which makes mere violation of an agency order a judicial contempt). !2!/ The choice of forum can have an impact on this standard, ill/ In several states local courts claim discretion to require the state to prove these additional elements—thus hampering enforcement. It is apparent that those state agencies that are attempting to enforce within a weak institutional structure are burdened significantly. These institutional problems are compounded by substantive and procedural impediments to effective judicial enforcement. Where the legislature has not proscribed judicial discretion, the inability to select and retain the most favorable forum can significantly frustrate and therefore "chill" effective, aggressive enforcement. EPA has not addressed state institutional deficiencies in its authorization and oversight role. 191/ See p. 57, supra (Section II). _192/ See pp. 50-52, supra (Section II) and Table 16. Other states provide that an order provides only presumptive or prima facie grounds for an injunction against a violator of the order. E.g.. Rhode Island Report, at p.3; South Carolina Report, at p.2. Jj)3/ See e.g.. EOF v. Lamphier. 714 F. 2d 331 (4th Cir. 1983). 194/ 35 P.S. §6018.603. Many states—either by statute or common law—require the issuance of an injunction even when the agency proves only a violation of the statute, regulation, permit condition, or order. See Table 16. 195/ See pp. 51-57, supra (Section II). -84- ------- 4. The Civil And Criminal Investigative Void Notwithstanding recent national recognition of the need for a strong criminal enforcement presence to assure the credibility of hazardous waste enforcement programs, and the hidden nature of much of the conduct subject to the civil as well as criminal sanctions enumerated in RCRA §3008, EPA has failed to require that each state demonstrate that its program include a significant centralized investigative I Qg / component.-^-' Some states have included trained investigators in the program office to supplement its inspection staff and assure a sophisticated surveillance, interviewing, and investigative capability, as well as the ability to locate and analyze relevant financial 1977 and legal relationships. Other programs have sought to develop trained hazardous waste investigative staff in the state attorney general's office in addition to or in lieu of the program office. -I^8-/ The absence of a strong investigative staff as part of the authorized program means that the most serious, willful, and flagrant hazardous waste violations will not even be detected. This in turn means that the administrative and civil, as well as criminal aspects of the state enforcement program are trivialized. The enforcement efforts will not be devoted to addressing the most serious civil or criminal violations. Only the most apparent, easily detectable and provable, violations will be found. -122/ Moreover, where state laws contain burdensome scienter (state of mind) and other more stringent proof requirements for criminal enforcement, the lack of an investigative staff is even more of a hindrance to enforcement. M£/ it is even less likely that these states will ever use those criminal provisions because of the difficulty of obtaining 196/ See e.g., Table 16. 1977 See e.g., Pennsylvania Report, at p. 3; Ohio Report, at pp. 1,30; and New York Report, at pp. 2-3. 1987 See e.g., Pennsylvania Report, at p. 3; Ohio Report, at p. 22; New York Report, at p. 3. One very de-centralized state has focused the investigative presence in regional program offices and county prosecutor's offices. (See California Report). 1997 At least one state program even requires, in its statute, that the state RCRA enforcement agency provide facilities advance notice of inspections. This practice at best may encourage some compliance efforts prior to inspection. In fact, it is certain to minimize if not eliminate the general deterrent effect of the state enforcement program and virtually assure that the worst offenders and offenses are never even detected. See pp. 43-44, supra (Section II). 2007 See Table 20. -85 - ------- evidence that will satisfy all of the difficult requirements for conviction. This is not an insignificant flaw. Rather, it is fundamental to the perceived enforcement leverage these states can bring to bear on a violator. -86 - ------- a EPA POLICIES DISCOURAGE THE DSE OF STRONG, DETERRENT STATE ENFORCEMENT AUTHORITIES EPA policies fail to recognize and take into account the major differences between EPA and the states, and among the states, in substantive and procedural laws and institutional structures. These policies also fail to recognize—and thus may undermine— -some of the potentially most effective and powerful state enforcement authorities, strategies, and practices. Well-intentioned EPA policies and oversight often affirmatively discourage some of the most resource-efficient and deterrent state practices. This frustrates state program officials whose enforcement resources are diverted away from enforcement and instead are devoted to justifying those resource-efficient and deterrent state practices (i.e., trying to persuade EPA of the legitimacy of their state enforcement strategies). Although, (as illustrated in Section III.B.), EPA has allowed some states to adopt and implement certain laws and procedures that potentially "chill" aggressive and vigorous enforcement, it has also directly or indirectly discouraged some of the most resource-efficient and effective state practices. These weaknesses in enforcement oversight stem generally from the following factors: o EPA's enforcement program is fundamentally designed to achieve compliance on a ease-by-case basis, not to create a credible, general deterrent enforcement presence. o EPA's oversight relies upon the inaccurate assumption that the state enforcement authorities are the same, are implemented the same way, and are accorded the same recognition by administrative and judicial forums, as are the apparently comparable federal authorities. o EPA's oversight fails to recognize and account for the significant strategic and practical importance of state laws other than the state "RCRA" laws in the effective enforcement of RCRA standards. We will address the negative effects of EPA policies on state programs by examining, first, in subsection C.I. below, examples of enforcement authorities that are unique to state programs, as well as the use by the states of authorities that are similar to the EPA authorities but employed differently from the EPA approach. We will then, in subsection C.2., focus upon how strong state investigative programs may be discouraged by certain EPA policies. We will then examine, in Section III.D., how EPA's policies fail to encourage, and may actually discourage, the creation and implementation of a general, deterrent state- wide enforcement presence. -87- ------- I- EPA Policies Have Not Recognized Effective State Enforcement Authorities or Strategies EPA oversight relies upon an enforcement response policy -25I/ that assumes that the strength of an enforcement program can be determined by the number of cases filed ('•e.i complaint/orders issued), rather than the nature, quality, and scope of those cases and whether those cases are likely to and in fact do achieve the desired results—viz., punishment, general and specific deterrence, and speedy compliance. EPA has relied upon the assumption that administrative orders and, where necessary, injunctions should be used to achieve compliance through a strategy that relies upon case-by-case enforcement. EPA expects that the function of deterrence and punishment will be achieved—again, on a case-by-case basis—by the initiation of numerous administrative and judicial civil penalty actions. EPA's enforcement strategy and oversight may, therefore, be characterized as an individual case approach, relying upon a limited selection of enforcement authorities, and a narrow interpretation of those authorities. As a result, EPA's limited approach to enforcement is one in which: o litigation takes place on the public's "time," not the violator's (i.e., the violator continues to violate and make profits while the administrative or judicial litigation and inherent litigation delays continue). o the government, not the violator, bears the burden of going forward in order to prevail in the litigation. o the violator may not be deterred from violating in the first instance, and is not given an incentive to voluntarily comply or quickly settle on the ageny's terms. o the agency loses the ability to independently control or frame the selected relief and remedy. a. General and Specific Deterrence and Enforcement Leverage; The License and Permit as Enforcement Tool EPA's oversight policies do not recognize the significant general and specific deterrent effect or the powerful settlement leverage that is available to a state that (even occasionally) employs quick, dramatic economic and personal sanctions. In such a state, the mere threat of such enforcement action is sufficient to compel an immediate settlement on terms that may be more stringent than those which could be obtained by 201/ U.S. Environmental Protection Agency Enforcement Response Policy, December 1984. -88- ------- the initiation of an EPA-type "compliance" order and civil penalty action. A program that even occasionally employs such severe punishment can effect a general deterrence effect, which also deters regulated entities other than the violator who is targeted in the suit. EPA does not recognize that it is in the interest of most violators to litigate, Q¥L! and that conversely, it is in the interest of the governmental regulator to refrain from litigation in order to conserve resources, to make the violator fear sanctions, and to create an incentive in the violator to avoid governmental enforcement action and litigation at "almost any cost." One of the most efficient ways to gain control over the regulated industry by imposing stringent sanctions, without engaging in endless litigation on the public's "time," is to employ license and permit actions as enforcement tools. Those states that understand and aggressively use these tools exercise powers that in some instances are greater than those which have been delegated by Congress to EPA. Among the strongest tools for achieving compliance and deterring violations are those that empower the enforcement agency to ultimately control the potential source of pollution (such as a TSD facility) or operating entity. As shown at pp. 9-27, supra, 2037 licenses and permits ' provide the ultimate power to the agency to control, limit, or prohibit the existence and operation of a business and the right of a corporate or other 202/ Most violators assert that they have a "right" to litigate. For example, in a multi- violation case, a defense attorney may offer to settle (and pay penalties for) the obvious violations. The attorney will argue to government counsel, however, that it wishes to and has a "right" to litigate a given count or issue because the regulated entity does not believe that the law is constitutional as applied to it, or because the agency is improperly interpreting the applicable regulation, or because the violation was an "accident," and should not be subject to suit. Aggressive and competent government counsel will refuse to allow the entity the benefit of litigating the most favorable count while settling the others; almost inevitably this government position—by forcing the violator to litigate its worst counts—will compel a settlement extremely favorable to the government on all counts. The agency avoids the risk of an unfavorable interpretation of the law, avoids wasting its limited resources in litigation, and achieves a settlement quickly—on its own terms. Similarly, companies that are refused a permit or permit amendment because of an existing violation often assert their "right" to litigate the "question" of the violation. By refusing to allow the litigation of the "question" of the violation until the company has ceased operating (in accordance with the permit denial), agency counsel effectively deprives the regulated entity of the "luxury" of litigating. Such pre-denial litigation would delay resolution of the matter while wasting agency technical and legal resources in lengthy, unnecessary proceedings. 203 / We do not include EPA's post-closure permits in this category. We include only those licenses and permits that afford a right (or "privilege") to conduct business—e.g., transport waste, operate a TSD facility, etc. -89- ------- entity to do business in a state, The strengths of licenses and permits as enforcement tools are that: o Denial, revocation, or suspension of a permit or license (even if only temporary) operates as an economic sanction that can be and is usually substantially greater than the civil penalties assessed by administrative commissions or boards (or courts) under similar circumstances. o The mere threat of denial, revocation, or suspension (if credible, based on substantive provisions and simple procedures) is likely to achieve prompt settlement on the agency's terms, avoiding prolonged litigation. Denial, revocation, or suspension can achieve prompt, dramatic results. For example, in some states, under some circumstances, revocations and suspensions—as well as license and permit denials—require immediate and continued cessation of operation even while administrative and judicial appeals are pending. ^J That is, even an administrative appeal (and request for hearing) need not operate as a stay of the agency action. Administrative or judicial civil penalty actions, on the other hand, can result in lengthy proceedings. The penalties that are eventually assessed are usually inadequate to penalize detected violations, recover the costs saved by the violating entity, and deter future violations. The violator is not even required to pay any penalty until after conclusion of the quite lengthy proceedings. 2z2i And in some cases, penalties may 204/ A number of states have required the licensing of transporters, the posting of financial security as a condition of the license, and other comprehensive controls over the hauler and the driver. See pp. 10-12, supra (Section II). These states frequently argue that such controls are necessary to truly implement "eradle-to-grave" regulation over hazardous wastes. The importance of this tool is that the agency can more easily and quickly sanction a violator for repeated violations by denying a renewal application (at the end of the license year) or by revoking or suspending the license and forfeiting the bond or other financial security. Although license denial is frequently more efficient and easier to defend on appeal because the burden of proof may rest with the applicant and the licensee may be unable to secure a stay pending disposition of the case, serious violations or recalcitrant conduct may require immediate suspension or revocation. The transporter license can also be useful in addressing TSD violations at facilities operated by a transporter. For example, the transporter license revocation authority allows the state to immediately terminate a profitable transporter business on the basis of the licensee's violation at a TSD facility, even if the state does not require that the TSD facility itself be licensed. 