NATIONAL PENALTY REPORT
OVERVIEW OF EPA FEDERAL PENALTY PRACTICES
FY 1990
April 1991
Compliance Policy and Planning Branch
Office of Enforcement
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NATIONAL PENALTY REPORT
OVERVIEW OF EPA FEDERAL PENALTY PRACTICES
FY 1990
ACKNOWLEDGEMENTS -
II. EXECUTIVE SUMMARY I
General Findings 1
Program Highlights 2
Ill. PURPOSE, SCOPE AND LIMITATIONS OF THIS REPORT 3
Programs Covered 3
Cases Covered 3
Purposes and Limitations 5
IV. GENERAL OVERVIEW
Highlights 5
Median and Average Penalties 12
Percentage of Cases Concluded with a Penalty 16
Range of Penalty Amounts 16
Highest Penalties 21
Types of Cases 22
New Penalty Authority 22
Criminal Enforcement 22
Relative Contributions 23
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ACKNOWLEDGEMENTS
This report was coordinated by the Compliance Policy and Planning Branch of the Office of
Enforcement. Susan Herrod and Robert Banks were the project managers and principal authors. The
foliowing contributed the program-specific data:
Criminal Enforcement Anne Kanamine, OE
Clean Water Act
Judicial Divid Drelich, OE
Administrative Ken Keith, OWE!’
Safe Drinking Water Act
UTC Peter Bahor, ODW
PWSS Anne Jaffe Murray. ODW
Wetlands Protection Joseph DaVia, OWP
Marine and Estuarine
Protection Rosanna Ciupek, OMEP
‘Stationary Source Air Elise Hoerath, OE
Mobile Source Air Marcia S. Ginley, OMS
RCRA
Judicial Meredith Newton, OE
Administrative Robert Small, OWPE
EPCRA § 302-312 and .Jeffre Heimennan, OWPE
CERCLA § 103
Toxics Release Inventozy, Dan Helfgott, 0CM
TSCA and HERA Mike Hackett, 0CM
These authors and their colleagues devoted many long hours to the collection, verification, analysis
and display of these data. Questions and comments concerning this report should be addressed to
Margaret Berger, (202)475-8870.
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I
I. EXECUTWE SUMMARY
General Findings
Fiscal Year 1990 brought the highest penalty dollars in EPA’s histoiy, with $61.3 million in
civil penalties. This represents a 74 percent increase over FY 1989. There was almost no
change in the number of cases from FY 1989 to FY 1990, indicating that this increase in
penalty dollars was due primarily to an increase in penalty amounts per case. Program offices
are making effective and forceful use of EPA’s penalty authorities.
• The single largest penalty in EPA’s history was also assessed inFY 1990. The Texas Eastern
Pipeline case, a multi-media case involving TSCA. and RCRA, was concluded for $15 million.
Excluding the Texas Eastern Pipeline case, civil penalty dollars were over $46 million, which
still represents a record level of penalties.
• EPA has obtained over $247 million in cash civil penalties from FY 1974 through FY 1990 in
some 10,885 civil judicial and administrative cases.
• FY 1990 marks a new.high-water mark in the use of both administrative and judicial cases by
EPA programs. Four programs concluded substantial numbers of cases in both categories and
obtained substantial penalties from both. This change,• first noted in FY 1989, reflects the
implementation of new statutory authorities granted by Congress, enabling programs to use the
two approaches as complementary parts of an integrated enforcement effort.
• In the last three years, almost 54 percent of all civil penalty dollars in EPA’s history were
obtained (FY 1988-1990). These three years brought in more than $133 million in civil
judicial penalties, representing 4,664 cases. In FY 1990 alone, 25 percent of all civil penalty
dollars were imposed.
• Criminal fines totaled $5.5 million’in FY 1990 (before deducting suspended sentences). Sixty-
two years of incarceration were imposed (before suspension). After suspension, fines totaled
$3.7 million and 19 years were ordered by the courts. Final jail terms represented a slight
increase over FY 1989 (see page 5). Total fines were lower than in FY 1989, in part due to a
focus on more complex investigations which were still underway in FY 1990.
• In the four years EPA’s criminal enforcement program has been tracking penalty data, $29.7
million in criminal fines and 223 years of incarceration have been imposed before deduction of
suspended sentences.
• Penalties were obtained in 90 percent of the cases concluded in FY 1990.
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Program Highlights
• Most programs set new records for total and median civil judicial or administrative penalty
dollars.
In descending order of total penalties assessed, these programs were the following:
TSCA, Clean Water Act, RCRA, EPCRA § 313, Wetlands Protection, FIFRA, SDWA,
• EPCRA § 302-312, Marine and Estuarine Protection, and CERCLA § 101 The
increases for these programs over last year’s totals ranged from 0.6 percent for RCRA
to a seven-fold increase for EPCRA § 313.
Medians reached record highs for both judicial and administrative cases in the Clean
Water Act and RCRA programs. Programs with record high judicial medians were
TSCA, EPCRA § 302-312, CERCLA § 103, and EPCRA § 313.
• Many programs set records for single highest penalties in EPA’s history or record high
penalties within program offices.
Both the largest and second largest penalties were obtained in TSCA judicial and
administrative actions in FY 1990. The largest penalty was $15,000,000, assessed in a
judicial action against Texas Eastern Pipeline which also included RCRA counts. The
second largest penalty, $3,750,000, was obtained through a TSCA administrative
action. Both penalties were higher than the FY 1989 highest single penalty
($2,778,000). Top judicial penalties over $1 million were also obtained by the Mobile
Source Air program, the Clean Water Act program and the RCRA program.
