NATIONAL PENALTY REPORT
OVERVIEW OF EPA FEDERAL PENALTY PRACTICES
FY 1992
May 1993
Compliance Policy and Planning Branch
Office of Enforcement
-------
NATIONAL PENALTY REPORT
OVERVIEW OF EPA FEDERAL PENALTY PRACTICES
FY 1992
ACKNOWLEDGEMENTS
I. EXECUTIVE SUMMARY 1
General Findings 1
Program Highlights 2
II. PURPOSE, SCOPE AND LIMITATIONS OF THIS REPORT 4
Programs Covered 4
Cases Covered 4
Purposes and Limitations 6
III. GENERAL OVERVIEW 7
Highlights 7
Median and Average Penalties 13
Percentage of Cases Concluded with a Penalty 17
Range of Penalty Amounts 17
Highest Penalties 21
Types of Cases 22
Criminal Enforcement 22
Relative Contributions 22
IV. SUPPLEMENTAL ENVIRONMENTAL PROJECTS 23
A. SEP Category Review 24
B. Program Review 25
-------
ACKNOWLEDGEMENTS
This report was coordinated by the Compliance Policy and Planning Branch of the Office of
Enforcement. Ann DeLong was the project manager and principal author. Robert Banks
provided the graphs. Peter Rosenberg provided the Supplemental Environmental Project
summary. The following EPA personnel contributed the program-specific data:
Criminal Enforcement
Clean Water Act-NPDES
Judicial
Administrative
Safe Drinking Water Act
UIC
PWSS
CWA--Wetlands Protection
CWA--Oil Protection Act
Richard Emory, OE
David Drelich, OE
Ken Keith, OWEC
Peter Bahor, ODW
Anne Jaffe Murray, ODW
Tim Whitehouse, OWQW
Cecilia Smith, OSWER
Marine and Estuarine
Protection
Stationary Source Air
Mobile Source Air
RCRA
Judicial
Administrative
EPCRA § 302-312 and
CERCLA § 103
CERCLA § 104-109
Toxics Release Inventory,
TSCA and FIFRA
Catherine Crane, OW
Jerry MacLaughlin, OE
Cletis Mixon, SSCD
Marie Muller, SSCD
Marcia S. Ginley, OMS
Tiffany Schauer, OMS
Catherine Smith, OE
Karin Ashe, OWPE
Peter Moore, OWPE
Michael Northridge, OE
Rose Burgess, OCM
David Meredith, OCM
These authors and their colleagues devoted many long hours to the collection, verification,
analysis and display of these data. Their work is greatly appreciated. Questions and comments
concerning this report should be addressed to Ann DeLong, (202) 260-8870.
i
-------
1
I. EXECUTIVE SUMMARY
This report summarizes the penalty practices of EPA in FY 1992 in civil judicial, administrative
and criminal enforcement actions. Penalties are only one measure of the enforcement efforts of
the Agency and reflect only a portion of the consequences of violating federal environmental
statutes in large part since State or local enforcement constitutes the major of enforcement
actions. Information on Supplemental Environmental Projects (SEPs) embodied within
enforcement settlement agreements is included for the first time this year in an attempt to further
capture the scope of the Agency's enforcement efforts.
General Findings
Fiscal Year 1992 set another record for penalties assessed by EPA, with $78.7 million in
civil penalties and $62.9 in criminal fines (before suspension). This was due primarily to a
two and a half fold increase in penalties assessed under the Stationary Source Air program
and a four-fold increase over FY 1991 in the amount of criminal fines assessed.
In FY 1992 alone, EPA assessed some 28% of all civil penalties and criminal fines
combined, assessed in EPA's history ($508.4 million for FY 1972-1992).
EPA has obtained almost $400 million in cash civil penalties from FY 1974 through FY
1992 in some 14,174 civil judicial and administrative cases.
In FY 1992 alone, 19.6 percent of all civil penalty dollars in EPA's history were obtained.
In the last two years, 30 percent of all civil penalty dollars in EPA's history were assessed.
Criminal fines totaled $62.9 million in FY 1992 (before deducting suspended sentences).
This represents a four fold increase from FY 1991 and is the highest amount ever assessed
by EPA for criminal cases. Ninety-four years of incarceration were imposed (before
suspension), up from 75 years imposed in FY 1991.
In the six years EPA's criminal enforcement program has been tracking penalty data,
$106.7 million in criminal fines and 392 years of incarceration have been imposed before
deduction of suspended sentences. Fifty-nine percent of all criminal fines in EPA's history
were assessed in FY 1992.
Penalties were obtained in 85 percent of the cases concluded in FY 1992.
Four hundred and nine SEPs were negotiated during FY 1992 with a total estimated value
of $50.1 million. Pollution Reduction SEPs comprised 59 percent ($29.7M) of the
estimated dollar value of all SEPs, and Pollution Prevention SEPs comprised another 31
percent ($15.7M) of the total estimated value.
-------
2
Program Highlights
This year for the first time, the Penalty Report also includes administrative penalties
assessed under the Clean Water Act §311 as amended by the Oil Pollution Act (hereafter
referred to as CWA §311) and judicial penalties assessed under CERCLA 104, 106, 107.
Federal penalty dollars were dominated by CWA with 29% of the total. Stationary Source
Air was second with 25%, followed by RCRA (17%) and TSCA (10%). CERCLA 104,
106, 107 cases assessed 8% of the total penalty dollars while EPCRA §313 and Mobile
Source Air contributed 4% and 3% respectively.
Five programs supplied 76% of the cases. TSCA had the highest number of cases with
20% followed by FIFRA with 17%, CWA with 16%, Mobile Source Air with 14%, and
EPCRA §313 with 9%. All five programs rely heavily on administrative enforcement.
The Stationary Source Air program and FIFRA programs assessed higher total penalty
dollars than in FY 1991.
In descending order of total penalties assessed, these programs were the following: CWA,
Stationary Source Air, RCRA, TSCA, CERCLA 104, 106, 107, EPCRA § 313, Mobile
Source Air, FIFRA, UIC, EPCRA § 302-312 and Marine and Estuarine Protection. The
largest increase for these programs over last year's totals was 254% for Stationary Source
Air.
Medians reached record highs for judicial cases in the Mobile Air, SDWA and UIC
programs.