205/ See pp. 22-23, supra (Section II). 2067 Compare the prepayment requirements of other types of civil penalty enforcement provisions; see. e.g.. §605(b) of Pennsylvania's Clean Streams Law, 33 P.S. §691.605; Texas SolidlTasteDisposal Act, Article 4477-7, §86, Yemen's Texas Civil Statutes. -90- ------- never be recovered because of the insolvency or bankruptcy of the entity. Denials, suspensions, and revocations may be easier to litigate. For example, the agency can, in some cases, shift the burden of proof and burden of going forward in the litigation to the permittee or permit applicant and create a very heavy burden for the violator. Also, in several states, licenses (and sometimes permits) must be renewed or amended frequently thereby allowing the agency to simply deny a renewal or amendment application, rather than to revoke a license or permit. The violator must bear the burden of showing its entitlement to the license or permit. -25Z/ Customers (e.g., generators and transporters) of a temporarily or permanently ceased operation are usually reluctant to conduct future business with that entity because of the risk to their own business. On the other hand, civil penalty assessments rarely cause such significant incidental, as well as direct, detrimental economic effect on the sanctioned violator. Permit and license suspensions and revocations are also the most efficient (i.e., most timely and less costly) means of sanctioning a recalcitrant operator, i.e., a repeat violator. One major permit suspension or revocation is usually more effective and more efficient than numerous separate orders and civil penalty actions instituted over several months or several The suspensions and revocations do not rely on an assumption that the agency must order someone to comply with the law, i.e., to do what they are already required by law to do. Instead, depending on state procedures, suspensions and revocations provide an immediate sanction (e.g., closure/cessation of operation) for failure to maintain a facility in constant compliance with the law. Unlike orders, therefore, they can deter and not just correct violations. The suspensions and revocations can leverage settlements, which allow the agency to compel relief on its own terms. An agency that wishes to avoid prolonged litigation before a board, commission, ALJ or judge — in 207/ See Table 3 and p. 15, supra (Section II). This can occur either as a function of the administrative procedures in the state, which may place the burden of showing entitlement to a permit on the applicant or alternatively, by specific statutory language shifting the burden of proof to the violator or permittee. An example of the latter is state statutory provisions that place on the facility operator or owner the burden of proving that the treatment, storage and disposal facility did not cause groundwater degradation once the agency merely proves that nearby groundvvater is contaminated, even if the agency offers no evidence of causation. (See, e.g., Sec. 611, Pennsylvania Solid Waste Management Act, 35 P.S. §6018.611; Louisiana Solid Waste Management and Resource Recovery Law, Rev. Stat. §30:1147.1(13); see also Fla. Stat. §403.727.) 208/ See e.g., Maryland Report, at pp. 24-30. -91 - ------- which it must bear the burden of proving that certain proposed relief is the most effective—can instead easily compel a speedy settlement embodying such relief by threatening or implementing a suspension or revocation. The permittee—deprived of the right to operate and "profit"—will often propose to fully cooperate in crafting a settlement that is acceptable to the agency. ^J In a number of states, permit holders are required by law to comply with all applicable regulations, even when those regulations are new and not yet incorporated either by reference, or explicitly, in the permit. Therefore, these states may elect to suspend or revoke a permit for repeated violations of either the permit or the regulations, in lieu of filing numerous actions to seek compliance or penalties. It is apparent that the state's power to use this tool operates as a significant deterrent, particularly if it is used selectively against recalcitrant operators. The careful handling by the agency of the permit issuance is also crucial to maximize the power and efficiency of the permit as enforcement tool For example, the agency can secure necessary enforceable permit terms and conditions by refusing to issue a permit until the applicant accepts, agrees to, and waives the right to contest all permit conditions. 112/ Even where the agency may also elect to subsequently issue a remedial order to require submission of a closure plan and to effect closure on the agency's terms, or order abatement of the violation, permit revocation or suspension is important as an initial enforcement action. Such action can prevent acceptance of additional waste at a 209/ See e.g., Pennsylvania Report, at pp. 9-11; and Maryland Report, at pp. 24-30. See also Ohio Report, at pp. 27-29; Michigan Report, at pp. 7-9 and 15-16; and Connecticut Report, at p. 18. 210/ Both Michigan and Pennsylvania have recognized and employed this strategy to assure that no permit is issued without strong, enforceable terms and conditions; to avoid having to devote limited technical and legal resources to the defense of permit conditions while the applicant enjoys all the benefits and privileges of the permit; and to assure that the agency, which is charged with determining whether and how the facility should be operated—not an untrained third-party such as an ALJ or judge—has sole and final determination over the terms that condition the right or privilege to operate (i.e., the very essence of the permit). Again, these agencies have marshalled and controlled their limited technical and legal resources to assure that if litigation over the permit is to occur, it will occur on the applicant's time (e.g., while the permit is withheld or denied and no operation of the TSD is allowed), not on the public's time. Usually, a settlement is leveraged without litigation for that very reason: the applicant wants its permit and does not wish to await the disposition of lengthy administrative and judicial hearings and appeals. -92 - ------- violating facility, such as a facility that is or may be releasing substances into the environment. In addition, permit action can determine and control the appropriate remedy or relief. For example, cessation of operations (permit revocation) often should be required before the appropriate remedy (e.g., closure or other remediation) is determined by the agency. This approach will secure the leverage necessary to a prompt settlement, with the agency in ultimate control of the remedy. A suspension or revocation can also indirectly assure that transporters and generators immediately cease doing business with the violator. The agency can, for example, issue notices to transporters and generators identified in the permit informing them of the illegal, i.e., suspended, status of the operation. Finally, a permit revocation or suspension, if immediately effective, can also allow the state to forfeit and immediately (without litigation delays) recover the financial security posted as a condition of the permit or license. Oil/ Some state agencies - are authorized or required to deny a permit to any person who: o is in violation of any environmental law of the state or of any other state; or o has a history of violation of the environmental laws of that state or of any other state. This permit "block" has been and remains an extremely powerful enforcement tooL For example, in one state if an entity is violating any state RCRA or other environmental law (e.g., groundwater, air, etc.) at anv_TSD or other facility, the agency is required or authorized to prohibit the modification of that facility or any other commonly owned or operated facility. The operation of the permit bar can even prohibit the receipt of any new "waste stream" (i.e., any waste from a new customer even if the waste has the same characteristics and classification as currently permitted wastes) at either the violating TSD facility or at any other facility in the state, even if that other facility is in compliance. It can also prohibit construction or operation of a new facility or prohibit the continued operation of any existing facility that requires a new In practical effect, the violator is immediately penalized— by a significant economic sanction— upon detection by the agency of any violation at any facility in the 211/ See pp. 18-21, supra (Section II) and Table 3. 212/ See pp. 18-21, supra (Section II) and Pennsylvania Report, at pp. 20-22 and 25. -93 - ------- 213/ state it has been reported to us by states that do not have the benefit of the permit block that companies are reluctant to allow even those states to include a "finding" of violation in a settlement document because of the powerful effect of the findings in the "permit block" states. The full implication of the "block" is further illustrated by its effect in any state in which any discharge (or "release") of any substance into the groundwaters, constitutes an immediate violation of law. Hi/ That state is plainly authorized to deny a permit to any facility if there is any unauthorized release from such facility or any related facility or property in the state, M§/ EPA's oversight policies view the compliance order/civil penalty as normative for enforcement. This produces an incentive for states to use this remedy rather than to invest their efforts in developing permit revocation, or other permit-based, cases. The enforcement choice should be based on what produces the optimal on-the-ground result and the optimal general deterrent effect on the regulated community. Instead, states may frequently adopt the EPA normative order/penalty style as the basis of their own enforcement merely to "satisfy" EPA oversight. As a result, the array of state enforcement authorities, including the powerful leverage of the permit (and the concomitant shut-down power) are unrecognized or ignored in day-to-day enforcement. Because even the permit bar—one of the most powerful enforcement tools—is not acknowledged by EPA policy as an enforcement authority, states are discouraged from selecting and using that authority in lieu of the "easier" compliance order/civil penalty that does "satisfy" EPA oversight. 213/ The permit "block" is so effective that those "blocked" and therefore economically penalized, have sometimes (albeit without success) filed "civil rights" injunctive and damage actions in federal court against the agency officials who impose such sanctions in an attempt to compel judicial removal of the "block." The courts have effectively upheld the use of this tool 214/ See pp. 18-21, supra (Section II), pp. 98-99, infra, and Table 2. 2157 The effect is that §3004(u) of RCRA is already the law in such states. Moreover, the release need not be from a "solid waste management unit" in order for the permit block to take effect. -94- ------- b. General and Specific Deterrence and Enforcement Leverage; The Immediately Effective "Shut-Down" Order Another, similar, authority, which can effect immediate punishment, leverage immediate compliance OP settlement, and avoid litigation on the public's "time", is the administrative or judicial "shut-down" order or decree. Administrative orders have been or may be used to o require the cessation of an operation, o require compliance with the law, o require study and site assessment, o revoke or forfeit a bond or other financial security, o require an increase in a bond or other financial security, o require modification of a permit or submission or modification of a closure plan, o unilaterally assess civil penalties, and o require the submission of reports, data, information. EPA has founded its enforcement policy upon the "compliance order" and the "study" order. It has used the administrative order process to require compliance with existing obligations of law, to require study and reporting, and to require abatement of conditions or activities harmful to the environment. The orders used by EPA are, therefore, much like traditional state public nuisance authorities—the authority to abate conditions harmful to the public and to require compliance with law. However, many states use administrative order authorities to require immediate compliance with law by ceasing the profit-making activity, which is the cause of the violation or harmful condition. When this type of order is used in a state in which the order is unilateral, immediately effective, and not stayed by administrative hearing, it is a very powerful tool, one that cannot even be fairly compared to the EPA "compliance" order. For example, in one state: the order is effective immediately, without prior hearing, and is not automatically stayed by a request for administrative review or hearing; failure to comply with an order that is not stayed subjects the violator to judicial contempt; and the only issue before the court in the contempt action is whether the agency order was violated. 216/ See Pennsylvania Report, at pp. 12-14. -95 - ------- Because this order is immediately effective, it cannot (in practice) be issued without attorney review and approval unless and until the agency and counsel are ready to litigate the case. This is because the recipient of the order has the right to an administrative hearing within 5 days of receipt of the order, at which time it has a right to attempt to prove that it is entitled to a supersedes or stay of that order. Although it is difficult to secure a stay or supersedeas —/ the agency must, before it issues the order> be prepared to try the case in a formal administrative proceeding, where formal and full discovery, motion practice, and other typical civil pre-trial procedures are available. Even during the pendency of the administrative appeal process, the order remains effective if it has not been superseded. If this unilateral (or ex parte) agency order is violated during this period, or after administrative proceedings are concluded, the agency may seek a contempt citation and penalties in court or at least an injunction for violation of the agency order. £!!