Eight programs established new records for highest individual penalties within their
programs in either administrative or judicial cases. These programs were Clean Water
Act, Safe Drinking Water Act (UIC), Wetlands Protection, CERCLA § 103, EPCRA §
302-3 12, EPCRA § 313, TSCA and FIFRA.
• Penalty dollars were dominated by TSCA with 41 percent of the total, which also obtained its
first judicial penalty in FY 1990. The Clean Water Act was second with 27 percent, followed
by RCRA (11 percent)’, Stationary Source Air (10 percent). and Mobile Source Air (5
percent).
• Numbers of cases were dominated by four programs. They were TSCA (22 percent), CWA
(17 percent), FIFRA (17 percent), and Mobile Source Air (15 percent). All four programs rely
heavily on administrative enforcement.
‘This figure does not include three multi-media cases with RCRA counts that were credited completely
to the following media: $142,000 to CERCLA, $1,100,000 to CWA, $15,000,000 to TSCA.
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H. PURPOSE. SCOPE AND LIMITATIONS OF THIS REPORT
This overview report summarizes the penalty practices of EPA in FY 1990 in civil judicial, civil
administrative, and criminal enforcement actions. Except where specifically noted, the term “penalties”
is used in this overview to refer only to civil (administrative and judicial) penalties, not criminal fines.
This report does not attempt to portray a complete picture on penalties obtained during enforcement of
federal environmental laws, because it does not reflect penalties obtained by state or local
governments, either directly or through court actions with EPA. States conduct the yast majority of
enforcement actions under these laws, working through programs approved by EPA to carry out
federal requirements.
Programs Covered
Thirteen EPA penalty programs are addressed in this report. Table 1 gives their names, the types of
enforcement cases each used in FY 1990, and any acronyms by which they are cited in this report.
Cases Covered
The penalties discussed in this report are cash amounts assessed in EPA enforcement cases that were
concluded in FY 1990. They include final judgments by court settlements in consent decrees and
consent orders and final administrative orders.
This report does not include proposed penalties or other amounts under discussion prior to the
conclusion of a case, and it does not include penalties paid to entities other than the Federal
GovemmenL Contempt enforcement actions (cases seeking to invoke sanctions for a failure to comply
with a prior court order, decree, or administrative order) are not included. “Stipulated penalties” and
“deferred penalties” also are not included in this report; they are penalties stipulated in an
administrative or court order that are due only if the violator fails to carry out certain other
requirements of the order. Nor does the report include the use of other sanctions, such as contractor
listing, sewer moratoriums, or the suspension or revocation of permits.
Credits, benefit projects, or non-monetary actions which parties in enforcement cases often agree to
carry out as part of a settlement are also not included in this report. Such actions may yield large
environmental benefits of substantial dollar value.
‘As in past reports, the FY 1990 Federal Penalty Report does not include penalties assessed in the
Underground Storage Tank program (UST). The reason for this exclusion was because UST is
primarily a state delegated program.
One element of this report is an analysis of the extent to which EPA used’penalties in its enforcement
cases. Some cases did not obtain penalties. The cases without penalties included in this report are
enforcement actions in which a penalty is authorized by the statutes and regulations on which the case
is based. If Congress did not authorize EPA to assess a penalty for a given’ type of violation, an
enforcement action for such a violation would not be counted as a case in this report.
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Table 1
Penalty Programs Covered in This Report
Program
Criminal Enforcement
Clean Water Act - NPDES (CWA)
Safe Drinking Water Act (SDWA)
Wetlands Protection
Marine and Estuárine Protection
Stationary Source Air
Mobile Source Air
Resource Conservation and
Recovery Act (RCRA)
Emergency Planning and
Community Right-to-Know Act
(EPCRA § 302-3 12)
Comprehensive Environmental
Response, Compensation and
Liability Act (CERCLA § 103, or
Superfund)
Toxics Release Inventory
(TRI. or EPCRA § 313)
Toxic Substances Control
Act (FSCA)
Federal Insecticide, Fungicide
Types of cases
Judicial
• Judicial
Administrative
Judicial
• Administrative
Judicial
Administrative
Administrative
Judicial
Administrative
Judicial
Administrative
Judicial
Administrative
Administrative
Administrative
Administrative
Judicial
Administrative
Administrative
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Penalties are counted in this report as assessed in a final administrative action or in a court order,
appeals and collection of penalties are not considered here. The word ‘obtained tt is used in this report
as a general term referring to penalties that were assessed by a court or by EPA administrative orders.
Its meaning is the same
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EPA has obtained over $247 million in cash civil penalties from FY 1974 through Fl 1990 in some
10,885 civil judicial and administrative cases.
FY 1990 marks a new high-water mark in the use of both administrative and judicial cases by EPA
programs. Four programs concluded substantial numbers of cases in both categories and obtained
substantial penalties from both. This change, first noted in FY 1989, reflects the implementation of
new statutory authorities granted by Congress, enabling programs to use the two approaches as
complementary parts of an integrated.enforcement effort.
In the last three years, almost 54 percent of alicivil penalty dollars in EPA’s history were obtained
(FY 1988-1990). These three years brought in more than $133 million in civil penalties, representing
4,664 cases. In FY 1990 alone, 25 percent of all civil penalty dollars were imposed.
