United States
Environmental Protect!
Agency
Office of
I
t/»
nforcmg
Environmenta,
Laws
-------
Enforcing Environmental Laws
Traditionally, protectors oi
the environment have
been seen as "nice guys."
However, with increasingly
aggressive enforcement of
environmental cleanup
requirements, the image is
changing. This issue ot K/'A
Journol explores the trend.
The issue includes an
interview with Thomas I,.
Adams, jr.. about how EPA is
meeting its enforcement
challenge, Adams is the
Agency's Assistant
Administrator for
Enforcement and Compliance
Monitoring. A report on a
major enforcement case in
which a white; collar polluter
was sent to jail illustrates the
tougher approach in
environmental cleanup. An
article traces the increase in
penalties in EPA's
enforcement efforts. Another
article describes how EPA is enforcement officers on
deterring violations of
cleanup standards by using a
range of tools from
arbitration to regular audits.
In a change of pace,
another feature projects
EPA's approach to
enforcement in the year 2000,
as technology and
compliance procedures
evolve.
Environmental enforcement
trends art; also examined
from vantage points outside
EPA headquarters, including
the U.S. Department of
Justice, EPA regional offices.
the states, and local
government.
The Journal's review of
environmental enforcement
concludes with reports from
some of EPA's senior
current initiatives, and an
article about the
"sludgebusters" on
assignment from EPA's
National Enforcement
Investigations Center in
Lakewood, CO.
Two special features on
other environmental matters
are next: The first is an
article by U.S. Senator
Quentin N, Hurdick (D-ND),
the new Chairman of the
Senate Environment and
Public Works Committee,
outlining his priorities for
the Committee in this
Congress. Second is an
explanation of the major
provisions of the now (Mean
Water Act.
This issue of EPA Journal
concludes with a regular
feature—Appointments, u
Pollution Costs!
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United States
Environmental Protection
Agency
Office of
Public Affairs (A-107)
Washington DC 20460
Volume 13
Number 2
March 1987
&EPA JOURNAL
Lee M. Thomas, Administrator
Jennifer Joy Wilson, Assistant Administrator for Kxternal Affairs
Linda Wilson Reed, Director. Office of Public .Affairs
John Heritage, Editor
Susan Tejada, Associate Editor
Jack Lewis, Assistant Editor
Margherita Pryor, Contributing Editor
KI'A is dunked by Congress u> pro-
tect the nation's land, iiir, and
water systems. Under a mandate of
national environmental laws, the
ciuumy strives to formulate and im-
plement actions which lead ID a
compatible balance between hu-
man activities and the ability of
natural systems to support and
nurture life.
The KPA Journal is published by
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Agency. The Administrator of KI'A
has determined that the publica-
tion of (bis periodical is necessary
in the transaction of the pnblii
business required by la\v ot this
agency. Use ot kinds for printing
this periodical has been approved
by the Director o! the Office of
Management and Budget. Views
expressed by authors do not neces-
sarily reflect KI'A policy. Contribu-
tions and inquiries should be ad-
dressed to tin; Kditor (A-107).
Waterside .Vial), 401 \! Si.. S.\V..
Washington, DC 20450. No permis-
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tents except copyrighted photos
and other materials.
Enforcement Today
An Interview with
Thomas L. Adams. Jr. 2
Pollution Doesn't Pay:
A Landmark Case
by Matthew Coco (i
Penalties on the Rise
by Carol Hudson Jones i
Tools to
Deter Violators
by Terrell H. Hunt
1(1
Enforcement in
The Year 2000
by Richard H. Mays
and Julie C. Becker KJ
The Justice Department:
When the Polluter
Meets the fudge
by F. Henry Habicht II IB
EPA's Regional Offices:
A Case of Being
on the Front Line
by Victor |. Janosik 18
The Slates:
Innovative Ways
to Enforce the Cleanup
by LeRoy C. Paddock 21
Local Government:
The Pollution
Didn't Wash
bv Carol Panasewich 22
Initiatives
by EPA's
Enforcement Offices
The Sludgebusters
by Thomas Graf 27
New Chairman
of Senate Committee
Lists Environmental Goals
by Quentin N. Burdick 28
The New
Clean Water Act Hi)
Appointments 32
24
/•'rout (.'over: EPA en/orcemenl
engineer records observations of 11
hood iv/n'ch collects emissions
from a basic oxygen furnace in u
sleel mill. Photo lnp Uoncild X.
Emmerich,
Design Credits;
Ddiitui Wosylkiivskyf
Kim (•'('•rah
/im Ingram
Correction: The scene on Ihe cover
of Ihe January/February issue of
KI'A /oimiuJ ivus d
New Knylfind villa
scribed to us
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Enforcement Today
An Interview with
Thomas L. Adams, Jr.
To get a perspective on the job of
enforcing environmental laws, EPA
Journal interviewed Thomas /.. Adorns,
Jr., fhe Assistant Administrator in
charge of EPA's Office of Enforcement
and Compliance Monitoring (OW,'M).
The text of the interview follows:
L^ In the past, EPA has been
criticized as not being tough enough in
enforcing the law. Is that criticism still
valid?
/Y Absolutely not. We responded to
that criticism and the enforcement
program today is the strongest the
Agency has ever had. We've got a strong
criminal program, a strong civil
program, and we've got the figures to
prove it.
Speaking of figures, how do the
results of this year's enforcement efforts
compare with past years'?
i\ 1986 was a record enforcement
year. We referred 342 judicial cases to
the Department of Justice, compared
with 276 cases last year. And the
regions referred 386 cases to head-
quarters or the justice Department, up
from 323 last year and only 93 cases in
1981. Of these, Justice followed through
on 245 cases. We also brought criminal
charges against 94 defendants for
violating federal environmental laws.
The year before, we only filed 40 such
charges. So 1 think you can see a
distinct improvement.
How do numbers of enforcement
cases translate into positive
environmental results?
/» Sometimes you can see direct
results, as when an enforcement action
stops a chemical discharge into a
stream. But usually it's not so simple.
We can't always link every action with
a subsequent environmental
improvement.
We're looking to get away from sheer
numbers and instead target cases with
"strategic value:" cases that will
establish an important precedent, are
part of an explicit enforcement
initiative, or address major regional or
national concerns. This increased
emphasis on the strategic value of each
case means that the Agency will be
giving highest priority to those
enforcement actions which are likely to
result in the cleanup of major sources of
pollution.
You're still fairly new at EPA.
What's on your agenda? What would
you most like to accomplish as the new
Assistant Administrator for
Enforcement?
-A. I've been with EPA three years
now, mostly dealing with regional
issues, and that intimacy let me come to
OECM with definite ideas about what 1
wanted to do, such as streamlining our
processes and enhancing the criminal
enforcement program. I have also
developed an understanding of some of
the headquarters/regional challenges
that arise in this office, so that now
we're making an effort to be more
sensitive to regional concerns, finding
ways to help with cases when the
regions get overloaded.
I see enforcement more and more as a
strong support shop, providing training,
monitoring, and guidance, and also
acting as a facilitator among the
regions, the headquarters technical
program offices, and also the
Department of Justice. I think you'li find
that the enforcement staff is cognizant
of the benefits they provide in acting as
facilitators.
As for enhancing our criminal
enforcement, I told the Senate
confirmation committee that I really
wanted to give our efforts there a
genuine boost. The strengthened
criminal enforcement provisions in the
recent amendments to the Clean Water
Act, Safe Drinking Water Act, and
Superfund indicate that Congress
EPA JOURNAL
-------
understands the benefits, including the
ultimate deterrent effect, of strong
criminal enforcement.
By way of example, suppose the;
Internal Revenue Service just accepted
filed returns—no checking, no auditing.
You can imagine what would happen.
Well, many of our environmental
programs depend on self-monitoring,
self-reporting. And we have had cases
where people have submitted facts and
figures to us that turned out to be false
information. If we didn't have authority
to go after violators like these with
criminal charges, perhaps we'd end up
with only periodic inspections by the
states and EPA and, as a result, we
would have a weaker program.
Q
What specific remedies do you
have for enforcing environmental laws
and how do you use them?
•*» Well, basically there are three:
administrative action, civil action, and
criminal prosecution. Administrative
actions can only be enforced through a
subsequent court order. For instance, if
a company enters into a consent
agreement to pay an administrative
penalty and then refuses to pay. the
Agency would go to a District Court
seeking a court order directing the
company to make payment. The main
benefit of an administrative action is
that if the company complies with the
administrative agreement or order, the
Agency avoids the cost and time of
litigating, Administrative actions
generally are taken by the regions
without assistance from headquarters. In
fiscal year 1986, we had over 2,600 of
these.
We take civil judicial action in more
complex cases, or where there have
been egregious violations or repeated
violations of administrative orders.
These originate in the regions and are
sent through headquarters to the
Department of Justice for filing by the
U.S. Attorney's Office. In both civil
judicial and administrative actions, the
Agency is normally seeking both a
penalty and future compliance.
Finally, we can prosecute on criminal
charges where there is evidence of a
knowing violation. Criminal cases really
enhance our administrative and civil
enforcement programs because the
possibility of being hit with a large fine
or even a prison term has a dramatic
deterrent effect.
Q
Criminal enforcement is a fairly
new weapon in the environmental
field. What is the role of a criminal
program—badges, guns, etc.—in a
regulatory agency like EPA?
**• We usually reserve criminal
enforcement proceedings for the most
serious cases of intentional
wrongdoing, where we're also likely to
find other factors such as risk of harm to
people or the environment, or false
reporting. In contrast to administrative
and civil cases, when; violators arc
almost always corporations, in criminal
cases we charge culpable individuals as
well as corporations. As 1 said before.
there is a great deterrent effect.
Badges and guns aside, what else
are you doing to beef up criminal
enforcement?
•** As I mentioned earlier, we've
really enhanced our criminal
enforcement program. In the past. 1
think enforcement was divided
unequally, with one office for civil
enforcement and another that handled
criminal enforcement, pesticides and
toxics, and policy. Loading all those
areas onto one office, sometimes one
person, meant that criminal enforcement
didn't get as much attention as it
needed. We've reorganized the office to
deal with that problem.
In addition to our own reorganization,
we've got some very successful
federal-state training programs down at
the Federal Law Enforcement Training
Center (FLETC) in Glynco, GA,
State enforcement programs range from
the very rudimentary levels to the
highly sophisticated. EPA, through tin-
coordinated efforts of the National
Association of Attorneys General, the
National Environmental Enforcement
Council, and FLKTC training, is
encouraging further program
development in states that have little or
no criminal enforcement capability. U'e
also strongly encourage attendance at
FLETC] by EPA civil inspectors, so that
they can learn to better recognize and
support EPA criminal cases.
V^i Has the philosophy of enforcement
changed over the years? What about
new or innovative enforcement tools?
-tV I would say that the overall
philosophy hasn't changed, but the
MARCH 1987
-------
process has. We're a young program,
really. Environmental law has only been
developing since tin: early 1970s. And
it's continually evolving, continually
changing. We as enforcers have to
change our methods along with it.
Sometimes ive can pull old tools out of
the closet, clean the rust off,
and use them again; .sometimes we
develop new ones, such as the "traffic
ticket citation" concept lor minor
infractions discovered during an
inspection. In fact, wo have quite an
arsenal of new enforcement
techniques, such as environmental
audits, AHK (alternative dispute,
resolution), and contractor listing, (For
further discussion of these techniques,
see the article hv Terrell Hunt
on page !().|
V»/ Is business more cooperative now
in complying with regulatory
requirements, or is the need for
enforcement action about the same as it
has always been?
/v I think the interest in cooperating
is continually growing within the
regulated community. The positive
response to environmental auditing is
one example. For a long time, I think
there was a mindset in industry that
saw environmental protection as an
unnecessary cost or something to avoid.
Now, the wisdom is that it is simply
part of the cost of doing business today.
So I think that's a very distinct change
in philosophy on the part of the
regulated community.
That does not mean we can cut down
on our enforcement effort, though. Part
of enforcement is taking actual legal
action against some party; another part
is monitoring to make sure that
everyone is doing what they say they're
doing. That's when legal action comes
into the picture. It reinforces the value
of voluntary compliance by penalizing
those who refuse to comply.
money on compliance now than to wait
and be penalized later.
