Final Draft


      Summary and Analysis

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


                    Summary, and Analysis
                       Prepared by the

                  Environmental Law Institute

                           for the

            Office of Waste Programs Enforcement,
                  RCRA Enforcement Division
             U.S. Environmental Protection Agency
                        October 1987

                               TABLE OF CONTENTS
      A.  PURPOSE OF STUDY .........................                        !
      B.  THE RESEARCH .................................. "..'/.'. ............. 2
      C.  ORGANIZATION OF THE REPORT .......................... ............ ! 3
      D.  THE FUNDA1VEOTAL PRINCIPLES OF ENFORCEMEOT ............ ............ 4


      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

                      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
          1. Federal	45
          2. State	45
             a. Description of Existing Civil Penalty Provisions	45
             b. Procedural and Institutional Obstacles  to Civil
                    Penalty Enforcement	47
          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
          1. Federal	59
          2. State	59
             a. Substantive issues affecting criminal enforcement	59
             b. Procedural and Institutional Issues	62
          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


             EACH STATE  AND EPA	68
          1. States  are  Not Mini-EPAs	68
          2. Every State is Different	68

           3.  Effective Oversight Requires an Understanding of the Unique
                 Features of Each State	69
           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
           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
           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



Table 1       States Requiring Transporter Licenses	T-l

Table 2       Statutory Standards For Permit Revocation, Suspension	T-5

Table 3       States With Permit Bar/Bad Actor Provisions	T-ll

Table 4       Institutional Issues Affecting Cross-Media Enforcement
             Using Hazardous Waste and Water Laws	T-15

Table 5       State Superfund Provisions (Fifteen State Study)	T-19

Table 6       States In Which, According  To State Law, A Non-Emergency
             Compliance Order May Be Issued Without Prior Hearing  And
             Is Treated As Immediately Effective Even While A Request
             For Hearing Is Pending	T-21

Table 7       Statutory Preconditions To  Enforcement Actions	T-23

Table 8       Final Decision On Administrative Review	T-29

Table 9       Geographic  Forum (Venue) For Judicial Review Of Final
             Administrative Enforcement Actions (Fifteen State Study)	T-33

Table 10     Assignment Of Attorneys To Handle Administrative
             And Judicial Civil Enforcement Cases	T-35

Table 11     Do The Same Attorneys Handle Administrative Enforcement
             And Civil Judicial Enforcement Actions?	T-39

Table 12     Attorneys Handling Administrative And Judicial Civil
             Enforcement Cases (Fifteen State Study)	T-43

Table 13     Civil Penalties Under Hazardous Waste Laws	T-45

Table 14     Civil Penalty Authority (Fifteen State Study)	T-49

Table 15     Procedure For Imposing Administrative Civil Penalties
             (Fifteen State Study)	T-51

Table 16     Legal Standard For Issuance Of Enforcement Injunction
             (Fifteen State Study)	T-53

Table 17     Decision To File/Or Refer For Filing A Civil Judicial
             Enforcement Case (Fifteen State Study)	T-55

Table 18     Venue For Direct Civil Judicial Enforcement Actions
             (Fifteen State Study)	T-57

Table 19      Criminal Enforcement Of Hazardous Waste Laws
             (Fifteen State Study)	T-59

Table 20      Hazardous Waste Crimes	T-61

Table 21      Primary Responsibility For Criminal Prosecutions Of
             Hazardous Waste Crimes (Fifteen State Study)	T-75

                            SUMMARY AND ANALYSIS


      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. —

      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
\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.

      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

      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.


                                  .	—
       Oklahoma   1  Arkan-
Arizona     New Mexico

administrative procedure laws and relevant constitutional provisions. In certain
instances, ELI conducted followup telephone interviews and review of relevant
regulations and administrative procedures.
     Together the two segments of the study provide a detailed picture of hazardous
waste enforcement at the state level The study further serves as a guide to
understanding state-by-state variations in procedure, substance, and institutions, and how
these variations significantly influence not only the effectiveness of enforcement by the
states but also the effectiveness of EPA oversight policies.

     The final report on the study consists of two parts: (1) this Summary and Analysis
and (2) fifty-one individual State Reports.
     The Summary and Analysis addresses each of the primary enforcement tools
available to the federal and state governments for  the enforcement of hazardous waste
laws.  Although in practice these  tools are integrated into comprehensive state programs
of enforcement (Section H.A., infra), they have been divided for purposes of analysis into
the following categories: permits  and licenses as enforcement tools (Section H.B.),
administrative orders (Section II.C.), administrative and judicial civil penalties (Section
H.D.), civil injunctions and judicial contempts (Section H.E.), criminal enforcement
(Section H.F.), and "other" enforcement tools (Section H.G.). Each of these tools is
placed preliminarily  in its federal context under RCRA, and then discussed in its
comparable state context with critical enforcement evaluation and analysis.  The
Summary and Analysis gives particular attention to (1) substantive standards,  (2)
procedures and (3) institutional features found among the states, and their impact on
enforcement effectiveness. The Summary and Analysis contains numerous tables and
charts designed to highlight some (but by no means all) of the significant features and
differences found in the states. The tables and charts should be read in connection with
the accompanying text rather than used independently, as the relationships among the
substantive enforcement authorities, procedures, and institutional factors  are fairly
complex. In Section III, the Summary and Analysis examines where EPA's policies and
oversight practices do and do not currently take into account the state variability
observed. It describes certain critical differences between EPA  and the states (Section
III.A.), and shows where EPA has  approved state authorities that are weaker than RCRA
(Section ffl.B.). It then identifies where EPA oversight policies have actually or
potentially discouraged the adoption and use of strong state enforcement authorities and
                                        -3 -

practices (Section III.C.) and state-wide enforcement programs (Section III.D.). Section
IV provides a blueprint for dissemination of the results of the study to strengthen
enforcement oversight and state authorization.
     The State Reports set forth the relevant enforcement authorities, procedures and
institutions for each of  the fifty states and the District of Columbia, and discuss salient
features of each. For the 15 principal study states, the State Reports also include a
detailed analysis of the  implementation of the enforcement authorities, as well as
discussion of illustrative cases demonstrating the practical effect of these authorities,
procedures and institutions. Together the State Reports provide the  detailed supporting
data and state-specific analysis which undergird  the Summary and Analysis. The State
Reports also contain substantial amounts of state-specific data and analytical material
not included in the Summary and Analysis.  The State Reports may be used as an
introduction or guide to the enforcement programs and authorities of particular states,
even apart from this Summary and Analysis.

     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,


         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

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.

      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

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.

      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
      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

 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.

and Tennessee have 1 year licenses; California and Pennsylvania provide by statute for a
2-year license duration (limited to one year in California's regulations); and Minnesota
provides for 3 years.  Arkansas, however, requires two licenses, an annual license from
the Transportation Commission verifying compliance with insurance requirements, and a
5-year license from the Department of Pollution Control and Ecology covering
substantive requirements.  In some states there is no "expiration" except in the sense
that an annual fee must be paid and proof of insurance supplied.

                  (2)   Enforcement implications of transporter licensing
      The enforcement significance of the licensing requirements varies from state to
state. In part this depends upon the duration of the license (usually one to three years),
the standards  for renewal (automatic, or requiring a new demonstration of current
compliance and fitness), and the standards for revocation (ranging from a simple
violation in some states, to the requirement in Wisconsin that there must have been a
"grievous and  continuous failure to comply").
      Some states (e.g., New York, Pennsylvania)  require transporter licenses to specify
particular generators and  TSD facilities between  which hazardous wastes may be
handled, or specific waste streams.  This provides optimal control and enforcement
leverage to the states because it requires transporters  to subject themselves to frequent
regulatory scrutiny in order to obtain  license amendments.  Because the transporter must
periodically seek  a privilege from the  state (i.e., the amendment) in order to service a
new customer or carry a different waste, it must  carry the burden of remaining in
compliance and of demonstrating  continued compliance in order  to justify the grant of
the amendment.
      The existence of a "permit bar"  or "bad actor" provision can also be quite
important. See discussion infra, at pp. 18-21, 93-94.  A number of states prohibit the
grant or renewal of a license to an entity with current unresolved violations or a specific
history of violations.  If transporter licenses must be renewed frequently, or modified
frequently, the licensee is exposed to  the potential loss of its ability to continue in
business if it allows violations to occur or to recur.  Thus, the existence of a license
requirement,  coupled with a short license duration and a permit bar or bad actor
provision, may accomplish substantial deterrence.
      Transporter licensing may also provide leverage for enforcement against generator
and TSD violations. Some generators  transport their own hazardous waste.  If they face
the potential loss of their transporter  license for outstanding generator violations there

                                       - 11  -

 is a substantial incentive to avoid such violations.  Similarly, TSD facilities that have
 transporter fleets whose licenses must be renewed annually (rather than at 5-10 year
 intervals like the underlying TSD permit) will have a significant incentive  to avoid
 violations at their TSD facilities.
      Potential denial of renewal is significant as an enforcement tool because in some
 states such denial cannot be "stayed" while review of the denial decision is pending. A/
 The transporter must cease operating upon such denial  Transporter licenses are less
 effective in the enforcement context if renewal  is essentially automatic (or if renewal is
 not required).  They are also less effective  in those states where a nonrenewal must be
 handled like a  termination (e.g.. requiring the agency to prove the underlying conduct, as
 opposed to requiring  the operator to demonstrate its entitlement to renewal).
      Transporter licensing appears to provide significant enforcement leverage to states
 that keep track of the movement and handling of hazardous waste, and that use licensing
 to integrate with generator and TSD enforcement.  It is particularly useful to those with
                                   n I
 permit bar and bad actor provisions. -' In some other states,  it appears to be essentially
 a paperwork requirement without significant enforcement effect.  I/

             b.    Permits
      Permits are the cornerstone of the regulation of TSD facilities. In many states
 they also serve as significant enforcement tools.  Apart from the federally-required
 RCRA "Part B" permit, a significant number of states have previously required
 permitting of hazardous waste facilities under state laws, and have gained  experience  in
 permit-based hazardous waste  enforcement. —'
      State permit provisions, both  substantive and procedural, vary significantly from
 state to state.  Some states have less stringent substantive and procedural  requirements,
6/  Essentially, while the revocation of a transporter license may be stayed pending
administrative review (because the status quo is the existence of the permit), there is
nothing to stay when a transporter license renewal is denied (because the status quo is
the scheduled expiration of the prior license by its own terms).
]_l  E.g., Pennsylvania, Maryland.
&/  E.g., Illinois.
£/  Some states do not recognize "interim status" and have required TSD facilities to
operate pursuant to state permits (e.g., Maryland, Florida, New York) even prior to final
"Part B" approvals.
                                       - 12 -

 some more stringent requirements, than EPA's.  Highlighted below are some legal and
 institutional differences that are relevant in assessing the strength and effectiveness of
 the permit as an enforcement tooL This section will also address the highly significant
 (and indeed,  typical) state requirement that prohibits the release into the groundwater of
 any contaminant or pollutant without specific authorization by permit.

                  (1)   Substantive issues relating to use of permits as enforcement
                        (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.


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
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
been a failure to close properly or to carry out post-closure. —   This immediate access
to the financial security  means that the owner/operator has nothing to gain from delay or
resistance to the  agency.  Also, in accordance with the principles of enforcement, it
places the maximum leverage in the hands of the agency and the cost of delay in
compliance upon the violator.
      Other substantive permit provisions create significant enforcement advantages.
One useful permit provision  requires the permittee to fund the presence of permanent
onsite state monitoring personnel during the active life of the facility. —' This provision
serves the enforcement principle of providing a continuous, visible enforcement
presence, thus enhancing specific deterrence. It also  makes detection of violations
easier, thus serving the enforcement principle of detecting as  many violations as
117 E.g., Pennsylvania, New Jersey, Massachusetts.  New York prohibits commercial
TSD"Facilities from using the financial test.
127 E.g.; Pennsylvania. Even among states allowing use of the financial test, some are
more stringent than EPA.  Michigan, for example, requires a tangible net worth of at
least $50 million exclusive of the facility itself.  See Michigan Report, at p. 17.
137 Michigan. Such notice is followed by an opportunity for informal review, but the
execution is not stayed pending a formal execution proceeding. This provision applies to
Michigan facilities not using the financial test. See Michigan Report, at p. 18.
147 New York, for example, requires commercial land disposal facilities to pay for
permanent onsite state personnel These individuals  are rotated among facilities to
prevent them from being co-opted by the facility.  See New York Report, at p.8.

                                       - 14-

     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
IT/  E.g., Connecticut (5 years), Florida (5 years), New Jersey (5 years). EPA and some
states do not exercise such tight control  Idaho, for example, provides for issuance of
permits for ten-year periods "or the maximum authorized by RCRA, whichever is
greater." Like EPA, Idaho authorizes review and modification at 5-year intervals to
bring permits into conformance with technological and regulatory or statutory changes.
A right to "modify" is weaker than a 5-year expiration,  however, because the burden of
sustaining the need for modification is upon the agency rather than the permit
"applicant," thus giving the permittee more leverage than if it were seeking a permit
renewal. This weakness also exists in the federal RCRA permit system.

                                        - 15-

 continued compliance and prevention of violations, and (2) acceptance of modifications

 and amendments without litigation. Compliance and acceptance are tied to renewal of a
 permit that the applicant needs.

                        (b)   Substantive Standards for Permit Suspension or


      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
 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,

207  E.g.. Mississippi, New Hampshire, South Dakota,  West Virginia.  See also Utah
(failure to comply with operating plan). This also appears to be the approach taken by
EPA in 40 CFR 270.43, which authorizes termination  for violation of permit conditions
but not for other violations of the law or regulations or orders. Many states have
expressly adopted the 270.43 standards (e.g.. Arizona, Arkansas, Colorado,  Delaware,
Iowa, Kansas and others). Interestingly, Alabama adopted the 270.43 language in its
rules, but inserted additional language to make it clear that violations of the law,
regulations, or orders—and not just violations of permit conditions—authorize permit
revocation.  Illinois took the same approach in its rules.

21/  Pennsylvania. New Jersey allows suspension or revocation for violation of any New
Jersey pollution control law.
                                       -16 -

will allow the state to revoke or suspend a permit. —/  Other states have placed a

"materiality" condition upon the type of violation that may sustain a permit revocation

or suspension. —/  While most states would not suspend or revoke a permit  for a non-

material violation, the express inclusion of a materiality provision in a revocation or

suspension statute may create a difficult issue for litigation when such a state attempts

to suspend or revoke a permit.  It is probable that Congress did not include  such a

provision in §3005  and §3008 in part for this reason.  The state should  not be faced with

the burden of proving that a given permit condition is "material" or that a given violation

reflects lack  of "substantial" compliance, as such a requirement hinders enforcement and

is inconsistent with the fundamental principles of enforcement (i.e., simplifying  the
                                                                       KM I
elements that must be proved  and minimizing the burden upon the agency).  —

      A variety of other substantive grounds other than "violations" exist for permit

suspension and revocation. Some states have been quite expansive in providing these

grounds while others have not.  With respect to revocation for threats to health or the

environment  not caused by violations, a number of states have adopted EPA's approach in

40 CFR 270.43 that authorizes permit revocation only if the danger can "only be
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

23/  E.g., Colorado (failure to operate in "substantial compliance with permit"); Oregon
TTpeTmit violation must be "material").  Oregon does, however, allow suspension  or
revocation for any violation of the statute or regulations.

24/  Attempted "correction" of a weak statute through regulations may also raise
considerable obstacles to an attempt to use or threaten to use revocation authority. At a
minimum it will create difficult issues for litigation, thus weakening the state's leverage.

25/  E.g., Arizona, Arkansas, California, Colorado, Delaware, Indiana, Iowa, Kansas,
Louisiana, New Jersey, South Carolina, Vermont, Washington, West Virginia.

                                        -17 -

 levels."!!'  States that do not have an "acceptable levels" requirement have greater
 enforcement leverage and flexibility as their elements of proof are simplified.

                        (e)   Permit Bars and Bad Actor Provisions
      Far more effective than permit suspension and revocation are so-called "permit
 bar" provisions. —'  While suspension and revocation provisions require the agency to
 prove a case for taking away a privilege already held by an operating concern, the permit
 bar provides a means for the agency to deny the privilege of operating to a business
 concern, which must affirmatively prove its compliance status and fitness to operate.
 Permit bars usually apply not only to initial permit grants and denials, but also to
 renewal applications and modifications.
      A permit bar is a provision that either requires or authorizes the regulatory agency
 to deny a permit to any applicant  that has any current outstanding violation or a history
 of violations.  Some permit  bars apply to violations at the facility in question or to
 violations of particular statutes (i.e., hazardous waste violations), while others apply to
 violations occurring at any facility owned, operated or controlled by the applicant or its
 affiliates and to any type of environmental violation.
      A weaker version of the permit bar is the so-called "bad actor"  provision.  Such a
 provision authorizes or requires permit denial based upon  an applicant's history of
 noncompliance.  Bad actor provisions usually require that there have been formal
 adjudications of violation or specific criminal statute convictions. These provisions are
 useful for keeping "bad actors" from operating hazardous  waste facilities, but have
 somewhat less utility in providing  enforcement leverage to achieve current compliance
 at facilities owned, operated or controlled by  a permit applicant.
      Both the permit bar and bad  actor provisions are important enforcement tools, but
 the permit bar is far more useful and effective. Table 3 sets out those states with
 permit bars and  with bad actor provisions.
      Pennsylvania and  Maryland make frequent use of their permit bar provisions to
obtain compliance.  Pennsylvania essentially has discretion to deny any permit or license
application (or renewal application or modification) whenever an  applicant or affiliate
267 E.g., Kentucky, Pennsylvania.
27/ In some states and programs this has also been called the "permit block."

                                       - 18-

has ever committed any environmental violation, whether or not the violation has been
formally adjudicated. In addition, the statute requires Pennsylvania to deny an
application whenever there has been a violation of the Pennsylvania Solid Waste
Management Act unless the applicant can prove that the violation has been corrected.
This permit  bar provision employs three of the fundamental enforcement principles by (1)
recognizing  the strongest economic incentives for industry compliance, (2) eliminating
incentives for  industry delay in achieving compliance, and (3) minimizing the
government's requirements for proof (by requiring that the applicant show  that it is
currently in  full compliance and by not limiting the range of violations at issue to those
that have been formally adjudicated). The leverage provided by the permit bar is usable
to achieve rapid correction of violations and to encourage prevention of violations
(because no  permittee  wants to risk creating a history of violations for itself). The
Pennsylvania permit bar is particularly effective because Pennsylvania is also one of
those states that requires the TSD permit to specify waste types and generators  from
whom the wastes are accepted, and hence requires a modification application whenever a
facility proposes to add a new customer or new waste type from an existing customer.
The permit bar also applies to transporter licensing.
     Several states have found that the permit bar can be a more  effective tool for
achieving compliance than the usual compliance order/civil penalty approach. There are
several reasons for this: (1) the threatened sanction (viz. - denial) is immediate; (2)  the
burden (of showing compliance) is upon the owner/operator rather  than the burden (of
proving noncompliance) on the agency; (3) there is no incentive for the owner/operator to
"string out" the administrative process, because it needs the permit or permit
modification (i.e., litigation and noncompliance is on the violator's "time"); and (4) the
consequence of noncompliance is significant (viz. - loss of revenue) rather than
speculative  and possibly minor (i.e., a civil penalty proceeding).-^/
      Fourteen states have statutory bad actor provisions, which are less powerful
enforcement tools than the permit bar. Some of these state provisions provide a strong
                                                                             29 /
basis for initially screening permit applicants and discretionarily denying permits. —
28/  See e.g., Pennsylvania Report, at pp. 5-6, 9-11. Maryland Report, at pp. 4, 27-28; see
also Florida Report, at pp. 4-5.  Florida has made little use of its regulatory "permit
bar," however.
29/  E.g., Ohio (applicant must affirmatively demonstrate prior good record of


 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.