/ in either enforcement proceeding, the only issue before the court is whether the order was violated. The agency need not prove that there was a violation warranting initial issuance of the order, or that the order or remedy is reasonable. The validity of the order is not before the court-only the question of whether or not it was violated. 21T/ The violator has the burden of proving, inter alia, that it is likely to succeed on the merits of the appeal and that no irreparable injury to the public or environment will occur if the stay is granted. ZIS/ The violator of this type of order is, under the law of that state "guilty of contempt" and "shall" be punished by the court. 35 P.S. §6018.603 (Pennsylvania). 2l9f This order may be compared with an EPA proceeding or proceeding in other states in which: o the agency initiates an administrative ALJ hearing (by order or "complaint"), o the order is stayed during the pendency of the proceedings, o the ALJ decision is, in turn, appealable to another administrative official or entity, o the enforcement agency seeking an injunction must prove not only the violation of the order, but also may undertake in the proceeding to: — defend the validity of the order or the merits of the original case — affirmatively prove that irreparable injury will occur if the injunction is not granted and — prove that the equities of the case compel the relief requested by the government, o discovery is precluded or limited, o the agency is not empowered to seek a contempt citation for violation of the administrative order, but must first secure injunctive relief requiring that the administrative order be obeyed. -96- ------- By failing to recognize that a unilateral order of this type is qualitatively different—and dramatically more effective—than the "EPA order," EPA policies again effectively discourage the use by states of the more effective tool EPA policies, for example, require that the state "orders" be issued within a specified timeframe, which corresponds to the reasonable timeframe for issuance of EPA "orders." The policies do not recognize that the unilateral state order has the force and effect of the final EPA order—that is, the EPA order that is effective after hearings before the EPA ALJ. By treating the state order as the weaker complaint/order that EPA issues (but which is not "final" if a hearing is requested), EPA ignores a significant legal distinction. While the state must be prepared to litigate its more powerful order within days after issuance and so must devote substantial effort to case preparation, EPA has months to prepare its case pending hearing. The EPA oversight timefnames do not recognize either the legal or practical distinction and, accordingly, do not reward or encourage—and may even discourage—the use of a very powerful state tool c. The Strengths and Breadth of the Police Power; Integrated, Multi-Media Enforcement (1) The "Problem-Oriented" Approach Many state agencies tend to first identify or respond to a health or environmental problem that is discovered pursuant to an inspection or investigation or in response to a citizen complaint. The state may only then turn to its hazardous waste, groundwater, air, or other environmental, public nuisance, or criminal statutes to identify the authorities and remedies to address or sanction the problem. The problem-oriented state approach is, in many cases, a function of the fact that many agencies had developed and enforced many environmental statutes and developed and used strong enforcement authorities (including those comprehensively regulating groundwater) well before RCRA compelled such regulation. Therefore, the state agencies may, in any order or other litigation, seek to enforce not only the "RCRA violations," but also identify and address the entire multi-media, often complex, problem and even criminal conduct associated with a site or individual. State agencies may also rely upon public nuisance authorities (either in equity or by administrative order), which permit or direct them to address and remedy even those environmental or health problems that do not constitute violations of any state or federal statute or regulation, -2M' as weu as to secure remedies that are more stringent than those provided by state or federal law or regulation. In general, this 220/ See p. 52, supra (Section II). -97 - ------- approach is somewhat different from that of EPA. For example, an EPA investigator (or other compliance official) is more likely to determine—by review of a monitoring report or an inspection report—violations of RCRA regulations, and then use RCRA as the authority for addressing the problem. The EPA staffer focuses instead on identifying and addressing the "violation" of RCRA, rather than the environmental or health "problem." (2) The Prohibition Against Releases to Groundwater A number of state agencies employ water pollution control laws, which prohibit pollutional and unpermitted discharges or releases to groundwater, as primary enforcement tools. 121' AS interpreted and enforced by these states, state law prohibits that which is actually tolerated by RCRA. That is, under RCRA, a release from a TSD facility or generator to the groundwater merely authorizes EPA to issue an order requiring the cessation of the release and the abatement of the pollution. The order generally must afford the owner/operator time to "assess and abate" or otherwise comply, and may be stayed during the pendency of EPA administrative hearing review. In contrast, the state statutes establish an immediate violation—the very release constitutes a violation of the law. This means that the state agency has immediate leverage—it can institute civil penalty or criminal action or permit revocation or suspension. It may issue an order ceasing the operation causing or allowing the release, and/or other operations as well, and even (in some states) withhold all future permits and permit modifications. It can take such action immediately and without having to assume the burden of proving that any particular relief is desirable or appropriate or necessary or that such action is required in order to avert immediate and substantial endangerment. Of course, if it chooses, the state can also issue an order requiring assessment and abatement or compliance, or seek an injunction requiring such relief. However, unlike EPA, the state need not prove in such cases that the release creates an imminent and substantial endangerment, nor (alternatively) that the release emanates from a TSD facility that operated after a given date. The state can issue such orders for any release from any site or facility, closed or operating, without assuming the burden or proving that the release creates an imminent and substantial endangerment. It is significant that certain state agencies are not only authorized to issue an order requiring abatement of a release without having to satisfy the evidentiary burdens to 22II See e.g., Connecticut Report, at pp. 7-8; New Jersey Report, at pp. 32-38; Pennsylvania Report, at pp. 11, 28; Louisiana R"eport, at pp. 4-5, 24, et seq. Texas Report, at pp. 8, 22-24; Florida Report, at pp. 14-15; and Washington Report, at pp. 24- 25. -98- ------- which EPA is subject, but they also enjoy the leverage of deeming the facility to be "in violation" of the law as of or even prior to the date of the agency's initial detection of the release. That is, the state agencies have the ability to leverage a settlement which contains the same or more stringent relief which EPA could obtain only after issuance of an order, which is subject to challenge and defense on the merits before an ALJ. The state settlement can be secured immediately, without prolonged litigation; the settlement can'even contain commitments and standards beyond those authorized by statute; and the settlement can assure that the agency's requirements are executed in accordance with a schedule, relief, and other terms fully acceptable to the agency. (3) The Inherent Conflict with EPA Policy/Expectations It it important to acknowledge and understand this integrated, "problem-oriented" approach to enforcement. This approach may explain why a state agency, which is willing to address, with tough enforcement, the state "RCRA program" violations, may nevertheless refuse to issue a piecemeal "RCRA order" in what EPA may deem a "timely fashion." This apparent state-EPA conflict may occur, for example, when the state's attorneys are in the process of developing a major multi-media enforcement action, which will not only include "RCRA" violations, but also will result in stronger sanctions (e.g., site closure) and a more extensive, more costly, and more effective overall clean- up. Piecemeal issuances of "RCRA orders" or penalties could even create legal disabilities and problems in the litigation of the larger case, while at the same time having no real salutary effect on the "RCRA violations." The disparity between this type of integrated state approach to enforcement and the approach driven by RCRA is exaggerated by EPA oversight policies. By encouraging compliance orders and civil penalty actions rather than shut-down orders, permit "bars," suspensions or revocations, bond forfeitures, and personal civil and criminal liability, EPA actually encourages affirmative actions in which the agency carries the burden of proof and the burden of going forward and tolerates delay and litigation on the public's time, with the consequent devotion of limited technical and legal resources to virtually all cases rather than a concentration of resources on a few, targeted individuals or entities. By limiting the time for initiating action on a "RCRA violation," the state may be precluded (or at least discouraged) from addressing the major problem at the site with the most powerful and relevant legal tools, strategies and resources, and is encouraged instead to initiate a minor, relatively ineffective and limited, enforcement action for no -99- ------- reason other than to satisfy EPA timeframes and policies. —/ 2. EPA Policies Do Not Require, and May even Discourage, the Intensive Investigative Approach Necessary to the Detection and Punishment of Major Violations A credible, state-wide enforcement program includes criminal actions and personal civil and criminal actions against responsible individuals and corporate officials. Even the most severe criminal laws, or laws relating to personal corporate liability, will be ineffective and without meaning in the absence of a strong, sophisticated investigative program capable of detecting "hidden" violations and identifying the individuals personally responsible for violations of law. EPA's own enforcement policies and institutional structure recognize the importance of the investigative presence in a hazardous waste enforcement program. Nevertheless, although EPA has required that the states adopt criminal liability provisions at least equivalent to those set forth in RCRA, it has not affirmatively required the states to establish the capability to detect or investigate and prove a criminal violation. Moreover, by adopting and implementing oversight policies that require the initiation of enforcement action against violators within a specified timeframe, EPA effectively discourages the state from undertaking the type of surveillance and investigation necessary to determine whether the case should proceed administratively, civilly or criminally. At best, by excluding from the required timeframes for initiation of legal action only eases that have already been targeted as "criminal" and "referred" for criminal investigation and prosecution, EPA discourages the intensive investigation 2227 Thus, for example, EPA may be frustrated by the state's unwillingness to seek to issue orders and penalty assessments for a series of repeated RCRA program violations at a facility, while a state agency may be in the midst of formal proceedings to permanently terminate the violator's right to operate and to seek a clean-up more extensive than that required by RCRA. The state would contend that the ultimate economic sanction of shut-down is in process; that the initiation of additional penalty actions could frustrate the success of that action; that the penalties would (even in the most favorable of forums) be relatively minor as an economic sanction; and that, in any event, additional penalty actions or criminal actions against the company or its officials could be instituted separately, at a later date, after final determination of whether the agency's permit revocation action is upheld and that the framing of the appropriate remedial orders must in fact await a final decision on the revocation in order to assure the most appropriate remedy. Finally, the state will argue, the problems addressed and the remedy sought are broader than EPA's RCRA program can achieve under any circumstances. - 100- ------- necessary to strengthen and focus a civil case and effectively compels the state to prematurely and artificially determine whether a case is "civil" or "criminal." •£=!' Because EPA policies assume that the states should institute routine action (orders and civil penalties) against virtually all violations and violators within a given class, rather than that they should target a set of violations or violators for severe punitive enforcement action, the agency effectively discourages the use of (perhaps lengthy and complex) investigations to target corporate officials; to detect "hidden" violations; or to characterize and prove other violations as "deliberate." EPA policies thereby make it more likely that only the obvious violations will be detected and that the individuals responsible will be protected. Further, the EPA policies seek to assure only that most violators will receive a civil penalty, which is usually deemed by the company to be no more than the "cost of doing business," but not that some violators will be severely and even permanently punished by immediate tough personal sanctions and/or imprisonment. Because of the routinization of enforcement response, investigation is deemphasized. Thus, EPA policies effectively encourage the violator to "wait" until the violation is detected. Only then has the violator any incentive to comply. 