So the prospect of enforcement
action serves as a big deterrent
against polluters?
/i Very much so, I think. Of course,
there is no way to count violations that
did not occur because we run a vigorous
enforcement program, but the more you
get the news around that something is
going to happen to you or your
company, even criminal charges, the
more you have people say to
themselves, "Hey. I'd better not do that.
I'd better not run that light. 1 may get a
fine."
Every enforcement action we take
helps prevent the need for another one.
We let people know that they can
expect to be caught if they're doing
something wrong, and that penalties
and other punitive actions will be
imposed very quickly after we detect a
violation. Another important point is
that no one is going to gain any
economic benefit from delaying
compliance.
So it doesn't pay to pollute? It's
not better to wait to get caught before
complying?
-T\ There's no benefit. We take any
unfair gain into account when we assess
financial penalties. Our policy at the
very least is to recover whatever profits
a company may have gotten from
noncompliance, as well as an additional
punitive amount. This second amount is
based on several factors, but the most
important is the seriousness of the harm
caused by failure to comply. In fact,
we've even developed a computer
program to help us calculate how much
benefit a firm may have enjoyed and
how much we should assess as punitive
damages. Removing the financial
benefits of noncompliance will foster an
attitude that it is better to spend the
Several levels of government are
involved in enforcing environmental
laws. What are their roles, and how do
they fit in with your goal of
streamlining the enforcement process?
/\ We rely very, very heavily on the
states. We have to. Without the states.
we wouldn't have a very good
enforcement program — or. for that
matter, environmental program. To a
large degree, the legal process moves
from the states to the region, from the
region to headquarters, from
headquarters to the Department of
Justice. So we all have to work together.
The majority of environmental
enforcement actions are initially taken
by the states who are on the front lines.
In fiscal year 1986, they filed over 4,800
administrative orders and more than
543 civil judicial referrals. Of course,
EPA has oversight of the state programs,
and is authorized to take action if the
states should fail to do so. The key is to
continually refine and improve
EPA/state coordination, so that we all
know the circumstances under which
EPA or the states should take action. It's
part of the constant balancing that goes
on.
What can headquarters do to
support the regional offices and the
Department of Justice in developing
and prosecuting cases?
1\ We have a very important
leadership role, particularly in the area
of fostering innovative approaches to
enforcement, and it's our job to produce
a cohesive, consistent program and act
as national spokesmpn. One advantage
of OECM is that we have an overview of
the entire enforcement area. By seeing
the big picture, we know where the
EPA JOURNAL
-------
Tivo different ivuys to /nuke flic
problems are brewing. More specifically,
the staff here assists regional counsels
as needed. We do a lot of training out of
this shop, too. For example, we recently
issued an update to the regions of all
the cases on a particular issue, saving
our regional attorneys many hours of
research. And that's what I'd like to see
more of from this office. On the
technical side, NEK], the National
Enforcement Investigations Center, is
very helpful. We get many compliments
from the programs on NElC's excellent
work.
Lastly, we at headquarters oversee the
federal/state enforcement relationship
and work with the Department of
Justice, sometimes to the point where
our attorneys have been tapped to help
the U.S. Attorney's Office because of
their expertise.
IJ What are you doing to avoid
enforcement backlogs?
A. First of all, OKCM is trying to help
the regions by taking up some cases
where necessary. But we're also actively
looking for ways to streamline
enforcement as a process, so that our
resources will he available for the more
complex and precedent-setting cases.
v
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Pollution Doesn't Pay:
A Landmark Case
by Matthew Coco
The Environmental Protection
Agency, the U.S. Attorney's office,
and the State of Washington have a
clear message for environmental
polluters in the Pacific Northwest:
convicted white-collar polluters can't
count on getting off with a slap on the
wrist. They face a real prospect of going
to jail.
Ono polluter who learned this hard
fact of life is William Kaser. Manager of
the Fleischmann's yeast manufacturing
plant on the lower slopes of towering
Mt. Rainier, lie pled guilty in federal
court to two charges involving the
illegal pollution of the White River
upstream from the city of Tacoma. Even
though he was convicted on the basis of
evidence gained by EPA enforcement
agents through nightlong surveillance of
the Nabisco Brands, Inc. subsidiary, and
liis plant operations director pleaded
guilty to 28 acts of illegal dumping into
the picturesque mountain river, Kaser,
hacked by hundreds of community
supporters, maintained that he did not
deserve to go to jail. The federal
government disagreed, and so did the
judge. Today the Nabisco executive is
serving a year and a day in federal
prison.
The story of the EPA investigation
and subsequent criminal enforcement
actions is illustrative of our national
experience with environmental
regulation. It begins in 1913, when a
yeast-making plant was built in the city
of Simmer, now a suburban community
of 5,500 people. It was built on the
banks of the then pristine, glacier-fed
White River on the flanks of Mt.
Rainier, at a point where the river
meanders through lowland forests
toward Puget Sound.
The White River was a convenient
natural sewer. In the HHHJs, well before
the passage of the 1972 Clean Water
(Coro, :>M ;i(liii nc\ , is -I I
.Allillyst ii: :; 1(1
Planning MnmrliI
Act, the company built a large wooden
tank to store wastes remaining after the
yeast was grown and filtered out of the
culture medium. The "yeast liquor"
wastes were flushed into the river,
promoting the growth of algae and
threatening to choke off fish and
desirable plant life.
When the plant came under the Clean
Water Act in the 1970s, the water
discharge permit required the tank to be
emptied into storage lagoons instead of
the river. From the lagoons the wastes
were to go into the Sumner municipal
wastewater treatment system. The
permit allowed only unpolluted cooling
water to go directly from the plant into
the river. The plant's legal troubles
began in October 1985, when the
Washington State Department of
Ecology imposed a $5,000
administrative fine for a discharge of
yeast liquor from the wooden tank into
the river. At the time, the pollution was
characterized by the firm as an isolated
incident resulting from a pipe rupture.
But in February 1986, a plant
employee confidentially told the state
agency that the company was dumping
its industrial waste into the river on a
regular basis. The tip was passed on to
EPA's Federal Office of Criminal
Investigation (OCI) in Seattle. OCI
agents led by Special Agent-in-Charge
Dixon McClary staked out the plant.
From a concealed location on the
opposite riverbank, they saw a Nabisco
employee unlock and open a valve near
the tank. Immediately thereafter,
according to EPA agent Ken Purdy, "a
large, very noticeable boiling of frothy
brown liquid (came) from the area of the
submerged (outfall) pipe. The boiling
discharge lasted for at least an hour, and
a strong smell of molasses—a growth
medium for yeast—filled the air." This
happened several times in the middle of
the night during the surveillance period.
The surveillance provided the basis for
the securing of a criminal search
warrant by the OCI teams. To execute
this warrant, Region 10's investigators
were joined by additional special agents
from EPA Regions 8 and 9. and three
members of Region 10's Environmental
Services Division technical staff, who
had prepared a sampling plan to trace
the waste stream from the tank to the
river.
Having become familiar with the
pattern of environmental misconduct at
the plant, the agents decided the best
time to conduct the search would be
when an illegal discharge was about to
happen. On the night of March 26,
1986, high-power telescopes were
trained in the direction of the waste
tank. When a Nabisco employee was
seen opening the tank valve, the
surveillance team radioed other agents
across the river. The agents were ready
to enter the plant site with flood lights
and video cameras to film the frothy
brown polluted brew as it boiled to the
surface. The cameras rolled as the
Nabisco employees were in the act of
polluting the river.
The EPA team worked through the
night, gathering documents and
sampling the yeast waste in the river.
The corporate records showed that the
company had been concealing its
illegal dumping of wastes for several
years. Seized wastewater samples were
sent to the regional EPA laboratory in
Manchester, WA, where forensic tests
linked the brown waste found in the
river to the Nabisco plant operation.
Kaser, the plant manager, was
interviewed at length. After first
denying any knowledge of the illegal
discharge and trying to put the blame
on subordinates, he finally admitted
that he had directed the systematic
permit violations. The strength of the
government's evidence prompted the
entry of guilty pleas by the Nabisco
Corporation, Kaser, and the production
manager, William Parks. Parks was
convicted of conspiring to discharge
pollutants, fined $2,500 and given three
years probation. Nabisco, convicted of
28 illegal discharges in violation of the
Clean Water Act, was fined $300,000
and ordered to pay an additional
$150,000 into an environmental trust
fund administered by the Washington
State Department of Fisheries for the
environmental enhancement of the river
harmed by the company's actions. Also,
Nabisco and all its subdivisions
nationwide were placed on three years'
probation.
Sentencing the plant manager was
more difficult. Kaser pled guilty to one
EPA JOURNAL
-------
misdemeanor count of conspiracy to
violate the Clean Water Act and one
felony count of conspiracy to violate the
Clean Water Act and one felony count
of mail fraud based on the mailing of
his letter to the Department of Ecology
falsely stating that the company was
disposing of its wastes through an
approved land-irrigation system. Federal
District Court Judge Jack Tanner
received 270 letters extolling Kaser as a
community leader and asking that he
not be sent to jail. Kaser himself
appealed for the court's leniency, saying
that his falsehoods were designed to
keep the plant open and save his
employees' jobs. Assistant U.S. Attorney
David Marshall later described this
outpouring of community support as a
fundamental problem in dealing with
environmental crimes—the branding of
people as criminals who usually are not
perceived as criminals.
Responding to the pressure to keep
Kaser out of prison, Marshall
emphasized the plant manager's
persistent history of falsehoods, and
called for imprisonment as a deterrent
to other business management polluters.
Special Assistant U.S. Attorney
Katherine Mix added: "The effectiveness
of the Clean Water Act depends and
revolves around voluntary reporting of
the substances they're putting into the
waters. Without that voluntary, accurate
reporting, those laws are almost
impossible to effectively administer."
Judge Tanner was unpersuaded by
Kaser's arguments and community
appeals and sentenced him to a $5,000
fine on the conspiracy charge and a year
and a day in jaii for mail fraud, of
which he must serve a minimum of
nine months and 16 days.
This case illustrates the favorable
outcome of skilled investigation and an
effective criminal law enforcement
program. Among its valuable lessons for
the future are:
• Surreptitious polluting requires a
strong stance by EPA. The water permit
program has assumed good faith by
point source dischargers, but unless
there is a criminal deterrent, many
polluters just wink at the law. Criminal
enforcement raises the stakes for the
polluters. Corporate treasuries may be
able to pay fines, but there is no dollar
value that can be placed on the loss of a
manager's personal liberty and
community esteem. A vigorous criminal
enforcement program will play an
enhanced role in maintaining a clean
environment.
In March I <)«(>', vt'iisl Jiijuor bu/iMrs /nl<>]<' ID tuki1 (i iviifrr sample.
• Effective criminal enforcement
requires close collaboration by criminal
investigators, technical support staff,
lawyers, and administrators. In the
Nabisco case, smooth teamwork was
critical to the investigation. Everyone
involved learned first hand that
round-the-clock enforcement is more
than just an EPA slogan. Moreover,
energetic support of the investigation
and prosecution by key EPA regional
officials and state agency leaders created
a favorable climate for criminal law
enforcement endeavors. Staff personnel
knew that their efforts were supported
from the top down.
• Federal-state law enforcement
coordination is advantageous. In this
case, prosecution on the federal level
was preferable, While the state had no
felony measures for environmental
crimes and the Clean Water Act at the
time lacked a felony provision, federal
law provided the offense of mail fraud
as a basis for sending Kaser to prison.
Not only was there cooperation between
the EPA and the State's Department of
Ecology, but an attorney with the State's
Office of Attorney General was made a
Special Assistant U.S. Attorney to assist
in the federal prosecution.
• Criminal enforcement can be a
vehicle for achieving broader
environmental goals. Not only was
Nabisco required to establish an
environmental trust fund, but a
condition of Nabisco's three year
probation is that it not violate any
environmental laws. EPA's Region 10
has coordinated a program to monitor
the environmental compliance of all
Nabisco's operations nationwide. The
enforcement action involving the
Sumner facility has triggered a "domino
effect" with broad implications for the
corporation's future behavior. A great
deal will be at stake for the corporation
in the event of future violations.