In Fl 1990, $5.5 million in criminal fines were assessed (before deducting suspended sentences),
down from $12.5 million in FY 1989. After suspension, fines totaled $3.7 million. Sixty-two years of
incarceration were imposed (beforesuspension) and 19 years were ordered by the courts. This
represents a slight increase over the number of years ordered by the courts in FY 1989 (17).
In the fàur years EPA’s criminal enforcement program has been tracking penalty data (FY 1987-1990),
$29.7 million in criminal fmes and 223 years of incarceration have been imposed. before deduction of
suspended sentences. After suspension, incarceration totaled 73 years.
The total amounts of civil penalties for each program in FY 1990 are shown in Table 2. Criminal
penalties are shown in Table 3. The historical picture is shown in Figures 1 and 2, displaying total
penalties by fiscal year.
The relative contributions of the different EPA programs to the Fl 1990 totals of civil penalty dollars
and number of cases with penalties are shown in Figures 3 and 4.
Ten programs set new records for total civil judicial or administrative penalty dollars. These programs
were TSCA, Clean Water Act, RCRA, EPCRA §313, Wetlands Protection, FIFRA, SOWA, EPCRA §
302-312, Marine and Estuarine Protection, and CERCLA § 103. The penalties ranged from the high
for CERCLA § 103 of $157,000 to a high for TSCA of $25 million. The percent increases for these
programs over last year’s totals ranged from 0.6 percent for RCRA to a seven fold increase for
EPCRA § 313.
Both the largest and second largest penalties were obtained in TSCA judicial and administrative
actions in Fl 1990. The largest penalty was $1.5 ,000,000, received in a judicial action against Texas
Eastern. The second largest penalty, $3,750,000, was obtained through a TSCA administrative action.
Both penalties were higher than the FY. 1989 highest single penalty ($2,778,000). Top judicial
penalties over $1 million were also obtained by the Mobile Sobrce Air program, the Clean Water Act
program and the RCRA program.
A comprehensive summary of the programs’ civil penalty data appears in Table 4.
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TABLE 2
Total Amount of Civil Judicial and Administrative Penalties
in FY 1990
Total dollars No. All Cases*
( percent) ( percent )
Clean Water Act $ 16,354,797 (27%) 244 (16%)
Judicial 12,090,533 49
Administrative 4,264,264 195
Safe Drinking Water Act 578,501 (1%) 133 (9%)
Judicial 262,901 9
Administrative 315,600 124
Wetlands Protection 602,000 (1%) 25(2%)
Judicial 343,800 8
Administrative 258,200 17
Marine and Estuarine Protection 168,915 (<1%) 13 (1%)
Administrative
Stationary Source Air 5,940,581 (10%) 64 (4%)
Judicial 5,936,281 63
Administrative 4,300 1
Mobile Source Air 2,853,205 (5%) 210 (13%)
Judicial 1,007,000 4
Administrative 1,846,205 206
RCRA 6,843,350 (11%) 134 (9%)
Judicial 3,904,000 12
Administrative 2,939,350 122
EPCRA § 302-3 12 - Admmistrative 284,390 (<1%) 7 (<1%)
CERCLA § 103 - Administrative 157,000 (<1%) 5 (<1%)
Toxics Release Inventory
Administrative 1,562,637 (3%) 100 (6%)
TSCA 25,396,229 (41%) 313 (20%)
Judicial 15,000,000 1
Administrative 10,396,229 312
FIFRA - Administrative 587,362 (1%) 312 (20%)
TOTAL $ 61,329237 1,560
* “Number of all cases” includes all cases with or without penalties. Percentages shown here will differ from analyses presented
elsewhere in this report which arebased on only those cases with cash penalties.
The total RCRA judicial amount does not include three multi-media cases with RCRA counts in which the
penalties assessed were credited completely to other media.