The largest penalty assessed in FY 1992 was $6.7 million** obtained in a Stationary
Source Air judicial case. This was higher than the largest penalty assessed in FY 1991 (a
CWA case for $6,184,220). The second largest penalty was assessed in a RCRA and
CWA judicial case which settled for $3,500,000 in a federal/state joint case ($2 million
federal/$1.5 million state). Additional programs with highest penalties greater than
$500,000 included CWA judicial, CERCLA 104, 106, 107, Mobile Source Air judicial, and
TSCA administrative.
The Mobile Source Air program made the most frequent use of SEPs (187), followed by
the EPCRA and TSCA programs (both with 82). The Mobile Sources compliance program
negotiated 94% of all the Public Awareness SEPs, the EPCRA-313 compliance program
negotiated 84% of all of the Pollution Prevention SEPs, and the TSCA compliance
program negotiated 55% of all of the Pollution Reduction SEPs.
-------
3
'Throughout the report, Wetlands actions refer to CWA §404. CWA §402 and pretreatment
actions are referred to as CWA actions. This is the fifth year Wetlands penalties have been
presented separately in this report. They were included as part of Clean Water Act data in
penalty reports prior to FY 1988.
**The single highest penalty in the Agency's history was $15 million assessed under TSCA and
RCRA in the Texas Eastern Pipeline case in FY 1990.
-------
4
II. PURPOSE. SCOPE AND LIMITATIONS OF THIS REPORT
This overview report summarizes the penalty practices of EPA in FY 1992 in civil judicial,
administrative, and criminal enforcement actions. Except where specifically noted, the term
"penalties" is used in this overview to refer only to civil (administrative and judicial) penalties, not
criminal fines.
This report does not attempt to portray a complete picture on penalties obtained during
enforcement of federal environmental laws, because it does not reflect penalties obtained by state
or local governments, either directly or through court actions with EPA. States conduct the vast
majority of enforcement actions under these laws, working through programs approved by EPA to
carry out federal requirements.
It also does not include all categories of penalties. In FY 1993, EPA plans to include additional
information on stipulated penalties, contempt actions, multi-media penalties and State/federal split
penalties in this report. Although these penalties are not currently incorporated into the report,
they can represent an important part of the program's efforts to achieve compliance. For
example, in FY 1992, $3.1 million in stipulated penalties was assessed in one RCRA case.
This also is the first year that Supplemental Environmental Projects (SEPs) that the Agency
negotiated during FY 1992 as part of consent orders or decrees are included in the annual
National Penalty Report. The collection, analysis and (to the extent possible) quantification of
SEP data is part of the Agency's overall effort to describe the overall impact of enforcement
settlements. The SEP analysis in this report is based upon data obtained from a pilot project in
which the Regions and programs provided (where feasible) estimates of the dollar value of
implementing SEPs in enforcement settlements contained in FY 1992 judicial and administrative
enforcement cases.
Programs Covered
Fourteen EPA penalty programs are addressed in this report Table 1 gives their names, the
types of enforcement cases each used in FY 1992, and any acronyms by which they are cited in
this report. SEP data was provided by the TSCA, EPCRA, RCRA, CWA, CAA-OMS, CAA-
SSCD, CERCLA and FIFRA programs.
Cases Covered
The penalties discussed in this report focus on cash amounts assessed in EPA enforcement cases
that were concluded in FY 1992. They include final judgments by court settlements in consent
decrees and consent orders and final administrative orders. However, for the first time in FY
1992, credits, benefit projects, or non-monetary actions which parties in enforcement cases often
agree to cany out as part of a settlement (collectively referred to as Supplemental Environmental
Projects or SEPs) are included in this report. Such actions may yield large environmental benefits
of substantial dollar value. Narrative description of specific cases can be found in the following
section.
-------
5
Table 1
Penalty Programs Covered in This Report
Program
Criminal Enforcement
Clean Water Act - NPDES (CWA)
Clean Water Act - Oil Pollution Act (CWA §311)
Safe Drinking Water Act (SDWA)
Wetlands Protection
Marine and Estuarine Protection
Stationary Source Air
Mobile Source Air
Resource Conservation and
Recovery Act (RCRA)
Emergency Planning and
Community Right-to-Know Act
(EPCRA § 302-312)
Comprehensive Environmental
Response, Compensation and
Liability Act (CERCLA or
Superfund)
Toxics Release Inventory
(TRI, or EPCRA § 313)
Toxic Substances Control
Act (TSCA)
Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA)
Types of cases
Judicial
Judicial
Administrative
Administrative
Judicial
Administrative
Judicial
Administrative
Administrative
Judicial
Administrative
Judicial
Administrative
Judicial
Administrative
Administrative
Administrative
Judicial
Administrative
Judicial
Administrative
Administrative
-------
6
This report does not include proposed penalties or other amounts under discussion prior to the
conclusion of a case, and it does not include penalties paid to entities other than the Federal
Government. Contempt enforcement actions (cases seeking to invoke sanctions for a failure to
comply with a prior court order, decree, or administrative order) are not included. "Stipulated
penalties" and "deferred penalties" also are not included in this report; they are penalties
stipulated in an administrative or court order that are due only if the violator fails to carry out
certain other requirements of the order. Nor does the report include the use of other sanctions,
such as contractor listing, sewer moratoriums, or the suspension or revocation of permits.
As in past reports, the FY 1992 Federal Penalty Report does not include penalties assessed in the
Underground Storage Tank program (UST). The reason for this exclusion is because UST is
primarily a state delegated program.
One element of this report is an analysis of the extent to which EPA used penalties in its
enforcement cases. Some cases did not obtain penalties. The cases without penalties included in
this report are enforcement actions in which a penalty is authorized by the statutes and
regulations on which the case is based. If Congress did not authorize EPA to assess a penalty for
a given type of violation, an enforcement action for such a violation would not be counted as a
case in this report.
Penalties are counted in this report as assessed in a final administrative action or in a court order;
appeals and collection of penalties are not considered here. The word "obtained" is used in this
report as a general term referring to penalties that were assessed by a court or by EPA
administrative orders. Its meaning is the same as "assessed" or "imposed."