Since the federal court convictions,
Nabisco has sold the Fleischmann's
yeast facility. Deprived of its illegal
White River "sewer", the plant remains
out of compliance. The state has given
the plant until May 1987 to reach
compliance. The city, of course, wants
the plant and its jobs to stay in Sumner,
but Sumner's sewage treatment facility
is already exceeding water quality
standards because of the increased load
from the yeast manufacturing wastes.
The city cannot attract new industry
because of this overload. If the wastes
had not been illegally dumped into the
river, the city would have been forced
to confront the need to upgrade its
treatment plant long ago; now it is
paying an economic price in lost
economic development because of the
violations at the Nabisco plant.
This case demonstrates the
nationwide potential for developing an
environmental "no illegal dumping"
ethic to replace the attitude of many
corporate polluters who h.ive
complacently seen fines as just another
cost of doing business. The jail sentence
for the plant manager in Sumner proves
that environmental violations are
increasingly being treated as real
crimes. Q
MARCH 1987
-------
c
Penalties
on the Rise
by Carol Hudson Jones
The use of penalties has ;i long history
at EPA, but their importance to the
effective enforcement of our programs
has increased greatly in the last few
years. Since 1974, when EPA imposed
its first penalty, cash penalties totalling
approximately $70 million have been
imposed during the course of over 2,700
civil and administrative cases. However,
a large proportion of those penalties
were imposed in recent years.
Congress granted EPA the authority to
impose or pursue enforcement penalties
in all of its major programs, and these
penalties are an important feature of our
continuing effort to discourage violation
of the nation's environmental laws and
regulations. While EPA implements
some programs directly, many programs
are implemented by state agencies,
which have various penalty authorities
under state statutes. EPA works with
state programs to use penalties most
effectively, and the Agency has recently
issued a policy on overseeing and
strengthening penalties imposed by
states.
Penalties are a critical element in
EPA's three-pronged approach to
deterring violations. The first element
consists of monitoring and inspecting a
broad range of facilities to create a
strong likelihood that violations will be
detected, in much the same way that the
IRS routinely audits selected tax returns
and thus creates an incentive for
everyone to report truthfully. Secondly.
where violations are found, EPA and
states quickly notify the violator and if
l/oni;s is (j Progmm AmiJyst in the-
Compliance I'olirv and Planning
/inuirli in h'PA's ()tfii:i: of h'nlon.rniciii
Compliance Monitoring.J
necessary take enforcement action to
ensure that violations are corrected. In
the third element of the approach,
violators are penalized through dollar
penalties or other sanctions are
imposed—e.g. an operating permit may
be withdrawn. All of these elements are
vital in the Agency's struggle to reduce
violations.
In fiscal year 1985, EPA clearly
signalled its increased commitment to
the use of penalties both to punish
violators and to act as a strong future
deterrent. More than 30 percent of all of
EPA's penalties were imposed in fiscal
year 1985 alone, yielding some $21
million. These proceeds were four times
greater than those obtained the previous
year. A new penalty policy issued in
1984 was the fundamental force behind
the Agency's increased enforcement
activity, coalescing into one coherent
statement a number of enforcement
ideas. As a result of the use of this new
policy and others directly derived from
it, a large increase was achieved in the
number of penalties as well as in the
size of individual penalties.
The penalty policy is based on the
concept that a penalty should be at least
as large as any economic advantage
gained by noncompliance. For example,
let us say that a manufacturing plant is
required to install equipment in a
smokestack to meet emissions
standards at a cost of $315,000 for
installation and $15,750 for yearly
operating costs. If the company waits for
14 months before installing the
equipment, it can use those funds for
other purposes (including simply
placing the money in a bank) and reap a
EPA JOURNAL
-------
financial benefit. In this case, the
financial gain to the company as a result
of waiting to make the installation
would be over $36,000. EPA's new
penalty policy is that the penalty should
therefore be at least that amount.
Nullifying any advantage gained by
violating environmental laws and
regulations also ensures that other
companies which compete with the
violator are not placed at a financial
disadvantage by complying with EPA's
requirements.
In addition to eliminating any
economic benefit gained by
noncompliance, the policy holds that
the size of the penalty should reflect the
severity of the violations and any
environmental damage caused. This is
termed the "gravity component".
The largest cash penalty imposed by
EPA was over $6 million in a case
decided by a judge in 1985. In this case,
brought for violations of sulphur
dioxide emission limits and permit
requirements under the Clean Air Act,
the economic benefit portion of the
penalty was roughly $3 million and the
gravity component was about $3
million.
Although a dramatic increase in the
number of penalties occurred in 1985,
the size of penalties has increased
steadily during EPA's entire history.
The average penalty in the Stationary
Source Air Program has increased 700
percent since 1979 to a figure of
$253,000 in 1985. Under the Clean
Water Act, the average was $103,700, an
increase of over 600 percent. Significant
increases also took place in most of the
Agency's other programs.
EPA has discretion in using its
penalty authorities, but usually pursues
penalties in cases which involve serious
environmental damage or danger, or a
person or facility with a long history of
violations. In 82 percent of EPA's
enforcement cases (based on present
data through fiscal year 1985), a penalty
was imposed.
Although this high percentage of
penalty use is significant, EPA does not
see the imposition of penalties as a
"business tax," nor as a cost of doing
business. EPA used penalties to create
an atmosphere in which facilities know
that everyone must comply with the
regulations and that no one will gain
financially by violating environmental
requirements. Ultimately, if EPA is
successful in deterring violators, the
need for penalties will decrease. More
realistically, however, we anticipate a
continuing need to spread the message
in order to reduce violations. Creating
this level of awareness and deterrence is
becoming increasingly important as
many of EPA's programs are expanding,
and more and more facilities are
included under our regulations.
Because creating an atmosphere of
deterrence is important, EPA's focus is
not solely on cash penalties. The states
and EPA may use other effective
"sanctions" to impose a financial
burden on the violator, such as halting
operation of the facility, thereby
depriving the violator of his ability to
conduct business.
We supplement our use of financial
penalties with other approaches
because we know that other factors
besides cold, hard, economic realities
can motivate or deter individuals and
groups. As an example, settlements of
enforcement cases may require that the
violator publicize in trade or public
media the fact that his company
violated the law and was caught, and
advise the reader not to make the same
mistake. By publicizing cases in this
way, EPA creates an expectation that
you or your company might be required
to reveal to the public the facts
surrounding your violation of the law.
This type of disincentive may be very
effective in certain circumstances and
can strengthen the impact of a cash
penalty.
As can be seen, EPA has taken clear
steps in the past few years to strengthen
its use of a variety of penalties. We now
have a well articulated and well
thought-out policy which is making a
considerable difference in the size and
numbers of penalties we obtain.
EPA shares much of the enforcement
responsibility with the states. Therefore,
we are encouraging states to improve
their use of penalties while at the same
time strengthening our own program.
EPA recently issued a policy on
overseeing state penalties which focuses
on how to support and strengthen the
states' efforts. Penalties are an important
tool in both federal and state programs
and EPA will continue to promote and
coordinate this type of action.
We will continue to refine our
approaches to deterring violations in the
future, to better achieve the
environmental goals established by the
statutes. The recent changes in the use
of our penalty authorities should send a
clear signal that EPA is committed to
deterring violation of our environmental
requirements. Q
MARCH 1987
-------
Tools to
Deter Violators
by Terrell E. Hunt
Enforcement is an essential part of the
implementation of each
environmental program. II is the means
by which actual violations arc corrected
and potential violators learn tin;
consequences of careless or intentional
misconduct. Over the last three years.
we've stepped up the pace of state; and
federal inspections, expanded the
number of civil and criminal cases
brought, and increased the severity of
penalties sought and imposed. This
aggressive stance, is alrendv paving (iff;
last year, we developed a record :jfl(i
new judicial cases, a 20 percent increase
over the record high of the previous
year.
In the face of this expanding
workload, EPA is searching for new
ways to 1) help well-meaning firms
prevent violations before they occur, 2)
streamline our casework and reduce the
"transactions costs" of individual
enforcement actions, and li) maximize
the deterrent impact of cases brought
against serious violators.
Consider the hypothetical XYZ
Corporation. XYZ is a large chemical
manufacturing operation with plants in
eight states. EPA and state inspectors
have visited these plants seven times in
the last 10 years. Each inspection has
revealed serious violations resulting in
enforcement actions, one of which has
been in litigation for over three years.
Inspection of the California facility
detected serious chemical
contamination around a discharge
lagoon, with strong evidence of
ground-water contamination. The Texas
facility was found to have continuing
major water violations and some serious
PCI? cleanup problems, and the Boston
plant had not kept up with its
(Hunt is Director of the Office of
En/orcemenl Policy in BPA's Office of
Enforcement
-------
according to detailed procedures
established and overseen by EPA, and to
establish a company-wide management
system to assure future compliance. The
firm would also be required to correct
all violations uncovered by the audits,
maintain specified records, submit audit
reports, and pay pre-negotiated,
"stipulated" penalties for each violation
identified by the audit.
EPA would consider such a
settlement only if it and the affected
state agencies and regional offices were
confident that XYZ was firmly
committed to improving its overall
compliance posture. EPA headquarters
would serve as neutral "broker" among
the regions and states in building
consensus among all parties on the
terms and conditions of such a
settlement.
Streamlining
Enforcement Casework
Case Initiatives
EPA's usual enforcement approach is for
each state or EPA regional office to take
action independently against violations
occurring within its jurisdiction. In
XYZ's case, the states of Texas,
California, and Massachusetts and EPA
Regions 6, 9, and 1 may all seek
immediate correction of the violations
detected, as well as civil, and punitive
penalties sufficient to remove the
economic benefits of non-compliance.
But because of differing state and
regional priorities and varying state
requirements, the timing, the corrective
actions and the penalties sought in the
various cases may not necessarily be
consistent. The direct deterrent impact
of these actions may vary.
fn contrast, the case "initiatives"
approach seeks to expand the deterrent
impact of individual cases by grouping
similar cases together. In an initiative,
EPA simultaneously files a number of
cases involving the same law and
regulation, reflecting a special
emphasis in a selected program area. By
"batching" the cases in this way, EPA
can standardize the litigation
documents, review cases in batches, and
commit specialized and intensive staff
effort to one area. Each initiative also is
accompanied by a well-designed
outreach effort to publicize the
regulatory message among both the
general public and specific audiences
within the regulated community. Not
only do initiatives offer an opportunity
to use enforcement resources more
efficiently, but because of the broad
coverage they are afforded in the media,
they also serve the goal of deterring and
preventing future violations.
In the past two years, EPA has used
the initiatives approach to target
violations involving pretroatment,
municipal discharges, premanufacture
notification, and asbestos demolition/
renovation. Firms are included in
initiatives if they serve as good
examples of the type of conduct EPA
seeks to deter. The stronger the case
against them and the poorer their
general compliance history, the more
likely they will be included. Its
violation of premanufacture notification
and wastewater discharge requirements
would have made XYZ a candidate for
both the premanufacture and
pretreatment initiatives.
Alternative Dispute
Resolution (ADR) Techniques
Another approach for streamlining
casework is the use of alternative
dispute resolution (ADR) techniques to
resolve enforcement actions. ADR uses
neutral third parties to facilitate
communications between parties,
explore possible solutions, determine
factual issues, and perhaps resolve all or
part of a case. It is particularly valuable
in cases that are stalled, that are
technically complex, or that involve
routine infractions, or multiple parties.
ADR techniques include arbitration,
mediation, mini-trials, and fact-finding.
EPA envisions using ADR both before
an enforcement action is filed, and ciftcr
litigation has begun to focus the parties
on their respective interests and keep
the adversarial process from inhibiting
resolution of cases. ADR promises to
reduce the "transactions costs" of
environment litigation to both
government and industry in appropriate
cases.
ADR could help to resolve some
aspects of XYZ's enforci'inent problems.
In the case under litigation for three
years, for example, ADR could break the
impasse by using a neutral mediator.