 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"
347  E.g., Texas, Louisiana.
357  These states do not deem an administrative appeal to stay the contested conditions
oTa permit.  Compare 40 CFR Part 124. Other states, however, have adopted Part 124
procedures (e.g., Kansas).

                                       -21 -

 continue operations or to expand its operations. —/
      Variance provisions may undermine permit-based leverage. In Mississippi, for
 example, a permittee may seek a variance from permit conditions in a separate
 proceeding (ultimately reviewable by a permit board), even where the permittee has
 accepted the conditions proposed by the agency in order to obtain the permit.  Variance
 provisions in other states can have a similar effect on the state's ability to make
 stringent permit conditions "stick."

                        (b)   Permit Revocation and Suspension
      If revocation or suspension is so difficult to accomplish procedurally that it is used
 rarely, if ever, or if it will take 3-5 years to accomplish  an effective revocation, these
 procedural disabilities will defeat any advantage arising  from otherwise excellent
 substantive provisions for suspension or revocation.  EPA's own permit suspension and
 revocation procedures are fairly cumbersome, and even if pursued cannot ordinarily
 result in an effective suspension or revocation until after a lengthy administrative
 hearing process.  Most of the states have revocation hearing procedures much like those
 of EPA. —  Others are even more cumbersome or difficult to use. —/
      In contrast, some states have suspension and revocation procedures that are so
 favorable that they assure the state's ability to use the permit as an enforcement tool A
 number of states have summary procedures that provide  for permit suspensions without
36/  In Pennsylvania, for example, a permit denial cannot be "stayed," as the status quo
to which a stay would restore the owner/operator is the status of having no state permit
or only an expired permit.  Any litigation contesting a permit denial therefore occurs
only on the owner/operator's time.  This produces a strong incentive to accept the permit
conditions  proposed by the agency in lieu of taking a denial. Michigan has adopted a
regular procedure of obtaining agreement to conditions, together with a waiver of the
owner/operator's right to appeal such conditions. See Michigan Report, at pp. 15-16.
EPA and many states have not used this leverage, and their appeal procedures work
against it.
37/  E.g., notice of intent to revoke, and formal adjudicatory hearing; revocation or
suspension  not effective until after final decision following hearing.
387  In Kansas, for example, a permittee is entitled to a formal adjudicatory hearing and
TTnal decision  by the Secretary of the agency on a permit revocation.  If the permittee  is
dissatisfied with the outcome of the administrative review process, however, it is
entitled to de  novo review in the district court in the county where it is located.  Kansas
Report, at  p.2. In Colorado, the state Administrative Procedures Act suggests thaTa
permittee must be given a grace period to bring itself back into compliance if the state
initiates a permit suspension or revocation.  Colorado Report, at p.2.


hearing where certain emergency showings can be made and where a hearing is provided
shortly thereafter. —  Of greater significance, agencies in other states may suspend or
permanently revoke a permit entirely without a formal hearing and such action remains
effective unless overturned in a regular administrative appeal. —  The ability to revoke
or suspend a permit without numerous procedural prerequisites and delays in the  action's
effectiveness makes this a powerful tool for negotiating purposes.  EPA's own revocation
and suspension procedures are, in this respect, a hindrance to optimal enforcement
effectiveness—a hindrance not shared by a number of states with effective procedures.

                  (3)    Institutional issues relating to use of permits and licenses as
                        enforcement tools
     An agency's attempt to use  the permit or license as an enforcement tool is  only as
credible as (1) the procedural ability to do so quickly and certainly, while putting the risk
of challenge (i.e., transaction costs, loss of opportunity) upon the permittee or applicant,
and (2) the likelihood that the reviewing entity will sustain the agency action. Therefore,
effective permit-based enforcement is necessarily concerned with administrative and
judicial review of permit decisions.
     Use of permit actions as an enforcement tool may be more likely to be impaired
where the agency's actions are reviewed by an independent permit board than  when such
review is by the agency secretary or director; this is particularly likely to be true where
39/ E.g., Maine, Maryland, New York. This is the functional equivalent of a summary or
emergency shut-down order, such as can be issued by most states for short periods of
time preceding a hearing.
40/ E.g., Pennsylvania. The permittee may seek administrative review before the
Environmental Hearing Board, but may not operate pending the appeal unless the Board
grants a supersedeas (stay) of the permit revocation or suspension.  The permittee has a
heavy burden of proving its entitlement to a supersedeas by showing (1) that the
suspension  or revocation is causing irreparable injury, (2) that it is likely to prevail on the
merits, and (3) that the public will not be injured if the supersedeas is granted.
Pennsylvania Report, at p. 7.
     Ohio  follows a procedure similar to that of Pennsylvania for permit revocation or
suspension. The Ohio statute, however, requires the agency  to give the permittee notice
and a "reasonable period of time in which to make corrections" prior to issuing the  unila-
teral order revoking or suspending the permit. As in  Pennsylvania, the revocation or
suspension  is  immediately effective regardless of the request for a hearing.  Ohio Report,
at pp. 8,22.

                                       -23 -

 such board is required to be composed of representatives of various interest groups. —'
      Another important issue is what court reviews agency or board administrative
 decisions.  In many states, such review takes place in a local district or county court,
 which is typically unfamiliar with agency practices and regulations and which may be
 disinclined to give any deference to the agency's presumed expertise even if required to
 do so by the judicial review statute. In contrast, review of permit actions is  centralized
 in other states. —'  In these states and the other states where review is placed in one
 court, there is an opportunity for the court to become familiar with the agency and the
 issues and a lesser likelihood of the agency being "hometowned" by the permittee. There
 are probably more states in which judicial review of permit decisions is decentralized
 rather than placed in a single experienced court. —'  Attorneys and enforcement
 personnel interviewed in this study tended to praise centralized judicial review systems
 and  to note the difficulties with decentralized systems, regardless of whether their own
 state had one or the other.
      A final institutional issue in the permit context is the division of responsibilities for
 enforcement and permitting. Enforcement tends to operate more effectively when the
 permit staff and  the enforcement staff are either the same, or are located physically and
 organizationally in proximity. This coordinated organizational approach is possible, and
 actually occurs not only in states with small staffs, such as Nevada, but in larger states
 such as Pennsylvania.  Permit-based enforcement is difficult,  however,  when processing
 of permits and permit applications is carried on independently of dealing with current
 violations. —  In many states, the permit process (including modifications, renewals and
 the like) is carried on almost entirely independently of enforcement activities (presumed
4J7  E.g., Illinois.  Not all independent boards reduce agency leverage, however. In
Pennsylvania, for example, the independent Environmental Hearing Board gives
deference to agency permit actions even as it reviews such actions in the first instance.
See p. 75, note 172, infra (Section III).
42/  E.g., Connecticut, Louisiana, Missouri, Pennsylvania, Texas, Ohio.  Ohio plainly
recognizes the value of centralizing at least review of technical permit decisions.  While
judicial review of Ohio administrative enforcement actions is decentralized, the review
of permit decisions has been placed in a single appellate court.
43/  Of the states  in the fifteen state study, nine have decentralized judicial review of
permit decisions.
44/  Missouri, for example, has its staffs split significantly,  and has the added constraint
^Thaving its hydrogeologists located in a different city from its enforcement and permit

                                       -24 -

 in such states to consist solely of notices and orders and civil penalties) largely because
 of the organizational split.  This prevents such states from taking advantage of permit-
 based leverage to assure compliance.

              c.   State Laws Prohibiting a Release Without a Permit
       Most states find it easier to effectively address a release of hazardous waste or
 other industrial substances than does EPA, by resorting to general discharge prohibition
 laws. Virtually every state has a law that prohibits the discharge of any pollutant or
 other substance into the "waters of the state" without a permit. —/ While these are
 commonly part of the states' Clean Water Act equivalents, they extend beyond the
 simple prohibition of point source discharges into surface waters.  In every state, the
 term "waters of the state" or its equivalent includes groundwater (although there is
 significant variation among the states in their use and  interpretation of these provisions).
      The existence of these "no discharge" provisions enables the states to address any
 release as a "violation" and to require cleanup without needing to engage in tortuous
 statutory construction regarding whether the release was from an interim status facility
 (as with RCRA §3008(h)) or whether the particular pollutant satisfied the definition of a
 "hazardous waste." !§/  Similarly, they do not require an "imminent and substantial"
 danger, or any health or environmental effects at all—merely  a discharge.
      Some of the provisions have been drafted  to clearly proscribe even discharges that
 have not yet reached the groundwater.  The best among these  provide a good tool for
 dealing with nearly any release of waste or other substance before contamination has
 actually occurred.  Texas, for example, proscribes unpermitted discharges "into or
 adjacent to" the waters of the state including groundwater.  Louisiana  defines
 unpermitted discharge to include not only the placing or release of pollutants to "air,
 waters, subsurface water, or ground," but also the placing of pollutants where such
 "leaking, seeping, draining or escaping of the pollutants can be reasonably anticipated."
 Oregon also has a fairly  strong version of this provision prohibiting not only discharges to
45/  Minnesota is an exception, but reaches the same result by making it a violation to
Tail to give notice of and clean up any discharge.
46/  Most of the states define the prohibited discharge fairly broadly. E.g.. Maryland
Fany contamination or other alteration of the physical chemical, or biological properties
of any waters of this state"); Pennsylvania ("any liquid, gaseous,  radioactive, solid or
other substance, not sewage, resulting from any manufacturing or industry, or from any
                                        -25 -

 the groundwater, but placement of wastes in any location where they are "likely" to
 escape or be carried into the waters of the state.  Illinois prohibits discharges into the
 environment that may "tend to cause water pollution," and placement of contaminants
 "upon the land in such place or manner so as to create a water pollution hazard." il/
      These provisions provide a significant vehicle for charging a violation and obtaining
 remediation or corrective action even apart from  the state "RCRA" programs. —/ Some
 states (including Pennsylvania, New Jersey, and Texas) have used these provisions
 aggressively in their enforcement efforts. £J
      Other states, however, have not made significant use of these provisions.  In some
 cases this is because the responsibility for enforcing water law violations resides in a
 different agency or division than hazardous waste enforcement, and in other cases it is
 because the procedures that attach to water law violations differ from  those for
 hazardous waste violations, thus raising the prospect of inconsistent adjudications in
 different forums.  Table 4 shows some of these institutional constraints. It identifies
 those states in which the same agency is not responsible for both hazardous waste and
 water law enforcement, and further identifies those states where administrative appeals
 are heard by different tribunals.  Although only three states (California, North Carolina,
 and Virginia) have different state agencies responsible for hazardous waste and  water law
 enforcement,  problems of division of responsibilities are not limited to  these states.
 Many of the other 47 states have rigid divisions between their program  offices,  resulting
 in the same lack of coordination or integrated enforcement.  In addition, twelve states
 have different tribunals review administrative enforcement actions under the hazardous
47/  Similar provisions exist in the states with respect to the release of pollutants into
the air without a permit.
48/  These provisions may also serve as the basis for subsequent invocation of the permit
bar in those states with permit bar provisions.  For example, if a facility has a release it
violates the no-discharge provision.  Because "violations" can serve as the basis for
permit denial in the permit bar states, the regulatory authority has substantial leverage
to obtain correction  of the release.
497  Pennsylvania, for example, virtually always cites the no-discharge provision of its
Clean Streams Law when it charges a hazardous waste civil,  criminal or administrative
violation.  Pennsylvania Report, at pp. 11,28.  New Jersey uses its provision to
accomplish involuntary permitting of dischargers,  adding detailed reporting and
enforcement obligations merely by issuance of the permit.  The permit can be issued by
the state without affirmative  proof of the discharge, thus conserving state enforcement
resources.  New Jersey Report, at pp. 32-33. See also Texas Report, at pp. 2,8;
Connecticut Report, at pp. 7-8; Louisiana Report,  at pp. 4-5, 9-10.


 waste and water laws.  This makes the use of more than one type of authority less
 attractive, and to some extent discourages hazardous waste enforcement personnel from
 looking to creative uses of the water laws; in part this division is further exacerbated
 through lack of staff familiarity in a significant number of states with the procedures
 under the respective programs.

              d.    Bond Forfeiture
      Bond forfeiture or threatened forfeiture is potentially a very powerful tool for
 obtaining compliance. It has not been widely used as an enforcement tool in the
 environmental area in the past. States with procedural provisions allowing for ease in
 bond forfeiture will be able to make use of the leverage provided by forfeiture to obtain
 hazardous waste facility and transporter compliance.—/  states with more complex
 forfeiture procedures will not be able to  exercise the same leverage. States that rely on
 operator self-certification (i.e., a financial test) will, in contrast, not have any
 forfeiture-based leverage to compel current compliance. —I
SO/ See discussion supra, p. 14; see also Michigan Report, at p. 18.
51/ According to the General Accounting Office, approximately  75% of RCRA facilities
are using the financial test. U.S. General Accounting Office Report "Environmental
Safeguards Jeopardized When Facilities Cease Operations" RCED-86-77 (February 1986).

                                       -27 -

         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
 permit condition. —  In  addition, nearly all of the states may issue emergency orders for
 imminent danger situations. Some states also may issue orders  where a given condition is
 creating a "public nuisance" even though the condition does not  itself violate a law,
527 Unlike most states, Idaho does not have a unilateral administrative compliance
order, but must seek injunctive  relief in court if a violator does not voluntarily comply.

                                       -28 -

                    CO /
regulation or permit. —'  Other states can use administrative orders to enforce their "no
discharge" provisions.
      A number of states have adopted super fund-type orders. Table 5 shows those states
in the fifteen state study that have such authority.  All fifteen have some ability to
require abatement by potentially responsible parties, and if such abatement is not
accomplished, to do the work themselves and charge the parties for the work. Several of
the states have provisions that, like the federal super fund law, enable them to charge the
noncomplying parties with treble the cost of abatement. —'
      The states generally have more flexibility in securing relief through administrative
orders than does EPA.  EPA under §3008(a) can only order the violator to come into
compliance; corrective action must be obtained under §3008(h) or §7003, both of which
have significant constraints on their applicability (viz. §3008(h) applies only to interim
status facilities, and §7003 only  to imminent and substantial danger situations).  Most
states' compliance orders include not only coming into compliance, but also
accomplishing corrective action  with respect to the contamination caused by the
violation. —  Thus the cleanup is not split off from the cessation of the violation.
      Perhaps even more significant than the ability to issue compliance orders and to
obtain corrective action is the ability of a number of states to issue shut-down
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.

              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

                   (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
      The states also have non-emergency order authorities. In general, the states fall
 into two groups with respect to the procedures for non-emergency orders.  The first
 group essentially follows the EPA  model: an order/complaint is issued, but it is not  final
 or effective until the violator fails to request a hearing or until after the order is upheld
 by an administrative law judge or the agency director following hearing.  The majority of
 states have adopted this approach.  In some of these states the order must be sought
 from an independent body by the filing of an administrative complaint. —/  in others the
 order is issued but is not final or effective until default or until it is upheld  by the
 administrative law judge or agency director following hearing. 52/
      The second group of states provides for the issuance by the  agency of  enforcement
 orders that are immediately effective.  In these states administrative orders must be
 complied with even though a request for hearing has been made and such review is
 pending. Table 6 identifies the eight states in which this approach is followed. The
 states are Indiana, Maine, Nevada, New Jersey, Ohio, Pennsylvania, Washington and West
587  Pennsylvania, Ohio.
J5J[  E.g., Illinois.
607  This is the case in the majority of states as well as with EPA. E.g.,  Connecticut,
Florida, Missouri, New York, et aL

                                       -30 -

         fi 1 /
 Virginia	In each state, the law presumes that the agency has properly evaluated the
 basis for an order and has exercised its informed judgment in issuing the order.  While the
 recipient of the order is entitled to review, the legislature has essentially determined
 that it is in the public interest that the order remain in effect  while such review is
      The violator may obtain relief from compliance pending review only if it can show
 that it is entitled to a stay of the order. The burden of showing such entitlement rests
                  go /
 upon the violator. 2±'  in order to obtain a stay, the violator must show that it is likely to
 prevail on the merits of  the case when it receives a full hearing, that it will suffer
 irreparable injury without a stay, and that the public will suffer no injury or minimal
       go /
 injury. —  The Ohio review board regulations expressly provide that "except for
 compelling reasons justifying a stay, a stay shall be denied." The recognition that an
 agency order is deemed worthy of compliance in the first instance is highlighted by an
 additional provision in the Ohio statute that if a stay is granted, the hearing on the
 merits must be held immediately. Similar recognition occurs in Pennsylvania. In
 Pennsylvania, the violation of an administrative order that has not been stayed subjects
 the violator to  immediate contempt of court. £!/
     The existence of orders that are immediately effective renders these orders
 different from  EPA §3008 orders. The agency obtains substantial leverage in dealing
 with or negotiating with violators, because it will not be tied up for months or years
 awaiting an eventual decision  while the wrongful  condition continues.  An agency issuing
such an order, however, must be immediately prepared to defend against a petition for
61/ Indiana differs from the other states in this group.  Its statute requires the agency to
wait for 60 days prior to issuance of the  effective unilateral order.  Indiana Report, at
pp. 16-17.
     Three other states—Colorado, Maryland, and New Hampshire—have statutory or
regulatory authority to issue immediately effective orders, but have elected to operate
like the majority of states (viz.-treating  the order as stayed, or not effective, pending
completion of administrative review).
62/ Except in Washington, where, if the  violator seeks a stay, the agency must show a
"compelling reason" why the order must be complied with pending the hearing.  See
Washington  Report, at p. 12.
63/ These stay standards are used in Maine, Ohio, and Pennsylvania. In West Virginia,
the violator must only show that it will suffer "unjust hardship." There are no express
standards in Indiana, Nevada and New Jersey.
647 Ohio Report, at p. 8; Pennsylvania Report, at p. 13.