Purposes and Limitations
This overview report is not an evaluation of practices by EPA programs, and it should be viewed
in the context of the total enforcement effort. The report may illuminate individual
characteristics of programs and provide a helpful comparison among programs. Identifying
differences may stimulate further thinking about penalties in general, advancing the goal of more
effective use of penalties as part of an overall enforcement program.
The reader should bear in mind that the data presented here are historical in nature, and do not
necessarily represent present penalty practices. Nothing in this report may be used as a defense
or guide to future settlements of federal cases involving penalties.
The specific penalty data used in this report were obtained from several federal data systems.
The data have been approved by the responsible program offices, but the quality and
completeness of the data may vary.
-------
7
III. GENERAL OVERVIEW
Highlights
Fiscal Year 1992 set another record for penalties assessed by EPA, with $78.7 million in
civil penalties and $62.9 in criminal fines (before suspension). This was due primarily to a
two and a half fold increase in penalties assessed under the Stationary Source Air program
and a four-fold increase over FY 1991 in the amount of criminal fines assessed.
In FY 1992 alone, EPA assessed some 28% of all civil penalties and criminal fines
combined, assessed in EPA's history ($508.4 million for FY 1972-1992).
EPA has obtained almost $400 million in cash civil penalties from FY 1974 through FY
1992 in some 14,174 civil judicial and administrative cases.
In FY 1992 alone, 19.6 percent of all civil penalty dollars in EPA's history were obtained.
In the last two years, 30 percent of all civil penalty dollars in EPA's history Were assessed.
Criminal fines totaled $62.9 million in FY 1992 (before deducting suspended sentences).
This represents a four fold increase from FY 1991 and is the highest amount ever assessed
by EPA for criminal cases. Ninety-four years of incarceration were imposed (before
suspension), up from 75 years imposed in FY 1991.
In the six years EPA's criminal enforcement program has been tracking penalty data,
$106.7 million in criminal fines and 392 years of incarceration have been imposed before
deduction of suspended sentences. Fifty-nine percent of all criminal fines in EPA's history
were assessed in FY 1992.
Penalties were obtained in 85 percent of the cases concluded in FY 1992.
The total amounts of civil penalties for each program in FY 1992 are shown in Table 2. A
comprehensive summary of the programs' civil penalty data appears in Table 3. Criminal
penalties are shown in Table 4. The historical picture is shown in Figures 1 and 2, displaying total
penalties by fiscal year. The relative contributions of the different EPA programs to the FY 1992
totals of civil penalty dollars and number of cases with penalties are shown in Figures 3 and 4.
-------
8
TABLE 2
Total Amount of Civil Judicial and Administrative Penalties
in FY 1992
Total dollars (%) No. All Cases* (%)
Clean Water Act
Judicial
Administrative
Safe Drinking Water Act
Judicial
Administrative
Wetlands Protection
Judicial
Administrative
Clean Water Act §311
Administrative
Marine and Estuarine Protection
Administrative
S 22,905,662 (29%)
17,817,997
5,087,685
S 481333 (1%)
207,744
273,589
$ 241,300 (<1%)
300
241,000
$ 162,542 (<1%)
$ 157,000 (<1%)
269 (16%)
40
229
98 (6%)
7
91
22 (1%)
3
19
22 (1%)
4 (<1%)
Stationary Source Air $ 19,875312 (25%) 76 (5%)
Judicial 19,462,267 64
Administrative 413,045 12
Mobile Source Air $ 2,091,867 (3%) 227 (14%)
Judicial 609,080 6
Administrative 1,482,787 221
RCRA $13,586,122 (17%) 110(7%)
Judicial 5,927,125 11
Administrative 7,658,997 99
EPCRA § 302-312 - Administrative $ 325,200 (<1%) 19(1%)
CERCLA § 103 - Administrative $ 148,450 (<1%) 14 (<1%)
CERCLA § 104, 106, 107 - Judicial S 6,675,558 (8%) 22 (1%)
Toxics Release Inventory -
Administrative S 2,757321 (4%) 150 (9%)
TSCA $8,227,095 (10%) 325 (20%)
Judicial 5,000 4
Administrative 8,222,095 321
FIFRA - Administrative S 1,098349 (1%) 286 (17%)
TOTAL S 78,733341 1,644
"Number of all cases" includes all cases with or without penalties. Percentages shown here will differ from analyses
presented elsewhere in this report which are based on only those cases with cash penalties.
-------
TABLE 3
SUMMARY OF CIVIL PENALTIES BY PROGRAM IN FY 1992
CATEG TOTALS FY
92
Total
Cases with
Cases u/o
Total
Percent
Average
Avg A11
Median
Med All
Highest
Program
Dollars
Penalty
Penalty
Cases w/Penalty
Penalty
Cases
Penalty
Cases
Penalty
CUA ADM
5,087,685
228
1
229
100X
22,314
22,217
6,000
6,000
125,000
CUA JUD
17,817,977
39
1
40
98X
456,871
445,449
0
0
2
,958,477
CUA ADM+JUD
22,905,662
267
2
269
99X
85,789
85,151
2
,958,477
UIC ADM
245 .OH
34
44
78
44X
7,206
3,141
4,000
0
40,000
UIC JUD
84,244
2
0
2
100X
42,122
42,122
42,122
42,122
75,000
UIC ADM+JUD
329,258
36
44
80
45X
9,146
4,116
75,000
PUS ADM
28,575
13
0
13
100X
2,198
2,198
1,400
1,400
5,000
PUS JUD
123,500
4
1
5
BOX
30,875
24,700
0
0
62,500
PUS ADM+JUD
152,075
17
1
18
94X
8,946
8,449
62,500
SOU A ADM
273,589
47
44
91
52X
5,821
3,006
3,338
3,338
40,000
SDUA JUD
207,744
6
1
7
86X
34,624
29,678
29,500
75,000
75,000
SDUA ADM+JUD
481,333
53
45
98
54X
9,082
4,912