Cases stall for many reasons, including
personality conflicts between counsel,
poor communication, inflexibility,
inability to design remedies, public
policy issues, or political
considerations, particularly issues
involving local political entities. An
experienced neutral party can provide the
impetus to resolve these problems.
XYZ also faces problems in designing
a PCB cleanup remedy and responding
to potential ground-water
contamination. Placing the technically
complex issues of cleanup remedies
before an ADR neutral who possesses
technical expertise avoids the risk that a
judge with no technical background
MARCH 1987
11
-------
may order inappropriate, inadequate, or
unnecessary actions.
At the other extreme, minor or routine
violations, such as XYZ's water permit
violations, may lie good candidates for
ADR. If routine cases can be resolved
without costly formal litigation, both
EPA and the company benefit.
Finally, XYZ Corporation has been
named as one of many potentially
responsible parties in a new Superfund
case. A large number of parties in a case
armies for the use of a neutral case
manager to organize multiple
defendants or plaintiffs, facilitate
agreement on litigation strategies and
schedules, and identify questions for
resolution,
ADR is a means of resolving disputes
more efficiently. EFA's consideration of
ADR does not imply that the Agency
would settle for less favorable terms
than it would accept under
conventional litigation. Use of ADR will
always be accompanied by aggressive
administrative, civil, and criminal
enforcement efforts. Furthermore, EPA
will always litigate cases that pose
precendential questions of law or
policy.
Field Citations
As a potential response to relatively
minor violations, such as XYZ's
record-keeping lapses, EPA is exploring
the use of field citations. Field citations
are "environmental traffic tickets,"
which could be issued by inspectors
during inspections. If, within a specified
period, companies paid the penalty and
submitted proof of corrective action, no
further litigation would follow. Those
companies that wished to challenge the
citation or penalty could take advantage
of the normal administrative or civil
litigation process.
Field citations would be applicable to
the minor violations found at XYZ's
Boston facility, but would not be
appropriate to any of its other, more
significant compliance problems.
Maximizing Deterrent
Impact
Criminal Enforcement
Over the last three years, EPA has
established a separate criminal
enforcement program, involving trained
law enforcement investigators and
specialized criminal enforcement
attorneys. This criminal enforcement
capability enhances EPA's overall
enforcement effort in four ways. It adds
credibility to administrative and civil
court actions by demonstrating the
Agency's willingness and ability to
bring the most serious remedies to bear
against those who intentionally violate
environmental laws. It enhances the
integrity of the Agency's
standard-setting processes by providing
a powerful tool against those who may
submit false reports or fraudulent data.
With increasing frequency, it is used to
punish with incarceration those
convicted of serious environmental
crimes. Finally, the stigma of criminal
prosecution and the threat of individual
liability and risk of imprisonment for
corporate directors, presidents, and vice
presidents serve as a strong deterrent
against future violations. Last year
charges were filed against 94
defendants. This compares with 40
defendants the previous year and 123
defendants in all prior years combined.
Also last year federal judges imposed
penalties of $19 million against those
convicted of environmental crimes, and
imposed jail terms of over 124 years, of
which over 31 years of incarceration will
be served.
Contractor Listing
The Clean Water and Clean Air Acts
empower EPA to bar facilities with
continuing or recurring violations from
obtaining future federal contracts,
grants, and loans. Such contractor
listing ensures that the federal
procurement process does not reward
facilities whose production costs may be
lower because they fail to comply with
environmental laws.
EPA has recently simplified its listing
procedures, making listing a more
effective and useful remedy. Listing is
an automatic consequence of a criminal
conviction under the Clean Air or Clean
Water Acts, and may be a discretionary
result of civil violations of those laws.
EPA's new guidelines encourage the
states and regional offices to
recommend the listing of any facility
with continuing serious Clean Water or
Clean Air Act violations, even while the
formal underlying enforcement action is
still pending. A public stigma attaches
to being included on EPA's "List of
Violating Facilities," and provides a
strong incentive for the facility to
correct its violations and resolve the
underlying enforcement action.
Public Outreach and
Communications
One further element of our program to
increase the deterrent impact of
individual enforcement actions is our
expanded use of public outreach and
publicity. To help prevent violations,
we recognize that EPA has a duty to tell
the regulated community what
standards apply to them and what
actions they must take to comply with
those standards. To help deter
violations, on the other hand, we will
seek to disseminate broadly to the
general public and to specialized
segments of the regulated community
information about serious misconduct
detected and punished. Such conscious
and targeted outreach efforts are an
essential component of our program to
make the public aware that EPA (and
the states) are serious about
enforcement, and to make the regulated
community aware that the consequences
of getting caught can be severe and
unpleasant, n
«
EPA JOURNAL
-------
Enforcement in the Year 2000
by Richard H. Mays and Julie C. Becker
c.e •
Heady lor satellite relay ol
Miamfnnii"
-------
The technology and innovation
of the coming decade can only
make enforcement more
efficient and effective.
repeatedly been subjected to accidental
rele.ises of TOX emissions. Jti one
instance;, TOX-contaminated gases from
a Megacorp plant caused dozens of
workers and people nearby to suffer
severe illness; damage; to plant and
animal lift; was also extensive.
Megacorp's environmental practices,
including its handling of hazardous
wastes, have for some time been under
investigation by EPA, the Department of
Justice, and the FBI. Although two
major criminal investigations were
initiated, no indictments resulted.
May 20, 2000
After the selection of Megacorp as the
initial target for the "TOX Initiative",
KPA enforcement staff direct
ENFOMAIN to rank the 30 Megacorp
manufacturing facilities in order ol
priority for upcoming inspections,giving
highest priority to those posing the
largest potential risk to the public. The
computer then schedules inspections for
each of these facilities, taking into
consideration available inspection
resources and oilier Agency priorities.
May 21-24, 2000
Regional inspectors, assisted by experts
from the National Enforcement
Investigations Center (NE1C) in Denver,
conduct multi-media inspections at each
of the 30 targeted Megacorp facilities.
Using document readers and portable;
computers with sampling and analysis
capability, the inspectors are able to
instantaneously record corporate
documents and produce; sampling
results.
May 25, 2000
After four days of onsite inspections,
the inspectors return to the EPA
regional office. Information from the
portable computers is fed into
ENFOMAIN, which is programmed to
determine where violations have
occurred, to rank the violations
according to their significance, and to
calculate the appropriate penalty for
each violation according to the Agency's
penalty policies.
For all non-significant violations
(those not potentially endangering
human health or the environment)
ENFOMAIN issues a "traffic ticket"
citation to Megacorp assessing a penalty
of $500 per violation per day. The
company can either challenge the
citation or settle by paying all of the
penalties within 30 days.
May 30, 2000
For the more serious violations,
ENFOMAIN prepares an administrative
order for each of the Megacorp facilities
incorporating each of those violations
and assessing the maximum statutory
penalty for each violation.
June 1-5, 2000
After reviewing the administrative
orders, EPA Headquarters and regional
enforcement officials agree that it would
be more efficient and effective to
combine all of the violations into a
single administrative order rather than
conduct separate proceedings for each
facility. Headquarters will coordinate
the case, with regional offices
addressing facility-specific issues. The
violations are combined into a single
administrative order, and the order is
issued to Megacorp headquarters in
Newark.
ENFOMAIN also helps the staff
develop the range of penalties EPA will
consider against Megacorp. Penalties are
not arbitrary figures; they are based on
several factors, including the firm's
ability to pay, the severity of its
violations, and its willingness to go
beyond minimum statutory
requirements in correcting these
violations. For Megacorp, the staff
decides on penalties ranging from $20
million to 850 million, depending on
how the company plans to remedy its
violations. Possible remedial actions
include using BLOBs (Biologically
Liberated Organo-Beasties), genetically
engineered microorganisms that
consume TOX in soil and ground water,
and installing ECHH systems
(Electro-Catalytic Hyper-Heaters) to
control air emissions.
In addition to penalties and remedial
actions, the staff will also require
Megacorp to conduct risk assessments
and environmental compliance and
management audits at all of its TOX
facilities.
June 20, 2000
Megacorp electronically transfers
$150,000 to EPA for the minor citations,
and because even in the year 2000.
formal litigation is enormously
expensive and time-consuming, EPA
and Megacorp agree to negotiate a
settlement for the remaining major
violations.
July 15, 2000
Negotiations begin via teleconference,
with a neutral third party mediating.
The final settlement is a consent order
committing Megacorp to pay a penalty
of $30 million and to use BLOB and
14
EPA JOURNAL
-------
ECHH technologies. In addition, (he
company agrees to have an EPA-
approved audit firm perform
multi-facility, corporate-wide audits of
its environmental management and
compliance practices, and to pay
pre-agreed penalties for certain minor
violations found by the auditor. The
Agency reserves its right to seek
appropriate relief from Megacorp for
more serious violations uncovered by
the audit firm.
The consent order also includes
provisions designed to prevent future
accidental TOX emissions. In addition
to conducting compliance and
management audits, Megacorp agrees to
risk assessments aimed at identifying
those areas of the company's facilities
where industrial accidents are most
likely to occur, and to take preventive
measures as recommended by the
auditor. Further, Megacorp agrees to
provide training equipment, as
recommended by the audit firm, to
reduce the risk of such accidents.
Finally, Megacorp agrees to
participate in the Agency's new
computerized self-reporting system.
This system involves the installation of
electronic sensors at emission points in
Megacorp's facilities which
continuously relay information on those
emissions to ENFOMAIN for analysis
and comparisons to emission
limitations. This will provide EPA with
a monthly compliance profile of all 30
Megacorp manufacturing facilities,
automatically identifying violations and
tracking compliance, and allowing EPA
to issue citations and administrative
orders more quickly.
That's the future. But the year 2000 is
not as far off as it seems. The fact is that
EPA already is implementing or
planning a number of these futuristic
enforcement tools.
Although a central enforcement
computer system and portable
computers to aid inspectors are still
dreams of the future, today the NEIC
feeds corporate compliance information
gathered from the various program
offices' data bases, the regions, states,
and many other sources, into a
mini-computer which enables EPA lo
target facilities for inspections. When
EPA wishes to emphasize an
enforcement priority, the Office of
Enforcement and Compliance
Monitoring (OECM) can determine
through the NEIC computer which
companies and facilities are in the
regulated universe, and, through criteria
like those used for the selection of
Megacorp as the target for the "TOX
Initiative," can determine which are
most likely to be in violation.
The "traffic ticket" approach to minor
violations is now under development in
OECM, and EPA is currently requiring
companies to perform multi-media
environmental audits as part of the
remedy outlined in certain settlement
agreements. Requiring a company to
perform risk assessments to prevent
accidental emissions (rather than
addressing them after the fact) nun1 be
the next logical step toward reducing
environmental risks.
When one considers the
developments in technology which have
occurred in the past ten years, and
which will surely continue, the vision
which we have of enforcement in the
next decade is not unreasonable. EPA's
ability to achieve that vision is limited
only by our willingness to accept new
technology and to attempt innovative
approaches to enforcement, lit the end,
the technology and innovation of the
coming decade can only make
enforcement more efficient and effective
and, as a result, raise compliance and
environmental consciousness
throughout tin; entire regulated
community. ^
Transmit now.
MARCH 1987
35
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The Justice Department:
When the Polluter Meets the Judge
by F. Henry Habicht II
The Department of Justice, through
the Land and Natural Resources
Division, represents the United States,
its agencies, and officials in matters
relating to environmental quality, public
lands and natural resources. Indian
lands anil native claims, and wildlife
and fishery resources. The Division's
most frequent clients include the
Departments of Agriculture, Commerce,
Defense, Energy, Interior, and
Transportation, as well as the
Environmental Protection Agency.
'I'lii! Division handles environmental
enforcement litigation under a wide
range of statutes designed to protect the
public health and the environment from
pollution of our air, soil, surface water,
drinking water, and ground water. Most
enforcement litigation arises out ot
statutes designed to address cleanup of
hazardous waste .sites (the
lilnbir/il is Ilir Assismnl Attorney
(,Vnrmi iiir (lie f,| tin.' I '.S.
I )c|)(irli)i('nl ol Justin1.)