                                       -31 -

 stay. The immediately effective order serves the fundamental principles of enforcement
 because it enhances deference to the agency and control over the remedy, shifts the
 burden  of proof to the violator, and requires the violator to litigate on its own time.

                   (2)   Preconditions to enforcement
      A significant number of states have adopted statutory preconditions to the
 initiation of administrative enforcement actions. —  All of these states are also within
 the group of states that have EPA-type compliance orders (i.e.,  orders not immediately
 effective).  These preconditions provide impediments to enforcement'by establishing
 preliminary procedural steps not required (or authorized) by the federal RCRA statute.
 These procedural steps may delay enforcement, provide additional bargaining leverage to
 violators, and immunize periods of  violation from the imposition of sanctions.
      Table 7 sets out the states that have adopted preconditions to enforcement
 actions. Most of these  preconditions apply to the issuance of compliance orders or other
 administrative orders, although a few states have also imposed such preconditions to the
 bringing of judicial cases against violators. —'
      The precondition provisions are generally of two types, both of which produce
 enforcement delay and  neither of which encourages the prevention of violations, or the
 correction of violations before their discovery by the agency.  Four states require that
 upon discovery of a violation, the agency must engage in "conference, conciliation and
 persuasion" with the violator as a precondition to issuing an order/complaint. 1Z/
 Essentially this provision assumes that all violations are minor or accidental (i.e., will be
 resolved in good faith),  that no importance should be attached to the failure to prevent
 violations, and that the agency should be compelled in all instances to negotiate first
 rather than to issue an order initiating the administrative process. In these states, the
 "clock"  cannot start  ticking on the eventual administrative hearing and final decision
657 Twelve states have adopted such procedural preconditions to the issuance of (or
seeking of) administrative enforcement orders: Alaska, Delaware, Georgia, Idaho, Illinois,
Indiana, Missouri, New Mexico, Oklahoma, Oregon, Wisconsin, Wyoming.  Two other
states, Massachusetts and Minnesota, have preconditions to assessment of administrative
penalties, discussed infra at pp. 47-48 and 80-81.
667 Idaho, Wisconsin, New Mexico.
67/ Georgia, Missouri, Oregon, Wyoming.

                                       -32 -

 until after this procedural hurdle has been cleared. JZ§/

      The other eight states with statutory preconditions to formal enforcement require

 that the agency first issue a notice and allow the violator up to 30 days (or 60 days in the

 case of Indiana and Idaho) to correct the violation or to enter into an "agreed order" to

 correct the violation at some still later time, before they may issue a

 com plaint/order jii' These provisions are much less stringent than federal RCRA, and

 essentially provide a free ride or "grace" period for violators with discovered violations.

 This "grace" period reduces any incentive for an owner/operator to invest time and

 resources in prevention of violations, because an owner/operator that corrects a
 discovered violation is treated in the same manner as an owner/operator who never
 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.


 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).


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

      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
      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.


             c.   Institutional Issues
                  (1)   Administrative review of enforcement orders
     A leading institutional difference among the states is that of who makes the final
decision upon administrative review.  There are several models. In some states, the
agency director or secretary makes the final decision after a hearing before an
administrative law judge results in a recommended decision (e.g.,  Maryland, Michigan,
New York) ("ALJ/Secretary Model").  In others, the agency action is immediately
effective but an independent review board or commission hears the administrative appeal
and renders a decision (e.g., Ohio, Pennsylvania, West Virginia) ("Agency Final/Board
Review Model").  In a few states,  the agency issues an order, but an independent board or
commission passes upon its validity at hearing before it is deemed final (e.g, Missouri)
("Agency/Board Model"). In still others, the agency is itself headed by a board or
commission, which renders a decision based on the evidence presented before it or before
an administrative law judge who renders a recommended decision (e.g., Texas, Virginia,
Alabama) ("Board Control Model").  Finally, in one state - Illinois - the agency may not
issue an order but must apply to an  independent board for an order, which may be  issued
by the  independent board only after an administrative evidentiary hearing at which the
agency must prove its case ("Illinois Model"). —'

    The ALJ/Secretary Model
     The advantages of a system wherein the director  or secretary renders the final
decision are efficiency, control over the timing of review, and the fact that the ultimate
decision is made by an official who  is publicly charged  with enforcement and protection
of the  environment as part of his or her official public  duties.  The vulnerability of such a
system is that it may be perceived as unfair or "stacked" against the regulated
community because the authority issuing the order is also responsible for passing upon its
validity. As a result, courts reviewing such a decision (even if an administrative
evidentiary hearing has been held) may give the administrative decision less deference
than they otherwise might (even if the courts purport to apply the usual "substantial
evidence" judicial review standard for review of agency decisions).
82/  Delaware has a hybrid system.  There the agency order is subject to review by an
administrative law judge with final review by the agency director (the Secretary).  The
Secretary's final decision, however, is itself reviewable by the Environmental Appeals
Board rather than in court. See Delaware Report, at pp. 1-3.

                                       -37 -

     The Agency Final/Board Review Model
      Those states in which the director or secretary issues immediately effective, final
 orders that are then subject to administrative review by a separate board upon appeal
 have the advantages of the ALJ/Secretary Model  The system is, however, insulated
 from the perception of unfairness (and from judicial second-guessing) by the availability
 of an independent forum for review. They avoid the disadvantages of subservience to the
 independent board as under the Illinois system or the Agency/Board Model, moreover,
 because of the ability to act by issuing an immediately effective final order.

     The Agency/Board Model
      Those states in which the agency issues an order that is not final or effective
 during the pendency of administrative review by an independent board, have some of the
 advantages of the first two groups,  but are disadvantaged by depending upon the board to
 act promptly. The may also be disadvantaged to the extent that the reviewing board
 membership by law represents various interest groups (e.g., Wyoming, Missouri) or takes
 a different view of  enforcement than the agency.

     The Board Control Model
      States in which the review board also directs the agency (e.g., Texas, Virginia)
 share some of the advantages and disadvantages of the first three groups.  Essentially,
 however, they lack the flexibility of agency director-headed review while not providing
 the "independence"  of the independent board.

     The Illinois Model
      The  unique Illinois system poses problems.  There the agency is utterly dependent
 for orders upon an independent board, which has no enforcement function itself.  The
 agency is unable to  act, or even to settle a case upon consent with a violator without
 approval and entry of an order by the board. This gives it even less enforcement
 flexibility than systems that rely entirely upon judicial enforcement, or that rely solely
on injunctions to enforce administrative orders (e.g., those that lack administrative civil
penalties).  The agency must constantly calculate whether it can persuade  the board to
act,  to act quickly, and to sustain the proposal to take an action.  The board, for its
                                       -38 -

part, is entirely free to give no deference to the agency. 511  The state agency's
experience under the Illinois system raises serious questions of institutional

     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.

     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
857 Louisiana Report, at pp. 25, 27.  See also Illinois Report, at pp. 18-19.


 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.


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
decided by a  central court. —  The central venue and experience of the reviewing court.
can be extremely important to an enforcement effort.  One Pennsylvania official, for ex-
ample, identified the Pennsylvania Commonwealth Court (a central court  that handles all
appeals from Environmental Hearing Board decisions),  as the most important advantage
the state has in its enforcement efforts. In  contrast, the need to rely on local courts in
88/ There are some exceptions. North Carolina offers violators denovo judicial review
of administrative civil penalty cases. See discussion infra at pp. 48-49, 82-83.
897 This second point has less significance in those few states (e.g., Nebraska) that have
only a two-tiered judicial system.
907 The designation of a venue for judicial review is not evidently controlled by the size
of the state. For example, while California requires that judicial appeals be in a local
court, Texas appeals are heard centrally.
917 California, Indiana, Maryland,  Michigan, Washington (local trial court); Florida,
Illinois, New Jersey, New York, Ohio (local appellate court).
927 Connecticut, Missouri, Texas (central trial court); Louisiana, Pennsylvania (central
appellate court).

                                        -41 -

 many states may undermine effective and uniform enforcement.—''

      Other judicial review provisions may provide cause for concern.  In Iowa, for

 example, a person who has complied with an order issued by the agency may, in addition

 to taking a direct appeal, seek relief from the order in a local court within six  months

 "on the grounds that the requirements imposed by the order are excessive, that the

 benefits to society are not commensurate with the costs of complying with the order and

 that society can be protected in a less costly manner."  The court may modify or vacate

 an order "[u]pon a finding that the requirements imposed by the order are excessive."—/

                   (3)   Assignment of legal representation for administrative
                        enforcement cases

      A third significant institutional issue is the assignment of legal responsibility for
 the preparation and presentation of administrative enforcement and administrative

 enforcement review cases. The most important factor (apart from staffing levels and

 the adequacy of funding) is whether or not the same attorneys are responsible for

 handling both administrative and civil judicial enforcement cases. Table 10 identifies the.
 division of administrative and judicial representation responsibilities in the fifty states

 and the District of Columbia.  A significant number  of states (39) have combined these
 responsibilities, either in the state's attorney general's office or the office of agency

 counsel. Table 11 identifies the breakdown. Of the  major  states analyzed in the fifteen
 state study, eleven combined these responsibilities.  See Table  12.

      A significant advantage of unifying  administrative and judicial enforcement

 responsibilities in a single office is that the choice of proceeding administratively or

 judicially can be made primarily on the basis of optimum effectiveness rather than  for
                    QC /
 institutional reasons. —  Other factors also have an impact, however. Artificial
93/  See also discussion of direct judicial enforcement actions in local and central courts,
infra, at pp. 56-58, 84.

94/  Iowa Report at p.3. In Oklahoma, an administrative order "shall" be stayed on
appeal to court if the recipient submits an affidavit of "irreparable impairment" of its
rights, and posts a bond. Oklahoma Report, at p.2.

95/  For example, administrative cases in Texas are handled by agency attorneys and
Hvil cases by assistant attorneys general. Since adopting administrative penalty
authorities, Texas has initiated almost no civil actions, in substantial measure because of
this institutional division. Texas Report, at pp. 21-22, 24-25.  In contrast, in Maryland
the assistant attorneys general handle both types of cases. The choice of a civil judicial
remedy is hence not influenced by  these institutional issues in Maryland, and is used to a
greater extent.  Maryland Report,  at p. 21.

                                        -42 -

constraints may force a choice of administrative remedies even in some states that have
the same attorneys handling both types of cases.  For example, some states do not
involve attorneys in case preparation, but only in the handling of the administrative
review case after the administrative order was issued by non-lawyer enforcement
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
proceedings	Such states operate much more like those in which there is a formal
separation of functions.
     The unification of enforcement functions is  an important institutional distinction
between many of the states and EPA. EPA is often constrained to select administrative
enforcement, in part, because of the difficulty of referring a case for judicial action (viz.
- regional and headquarters approval, litigation report and case development, referral to
U.S. Department of Justice (DOJ), eventual filing in district court by DOJ or U.S.
Attorney).  In contrast, most  states have much readier  access to their courts.  Part of
this ease in access comes from the unification of functions  in the same legal staff in
many states.

                   (4)  Inspection effects on administrative enforcement
     The allocation of agency resources to detection of violations can affect
administrative order enforcement.  For example, Maryland  has emphasized inspection as
an enforcement tool in its own right, and has allocated  substantial enforcement resources
(proportionally) to  this function.  It inspects TSD facilities,  generators (and transporters)
with much greater frequency  than EPA requires, and substantially more often than many
other states.  This  "show-the-flag" approach is an  enforcement strategy designed to
                               no I
enhance prevention of violations. —  The impact of this allocation  is difficult to
measure in real terms. The frequent presence of inspectors is likely to result in the
detection of more violations,  and hence  more enforcement actions than in those states
with less frequent, or infrequent inspections.  On the other  hand, the same presence
967 E.g., North Carolina.  These states are deprived of the advantage of attorney
evaluation of potential remedies (except informally) because of the timing of the first
attorney involvement in administrative enforcement.
977 E.g., Missouri.  See discussion infra, at pp. 54-55.
987 See Maryland Report, at pp. 15-16.  The New York approach of having a permanent
onsite state inspector at land disposal facilities is another variation on this strategy.

                                       -43 -

should also reduce the incidence of violations by increasing operator vigilance and
prevention.  Because federal oversight is concerned with the number of enforcement
actions taken, the result for oversight purposes may appear as a "wash." A different
oversight approach may more accurately reflect the effectiveness of this institutional
      Another inspection-related approach is that taken by Colorado.  Colorado requires
that the state provide advance notice of inspections to TSD facilities, generators and
transporters unless there is either "an emergency" or the agency has reason to believe
                                                             QQ /
that an "unlawful" act is being committed or will be committed. —  Plainly, the activity
detected in the course of an announced inspection will not necessarily be the same as
that which would have been detected otherwise. -^-  Thus the Colorado approach  is
likely to lead to a reduced detection of violations. Advance notice may encourage quasi-
voluntary compliance (at least immediately before the inspection), thus reducing the
need for formal enforcement actions to bring facilities into compliance. Essentially,
however, the Colorado approach completely foregoes the element of general deterrence
(compliance by all members of the regulated community through fear of detection) in
exchange for ease in obtaining specific compliance ("voluntary" correction of violations
by the specific operator that knows it will be inspected). -^-'
99/ See Colorado Report, at p. 6; see also Table 7.
100/ At a minimum this statutory impediment will lead to successful concealment of
intentional violations.
101/ See discussion at pp. 5-6, supra.

                                       -44 -

          1.   Federal

      Under §3008 of RCRA, EPA has the authority to obtain civil penalties either
 through administrative order, followed by opportunity for administrative review, with
 judicial review in federal district court, or through filing a civil suit in federal district
 court against the violator.  Both the administrative penalty and the judicial penalty are
 authorized up to $25,000/day and apply to the underlying violation as well as to any
 violation of an EPA administrative order.  EPA also may obtain $5,000/day penalties in
 federal district court for violation of §3013 and §7003 administrative orders.  EPA relies
 on civil penalties as the chief enforcement mechanism under RCRA.
      EPA has not required the states to have both administrative and judicial civil
 penalties in order to receive final program authorization, but only the ability to proceed
 either administratively or civilly. 40 CFR §271.16.

         2.  State
             a.    Description of Existing Civil Penalty Provisions
     Just as the federal enforcement system uses civil penalties as the chief deterrent
 and enforcement mechanism, so do the  hazardous waste enforcement programs of most
 of the states.  Despite their limitations in comparison with permit-based enforcement
 mechanisms and shut-down  orders, civil penalties are the focus of many of the states'
 enforcement efforts, and compelled by federal oversight of these efforts.
     Table 13 delineates the administrative and judicial civil penalty authorities of the
 fifty states and the District of Columbia. Forty-four states have the authority to seek
 civil penalties in  direct judicial enforcement actions against violators. Twenty-three of
 these states have only judicial civil penalty authority and cannot assess administrative
 civil penalties. Twenty-eight states have authority to assess administrative penalties
 unilaterally (i.e.,  without the consent of the violator). -^/ of the twenty-eight states
 with administrative civil penalty authority, twenty-one have judicial civil penalty
102/ Several other states (e.g., Virginia, Idaho) claim that they have "administrative
civil penalties" because they are authorized to obtain a violator's agreement to pay such
penalties absent a court case.  Of course, any state may obtain compromised penalties
upon agreement by the violator. (See e.g.. Maine Report, at p.4; Florida Report, at p.16;
Ohio Report, at p.24).  Therefore, these states have not been classified as possessing
administrative penalty authority.
                                       -45 -

 authority. In seven states, the administrative process is the only procedure for imposing
 civil penalties. -^-'  The agency cannot file suit in court and seek a civil penalty; the
 penalty must be assessed administratively. —^'
      Because EPA did not require states to have administrative civil penalty systems in
 the initial round of state authorizations under RCRA (i.e., pre-1984 HSWA), many of the
 states have not elected to enact such provisions.  Twenty-two states and the District of
 Columbia currently lack administrative penalty provisions for hazardous waste. ^/
 This group includes four nonauthorized states (vte.-Alaska, Idaho, Maine, Wyoming).
      Chart 2 shows those states that have hazardous waste administrative civil penalty
 authority. In general, such authorities are found in the  Deep South, the West Coast and
 the Mid-Atlantic States. Central Appalachia, the Great Basin states, northeastern New
 England and Florida, are the areas generally lacking these authorities.-!^
      In the last three years a growing number of states have moved to adopt hazardous
 waste administrative civil penalty authority (e.g.. Alabama,  California,  Connecticut,
 Massachusetts, Minnesota, New Mexico, Texas). No state has repealed such authority.
      Of the  fifteen states studied in depth, eleven  have administrative  civil penalty
 authority.  See Table 14.
      It is important, however, to distinguish among the civil penalty authorities of the
 states.  Administrative penalty authorities can vary dramatically.  For example,
 Oklahoma has an extremely limited administrative civil penalty provision.  It authorizes
 administrative penalties only for violation of an order—not for a violation of law, a
 regulation, or a permit.  Other states have authorized only limited amounts for
 administrative  penalty assessment, apparently not wishing to entrust an administrative
103/ Arkansas, Georgia, Mississippi, North Carolina, Oregon, Tennessee, Washington.
104/ In these states the courts become involved with civil penalties only if the violator
appeals from the final administrative determination (i.e., judicial review); or if the
violator refuses to pay and the agency  must file for entry of a judgment allowing it to
use judgment enforcement procedures (such as seizure of assets) to collect the
administratively assessed penalty amount (i.e.,  enforcement of the final order).
105/ Some of these states have administrative  penalties for other environmental
programs, however.  E.g.,  Surface Mining Act violations (Colorado, Wyoming, Ohio,
Kentucky, West Virginia, Virginia).
106/ The upper Midwest is divided among states having and lacking such authority.


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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.

                                       -47 -

 principles of effective enforcement. 1I2/

      The enactment of provisions like these may hamper enforcement even if the

 parallel judicial remedies remain without preconditions. There are strong institutional
 pressures to use administrative penalties when the agency has such power. These include
 the fact that the agency controls the process, can avoid depending on other agencies and
 personnel, and can routinize the enforcement process (orders, penalties, hearings).

 Because of these factors, EPA makes almost exclusive use of its RCRA administrative

 enforcement authorities rather than using judicial authorities.  Similarly, when Texas
 adopted administrative civil penalty authority in 1985 (as an addition to its existing

 judicial authority), use of the judicial tools virtually disappeared. ILL/ This perfectly

 predictable  response can be problematic jf the administrative tools are not adequate or if
 they contain provisions or conditions that hamper agency  enforcement.  Thus, it is not

 sufficient that either the judicial or the administrative  process can be found effective
 under the principles of effective enforcement; if a state has both systems, the

 administrative system must be effective in order for the enforcement program to
 operate effectively. -LL1/

     To the extent to which EPA is considering requiring states to adopt administrative
 penalty authorities, it must be cognizant of the potential  weaknesses in such
 authorities.  Careful oversight of the authorization process will be needed.