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TABLE 3
Total Amount of Criminal Fines and Incarceration
inFY 1990
Number of defendants convicted 71
Total fines assessed
Before suspension $ 5.5 million
Ordered (after suspension) 3.7 million
Total months incarceration
Sentenced (before suspension) 745 months (62 years)
Ordered (after suspension, before parole) 222 months (19 years)
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I-
TOTAL PENALTIES BY FISCAL YEAR
70, ,000
60,000,000
50 . 000 . 000
0
° 40,000,000
R 30,000.000
S
20,000.000
10.000,000
0
Federal Judicial and Adntinisfratlve
Penalty Asaessmenb
FY 1977 to FY 1990
70,000,000
60000.000
50,000.000
0
0
L 40,000,000
30,000,000
20.000,000
10.000.000
0_
Fy77 FTIS FY79 FY80 FY81 FY82 FY 53 FY84 FY85 FY86 FY87 FY88 FY89 FY90
I S AD 4IST1A11VE U JUDICIAL
FY77 FY79 FY79 FY80 FY81 FY82 FY85 FY84 FY15 FY86 FYV FY15 FY19 FY90
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FIGURE 3
PERCENT PENALTY DOLLARS BY PROGRAM
FY 1990
OTHERS 6.3%
TSCA 41.4%
CWA 26.7%
STATAIR 9.7%
MOBILE 4.7%
FIGURE 4
PERCENT PENALTY CASES BY PROGRAM
FY 1990
RCRA 11.2%
OTHERS 10.8%
FIFRA 1t4%
STATAIR 4.3%
MO9LE 14.9%
TSCA 21.7%
RCRA 9.1%
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£ It IPLL ‘0
Summary of Civil Penainra by Program In FY 1990
Total Cases with Cases wJo Total Percen l Average Avg All Median Med All Highest
Program Dollars Penalty Penally wlPenally Penalty Penalty Penalty
CWAADM 4 .264 .264 195 0 195 100% 21,868 2t,868 10,650 10,650 125,000
CWAJUD 12 ,090 .533 48 49 98% 251,886 246,746 83,000 81.500 2100,000
CWAADM+JUD 16,354,797 243 1 244 100% 67,304 67,028 2,100,000
UICADM 249,190 54 56 110 49% 4.615 2265 2,000 0 40,000
U ICJUD 239,401 5 0 5 100% 47,880 47,880 12,000 12,000 200.000
UICADMi ,JUD 488,591 59 56 115 51% 8.281 4,249 200,000
PVSADM 86,410 14 a 14 100% 4,744 4744 5,000 5,000 5,000
PWSJUD 23,500 2 2 4 50% 11,750 5,875 11,750 5.875 16,000
PWSADM+JUD 89,910 16 2 18 89% 5.619 4 ,995 . 16000
SOWAM3M 315,600 88 56 124 55% 4,641 2,545 4.000 400 40 .000
SDWAJIJD 262 ,901 7 2 9 78% 37,557 29,211 8 .500 0 200,000
SDWAAOM+JUD 578,501 75 58 133 56% 7,713 4 ,350 200,000
WERDADM 258,200 17 0 17 100% 15,198 15,188 11,000 45.000
WETLDJUD 343,800 . 7 8 88% 49,114 42,975 5,000 . 5,000 300,000
WETLOADMaUD . 602,000 24 1 25 96% 25,083 24,080 . 300.000
MARINEADM 168,915 13 0 13 100% 12 .993 12,993 19,594 19.594 25,000
STATAJRALW 4,300 I 0 1 100% 4,300 4,300 4,300 4.300 4,300
STATAIAJtJD 5,936,281 59 4 63 94% 100,815 94,227 40,000 40.000 687.224
STAT ADM+JUO 5,940,581 60 4 64 94% 99,010 92,822 687 .224
MOBAIAADM 1,846,205 206 0 206 100% 8,982 8,962 1,200 1,200 520,000
MCBAIAJUD 1.007 ,000 3 I 4 75% 335,867 251,750 4,000 3,500 1,000,000
MOBADM .J IJO 2.853 ,205 209 1 210 100% 13,652 13,507 1 ,000 ,000
RCRAi ICM 2.939,350 116 6 122 95% 25.339 24.093 11,650 10,000 550.000
IRCRAJUD 3,904,000 12 0 12 100% 325,333 325,333 110,000 110,000 1.550,000
RCRAADM+JUD 6,843,350 128 6 134 96% 53,464 51,070 1 ,550 .000
EPCRA 302-312 . 284,390 7 0 7 100% 40,627 40,627 20.600 20.600 69,840
CERCLA1O3 157,000 7 0 7 100% 22,429 22,429 25,000 25.000 51,000’
TRI 1,562,637 100 0 100 100% 15,626 15,626 13,000 13,000 74,488
‘TSCAALW 10,396,229 . 303 9 312 97% 34,311 33,321 8,000 8.000 3,750,000
TSCAJW 15.000,000 . I 0 1 100% 15,000.000 15,000,000 15,000,000 15,000.000 15,000.000
TSCA OvI ÜUD 25,396,229 304 9 313 97% 83540 81,138 . 15,000,000
FIFRA - 587 .632 230 82 312 74% 2,555 1 .883 1,056 700 96.240
TOTAl. 61,329237 1,400 162 1.582
Notes: Figures are not additive in vertical columns because program touts are included as well as components of those totals. In the
SDWA program, figures are also show for the UIC and PWS subprograms, followed by the combined totals for SDWA aS a whole.
(This is done for the sake of historical comparison, because past reports showed only SDWA as a whole.) Abbreviations not explained
elsewhere: UIC s Underground Injection Control (part of the SDWA program), PWS = Public Water System Supervision (part of
SDWA program), Marine = Marine and Estuarine Protection, StatAir = Stationary Source Air, MobAir = Mobile Source Air.
isJole: Figures do not include three multi-media cases with RCRA counts that were credited completely to the following media:
$142,000 to CERCLA, $1,100,000 to CWA, $15,000,000 to TSCA.
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Median and Average Penalties
This section of the report attempts to look beyond the aggregate figures to see what the typical
penalties were for each’ program. Average and median penalty figures represent different aspects of
the program.
The average penalty is the total dollars divided by the number of penalty cases in a given program.
While an average is useful in seeing overall program accomplishments, it may give a misleading
picture’ if the penalties within that program went to extremes. One high-penalty case and a large
number of low-penalty cases could produce a mid-level average, even though no cases had a mid-level
penalty.
The median is useful to gain a different perspective on a program without the heavy influence of a few
extremely large or small penalties. The median penalty represents the middle number in the series of
all penalties for a given program arranged in order of size. That is, there were as many penalties
below the median as above it.
Medians - Figure 5 shows trends in medians over several years for the largest EPA penalty programs
during that period. Among the programs with five years or less of penalty history, only RCRA
judicial cases are shown. In the Mobile Source Air and TSCA programs, the data reflect several
different penalty authorities, including some that lead to higher-dollar penalties. However, most of the
cases in both these programs are in lower-dollar categories, which results in low median penalties.