Comprehensive Environmental
Response, Compensation, and Liability
Act of I960, as amended by the
Superfund Amendments and
Reauthorization Act of 1980), the
ongoing disposal of hazardous wastes
(the Resource Conservation and
Recovery Act), the pollution of our
waters and wetlands (the Clean Water
Act and the Rivers and Harbors Act),
the integrity of our drinking water (the
Safe Drinking Water Act), and the
quality of our air (the Clean Air Act).
These statutes are enormously complex
and regularly present challenging
opportunities for the Division to address
the proper interpretation of the law to
novel factual circumstances and to
complex, difficult, technical matters.
The Division is the principal enforcer
of the federal environmental laws, often
representing our leading client, the
Environmental Protection Agency.
Enforcement cases are referred to the
Division from EPA regions or
headquarters or from one of the
Division's other client agencies.
Generally, with respect to EPA cases,
the Division files the action within fit)
days after the referral, unless additional
factual information is needed. After
receiving a litigation report, the Division
conducts a thorough evaluation of the
referral, ensures that technical and other
litigation support is available from
EPA, and drafts the necessary court
papers and pleadings.
During the fiscal year ending
September 30, 1986, the Division
received more than 400 enforcement
case referrals, in addition to 450 matters
pending at the beginning of the fiscal
year. Also during fiscal year 1986, we
concluded with opposing parties over
175 settlements that were entered with
the court as consent judgments. The
Division also tried and received
favorable court judgment in over 30
district court cases. The rest of the
matters considered and referred during
fiscal year 1986 remain pending.
The Division has also successfully
prosecuted more people and
corporations for criminal violations of
the environmental laws than ever
before, obtaining over 257 guilty pleas
and convictions since 1981 that resulted
in over $3 million in fines and almost
150 years in jail sentences. We have
filed more civil environmental
enforcement suits than ever
before—over 1,000 since 1981—and in
our hazardous waste cases alone, we
have obtained court-ordered cleanups
worth nearly $400 million.
During the last year we have had
outstanding success in various
enforcement litigations. Under the Clean
Air Act, we successfully tried a major
penalty action against the St. Joe
Minerals Corporation. Following a
lengthy trial, the company agreed to a
finding of liability and a $1.2 million
penalty for violating sulfur dioxide
emission rules. The Division was also
successful in concluding several
difficult enforcement cases aimed at
curbing volatile organic; compound
emissions, which contribute to the
nation's ozone problem. Among these
was an action against Smurfit Diamond
Packaging, which resulted in injunctive
relief valued at over $800,000 and a
$120,000 penalty.
Under the Clean Water Act, the
Division pursued several cases against
municipal violators and resolved a
major action against the City of Los
Angeles. In that settlement, the city
agreed to undertake an important
remedial program to eliminate discharge
into the Pacific Ocean and Santa
Monica Bay. Moreover, the city agreed
to pay a $625,000 civil penalty. The
Division also resolved enforcement
actions against several major industrial
violators in 1986. In U.S. v, Plu.'Jp.s
Dodge, for example, the company agreed
to install an $8 million run-off control
system to abate unpermitted copper
EPA JOURNAL
-------
mining run-off and to pay a $1 million
penalty. Litigation was also successfully
concluded in a number of very complex
Superfund cases. In U.S. v. Reiliy Tar,
the defendants agreed to implement a
$50 million remedy at a site just outside
St. Louis Park, MN. Similarly, in
U.S. v. Western Processors, the
defendants agreed to implement a
remedy valued at over $40 million at a
site near Seattle, WA.
Despite the Division's unique success
in pursuing environmental enforcement
actions, these actions are extremely
difficult and time-consuming to
prosecute. U.S. v. Kaiser Steel
Corporation is a perfect illustration. In
this action under the Clean Air Act,
EPA and the Department of Justice had
three goals: to force Kaiser to stop
operating four blast-furnace casthouses
in violation of the law; to require Kaiser
to undertake a plan to bring these blast-
furnace casthouses swiftly into
compliance with the Clean Air Act; and
to assess substantial civil penalties for
violations of the law.
In many ways this was a relatively
straightforward enforcement action,
with well-documented, clear violations
involving only one defendant. Yet this
"simple" action required over three
months' full-time preparation for a
highly experienced Lands Division
attorney. During trial, the U.S. was
represented by a local Assistant U.S.
Attorney, and EPA enforcement counsel,
and two Washington-based Lands
Division attorneys—all of whom put
weeks of considerable effort into lengthy
negotiations, careful witness
preparation, legal research, and drafting
of numerous legal documents. Weeks of
attorney time were spent interviewing
the various potential witnesses,
especially the expert witnesses. This
activity is commonly known as the
taking of depositions. The defendant
took a deposition of one of our experts
during more than three full days; the
government also spent about three days
taking the deposition of one of the
defendant's expert witnesses. The trial
lasted nearly two weeks. The United
States had the burden of proving its
case and presented 11 witnesses—one
technical official from the state to show
evidence of past noncompliance; six
EPA investigators who observed the
violations;* two state experts who
testified on the Clean Air Act National
Ambient Air Quality Standards to
demonstrate to the Court the
seriousness of the violations; and
two employees of the defendant who
admitted that the standard had
been violated.
In total, the United States presented
over 286 exhibits containing such
information as plant data, emissions
data, corporate financial data, and other
technical and scientific information.
Kaiser entered into evidence over 35
exhibits. There were thousands of pages
of exhibits alone. The trial transcript, a
verbatim record of everything that was
said during the trial, contained over
1,000 pages. At the conclusion of the
trial, the important legal papers such as
the pleadings, the exhibits, the trial
transcript, and the Court's decision
completely filled a standard file cabinet.
In the Kaiser SieeJ case, as in most of
our enforcement litigation, the Division
prevailed. The Judge assessed the
maximum penalty: $825,000 plus costs
and interest.
RCRA and CERCLA litigation are
typically even more complex. The
number of defendants, number of legal
and technical issues presented, amount
of monies sought, and the length of time
required to implement the remedies all
significantly complicate RCRA and
CERCLA litigation. The Division's
efforts on these cases in negotiation,
witness preparation, the taking of
depositions, legal research, the drafting
of various legal documents, and the
actual trial are, consequently, also
greatly expanded.
Environmental enforcement is a
complicated process that involves many
challenging legal and technical issues. A
number of important variables
contribute to our unusual record of
success. Some of the most important are
the high quality and professionalism of
our Division's attorneys, as well as the
EPA attorneys; excellent referrals from
our client agencies, especially EPA,
containing well-documented,
well-researched cases of clear violations
of the nation's environmental laws; the
high priority we place on cooperation
with the states; and also the strong
technical support provided by EPA
during the litigation process. Only
through these close cooperative working
relationships with our client agencies
have we been able to employ (he courts
to drive home to polluters the great cost
of harming the environment, o
"The vJoJnlions documented were o/lhi; visible
emissions standard of the State fmp/emcnlufjon
Plon (SIP). The inspectors hod observed 45
viola! ions of (he SIP.
MARCH 1987
17
-------
EPA's Regional Offices:
A Case of Being on the Front Line
by Victor J. Janosik
EPA's Of/ice of Enforcement and
Compliance Monitoring develops
en/orcemenJ policy, coordinates
complex or precedent-setting cases, and
generally tracks compliance ivilh
environmental /aurs nationally, fi'.s the
.s!at<;s rnitl regional offices, hoivever,
l/iat provide (he first-line defense
against violators. In fiscal year 1986,
the regions look over 2.KOO
adminisfrulive actions on (heir tnvn,
ami originated a record :ittl> judicial
cases thai were referred either to EPA
headquarters or to tin; Department of
Justice.
Tiiis high level of enforcemeni action
resulted from strong cooperation
bedveen (he sidles, (he EPA regional
offices, anrJ headquarters.
7'he foJIoiving rirlicJe from EPA's
/{eg/on ,'i illustrates tin; environmental
n;sijlts that come (mm .slate
-------
removal activities. By its quick
response, Kerr Glass made the
community considerably safer and also
saved $71,000 of Superfund money for
use at other sites.
The Kerr Glass Manufacturing
Corporation was an exceptionally good
citizen in this case, but the situation
itself was not atypical. A significant
percentage of Superfund sites start out
as backyard collections or small
businesses that just grow out of hand
and are then forgotten. Some, in fact.
are so-called historic sites that go back
30, 40 years or more, leaving persons
whose intent was anything but the
creation of a hazardous waste problem
caught with the potential for major legal
and financial responsibility. Until an
emergency arises, many of these people
are unaware of the dangers inherent in a
situation involving hazardous wastes
and have little or no knowledge of
environmental laws.
A man in rural West Virginia, for
example, inherited land on which his
father had conducted a salvage business.
The business had involved buying and
storing just about anything that could
have a future buyer, including waste oil,
industrial paints, herbicides, pesticides.
solvents, and other chemical mixtures.
When the owner died, his heir had no
interest in the business and the entire
operation was simply abandoned,
corroding containers and all.
Thirteen years later, however, two
local residents were overcome by fumes
while hiking across the property and
had to be hospitalized. When the West
Virginia Department of Natural
Resources (DNR) inspected tin: site, they
found hundreds of drums of waste
The Kerr (Joss Manufacturing
(,'orporutioJi sored Super/und $71.000
by volunteering to hire, u roiilmrlor In
remove leaking barrels und other dr/in's
from this site in northeastern
Pennsylvania.
MARCH 1987
-------
The whole process of
identifying and settling with
responsible parties can he
hostile and protracted.
involving long-gone owners.
managers, operators, haulers.
and witnesses.
chemicals, large areas of contaminated
soil, and a contaminated pond. Waste
drums were stacked four-high in places
along the road that bordered the site,
and collapsing buildings and abandoned
trailers and other vehicles littered the
landscape. The smell of pesticides and
paints permeated the whole area.
Because of the apparent magnitude of
the problem, DNR asked EPA to conduct
an emergency removal to avert the
threat to public health and the
environment.
While Region 3's On-Scene
Coordinator supervised the cleanup, the
enforcement staff went to find the
responsible parties. A search of deed
and tax records identified the heir as
owner of approximately 25 acres of
contaminated property, including a
heretofore "lost" parcel of land in the
middle that had never been deeded,
assessed, or taxed. When he was
notified by EPA that he might be a
responsible party as defined by the
Superfund law, and thus responsible for
performing or paying for a cleanup, the
owner was bewildered. He had never
heard of Superfund, but wanted to help.
He proposed to bulldu/o all the
containers into a large hole and cover
them with dirt. When EPA told him this
was unacceptable because it would
endanger the neighborhood, further
contaminate the soil, and endanger the
ground water, he suggested an
alternative. Instead of burying the
containers, he would bulldo/.e them into
a mountainous pile and burn them.
EPA's On-Scene Coordinator advised
him that the bonfire idea was also
unacceptable. The wastes would have to
be transported, stored, treated, or
disposed of in an environmentally
sound manner and in accordance with
federal and state laws. Cleanup was
expected to cost at least several hundred
thousand dollars. The owner said he
couldn't contribute more than a few
hundred dollars, and look off for a week
of bass fishing.
Enforcement then tried finding the
manufacturers and distributors of the
various products on site, but for four
months, the investigation kept running
into dead ends. When the extensive
research effort was concluded, EPA
determined that the owner was the only
party who might be considered
potentially liable, and he didn't have
the resources to contribute to a cleanup.
Cost recovery actions were abandoned,
and EPA completed the cleanup at a
cost of more than one million dollars.
Some recoveries are stymied not by
financial inability or the absence of
responsible parties, but by
uncooperativeness. The whole process
of identifying and settling with
responsible parties can be hostile and
protracted, involving long-gone owners,
managers, operators, haulers, and
witnesses. In these situations, EPA uses
chemical analysis, land-title searches,
neighborhood surveys, aerial
photography, and the specialized talents
of the Agency's lexicologists, engineers,
geologists, biologists, accountants,
radiation experts, and attorneys to
uncover and develop the necessary
information.