     The North Carolina system of administrative penalties raises serious enforcement
 concerns. The other six states that have only administrative penalties provide that
judicial review of the penalty shall be conducted on the administrative record made
IIP/ The provision, Minn. Stat. §116.072(1)-(11) (1987), also has other peculiarities.  It
allows the violator to choose between administrativeTeview of the penalty before an
administrative law judge, or direct review in a local district court.  The agency retains
the burden of proof; thus, the provision essentially is a judicial penalty provision (at the
violator's option), but with a $10,000 "cap" and a forgiveness provision.

Ill/ See Texas Report, at pp. 21-25. The overall study indicates that particularly where
states have divided the duties for administrative and judicial cases among different
attorneys, in those states where administrative penalties exist judicial enforcement is
reduced significantly.

112/ Because of the strong institutional incentives to use administrative procedures and
remedies where they exist, it is even more important that the administrative system be
strong and free of conditions.  To the extent to which Massachusetts and Minnesota use
their administrative penalty authorities, their programs may arguably have been
somewhat weakened by the addition of new remedies.  See also discussion at pp. 80-81,
infra (Section III).
                                       -48 -

 during the administrative review proceeding, and that the assessment shall be upheld if
 the administrative decision is supported by substantial evidence in the record. -^^  The
 North Carolina law, however, grants the violator de novo judicial review of the penalty
 on appeal This means that in order to prevail against a violator in a civil penalty case,
 the state must be able to prepare it and win it twice. The violator need only win
 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
1157  The only significant difference is in Illinois where the independent hearing board—
the authority that issues the penalty assessment in the first instance—is in some respects
less inclined to uphold the administrative penalty amount sought.

                                        -49 -

         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

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
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
1177 This is arguably the case even  for federal RCRA injunctions even though the courts
may retain some "inherent" equitable discretion.  Environmental Defense Fund v.
Lamphier, 714 F.2d 331 (4th Cir. 1983) (proof of violation sufficient for injunction).
1187 In Pennsylvania injunction cases the state never has to present evidence of harm (or
lack thereof), and violators are not permitted to introduce evidence that the violation did
not produce harm.  This simplifies case preparation and eases the burden on the state in
accordance with the fundamental principles of effective enforcement.  In contrast, in
neighboring Maryland despite some case law  supporting the proposition that proof of  a
violation is sufficient, the assistant attorneys general nearly always must prepare and
present evidence  of harm to the local circuit court judges in order to obtain an
injunction. New York and Indiana have had similar experiences.
1197 See Missouri Report, at p. 24.  R.S. Mo. §260.420.2. Idaho (not one of the fifteen
major study states) requires proof of "long term irreparable damage" or an "imminent
hazard" for an injunction. Mississippi requires proof of irreparable injury or an imminent
and substantial endangerment.

                                       -51 -

      Most states, but far from all, appear to authorize entry of an injunction upon proof
of the violation.  -^2.' Massachusetts has a variation on this approach.  Its law  creates a
"rebuttable presumption" that any violation constitutes irreparable injury, thus satisfying
that element of proof. This is, however, weaker for enforcement purposes than a
standard that excludes evidence of harm, or lack thereof, and requires only proof of the
fact of violation. —/

                   (2)   Public Nuisance
      Many states are able to seek injunctions against releases and other potentially
damaging conditions under common law principles of "public nuisance." This remedy is
not available to the federal government.  The  doctrine of public nuisance allows the state
to require anyone injuring the public health and welfare to cease doing so, regardless of
whether the condition causing the public nuisance is itself prohibited by any law. -I^/
      New York and Pennsylvania, among other states, have made substantial use of the
public nuisance doctrine  in groundwater and hazardous waste enforcement.  It is not
ordinarily usable  in administrative proceedings as it is a judicially-created remedy.
Public nuisance gives the states the ability to  deal with (1) issues involving the  so-called
"innocent landowner," and also (2) situations where a physical condition is producing
public harm even though  the nature of the "violation," if any, may be uncertain or
                                   1 00 /
obscure, as well as  with other issues. -i-=^-'
      State public nuisance injunction actions may be used only to abate the nuisance
(i.e., to accomplish corrective action, cleanup, monitoring).  They do not support the
assessment of penalties or fines, or recovery of damages by  the state.  Such remedies
must be sought on a statutory basis in a different action, or  in a separate count of a
1207 See Table 16. Also other states, e.g., Arkansas, Kansas, West Virginia.
121/ Massachusetts Report, at p.4.
122/ See Halper, L., "Public Nuisance and Public Plaintiffs:  Rediscovering the Common
Law," 16 Environmental Law Reporter 10292 (October 1986) and "Public Nuisance and
Public Plaintiffs: Ownership, Use and Causation," 17 Environmental Law Reporter 10044
(February 1987), and cases cited therein.
123/ Such enforcement problems can be potentially troubling for EPA, which is limited
to its defined statutory and regulatory jurisdiction, definition of violations, and
prescribed rights and remedies.  Public nuisance judicial actions enable the states to
accomplish actions that may be difficult for EPA.

                                        -52 -


             b.    Procedural Issues
                   (1)   Statutes of limitations
      One potential obstacle to judicial enforcement is the "statute of limitations." Such
 statutes basically provide that a court action must be brought within a specified period
 after the commission of a wrongful act, such as a violation, or it may not be brought at
 all.  Such limitations do not apply ordinarily to public nuisance suits, but do apply to suits
 for injunctions or penalties based on statutory violations.  Several states have fairly short
 statutes of limitations.  For example, Maryland has a one-year statute of limitations for
 judicial civil penalties.  Alabama has a  two-year statute of limitations for both
 administrative and judicial civil penalties; Idaho has a two-year statute of limitations for
 judicial enforcement actions. In contrast, Pennsylvania's statute provides that for
 hazardous waste  cases, the statute of limitations is twenty years. -^1'  The shorter
 statutes may pose serious problems where violations are not immediately discovered, or
 where the violation was known to the state (at least in part) and enforcement resources
 and priorities did not enable the state to get to  the violation in time.

                   (2)   Recovery of fees and costs
      One significant feature of some states' judicial enforcement remedies is the ability
 to recover investigative costs and attorneys' fees and expenses from the violator. The
 usual common law rule in the  United States is that each party bears all of its own costs
 and expenses regardless of the outcome, except that certain minimal court costs (usually
 filing fees, transcripts, and witness fees) are assessed against the loser and awarded to
 the prevailing party. Some of the states have modified this rule by statute in favor of
 the state as plaintiff.  Illinois and  Minnesota permit such recovery by the state only if
 the violation is "willful." In Texas judicial civil penalty cases, however, the attorney
general may recover attorneys' fees and investigative costs and expenses from the
defendant whenever the state prevails.  This has been a powerful incentive both for
 compliance and for settlement by defendants before trial.  West Virginia may also
124/ 35 P.S. §6018.617.

                                        -53 -

 recover costs and attorneys' fees. 125/

              c.    Institutional Issues
                   (1)   The decision to take judicial enforcement action
      In most states the decision to proceed administratively or through a civil court
 action is made routinely by the agency director or enforcement staff, or is not made at
 all in those states where all matters are usually handled administratively unless
 compliance or negotiations break down. As we have seen, the division of responsibilities
 between attorneys handling civil cases and those handling administrative cases may also
 have a significant impact on whether a case is pursued judicially. Usually, however, the
 decision to take a judicial approach is an internal,  informal decision made by the agency
 or its lawyers (including the assistant attorneys general assigned to it).
      The fifteen state study, however, revealed two states with unusual formal referral
 systems. See_ Table 17.  These states - Texas and Missouri - require the director of the
 agency (or the enforcement staff) to present a formal petition for referral before the
 board that renders final administrative decisions on administrative enforcement
 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.)


 appropriate. -tu it appears that the less formal the referral process, the more likely it
 is that judicial action will be taken.

                   (2)   Attorneys handling judicial enforcement eases
      We have previously discussed the significance of the handling of administrative
 cases by the same attorneys that handle judicial cases. -^I/ More active civil judicial
 enforcement efforts appear to occur in those states where the same attorneys handle
 both types of cases. Where there are different staffs of attorneys (i.e., agency counsel
 and attorney general), fewer cases  seem to get referred.  This is particularly true where
 the agency has administrative civil penalty authority.
      It is important to note not only whether the same attorneys handle both
 administrative and judicial cases, but also which attorneys have these responsibilities.
 Table 10 identifies the assignment of hazardous waste enforcement attorneys in the fifty
 states and the District of Columbia.
      Nothing of  significance can be said concerning whether it is better to have agency
 attorneys or assistant attorneys general  handling civil enforcement cases. -^JL  In
 Florida, however, the agency attorneys have felt themselves constrained to use only their
 agency statute in civil actions rather than the whole range of  authorities and remedies
 available to the state. ^/ To that extent, the allocation of civil litigation functions to
 agency counsel is somewhat weaker for enforcement purposes than civil actions by the
 attorney general.  In contrast, Pennsylvania's agency counsel use all types of causes of
 action and available state remedies in their  civil cases.
127/  Relatively few cases have been presented for judicial referral in these states.
128/  See discussion, supra, at pp. 42-43; Table 9, Table 10.
1297  It does seem apparent, however, that each of these is preferable to heavy reliance
on district attorneys (sometimes known as states' attorneys). There is generally a lack of
uniformity in enforcement, and differing levels of commitment from county to county,
where these attorneys are the primary civil enforcers  (e.g., California, Idaho, Nebraska).
130/  See Florida Report, at pp. 1, 14.

                                       -55 -

      Nineteen states employ agency counsel for administrative cases; ten of these have
agency counsel litigate their civil enforcement cases as well. -^-^  An advantage of
having "in-house" counsel try both administrative and civil cases is  familiarity with the
enforcement procedures, as well as involvement in early stages of investigation, case
development, and potential case development.
      A number of states that rely on assistant attorneys general lack these advantages
(even where the assistant attorneys general handle administrative as well as civil
cases).  In a significant number of states, the assistant attorney general has no
involvement in an administrative case until an administrative hearing has been requested
on an enforcement action already taken. ^-'  This means that in these states there is no
opportunity for attorney-supervised case development until after the agency has already
staked out its position and taken the action at issue.

                  (3)   Court in which a civil judicial enforcement action  may be filed
      The location (venue) for direct judicial enforcement actions is an important
institutional feature in state enforcement.   In almost every state the violator may be
sued only in the county where the violation occurred or where it maintains its place of
         I 00 /
business. -^-  This requirement means  that the state will often be  litigating before a
trial court that lacks experience in the hazardous waste regulatory  scheme.  Such courts,
as noted above, may be reluctant to impose the strict "violation" standard as the basis
for granting an injunction, and may be unsympathetic to stringent state penalty
schemes.  In addition, whether or not this is the case, there may be  wide  disparity in the
results of enforcement cases brought in different counties.
131/ Seven more states have assistant attorneys general specially designated as agency
counsel and permanently assigned to the agency.  These attorneys handle both
administrative and civil litigation. Essentially, then, seventeen states have their civil
litigation as well as administrative litigation conducted by "in-house" attorneys. (This
includes five of the fifteen major study states.)
132/ E.g.,  North Carolina, Missouri, Washington, Georgia.  In Vermont, administrative
cases are handled by non-attorney agency personnel. The attorney general becomes
involved only if the final administrative decision is appealed or if a direct judicial
enforcement action is needed.
133/ This local venue provision is found even in several states that require judicial
review of administrative appeals to be conducted in a central court,  e.g., Texas,
Missouri, Louisiana.  See discussion supra, at pp. 40-42.


      Several states have attempted to overcome these difficulties by authorizing the
agency to file suit in a single court.  Table 18 shows those states in the fifteen state
study that enjoy this option.  Pennsylvania's Commonwealth Court, for example, serves
not only as an appellate court for the review of all administrative cases, but also as the
trial court for any case brought by the state (or against the state), -^l/  Connecticut
environmental cases may be brought either in the superior court for Hartford, or the
local superior court.
      Important enforcement advantages flow from the ability of a state to control the
selection of the forum, and to prevent the defendant from doing so. Some states with
central venue provisions allow transfers to take this choice away from the state. In
Michigan, for example, judicial enforcement cases may be brought, at the option of the
state, in either the circuit court for Ingham county (i.e., a central forum) or in the
county where the defendant resides or does business.  Unfortunately, some defendants
have successfully persuaded the central court to transfer the case to a local circuit
court. This  underscores the importance of having the state control the selection of
forum, and of making that selection sustainable. -^'  In Indiana, the state may bring suit
in any court for a county where the state agency maintains an  office (i.e., a  central
court), or in the county of the violation or the residence or place of business of the
defendant.  Each party, however, has the chance to change the venue to any adjacent
county. Thus, the defendant may engage in some forum shopping (but the state may do
             I OC /
so in return). —?--  In  Wisconsin, normal venue rules allow  the state to file either in a
central court (Dane county)  or where the violation occurred. The law has been made
more restrictive for hazardous waste enforcement, however. The legislature has
provided that the state must file its action in the county of the violation, and that the
case may be transferred to Dane county only if both the state  and the violator agre
      Various states have identified local court bias or lack of  familiarity with the
environmental laws as elements that have hampered enforcement (and potentially
1347 The Pennsylvania DER has the option, however, to file suit against a violator in a
county Court of Common Pleas if it so desires.  This judicial scheme allows the state,
and not the defendant, to pick the most hospitable forum for a given case.
135/ See Michigan Report, at pp. 13-14.
136/ See Indiana  Report, at pp.  11, 32.
1377 See Wisconsin Report, at p. 4.

                                       -57 -

strengthened violators' negotiating positions).  The availability of a central forum can be

an important advantage to state enforcers.
138/ This is also supported by other available information.  For example, in the
December 31, 1986 "Thirteen State Study" prepared by the National Association of
Attorneys General (NAAG), several states identified the local forum issue as a leading
problem for their hazardous waste civil enforcement cases. Id. at p.30.


         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

                                       -59 -

 required for criminality, iii/ and punishments have been enacted by the states.  Many of
 the states have far more sophisticated criminal provisions than those set forth in RCRA
 §3008.  Others, however, have very minimal prohibitions, or have established proof
 requirements that make prosecutions difficult to bring (even if such states were more
 inclined to use criminal enforcement).  For example, four states - South Carolina,
 Virginia, Wisconsin, and Wyoming - have criminal provisions that impose a criminal intent
 requirement beyond that authorized in §3008(d)-(f). Their statutes allow criminal
 prosecutions only if unlawful hazardous waste acts by a defendant were "intentional" or
 "willful,"  while the federal statute requires only that the act have been committed
 "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
1447  E.g.,  Pennsylvania, Maryland,  Michigan, Ohio. (Scienter requirements include strict
liability and reckless.)  Many other states also have such provisions.  See Table  20.
1457  At least as defined prior to the 1984 Hazardous and Solid Waste Amendments.
1467  Some states' laws also define a far more limited scope of criminal conduct than
does §3008. E.g., Hawaii, Montana (no "violation" crime).

                                       -60 -

 derived from the crime, in addition to or in lieu of the statutory fine. —/  Others have
 forfeiture provisions. -ii§/
      More important than the substantive requirements, however, is each state's
 approach to criminal enforcement.  Many states entirely lack such programs in the
 hazardous waste area. Among those that have such programs, there is a wide disparity in
 enforcement philosophy, -lii'  Two states with active criminal enforcement efforts
 illustrate and exemplify these differences - New York and Pennsylvania.  New York
 handles numerous violations criminally.  It makes substantial use of a ticket-like
 summons for smaller violations, and initiates a significant number of criminal
 investigations of waste handlers, transporters and TSD facilities.  In general, New York
 uses its criminal enforcement tools to impose fines and to achieve on-the-ground
 abatement.  Almost no criminal cases go to trial in New York, and frequently abatement
 is achieved through plea bargaining.  Apart from several 10-30 day jail sentences,
 hazardous waste criminal  defendants have not received any prison terms. This
 enforcement approach is essentially much like a civil enforcement effort with the
 additional leverage of the possible stigma resulting from criminal investigation and the
 threat of conviction. It achieves "specific" compliance by the target entities, and some '
 measure of general deterrence because of the awareness of the criminal remedy.
      In contrast, the Pennsylvania criminal enforcement approach focuses very heavily
 on deterrence and punishment. Thus where a criminal prosecution occurs, the goal is
 conviction and criminal sanction; cleanup or abatement is handled civilly. i!P-/ The
 effect of this dichotomy is to discourage the "trading" of abatement in Pennsylvania for
 a plea and a minimal criminal fine.  Instead, Pennsylvania strives for  significant prison
 terms and high criminal fines. The result has been a series of substantial prison
 sentences for violators not matched in the other states in the study. -1^-L'  The
 Pennsylvania criminal enforcement philosophy emphasizes the goal of general deterrence
 over the goal of a specific compliance, which is the focus of the New York criminal
147/ E.g.t New York.
148/ E.g., Indiana, Maine, Pennsylvania.
1497 Procedural and institutional differences will be discussed infra at pp. 62-64.
ISO/ Pennsylvania's view is that it is entitled both to abatement and to prosecute and
convict anyone in violation of the hazardous waste laws.
151/ See Pennsylvania Report, at pp.  16-19, 28-30.