Medians increased in ten programs in FY 1990 over the previous year’s levels. For the second year in
a row, ‘record high medians were achieved in the aean Water Act program in both judicial and
administrative cases. RCRA also had record high medians in judicial and administrative cases. For
administrative cases alone, medians were their highest in TSCA, EPCRA § 302-3 12, CERCLA § 103,
and EPCR.A § 313. Although not all-time highs, median judicial penalties increased over FY 1989 in
the Stationary Source Air program. Median administrative penalties increased in Wetlands, Mobile
Source Air, and FIFRA programs.
Medians decreased in only four Out of thirteen programs. Decreases were seen in the median judicial
cases for the Wetlands and Mobile Source Air programs and in the median administrative cases for the
Marine and Estuarine program. In SDWA, both the administrative and judicial median penalties
dropped from the FY 1989 figure.
In the foregoing discussion of change in medians, there is no mention of TSCA judicial cases or
Stationary Source Air administrative cases, because there were too few cases in FY 1989 or 1990 or
both years to make these categories suitable for such analysis.
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PROGRAM MEDIANS BY FISCAL YEAR
Judicial Penalties
I *CleanWaterAct Air-Stationary
75767778798081828384858687888990
Fiscal Year
PROGRAM
Ad
MEDIANS BY FISCAL YEAR
mi nistrative Penalties
120
100
80
•
- 0 -Alr .Moblle
9 g
.
60
40
20
0
80
—u c i
81
82
83 84 85 86 87 88 89 90
Fiscal Year
PROGRAM MEDIANS BY FISCAL YEAR
Judicial Penalties
86
Fiscal Year
PROGRAM MEDIANS BY FISCAL YEAR
Administrative Penalties
1
x ___ x _ . ___ x _ x _ x— x x—.-- _
0 I I I I I I I I I I
79 80 81 82 83 84 85 86. 87 88 89 90
Fiscal Year
70
60
50
40
30
20
10
0
120
FCRA
100
U)
H
U)
FIGURE 5
ca
I-
Cs
V
U) ’ -.
0
87 88 89 90
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• Clean Water Act : The median judicial penalty rose from its F? 1989 level of $55,000 to a record
high of $63,000 in FY 1990. The median administrative penalty also rose to a new high of
$10,650 from $10,000 in FY 1989.
• Sale Drinking Water Act : The median judicial penalty dropped from a record high of $16,000 in
F? 1989 to $8,500 in FY 1990. (This reflects FY 1990 medians of $12,000 for five UIC cases and
$ 11,750 for two PWSS cases.) The median administrative penalty dropped from $5,000 in FY
1989 to $4,000 in FY 1990. (The subprogram medians in FY 1990 were $2 000 for 54 UTC cases
and $5,000 for 14 PWSS cases.)
• Wetlands Protection : In this third year of administrative cases concluded by the program, the
median rose to $11,000, compared to the FY 1989 level of $8,000. The median judicial penalty
was $5,000, a decrease from $25,000 in FY 1989, although only seven cases were concluded.
(This is the third year Wetlands judicial penalties have been presented separately in this report.
They were included as part of Clean Water Act data in penalty reports prior to FY 1988.)
• Marine and Estuarine Protection : This program is in its second year for cases concluded and has
dropped from a median administrative penalty of $30,000 in FY 1989 to $19,594 FY 1990.
• Stationary Source Air : The median judicial penalty rose from $32,253 in FY 1989 to $48,000 in
F? 1990. This is the second highest median judicial penalty in the program’s history. The record
was set in FY 1987 with a median of $65,750.
• Mobile Source Air : The median judicial penalty was $4,000, reflecting only three cases. This is a
drop from the FY 1989 level of 16 cases and $35,875 in penalties. The median administrative
penalty rose from $1,000 in FY 1989 to $1,200 in FY 1990.
• RCRA : The median judicial penalty of $110,000 was the highest to date in this program. The
median administrative penalty continued rising for the seventh year in a row, also attaining a new
record of $11,650.
• EPCRA § 302-3 12 : In the second year of concluded cases, this program surpassed its first year
median with a penalty of $20,600 compared to $13,958 in FY 1989.
• CERCLA § 103 : In the second year of concluded cases, this program also surpassed its first year
median with a penalty of $25,000 compared to $3,334 in FY 1989.
• Toxics Release Inventory : In this second year of concluded cases, this program also surpassed its
first year median with a penalty of $13,000 compared to $4,500 in F? 1989.
• TSCA : The median administrative penalty attained a record high of $8,000, rising from $7,000 in
FY 1989. Prior to FY 1986, TSCA medians were not calculated on a program-wide basis.
• FJFRA : The median penalty rose slightly from $1,014 in FY 1989 to $1,056 in FY 1990, rising
for the first time in four years. The record high penalty was in F? 1986 at $1,852.
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Averages - Average civil judicial or administrative penalties increased in twelve programs in FY 1990
as compared with five in FY 1989. Declines were evident in six programs. However, it should be
noted that averages may be influenced by a few large cases. A year with one or two extremely large
cases may have a much higher average penalty than a year without any, even though the latter may
have had larger penalties in most enforcement cases.