In another Pennsylvania case, a man
appeared to be associated with a site
that had been abandoned for more than
14 years. Waste ponds had spilled over
and seeped into the ground, and barrels
which contained hazardous substances
had rusted through and finally
exploded, bringing EPA to the scene for
an emergency cleanup. Though
identified by local officials as the owner
of the site, the man disclaimed all
responsibility and refused either to
conduct a cleanup or to pay for it. In
any event, he insisted that he had no
way of paying for a cleanup. Because of
the continuing threat of fire and
explosions, EPA spent more than
$300,000 of Superfund money to
stabilize the site and make it reasonably
safe, with even more costly measures to
clean up soil and water contamination
still a possibility.
Again, enforcement set out to track
the responsible parties, and again, all
roads led back to the initially-identified
man. EPA discovered that the man was
an officer of, and in some cases,
president of, a number of small
corporations. In addition to estimated
personal monetary assets of more than
$400,000, he also owned much of a
small village in northern Pennsylvania
and had extensive land holdings. These
holdings were being taxed at the
uncommercialized property rate, though
some were in fact built on and others
reportedly were used for timber, oil, and
gas production. Most importantly, he
was also the owner, president, and sole
employee of both the corporation that
currently owned the site and the
corporation that had previously
operated there. At the time the wastes
were abandoned, the man had been
vice-president of the land-owning
company and general manager of the
manufacturing operations. Based on
these factors, the Superfund
enforcement staff recommended that
legal actions be taken to recover the
costs of the cleanup.
Even though the searches for persons
or businesses that might be at fault in
hazardous waste pollution incidents do
not always produce the hoped-for
results, million of dollars of Superfund
money are saved every year because
responsible parties are found who
voluntarily or otherwise contribute to
the costs of cleanups. The success rate
for obtaining initial commitments by
individuals and companies who are
liable for hazardous waste problems,
and for recovering money spent on
government-funded cleanups will rise
with the increasing experience and
sophistication of those EPA people who
enforce the provisions of the Superfund
law. D
.•'II
EPA JOURNAL
-------
U'ustes from Heserve Mining, near
Duluth, MX, l/oivcd dou'ii this long
sluice into Lake Superior until
Minnesota iron a nilini; Iliti! established
govenimeiil'.s right to regulate
-------
Local
Government:
The Pollution
Didn't Wash
by Carol Panasewich
United States Attorneys are actively
involved in environmental crime cases.
Further, a number of other states have
enacted environmental criminal laws
and developed criminal enforcement
units.
States also provided important
leadership in the hazardous waste site
cleanup efforts. During the early 1980s,
the federal Superfund program was
slowed for a variety of reasons. Several
states including Minnesota,
Massachusetts, and New Jersey passed
state Superfund laws and moved
aggressively to compel responsible
parties to undertake cleanup work.
In 1983 Minnesota enacted one of the
most comprehensive Superfund laws in
the nation. The Minnesota
Environmental Response and Liability
Act established a strict joint and several
liability standard for cleanup of
hazardous waste sites and for personal
injuries resulting from exposure to
hazardous waste. The state moved
quickly to obtain private party cleanups
under its new law. Within two years of
the passage of the Act, 17 consent
orders had been signed covering
cleanup work valued at over $25
million. The Minnesota Superfund law
and the techniques used to implement
the law have become models for many
state programs.
Another innovation related to
Superfund activities was the passage of
so-called "Superlien" statutes by
Massachusetts and several other states.
These superlien statutes are designed to
allow states to recover costs incurred in
cleaning up a hazardous waste site by
placing a lieu on the site and, under
some statutes, other property owned by
the person responsible; for the
contamination. Tin; liens are called
"superlions" because they are given
priority over the pre-existing liens on
the property involved. Recognizing the
importance of the liens to recovering
Superfund money spent to clean up a
site, Congress included a lien provision
(although one which does not have
priority over pre-existing liens) in the
Superfund Amendments and
Reauthorization Act.
Cleanup responsibility laws such as
New Jersey's Environmental Cleanup
Responsibility Act (ECRA) provide a
final example of state innovation. This
relatively new approach to enforcement
requires private parties to notify the
state prior to the sale of certain
industrial property. In addition, the
owner must submit a written
declaration that there has been no
discharge of hazardous wastes on the
site, or that any discharge has been
cleaned up. In the alternative, the owner
may submit a cleanup plan to the state.
By one estimate, New Jersey's ECRA has
already produced over 250 private party
cleanups.
Banks, mortgage companies, and
individuals involved in the purchase of
industrial property have become
increasingly concerned about the
possibility that the property may be
contaminated by hazardous waste. Laws
such as ECRA provide both the
incentive to clean up property prior to a
sale and some assurance that a
purchaser is buying clean property. As a
result, it is likely that laws of this type
may soon be adopted in several more
states.
The enforcement workloads of states.
already heavy, is likely to further
increase over the next few years. The
application of the hazardous waste rules
to small quantity generators and the vast
new underground storage tank programs
will soon bring tens of thousands of
new regulated entities into the
enforcement arena. Further, El'A
Administrator Lee Thomas has made it
clear that he would like to see the states
handle as much of the Superfund
program as possible. These new
responsibilities will require further
innovations from the states in the years
to come. D
At 5:30 a.m. on March <), 1984,
Richard Eick, operations manager of
the Rockford. II,, Sanitary District,
was awakened by a telephone call that
would put years of uncertainty to rest.
An officer with the Loves Park Police
Department, on night patrol, had
noticed a truck in distress at a local car
wash. Due to a heavy load of 25 drums
in the back, the truck had dropped
through a wooden grating in the floor.
into a cleanout basin below, and it was
hanging askew in the car wash — an
unusual problem at any time of day, but
particularly at 3:00 a.m. Investigating
further, the officer noticed that the
driver was dumping the contents of the
drums into the car wash's drainage
system.
By 6:15 a.m., when Eick arrived on
the scene, several other authorities also
had been called in, including the
Illinois State Police. They arrested the
driver for apparent violation of the
Illinois law which prohibits disposal of
hazardous waste and wastewater into
public sewer systems. This arrest was
the first step in a two year legal process
that would shut down the truck driver's
employer, Alloy Plating Corporation,
after years of illegal activities involving
the disposal of cadmium, cyanide, and
other electroplating wastes. Closing
down Alloy Plating Corporation also
would enable the Rockford Sanitary
District finally to reach and maintain
safe levels of cadmium throughout its
wastewater treatment system.
Since the 1980 RCRA regulations
went into effect, Eick notes, the
Rockford Sanitary District had faced a
persistent and puzzling cadmium
problem. Try as they might, the
Rockford plant managers couldn't
achieve a "cadmium balance" in the
municipal wastewater treatment system.
L.evels of cadmium throughout the
(Pantistnvich in u }\il>li<:
Specialist who IKJS bwn on detail ivilli
the EPA Of/ico of Public A/fairs.)
EPA JOURNAL
-------
system were too high; sludge from the
plant was considered hazardous waste
due to its elevated cadmium content.
Further, periodic monitoring at several
different points in the treatment system
showed that cadmium levels in
downstream, treated waters actually
were higher than those "at the front
door," entering the plant. This led Kick
and his associates to suspect that some
industrial operation on the same sewer
line was bypassing the treatment plant
and discharging cadmium waste directly
downstream.
A series of anonymous telephone calls
and reports of conversations overheard
at bars about town confirmed what Eick
and his colleagues had suspected, based
on their knowledge of the local
industries' effluent discharge and
cadmium compliance records. Alloy
Plating Corporation, an electroplating
job shop, had exceeded cadmium
effluent limits. Word was that Alloy
Plating was dumping its wastewater and
concentrated plating solutions, rather
than hauling them to an off-site
treatment facility as the company was
required to do. In the months preceding
the truck driver's arrest, Eick and his
associates became convinced that A liny
Plating was illegally dumping its
wastewater, but they had no evidence to
prove it. At one point, they installed
television cameras at all the sewer pipe
connection points near the company to
record any illegal connection activities,
but these tries were unsuccessful.
These thwarted attempts to control
Alloy Plating were frustrating but. as
Eick says, "If you give them enough
rope, eventually they'll hang
themselves."—or expose themselves in a
car wash in the middle of the night.
During the criminal trial, the truck
driver for Alloy Plating, who turned
This (ruck, OH-IHH! by the Alloy Plciling
Corporation, dropped through u ivooden
grating ivln'lr its
drums of ivasten'iittT into ti Rockford.
II,, car ivush's dnntuigr system.
state's evidence, admitted that the
company had used the car wash
disposal technique several times. They
also had rented a warehouse and made-
certain modifications so that quantities
of wastewater could be pumped out
through the drainage system. Other
industrial sites also had been employed
to dispose of the company's wastewater,
which contained residues of cyanide,
cadmium, and other heavy metals.
The Alloy Plating court case was
moved out of town in mid-course
because it proved to be such a hot issue.
consuming the attention of the local
media. When the case concluded last
summer, the plant manager was sent to
jail for three years. In Eick's view, this
was an injustice; the manager was
simply, "doing what he had boon told to
do by the owners of the company."
Meanwhile, the owners are free, ami the
company has been charged a $(il!fi.(H)()
fine that may never be collected since
the company has been dissolved.
The Alloy Plating case had the
positive effect, however, of increasing
awareness of hazardous waste disposal
issues and potential water quality
problems among virtually all segments
of the community. "People are paying
closer attention now," says Kick. Before
they pour anything toxic, down a drain,
they tend to check first with local
authorities.
All told, over 1,000 barrels of wastes
were found waiting for disposal at tin-
Alloy Plating facility when it was shut
down. A hazardous waste cleanup
operation was conducted on site,
funded by the new owner. He installed
up-to-date, effective pretreatment
equipment, and is credited with having
"cleaned up the act" at this facility.
Electroplating continues there today, but
so far it does not involve the use of
cadmium. And Eick, happily, is able to
maintain a long-sought-after cadmium
balance at the Rockford Sanitary
District, n
MARCH 1987
-------
Initiatives by EPA's Enforcement Offices
Michael S. Alushin
Associate Enforcement
Counsel for Air En/orcemenl
Richard W. Emory, Jr.
Acling Senior
Enforcement Counsel for
Criminal Enforcement
With many of EPA's major
regulatory progrmns in pluci;
ond operational, the
momentum is shifting from
regulation development to
regulation compliance. 1 Jon-
will the Agency implement
this increased emphasis on
enforcement?
EPA Journal (jsked some
senior Hi'A enforcement
of/idols in (fie Office o|
En/orcemeni nnd Compliance
Monitoring to describe
initiatives underway in their
offices.
No part of the f:nvironnn,'iit
lias ;i greater potential to
affect human health than the
air we breathe. Pollutants in
tin; air present risks that
cannot In: avoided except by
controlling their sources.
( me serious air pollutant is
o/nne in the atmosphere
close to the earth's surface,
for which EPA established
health-based standards in
l'J7!). O/.une is produced
when sunlight reacts with
volatile organic compounds
(VOCs) and nitrogen oxides.
Because as many as 90
million citizens live in areas
where o/.one standards have
not been met, we are
concentrating enforcement on
major VOC sources such as
motor vehicles and
commercial painting,
printing, and coating
operations to support the
Agency's effort to reduce
urban smog.
Another airborne pollutant
and enforcement target is
asbestos dispersed into the
air when old buildings are
demolished. EPA has begun
to prosecute both contractors
and building owners who
undertake demolition
without the necessary
notification and precautions.
Criminal prosecution has
become a very important
option in EPA's enforcement
strategies, and the word has
definitely reached the
regulated community that
prosecution is a good
possibility in many pollution
cases. And because it is a
powerful deterrent to
violations, it should greatly
increase the rate of so-called
"voluntary compliance."
Criminal enforcement is
making the Agency more
effective.
Still, more must be done to
weave the criminal
enforcement option more
tightly into EPA's routine.
Most "tips" of criminal
misconduct now come to
EPA "off the street"—from
disgruntled employees and
other members of the public.
Too few leads come from
Agency employees and files.
To increase the number of
EPA-initiated investigations,
OECM has begun to train
program people to identify
and gather evidence of
criminal misconduct in the
course of their regular duties.
One training exercise, for
example, teaches them how
to spot signs of improper
hazardous waste handling at
different facilities.
Criminal enforcement is
also supported by the
development of state
capabilities in this field, and
EPA is depending more and
more on state help. A
number of states have
arranged for EPA-funded or
conducted training, technical
assistance, and sharing of
criminal intelligence.