                                       -61 -

      Both the New York and Pennsylvania approaches show the benefit of maintaining a
 significant criminal enforcement program as part of a hazardous waste enforcement
 effort.  With respect to its effect on enforcement, the Pennsylvania approach has
 significant advantages in the creation of a general deterrent, which cannot be created by
 other means (i.e., an aggressive civil enforcement program can create many of the same
 benefits as the New York program; it cannot, however, produce the same effect of
 general deterrence produced by convictions with prison terms).  Thus, an effective
 criminal enforcement program should result in some trials and convictions resulting in
 prison terms for violators.
      In part, the prospect of prison terms produces a response in the behavior of
 managers  and officers.  They evidently express awareness that it may be sufficient to
 plead the  company guilty, pay a fine and accomplish abatement, in states where the
 criminal enforcement effort produces sanctions more stringent than those achievable
 civilly or administratively. The mission of a criminal enforcement program, therefore,
 should not be limited to achieving specific compliance by a given company. General
 deterrence should also be a significant goal

             b.    Procedural and Institutional Issues
      Criminal enforcement programs may either be coordinated centrally or conducted
 by local investigators and prosecutors.  Of the eight states in  the fifteen state study that
 have criminal  enforcement efforts, six have a centralized investigative program. See
Table 19.  The two with decentralized criminal efforts are California and New York.
      California relies upon local district attorneys to a far greater extent than any of
 the other  criminal  program states in  the fifteen state study. They are substantially
autonomous in developing their own cases and determining the level of effort devoted to
 criminal enforcement in a given county.  In contrast, the  attorney general's offices of
 Maryland, New Jersey, Ohio, and Pennsylvania conduct substantially all of the hazardous
waste criminal investigation and prosecution in those states.  Each of the latter states
has a fairly strong  criminal enforcement presence. Hazardous waste criminal
enforcement in Connecticut is conducted by a central office of the local state's
attorneys.  Essentially, this is the functional equivalent of the centralized approaches of
 the Maryland,  New Jersey, Ohio and Pennsylvania programs. In New York, criminal
enforcement is divided among various units of the attorney general's office, district
attorneys, and the  agency.  The result is a mixture of levels of enforcement not

                                       -62 -

 necessarily coordinated statewide.  Table 21 sets out the criminal enforcement
 responsibilities in the fifteen study states, -i^/
      The key to  hazardous waste criminal enforcement appears to be the availability of
 trained criminal investigators.  Those states that rely solely on agency-developed cases
 or local tips appear to lag behind those with an investigative team or "strike force" in the
 development and prosecution of hazardous waste cases.
      It is also important to provide a mechanism whereby cases identified by the agency
 can be referred to these criminal investigators and not simply handled civilly.  Several
 different approaches exist in those  states with active criminal programs.  In Maryland,
 for example, a Hazardous Waste Strike Force (three full-time  criminal prosecutors, five
 state police investigators, and a technical staff member) operates out of the same
 location as the Waste Management  Administration. A substantial number of cases
 originate out of agency referrals investigated by the Strike Force. In Pennsylvania, the
 Toxic Waste Investigation and Prosecution Section conducts criminal investigations with
 its own personnel and delegated personnel assigned by the Department of Environmental
 Resources.  In Ohio, all cases referred to the attorney general are reviewed for potential
 criminal enforcement action. The cases are investigated by the Special Investigations
 Unit and the Bureau of Criminal Investigation's environmental unit.  The Ohio approach
 assures that the criminal remedy is always considered, and contributes to the state's
 overall enforcement leverage as a violator may settle civilly rather than face even the
 possiblity of prosecution.  Effective criminal enforcement in the fifteen study states
 appears to depend upon the combination of (1) a specialized unit staffed with trained
 criminal investigators (not just  environmental inspector personnel), and (2) close
 coordination with the regulatory agency. -i§^/
     The availability of a state-wide investigating grand jury  is also a boon to
prosecution efforts. Institutional obstacles can arise  when a prosecutor is forced to
1527  With the exception of California and New York, those states with significant
criminal enforcement programs all follow the Attorney General-lead model (including
Connecticut with its Chief State's Attorney): Maryland, Illinois, New Jersey, Ohio,
Pennsylvania and Connecticut.
153/  Those states lacking either feature have potentially weaker programs.  The Los
Angeles County Strike Force provides these critical features on a county basis in
California. There is, however, no comparable state-wide effort in the state.

                                       -63 -

 "borrow" a local grand jury for enforcement purposes.  M

         1.   Federal

      In addition to its administrative and judicial authorities and remedies, EPA also has
 the authority to "list" hazardous waste violators for water and air pollution violations at
 RCRA sites to debar them from federal government contracts for a period of time. i5£/

         2.   State
      The states have adopted a number of other provisions designed to assist in coercing
 compliance. These include property transfer bars, super liens, contract debar ment, state
 benefits debarment, professional discipline, and use of publicity.

             a.     Property Transfer Bars and Superliens
      New Jersey has pioneered the use of "non-regulatory" economic sanctions to
 produce cleanup of hazardous waste sites. Its Environmental Cleanup and Responsibility
 Act (ECRA) imposes a "precondition on any closure or transfer of real property utilized
 for the generation, handling, storage and disposal of hazardous substances, by requiring
 the adequate preparation and implementation of acceptable cleanup procedures
          i 'ifi /
 therefor."	  Under ECRA,  the owner  or operator of any industrial establishment  or
site planning to close, sell or transfer  operations must notify the state agency and either
submit a negative declaration (that there has been no discharge or release or that any
such discharge or release has been  cleaned up), or a cleanup plan for agency approval.
Failure to comply makes the transfer voidable by the transferee, allows recovery of
damages by the transferee and renders the owner/operator strictly liable for  all costs,
154/ Compare, e.g., Pennsylvania Report, at pp. 19, 28-30, with New York Report, at p.
4.  Ohio, however, suggests that county grand juries provide some advantages as a gauge
of public sentiment in deciding whether to prosecute.  See Ohio Report, at p. 31, n. 41.
155/ 40 CFR Part 15.  While criminal violators of the Clean Air Act and Clean Water
Act are automatically listed, civil violators may be listed only for "continuing or
recurring noncompliance."  Listing may only occur for adjudicated violations, and applies
only to the facility actually in violation (not to the entire company).  Moreover,  the
listing expires automatically after one year.
156/ NJSA 13:lK-6.

                                       -64 -

 plus penalties for failure to comply. 1ZL/ The result is to make the cleanup obligation
 commercially self-enforcing.  Both transferees and transferors tend to conduct

 environmental audits to avoid hidden  liabilities and to accomplish the "due diligence"

 (required of corporate officers and directors under the general corporation laws) as
 applied to these transactions.

      "Superlien" statutes have similar commercial self-enforcement effects.  A number

 of states have enacted laws providing that where the  state must expend funds to clean up

 a site, the expenditure creates a lien  against the property, which is superior to all other
                                            1 CO /
 security interests regardless of when  created. -^2.  These provisions create a powerful
 incentive for lenders to require their  debtors to remain in compliance and to avoid the

 creation of situations that might lead to the creation of a lien with priority over the

 lender's security interest in the property. Again, this promotes self-enforcement. -!££/

             b.    Contractor Debarment

      Few states have made attempts to use state contracting as an  enforcement tool,
 except, perhaps in an informal way. California and Texas, however, have enacted limited

 provisions directed at denying contracts to hazardous waste violators. -^'  Some  states
 without such provisions may in fact practice a policy of such denials, but there is no
157/  Connecticut has a similar property transfer bar, but does not make the transaction
voidable, which is one of ECRA's chief strengths.  Conn. Stat. S22a-134 et. seq.

158/  E.g., New Jersey,  Connecticut, New Hampshire, Massachusetts, Arkansas,
Tennessee. The strongest of these is the New Jersey provision, which gives the lien
priority status with respect to all of the real property owned by the responsible party.
The other state statutes have limitations such as giving the lien absolute priority only as
against the cleaned-up property, but lesser priority over liens on other property; or
limiting the lien itself only to the cleaned up property.

159/  Some states with cleanup lien statutes will not experience this commercial
enforcement  effect. For example, the Texas "super lien" is only superior to interests
recorded after its recordation, unless the prior lienholder had knowledge of the basis for
a cleanup action at the time the prior lien was created.

160/  CaL Health & Safety Code 25358.3(d) (no cleanup contracts awarded to violators);
Cal. Gov't Code 4477 (state may not purchase from entity subject to Water Code cease-
and-desist order,  determined to be in violation of federal air/water pollution laws, or in
violation of state air pollution order); Texas Rev. Civ. Stat. Ann., Health-Public,  Article
4477-7, S8(h) (contracting agencies to "consider" record of person guilty of unlawful
hazardous waste release within preceding three years).

                                       -65 -

 formal record, lil/
      Without a listing or tracking mechanism for violators these potentially useful
 provisions may be of limited utility.

             c.     Other Debarment
      Some states have considered denying certain discretionary benefits to hazardous
 waste violators, such as grants, industrial revenue bonds, and state guaranteed loans.
 New York's Environmental Facilities Corporation, for example, has denied environmental
 revenue bond financing to recalcitrant violators that ultimately are compelled to conduct
 cleanup. ^

             d.     Professional Discipline
      In some states with professional licensing requirements, some enforcement-related
 provisions are relevant to hazardous waste practices.  For example, California law
 requires the Regional Water Quality Boards to refer for state disciplinary action any
 professional person  submitting false geological information concerning a surface
 impoundment. iM/

             e.     Publicity
      A number of states have made conscious use of publicity to carry the message of
deterrence.  The fundamental principles of general deterrence require regulated
community awareness of frequent inspections and timely sanctions against a cross-
section of the regulated community, and certain heavy sanctions imposed upon others.
     Texas, for example, publishes a bi-monthly listing of facilities inspected and
enforcement actions taken, including penalty amounts and abatement requirements. It
also publishes a semi-annual list of "best" and "worst" facilities, making use of public
161/ In some instances, very narrow debarment provisions may be worse than none at
alL For example, because the Texas provision refers to a "release," a violator may argue
that even a flagrant violation that did not involve a release cannot be used for
debarment.  States should assert an  inherent authority to debar violators for violations of
any type, and draft any debarment statutes or regulations carefully.
162/ See New York Report, at pp. 19-20.
163/ CaL Health & Safety  Code 25208.9.

                                       -66 -

 perception to influence compliance. —/ Louisiana makes extensive use of publicity
 about its enforcement actions, probably in part to help make up fop its constrained
 resources. !§§/ it publishes a monthly update on all enforcement actions.  Such publicity
 can be helpful for deterrence purposes, but only if sufficient enforcement is occurring to
 be credible to the reader in the regulated community.
      Some other states  have a more narrow approach. For example, Pennsylvania uses
 publicity chiefly to emphasize the severity of its criminal enforcement actions. !§£/
 Such  a focused approach capitalizes on the principle of general deterrence, which
 requires not only that a number of severe sanctions be imposed, but that they be
 publicized.  Indeed, the deterrent effect of sanctions is lost unless the regulated
 community is made fully aware of them, and of the possibility of their recurrence.
 Because of the focused nature and resource-intensiveness of criminal investigations  and
 prosecutions,  it is particularly important to get substantial public exposure for  such
 actions. -I5Z/  This can be an important aspect of deterrence, and not just a public
 relations venture.  Certain states and officials have recognized this distinction.
1S4/ Texas Report, at p. 14.
165/ Louisiana Report, at pp. 25-26.
166/ Pennsylvania Report, at pp. 29-30.
167/ Other states publicize their criminal conviction and guilty plea successes.  E.g.,
California's Los Angeles District Attorney's office.  See also Ohio, New Jersey,
Maryland, New York Reports.


          AND EPA

          1.  States are Not Mini-EPAs
      The RCRA federal enforcement authorities and approaches do not translate
 directly to the states. The states do not and (absent major legislative and other changes)
 cannot operate as "mini-EPAs." In fact, state authorities and procedures are often quite
 different from their presumed federal counterparts.  EPA and Congress must recognize
 that no state program, and no individual state enforcement case—whether
 administrative, civil, or criminal—can be tested by a straightforward comparison to the
 federal system or model
      To understand how the RCRA program "works" in any state, it is necessary to
 understand that the "RCRA-imposed" changes were overlaid on existing institutions and
 laws. Many (if not most) states had environmental laws even before Congress provided
 for the federal "authorization" of state RCRA programs.  These state laws often included
 judicially created common law as well as statutory and regulatory provisions and
 remedies covering protection of the quality of ground and surface water and regulation
 of hazardous wastes and air quality. EPA's "authorization" of the states often required
 modifications to  and some strengthening of existing legal (substantive and procedural)
 powers. But the  modifications necessary to achieve EPA  "approval" or "authorization"
 frequently left many existing standards, procedures, practices and institutions intact.
These standards,  procedures, practices and institutions  often significantly affect state
 enforcement agendas and capabilities in  ways not readily  apparent to EPA.

         2.  Every State is Different
     Effective federal oversight of state programs requires an understanding of the
legal, procedural, and  institutional features of each state. As discussed in Section II,
there are myriad and significant differences among the states, as well as between the
states and EPA, which may lead to different results even  under a uniform national
policy. Any EPA policy, oversight program, or evaluation of any state program must
recognize the significant variations in each of three major areas: institutional,
procedural, and substantive.  The most important differences among the states include:
         o   variations in the administrative and judicial institutional mechanisms by
             which the federal laws and EPA policies are implemented;

                                      -68 -

          o  variations in the common law and statutory and regulatory laws governing
             enforcement procedures, which may (or must) be followed by the state; and
          o  variations in the substantive laws of each state.
      For example, even the decision to exercise or refrain from exercising the power to
issue an "administrative order" is a different decision in every state, with dramatically
different ramifications and results. As shown in Section n, the  issuance of the order in
one state may result in an immediate administrative hearing or a petition for supersedeas
(stay), and will subject any person who  violates the administrative order pending review
to immediate contempt sanctions by a  court. In another state, however, the decision to
issue an order will result only in the filing of a "complaint" before an understaffed
commission,  which may or may not issue any order after several months of
administrative  proceedings.  If the order may only be issued by an independent
governmental unit, it may not contain the relief sought by the agency responsible for the
enforcement of the law or for detecting the initial violation (i.e., the agency that has the
training and experience to craft the necessary relief). Also, once the order is issued, any
violator of the  order may  be subject to no more than the risk of a potential complaint for
injunctive action and civil penalties filed before a local court.  The court may not be
required  to schedule the case as a priority matter and may be politically hostile to the
agency's  position and sympathetic to local industry. That court may refuse to impose
significant penalties, if any, and may merely afford the violator additional time to
comply with the very same requirements of law to which it had been subject months, or
even years, before.
      It is apparent that, in examining any state program or reviewing any state
enforcement case, EPA and Congress must take into account the complex, synergistic
interaction among the institutional, procedural, and substantive factors that support or
impede the state's success.

          3.  Effective Oversight Requires an Understanding of the Unique Features of
             Each State
      State enforcement choices may be influenced by the existence of enforcement
authorities differing from  those of EPA.  For example, a state may wish to  temporarily
delay the institution of an administrative or  judicial action in order to continue an
investigation into matters that  may be  substantively broader than those  regulated by
RCRA (e.g.; to  encompass PCB violations or certain groundwater releases from an old
abandoned site). The state may wish to continue an investigation beyond that required to

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

      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
Analysis. —-'  We will focus here only upon examples of state impediments to
enforcement that have been implicitly or explicitly approved by EPA through  its state
authorization process.
168/ We recommend, in Section IV of this document, preparation of a separate federal
RCRA analysis based substantially on the information derived by this study. Such
analysis would outline regulatory and congressional changes necessary to eliminate
obstacles to effective federal enforcement of RCRA by EPA.

                                      -71 -

          1.  The Vitiation of the Permit as Enforcement Tool
      One of the most powerful state enforcement tools is the license or permit.
Congress has recognized the power of the permit as an enforcement tool by mandating
the revocation of a permit for  the violation of any statutory standard applicable to
owners and operators of TSD facilities.-^-' Even the credible threat of a permit
suspension or revocation operates as a powerful enforcement mechanism.  The temporary
dislocation of a profit-making business is a dramatic and immediate economic sanction,
which affects the violator both directly and indirectly (e.g., through effects on customers
and insurers,  ability to achieve financing for future projects,  stock prices). Such
dislocation is likely to be much more effective than the mere initiation of an
administrative or judicial action  that seeks penalties that may not be "made final" or
reduced to judgment  for years. -Ill/
      In contrast to the congressional mandate to suspend or revoke a permit  for
violation of any applicable standard, many state statutes contain provisions that do not
even authorize permit revocation or suspension for such violations.  These provisions
clearly offend the Fundamental Principles by removing the necessary credibility of the
most potent enforcement tool

             a.  Obstacles to Enforcement! Burdensome Standards
      Some states do not authorize the agency to revoke or suspend a permit for other
than extraordinary circumstances.  For example, some legislation authorizes a state to
169/ See discussion at pp. 9-27, supra, (Section II).
170/ Section 3005(d) of RCRA states: "[u]pon a determination by the Administrator (or
by a State...) of noncompliance by a facility having a permit under this title with the
requirements of this section or section 3004, the Administrator (or State...) shall revoke
such permit." (Emphasis supplied). EPA's regulations authorize, but do not mandate,
"terminating a permit during its term" for a violation of a permit condition,  but not of all
program requirements.  40 CFR 270.43.
171/ The contrast in effectiveness between permit revocation and civil penalties is even
stronger in light of what generally appears to be a reluctance by many state (and even
federal) judiciary and reviewing boards and agencies to impose maximum penalties.
Instead, the trend has been to impose penalties in an amount even less than the cost that
would be incurred by a temporary shut-down.  One may compare the cost of even  a
temporary, short-term cessation of profit-making authorities to the average EPA RCRA
civil penalty assessment of $14,210 per case in 1986.  Study of EPA Federal  Penalty
Practices (Sept. 1986), Appendix E.  (Between 1981-85, the average assessment per case
was $9,144.)


 revoke a permit only upon allegation and proof: of "flagrant and consistent" violations; of
 a "substantial" present or potential hazard to human health OP the environment; of the
 causation or continuation of an environmentally unsafe condition; that the violation is
 "repetitious" of prior violations; or that the violation has continued beyond 30 days after
 receipt of a notice of violation. Each of these additional, burdensome substantive
 standards may undermine a state effort to create a program of general deterrence.
 Certainly, these laws do not foster compliance or the imposition of punishment in
 individual cases.
      These burdensome standards maximize, rather than minimize,  the government's
 burden of proving the elements of violation.  In the first place, the elements of violation
 themselves are not few, clear, or simple. An agency that is required to prove that a
 violation is "flagrant," environmentally "unsafe," or constitutes a "substantial" hazard to
 health or the environment must develop sophisticated and often massive evidence of
 potential or actual harm or injury (requiring, e.g., technical investigations and the
 testimony of expert witnesses).  The agency  must also devote legal resources to briefs
 and arguments supporting a favorable interpretation of the  vague and complicated
 concept of "substantial," "unsafe," or "flagrant." The agency is also less likely to prevail
 in litigation than one which must merely and simply prove a "violation."  Secondly,
 legislation that requires proof of "consistent" violations, "repetitious" violations or that
 the violation "has  continued" beyond 30 days after receipt of notice  from the state, does
 not deter violations.  It actually allows and tolerates violations,  allows and even
 encourages substantial delays in compliance, and affirmatively promotes the troubling
 concept that the regulatory process and litigation should operate on  the public's "time,"
 rather than that of the violator.
      These substantive obstacles to effective use of the permit as an enforcement tool
 effectively eliminate the major economic incentive to assuring prevention of violations
 and continued compliance. The loss of this tool is critical.  The ability of the
 enforcement agency to control the timing and nature of the permit revocation and
suspension, the powerful economic deterrent and sanction created by the existence of
such clear authority, and the ease and speed of proving entitlement to the relief, are all
                                       -73 -

 potentially powerful deterrents to violators. -     Where there are burdensome provisions

 that constrain the state's ability to use this tool (or to credibly threaten to do so), the
 permit may be "written off" as an enforcement tool

      The attempt of some states to "fix" bad statutory revocation standards by adopting

 regulations does not solve the problem. A sophisticated permittee facing a threatened

 revocation will always advance the legal argument that the regulations are invalid as

 inconsistent with the authorizing statute. The mere existence of this legal question will

 "chill" the ability of state regulators to make credible use of permit revocation leverage.