2237 The problem is illustrated most dramatically in Ohio. In contrast to Pennsylvania, Maryland, and New Jersey, which have institutionally separate "criminal" and "civil" litigation units, all cases that are not settled at an early stage by the Ohio EPA are referred to the attorney general's office, which investigates the case in conjunction with the agency's investigators. This practice assists in determining whether a case is to be filed "civilly" or "criminally," and maximizes the use of investigative resources to strengthen administrative and civil, as well as criminal, cases. - 101- ------- D. EPA POLICIES DO NOT ENCOURAGE—AND MAY EVEN DISCOURAGE— THE CREATION/IMPLEMENTATION OF A GENERAL, DETERRENT STATE- WIDE ENFORCEMENT STRATEGY 1. The "Mix" of Authorities; The Importance of Leverage in the Enforcement Program Strong state enforcement programs often rely upon a mix of administrative and judicial enforcement authorities, and the leverage created by those authorities, to achieve an enforceable settlement (whether by administrative or judicial consent order) as well as voluntary compliance. In some states, for example, administrative "RCRA" consent orders are achieved quickly because of the leverage created by the various judicial and administrative sanctions available to the agency: criminal actions; 1M/ 2257 22B7 permit "bars;" ' permit suspension/revocation or shut down; =^-' judicial equitable 2277 enforcement and/or judicial civil penalty action; -^-' the threat of a state superfund 228/ treble damages action; -=-2/ or the suits under the state water quality law. 2. The Inevitable Failure of a "Case-by-Case" Oversight Policy By focusing on how states address individual cases and by failing instead to examine the panoply of enforcement authorities available to a state agency to compel or leverage compliance settlement in all types of cases, as well as how those authorities are used and have been used by the state and how they are publicized to regulated industry, EPA has ignored that which may be the most significant aspect of the enforcement program— i.e., the existence of a credible, deterrent enforcement presence. Oversight should not be driven solely by the examination of the program on a case-by-case basis, but by an 2247 See e.g., Ohio Report, at pp. 29-33. Even the initiation of investigations or grand jury proceedings (not only the formal filing of an indictment or the initiation of criminal actions) are dreaded and deterrent agency actions. 2257 See e.g., Pennsylvania Report, at pp. 20-27; Maryland Report, at pp. 24-30. 2267 See e.g., Ohio Report, at pp. 27-29; Pennsylvania Report, at pp. 9-11 and 20-27; and Michigan Report, at p. 16. See also New Jersey Report, at pp. 22-24. 2277 See e.g., Texas Report, at 16-17; Ohio Report, at pp. 21-24; Connecticut Report, at p. 17; and Florida Report, at pp. 13-14, and 16. 2287 See e.g., Illinois Report, at p. 21; New Jersey Report, at pp. 8-9. New Jersey's property transferability bar (ECRA) can also be used as leverage to obtain cleanups at RCRA and non-RCRA sites, supra, at pp. 64-65. - 102- ------- examination of the strengths and weaknesses of the program as an entity. The question should jiot be whether the state agency has filed a particular prescribed enforcement action within the scheduled timeframe, but whether the agency is capable of swiftly and effectively leveraging compliance and stringent settlement orders or decrees (which include substantial sanctions) =-2J as a natural response to the overall enforcement presence established by the state. -£H/ Many states secure sanctions that may be as (or more) important or punitive than civil penalties. Some states clearly articulate and implement policies that emphasize criminal punishment at the expense of civil penalty recovery. 221/ for example, the state may forego a civil penalty action where the state intends to preserve the right to successfully pursue criminal action for fines against the defendant and wishes to avoid an equitable defense based on the separate civil penalty action or settlement. Many states waive civil penalties where the state obtains relief more stringent than that required by federal—and even state—law. A state may, for example, require financial security for a facility or settlement that is greater than that authorized by law; require that more stringent performance or operating standards be included in a settlement; or require that facilities or sites that are not covered by the state statute be included in the settlement, or, the state may simply wish to avoid litigating a "weak" case where—because of the facts and equities unique to the particular case, or the expected biases or propensities of the judge or forum—the penalty available to the state in the given case is likely to be so small as to "trivialize" the seriousness of the violation or the litigation of a compliance order or injunctive action is likely to result in a 229/ Or more stringent settlement relief than the law otherwise allows. 23Q/ Some states even use such vehicles as permit applications and petitions for "de- listing" of hazardous wastes as a means of securing enforceable conditions (in the case of permits) or enforceable administrative orders (in response to de-listing petitions), which make any violation of any condition or term of any de-listing automatically a violation of law, subjecting the violator to numerous penalties and remedies in addition to the voiding or withdrawal of the de-listing. The importance of the use of leverage in achieving new, enforceable documents is described in footnote 210 supra. 231/ For example, Maryland has publicly identified its criminal enforcement effort as its "primary" mechanism for the imposition of sanctions (jail terms and fines). Prior to calendar year 1986, Maryland collected substantially more in criminal fines each year than it did in civil penalties. Maryland Report, at p. 24. - 103 - ------- weakening of the substantive law 122/ or the law regarding the assessment of penalties. The state may also understandably (temporarily or permanently) refrain from seeking penalties where necessarily limited agency and legal resources are diverted to other more important cases (such as permit denials or other action requiring immediate legal defense or affirmative remedial action) and the penalty expected to be recovered in the particular case is (by any measure) not worth the government expenditures necessary to pursue the civil penalty litigation. ^M/ Penalties may be legitimately waived by the state where compliance and abatement can be secured in a settlement against a bankrupt entity or entity against whom bankruptcy proceedings are pending; where the state is seeking or has already assessed or recovered civil penalties against another individual or corporate defendant for the same violations; or where the violator is likely to regard the penalty as no more than the "cost of doing business" and is not deterred by the publicity generated by the assessment. The decision to initiate any legal action, as well as the choice of appropriate remedy or sanction, necessarily requires some consideration of the equities of the case. Many state agencies recognize the importance of prevailing in virtually every action brought by the state. A state that is not careful to litigate only those cases which it is likely to "win"—and that does not devote the legal and technical resources necessary to "win," and win clearly—is likely to undergo a loss of credibility, will develop damaging administrative and judicial precedents,!^ which further damage the enforcement credibility and strength of the state, and will be less able to achieve voluntary compliance or swift and stringent settlement orders and decrees. That state will therefore have to litigate more cases, with weaker law, in an attempt to achieve compliance. It will be less likely to deter violations in the future, and will instead expend more resources and time in litigation of each case than the state that enjoys 232/ A state may, for example, elect to avoid litigation that may involve challenge to a state statute or regulation on facts unfavorable to the state. Instead, it may use "threatened" penalty leverage to obtain an enforcement settlement on the agency's terms (perhaps secured by a bond or letter of credit), which requires compliance with the statute within a reasonable period of time. The state may elect to refrain from instituting the penalty action in exchange for the certainty and immediacy of compliance on its own terms. 2337 See e.g.. Connecticut Report, at pp. 17-18; Maryland Report, at p. 24. 234/ See e.g., Illinois Report, at p. 7. -104- ------- strong administrative and judicial precedent. EPA does not account for any of the foregoing circumstances in its existing oversight policy. It instead encourages the initiation of cases that may actually divert the agency's resources from pursuing and maintaining an aggressive credible deterrent enforcement presence throughout the state by addressing the most pressing cases with its limited resources. On the other hand, EPA oversight policy often fails to recognize the enormous resources that are often required to defend aggressive enforcement—i.e., action that seeks more than a penalty regarded by the violator as the "cost of doing business" and more than an order requiring compliance with the law. A state that does take firm, swift, and immediately punitive action against a violator—such as requiring the shut- down of a profit-making enterprise—may be forced to marshal significant resources in response to a vigorous defense by the violator, as well as to aggressively defend numerous (if ultimately frivolous) affirmative law suits against the agency and its employees initiated by the violator in response to the agency's aggressive enforcement staff. 151' The agency and legal staff representing the agency may simply be unable to handle the hundreds of minor civil penalty actions 15§/ required by the EPA "RCRA" program in a "class" of cases because the agency's resources (including perhaps two full- time lawyers) are diverted to prosecuting and defending major law suits against major violators. 2357 See e.g.t Pennsylvania Report, at pp. 20-25. 2367 In the absence of "investigations" to complement the violations detected in a traditional agency "inspection," the civil penalty actions are often instituted only for the non-hidden—and even, perhaps, least serious—violations. Again, the uniformity of the case-by-case EPA oversight policies necessarily skews enforcement toward the simple, less important violations, and discourages both the intensive investigation and the really serious sanctions (e.g.. shut-downs and criminal actions) necessary to create an aggressive, deterrent overall enforcement program. - 105 - ------- IV. IMPLEMENTATION OF THE STUDY AND ANALYSIS The study reveals that while EPA should not necessarily be "tougher" or "weaker," it must be more realistic and practical in its oversight of the state enforcement programs. It must, for example, recognize and encourage the development of an overall credible enforcement program within the state. It must modify existing policies that tolerate a weak enforcement program, and adjust those policies that may discourage aggressive enforcement. EPA must also modify its own policies and procedures to maximize its own enforcement (as well as state oversight) strengths and capabilities. The following initial steps should be taken: 1. Briefing papers should be prepared and presented to EPA Headquarters and Regional staff. The papers should (a) Provide guidance and assistance in strengthening EPA's review of state program submissions. ~~ (b) Provide guidance and assistance to EPA in applying oversight policies The guidance should explain how EPA oversight affects certain state ' practices, and inform EPA of the various legal and institutional constraints and strengths of the various state programs. Regions should be briefed on practices and procedures within the states within their jurisdiction. 2. Guidance should be prepared and presented to state officials. The guidance should inform the states of the legal and other changes necessary to strengthen their enforcement authorities to satisfy EPA program requirements. 3. An analysis and briefing paper of federal RCRA enforcement authorities should be prepared and presented to EPA Headquarters staff. The analysis should identify: (a) The existing regulatory enforcement authority weaknesses in EPA enforcement practices that can be remedied by changes in EPA strategy, policy, or regulations. (b) The existing weaknesses in RCRA enforcement authorities that can be remedied by congressional amendment as part of the RCRA reauthorization process. This federal analysis should draw substantially upon the enforcement information gathered from the state enforcement authority study. - 106 - ------- T A B L E ------- TABLE 1 STATES REQUIRING TRANSPORTER LICENSES State Yes No Alabama X Alaska X Arizona X Arkansas X California X Colorado X Connecticut X Delaware X District of Columbia X Florida X Georgia X Hawaii , X Idaho X Illinois X Indiana X (liquid industrial waste) Iowa X Kansas . X Kentucky X Louisiana ' X Maine . X Maryland X Massachusetts X Michigan X Minnesota X (not implemented yet) T-l- ------- Table 1 (continued) State Yes No Mississippi X Missouri X Montana X Nebraska X Nevada X (no regulations yet) New Hampshire X New Jersey X New Mexico X New York X North Carolina X North Dakota X Ohio X •Oklahoma X Oregon X Pennsylvania X Rhode Island X South Carolina X South Dakota X Tennessee X Texas X Utah X Vermont X Virginia X Washington X T-2 ------- Table 1 (continued) State Yes No West Virginia X Wisconsin X Wyoming X Total 28 23 T-3 ------- ------- T A B L E ------- TABLE 2 Alabama Alaska Arizona STATUTORY STANDARDS FOR PERMIT REVOCATION, SUSPENSION o violation of specific substantive requirements o danger to public health, safety or welfare Not set out in statute Rule adopts 40 CFR 270.43: o violation of permit conditions o misrepresentation o danger to health or environment that can only be reduced to acceptable levels by revocation Arkansas o violation of permit, rules, regulations, statute California Colorado Connecticut Delaware District of Columbia o o o o o violation of any hazardous substances statute or regulation in a manner showing a recurring pattern, or threat to health, safety or the environment aiding or abetting such violation misrepresentations failure to comply with order related criminal convictions regulations authorize revocation for any violation of permit o failure to operate in "substantial compliance" o misrepresentations o failure to pay required fees o o o o o o o o violation of permit knowing violation of permit knowing TSD without permit knowing transport to facility lacking permit knowing false statement willful failure to manifest willful destruction or alteration of records knowing placement of another in imminent danger through violation o failure to comply with