For all but those who
commit crimes against the
environment, these steps are
a hopeful sign for the future.
EPA JOURNAL
-------
Edward E. Reich
Associate Enforcement
Counsel for Hazardous U'uste
Enforcement
Frederick F. Stiehl
Associate Enforcement
Counsel for Toxics and
Pesticides Enforcement
A strong enforcement
presence is key to EPA's
administration of the federal
hazardous waste laws,
particularly the Resource
Conservation and Recovery
Act (RCRA). An effective '
enforcement program stresses
EPA's seriousness of purpose
in achieving compliance and
in deterring violations by
others, and has the additional
benefit in judicial cases of
retaining court oversight of
complex cleanup efforts or
corrective actions common in
hazardous waste cases.
EPA's enforcement efforts
under RCRA recently have
focused on illegal operation
of hazardous waste land
disposal facilities. Many land
disposal facilities began
operating under "interim
status;" that is, they had
temporary authorization to
accept hazardous wastes
pending the issuance or
denial of a permit. To ensure
minimum standards of
operation, RCRA requires
owners and operators of
these interim status facilities
to monitor ground water for
contamination due to leaks
and to maintain the financial
capability to pay both for
potential damages and for the
costs of closing down
hazardous waste units.
When RCRA was amended
in 1084, many interim status
facilities were not being
operated in compliance with
these rules. The new
amendments required owners
and operators of these
facilities to apply for final
operating permits and certify
compliance with
ground-water monitoring and
financial responsibility rules
by November 8, 1985.
Facilities that could not
certify compliance lost their
interim status and were
required to stop accepting
hazardous waste and submit
an acceptable closure plan.
Although 995 out of 1,538
interim status facilities lost
their authorizations, all but
64 of these voluntarily ceased
operations.
EPA is taking enforcement
actions against these 64
facilities, with the goal of
obtaining closure, forcing
compliance with
ground-water monitoring
requirements, compelling
corrective action against
contamination by hazardous
wastes, and obtaining
significant civil penalties ten-
violations of interim status
requirements. To date, tin;
Agency has issued
administrative orders against
12 facilities and referred
cases against 39 more to the
Department of Justice for
filing in court. Actions
against the remaining 13 are
still under review.
The year 1986 was one of
significant activity in the
control of toxic substances
and pesticide products,
including actions to obtain
environmental cleanups of
PCBs. to control asbestos in
schools and public buildings.
and to ensure strict
compliance with the
reporting of health risk data
on manufactured chemicals.
In 1987. the Agency's
enforcement efforts regarding
PCBs will include an
expanded drive to ensure
that all emergency response
personnel and local
authorities are informed of
the location of
PCB-containing electrical
transformers. EPA will also
continue to take the lead to
enforce against violations of
permits for the development
of genetically-engineered
organisms, and will
aggressively enforce new
requirements for stricter
control of asbestos materials
in schools and public
buildings.
Another new provision to
protect the public from
chemical substances is
included in the Superfund
Amendment and
Reauthorization Act of I'.IBfi.
Title III of this law requires
that manufacturers and users
of toxic chemicals notify
local authorities ol the
presence, amounts, and
environmental release, of all
toxic: chemicals held or used
by manufacturers or users.
The Agency is currently
developing notification
provisions needed to
aggressively enforce the new
law.
Finally, in our continuing
effort to ensure the integrity
of data on the health and
environmental effects of
chemical substances, the
Agency enforcement efforts
will focus on numerous
reporting requirements of
TSCA and FIFRA,
particularly TSCA
requirements controlling the
manufacture, distribution,
and use of new chemical
substances.
In addition, EPA will use a
variety of innovative
settlement options developed
over the last year to ensure
long-term compliance with
statutory requirements. In
appropriate cases, for
example, settlement
agreements will include
environmental auditing
programs that require
companies to review and
improve methods of
controlling toxic substances.
The Agency has also begun
using neutral third parties to
settle factual disputes in
appropriate cases.
MARCH 1987
25
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Glenn L. Unterberger
Assocjule Knloirement
Counsel for U'dfer
Enforcement
While we are continuing our
efforts in all water-related
cases, a major focus this year
is the drinking water
program. Last year, Congress
significantly strengthened
EPA's authority under tin;
Safe Drinking Water Act to
enforce regulations protecting
public water supplies and
controlling underground
injection wells. In particular,
I In; 1986 amendments gave:
EPA authority to enforce
compliance through
administrative orders rather
than by filing lawsuits,
increased civil penalties to a
maximum of $25,000 per day,
and added imprisonment as a
criminal penalty.
Furthermore, KPA may now
penalize suppliers of
substandard drinking water
even when violations of
federal standards are not
willful.
These are powerful new
tools. Since 1074, EPA has
taken fewer than 50 violators
to court. With our new
administrative authority, we
expect to issue over 350
compliance orders this year
alone. In addition, we have
filed our first suits against
unauthorized injection of
fluids into injection wells.
Now that Congress has acted
to strengthen EPA's hand, we
expect that enforcement will
take giant steps forward.
"SJudgebusters" empJoyed by (lie
National Enforcement Investigations
Center in Denver. CO, ussist criminal
mresli.mi/Di's In1 (ukim; stim/iJcs (rum
drums mvncd fiy
-------
The Siudgebusters
by Thomas Graf
Lakewood, Colorado—From the
dioxin-soaked sands of Times Beach
to the polluted shores of Love Canal,
local officials send for the
Environmental Protection Agency
"sludgebusters" when a hazardous
waste problem threatens to get out of
control.
And the national command [Hist of
the EPA's National Enforcement
Investigations Center is in the Federal
Center in Lakewood. From there, battle
orders fly across Sixth Avenue to an
unlikely group of environmental
crusaders: the technicians in Jim
Hatheway's eight-man compliance
investigation team.
Their workplace—a prefabricated
warehouse and mobile home sitting in
i(imf is i! HTilrr lor "The Denver Post."
c.'-liclc is reprinted Irom l/ie
nber L'H, i!)H(i edition of tlnil
er. /
an auto junkyard on Quail Street—is the
launching pad for some of the largest.
most complex federal environmental
investigations.
The EPA based the technicians and
the enforcement center in Lakewood
becau.se of its central national location.
The EPA investigators are the fearless,
blue-collar Marines of the
environmental movement.
Investigators from the center send
trained physical science, engineering,
and laser technicians to gather technical
evidence that often is the backbone for
criminal investigations into some of the
biggest polluters in modern-day history.
"We were at Times Beach (Mo.) early
on in that investigation," said
Hatheway. a Colorado State University
civil engineering graduate who has been
investigating violations for the EPA
since its inception in 1970. "We were
also at Love Canal and had a hand in
that."
In Niagara Falls, N.Y., they literally
had their gloved hands in Love Canal
septic tanks and sewer systems taking
samples later found to contain
carcinogenic chemicals.
Equipped with the most sophisticated
waste and pollution detectors and
outfitted with oxygen masks and
"moonsuits," Hatheway's team
investigates big-time toxic; polluters
across the country.
"I think we've been involved in one
way or another in every state and
territory in the country," said
Hatheway's boss Bob Harp, director of
the center's operations division.
In Colorado, Hatheway's team has
investigated the wells near the Lowry
Landfill and gathered the evidence
against an Arvada firm—Layton Bros.
Drum Co.—that led to an indictment
last May, charging the company with
illegally transporting hazardous waste.
The company settled out of court with
the EPA last week and paid a $37,000
fine.
The technicians' job leaves no room
for error. One contaminated sample
could ruin a case for federal
prosecutors. So far, however, the EPA
has never lost a case because of
technical error or contaminated
evidence, Hatheway said.
That perfect record is not lost on Jim
Prange, head of the center's criminal
division.
The work of Hatheway's technicians
is "invaluable" to center special agents
"This is a new field of law
enforcement.''
as they complete the traditional law
enforcement end of the investigations,
Prange said.
"This is a new field for law
enforcement," he added. "We depend
on technical evidence in 90 percent of
our investigations."
The EPA team uses tools ranging from
simple trowels to u high-tech laser gun.
the LIDAR—Light "Detection And
Ranging.
Ben Contains, laser technician and
environmentalist, has his hand on the
LIDAR trigger. Costales uses the laser to
check smokestacks suspected of
spewing too much pollution into the air.
The size of the laser light's reflection off
the smoke plume indicates the amount
of pollution involved—the more light
that bounces off the plume, the worse
the pollution,
Costales is glad he rejected .1
high-paying job in the private sector to
work for the EPA.
"1 have always cured about the
environment," Costales said. "The
opportunity to work in this kind of
atmosphere really appealed to me."
The constant travel associated with
their job doesn't bother most of tin;
technicians, who live in the Denver area
when they're not out on their
nationwide beat. Hatheway said he
enjoys the travel, even though the hot
spots his team visits aren't what one
would call tourist attractions.
"I don't think the travel is too bad.
but my family does," said Hatheway.
"It's part of the job—and it's a job we
enjoy doing." a
-------
New Chairman
of Senate
Committee
Lists
Environmental
Goals
by Senator Quentin N. Burdick
As the new chairman of the Senate
Environment and Public Works
Committee in the 100th Congress, I see
an exciting and challenging slate before
us. This Committee has proved itself
enormously productive during the past
two decades, and that hard-working,
bipartisan tradition will continue under
my leadership,
Indeed, inside a one-month period,
our Committee produced the first two
legislative achievements of the 100th
Congress: reauthorization of the Clean
Water Act, and Senate passage of the
Federal-Aid Highway Act.
Unfinished Business
The Clean Water Act provides $18
billion over the next nine years as the
federal contribution toward building
sewage treatment construction facilities
nationwide. I regret this law was
enacted over the President's veto, but it
had the unwavering support of both
chambers of Congress. I believe it also
had the clear support of the American
people. Since the Act was first passed
in 1972, it has been the centerpiece of
federal laws to improve and protect our
water resources.
In addition to reauthorizing the
sewage treatment grant program, the Act
created revolving loan funds in each
state for facility replacement and
upgrading. The new law also makes
critical improvements in current water
quality programs, and takes important
new steps to safeguard our rivers, lakes,
streams, and coastal waters. It includes
programs to address toxic pollutants
fBurdick is (lie neiv (.'(minium of the
Srniilr Environment
-------
Committee Organization
The Committee \vill operate with five
subcommittees, each witli at leu.st some
"environmental" jurisdiction. The
Subcommittee on Environmental
Protection, chaired by Senator George
Mitchell (D-\laine), will control the
Clean Air Act, the Clean Water Act, and
legislation on ocean clumping, oil
pollution, fish and wildlife, and related
subjects.
Senator Max Baucus (D-Montnna) is
chairing the Subcommittee on
Hazardous Wastes and Toxic
Substances. This Subcommittee will
work on the Solid Waste Disposal Act,
the Toxic Substances Control Act. the
Safe Drinking Water Act, the Council on
Environmental Quality, environmental
research and development, and
biotechnology.
A new Subcommittee on Superfuncl
and Environmental Oversight will be
chaired by Senator Frank Lautenberg
(D-New jersey).
The Subcommittee on Nuclear
Regulation adds the Tennessee Valley
Authority to its legislative
responsibilities, and will be chaired by
freshman Senator John Ureaux
(D-Louisiana).
Our "public works" subcommittee
will be Senator Pat Moynihan's (ID-New
York) Subcommittee on Water
Resources, Transportation and
Infrastructure. That Subcommittee, on
which I serve, also plans to work on
comprehensive ground-water legislation.
Since the late 1960s, the Environment
and Public Works Committee has
operated in a bipartisan fashion. This
has been a conscious policy, carefully
nurtured by the chairman ami the
ranking members through the years. I
intend to give my subcommittee
chairmen a great deal of latitude in
going forward with hearings on
important environmental issues. They
are all hardworking, proven legislators,
and their individual skills promise a
great deal of progress on the
environmental issues facing the nation.
Priorities for Action
Much of our legislative focus in 1087
will be on the Clean Air Act. Hearings
in the Subcommittee on Environmental
Protection will extend over several
months, with several key issues to be
resolved. Senator Mitchell and I intend
to have the Committee report legislation
on this problem for Senate passage
during the coming year.