      It has been argued that these burdensome provisions are not real obstacles to

 enforcement because a state agency would not shut-down—even temporarily—a facility

 that has only a "minor" violation, a facility that does not pose a "substantial hazard" to

 the public health, or a facility that is not causing "flagrant and continous" violations.

 These arguments are not sound, however, and they are not supported by the information

 obtained by this study. Moreover,  even jf a state agency would, in reality, employ the

 revocation authority only in an extremely conservative manner, this would not justify the

 adoption of legislative standards that make  the threatened use of the  authority next to


      First of all, a number of states have—by permit suspension, revocation, or shut-
                                      1 170 /
 down order—closed facility operations. -^ In some cases the shut-down was used to
 leverage a speedy settlement and immediate compliance.  In other cases, the state

 sought to close a company simply because it did  not demonstrate a willingness or ability
172/ The permit revocation/suspension authority is particularly powerful for the
additional reason that the initial state agency action (i.e., the revocation/suspension) is
often accorded significant deference by the administrative reviewing board/commis-
sion/officer as well as by the court. In Pennsylvania, for example, the Environmental
Hearing Board (EHB) defers to the agency's action (Western Hickory Coal Co. v.
Commonwealth, Commw. No. 1733 C.D. (Dec. 31, 1984)), and the Commonwealth Court
then defers to the EHB. Moreover, by selecting revocation/suspension rather than
compliance order/civil penalty action or injunctive action, the agency can control the
choice of reviewing forum. It effectively selects the administrative forum rather than
judicial forum as the initial forum and then—in many states—is assured that judicial
review is by the central (rather than local county) court. (See e.g., Table 9). In most,
but not all, states central judicial review is regarded by the agency as more favorable to
the agency.

173/ See e.g., Maryland Report, at pp. 25-30; Pennsylvania Report, at pp. 9-11, 20;
Michigan Report, at p. 7-8; Connecticut Report,  at p. 19; and Louisiana Report, at p.
20. See also use of the "emergency order" power in Ohio to shut down a facility and
leverage a settlement. Ohio  Report, at pp. 27-29.

                                       -74 -

to remain in compliance with the law, and the state recognized that the issuance of a
multiplicity of compliance orders and civil penalty actions was not a sufficiently
punitive, practical, or cost-effective response to the company's behavior. These cases
are important because in many instances, the agency had not found—or could not have
proven—that the conditions at the facility or the site  were "substantially hazardous," or
"flagrant" or that the conduct was "continuous."  Yet the additional  leverage obtained
from  the permit enforcement authority allowed these states to achieve their objective.
      Moreover, even if state agencies were to exercise the shut-down power only in
"serious" cases, burdensome substantive language would needlessly create significant
obstacles to effective enforcement. The successful proof by an agency that a condition
is in fact "substantially" hazardous or unsafe requires a severe drain on the technical,
legal, and financial resources of the agency; may require substantial time to prepare and
present in the context of a complex case; and—in any  event—minimizes the likelihood
that the agency will prevail. Because the agency bears the burden of going forward and
the burden of proving that the standard (e.g.. "substantially hazardous") has been met, a
timid, political, or unsophisticated judge or hearing examiner can easily "find" that the
agency has failed to satisfy those burdens. Thus, the existence of the difficult
substantive standard may well prevent the agency from acting against even the most
flagrant violator  who is committing what the agency knows to be a substantially
hazardous violation.
      The mere existence of the burdensome standard necessarily creates a chilling
effect on the agency's use of this crucial—most powerful—enforcement tool.  In states
with such weak permit powers,  a program official or attorney developing an enforcement
strategy against a recalcitrant violator is less likely to consider use of the shut-down
power against the violator.  The official or attorney is  likely, instead, to turn to the slow,
inefficient, and significantly less effective, strategy of multiple civil penalty actions and
compliance orders.  Conversely, regulated industry in a state that  is  reluctant, or unable,
to easily use its permit suspension/revocation/shut-down  authority is less likely to
perceive the state agency as having significant powers, and is therefore less likely to be
deterred by the possibility that its profit-making activities will be temporarily or
permanently curtailed.

             b. Obstacles to Enforcement; Burdensome  Procedures
     The effectiveness of the permit revocation/suspension/cease-order enforcement
authority to deter violations and compel compliance is  dependent upon the procedural
                                       -75 -

 and institutional mechanisms established in each state, as shown in Section II.
 Unfortunately, most states employ procedures similar to that employed by EPA.  The
 violator is notified of the "proposed" revocation/suspension, an administrative hearing is
 scheduled, and weeks, or even months later, a decision is rendered affirming or reviewing
 the "proposed" action,!!!/ This means that the agency is precluded from effecting
 immediate shut-down and thus from gaining the significant and immediate economic
 leverage for achieving compliance that flows from that immediate shut-down.  These
 cumbersome procedures, which allow litigation to take place while the violation
 continues, and which diminish the economic "sting" of speedy enforcement, are not even
 the weakest (i.e., most favorable to industry) procedural mechanisms employed to
 enforce the hazardous waste laws.  A number of states are burdened by their legislatures
 with even weaker provisions. For example, some states require that the notice and an
 opportunity for administrative hearing on the proposed permit suspension/revocation be
 followed by a  lengthy public comment period before that suspension/revocation even
 becomes effective.

             c.  Limiting the Agency's Ability to Deny Permits
     Other procedural disabilities imposed by state legislatures, but which are not
 imposed by  RCRA, may limit the discretion of state agencies to deny permits or permit
 amendments.  For example, state legislatures  that specifically "authorize" permit denial
 only if the applicant has been convicted of  a felony, or only where a prior permit was
 denied or revoked, arguably create a defense to an attempt by the agency to deny or
 withhold a permit because of a series of consistent (if minor) violations, or for a serious
 current violation.  Even if the explicit authority does not conclusively prevent an agency
 from denying a permit to an applicant with an erratic compliance history, it certainly
"chills" the state's agency's willingness and ability to compel disclosure of, consider, and
174/ EPA's revocation procedures are the same as those applicable to the grant of a
permit, i.e., preparation of a "draft" permit revocation with a statement of basis or fact
sheet; public notice of the "draft" permit, with a comment period and an optional public
hearing; an (optional) public hearing and the preparation of an administrative record; the
final permit decision by the regional administrator; a request for an evidentiary hearing
within  30 days of the regional administrator's final decision;  an  evidentary hearing, in
which the agency has the burden of proving that the permit should be revoked; filing of
proposed findings of fact, conclusions of law and briefs after a hearing transcript is filed;
and the presiding officer's decision, which is still not final if a petition for judicial review
is filed within  30 days of the decision or if the Administrator files notice that he will
review the decision. Then, of course, there is judicial review. See 40 C.F.R. Part 124
(incorporated by reference in 40 C.F.R. 270.43.).


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

          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.


             b. An Unfavorable Institutional Structure Compounds the Problem
      The procedural burdens and their ramifications are exaggerated when imposed
 within an unfavorable institutional structure. In one state, for example, the state agency
 responsible for enforcement of RCRA is not even empowered to issue an order.  *77/
 That agency is only authorized to request that a separate, independent quasi-judicial
 agency issue orders. The "enforcement" agency thus essentially has only the same power
 that it has to obtain a court order—i.e., only the power to seek the directive. Thus, it
 lacks even the administrative order authority enjoyed by EPA under RCRA §3008. It has
 no power to control the relief or remedy; it has no power to settle a case.  Not only does
 it lack any enforcement power of its own, but it is not even empowered to request that
 an order be issued until it has first notified the  violator and allowed a "reasonable" time
 to attempt an "informal resolution" of the violation.  The administrative process in such
 a state effectively operates to protect industry from effective enforcement. The law
 can have virtually no deterrent effect upon a violator, and creates no incentive to quick
 settlement or voluntary compliance.

             c. "Emergency" Order Authority  is Not a Solution
     It has been argued that preconditions are not a major obstacle to enforcement
because most agencies are authorized to take "emergency" action (effective
 immediately) where there is an "imminent and substantial" threat to public health or
 welfare.  After all, the argument goes, the agency would surely elect to address all but
 emergency cases by first issuing  notice and offering the  violator the "opportunity" to
comply.  This argument, however, ignores both the enforcement burdens imposed upon
 the agencies by the "emergency" provisions, and the deterrent effect of orders.  This
argument also tacitly accepts a system that provides an  "opportunity" to do that which
the order recipient was already legally bound to do, or to correct a  condition that it was
already bound to prevent.
     First, under "emergency" provisions, substantial public legal and technical
resources must be devoted to plead and prove that the threat posed by the violation is, in
fact, "imminent and substantial" Not only will such a case be more expensive to try
than one involving an order effective immediately for any violation, but the more
stringent standard may not  even  be capable of being satisfied because of the absence of
177/ See pp. 38-39, supra (Section II).

                                       -78 -

 sufficient state surveillance or investigation. Even if the agency does obtain and offer
 sufficient evidence, a case may be lost because of the willingness of a reviewing forum
 sympathetic to the violator to "find" that the vague standard has not been satisfied. The
 higher standard of proof has a chilling effect on the agency's ability to enforce. The
 agency is simply less likely to respond to violations by instituting action under these
 emergency provisions—not only because of the additional resources it must commit to
 the effort, but also because if it loses, its credibility  will be damaged and the general
 state deterrent presence weakened.
      Second, in states where "emergency" orders are the only immediately effective
 orders, members of the regulated community correctly assume that they benefit
 economically by waiting until they  are ordered to comply with the law, rather than
 complying voluntarily. In all but the few cases where the agency devotes an unusual
 amount of technical and legal resources, any penalty eventually assessed for
 noncompliance, moreover, is likely  to be no more than what the company saved by failing
 to comply  timely (e.g., by delaying  the outlay of funds for capital improvements or
 operation and maintenance expenses).  Moreover, in some states where the law mandates
 a waiting period between issuance of notice of violation and a compliance order, there is
 no penalty at all available  for the time a violation continues between the notice and a
 subsequent order.  In  these states, there is no question but that it is economically
 advantageous for companies to avoid compliance until an order issues.
      Finally, where the only authority to issue orders is an "emergency" order the
 agency is left with no leverage with which to obtain settlements and voluntary
 compliance.  A reasonable  corporation whose very purpose is to maximize its profit
 margin will not settle a case if it is more profitable to simply challenge the agency's
 position. In fact, it may well be more profitable to delay compliance and litigate with
 the agency if immediate and substantial sanctions are not available  to the enforcement
 agency to address  violations of the law.

         3.  Burdening And Delaying The Enforcer;  Obstacles To Judicial Relief And
             Civil Penalty Assessment
     Although RCRA authorizes EPA to assess penalties administratively and to seek
injunctive relief without first issuing a "notice" or affording the violator a period of time
to stop violating the law, several authorized states are_ burdened by such requirements.

             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
      Although the  agency is authorized to assess a penalty for the violation that
continues during the 30-day period, it may  do so only after the thirty days has expired.
Even  then, the order assessing the penalty "must" provide for compliance "within a
specified period," suggesting that the agency is expected—and the violator allowed—to
delay compliance even longer.  Obviously, these legislative impediments appear to
tolerate continued noncompliance, to eliminate the potential deterrent effect of the
order and injunction authority, and to signal quite clearly to the judiciary and
administrative agency that penalties during the "reasonable period for compliance" are
only symbolic.  Certainly, such a penalty would be unlikely to approach the cost of
compliance.  In essence, if the violator comes into compliance during the thirty days, or
even during the "specified period" thereafter, there is virtually no likelihood that a
significant daily penalty would be assessed  or, if assessed, would be upheld. The
legislature has, in effect, sanctioned these  periods of noncompliance.

             b. Administrative Civil Penalties That May Be Worse Than None
      Many state legislatures do not empower the state to assess administrative
penalties. -IlZ/ Even in those states that &> authorize the agency to assess penalties,
many legislatures have imposed burdensome pre-conditions and other requirements upon
the enforcing agency.  For example, a state may be precluded from assessing
administrative penalties unless it first issues a notice of violation and the violation
continues for more  than thirty days or other indefinite period.
178/ See p. 34, supra (Section II).  Of course, the agency may proceed directly to court jf
it can generate the resources and evidence to plead and prove "imminent and substantial
endangerment."  Other states have similar provisions.
179/ See Table 13 and pp. 45-46. supra (Section II).

                                       -80 -

      In one state the administrative penalty must be waived if the violation is abated
 within the 30-day period or even if only "appropriate steps" have been taken within that
 period. M/
      In another state, no penalties may be administratively assessed unless it can
 affirmatively prove that the violation is part of a "pattern;" is willful; has a significant
 impact on health or the environment; consists of a failure to report an unauthorized
 release; or has continued after the state has issued a notice of violation, lii/
      In a third state, an administrative civil penalty can only be obtained for violation of
 an order—and that order cannot even be issued until the agency has first issued notice,
 waited fifteen days, returned and found that the violation is still continuingJM/
      In all of these states, the legislature is signaling a tolerance  for continued
 violations and a reluctance to severely punish violators.
      Similarly,  an agency  official who is not aggressive or who fears  unfavorable
 political fall-out is encouraged to seek penalties administratively,  where the violator will
 be treated more favorably. In all, the burdened and ill-conceived administrative penalty
 authorities may encourage lax enforcement, discourage voluntary compliance, and
 operate as an impediment  to even the best prepared judicial civil penalty action.
      A skilled defense litigator in these states could successfully argue in a judicial civil
 penalty action that the same affirmative burdens of proof, or at least the same defenses,
 should apply to any civil penalty action for  the same violation. -=^-'
      Another state, which purports to have administrative civil penalty authority,
 actually has a mechanism that requires the agency to proceed through a lengthy
 administrative process before it may seek penalties judicially. ^-' The legislature
180/ See pp. 47-48, supra (Section II).
181/ See pp. 47-48, supra (Section II).
1827 See pp. 32-33, 46, supra (Section II).
183/ One may persuasively argue that the state's purely "arbitrary" choice of the forum
(i.e., administrative or judicial) before which the penalty has been sought should not
conclusively determine whether or not a violator should be sanctioned: therefore, if
compliance is achieved within 30 (or 15) days, no judicial penalty should be imposed.
Even if this argument does not prevail, it is likely to lead to a judicial reduction in
penalties or to the provision of additional time for compliance.
184/ See pp. 48-49, supra (Section II).


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.


              d.  "Capping" the Penalty
      Some states, through a statute of limitations, preclude the filing of civil penalty
 actions for any violations occurring more than one year prior to filing. -HZ/  The
 significance of such an artificial "cap" on the ability to recover civil penalties for a
 continuing violation is highlighted by comparing the one-year limitation to Pennsylvania's
 20-year limitation. 1M/

              e.  Hampering the State's Ability to Obtain Equitable Relief
      In some states the injunctive process cannot even be initiated affirmatively by the
 attorneys authorized to file the action unless and until (1) the agency responsible for
 enforcement has presented its case in a public proceeding, before an independent, quasi-
 judicial board/commission, (2) the violator is given an opportunity to object to the
 initiation of the case, and (3)  the board/commission then authorizes the case to be re-
 ferred for filing. !2i' This very public, "objective" oversight process may be contrasted
 with the confidential relationship between EPA and the DOJ. It varies significantly from
 the absolute discretion  of EPA (the enforcing agency) and DOJ to determine whether or
 not to file a case—unhampered by a quasi-judicial board/commission not  directly
 charged with the responsibility for  enforcing the RCRA requirements.
      In most states, the agency also does not have the option of selecting the court in
 which the enforcement action must be brought. The agency must file suit in the local
 county court where the violation occurred or the company maintains its business. 19Q/ It
 137/  See p. 53, supra (Section II).
 188/  EPA's own ability to seek penalties is arguably unlimited. At worst, the statute of
 limitations applicable to EPA action may be 5 years.  28 U.S.C. §2462.
 189/  See pp. 54-55, supra (Section II).
 190/  See pp. 56-58, supra (Section II) and Table 18. This means that agencies with
 limited monetary and professional resources must travel to outlying areas of the state to
 enforce orders, stressing those resources to a much greater extent than they would be if
 the choice of forum was up to the agency or if all proceedings could be brought only  in
 one central court where government offices are located. The availability of a central
 court also promotes consistency in interpretation of the law and regulations of the
 agency's program because the court becomes familiar with the law and the agency's
 mission. Finally, the local forum may be unfavorable to the agency in a particular case.
The obverse of a forum  sympathetic to the agency's mission  and familiar with its
 program is the forum located where the violator resides or has its principal place  of
business, which may be both unfamiliar with the program and hostile to the agency for
 taking action against a local business—action which it perceives as threatening to the
economy of the region.

                                       -83 -

 is only in a few states that the agency can opt for filing in either a central state court OP
 the local county court.  In several states the violator can directly influence the choice of
 forum in which agency proceedings will take place and use that very process to delay the
 proceedings as well. -^-'
       Finally,  in many states authorized by EPA, the state cannot seek and secure
 injunctive relief for a violation of a state order, a statutory program, regulation, or
 permit requirement without first proving that "irreparable injury" will result if the relief
 is not granted and that the "equities" of the  state's case outweigh the equities (including,
 ejgy financial concerns) of the defendant. 1§2/ The significance of this unreasonable
 impediment to the effective judicial enforcement of RCRA requirements and agency
 orders is in sharp contrast to federal RCRA  law 153-/ and those states such as
 Pennsylvania (which makes mere violation of an agency order a judicial contempt). !2!/
 The choice of  forum can have an impact on this standard, ill/ In several states local
 courts claim discretion to require the state to prove these additional elements—thus
 hampering enforcement.
      It is apparent that those state agencies that are attempting to enforce within a
 weak institutional structure are burdened significantly. These institutional problems are
 compounded by substantive and procedural impediments to effective judicial
 enforcement.  Where the legislature has not  proscribed judicial discretion, the inability
 to select and retain the most favorable forum can significantly frustrate and therefore
 "chill" effective, aggressive enforcement.
      EPA has  not addressed  state institutional deficiencies in its authorization and
 oversight role.
 191/  See p. 57, supra (Section II).
_192/  See pp. 50-52, supra (Section II) and Table 16.  Other states provide that an order
provides only presumptive or prima facie grounds for an injunction against a violator of
the order.  E.g.. Rhode Island Report, at p.3; South Carolina Report, at p.2.
Jj)3/  See e.g..  EOF v. Lamphier. 714 F. 2d 331 (4th Cir. 1983).
 194/  35 P.S. §6018.603.  Many states—either by statute or common law—require the
issuance of an injunction even when the agency proves only a violation of the statute,
regulation, permit condition, or order. See Table 16.
 195/  See pp. 51-57, supra (Section II).


