El INVIRONMENTAL
lNSTITUTE
Final Draft
STATE HAZARDOUS WASTE ENFORCEMEMT STUDY
Summary and Analysis
WASHINGTON D.
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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
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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
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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
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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
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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
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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
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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.
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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.
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North
Dakota
Minne
sola
Wiscon-
sin
South
Dakota
Nebraska
Kentucky
. —
Tennessee
North
Carolina
South
Carolina
Oklahoma 1 Arkan-
sas
Arizona New Mexico
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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
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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,
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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
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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.
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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
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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.
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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
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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."
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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).
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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.
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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).
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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.
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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.
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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.
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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").
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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.
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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).
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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.
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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.
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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
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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.
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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.
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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.
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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).
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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)
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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.
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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.
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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
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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).
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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.
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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
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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.
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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.
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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.
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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.)
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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.
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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.
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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.
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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.
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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.
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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).
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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.
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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
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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.
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"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.
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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).
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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.
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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.
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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;
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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
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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.
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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.
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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.)
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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
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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.
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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
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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.).
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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.
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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).
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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.
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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).
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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).
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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).
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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T
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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-
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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
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Table 1 (continued)
State Yes No
West Virginia X
Wisconsin X
Wyoming X
Total 28 23
T-3
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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T
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B
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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
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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
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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
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T-18
-------
T
A
B
L
E
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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
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T
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B
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E
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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
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T
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B
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E
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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
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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
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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
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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
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T-28
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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
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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
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T-32
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T
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B
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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
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-------
•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
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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.'
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T-38
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T
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11
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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.
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r-42
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T
A
B
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12
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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
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13
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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
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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
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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
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21
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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
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