75,000
WETLD ADM
241,000
18
1
19
95X
13,389
12,684
10,000
7,200
70,000
UETLD JUD
300
1
2
3
33X
300
100
300
300
300
WETLD ADM+JUD
241,300
19
3
22
86X
12,700
10,968
70,000
MARINE ADM
157,000
4
0
4
100X
39,250
39,250
0
0
125,000
STATAIR ADM
413,045
12
0
12
100X
34,420
34,420
4,300
4,300
90,000
STATA1R JUD
19,462,267
51
13
64
SOX
381,613
304,098
43,000
57,000
6,
,700,000
STAT ADM+JUD
19,875,312
63
13
76
83X
315,481
261,517
6,
,700,000
M06AIR ADM
1,482,787
218
3
221
99X
6,802
6,709
1,200
1,200
264,680
MOBAIR JUD
609,080
6
0
6
100X
101,513
101,513
10,040
10,040
500,000
MOB ADM+JUD
2,091,867
224
3
227
99X
9,339
9,215
500,000
RCRA ADM
7,658,997
91
8
99
92X
84,165
77,364
0
0
900,000
RCRA JUD
5,927,125
10
1
11
91X
592,713
538,830
208,062
195,000
3
,500,000
RCRA ADM+JUD
13,586,122
101
9
110
92X
134,516
123,510
3,
,500,000
EPCRA 302-312
325,200
16
3
19
84X
20,325
17,116
0
0
130,000
CERCLA 103
148,450
13
1
14
93X
11,419
10,604
0
0
70,275
TRI
2,757,321
142
8
150
95X
19,418
18,382
11,050
11,225
102,000
TSCA ADM
8,222,095
279
42
321
87X
29,470
25,614
10,200
12,800
900,000
TSCA JUD
5,000
1
3
4
25X
5,000
1,250
5,000
2,500
5,000
TSCA ADM+JUD
8,227,095
280
45
325
86X
29,382
25,314
900,000
FIFRA
1,098,549
178
108
286
62X
6,172
3,841
2,000
500
300,000
CERCLA 104,6,
6,675,588
22
0
22
100X
303,436
303,436
50,000
50,000
1,
,998,336
CUA 311-0PA
162,542
21
1
22
95X
7,740
7,388
3,500
3,350
50,000
TOTAL
78,733,341
1,403
241
1,644
85X
56,118
47,891
6,
700,000
-------
10
TABLE 4
Total Amount of Criminal Fines and Incarceration
in FY 1992
Number of defendants convicted 99
Total fines assessed
Before suspension $62.9 million
Total months incarceration
Sentenced (before suspension) 1,135 months (94 years)
-------
FIGURE 1
Federal Judicial and Administrative Penalty Assessments
FY 1977 to FY 1992
80,000,000
70,000,000
60,000,000
D
0 50,000,000
L
L 40,000,000
A
R 30,000,000
S 20,000,000
10,000,000
0
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FV85 FY86 FY87 FY88 FY89 FY90 FY 91 FY92
Q JUDICIAL ¦ ADMINISTRATIVE
FIGURE 2
Total Penalties by Fiscal Year
80,000,000
70,000,000
60,000,000
D
0 50,000,000
L
L 40,000,000
A
R 30,000,000
s
20,000,000
10,000,000
0
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88 FY89 FY90 FY 91 FY92
-------
FIGURE 3
ERRATA SHEET
This sheet replaces page 12 of the FY 1992 National Penalty Report.
PERCENT PENALTY DOLLARS BY PROGRAM
FY 1992
OTHERS 4%
4% MOBILE
3%
FIGURE 4
PERCENT PENALTY CASES BY PROGRAM
FY 1992
OTHER
6% CWA
20%
-------
13
Median and Average Penalties
This section of the report attempts to look beyond the aggregate figures to see what the typical
penalties were for each program. Average and median penalty figures represent different aspects
of the program.
The average penalty is the total dollars divided by the number of penalty cases in a given
program. While an average is useful in seeing overall program accomplishments, it may give a
misleading picture if the penalties within that program went to extremes. One high-penalty case
and a large number of low-penalty cases could produce a mid-level average, even though no cases
had a mid-level penalty.
The median is useful to gain a different perspective on a program without the heavy influence of
a few extremely large or small penalties. The median penalty represents the middle number in
the series of all penalties for a given program arranged in order of size. That is, there were as
many penalties below the median as above it.
Medians - Figure 5 shows trends in medians over several years for the largest EPA penalty
programs during that period. Among the programs with six years or less of penalty history, only
RCRA judicial cases are shown. In the Mobile Source Air and TSCA programs, the data reflect
several different penalty authorities, including some that lead to higher-dollar penalties. However,
most of the cases in both these programs are in lower-dollar categories, which results in low
median penalties.
Medians increased for judicial cases in the RCRA and CWA programs and remained the same for
judicial cases in the Stationary Source Air program. Medians also increased for administrative
cases in the RCRA and TSCA programs. The median for administrative cases in the FIFRA and
Mobile Air programs remained at the same level as FY 1991.
In the foregoing discussion of change in medians, there is no mention of TSCA judicial cases or
Stationary Source Air administrative cases, because there were too few cases in FY 1992 to make
these categories suitable for such analysis.
-------
FIGURE 3
PERCENT PENALTY DOLLARS BY PROGRAM
FY 1992
OTHERS
10%
RCRA
23%
TRI
5%
STATAIR
10%
FIGURE 4
PERCENT PENALTY CASES BY PROGRAM
FY 1992
OTHER
6%
MOBILE
14%
STATAIR
5%
-------
PROGRAM MEDIANS BY FISCAL YEAR
Judicial Penalties
PROGRAM MEDIANS BY FISCAL YEAR
Administrative Penalties
80 81 82 83 84 85 86 87 88 89 90 91 92
Fiscal Year
160000 T
140000 - -
B 120000..
100000 - -
a
"O
*
5
PROGRAM MEDIAN BY FISCAL YEAR
Judicial Penalties
PROGRAM MEDIANS BY FISCAL YEAR
Administrative Penalties
79 80 81 82 83 84 85 86 87 88 89 90 91 92
Fiscal Year
-------
15
Clean Water Act: The median judicial penalty rose from its FY 1991 level of $100,000 to a
record high of $225,000 in FY 1992. The median administrative penalty decreased from a high
of $12,000 in FY 1991 to $6,000 in FY 1992.