          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
 and legal relationships.	  Other programs have sought to develop trained hazardous
 waste investigative staff in the state attorney general's office in addition to or in lieu of
 the program office. -I^8-/
      The absence of a strong investigative staff as part of the authorized program
 means that  the most serious, willful, and flagrant hazardous waste violations will not
 even be detected.  This in turn  means that the administrative and civil, as well as
 criminal aspects of the state enforcement program are trivialized.  The enforcement
 efforts will not be devoted to addressing the most serious civil or criminal violations.
 Only the most apparent, easily  detectable and provable, violations will be found. -122/
      Moreover, where state laws contain burdensome scienter (state of mind) and other
 more stringent proof requirements for criminal enforcement, the lack of an  investigative
 staff is even more of a hindrance to enforcement. M£/ it is even less likely that these
 states will ever use those criminal provisions because of the difficulty of obtaining
196/ See e.g., Table 16.
1977 See e.g., Pennsylvania Report, at p. 3; Ohio Report, at pp.  1,30; and New York
Report, at pp. 2-3.
1987 See e.g., Pennsylvania Report, at p. 3; Ohio Report, at p. 22; New York Report, at
p. 3. One very de-centralized state has focused the investigative presence in regional
program offices and county prosecutor's offices.  (See California Report).
1997 At least one state program even requires, in its statute, that the  state RCRA
enforcement agency provide facilities advance notice of inspections. This practice at
best may encourage some compliance efforts prior to inspection.  In fact, it is certain to
minimize if not eliminate the general deterrent effect of the state enforcement program
and virtually assure that the worst offenders and offenses are never even detected.  See
pp. 43-44, supra (Section II).
2007 See Table 20.

                                       -85 -

evidence that will satisfy all of the difficult requirements for conviction. This is not an
insignificant flaw. Rather, it is fundamental to the perceived enforcement leverage
these states can bring to bear on a violator.
                                       -86 -

     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.

           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
          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

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,
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
     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.


 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.


 never be recovered because of the insolvency or bankruptcy of the entity.
      Denials, suspensions, and revocations may be easier to litigate.  For example, the
 agency can, in some cases, shift the burden of proof and burden of going forward in the
 litigation to the permittee or permit applicant  and create a very heavy burden for the
 violator. Also, in several states, licenses (and sometimes permits) must be renewed or
 amended frequently thereby  allowing the agency to simply deny a renewal or amendment
 application, rather than to revoke a license or permit. The violator must bear the burden
 of showing its entitlement to the license or permit. -25Z/
      Customers (e.g., generators and transporters) of a temporarily or permanently
 ceased operation are usually  reluctant to conduct future business with that entity
 because  of the risk to their own business. On the other  hand, civil penalty assessments
 rarely cause such significant incidental, as well as direct, detrimental economic effect
 on the sanctioned violator. Permit  and license  suspensions and revocations are also the
 most efficient (i.e., most  timely and less costly) means of sanctioning a recalcitrant
 operator, i.e., a repeat violator.  One major permit suspension or revocation is usually
 more effective and more efficient than numerous separate orders and civil penalty
 actions instituted over several months or several
      The suspensions and revocations do not rely on an assumption that the agency must
order someone to comply with the law, i.e.,  to do what they are already required by law
to do. Instead, depending on state procedures, suspensions and revocations provide an
immediate sanction (e.g., closure/cessation of operation) for failure to maintain a
facility in constant compliance with the law. Unlike orders, therefore, they can deter
and not just correct violations. The suspensions and revocations can leverage
settlements, which allow the agency to compel relief on its own terms.  An agency that
wishes to avoid prolonged  litigation before a board, commission, ALJ or judge — in
207/ See Table 3 and p. 15, supra (Section II).  This can occur either as a function of the
administrative procedures in the state, which may place the burden of showing
entitlement to a permit on the applicant or alternatively, by specific statutory language
shifting the burden of proof to the violator or permittee. An example of the latter is
state statutory provisions that place on the facility operator or owner the burden of
proving that the treatment, storage and disposal facility did not cause groundwater
degradation once the agency merely proves that nearby groundvvater is contaminated,
even if the agency offers no evidence of causation. (See, e.g., Sec. 611, Pennsylvania
Solid Waste Management Act, 35 P.S. §6018.611; Louisiana Solid  Waste Management and
Resource Recovery Law, Rev. Stat. §30:1147.1(13); see also Fla. Stat. §403.727.)
208/ See e.g., Maryland Report, at pp. 24-30.

                                       -91 -

 which it must bear the burden of proving that certain proposed relief is the most

 effective—can instead easily compel a speedy settlement embodying such relief by

 threatening or implementing a suspension or revocation. The permittee—deprived of the
 right to operate and "profit"—will often propose to fully cooperate in crafting a
 settlement that is acceptable to the agency. ^J

      In a number of states, permit holders are required by law to comply with all
 applicable regulations, even when those regulations are new and not yet incorporated
 either by reference, or explicitly, in the permit.  Therefore, these states may elect to
 suspend or revoke a permit for repeated violations of either the permit or the

 regulations, in lieu  of filing numerous actions  to seek compliance or penalties.  It is
 apparent that the state's power to use this tool operates as a significant deterrent,
 particularly if it is  used selectively against recalcitrant operators.

      The careful handling by the agency of the permit issuance is also crucial to
 maximize the power and efficiency of the permit as enforcement tool For example, the
 agency can secure necessary enforceable permit terms and conditions by refusing to issue
 a permit until the applicant accepts, agrees to, and waives the right to contest all permit
 conditions. 112/

      Even where the agency may also elect to subsequently issue a remedial order to
 require submission of a closure plan and to effect closure on the agency's terms, or order
 abatement of the violation, permit revocation or suspension is important as an initial
 enforcement action. Such action can prevent  acceptance of additional waste at a
209/ See e.g., Pennsylvania Report, at pp. 9-11; and Maryland Report, at pp. 24-30.  See
also Ohio Report, at pp. 27-29; Michigan Report, at pp. 7-9 and 15-16; and Connecticut
Report, at p. 18.

210/ Both Michigan and Pennsylvania have recognized and employed this strategy to
assure that no permit is issued without strong, enforceable terms and conditions; to avoid
having to devote limited technical and legal resources to the defense of permit
conditions while the applicant enjoys all the benefits and privileges of the permit; and to
assure that the agency, which is charged with determining whether and how the facility
should be operated—not an untrained third-party such as an ALJ or judge—has sole and
final determination over the terms that condition the right or privilege to operate (i.e.,
the very essence of the permit). Again, these agencies have marshalled and controlled
their limited technical and legal resources to assure that if litigation over the permit is
to occur, it will occur on the applicant's time (e.g., while the permit is withheld or denied
and no operation of the TSD is allowed), not on the public's time. Usually, a settlement
is leveraged without litigation for that very  reason: the applicant wants its permit and
does not wish to await the disposition of lengthy administrative and judicial hearings and
                                       -92 -

 violating facility, such as a facility that is or may be releasing substances into the
 environment. In addition, permit action can determine and control the appropriate
 remedy or relief.  For example, cessation of operations (permit revocation) often should
 be required before the appropriate remedy (e.g., closure or other remediation) is
 determined by the agency.  This approach will secure the leverage necessary to a prompt
 settlement, with the agency in ultimate control of the remedy.  A suspension  or
 revocation can also indirectly assure that transporters and generators immediately cease
 doing business with the violator.  The agency can, for example, issue  notices to
 transporters and generators identified in the permit informing them of the illegal, i.e.,
 suspended, status of the  operation. Finally, a permit revocation or suspension, if
 immediately effective, can also allow  the state to forfeit and immediately (without
 litigation delays) recover the financial security posted as a condition  of the permit or
      Some state agencies - are authorized or required to deny a permit to any person
      o   is in violation  of any environmental law of the state or of any other state; or
      o   has a history of violation of the environmental laws of that state or of any
          other state.
      This permit "block" has been and remains an extremely powerful enforcement
 tooL  For example, in one state if an entity is violating any state RCRA or other
 environmental law (e.g.,  groundwater,  air, etc.) at anv_TSD or other facility, the agency
 is required or authorized to prohibit the  modification of that facility  or any other
 commonly owned or operated facility.  The operation of the permit bar can  even prohibit
 the receipt of any new "waste stream" (i.e., any waste from a new customer even if the
 waste has the same characteristics and classification as currently permitted wastes) at
 either the violating TSD  facility or at any other facility in the state,  even if that other
 facility is in compliance. It can also prohibit construction or operation of a new facility
 or prohibit the continued operation of any existing facility that requires a new
     In practical effect, the violator is immediately penalized— by a significant
economic sanction— upon detection by the agency of any violation at any facility in the
211/ See pp. 18-21, supra (Section II) and Table 3.
212/ See pp. 18-21, supra (Section II) and Pennsylvania Report, at pp. 20-22 and 25.
                                       -93 -

 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.

             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
      o   unilaterally assess civil penalties, and
      o   require the submission of reports, data, information.
      EPA has founded its enforcement policy upon the "compliance order" and the
"study" order. It has used the administrative order process to require compliance with
existing obligations of law, to require study and reporting, and to require abatement of
conditions or activities harmful to the environment.  The orders used by EPA  are,
therefore, much like traditional state public nuisance authorities—the authority to abate
conditions harmful to the public  and to require  compliance with law.  However, many
states use administrative order authorities to require immediate compliance with law by
ceasing the profit-making activity, which  is the cause of the violation or harmful
condition.  When  this type of order is used in a state  in which the order is unilateral,
immediately effective, and not stayed by administrative hearing, it is a very powerful
tool, one that cannot even be fairly compared to the  EPA "compliance" order.
      For example, in one state:  the order is effective immediately, without prior
hearing, and is not automatically stayed by a request for administrative review or
hearing; failure to comply with an order that is not stayed subjects the violator to
judicial contempt; and the only issue before the court in the contempt action is whether
the agency order  was violated.
216/ See Pennsylvania Report, at pp. 12-14.

                                       -95 -

       Because this order is immediately effective, it cannot (in practice) be issued
 without attorney review and approval unless and until the agency and counsel are ready
 to litigate the case.  This  is because the recipient of the order has the right to an
 administrative hearing within 5 days of receipt of the order, at which time it has a right
 to attempt to prove that it is entitled to a supersedes or  stay of that order. Although it
 is difficult  to secure a stay or supersedeas —/ the agency must, before it issues the
 order> be prepared to try the case in a formal administrative proceeding, where formal
 and full discovery, motion practice, and other  typical civil pre-trial procedures are

      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
     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
     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.

      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
                (1)    The "Problem-Oriented" Approach
      Many state agencies tend to  first identify or respond to a health or environmental
problem  that is discovered pursuant to an inspection or investigation or in response to a
citizen complaint. The state may only then turn to its hazardous waste, groundwater,
air, or other environmental,  public nuisance, or criminal statutes to identify the
authorities and remedies to address or sanction the problem.  The problem-oriented state
approach is, in many cases, a function of the fact that many agencies had developed and
enforced many environmental statutes and developed and used strong enforcement
authorities (including those comprehensively regulating groundwater) well before RCRA
compelled such regulation.  Therefore, the state agencies may, in any order or other
litigation, seek to enforce not only the "RCRA violations," but also identify and address
the entire multi-media, often complex, problem and even criminal conduct associated
with a site or individual.  State agencies may also rely upon public nuisance authorities
(either in equity or by administrative order), which permit or direct them to address and
remedy even  those environmental or health problems that do not constitute violations of
any state or federal statute or regulation, -2M' as weu as to secure remedies that are
more stringent than those provided by state or federal law or regulation.  In general, this
220/ See p. 52, supra (Section II).

                                       -97 -

 approach is somewhat different from that of EPA.  For example, an EPA investigator (or
 other compliance official) is more likely to determine—by review of a monitoring report
 or an inspection report—violations of RCRA regulations, and then use RCRA as the
 authority for addressing the problem. The EPA staffer focuses instead on identifying and
 addressing the "violation" of RCRA, rather than the environmental or health "problem."

                 (2)   The Prohibition Against Releases to Groundwater
      A number of state agencies employ water pollution control laws, which prohibit
 pollutional and unpermitted discharges or releases to groundwater, as primary
 enforcement tools. 121' AS interpreted and enforced by these states, state law prohibits
 that which is actually tolerated by RCRA.  That is, under RCRA, a release from a TSD
 facility or generator to the groundwater merely authorizes EPA to issue an order
 requiring the cessation of the release and the abatement of the pollution.  The order
 generally must afford the owner/operator time to "assess and abate" or otherwise
 comply,  and may be stayed during the pendency of EPA administrative hearing review.
 In contrast, the state statutes establish an immediate violation—the very release
 constitutes a violation of the law. This means that the state agency has immediate
 leverage—it can institute civil penalty or criminal action or permit revocation or
 suspension.  It may issue an order ceasing the operation causing or allowing the release,
 and/or other operations as well, and even (in some states) withhold all future permits and
 permit modifications. It can take such action immediately and without having to assume
 the burden of proving that any particular relief is desirable or appropriate or necessary
 or that such action is required in order to avert immediate and substantial
 endangerment.  Of course, if it  chooses, the state can also issue an order requiring
 assessment and abatement or compliance, or seek an injunction requiring such relief.
 However, unlike EPA, the state need not prove in such cases that the release creates an
 imminent and substantial endangerment, nor (alternatively) that the release emanates
 from a TSD facility that operated after a given date. The state can issue such orders for
 any release from  any site or facility, closed or operating, without assuming the burden or
 proving that the release creates an imminent and substantial endangerment.
     It is significant that certain state agencies  are not only authorized to issue an order
requiring abatement of a release without having to satisfy the evidentiary burdens to
22II See e.g., Connecticut Report, at pp. 7-8; New Jersey Report, at pp. 32-38;
Pennsylvania Report, at pp. 11, 28; Louisiana R"eport, at pp. 4-5, 24, et seq. Texas
Report, at pp. 8, 22-24; Florida Report, at pp.  14-15; and Washington Report, at pp. 24-

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

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
                                       - 100-

necessary to strengthen and focus a civil case and effectively compels the state to
prematurely and artificially determine whether a case is "civil" or "criminal." •£=!'
     Because EPA policies assume that the states should institute routine action (orders
and civil penalties) against virtually all violations and violators within a given class,
rather than that they should target a set of violations or violators for severe punitive
enforcement action, the agency effectively discourages the use of (perhaps lengthy and
complex) investigations to target corporate officials; to detect "hidden" violations; or to
characterize and prove other violations as "deliberate." EPA policies thereby make it
more likely that only the obvious violations will be detected  and that the  individuals
responsible will be protected. Further, the EPA policies seek to assure only that most
violators will receive a civil penalty, which is usually deemed by the  company to be no
more than  the "cost  of doing business," but not that some violators will be severely and
even permanently punished by immediate tough personal sanctions and/or imprisonment.
Because of the routinization of enforcement response, investigation is deemphasized.
Thus, EPA  policies effectively encourage the violator to "wait" until the violation is
detected.  Only then has the violator any incentive to comply.
2237  The problem is illustrated most dramatically in Ohio. In contrast to Pennsylvania,
Maryland, and New Jersey, which have institutionally separate "criminal" and "civil"
litigation units, all cases that are not settled at an early stage by the Ohio EPA are
referred to the attorney general's office, which investigates the case in conjunction with
the agency's investigators. This practice assists in determining whether a case is to be
filed "civilly" or "criminally," and maximizes the use of investigative resources to
strengthen administrative and civil, as well as criminal, cases.

                                        - 101-




          1.  The "Mix" of Authorities; The Importance of Leverage in the Enforcement

     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
enforcement and/or judicial civil penalty action; -^-' the threat of a state superfund
treble damages action; -=-2/ or the suits under the state water quality law.

          2.  The Inevitable Failure of a "Case-by-Case" Oversight Policy

     By focusing on how states address  individual cases and by failing instead to examine

the panoply of enforcement authorities available to a state agency to compel or leverage

compliance settlement  in all types of cases, as well as how those authorities are used and

have been used by the state and how they are publicized to regulated industry, EPA has

ignored that which may be the most significant aspect of the enforcement program—

i.e., the existence of a credible,  deterrent enforcement presence. Oversight should not
be driven solely by the examination of the program on a case-by-case basis, but by an
2247 See e.g., Ohio Report, at pp. 29-33.  Even the initiation of investigations or grand
jury proceedings (not only the formal filing of an indictment or the initiation of criminal
actions) are dreaded and deterrent agency actions.

2257 See e.g., Pennsylvania Report, at pp. 20-27; Maryland Report, at pp. 24-30.

2267 See e.g., Ohio Report, at pp. 27-29; Pennsylvania Report, at pp. 9-11 and 20-27; and
Michigan Report, at p. 16.  See also New Jersey Report, at pp. 22-24.

2277 See e.g., Texas Report, at 16-17; Ohio Report, at pp. 21-24; Connecticut Report, at
p. 17; and Florida Report, at pp. 13-14, and 16.

2287 See e.g., Illinois Report, at p. 21; New Jersey Report, at pp. 8-9. New Jersey's
property transferability bar (ECRA) can also be used as leverage to obtain cleanups at
RCRA and non-RCRA sites, supra, at pp. 64-65.

                                     - 102-

 examination of the strengths and weaknesses of the program as an entity.  The question
 should jiot be whether the state agency has filed a particular prescribed enforcement
 action within the scheduled timeframe, but whether the agency is capable of swiftly and
 effectively leveraging compliance and stringent settlement orders or decrees (which
 include substantial sanctions) =-2J as a natural response to the overall enforcement
 presence established by the state. -£H/
      Many states secure  sanctions that may be as (or more) important or punitive than
 civil penalties. Some states clearly articulate and implement policies that emphasize
 criminal punishment at the expense  of civil penalty recovery. 221/  for example, the
 state may forego a civil penalty action where the state intends to preserve the right to
 successfully pursue criminal action for  fines against the defendant and wishes to avoid an
 equitable defense based on the separate civil penalty action or settlement.
      Many states waive civil penalties where the state obtains relief more stringent than
 that required by federal—and even  state—law. A state may,  for example, require
 financial security for a facility or settlement that is greater than that authorized by law;
 require that more stringent performance or operating standards be included in a
 settlement; or require that facilities or sites that are not covered by the state statute be
 included in the settlement, or, the state may simply wish to avoid litigating a "weak"
 case where—because of the facts and equities unique to the particular case, or  the
 expected biases or propensities of the judge or forum—the penalty available to  the state
 in the given case is likely  to be so small as to "trivialize" the seriousness of the violation
 or the litigation of a compliance order or injunctive action is likely to result in a
229/  Or more stringent settlement relief than the law otherwise allows.
23Q/  Some states even use such vehicles as permit applications and petitions for "de-
listing" of hazardous wastes as a means of securing enforceable conditions (in the case of
permits) or enforceable administrative orders (in response to de-listing petitions), which
make any violation of any condition or term of any de-listing automatically a violation of
law, subjecting the violator to numerous penalties  and remedies in addition to the voiding
or withdrawal of the de-listing.  The importance of the use of leverage in achieving new,
enforceable documents is described in footnote 210 supra.
231/  For example, Maryland has publicly  identified its criminal enforcement effort as its
"primary" mechanism for the imposition of sanctions (jail terms and fines). Prior to
calendar year 1986, Maryland collected substantially more in criminal fines each year
than it did in civil penalties.  Maryland Report,  at  p. 24.