statute, regulations o violation (allows suspension) o subsequent violation or violation with endangerment (allows revocation) NOTE: This table shows the statutory standards for permit revocation and suspension. Where rip_ standards appear in the statute, the standards set forth in the regulations, if any, are shown. Most states that have statutory standards also have regulations; such regulations are not reflected in this table. T-5 ------- Table 2 (continued) Florida o violation of statute, permit, regulations, order o false statement o refusal of lawful inspection o failure to submit reports o imminent hazard Georgia Hawaii o violation of statute, permit o misrepresentation o threat to health or environment o violation o misrepresentation o change in physical conditions Idaho p violation that creates "substantial hazard" to health or the environment; is repetitious of prior violations; or that has continued beyond 30 days after the receipt of a notice of violation Illinois Indiana o violation of statute, regulations, permit 6 violation of permit o permit related activity inconsistent with statute or regulations o misrepresentation or nondisclosure o changed circumstances requiring discharge reductions o determination that activity endangers human health or environment and can only be regulated to acceptable levels by termination Iowa Standards in rule incorporate 40 CFR 270.43: o violation of permit conditions o misrepresentation o danger to health or environment that can only be reduced to acceptable levels by revocation Kansas o violation in operation or construction of facility o hazard to public health or environment o failure to pay fees Kentucky Regulation specifies: o violation of statute or regulation o aiding or abetting violation o any action or omission in maintenance or operation that "could or does" create a threat to public health or the environment o violation of permit o misrepresentation o failure to comply with order T-6 ------- Table 2 (continued) Louisiana Maine o o o o o o o o o violation of statute, rules, orders, permit failure to disclose facts in permit application danger to health or environment that cannot be regulated to "acceptable levels" except by revocation transfer of permit violation of permit misrepresentation change in condition violation of law where discharge poses threat to health or welfare failure to observe applicable standard or limit Maryland o violation of laws or regulations re hazardous substances o false or inaccurate application o other "good cause" Massachusetts o violation of permit, law, regulations o incompetence of permittee to perform Michigan o violation of permit, law, regulations o misrepresentation or failure to disclose o imminent hazard or danger to health or environment Minnesota o when necessary "to prevent or abate pollution" o "unresolved" noncompliance o false information in application o failure to pay fees or civil penalties Mississippi Missouri o violation of permit o violation of law, regulations, order, permit o threat to health or environment o creating public nuisance o if obtained in violation of law or by misrepresentation o when required to prevent violations of any provision of the law, regulations, order, permit o or to protect health of humans and other organisms, when there has been a change in conditions Montana o failure to comply with permit, rules, order, law Nebraska Nevada o failure to comply with law, rules, regulations o violation of permit or regulations New Hampshire o failure to comply with permit T-7 ------- Table 2 (continued) New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma o o o o o o o o o o o o o violation of permit, order, rule, regulation, license violation of any N.J. pollution law nondisclosure or misrepresentation, fraud, deceit determination that activity endangers health or environment and can only be regulated to acceptable levels by termination change in ownership or control any reason that would have prevented initial issuance under disclosure law (i.e., persons with criminal record) inducing another to commit a violation coercion of a customer by violence or economic reprisal prevention of a licensee from disposal at a licensed facility violation of permit misrepresentation or incomplete.disclosure violation of law or regulations for research, development and demonstration permits: upon determination that termination is necessary to protect human health or the environment o o o o o o o adjudicated to be in violation within 2 years previously found negligent or intentionally tortious or convicted of hazardous waste offense convicted of felony knowingly submitted false material statement failed to comply with permit or provisions of law "directly related" to the permitted activity exceeded scope of permitted operation where emergency situation threatens public health, safety or welfare o violation o if permit based on incorrect or inadequate information that materially affected permit issuance o failure to comply with permit or law o violation o "flagrant or consistent" violations o causing or continuing environmentally unsafe condition Oregon Pennsylvania o violation of law, rules or material permit condition o violation of any state or federal environmental statute at any site or activity o history of past or continuing violations o adverse effect on the environment o public nuisance T-8 ------- Table 2 (continued) Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia o failure to comply with statute, regulations, order or permit o where continued operation "constitutes a threat to the health and safety of the public or to the environment" Regulation specifies: o violation of permit o nondisclosure or misrepresentation o danger to health or environment that "can only be regulated to acceptable levels" by termination o violation of statute or regulations o aiding or abetting violation o violation of permit o misrepresentation or failure to disclose facts o change in condition or discovery of new information requiring termination of the activity o failure to comply with statute, order, rules, regulations, standards o transfer of ownership o failure to pay fees o 3-4 hazardous waste felony convictions within 2 year period (5 year suspension authorized) good cause: - failure to comply with permit - failure to disclose facts unlawful transfer of permit operation for reasons of public health or air or water pollution or land use violation of laws and rules governing management of solid waste o failure to comply with operating plan o o o o noncompliance with statute, regulations, certificate failure to disclose facts misrepresentation determination of "serious threat" to health or the environ- ment that can only be regulated to acceptable levels by revocation "substantial present or potential hazard to human health or the environment" caused by: - violation maintenance/operation of facility - location or nature of facility - leachate or residues posing threat of pollution T-9 ------- Table 2 (continued) Washington West Virginia Wisconsin o violation of permit or order o misrepresentation/nondisclosure o threat to health or environment controllable only by termination o noncompliance with permit o failure to disclose facts, or misrepresentation o danger to health or environment that "can only be regulated to acceptable levels by permit revocation" o o o o failure to comply with rules failure to comply with operating plan failure to pay fees (transp. licenses only on "grievous and continuous failure to comply") Wyoming Not set out in statute T-10 ------- T A B L E ------- TABLE 3 STATES WITH PERMIT BAR/BAD ACTOR PROVISIONS "Permit bar" and "bad actor" provisions are very similar. Essentially they are different versions of the same tool—authorizing (or requiring) denial of permit applications (or amendment or renewal applications) based on the applicant's conduct and/or history of compliance. Those statutes that authorize permit denial based on any violation or history of violations are permit bars. They have the effect not only of keeping permits from those who have committed or are likely to commit violations, but also of providing leverage to the state to secure the correction of current violations. In contrast, "bad actor" provisions are those providing for denial of permits based chiefly on prior conduct, and particularly include those provisions requiring prior convictions. These provisions do not provide the same leverage as permit bars over current violations but simply limit who can qualify for and hold a permit. Thirty-three states and the District of Columbia have neither permit bars nor bad actor provisions. Several states lacking such provisions, however, do have provisions expressly requiring "consideration" of an applicant's compliance history; these states have also been identified in this table. PERMIT BARS Maryland Comment Florida (by rule) authorizes the denial of a permit for any activity where there is an outstanding (unresolved) notice of violation at the facility in question. Maryland law authorizes permit denial if the applicant has at any time and any location committed any violation of any state law, rule, order or permit concerning hazardous substances. Pennsylvania Pennsylvania law authorizes permit denial whenever an applicant (or principal or affiliate or part owner) has at any time and any location committed any violation of any state or federal environmental law, rule or permit, whether the violation has been formally adjudicated or not; Pennsylvania also authorizes permit denial whenever an applicant (or principal or affiliate or part owner) has shown a lack of ability or intention to comply based on any past or continuing violations of any such laws. Permit denial is required whenever any applicant (or principal or affiliate or part owner) has engaged in any unlawful action under the Pennsylvania Solid Waste Management Act (adjudicated or not), unless and until the applicant can prove that the unlawful action has been corrected. T-ll ------- Table 3 (continued) "BAD ACTOR" PROVISIONS State Arizona California Connecticut Illinois Indiana Kansas Comment Arizona law authorizes permit denial where applicant fails to demonstrate sufficient reliability, expertise, integrity and competence; and specifically where the applicant (or principal) has been convicted (or pled guilty) to any felony within the preceding 5 years. California law authorizes permit denial for prior violations if they show a "recurring pattern" or potential threat to health, safety or the environment; for prior hazardous waste-related criminal convictions; or where a prior hazardous waste permit was revoked. Connecticut law requires the DEP to "consider" an applicant's prior compliance history; and provides that the agency is authorized to deny a permit if the applicant has previously been convicted of violating any state or federal environmental law and the Commissioner further determines after hearing that there is "good cause" to deny the permit. Illinois law authorizes denial of a permit if the agency finds a history of "repeated violations" of federal, state or local laws regulating hazardous waste facilities; or if the applicant has been convicted of any state or federal felony; or if there is "proof of gross carelessness" in the applicant's prior hazardous waste activities. Indiana law authorizes denial of a permit where an applicant has previously been criminally convicted and fined or imprisoned for violating any of Indiana's environmental laws. Kansas law authorizes denial of a permit where an applicant violated "prohibitory provisions" of a prior hazardous waste permit, had such a permit revoked, or committed "repeated violations" of state or federal law regarding hazardous waste. Massachusetts Missouri Massachusetts law authorizes permit denial where a prior permit was denied or revoked within the preceding 5 years. Missouri law requires permit denial whenever the agency determines an applicant to have "habitually engaged in" hazardous waste management practices posing a threat to health or the environment, or to be a "habitual violat[or]" of the Missouri hazardous waste laws; or to anyone previously "adjudged in contempt" of any court order enforcing federal or state solid or hazardous waste laws. T-12 ------- Table 3 (continued) "BAD ACTOR" PROVISIONS (continued) State New Hampshire New Jersey Comment New Hampshire law authorizes permit denial if the applicant (or a principal) has been convicted of any federal or state felony in the preceding 5 years. New Jersey law requires denial of a permit if the applicant (or its principal or affiliates) has been convicted of any.of 22 enumerated crimes unless such person demonstrates rehabili- tation by "clear and convincing evidence." In addition, permit denial is authorized if an applicant is awaiting trial for such crime(s); if the Attorney General determines that such person lacks good character, honesty or integrity; or if such person has pursued economic gain in violation of other criminal or civil laws of the state so as to give rise to belief that its hazardous waste handling would be "inimical to the policies" of the hazardous waste act. New York Ohio Oklahoma Tennessee New York law authorizes permit denial when an applicant (or principal or part owner or affiliate) has been "adjudicated" in violation of any federal or state hazardous waste law, regulation, order or permit; has been previously denied a permit based on conduct; has been adjudicated negligent or intentionally tortious in a civil proceeding or guilty in a criminal proceeding involving hazardous waste handling; or has been convicted of bribery, fraud or other corrupt offenses; provided, however, that the conduct must have occurred within the 2 years prior to the permit application. Ohio law authorizes permit denial if the applicant previously engaged in hazardous waste activities in Ohio or another state but the applicant's prior record does not show compliance with the laws so as to demonstrate "reliability, expertise and competence." Oklahoma law requires permit denial if the applicant has been "finally adjudicated" as guilty of "flagrant and consistent" violations of the Oklahoma hazardous waste law. Tennessee law authorizes permit denial if the Commissioner finds that the applicant has failed to comply with the statute, orders, or rules; or (for landfill permits) where the applicant (or principal or employee) has been convicted of any felony, or convicted of a misdemeanor related to hazardous waste. The law requires permit denial if the applicant is currently under a 5-year suspension of a prior permit based on having been convicted of 3-4 hazardous waste felonies during any 2-year period. T-13 ------- Table 3 (continued) "CONSIDERATION11 PROVISIONS State Comment Louisiana Louisiana law requires the agency to give "due consideration" to an applicant's compliance history. It does not specify any specific agency action, or the weight to be given such consideration. Texas Texas law requires that a "compliance summary" may be offered as part of the record in a permit application proceeding. It does not specify any action or what, if any, consideration must be given this information in rendering a permit decision. T-ll ------- T A B L E ------- TABLE 4 INSTITUTIONAL ISSUES AFFECTING CROSS-MEDIA ENFORCEMENT USING HAZARDOUS WASTE AND WATER LAWS State Does the same state agency enforce both laws? Are administrative hearings on enforcement actions decided by the same forum? Alabama Alaska Arizona Yes Yes Yes Yes Yes Yes (except permi Arkansas California Colorado Yes No Yes Connecticut Delaware District of Columbia Florida Yes decisions under water laws) Yes No Yes (except water law admin. penalties) Yes Yes Yes Yes Georgia Hawaii Idaho Illinois Yes Yes Yes Yes Yes Yes Yes Yes Yes Indiana Iowa Kansas Yes Yes Yes Kentucky Louisiana Yes Yes Yes Yes No Yes Yes Yes Yes T-15 ------- Table 4 (continued) Are administrative hearings on Does the same state enforcement actions decided by State agency enforce both laws? the same forum? Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes Yes No Yes Yes Nevada Yes Yes New Hampshire Yes No New Jersey Yes Yes New Mexico Yes No New York Yes Yes North Carolina No No North Dakota Yes Yes Ohio Yes Yes Oklahoma Yes No Oregon Yes Yes Pennsylvania ' Yes Yes Rhode Island Yes Yes South Carolina Yes Yes South Dakota Yes No Tennessee Yes No •T-16 ------- Table 4 (continued) State Does the same state agency enforce both laws? Are administrative hearings on enforcement actions decided by the same forum? Texas Utah Yes Yes Vermont Yes Virginia Washington West Virginia Wisconsin Wyoming No Yes Yes Yes Yes Yes No No No Yes Yes Yes Yes T-17 ------- T-18 ------- T A B L E ------- TABLE 5 STATE SUPERFUND PROVISIONS (Fifteen State Study) Authority to do Treble abatement and charge Damage State PRP generators Provision California Yes Yes Connecticut Yes No: 1-1/2 times if negligent; 2 times if willful Florida Yes No Illinois . Yes Yes Indiana Yes Yes Louisiana Yes No Maryland Yes No Michigan Yes No Missouri Yes Yes New Jersey Yes . Yes New York Yes No Ohio Yes No Pennsylvania Yes: but only if PRP's No "actions" caused "public nuisance" Texas Yes No Washington Yes No Note: The extent to which these states may order generators or owner/operators to do work varies from state to state. ------- T-20 ------- T A B L E ------- TABLE 6 STATES IN WHICH, ACCORDING TO STATE LAW, A NON-EMERGENCY COMPLIANCE ORDER MAY BE ISSUED WITHOUT PRIOR HEARING AND IS TREATED AS IMMEDIATELY EFFECTIVE EVEN WHILE A REQUEST FOR HEARING IS PENDING State */ Colorado — **/ Indiana —' Maine Maryland — Nevada New Hampshire — New Jersey Comment Under the statute, Colorado administrative orders are immediately effective unless explicitly stayed. The agency, however, has chosen to defer their effective dates pending an opportunity for informal hearing. Orders are immediately effective 20 days after issuance. To be relieved from compliance, the violator must seek a stay from the ALJ. The person seeking the stay bears the burden of proof, but there are no specified standards for the stay. Orders are effective immediately upon issuance. To be relieved from compliance, the violator must seek a stay from the Board of Environmental Protection by proving irreparable injury, likelihood of success on the merits, and lack of injury to the public. The statute provides that orders are "effective immediately" ' upon service. In practice, however, Maryland treats orders as not effective pending hearing, because of concern with a separate statutory provision that orders are not "final" where a hearing has been requested. Orders are effective immediately upon issuance. The regulations expressly provide that orders are effective immediately upon issuance. In practice, however, New Hampshire treats orders as stayed while a request for hearing is pending. A request for hearing does not stay the effectiveness of an order, but stays are frequently granted on request. Note: This table identifies the states in which the statute or regulation provides that a non-emergency order is treated as effective upon issuance by the agency. It excludes states that require a prior hearing to issue an order, and states that have a complaint/order procedure like that under Section 3008 of RCRA where the order is not effective until after a default or a decision by an administrative law judge. T-21 ------- Table 6 (continued) Pennsylvania Washington Comment West Virginia Orders are effective immediately upon issuance. To be relieved from compliance, the violator must seek a stay from the Environmental Board of Review. A stay shall be denied except for "compelling reasons." In establishing that "compelling reasons" exist, the violator must show a likelihood of prevailing on the merits, that it will suffer irreparable injury absent a stay, and that the public will suffer no significant injury. Orders are effective immediately upon issuance. To be relieved from compliance, the violator must seek a stay from the Environmental Hearing Board by proving that it is likely to prevail on the merits, that it will suffer irreparable injury absent a stay, and that the public will suffer no injury. Violation of an order that has not been stayed subjects the violator to a judicial contempt citation. Orders are effective immediately upon issuance even though not "final" where a hearing has been requested. To be relieved from compliance pending hearing, the violator must seek a stay from the Pollution Control Hearing Board; the violator may make a prima facie case by showing either a likelihood of success on the merits or_ irreparable harm. The Board "shall" grant a stay unless the Department of Ecology shows some "compelling reason" (either a "substantial" likelihood of success, or likelihood of success plus an "overriding" public interest) why its order should be complied with prior to final decision. Orders are effective immediately upon issuance. To be relieved from compliance, the violator must seek a stay from the Water Resources Board by showing that effectiveness of the order pending review will cause it "unjust hardship." —' Although Maryland, New, Hampshire and Colorado appear on this table, they actually operate like the states not listed, despite the authority afforded by their statutes and regulations. —' Note, however, that Indiana has a procedural precondition to issuance of an order. The violator must be afforded 60 days' "opportunity" to enter into an agreed order before an order may be issued. T-22 ------- T A B L E ------- TABLE 7 STATUTORY PRECONDITIONS TO ENFORCEMENT ACTIONS Yes No X Description Alaska Before the agency may issue a compliance order, it must first issue a notice of violation and allow time for the violator to respond. Only if no response is received or the response is deter- mined to be inadequate may the agency then issue a compliance order (which is itself subject to administrative review upon request). Arizona Arkansas California Colorado Connecticut Delaware X X X X X X [Colorado does, ment of Health advance notice Before the ager however, require the to provide facilities v, of inspections]. icy may issue an order Depart- fith it must first issue a notice of violation and allow 30 days for correction of the violation. Only if the violation continues beyond the 30th day may an order be issued (subject to administrative hearing). District of Columbia [Although there is no precondition to issuance of an order, the order itself must afford "a reason- able time for the performance of the necessary corrective measures".] Florida X Note: This table identifies states that have adopted statutes that require preliminary procedural steps (preconditions to enforcement) not required by the federal RCRA enforcement provisions. These provisions may produce delay or otherwise work against immediate and effective enforcement. Note: This table also identifies in bracketed [] notes, additional procedural provisions that are not preconditions to enforcement but which also impose burdens on agency enforcement or create specific advantages for the alleged violators. T-23 ------- Table 7 (continued) State Georgia Hawaii Idaho Yes X No Description Before the agency may issue an order, it must first attempt to resolve the violation by use of "conference, conciliation, or persuasion." The agency must issue a notice of violation and afford the violator 15 days to request a confer- ence. If a conference is requested it must be held within 20 days of the request. The confer- ence is for the purpose of negotiating an admini- strative order—the agency lacks authority to issue a unilateral order. If a conference has been requested, the agency is barred from insti- tuting civil judicial enforcement proceedings until 60 days after the original notice of viola- tion. (The violator, therefore, always can obtain 60 day's grace by requesting a conference.) Illinois Before the agency may issue an enforcement complaint, it must first issue a notice of vio- lation and afford an opportunity (30 days) for informal resolution; only after the passage of this time may it then file a complaint seeking an administrative order. Indiana X Before the agency may issue an order it must first issue a notice of violation and allow up to 60 days for the violator to enter into an "agreed order providing for the actions required to correct the violation" and, if appropriate, a civil penalty. If there is no agreed order, the agency may only then issue a notice and order (subject to administrative hearing). Iowa Kansas Kentucky Louisiana Maine Maryland X X X X X X T-24- ------- Table 7 (continued) State Massachusetts Yes X No Description Administrative penalties are not assessable for a violation itself, but may be assessed only after the state first issues a notice of violation and the violation continues (except where the vio- lation is part of a "pattern," is willful, has a significant impact on health or the environment, or consists of a failure to report an unauthorized disposal or release). Michigan Minnesota X X Administrative penalties are assessable only where the state first issues an order allowing 30 days for correction of a violation and the vio- lator fails to comply by the 30th day or to take "appropriate steps" toward compliance during this period. If the violation is corrected or "ap- propriate steps" taken, the penalty must be waived. Mississippi X Missouri X Before the agency may issue an order, it must first attempt to resolve the violation by use of "conference, conciliation and persuasion." Montana Nebraska Nevada New Hampshire New Jersey New Mexico X X ' x X X .X Before the agency may issue a compliance c it must first issue a notice of violation and allow 30 days for correction of the violation. Only if the violation continues beyond the 30th day may an order be issued. The order itself must provide for compliance within a specified period. Like- wise, no civil judicial action may be commenced against a violator until after the issuance of a notice of violation and noncompliance continuing beyond the 30th day (except in cases of "immi- nent and substantial endangerment"). New Mexico recently amended its provision to state that despite the preconditions, a penalty can now be assessed for the underlying violation itself in the order that issues after the 30-day wait. T-25 ------- Table 7 (continued) State Yes No Description New York X North Carolina X [Although there is no precondition to administra- tive enforcement, North Carolina's civil penalty scheme provides that civil penalties may be assessed only administratively and must be proven by the state at administrative hearing. If, however, the violator is dissatisfied with the result, it gets trial de novo of the civil penalty in court. Essentially, this gives the violator two chances to win its case, while the state must win , both times in order to prevail] North Dakota X " Ohio X Oklahoma X Before the agency may issue a compliance order, it must first issue a notice of violation and allow 15 days for correction of the violation. Only if the violation continues beyond the 15th day may an order be issued. Then, the administrative civil penalty is available only for violations of the order. Oregon X Before the agency may issue an order, it must first attempt to resolve the violation by use of "conference, conciliation, and persuasion." When the order is issued its effective date is automati- cally stayed for 20 days. (It is also further stayed if a hearing is requested - like the typical §3008 order.) Pennsylvania X Rhode Island X South Carolina X South Dakota X Tennessee X Texas X Utah X Vermont X T-26 ------- Table 7 (continued) Yes No X Washington West Virginia, Wisconsin X X X Description [When a final order issues after hearing, its effectiveness is automatically stayed for an additional 15 days.] Before the agency may issue a compliance order or even refer a case for civil judicial enforce- ment, it must first issue a notice of violation and allow 30 days for correction of the violation. Only if the violation continues beyond the 30th day may an order be issued or the case be "refer- red" to the Attorney General Wyoming X Before the agency may issue an order, it must first attempt to resolve the violation by "conference, conciliation, and persuasion." T-27 ------- T-28 ------- T A B L E 8 ------- TABLE 8 FINAL DECISION ON ADMINISTRATIVE REVIEW Agency Board or State Director Commission Alabama X Alaska X Arizona X Arkansas X California xl/ . X I/- Color ado X Connecticut X Delaware X District of Columbia X Florida X Georgia X Hawaii X Idaho X- Illinois X Indiana X Iowa X Kansas X Kentucky X Louisiana X Maine X Maryland X Massachusetts X Michigan X T-29 ------- Table 8 (continued) Agency Board or State Director Commission Minnesota X (or court, at option of violator, for penalties) Mississippi X Missouri X Montana X Nebraska X N evada X New Hampshire X New Jersey X New Mexico X New York X North Carolina X (but court reviews penalties de novo) North Dakota X Ohio X Oklahoma X Oregon X Pennsylvania X Rhode Island X South Carolina X South Dakota X Tennessee X Texas X Utah X Vermont . X Virginia X T-30 ------- Table 8 (continued) Agency Board or Director Commission X West Virginia X Wisconsin X Wyoming X J7 Administrative actions by the California Department of Health Services are reviewed by the Agency Director. Administrative actions by the Regional Water Quality Control Boards are reviewed by the Water Resources Control Board. 