Safe Drinking Water Act: The median judicial penalty rose from $8,500 in FY 1991 to $29,500
in FY 1992. (This reflects FY 1992 medians of $42,122 for two UIC cases and $19,000 for five
PWSS cases.) The median administrative penalty decreased to $3,338 in FY 1992 from $4,000
in FY 1991. (The subprogram medians both declined in FY 1992 to $4,000 for 78 UIC cases
and $1,400 for 13 PWSS cases.)
Wetlands Protection: In this fifth year of administrative penalty cases concluded by the
program, the median increased to $10,000, up from $6,000 in FY 1991. The median judicial
penalty dropped to $300 (for only one case) from $11,250 in FY 1991.
Clean Water Act § 311: This is the first year the National Penalty Report has tracked this
program. The median administrative penalty for FY 1992 was $3,350.
Marine and Estuarine Protection: This program is in its third year for cases concluded and the
median administrative penalty decreased from $66,050 in FY 1991 to $14,000 in FY 1992.
Stationary Source Air: The median judicial penalty decreased to $43,000, from $48,250 in FY
1991, The record was set in FY 1987 with a median of $65,750. This year there were twelve
administrative cases with a median penalty of $4,300.
Mobile Source Air: The median judicial penalty was $10,040, reflecting only six cases. This is
an increase from the FY 1991 level of $4,900 for three cases. The median administrative
penalty remained at $1,200 (for 221 cases) in FY 1992, the same level as FY 1991.
RCRA: The median judicial penalty was $75,000, down from $157,942 in FY 1991. The
median administrative penalty continued rising for the ninth year in a row, also attaining a new
record of $56,815.
EPCRA § 302-312: In the fourth year of concluded cases, this program surpassed its first
three years' medians with a penalty of $56,120 compared to $40,500 in FY 1991.
CERCLA § 103: In the fourth year of concluded cases, this program's median penalty
decreased from the FY 1991 level of $13,900 to $5,431 in FY 1992.
CERCLA S 104. 106. 107: This is the first year the National Penalty Report has tracked
penalties assessed under this program. The median judicial penalty for FY 1992 was $50,000.
Toxics Release Inventory: In this fourth year of concluded cases, this program's median
penalty also decreased slightly from $12,750 in FY 1991 to $11,050 in FY 1992.
TSCA: The median administrative penalty decreased slightly to $10,200 in FY 1992 from
$12,500 in FY 1991. The median judicial penalty (for just one case) was $5,000.
FIFRA: The median penalty rose from $1,920 in FY 1991 to $2,050 in FY 1992, setting a new
record for FIFRA medians.
-------
16
Averages - Average civil judicial or administrative penalties increased in seven programs in
FY 1992, the same as in FY 1991. Declines were evident in five programs. However, it should
be noted that averages may be influenced by a few large cases. A year with one or two extremely
large cases may have a much higher average penalty than a year without any, even though the
latter may have had larger penalties in most enforcement cases.
Averages rose to record highs for judicial cases in the Clean Water Act and Stationary Source Air
programs. For judicial cases only, averages rose in the SDWA, UIC and Mobile Air programs.
For administrative cases, increases in the averages were seen in the RCRA, Stationary Air,
CERCLA 103 and FIFRA programs.
Lower average penalties compared with FY 1991 were reported in administrative and judicial
cases in the PWSS and Wetlands programs. For administrative cases, averages decreased in the
CWA, SDWA, UIC, Marine Protection, Mobile Air, EPCRA 302, TRI and TSCA programs.
Clean Water Act: The average judicial penalty rose to a record high of $456,871. The
average administrative penalty decreased to $22,314 in FY 1992 compared to the high of
$23,937 in FY 1991.
Safe Drinking Water Act: The average judicial penalty increased from $21,152 in FY 1991 to
$34,624 in FY 1991. However, the average administrative penalty decreased to $5,821 in FY
1992.
Wetlands Protection: The average judicial penalty dropped to $300, compared to $21,563 in
FY 1991. In the fifth year of administrative penalties, the average dropped to $13,389 in FY
1992 from a record high in FY 1991 of $22,113.
Clean Water Act §311: This is the first year that the National Penalty Report has tracked
penalties assessed under this program. The average administrative penalty was $7,740.
Marine and Estuarine Protection: In the fourth year of administrative penalties, the average
decreased from $66,050 to $39,250 in FY 1992 with four cases concluded.
Stationary Source Air: The average judicial penalty rose from $112,217 in FY 1991 to
$381,613 in FY 1992. The average administrative penalty was $34,420.
Mobile Source Air: The average administrative penalty decreased to $6,802 in FY 1992 from
$11,121 in FY 1991. The average judicial penalty increased dramatically from $3,267 in FY
1991 to $101,513 in FY 1992.
RCRA: The average judicial penalty decreased from the FY 1991 average of $668,440 to
$592,713. The average administrative penalty rose substantially to $84,165, compared to
$37,129 in FY 1991.
EPCRA § 302-312: In this fourth year of concluded cases, the average penalty dropped from
$29,709 to $20,325 in FY 1992.
CERCLA § 103: In this fourth year of concluded cases, the average penalty increased from
$8,550 in FY 1991 to $11,419 in FY 1992.
-------
17
CERCLA § 104. 106. 107: This is the first year the National Penalty Report has tracked
penalties under this program. The average judicial penalty was $303,436 in FY 1992.
Toxics Release Inventory: In this fourth year of concluded cases, the average penalty
decreased slightly from $20,464 in FY 1991 to $19,418 in FY 1992.
TSCA: The average administrative penalty decreased slightly to $29,470 compared to $33,867
in FY 1991. (Averages were not calculated on a TSCA program-wide basis before FY 1986.)
The average judicial penalty was $5,000 for one concluded case with penalty.
FIFRA: The average penalty rose to a new high of $6,172. For the FIFRA program, this is
an increase over the FY 1991 average of $3,350.
Percentage of Cases Concluded with a Penalty
A high percentage of cases were concluded with a penalty in all programs except Wetlands
judicial, UIC administrative, SDWA administrative and FIFRA. Overall, 85% of administrative
cases were concluded with a penalty and 87% of judicial cases assessed a penalty. This compares
to 84% of all FY 1991 cases which concluded with a penalty. (See Table 3 for each program's
percentage with penalty.)
Range of Penalty Amounts
This section examines how EPA's penalties in FY 1992 ranked along the scale from low dollars to
high dollars. The penalty cases are sorted into eight ranges from no-penalty cases ("zero dollars")
to cases of $1 million or more.