                                       - 103 -

 weakening of the substantive law 122/ or the law regarding the assessment of penalties.
 The state may also understandably (temporarily or permanently) refrain from seeking
 penalties where necessarily limited agency and legal resources are diverted to other
 more important cases (such as permit denials or other action requiring immediate legal
 defense or affirmative remedial action) and the penalty expected to be recovered in the
 particular case is (by any measure) not worth the government expenditures necessary to
 pursue the civil  penalty litigation. ^M/
      Penalties may be legitimately waived by the state where compliance and
 abatement can be secured in a settlement against a bankrupt entity or entity against
 whom bankruptcy proceedings are pending; where the state is seeking or has already
 assessed or recovered civil penalties against another individual or corporate defendant
 for the same violations; or where the violator is likely to regard the penalty as no more
 than the "cost of doing business" and is not deterred by the publicity generated by the
     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.


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
2357 See e.g.t Pennsylvania Report, at pp. 20-25.
2367 In the absence of "investigations" to complement the violations detected in a
traditional agency "inspection," the civil penalty actions are often instituted only for the
non-hidden—and even, perhaps, least serious—violations. Again, the uniformity of the
case-by-case EPA oversight policies necessarily skews enforcement toward the simple,
less important violations, and discourages both  the intensive investigation and the really
serious sanctions (e.g.. shut-downs and criminal actions) necessary to create an
aggressive, deterrent overall enforcement program.

                                       - 105 -


      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

     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

         (a)     The existing regulatory enforcement authority weaknesses in EPA
               enforcement practices that can be remedied by changes in EPA
               strategy, policy, or regulations.

        (b)     The existing weaknesses  in RCRA enforcement authorities that can be
               remedied by congressional amendment as part of the RCRA
               reauthorization process.

    This federal analysis should draw substantially upon the  enforcement information

    gathered from  the state enforcement authority study.
                                    - 106 -


                                    TABLE 1


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)


 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

Table 1 (continued)

State                                  Yes                         No

West Virginia                                                       X

Wisconsin                               X
Wyoming                                                           X
Total                                   28                         23



                                     TABLE 2



  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
 o   violation of permit, rules, regulations, statute

District of Columbia
     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
     failure to comply with order
     related criminal convictions
     regulations authorize revocation  for any violation of
 o   failure to operate in "substantial compliance"
 o   misrepresentations
 o   failure to pay required fees
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
 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.

Table 2 (continued)

o  violation of statute, permit, regulations, order
o  false statement
o  refusal of lawful inspection
o  failure to submit reports
o  imminent hazard
o  violation of statute, permit
o  misrepresentation
o  threat to health or environment
o  violation
o  misrepresentation
o  change in physical conditions
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

o  violation of statute, regulations, permit
6  violation of permit
o  permit related activity inconsistent with statute or
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
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
o  violation in operation or construction of facility
o  hazard to public health or environment
o  failure to pay fees
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
o  violation of permit
o  misrepresentation
o  failure to comply with order

Table 2 (continued)

   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
change in condition
violation of law
where discharge poses threat to health or welfare
failure to observe applicable standard or limit
o  violation of laws or regulations re hazardous substances
o  false or inaccurate application
o  other "good cause"
o  violation of permit, law, regulations
o  incompetence of permittee to perform
o  violation of permit, law, regulations
o  misrepresentation or failure to disclose
o  imminent hazard or danger to health or environment
o  when necessary "to prevent or abate pollution"
o  "unresolved" noncompliance
o  false information in application
o  failure to pay fees or civil penalties

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
o  failure to comply with permit, rules, order, law
o  failure to comply with law, rules, regulations

o  violation of permit or regulations
New Hampshire
o  failure to comply with permit

Table 2 (continued)
New Jersey
New Mexico
New York
North Carolina
North Dakota



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

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


   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

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

Table 2 (continued)

Rhode Island
South Carolina
South Dakota

o  failure to comply with statute, regulations, order or
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,
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
o  failure to comply with operating plan
noncompliance with statute, regulations, certificate
failure to disclose facts
determination of "serious threat" to health or the environ-
ment that can only be regulated to  acceptable levels by
   "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

Table 2 (continued)

West Virginia
o  violation of permit or order
o  misrepresentation/nondisclosure
o  threat to health or environment controllable only by
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"
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")
Not set out in statute


                                      TABLE 3


"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

                        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 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.

Table 3 (continued)
                             "BAD ACTOR" PROVISIONS

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 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.

Table 3 (continued)
                       "BAD ACTOR" PROVISIONS (continued)
New Hampshire
New Jersey

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
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
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

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
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.


                                   TABLE 4

                         CROSS-MEDIA ENFORCEMENT
   Does the same state
agency enforce both laws?
Are administrative hearings on
enforcement actions decided by
      the same forum?
Yes (except permi




District of Columbia

           decisions under
           water laws)



           Yes (except water
           law admin.





















Table 4 (continued)

                                                  Are administrative hearings on
                          Does the same state       enforcement actions decided by
State                  agency enforce both laws?    	the same forum?
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


Table 4 (continued)
   Does the same state
agency enforce both laws?
Are administrative hearings on
enforcement actions decided by
       the same forum?


West Virginia













                                    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
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
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.



                                     TABLE 6

Colorado —
Indiana —'
Maryland —
New Hampshire —
New Jersey

                         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.

Table 6 (continued)
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

—'  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.


                                       TABLE 7

         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).
Delaware 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


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
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".]
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.

Table 7 (continued)

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.)
                   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.
         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).

Table 7 (continued)



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).

         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
         Before the agency may issue an order, it must
         first attempt to resolve the violation by use of
         "conference, conciliation and persuasion."
New Hampshire
New Jersey
New Mexico
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.

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

Table 7 (continued)


West Virginia,



[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
Before the agency may issue an order, it must
first attempt to resolve the violation by
"conference, conciliation, and persuasion."




                                   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


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


Table 8 (continued)
                               Agency                     Board or
                               Director                   Commission
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.



                                   TABLE 9

                             (Fifteen State Study)	

                             AC= Appellate Level Court
                             TC= Trial Level Court
State                    Central Court             Local Court
Connecticut TC
Louisiana AC
Missouri TC
New Jersey
New York
Ohio* [Aq
Pennsylvania AC
Texas TC




V Review of permit denials in Ohio is centralized; review of enforcement actions is
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





                                 TABLE 10


                       AG  -  Attorney General
                       AD  -  Administrative Agency Counsel
                       AGO -  Attorney General Attorneys Dedicated Exclusively
                               to Act as Agency Counsel
                       DA  -  District Attorney/States Attorney











District of Columbia








Table 10 (continued)
New Hampshire
New Jersey
New Mexico

New York

North Carolina

North Dakota




Rhode Island

South Carolina

South Dakota













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




                                 TABLE 11

State                        Yes                    No

Alabama                                             X
Alaska                        X
Arizona                       X
Arkansas                      X
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

Table 11 (continued)

State                         Yes                      No

Minnesota                      X

Mississippi                      X
Missouri                        X

Montana                        X

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.





                      TABLE 12

       	(Fifteen State Study)
                Same Attorneys Handle
          Administrative and Civil Enforcement







                 New Jersey



              Different Attorneys Handle
          Administrative and Civil Enforcement


                New York






                                    TABLE 13

  Civil Penalties
Civil Penalties
$25,000/day ($250,000   $25,000/day (no "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)
                                                   $25,000-$20,000-$15,000-$ 10,000-
                                                   $5,000/day (Porter-Cologne

Colorado                    None                  $25,000/day

Connecticut                 $25,000/day         '   $25,000/day

Delaware                    "reasonable penalty"    $25,000/day
                            (viol, of law, permit,
                            $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)


Civil Penalties

   Civil Penalties







$25,000/day (plus an
additional $500/hour for violat-
ing any emergency order)

$50,000/day (order
$50,000/day (order violation)
Maine                        None                    $25,000/day

Maryland                     $l,000/day ($50,000      $10,000/day

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
New Hampshire

Table 13 (continued)
New Jersey
New Mexico
New York
North Carolina
North Dakota
Rhode Island
South Carolina
South Dakota
West Virginia
Civil Penalties
$25,000 per violation
(plus $2,500/day after
receipt of order)
$50,000/day (subs.
$10,000/day (but only
for viol of order)
Civil Penalties
$50,000/day (violation of
order or failure to pay)
$50,000/day (subs, violation)
None (de noyo review of admin.




        TABLE 14
    (Fifteen State Study)
New Jersey
New York




       11                      14




                                   TABLE 15
                               CIVIL PENALTIES
                      	(Fifteen State Study)
   Penalty Assessed By
    Agency Subject to
Request for Administrative
    Penalty Must Be
  Affirmatively Sought
  By Agency in Hearing
    Before Board or
Administrative Law Judge
New Jersey
New York




            TABLE 16

       (Fifteen State Study)

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.




                                    TABLE 17

                               (Fifteen State Study)
                        Decision made by board       Decision made informally
                          after formal public            by agency director
State                   presentation and vote          	or board
New Jersey
New York
x*> x
x • .
jV California Regional Water Quality Control Board orders including enforcement
"referrals to the Attorney General are subject to administrative review.




                             TABLE 18
        	 (Fifteen State Study)
States In Which The Agency Has The Option To Bring Suit In A Central Court








                                    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.





o transport to
o TSD without
o contaminate
 without permit
o false statement
o tamper with or
 fail to maintain
o violation
                                                        TABLE 20

                                               HAZARDOUS WASTE CRIMES

                                             (Scienter, Offenses, and Penalties)

                                                                                                       No Scienter
                    $50,000 day and/or
                    1-10 years

                    $100,000 day and/
                    or 2-20 years
                    (subs, convictions)
                                        o transport to
                                        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-
$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 -
o false statement
o tamper with
$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
$150,000 and/or
5 years
($1 million -

o violation
o unlawful
public nuisance
$10,000 day and/
or 1 year (5 years
if defendant
leaves state)

Table 20 (continued)

o interference
 with enforcement
                     $1,000 day and/or
                     6  months

                     $25,000 day and/or
                     2  yearstsubs.off.)
o transport to
 unpermitted site
oTSD without
                     $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
                     o false statements
                     o destroy, alter
                     o generator,transp.
                     o failure to submit
                       info, re: danger
                     o failure to file
                       annual disposal
                                          $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

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
                                          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
                                                                                                           $750 and/or
                                                                                                           5 months
                    o failure to
                    o destroying
                      or concealing
                                          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
                     o violation of
                      material permit
                                          $50,000 day and/or
                                          2 years

                                          o imminent endanger-
                                            ment with criminal
                                          $250,000 and/or
                                          5 years($l million-

Table 20 (continued)
                    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
$25,000 day and/or
1 year

$30,000 day and/or
2 yearsfsubs.off.)
$25,000 day
No Scienter

o violation

S500 day
District of
o violation

$25,000 day and/or
1 year
                                          o transp. to unper-
                                           mitted site
                                          o transp. without
                                          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-
                                          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.)
                                          o violation
                                          o false statements
                                          $10,000 and/or
                                          1 year

 Table 20 (continued)
                                           o transp. to unper-     o disposal with
                                             mitted site
                                           o TSD without
                                             permit or in
                                           o concealment of
                        gross deviation
                        from standard
                        of care

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-
                                           o delivery without
                                            lawful justifi-
                                           $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
                    o violation

                    day and/or 2 years

                    day and/or 2 years

                    plus 2 years (aggra-
                    vating circumstances)
                                          o violation
                                                                o violation
                                                                                     o violation
                                                                 o obstruction,
                                                                  delay, resistance
                                                                  to inspection
                    o transp. or TSD
                      in violation
                    $50,000 day and/or
                    2 years, and for-

                    plus 2 years (agg.
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.
o false statement
o tampering with

$10,000 day and/or
6 months

Table 20 (continued)
                                         o transp. to unper-
                                          mitted site
                                         oTSD without permit
                                          or in material
                                         o false statement
                                         o destroy or conceal
No Scienter
$25,000 day and/or
1 year
$50,000 day and/or
1 years (subs. off.)
Kansas o place waste with
oTSD without
permit or in
o violate permit
o violate rules,
o fail to manifest
o transport to
unpermitted site
o blend hw with
residential fuel
$15,000 and/or
3-20 years
o transport and
dispose in
$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
$250,000 day
and/or 15 years

o place waste with
. . unpermitted
o TSD without
permit or in
o violate permit
o violate rules,
orders .
o fail to manifest
o transport to
unpermitted site
o blend hw with
residential fuel
$2,500 and/or
1 year
o transport and
dispose in
$10,000 and/or
1-5 years


Table 20 (continued)
                                          o transports with-
                                           out permit
                                          o transports to
                                          o handles without
                                          o handles at lo-
                                           cation where
                                           location lacks
                                          $50,000 day and/or
                                          5 years

                                          o violation
                                          o TSD without permit
                                          o giving hw to person
                                           not licensed or
                                           who will violate

                      o transports to
                       facility (consci-
                       ous disregard)
                      o handles at lo-
                       cation where
                       location lacks
                       permit (conscious

                      $50,000 day and/or
                      5 years
                                          $ 1,000 ($5,000-corp.)
                                          and/or 1 year plus
                                          twice pecuniary
                                          gain from crime

o violation

o tampering with
$10,000 or
6 months
o false statement
o tampering with
                                          $10,000 and/or
                                          6 months
o transport to
oTSD without
o false info.
o authorizing
 or directing
 above offenses
                                                                                                          $100,000 day
                                                                                                          and/or 5 years

                                                                                                          o generator
                                                                                                          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.)
                                          o violation
                                          o handling in
                                           manner which
                                           could endanger,
                                           or.in violation
                                           of handling
                                          o handling without
                                          o handling without
                                          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

Table 20 (continued)
o violation which
 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-

o violation
o false statement
                                                                                                         $25,000 day
                                                                                                         and/or 1  year

                                                                                                         $30,000 day
                                                                                                         and/or 2  years
Minnesota o violation not o disposing or
otherwise arranging
enumerated disposal in
$100 and/or location or in
90 days violation of
material permit
$50,000 and/ or
5 years
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
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
$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

o violation

$25,000 day
and/or 1 year

Table 20 (continued)
                                          o transport to
                                          o permits or causes
                                           any hw transpor-
                                           tation practice
                                           in violation of
                                          o TSD without
                                           authorization or
                                           in violation of
                                           material require-
                                          o false  material
                                          o tampering with
                                          o destroys, alters
                                          o operates disposal
                                           facility in a
                                           manner permitting
                                          $2,500-$25,000 day
                                          and/or  1 year

                                          $5,000-550,000 day
                                          and/or  10 + years
                                          o transport to
                                           unpermitted site
                                          $10,000 day and/or
                                          6 months

                                          $20,000 day and/or
                                          1 year (subs.off.)
                                                                o TSD without
                                                                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
                    o illegal  transp.
                    oTSD without
                     permit  or in
                    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

510,000 day
and/or I year
o illegal transp.
o TSD without
 permit or in
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

$50,000 day
and/or 7 years
                     o failure to
                       report violation
                       involving TSD

                     $1,000 and/or
                     1 year (felony
                     if corp.)

Table 20 (continued)
New Jersey
o transport to
 unauthorized site
o generates hw and
 causes or autho-
 rizes transp. to
 unauthorized site
oTSD without
o false statement

o transport to
 unauthorized site
o generates hw and
 causes or autho-
 rizes transp. to
 unauthorized site
o TSD without
o false statement
                                          $25,000 day and/or
                                          3-5 years

                                          $50,000 day and/or
                                          3-5 years

                                          and restitution
                                          for damages
                     $7,500 and/or
                     18 months
                     and restitution
                     for damages

                     o generates hw and
                      causes transp.,
                      transports, or
                      , receives hw,
                      without a  .
                                                                                                          $7,500 and/or
                                                                                                          18 months
New Mexico
                    o violation of
                      imminent hazard
                    $5,000 day
o transport to
 unpermitted site
oTSD without
 permit or in
 violation of
 material req.
o transports or
 causes to be
 without manifest
o false statement
o unlawfully
o violation of
 storage tank
                                          $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-
                                           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

Table 20 (continued)
New York (cont.)
                                         o unlawful
                                          possession of
                                          1500 gallons hw

                                         $150,000 and/or
                                         7 years

                     a unlawful
                      possession of
                      2SOO gallons hw
                                          No Scienter
                     $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.
                                         $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
                     $25,000 and/or
                     1 year
                                                              $100,000 and/or
                                                              4 years
                                         o release of hw
                                          with injury
                                         o release of acute
                                         o release of more
                                          than 1500 gals.hw
                                         o release of more
                                          than 100 gals.
                                          hw where enters
                                         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
o release of acute
 hw with actual
                    $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

Table 20 (continued)
North Carolina
North Dakota
Rhode Island
South Carolina
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.)
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
$25,000 day
$50,000 day and/or
2-20 years
o violation of
order, rule or
o unlawful disposal
oTSD without
o transport without
o failure to
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
o violation
(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
o tampering with
$10,000 day
and/or 5 years


Table 20 (continued)
South Dakota
                                          o transport to
                                           unpermitted site
                                          o TSD without
                                           permit or in
                                          $10,000 and/or
                                          10 years
                                          o violation

                                          $50,000 day
                                          and/or 2 years
                                                                                     No Scienter

                                                                                     o false statement
                                                                                     $10,000 and/or
                                                                                     10 years
                                                                                     o violation

                                                                                     $10,000 day and/or
                                                                                     11 mos., 29 days
                                          o transport to
                                           unpermitted site
                                          o TSD without
                                           permit or in
                                          $50,000 day
                                          and/or 5 years

                                          $100,000 day and/or
                                          10 years (subs.off.)

                                          o false statement
                                           or omission, or
                                           destruction of
                                          o transport without
                                          $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)
                                          o transport to non-
                                           approved site
                                          o TSD without
                                           approved plan
                                          o transport without
                                          $15,000 day

                                          $25,000 day (subs.
                                                                                                          o false statement
                                                                                     $15,000 day

                                                                                     $25,000 day
                                                                                     (subs, off.)
                                                                                     o violation

                                                                                     $25,000 day
                                                                                     and/or 6 months
o violation

$1,000 and/or
1 year
o transport to
 unpermitted site
o TSD without
o false statement
                                          $10,000 day and/or
                                          1 year

Table 20 (continued)
West Virginia
                                                                                     No Scienter
o aiding and
abetting a
$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
                                          $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
                                          $250,000 and/or
                                          1-4 years
                     o transport to
                      facility known
                      to lack permit
                     oTSD without
                      permit or in
                      violation of
                     o false statement
                     o destroys, alters,
                      conceals record
                     $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 false statement
o tampering with

$10,000 and/or
1 year




                  TABLE 21

             (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.