2J Idaho does not have administrative enforcement hearings. Administrative review of Idaho permit actions is before a board. T-31 ------- T-32 ------- T A B L E ------- TABLE 9 GEOGRAPHIC FORUM (VENUE) FOR JUDICIAL REVIEW OF FINAL ADMINISTRATIVE ENFORCEMENT ACTIONS (Fifteen State Study) AC= Appellate Level Court TC= Trial Level Court State Central Court Local Court California Connecticut TC Florida Illinois Indiana Louisiana AC Maryland Michigan Missouri TC New Jersey New York Ohio* [Aq Pennsylvania AC Texas TC Washington TC AC AC TC TC TC AC AC AC ( TC 10 V Review of permit denials in Ohio is centralized; review of enforcement actions is decentralized. Note: All judicial review of administrative enforcement actions in these states is conducted on the administrative record made before the agency and/or - administrative law judge/hearing tribunal T-33 ------- ------- •T A B L E 10 ------- TABLE 10 ASSIGNMENT OF ATTORNEYS TO HANDLE ADMINISTRATIVE AND JUDICIAL CIVIL ENFORCEMENT CASES AG - Attorney General AD - Administrative Agency Counsel AGO - Attorney General Attorneys Dedicated Exclusively to Act as Agency Counsel DA - District Attorney/States Attorney State Alabama Alaska Administrative Cases AD AG Judicial Cases AD/AG AG Arizona Arkansas AG AD AG California Colorado Connecticut AG/AD AG AGO AD DA/AG AG AGO Delaware AGO AGO District of Columbia Florida Georgia Hawaii AG AD AG AD AG AG AG AG Idaho AG/DA Illinois Indiana Iowa Kansas Kentucky Louisiana Maine AG AG AD AD AD AD AG AG AG AG AD/AG AD AG AG T-35 ------- Table 10 (continued) State Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey Administrative Cases AGD AD AG AG AGD AG AD AD AGD AG AG Judicial Cases AGD AG AG AG AGD AG AD AG/DA AGD AG AG New Mexico New York North Carolina North Dakota Ohio AD AD AD AG AGD AG Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota AD AG AD AD AG AG AGD AG DA AG AD AD/AG Tennessee Texas AD AG AD AD AD AG AD/AG AG T-36 ------- Table 10 (continued) Administrative Judicial State Cases Cases Utah AG AG Vermont — AG Virginia AG AG Washington AGD AGD West Virginia AG AG Wisconsin AD AG Wyoming AG AG T-37.' ------- T-38 ------- T A B L E 11 ------- TABLE 11 DO THE SAME ATTORNEYS HANDLE ADMINISTRATIVE ENFORCEMENT AND CIVIL JUDICIAL ENFORCEMENT ACTIONS? State Yes No Alabama X Alaska X Arizona X Arkansas X CaUfornia Colorado X Connecticut X Delaware X District of Columbia X Florida X Georgia X Hawaii X Idaho ___Lll_ Illinois X Indiana X Iowa X Kansas X Kentucky X Louisiana X Maine X Maryland X . Massachusetts X Michigan X T-39 ------- Table 11 (continued) State Yes No Minnesota X Mississippi X Missouri X Montana X Nebraska Nevada X New Hampshire X New Jersey X New Mexico X New York North Carolina X North Dakota X Ohio X Oklahoma X Oregon X Pennsylvania X Rhode Island X South Carolina X South Dakota X Tennessee X Texas X Utah X Vermont X ^ Virginia X Washington X ------- Table 11 (continued) State Yes No West Virginia X Wisconsin X Wyoming X _!/ In California, the Attorney General can handle both administrative and civil enforcement. Usually, however, administrative enforcement is handled by the attorney general (or, occasionally, by agency counsel) and civil enforcement by the local district attorney. 2] Idaho cannot issue unilateral enforcement orders and does not have an administrative review process. _3/ Vermont does not use attorneys in its administrative enforcement process. •T-41. ------- r-42 ------- T A B L E 12 ------- TABLE 12 ATTORNEYS HANDLING ADMINISTRATIVE AND JUDICIAL CIVIL ENFORCEMENT CASES (Fifteen State Study) Same Attorneys Handle Administrative and Civil Enforcement Connecticut Florida Illinois Indiana Maryland Michigan Missouri New Jersey Ohio Pennsylvania Washington Different Attorneys Handle Administrative and Civil Enforcement California Louisiana New York Texas •M3 ------- ------- T A B L E 13 ------- State Alabama TABLE 13 CIVIL PENALTIES UNDER HAZARDOUS WASTE LAWS Administrative Civil Penalties Judicial Civil Penalties $25,000/day ($250,000 $25,000/day (no "cap") "cap") Alaska None $100,000 plus $10,000/day Arizona None $10,000/day Arkansas $25,000/day None California $10,000/day $10,000/day $25,000/day (intentional or $1,000-$ 10,000/day negligent violation or (Porter-Cologne violation of order) Act) $25,000-$20,000-$15,000-$ 10,000- $5,000/day (Porter-Cologne Act) Colorado None $25,000/day Connecticut $25,000/day ' $25,000/day Delaware "reasonable penalty" $25,000/day (viol, of law, permit, reg.) $25,000/day (viol. of order) District of Columbia None $25,000/day Florida None $50,000/day Georgia $25,000/day None Hawaii $10,000/day $10,000/day Idaho None $10,000/day Note: Penalty amount shown is the maximum assessment per violation unless otherwise indicated. Note: States that lack authority to impose administrative civil penalties absent a violator's consent receive a "None" in the administrative penalties column. ------- Table 13 (continued) State Illinois Indiana Administrative Civil Penalties $25,000/day Judicial Civil Penalties $25,000/day Iowa Kansas Kentucky Louisiana $25,000/day $l,000/day $10,000/day None $25,000/day (plus an additional $500/hour for violat- ing any emergency order) $10,000/day $10,000/day $25,000/day Nevada $25,000/day $50,000/day (order violation) $25,000/day $50,000/day (order violation) Maine None $25,000/day Maryland $l,000/day ($50,000 $10,000/day "cap") Massachusetts $l,000/day $25,000/day $25,000/day (for un- authorized release, handling without license, failure to report) Michigan None $25,000/day Minnesota $10,000 per inspection $25,000/day (regardless of # viola- tions or days; waived if corrected within 30 days of receipt of order) Mississippi $25,000/day None Missouri None $10,000/day Montana . None $10,000/day Nebraska None $10,000/day None $10,000/day New Hampshire None $50,000/day T-46 ------- Table 13 (continued) Administrative Judicial State New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming Civil Penalties $25,000 per violation (plus $2,500/day after receipt of order) $10,000/day $25,000/day $50,000/day (subs. violation) $10,000/day None None $10,000/day (but only for viol of order) $10,000/day $25,000/day $10,000/day $25,000/day None $10,000/day $10,000/day None None None $10,000/day None None None Civil Penalties $25,000/day $50,000/day (violation of order or failure to pay) $10,000/day $25,000/day $50,000/day (subs, violation) None (de noyo review of admin. penalty) $25,000/day $10,000/day $10,000/day None $25,000/day $10,000/day $25,000/day $10,000/day None $25,000/day $10,000/day $10,000/day $10,000/day None $25,000/day $25,000/day $10,000/day ------- ------- T A B L E 14 ------- TABLE 14 CIVIL PENALTY AUTHORITY (Fifteen State Study) State California Connecticut Florida Illinois Indiana Louisiana Maryland Michigan Missouri New Jersey New York Ohio Pennsylvania Texas Washington Administrative x X X x X X X X X X X Judicial x X X .x X X x x x X X X X X 11 14 ------- T-50 ------- T A B L E 15 ------- TABLE 15 PROCEDURE FOR IMPOSING ADMINISTRATIVE CIVIL PENALTIES (Fifteen State Study) State Penalty Assessed By Agency Subject to Request for Administrative Review Penalty Must Be Affirmatively Sought By Agency in Hearing Before Board or Administrative Law Judge California Connecticut Illinois Indiana Louisiana Maryland New Jersey New York Pennsylvania Texas Washington X X X X X X X X x X X T-51 ------- T-52 ------- T A B L E 16 ------- State TABLE 16 LEGAL STANDARD FOR ISSUANCE OF ENFORCEMENT INJUNCTION (Fifteen State Study) Standard California proof of violation or threatened violation Connecticut proof of violation Florida proof of violation Illinois proof of violation Indiana statute and case law require only proof of viofation; experience indicates that state must also prove irreparable injury or imminent danger (except for cases involving violation of an order) Louisiana proof of violation (no environmental law decisions yet confirming this) Maryland case law appears to require only proof of violation; statute says state need not show lack of an adequate remedy at law; in practice, the state usually has to prove irreparable injury and balancing of the equities Michigan proof of violation Missouri proof of violation; but by statute must prove both irrepar- able injury and the lack of an adequate remedy at law to ob- tain a temporary injunction or temporary restraining order New Jersey • proof of violation New York proof of violation, and (probably) proof of irreparable harm and balancing of the equities Ohio proof of violation Pennsylvania proof of violation (NOTE: Violation of orders are also punishable as a judicial contempt.) Texas proof of violation Washington injunction standard not specified Note: Chart reflects statutory and common law, and current experience of state enforcement agencies before the courts. T-53 ------- ------- T A B L E 17 ------- TABLE 17 DECISION TO FILE/OR REFER FOR FILING A CIVIL JUDICIAL ENFORCEMENT CASE (Fifteen State Study) Decision made by board Decision made informally after formal public by agency director State presentation and vote or board California Connecticut Florida Illinois Indiana Louisiana Maryland Michigan Missouri New Jersey New York Ohio Pennsylvania Texas Washington x*> x X X X x X X X X X x X X x • . X jV California Regional Water Quality Control Board orders including enforcement "referrals to the Attorney General are subject to administrative review. T-55 ------- T-56 ------- T A B L E 18 ------- TABLE 18 VENUE FOR DIRECT CIVIL JUDICIAL ENFORCEMENT ACTIONS (Fifteen State Study) States In Which The Agency Has The Option To Bring Suit In A Central Court Connecticut Indiana Michigan Pennsylvania T-57 ------- T-58 ------- T A B L E 19 ------- TABLE 19 CRIMINAL ENFORCEMENT OF HAZARDOUS WASTE LAWS (Fifteen State Study) Criminal Enforcement Centralized (C) or State Program Decentralized (D) California Yes . D Connecticut Yes C Florida No — Illinois Yes C Indiana No — Louisiana No — Maryland Yes C Michigan Some D Missouri Some D New Jersey Yes . C New York Yes D Ohio Yes C Pennsylvania Yes C Texas No — Washington Some C NOTE: Michigan's program consists chiefly of local prosecutions of transporter violations. Missouri has employed one criminal investigator, but has not referred any criminal cases for prosecution. Washington has employed one criminal investigator and is currently expanding its investigative program; it has not referred any criminal cases for prosecution. r-59 ------- T-60 ------- T A B L E 20 ------- Alabama Intentional, Willful o transport to unpermitted sites o TSD without permit o contaminate groundwater without permit o false statement o tamper with or fail to maintain document o violation TABLE 20 HAZARDOUS WASTE CRIMES (Scienter, Offenses, and Penalties) Reckless same No Scienter Requirement $50,000 day and/or 1-10 years $100,000 day and/ or 2-20 years (subs, convictions) Alaska o transport to unpermitted site o TSD without permit o false statement o violation $1,000 and/or 90 days o false statement re: release $25,000 day and/or 1 year $10,000 day and/or 1 year o violation $5,000 and/or 1 year Arizona • o transport to unpermitted site o generate and permit transp. to such site o TSD without- permit $150,000 and/or 2 years Arkansas o Impede or resist state officials in their duties $1,000 and/or o engage in hw crimes while manifesting ex- treme indiffer- ence to human life ' $150,000 and/or 5 years ($1 million - organization) o false statement o tamper with monitoring $10,000 day and/or o transport to unpermitted site o generate and permit transp, to such site o TSD without . permit , $150,000 and/or 1 1/2 years o engage in hw crimes while manifesting ex- treme indiffer- ence to human life $150,000 and/or 5 years ($1 million - organization) o violation o unlawful disposal public nuisance $10,000 day and/ or 1 year (5 years if defendant leaves state) T--61 ------- Table 20 (continued) California Intentional, Willful o interference with enforcement Reckless $1,000 day and/or 6 months $25,000 day and/or 2 yearstsubs.off.) o transport to unpermitted site oTSD without permit $50,000 day and/or I year (transp., treat., storage) $100,000 day and/or up to 1-3 years (transp. .disposal) $250,000 day and/or 3 additional years if bodily injury or prob. of death =s=============== o false statements o destroy, alter records o generator,transp. violations o failure to submit info, re: danger o failure to file annual disposal report $25,000 day and/or 1 year $50,000 day and/or 2 years (subs, off.) o Transp. without manifest; without compliance certif. $500 day and/or 6 months Mo Scienter Requirement o violation $1,000 day and/or 6 months $25,000 day and/or 1 year (subs.off.) o failure to file discharge reports $1,000 day and/or 5 months ================= o failure to Hie hazardous subst. discharge report (disch. to water) $20,000 and/or 1 year Colorado o transport to unpermitted site oTSD without permit or in material violation $50,000 day and/or 1 year o false statement o destruction or alt. of records $25,000 day and/or 1 year o violation of county siting requirements $750 and/or 5 months Connecticut o failure to manifest o destroying or concealing record o false statement $25,000 day and/or 1 year $25,000 day and/or 1 year o transport to unpermitted site o TSD without permit o violation of material permit condition $50,000 day and/or 2 years o imminent endanger- ment with criminal violation $250,000 and/or 5 years($l million- corporations) T-62 ------- Table 20 (continued) Reckless Delaware o violation $25,000 day and/or 1 year $50,000 day and/or 2 years(subs.offi) o violation o false statement o tampering with monitoring $25,000 day and/or 1 year $30,000 day and/or 2 yearsfsubs.off.) $25,000 day No Scienter Requirement o violation S500 day District of Columbia o violation $25,000 day and/or 1 year Florida o transp. to unper- mitted site o transp. without manifest oTSD without permit or in violation o false statement o destroying or altering records $50,000 day and/or 5 years $100,000 day and/or 10 yearsfsubs.off.) o transp. to unpei- mitte-3 site o TSD without permit, or in violation, or without manifest b false statement or destroy records $50,000 day and/or ' 3 years $100,000 day and/or 5 yearstsubs.off.) o criminal violation placing person in imminent danger of death or serious bodily injury $250,000 and/or 15 years ($1 million- corporations) Hawaii o transp. to unper- mitted site oTSD without permit o false statement $25,000 day and/ or 1 year $50,000 day and/ or 2 years(subs.off.) Idaho o violation o false statements $10,000 and/or 1 year T-63 ------- Table 20 (continued) Intentional, Willful Illinois Reckless o transp. to unper- o disposal with