Figure 6 shows the penalty distribution of all FY 1992 cases.
-------
FIGURE 6
.'ENALTY DISTRIBUTION - ALL PROGRAMS
FY 1992
+
+
ZEROS <$5,000 <$10,000 <$25,000 <550,000 <$100,000
Ranges
<$1
MILL
>=$1
MILL
¦ ADMINISTRATIVE ~ JUDICIAL
PENALTY DISTRIBUTION - FY 1992
Minu9 Mobile and FIFRA Administrative
ZEROS <$5,000 <$10,000 <$25,000 <$50,000 <$100,000 <$1 MILL >=$1
MILL
Ranges
-------
PENALTY DISTRIBUTION - CWA
FY 1985-1991
PENALTY DISTRIBUTION - CWA
FY 1992
¦ ¦¦in
i' 11
i ¦¦¦¦¦¦ i ¦ * i * * i
ZEROS <$5,000 <$10,000 <$25,000 <$50,000 <$100,000 <$l MILL >=$l MILL
Range*
PENALTY DISTRIBUTION - SDWA
FY 1985-91
PENALTY DISTRIBUTION - SDWA
FY 1992
~A
o
c
ja
tn
ZEROS <$5,000 <$10,000 =$1 MILL
Kingu
¦ ADMINISTRATIVE ~ JUDICIAL
-------
PENALTY DISTRIBUTION - STATIONARY AIR
FY 1985-1991
100 -
90 -
80-
70 -
60-
50 -
40-
30-
20-
10 -
0-
PENALTY DISTRIBUTION - STATIONARY AIR
FY 1992
n
ii
16 T
14 . .
n -.
* 10..
0 § . .
1
§
2 4 - -
2 . .
0 . -
ZERO* <*5.000 <*10j000 <$25,000 <$50/»0 <$100,000 <51 Mill >-$l MILL
Rang**
PENALTY DISTRIBUTION - RCRA
FY 1985-1991
H
ZEKO$ <$5,000 <$10,000 <$25,000 <$50,000 <$100,000 <$1 MILL »=$! MILL
Range*
PENALTY DISTRIBUTION - RCRA
FY 1992
300 -r
230 -
200 -
100 -
SO-
30 T
25 --
20 -
* 15..
k*
A
§ 10 ..
ZEROt <$5,000 <$10,000 <$25,000 <$50/000 C$100,000 <$1 MILL >.$1 MILL
Range*
ZEROt <$5,000 <$10,000 <$25,000 <$50,000 <$100,000 <$i mill >*$i mill
Rangea
¦n
O
c
73
m
oo
¦ ADMINISTRATIVE ~ JUDICIAL
-------
21
Highest Penalties
Several programs had highest penalties greater than FY 1991. Judicial penalties for Stationary
Source and Mobile Source Air programs were higher than in FY 1991. The highest
administrative penalties in the EPCRA 302-312, CERCLA 103 and FTFRA programs were higher
than FY 1991 levels.
The largest penalty assessed in FY 1992 was $6.7 million obtained in a Stationary Source Air
judicial case. This was higher than the largest penalty assessed in FY 1991 (a CWA case for
$6,184,220). The second largest penalty was assessed in a RCRA and CWA judicial federal/state
case which settled for $3,500,000. Additional programs with highest penalties greater than
$500,000 included CWA judicial, CERCLA 1G4, 106, 107, Mobile Source Air judicial, and TSCA
administrative. The highest penalties in each program are shown in Table 5.
Table 5
Highest Penalty in FY 1992 bv Program
Judicial Administrative
Clean Water Act $ 2,958,477 $ 125,000
Safe Drinking Water Act 75,000 40,000
Wetlands Protection 300 70,000
Clean Water Act § 311 -- 50,000
Marine and Estuarine Protection -- 125,000
Stationary Source Air 6,700,000 90,000
Mobile Source Air 500,000 264,680
RCRA 3,500,000* 900,000
EPCRA § 302-312 -- 130,000
CERCLA § 103 -- 70,275
CERCLA § 104, 106, 107 1,988,336
Toxics Release Inventory -- 102,000
TSCA 5,000 900,000
FIFRA - 300,000
*This was a RCRA and CWA judicial case which settled for $3,500,000 in a federal/state split ($2
million federal/$1.5 million state).
-------
22
Types of Cases
About $50.7 million, or 64 percent, of all EPA federal penalty dollars in FY 1992 came from civil
judicial cases (up from 56 percent in FY 1991). The remaining $28 million (36 percent) came
from administrative cases.
There were more administrative cases than judicial cases. Some 90 percent (1,487) of all cases
with penalties were administrative enforcement actions, compared to 10 percent (157 cases) that
were judicial actions.
In general, the penalty is likely to be higher in a judicial case than in an administrative case, but
the ranges overlap. For instance, among EPA's larger penalties in FY 1992, the highest
administrative penalty was $900,000 brought by the RCRA and TSCA programs, and the highest
judicial penalty was $6.7 million brought by the Stationary Source Air program.
Considered on an agency-wide basis, the proportions of dollars and cases from the judicial and
administrative categories in FY 1992 are similar to those in the past six fiscal years. The
percentages within that period varied within a range of 15 percentage points for penalty dollars,
and 4 percentage points for cases.*
Criminal Enforcement
The Criminal Enforcement program operates on a cross-media basis, serving all the major
programs that have been authorized by Congress to use criminal sanctions against violators. Most
criminal cases include charges under more than one environmental law, but for statistical purposes
each case is listed under one predominant statute. On this basis, the programs with the largest
numbers of fines assessed in FY 1992 were CWA ($39.7 million) and RCRA ($22.9 million).
Relative Contributions
The Clean Water Act program dominated civil penalty dollars in FY 1992, with 29 percent of the
total (see Figure 3). It was followed by the Stationary Source Air (25 percent), RCRA (17
percent), TSCA (10 percent), CERCLA 104, 106, 107 (8 percent), Toxics Release Inventory (4
percent) and Mobile Source Air (3 percent) programs.
The majority of cases with penalties in FY 1992 were concluded by programs that made heavy use
of administrative cases (see Figure 4): TSCA (20 percent), FIFRA (17 percent), CWA (16
percent), Mobile Source Air (14 percent), and TRI (9 percent).