Averages rose to record highs in the Clean Water Act in both judicial and administrative cases. For
judicial cases only, averages rose to new highs in the Safe Drinking Water Act programs (UTC judicial
and PWSS administrative) and theWetlands program. In five other programs, record high
administrative penalties were also achieved, although three of the five programs are only in their
second year of concluded cases. These programs are TSCA, EPCRA § 302-312, CERCLA § 103,
EPCRA § 313, and FIFRA. Although the RCRA program did not achieve a record high average this
year, there was an increase over the FY 1989 average administrative penalty. Average judicial
penalties increased for Stationaiy Source Air and Mobile Air programs.
Lower, average penalties were reported in judicial cases in the RCRA and SDWA (PWSS) programs.
Lower averages were noted for administrative cases in the Wetlands, Marine and Estuarine, SDWA
(UIC) and Mobile Source Air programs.
In the foregoing discussion of change in averages, the following categories are not mentioned because
there were too few cases in either FY 1989 or FY 1990 or both years to make this analysis productive:
administrative cases in Stationary Source Air, and judicial cases in the TSCA program.
Clean Water Act : The average judicial penalty rose to. a record high of $251,886. In the third year
of administrative penalties, the average attained a reèord of $21,868.
Safe Drinking Water Act : The average judicial penalty rose to a new high of $37,557. However,
the average administrative penalty dropped to $4,641 from the record high of $10,590 in FY 1989.
• Wetlands Protection : The average judicial penalty rose to $49,114, compared to $30,000 in FY
1989. In the third year of administrative penalties, the average dropped slightly in FY 1990 to
$15,188 from FY 1989 ($16,454), although cases went up slightly from 12 to 17.
• Marine and Estuarine Protection : In this second year of administrative penalties, the average
dropped from $30,000 in FY 1989 to $12,993 in FY 1990. However, this may be expected since
the number of cases rose from 2 to 13.
• Stationary Source Air : The average judicial penalty rose from $69,674 in FY 1989 to $100,615 in
FY 1990, nearing the FY 1988 average after a decline in FY 1989.
• Mobile Source Air : The average administrative penalty declined for the second year, from $9,082
in FY 1989 to $8,962 in FY 1990. The average judicial penalty rose sharply from $144,526 in FY
1989 to $335,667 in FY 1990, although cases dropped from 16 to thràe.
• RCRA : The average judicial penalty dropped slightly from the FY 1989 average to $325,333,
although still higher than the average penalty in FY 1988 ($209,791). The average administrative
penalty rose to $25,339, compared to $17,208 in FY 1989.
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• EPCRA § 302-312 : in this second year of concluded cases, the average penalty rose from $15,979
to $40,627.
• CERCLA § 103 : In this second year of concluded cases, the average penalty rose sharply from
$7,295 to $31,400.
• Toxics Release Inventory : In this second year of concluded cases, the average penalty rose from
$12,899 to $15,626.
• TSCA : The average administrative penalty rose substantially to a new high of $34,311 compared
to $13,563 in FY 1989. (Averages were not calculated on a TSCA program-wide basis, before FY
1986.)
• FIFRA : The average penalty rose to a new high of $2,555. For the FIFRA program, this is a
• substantial increase over the FY 1989 average of $1,341 (the iowest average since 1981).
Percentage of Cases Concluded with a Penalty
A high percentage of cases were concluded with a penalty in all programs except one (UIC).
Excluding this one program from the calculation, 93 percent of all FY 1990 cases were concluded with
a penalty, holding the percent at the FY 1989 level. (See Table 4 for each program’s percentage with
penalty.)
The atypical program was the Underground Injection Control program (one of the two programs under
the Safe Drinking Water Act), which obtained penalties in 51 percent of its cases. This figure reflects
a return to previous years’ low levels from 62 percent in 1989. The low percentage figure for
administrative penalties is in part a result of the structure of the SDWA, which does not separate
EPA’s authority for non-penalty IJIC administrative orders from the authority for penalty orders, as
• was done in the Clean Water Act, the Public Water System provisions of SDWA, and the Clean Air
Act. In this report, every UIC administrative order is counted as a potential penalty case, while in
some other programs the only orders counted are the ones issued under the statute’s penalty
provisions. The agencywide figure including the UIC cases is almost 90 percent.
The percentage of cases with a penalty ranged from 51 percent in UIC administrative cases to 100
percent in Clean Water Act administrative, SDWA Underground Injection Control judicial, SDWA
Public Water System Supervision administrative, Wetlands administrative, Marine and Estuarine,
Stationary Source Air administrative, Mobile Source Air administrative, RCRA judicial, EPCRA §
302-3 12, CERCLA * 103, EPcRA § 313, and TSCA judicial.
Range of Penalty Amounts
This section examines how EPA’s penalties in F’! 1990 ranked along the . cale from low dollars to
high dollars. The penalty cases are sorted into eight ranges from no-penalty cases (“zero dollars”) to
cases of $1 million or more.
Figure 6 shows the penalty distribution of all FY 1990 cases. Overall, the profile is similar to that in
FY 1989. The biggest change in number of cases was a drop in the penalties under $5,000,
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attributable almost entirely to a drop in administrative penalties in this category. The biggest
percentage changes were increases in cases above $1 million (150% increase over FY 1989), and cases
between $25,000 and $50,000 (42% increase over FY 1989). Judicial penalties dropped in five
categories, but administrative penalties increased from the under $10,000 category through the $1
million or greater category, with the biggest increase in the $25,000 to $50,000 range. The overall
distribution shown in Figure 5 is dominated by the large number of cases brought by the TSCA,
FIFRA and Mobile Source Air programs, in which the penalties are generally lower than in other
programs.