mitted site o TSD without permit or in violation o concealment of unlawful disposal gross deviation from standard of care NoScienter Requirement o violation $1,000 and/or 1 year $50,000 day and/or 3-6 years $100,000 day and/or 3-6 years o disposal without lawful justifi- cation o delivery without lawful justifi- cation $250,000 day and/or 5-10 years o disposal with conscious disre- gard of danger of serious bodily harm or immediate or long-term dan- ger to public health $500,000 day and/or 7-14 years =============== = o false statement o destroy, alter, conceal record $50,000 day and/or 3-6 years $50,000 day and/or 5-10 years(subs.off-) o false statement o transport without having transp. license on person $1,000 and/or 1 year Indiana o violation $2,500-$25,000 day and/or 2 years $2,500-550,000 day and/or 2 years (subs.off.) plus 2 years (aggra- vating circumstances) o violation o violation o violation o obstruction, delay, resistance to inspection $500 o transp. or TSD in violation $50,000 day and/or 2 years, and for- feiture plus 2 years (agg. circumstances) o transport to unpermitted site o false statement re: hw $25,000 day and/or 2 years $50,000 day and/or 2 years (subs.off.) plus 2 years (agg. circumstances) ================ o false statement o tampering with monitoring $10,000 day and/or 6 months ------- Table 20 (continued) Intentional, Willful Iowa Reckless o transp. to unper- mitted site oTSD without permit or in material violation o false statement o destroy or conceal record No Scienter Requirement $25,000 day and/or 1 year $50,000 day and/or 1 years (subs. off.) Kansas o place waste with unpermitted facility oTSD without permit or in violation o violate permit o violate rules, orders o fail to manifest properly o transport to unpermitted site o blend hw with residential fuel oil $15,000 and/or 3-20 years o transport and dispose in violation $15,000 and/or 3-20 years o false statement o destroy, alter, conceal record $2,500 day and/or 1 year Kentucky o violation o false statement $55,000 day and/or 1-5 years Louisiana o violation o discharge $100,000 day and/or 10 years o imminent danger of death or serious bodily injury $250,000 day and/or 15 years o place waste with . . unpermitted facility o TSD without permit or in violation o violate permit o violate rules, orders . o fail to manifest properly o transport to unpermitted site o blend hw with residential fuel oil $2,500 and/or 1 year o transport and dispose in violation $10,000 and/or 1-5 years T-65. ------- Table 20 (continued) Intentional, Willful Maine o transports with- out permit o transports to unpermitted facility o handles without permit o handles at lo- cation where location lacks permit $50,000 day and/or 5 years o violation o TSD without permit o giving hw to person not licensed or who will violate Reckless o transports to unpermitted facility (consci- ous disregard) o handles at lo- cation where location lacks permit (conscious disregard $50,000 day and/or 5 years $ 1,000 ($5,000-corp.) and/or 1 year plus twice pecuniary gain from crime NoScienter Requirement o violation $25,000 ================ o tampering with monitoring $10,000 or 6 months Maryland o false statement o tampering with monitoring $10,000 and/or 6 months o transport to unpermitted site oTSD without permit o false info. o authorizing or directing above offenses $100,000 day and/or 5 years o generator violations o transporter license violations $50,000 day and/or 3 years o violation $25,000 day and/or 1 year $50,000 day and/or 2 years (subs.off.) Massachusetts o violation o handling in manner which could endanger, or.in violation of handling provisions o handling without permit/license o handling without manifest o transfer to person without permit o transporting with- out vehicle i.d. $100,000 day and/or 20 years o violation $25,000 day and/or 2 years [-66 ------- Table 20 (continued) Intentional, Willful Reckless Michigan o violation which places another in imminent danger of death or serious bodily injury and mani- fests disregard for human life $250,000 and/or 2 years (5 years for extreme indifference) ($1 million-corpo- rations) NoScienter Requirement o violation o false statement $25,000 day and/or 1 year $30,000 day and/or 2 years (subs.off.) Minnesota o violation not o disposing or otherwise arranging enumerated disposal in $100 and/or location or in 90 days violation of material permit condition $50,000 and/ or 5 years o delivering hw to unauthorized person o treatment or storage in violation or without permit o transp. other than to TSD o no manifest o no transp. lie. o false statement o false statement in record $25,000 and/or 3 years $50,000 and/or 5 years(subs.of f.) o crimes placing another in im- minent danger . of death, or great or subs- tantial bodily harm $100,000 and/or 10 years ($1 million-corps.) With "gross o violation not negligence:" otherwise o disposing or enumerated sal in unper- $100 and/or mitted location 90 days or in violation of material per- o delivering hw to unauthorized o treatment or storage in violation or without permit o transp. other than to TSD o no manifest o no transp. lie. o false statement in application o false statement in record $15,000 and/or 1 year Mississippi o violation $25,000 day and/or 1 year T-67. ------- Table 20 (continued) Intentional, Willful Missouri Reckless NoScienter Requirement o transport to unauthorized facility o permits or causes any hw transpor- tation practice in violation of law o TSD without authorization or in violation of material require- ment o false material statement o tampering with monitoring o destroys, alters record o operates disposal facility in a manner permitting violations $2,500-$25,000 day and/or 1 year $5,000-550,000 day and/or 10 + years (subs.off.) Montana o transport to unpermitted site $10,000 day and/or 6 months $20,000 day and/or 1 year (subs.off.) o TSD without permit o false statement $10,000 day and/or 6 months $20,000 day and/or I year (subs.off.) Nebraska . o violation o false statement $10,000 day and/or 6 months Nevada o illegal transp. oTSD without permit or in violation o violates order $25,000 day and/or 1 year $50,000 day and/or 6 years (subs.off.) o false statement o tampering with monitoring 510,000 day and/or I year o illegal transp. o TSD without permit or in violation o violates order $25,000 day and/or 1 year $50,000 day and/or 6 years (subs.off.) New Hampshire o violation o false statement o tampering with monitoring $50,000 day and/or 7 years o failure to report violation involving TSD $1,000 and/or 1 year (felony if corp.) T-68 ------- Table 20 (continued) Intentional, Willful New Jersey o transport to unauthorized site o generates hw and causes or autho- rizes transp. to unauthorized site oTSD without authorization o false statement Reckless o transport to unauthorized site o generates hw and causes or autho- rizes transp. to unauthorized site o TSD without authorization o false statement $25,000 day and/or 3-5 years $50,000 day and/or 3-5 years (subs.off.) and restitution for damages $7,500 and/or 18 months and restitution for damages NoScienter Requirement o generates hw and causes transp., transports, or , receives hw, without a . manifest $7,500 and/or 18 months New Mexico o violation of imminent hazard order $5,000 day o transport to unpermitted site oTSD without permit or in violation of material req. o transports or causes to be transported without manifest o false statement o unlawfully exports o violation of underground storage tank provisions $10,000 and/or 1 year $25,000 day and/or 2 years (subs.off.) o transports, TSD or exports in violation know- ingly placing another in immi- nent danger of death or serious bodily injury $100,000 and/or 15 years ($250,000- organization) o violation of regulation not otherwise defined as a crime $500 and/or 6 months Mew York o violation $25,000 day and/or 1 year $50,000 day and/or 2 years (subs.off.) o violation $25,000 day and/or 1 year $50,000 day and/or 2 years (subs.off.) o violation $25,000 day and/or 1 year $50,000 day and/or 2 years (subs.off.) o violation $25,000 day and/or 1 year $50,000 day and/or 1 years (subs.off.) o unlawful possession of 100 gallons hw o unlawful possession of 200 gallons hw $100,000 and/or 4 years $100,000 and/or 4 years T-69 ------- Table 20 (continued) Intentional, Willful New York (cont.) o unlawful possession of 1500 gallons hw $150,000 and/or 7 years Reckless a unlawful possession of 2SOO gallons hw No Scienter Requirement $150,000 and/or 7 years o release of any amount hw o release of any amount hw o release of 5 gallons hw $10,000 and/or 90 days o release of acute hw or more than 100 gals, hw $25,000 and/or 1 year =====:=======:===:= o release of more than 100 gals. hw $100,000 and/or 4 years $25,000 and/or 1 year o release of acute hw, or more than 200 gals, hw, or more than 100 gals. hw with risk of injury $25,000 and/or 1 year $100,000 and/or 4 years o release of hw with injury o release of acute hw o release of more than 1500 gals.hw o release of more than 100 gals. hw where enters water o release of any amount hw where enters primary water supply o release of acute hw with Injury o release of any amount hw where enters primary water supply $150,000 and/or 7 years $150,000 and/or 7 years o release of acute hw with risk of injury o release of acute hw with actual injury $200,000 and/or 15 years o unlawful dealing in hw $200,000 and/or 15 years o unlawful dealing in hw o unlawful dealing in hw o unlawful dealing in hw $25,000 and/or 1 year $25,000 and/or 1 year $25,000 and/or 1 year $25,000 and/or 1 year o unlawful dealing in hw (1st degree) $100,000 and/or 4 years o unlawful dealing in hw (1st degree) o unlawful dealing in hw (1st degree) $100,000 and/or 4 years $100,000 and/or 4 years o unlawful dealing in hw (1st degree) $100,000 and/or 4 years NOTE: In New Vork, the defendant may be fined double the amount of the economic gain from the crime if this amount is higher than the specified statutory fine. The defendant may, in addition, be required to pay all costs of unlawful disposal, abatement, and restoration. r-70 ------- Table 20 (continued) North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina Intentional, Willful o discharge of haz. substance $10,000 and/or 6 months o unlawful TSD or transport causing "pollution, a public nuisance, or bodily injury" $10-500,000 day and/ or 2-20 years o violation $25,000 day and/ or 1 year $50,000 day and/ or 2 years (subs.off.) Knowing o discharge of haz. substance $10,000 and/or 6 months o violation o false statement $25,000 day and/or 1 year o violation with imminent danger of death or bodily injury $50,000 day and/ or 2 years o unlawful TSD or transport causing "pollution, a public nuisance, or bodily injury" $10-500,000 day and/or 2-20 years . o transport to unpermitted site o false statement o TSD by munici- pality without permit $25,000 day $50,000 day and/or 2-20 years (subs.off.) o violation of order, rule or regulation o unlawful disposal oTSD without permit o transport without permit o failure to manifest o false statement $10,000 day and/ or 5 years; and restoration costs Reckless Negligent .0 violation $10-25,000 and/or 2-4 years $20-50,000 and/or 2-4 years (subs.off.) o unlawful TSD or transport causing "pollution, a public nuisance, or bodily injury" $10-500,000 day and/or 2-20 years No Scienter Requirement o violation misdemeanor (fine and/ or 2 years) o violation $10,000 day and/ or 6 months o violation $10,000 day and/or 1 year o violation $25,000 day and/or 1 year $50,000 day and/ or 2 years (subs.off.) o TSD without permit or in viol. of order o transport without permit or in viol. of order $100,000 day and/ or 2-10 years o obstruction of inspection $500 o tampering with monitoring $10,000 day and/or 5 years T-71 ------- Table 20 (continued) South Dakota Tennessee Reckless o transport to unpermitted site o TSD without permit or in violation $10,000 and/or 10 years o violation $50,000 day and/or 2 years No Scienter Requirement o false statement $10,000 and/or 10 years o violation $10,000 day and/or 11 mos., 29 days Texas o transport to unpermitted site o TSD without permit or in violation $50,000 day and/or 5 years $100,000 day and/or 10 years (subs.off.) o false statement or omission, or destruction of record o transport without manifest $50,000 day and/or 2 years $100,000 day and/or 4 years (subs.off,) o violation placing another in immi- nent danger of death or serious bodily injury $250,000 and/or 15 years ($1 mil. - corporations) Utah o transport to non- approved site o TSD without approved plan o transport without manifest $15,000 day $25,000 day (subs. off.) o false statement $15,000 day $25,000 day (subs, off.) Vermont o violation $25,000 day and/or 6 months Virginia o violation $1,000 and/or 1 year o transport to unpermitted site o TSD without permit o false statement $10,000 day and/or 1 year T-72 ------- Table 20 (continued) Intentional, Willful West Virginia Reckless No Scienter Requirement Washington o aiding and abetting a violation $10,000 day and/or 1 year o violation $10,000 day and/or I year o transport to unpermitted site oTSD without permit or in material violation 550,000 day and/or 1-2 years $50,000 day and/or 1-3 years (subs.off.) o false statement o destroy, alter record $25,000 day and/or 1 year $50,000 day and/or 1-3 yearstsubs.off.) o handles hw without permit or in vio- lation and exhibits disregard for life or safety of others and places person in imminent danger of serious bodily injury $250,000 and/or 1-4 years '.visconsin o transport to facility known to lack permit oTSD without permit or in violation of permit o false statement o destroys, alters, conceals record $25,000 day and/or 1 year $50,000 day and/or 2 years (subs.off.) Wyoming o violation $25,000 day and/or 1 year $50,000 day and/or 2 years (subs.off.). o false statement o tampering with monitoring $10,000 and/or 1 year T-73 ------- ------- T A B l_ E 21 ------- State TABLE 21 PRIMARY RESPONSIBILITY FOR CRIMINAL PROSECUTIONS OF HAZARDOUS WASTE CRIMES (Fifteen State Study) DA= District Attorney/State's Attorney AG= Attorney General CN= Concurrent (DA and AG) Responsible Officer California DA Connecticut DA (Central Office - "Chief State's Attorney") Florida DA • Illinois CN Indiana DA Louisiana DA Maryland CN (primarily AG) Michigan CN (primarily DA) Missouri CN ' New Jersey AG New York CN Ohio CN (primarily AG) Pennsylvania CN (primarily AG) Texas DA Washington DA (unless governor authorizes AG action) DA or primarily DA = 8 states (CA, CT, FL^ IN,-'' LA,-/ MI, TX,-/ WA) AG or primarily AG =4 states (MD, NJ, OH, PA) Both AG and DA equally = 3 states (IL, MO, NY) V States without hazardous waste criminal enforcement programs. T-7.5 ------- |