Clean air legislation inevitably draws
controversy. Acid rain will likely be the
pivotal issue in this year's debates on
the subject. Nonetheless, the time for
action has come. The Subcommittee
intends to fully explore options for
controlling acid rain, including those
contained in legislation alreadv
Inside a one-month period, our
Committee produced the first
two legislative achievements
of the 100th Congress.
introduced, and prepare a new
legislative proposal.
The Clean Air Act currently .sets a
deadline of December 31. 1987. for
attaining national air quality standards
for carbon monoxide and ozone,
primarily produced by motor vehicles.
These standards are intended to protect
public health, but it appears that many
communities will be unable to comply
before the deadline. These communities
face severe consequences, including a
ban on construction of new air pollution
sources or a prohibition on the use of
most highway funds, if they fail to meet
the deadline.
The provisions of the Act which set
the deadline and outline the penalties
were enacted in 1977. It is clearly time
for their comprehensive reexamination.
The Subcommittee has already begun
staff investigations of the problem.
Extensive hearings will be held in
March and April to consider the health
consequences of continued exposure to
levels of ozone or carbon monoxide
above the standards; the availability of
control measures; and appropriate
strategies for bringing communities into
compliance. Not every community may
be able to comply in the same
time-frame, but we will seek to
minimize the time any segment of the
population must be exposed to
unhealthy air.
Much of the Committee's energy in
1987 must go to oversight of the major
environmental legislation passed in
recent years. Senator Baucus plans
extensive hearings on the
implementation of the 1984
amendments to the Resource
Conservation and Recovery Act, in
preparation for reauthorization in 1988.
Some of the key provisions, including
the ban on land disposal of most
hazardous wastes and corrective action
requirements for operating facilities,
will first be implemented in 1987. The
Subcommittee will fashion its
reauthorization proposals on what we
learn by examining the law in action.
Implementation of the Superfund
Amendments and Reauthorization Act
of 1986 will also be closely examined
by Senator Lautenberg's Subcommittee.
This Act was the highest priority of the
Committee in the last Congress, and we
intend to follow closely the efforts of
EPA and other federal agencies in
carrying it out, especially at these
crucial early stages. Along with this, the
Committee will be interested in the
quality of enforcement of all the
environmental statutes. No law has
much effect, no matter how well crafted,
without fair and energetic enforcement.
A common theme in all these statutes,
along with the Safe Drinking Water Act
amendments enacted last year, is the
protection of ground water. While there
are programs in place to safeguard
ground water, I believe it is time to
develop comprehensive federal
legislation to protect this precious
resource. Existing programs are
scattered throughout existing laws; 1
believe we need a single framework for
assessing national needs in this area and
the extent of the threat to ground-water
supplies. Major hearings on
ground-water legislation should result in
a proposal later this year.
Another emerging environmental
concern in which I have taken a
personal interest is biotechnology. Our
growing ability to engineer new
organisms and substances is extremely
promising, even beyond tin- agricultural
and pharmaceutical applications that
hold center stage now. Every advance in
science brings with its promise new
concerns. We must be sure that
adequate regulatory authorities and
institutions are in place to allow the
development and use of biotechnology,
while zealously protecting human
health and the environment,
Summary
This will be an exciting year for
environmental legislation. I have
designed the new subcommittee
structure for maximum production and
quick action. I expect lively debate on
the issues, and real progress on pressing
environmental needs. We will go
forward in the bipartisan, workmanlike
spirit that has characterized our
Committee for so long, I expect we will
produce solid legislation in the next two
years, and make further strides in
safeguarding the environment-a
MARCH 1987
-------
The New
Clean Water
Act
by Roy Popkin
The recently enacted "Water Quality
Act of 1987" amends and reauthorizes
the Clean Water Ac.l. The new law
provides for an orderly phaseout of
federally-funded construction grants,
and a transition to state and local
self-sufficiency. It also addresses other
portions of the Clean Water Act and
gives the Environmental Protection
Agency new enforcement tools.
Highlights of the Act follow:
Construction Grants
The Act authorizes $18 billion for Brants
during the phasedown period
(198(i-1994).C)f this amount. $9.(> billion
is for direct grants for wastewater
treatment systems through Fiscal Year
1990, and S8.4 billion through Fiscal
Year 1994 to establish self-sustaining
state revolving loan funds that will
continue to provide needed construction
assistance. The new law, under certain
conditions, also allows funding of
turnkey projects (in which the
contractor designs and builds a plant
is a \\'ritcrl-:
-------
Compliance Dates
The Act extends deadlines for industrial
compliance with effluent limits based
on both Best Available Technology
(BAT) or Best Conventional Technology
(BCT) approaches. Industrial dischargers
must now meet regulatory requirements
not later than three years after such
limits are established, but not later than
March 31, 1989. EPA is required to
promulgate BAT guidelines for
organic chemicals and pesticide
categories.
Penalties for Violations
The EPA Administrator is authorized to
impose administrative civil penalties for
violations of the Act. The Secretary of
the Army is authorized to impose such
penalties for violations of Corps-issued
Section 404 permits. These penalties
may be as high as $10,000 per day and
total as much as $125,000. They do not
require court action. The Act also
increases the civil penalties that may be
imposed by courts to a maximum of
$25,000 per day, bringing the Clean
Water Act into consistency with other
environmental statutes. It also provides
new criminal penalties for known
violations of the CWA and for making
false statements.
Chesapeake Bay Program
The Act authorizes $13 million annually
for the Chesapeake Bay clean-up
program through FY 1990. Of this, SlO
million is for matching grants to Bay
states and $3 million is for federal costs.
Great Lakes Program
The law authorizes $11 million
annually through FY 1991 for the
establishment of a Great Lakes National
Program Office and for the Office's
administrative and research activities.
Fundamentally Different Factors
Variances
The Administrator is authorized to
grant industrial treatment variances
from national effluent guidelines when
a specific facility differs in design from
the types of plants considered when the
guidelines were developed.
Individual Control Strategies tor Toxic
Pollutants
States are required to inform EPA of
navigable waters not meeting quality
standards because of toxic levels. They
must also determine for each segment of
such waters the specific point sources
from which toxics are discharged, and
develop an individual control strategy
for both point and non-point source
pollutants. Within three years after a
strategy is established the standards
must be achieved. If a state fails to act,
EPA must implement the requirements.
Also, states must adopt numeric limits
to control toxic pollutants for which
EPA has developed such criteria.
Clean Lakes
States are required to submit reports on
the condition of their publicly-owned
lakes, including identification of
conditions affecting fish and plant life
and the measures being taken to control
lake pollution.
Management of Non-Point Source
Pollution
The Act establishes a National
Non-Point Source Pollution Program
along with a federal grant program for
its implementation. This program will
deal with the problem of polluted runoff
from farmlands and other diffuse
sources. A sum of $400 million is
authorized for NPS control activities.
National Estuary Program
The new law establishes the National
Estuary Program, authorizing the
Administrator to make grants to state
and interstate water pollution control
agencies to develop implementation
plans to protect estuaries. Funds not to
exceed $12 million for Fiscal Years
1987-1991 arc provided.
Indian Tribes
The new law requires EPA to publish a
regulation specifying how Indian tribes
will be treated as states, or, where this
is infeasible, how the goals of the Act
will be achieved; and to establish a
means for resolving issues that may
arise when states and tribes establish
different water quality standards for the
same body of water. One half of one
percent of construction grant funds an'
set aside for developing waste trc.itincut
management plans and construction of
sewage treatment Works for Indian
tribes. D
MARCH 1987
31
-------
Appointments
EPA Administrator Lee M. Thomas
has announced the reassignment of
nine senior Agency executives as part of
an ongoing management program.
Morgan Kinghorn, Comptroller for the
Agency, has been named the Deputy
Assistant Administrator for
Administration and Resources
Management.
Kinghorn has served in a number of
federal offices, including the
Department of State, the Office of
Management and Budget, and the
Department of Education. He joined
EPA in 1980 as the Director, Budget
Operations Division.
David Ryan, Director of the Budget
Division, has been selected as the
Agency Comptroller.
Ryan joined the Agency in 1978 as a
Program Analyst, also serving as a
Branch Chief and as Acting Director of
the Budget Division before becoming the
Budget Director in 1984. Prior to his
service with EPA, he served in the U.S.
Air Force and with the New York
Division of Budget.
Richard Sanderson, formerly Associate
to the Assistant Administrator for
External Affairs, has been named
Director of the Office of Federal
Activities in the Office of External
Affairs.
Sanderson has served in a number of
federal offices, including the Federal
Emergency Management Agency, the
Department of Housing and Urban
Development, the Executive Office of
the President, and EPA Region 3. He
joined EPA headquarters in 1983 as the
Deputy Assistant Administrator for
External Affairs.
Eileen Claussen, formerly Director of
the Characterization and Assessment
Division in the Office of Solid Waste
and Emergency Response (OSWER), has
been selected as the Director, Office of
Program Development in the Office of
Air and Radiation.
Claussen started with EPA in 1972 as
a Program Analyst in the Office of Solid
Waste. In 1977, she became the Chief of
the Program Management and Support
Services Branch in OSW and
subsequently the Director of the
Management and Information Staff.
Dr. Allen L. Jennings, Director,
Chemicals and Statistical Policy
Division, Office of Policy, Planning, and
Evaluation, has been selected to be the
Director, Benefits and Use Division in
the Office of Pesticide Programs, Office
of Pesticides and Toxic Substances.
Jennings has been with the Agency
since 1971, starting as a Chemist in the
Hazardous Materials Branch of the
Office of Air and Water programs. He
moved to the Office of Planning and
Management in 1977 as an
Environmental Scientist. In 1979 he
became Chief of the Regulatory Analysis
Branch and, in 1980, Deputy Director,
Office of Standards and Regulations.
Allen Abramson has transferred from an
Intergovernmental Personnel Act (IPA)
assignment as the Director of the
Environment in the State of Kansas to
the position of Special Assistant to the
Director of Pesticide Programs in the
Office of Pesticides and Toxic
Substances.
Abramson joined EPA in 1971 as the
Chief of the Wastewater Section in
Region 9. He has served as Director of
External Relations and as Chief of the
California Branch in that regional
office. In 1979 he became Director of
the Water Management Division in
Region 7.
Michael Gruber, formerly Deputy
Director of the Office of Policy,
Planning, and Information, has been
selected to join the Senior Executive
Service (SES) as Director, Office of
Policy, Planning, and Information in the
Office of Solid Waste.
Gruber started with the Agency in
1980 as a Special Assistant to the
Director of Intergovernmental Affairs. In
1981, he became the Deputy Staff
Director of the Toxics Integration Project
in the Office of Planning and
Management, and, in 1982, was
appointed Chief of the Industrial
Integration Branch in the Office of
Policy, Planning and Evaluation.
Jonathan Cannon has been selected as a
new SES appointee for the position of
Deputy General Counsel for Litigation
and Regional Operations.
Cannon has been with the law firm of
Beveridge and Diamond for 11 years,
where he practiced primarily
environmental law and litigation. He
spent two years as an Adjunct Lecturer
at the University of Virginia School of
Law, and a year as law clerk for the U.S
Court of Appeals for the D.C. Circuit.
Susan Lepow has been selected to join
the SES as Associate General Counsel
(Water).
Lepow joined the Agency in 1974 as a
Legal Assistant in the Office of Pesticide
Programs. In 1976, she moved to the
Office of General Counsel and served as
Attorney-Advisor in the Pesticides and
Toxic Substances and Water Divisions.
She received the Administrator's
Unusually Outstanding Award in 1985.
32
EPA JOURNAL
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Koliins inciy soon In; ciliirpini; in tin's
nrst on Maryland's Kustern Shore,
IJnck (,'ovrr: Commercial tulip lirM in
Ml. \'(!niod. UV\. nortli of St'tidlc. Photo
bv Garv (I'riK.'iK!.
-------
United States
Environmental Protection
Agency
Washington DC 20460
l Business
i for Private Use $3C
Third-Class Bulk
Postage and Fees Paid
EPA
Permit No. G-35
*<.
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