Figure 6 omits the two programs with the lowest medians, FIFRA (median of $1,056) and Mobile
Source Air administrative cases (median of $1,200), to better show the distribution of penalties in the
other programs. The distribution of penalties in most programs maintained position approximately in
the profile established in FY 1989.
Though the changes in distribution of penalties between FY 1989 and FY 1990 were slight, they were
the following: growth in the zero-penalty category, due to an increase in UIC cases with no penalties;
a large drop in the under $5,000 category, due to Mobile Sources, TSCA, FIPRA and RCRA
administrative penalties; a 40% increase in the number of cases with penalties between $25,000 and
$50,000, due to Clean Water Act, EPCRA 313 and TSCA administrative penalties; a slight decline
in judicial penalties between $50,000 and $100,000, due primarily to a slight drop in Clean Water Act
judicial penalties; an increase in penalties over $1 million, due to TSCA judicial and administrative
penalties, and RCRA judicial penalties.
To show trends in the distribution of penalties, graphic examples below compare combined data from
FY 1985-1989 with FY 1990 data for selected programs. Figures 7 and 8 show the distributions for
Clean Water Act, SDWA, Stationary Source Air and RCRA cases in FY 1990 and FY 1985-1989. In
FY 1990, the Clean Water Act penalty distribution shows growth in all categories except the zero-
penalty range. The greatest increases come in penalties under $5,000 (88% of FY 1985-1989 total),
over $1 million (67% of FY 1985-1989 total), and between $50,000 and $100,000 (66% of FY 1985-
1989 total). The increases reflect growth in judicial penalty amounts and the rapidly growing use of
administrative enforcement cases in the Clean Water Act program. For Stationary Air, the shift
continues to be toward higher penalties in the judicial program. No administrative penalties were
assessed in FY 1990, except in the $5,000 or under category, but greater than average increases in
judicial penalties occurred in two categories besides the zero-penalty category: under $5,000 (32% of
FY 1985-1989 total) and under $1 million (27% of FY 1985-1989 total). SDWA showed substantial
growth in the lower penalty categories with slight growth in all other categories above $10,000 except
under $100,000. In RCRA, the shift in distribution of penalties is toward the upper range (<5,000 to
<1 million), as compared with the FY 1985-1989 distribution, due primarily to larger judicial
penalties. The huge increases were in penalties for $1 million or over (67% of FY 1985-1989 total),
and under $1 million (45% of FY 1985-1989 total). Modest growth also occurred in the middle
ranges, <10,000 to <100,000, due to an increase in administrative cases.
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PENALTY DISTRiBUTION - ALL PROGRAMS
FY 1990
O$ ‘—$5,000 <$1 0.000 ‘$25,000 <$50,000
R gn
I ADMINISTRATiVE 0 JUDICIAL 1
63
I - ,
<$100,000 41 MiLL >41 MILL
PENALTY DISTRIBUTION - FY 1990
Minus Mob3Is and FIFRA Administrativs
59
I I I
41 lIEU. >41 MILL
800
700
153
n
:1 I
500
400
300
200
100
0 -
350
300
N
u 800
II ’
b
t
r
0
I
C
a
$
e
S
N
250
b.
S
r 200
0
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a
S
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I
‘ U
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150
100
50
0
O$ <45,000 <$10,000 c$25;000 <$50,000
Pa n
<$100000
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FI_ -
LE7
70
60
N
50
40
N
b 40
ii 30
20
ADMIMSIRATIVE • JuDICIAl.
PENALTY DISTRIBUTION - SDWA
FY 1985-1989
Ti $ VA YAc7 qA
($5,000 410000 425.000 (150.000 4100.000 41 MILL .$l MII.L
20
60
50
PENALTY DISTRIBUTION - CWA
FY 1990
4- -4-- -4 -4
($100000 $I MILL —$I MILL
_ + .1 _ _
flO$ $5000 ($40,000
PENALTY DISTRIBUTION - SDWA
FY 1990
.110.000 .$25,04)Q .$S0000 ‘$100000 $1 MIII • $I MILL
i*. ADMINISIItAIIvI U JIJUILIAI
PENALTY DISTRIBUTION - CWA
FY 1985-1989
N
.
C,
a
I
S
140
120
I SO
60
60
a.
20
0
(.$$.000 •$I0.000 .425.000 450.000
4100,000 c$I MILL ,4 1 MILL
120
i ADINMSIAATIVI U JUDICIAL
N
b
I
I
0
C.
a
S
I
100
SO
So
40
20
0
10
• -$5000
r ADMIMSU 1MIVF • JIJDICIAL
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FIGURE 8
PENALTY DISTRIBUTION - STATIONARY AIR
FY 1985-1989
70 i to
I’
N *4
b
50
U
I.
• 6
$4
2
* 0
N
b
U
C
1 ADMINSTRATIVE U JUQICIAL
PENALTY DISTRIBUTION - RCRA
FY 1985-1989
450.000 4100.000 <$1 lOLL .4* MILL
)$ $S ,000 .5*0,000 .525.000
Ranges
i 3 ADUINISTRAT*VF U JUDICIAL
PENALTY DISTRIBUTION - STATIONARY AIR
FY 1990
•I ___ __
f , I t
.-$5.000 4 )0000 ‘$25 000 450.000
I AOMII4STRATIV( U JUO*CAL
PENALTY DISTRIBUTION - RCRA
FY 1990
Ranges
—$I MILL
J D$ -$S.000 4*0.000 .525,000 .550.000 .$I00.000 41 MILL .4* MILL
I0
N
S.