*A year-by-year breakdown of penalties can be found in the FY 1992 Enforcement
Accomplishments Report.
-------
23
IV. Supplemental Environmental Projects (SEPs)
Enforcement settlements usually consist of injunctive relief, i.e. the activities needed to correct
the violation and return to compliance, as well as a dollar penalty. As part of the settlement
process, consent orders and consent decrees also may include additional relief in the form of
SEPs. SEPs are environmental activities, undertaken by the violator, which the government could
not have required as injunctive relief or other activities needed to correct the violation. The
criteria and guidelines for negotiating SEPs are described in the Agency's February 12, 1991
Policy on the Use of Supplemental Environmental Projects in Enforcement Settlements The size
of the final assessed penalty may reflect the commitment of the defendant/respondent to
undertake SEPs.1
The five general categories of eligible SEPs described in the February 12, 1991 Policy are
Pollution Prevention, Pollution Reduction, Environmental Restoration, Environmental Auditing,
and Public Awareness projects. A sixth EPCRA program-specific category consisting of support
to Local Emergency Planning Committees (LEPCs) was subsequently adopted.
The Regions provided information on 222 SEPs negotiated as part of enforcement settlements
during FY 1992. In addition, the national Mobile Sources Air program (OMS) negotiated
another 187 SEPS during FY 1992, almost all in the Public Awareness category.2 Table I
presents a summary of the data broken down by compliance program and SEP category.
The "estimated cost" column represents the Region's attempt to value the cost of implementing
the SEP by the defendant/ respondent. The "estimated cost" of a SEP is based upon a number of
potential factors, including construction costs, O&M costs, and the time needed to construct the
project. Therefore, while these costs are included for illustrative purposes, they cannot be as
1 See the February 12, 1991 Policy on the Use of
Supplemental Environmental Projects in Enforcement Settlements
for a full discussion of the criteria and restrictions on the use
of SEPs. Even when a SEP is part of the settlement, the final
dollar penalty must at minimum reflect the economic benefit of
noncompliance.
See final consent orders and decrees for complete
descriptions of SEPs. Some of the significant SEPs also are
described in Chapter III of the FY 1992 Enforcement
Accomplishments Report.
2 183 of the 187 SEPS negotiated by OMS were public
awareness projects. OMS makes extensive use of Public Awareness
projects as part of settlements dealing with tampering or fuel
switching violations. In order to discern patterns which may
otherwise be obscured by the large number of these settlements,
some of the following analysis will exclude mobile source SEPs,
as noted.
-------
24
"definitive" as are the direct penalty dollars which are reviewed in the first section of this report.
(Cf discussion below).
A total of 409 SEPs were negotiated for all programs in FY 1992. The estimated dollar value of
those SEPs is approximately $50.1M.
A. SEP CATEGORY REVIEW
As Chart 1 shows, the Mobile Sources Program made the most extensive use of SEPs. MOB
negotiated approximately 47% of all FY 1992 SEPs, followed by the EPCRA and TSCA programs
(both with 20%). As Chart 2 shows, due to the influence of the OMS program, almost one-half
of all the SEPs negotiated during FY 1992 (48%) involved Public Awareness projects.
Chart 3A and 3B show the distribution of SEPs when OMS cases are excluded from the analysis.
Fifty-two percent of the remaining SEPs involved Pollution Reduction and another 28% involved
Pollution Prevention. These two dominant categories were followed by Environmental Auditing
(9%), support for Local Emergency Planning Committees (4%) and Environmental Restoration
(2%).3 Public Awareness projects comprise only 5% of the SEPs negotiated by the other
compliance programs.
Chart 4 shows the estimated value of SEPs by category. Pollution Prevention SEPs had an
estimated dollar value of almost $15.7M (31%) and Pollution Reduction SEPs had an estimated
dollar value of over S29.7M (59%). The total estimated values for the other categories of SEPs
were a little over $3M for Environmental Audits (6%); almost $1.1M for Environmental
Restoration (2%); J534.5K for Public Awareness (1%, of which S411.8K were for OMS SEPs);
and just over $72K in support for Local Emergency Planning Commissions (<1%).4
The Agency's Pollution Prevention Strategy highlights source reduction as the "preferred" method
of environmental management.5 Chart 5 breaks down the specific types of source reduction
activities: Input Chemical Substitution (34%), Closed-Loop Recycling (22%), New Equipment
(18%), and Process Change (25%). The Regions also provided partial estimates of the
environmental impact of the SEPs (e.g., the amount of high toxic solvents replaced with lower
toxic solvents, the reduction pollutant loadings (either emissions or discharges, etc.). While such
3 As Table 1 indicates, OMS emphasizes a large number of
SEPs with relatively small associated costs. The total estimatet
value of their 183 Public Awareness SEPs was a little less than
$412K. Therefore, excluding OMS cases from subsequent analysis
has a greater impact on the distribution of SEP categories than
on the total dollars associated with them.
4 Excluding Mobile Sources programs, the other compliance
programs had a total estimated value of $49.5M. Since OMS deals
with a large volume of smaller penalties, it has greater impact
on the total number of SEPs negotiated by the Agency than on the
estimated value of those SEPs.
5 See the May 28, 1992 Memorandum of Deputy Administrator
Habicht for the Agency-wide definition of Pollution Prevention.
-------
25
data was not available for every SEP, chart 6 summarizes the known reductions secured through
Pollution Prevention SEPs.
B. PROGRAM REVIEW
As previously noted, OMS negotiated 47% of all SEPs negotiated in FY 1992. As Chart 3B
indicates, when OMS cases are excluded, the EPCRA and TSCA programs tied for the majority
of SEPs with 38% each, followed by the RCRA and CWA programs, each with 9%. FIFRA
(3%), Stationary Air (1%), and CERCLA (2%) comprise the remaining SEPs.
There were clear programmatic differences regarding the categories of SEPs negotiated.
EPCRA-313 (84%) dominates the Pollution Prevention SEP category; a logical result given that
program's emphasis upon securing compliance with Toxic Release Inventory (TRI) requirements.