I
a
t 40
a
30
C
$
20
a
*0
N
S
S
I
50
S
*00
S
I
a
I
0
256
.5600,000 4* MILL .4* MILL
35
30
0
$0
U
0
1K)$ . .$5000 .5*0.000 .525.000 ‘850.000 .5600.000 .56 MILL
I
i 1 ADMINISTRAIIVe U JUDICIAL
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21
Highest Penalties
Eight programs established new records for highest individual administrative or judicial penalties --
that is, the highest penalty assessed in a single case. Record judicial penalties were set in FY 1990 in
the Safe Drinking Water Act (UIC) and Wetlands programs. Record administrative penalties were set
in the Clean Water Act, EPCRA § 302-312, CERCLA § 103, Toxics Release Inventory (EPCRA §
313), and FIPRA. TSCA set the highest administrative and judicial penalties in FY 199O. The highest
penalties in each program are shown in Table 5.
Table 5.
Highest Penalty in FY 1990 by Program
Judicial Administrative
Clean Water Act $ 2,100,000 $ 125,000
Safe Drinking Water Act 200,000 40,000
Wetlands Protection 300,000 45,000
Marine and Estuarine Protection 25,000
Stationary Source Air 687,224 4,300
Mobile Source Air 1,000,000 520,000
RCRA 1,550,000 550,000
EPCRA § 302-3 12 69,840
CERCLA 103 51,000
Toxics Release Inventoiy 74,488
TSCA 15,000,0000* ,750,000
FIFRA 96,240
* Texas Eastern, a multi-media case involving TSCA and RCRA counts, credilted completely to TSCA.
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Types of Cases
About $37 million, or 63 percent, of all EPA federal penalty dollars in F l 1990 came from judicial
cases. The remaining $22 million (37 percent) came from administrative cases.
There were more administrative cases than judicial cases. Some 90 percent (1,140) of all cases with
penalties were administrative enforcement actions, compared to 10 percent (124 cases) that were
judicial actions.
In general, the penalty is likely to be higher in a judicial case than in an administrative case, but the
ranges overlap. For instance, among EPA’s larger penalties in FY 1990, the highest administrative
penalty was $3.7 million brought by the TSCA program, and the highest judicial penalty (excluding
Texas Eastern for $15 million) was $2.1 million broughtby the Clean Water Act program.
Considered on an agencywide basis, the proportions of dollars and cases from the judicial and
administrative categories in F l ’ 1990 are similar to those in the past four fiscal years. The percentages
within that period varied within a range of 15 percentage points for penalty dollars, and 4 percentage
points for cases. Although the big picture has remained the same, the roles of these two types of cases
have changed in some programs, with dramatic results.
An example is the Clean Water Act program, which first received administrative enforcement penalty
authority in the Water Quality Act of 1987. In Fl’ 1990, 192 cases were concluded for a total of over
$4 million in penalties. To compare this with previous years, Fl’ 1988 saw the first 40 administrative
cases concluded with penalties totaling about $500,000. Then in FY 1989, 165 cases were concluded,
with penalties of $2.8 million. This fiscal year was a dramatic increase over FY 1989, as FY 1989
was a substantial increase over FY 1988. This growth in dollars from administrative cases in FY 1990
in addition to the increase in judicial dollars and cases, brought the Clean Water Act program to
highest total in the program’s history ($15.4 million dollars and 234 cases).
A contrasting example is the TSCA program, which until FY 1990, had no judicial penalties. The first
judicial case was concluded in FY 1990 for a record high penalty of $15,000,000, assessed against
Texas Eastern Pipeline.
New Penalty Authority
The Clean Water Act program received new penalty authority this fiscal year with the enactment of
the Oil Pollution Act of 1990 (OPA) on August 18, 1990. The result was to strengthen the
enforcement provisions of Section 311 of the Clean Water Act, which concerns oil or hazardous
substance spills and spill prevention. However, these amendments to the law were not implemented
during FY 1990 by the Agency and no cases were concluded under the OPA.
Criminal Enforcement
The Criminal Enforcement program operates on a cross-media basis, serving all the major programs
that have been authorized by Congress to use criminal sanctions against violators. Most criminal cases
include charges under more than one environmental law, but for statistical purposes each case is listed
under one predominant statute. On this basis, the programs with the largest numbers of defendants
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convicted in FY 1990 were RCRA (25), Clean Water Act (19) and Clean Air Act (16), followed by
TSCA (8), FIFRA (2) and CERCLA § 103 (1). (The foregoing numbers are sums of corporations and
individuals convicted.)
Relative Contributions
The TSCA program dominated civil penalty dollars in FY 1990, with 41 percent of the total (see
Figure 2). It was followed by Clean Water Act (27 percent), RCRA (11 percent), Stationary Source
Air (10 percent) and Mobile Source Air (5 percent). This reflects a notable gain in share over FY
1989 by TSCA (up from 12 percent).
The majority of cases with penalties in FY 1990 were concluded by programs that made heavy use of
administrative cases (see Figure 3): TSCA (22 percent), Clean Water Act (17 percent), FIFRA
(17 percent), and Mobile Source Air (15 percent). These shares changed very little from program
shares in FY 1989.
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