A majority of Pollution Reduction SEPs (55%) were negotiated pursuant to TSCA settlements,
primarily for the "accelerated compliance" removal of PCB-Iaden transformers and other
equipment. Three of the four (75%) Environmental Restoration Projects were negotiated as part
of CWA settlements, and 15 of the 19 (79%) Environmental Audit SEPs were negotiated by the
TSCA program in order to identify potential asbestos hazards under AHERA
As Chart 7 indicates, TSCA SEPs (S23.8M) accounted for 47% of the estimated value of all FY
1992 SEPs, followed by EPCRA ($10M, 20%), CWA (J6.5M, 13%), CAA-Stationary ($4.9M,
10%), and RCRA ($4.1M, 8%). CAA-MOS, FIFRA and CERCLA combined for about 1%.
It should be noted that a small number of SEPs with an estimated value of over $1M skew the
arithmetic mean ("average") cost upward to approximately S225K/SEP). The range of cost
estimates for the SEPs (excluding OMS) presents a different picture:
<5K = 10%
5.1K -10K = 13%
10.IK - 25K. = 14%
25.IK - 50K = 14%
50.IK - 100K = 17%
101K - 250K = 14%
250.IK -500K = 8%
500.IK - 750K = 3%
750.IK - 1M = 3%
>1M = 4%
Cumulatively, 10% of the SEPs have an estimated cost of under $5K, 23% under $10K, 37%
under S25K, and 68% under S100K. By contrast, only 4% have an estimated value of over $1M.
NEXT STEPS
As previously noted, FY 1992 was the first year that the Agency systematically compiled SEP
data. Each Region used its own methodology for their estimates of the costs of implementing the
SEPs (e.g., capital costs, interest rates, single vs. multi-year implementation, etc.). Therefore,
while the cost estimates are useful for providing an overall "snapshot" of the cumulative impact of
SEPs, a standard methodology is needed to help make sure that all Regions value their projects
similarly.
The Enforcement Management Council (EMC) has authorized an Agency-wide workgroup to
develop a standardized methodology for estimating the value of SEPs. The workgroup will
complete this assignment during the last half of FY 1993, so that subsequent annual SEP reports
will be comprehensive, accurate and consistent from Region to Region.
-------
26
TABLE I: TOTAL SEPS/CATEGORY OF SEP BY PROGRAM
(The SEP Category Abbreviations are: P2 = Pollution Prevention;
PR = Pollution Reduction; Audit = Environmental Auditing;
Restore = Environmental Restoration; LEPC = Support for Local
Emergency Planning Committees; Aware = Public Awareness Projects)
PROGRAM
CATEGORY
ESTIMATED COST
EPCRA*
P2 (52)
PR (22)
Audit (1)
Restore (0)
LEPC (5)
Aware (2)
$8,018,981
1,896,302
15,000
18,300
59,000
Aware (2)
(82)
($10,007,600)
TSCA
P2 (1)
PR (66)
Audit (14)
Restore (0)
LEPC (0)
Aware (1)
$ 1,930,000
19,086,120
2,756,385
21,000
(82) ($23,793,500)
CAA(SSCD) P2 (1) $4,000,000
PR (1) 950,000
Audit (0)
Restore (0)
LEPC (0)
Aware (0)
(2) ($4,950,000)
CAA (OMS)** P2 (0)
PR (4) 151,020 Audit (0)
Restore (0)
LEPC (0)
Aware (183) 411,831
(187)
($562351)
RCRA*
«*
P2 (6)
PR (7)
Audit (1)
Restore (1)
LEPC (2)
Aware (4)
$1,133,000
2,752,700
80,000
101,000
26,470
14,500
PR
-------
27
(21) ($4,107,670)
CWA
CERCLA
P2 (2)
PR (10)
Audit (3)
Restore (3)
LEPC (0)
Aware (1)
(19)
(11)
P2 (0)
PR (1)
Audit (0)
Restore (0)
LEPC (3)
Aware (1)
(5)
(409)
$ 609,000
4,795,581
176,300
973,000
18,000
($6,571,881)
$
71,800
10,200
($82,000)
9,000
$ 27,310
($36310)
($50,111300)
FIFRA P2 (0)
PR (8)
Audit (0)
Restore (0)
LEPC (0)
Aware (3)
* EPCRA cases include 6 non-section 313 (TRI) SEPs
" OMS includes 1 MOD SEP; all others are FOSD
RCRA cases include 2 SPCC SEPs and 1 UST SEP
-------
CHART1
SUPPLEMENTAL ENVIRONMENTAL PROJECTS
By Program (%)
CHART2
SUPPLEMENTAL ENVIRONMENTAL PROJECTS
By Type <%)
Public Awareness
48%
Total-409
Pollution
Reduction
29%
Env. Restoration 1%
Pollution Prevention
15%
LEPC2%
Audit 5%
-------
CHART 3A
SUPPLEMENTAL ENVIRONMENTAL PROJECTS
By Type (%)
Total # n 222 (excludes OMS) 2% Env. Restoration
CHART 3B
SUPPLEMENTAL ENVIRONMENTAL PROJECTS
By Program (%)
FIFRA 3% RCRA 9% Total ~ " 222 (excludes QMS)
-------
CHART 4
VALUE SEPS BY TYPE (%)
Total All Programs - S50.1M
Reduction Prevention Audit LEPC Restoration Awareness
CHARTS
POLLUTION PREVENTION SEPS
By Activity (%)
-------
CHART 6
CHEMICALS IN P2 SEPS
APPROXIMATE AMOUNT REDUCED/ELIMINATED
1,1,1 TCE* (10)
>185,400 lbs/yr (5)
TOLUENE* (10)
> 87,300 lbs/yr (6)
MEK* (8)
>30,000 lbs/yr (3)
XYLENE* (7)
>32,855 lbs/yr (2)
SULFURIC ACID (6)
>8,850 lbs/yr (1)
FREON (6)
>8,730 gal/yr (1)
ACETONE (4)
> 250,000 lbs/yr (1)
VOCs (5)
>8,500 lbs/yr (1)
AMMONIA (2)
>1,500,000 lbs/yr (1)
CHROMIUM* (1)
N/A
CHART7
VALUE SEPS BY PROGRAM (%)
Total All Programs - $50.1M
TSCA EPCRA CAA CWA RCRA Others
------- |