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SUMMARY OF ENFORCEMENT ACCOMPLISHMENTS
Fiscal Year 1981
Office of Enforcement and Compliance Monitoring
U.S. Environmental Protection Agency
Washington, D.C.
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FOREWORD/ACKNOWLEDGEMENT
The purpose of this report is to summarize the combined
enforcement and compliance accomplishments of EPA, the Regions
and the States in Fiscal Year 1986« This report was prepared by
the Office of Enforcement and Compliance Monitoring (OECM) and
is based on information and data from various EPA enforcement
offices and data management systems. The principal author of
the report was Robert Banks of the Compliance and Evaluation
Branch of OECM. We would li-ke to thank each of the Regional
Offices and Program Offices for their valuable contributions
which aided in the production of this report.
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SUMMARY OF ENFORCEMENT ACCOMPLISHMENTS REPORT
EXECUTIVE SUMMARY
National Enforcement
Building a Stable and Predictable National Enforcement
Program .........
Enforcement Initiatives
Strategies and
Guidance
Major Enforcement Litigation and Bateabliahim
Key Legal Precedents ............ ,
Enforcement Actions and
Successful Resolution of Significant Violations in
Specific Media Programs ... ,
4
9
11
17
30
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EXECUTIVE SUMMARY
In Fiscal Year 1986, EPA sustained the record level of
enforcement activity established in FY 1985. In FY 1986, state
and federal environmental civil, criminal and administrative
enforcement actions continued to be undertaken at record levels.
During the year, the Agency continued to achieve high levels of
compliance by enforcing the environmental laws vigorously, consis-
tently and equitably to achieve the greatest possible environmen-
tal results. This was achieved in part by putting in place more
systematic approaches to managing EPA's compliance monitoring
and enforcement programs to ensure more stable, predictable and
timely responses to violators and assuring; effective deterrence
to future violations.
Fiscal Year 1986 was a banner year for national enforcement
activity. In FY 1986, the Agency referred 342 judicial actions
to the Department of Justice, compared to 276 last year. The
Regions referred an all time high number of 386 civil cases to
EPA Headquarters. The Criminal Enforcement Program experienced
its most successful and productive year since the program com-
menced by referring an all time high of 45 criminal cases to DOJ.
One of the ways the Agency continued to build a stable
enforcement program was by improving the State/EPA enforcement
relationship. The Policy Framework for State/EPA Enforcement
Agreements,'which serves as a blueprint for the State/EPA relation-
ship, was revised in FY 1986 to improve upon the basic guidelines
necessary for an effective working partnership with the States.
In FY 1986, a report on implementation of timely and appropriate
(T&A) enforcement response guidance was developed and concluded
that the guidelines are generally having a favorable impact.
Also, EPA strengthened the relationships between EPA, State
Agencies and the State Attorneys General offices by assisting in
the publication of a national environmental journal and joint
sponsorship of several seminars. The Agency revised a draft
report on Federal Penalty Practices during the year. The study
concluded that the number of cases involving penalties and the
size of penalties is increasing. EPA also developed a data base
to describe and provide a profile of new civil referrals.
In;FY 1986, the Agency implemented and continued several
multi-case enforcement initiatives in priority areas. These
initiatives included the Asbestos NESHAP, Volatile Organic
Compounds (VOC), the National Municipal Policy, Underground
Injection Control and Public Water Systems.
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Several compliance and enforcement strategies were designed
and implemented during the year. The Loss of Interim Status
Enforcement Strategy supplemented earlier guidance that outlined
major elements of the enforcement strategy. The Office of Water
Enforcement and Permits (OWEP) issued the Pretreatment Compliance
Monitoring and Enforcement Guidance which is intended to be a
comprehensive guide for POTW implementation of the pretreatment
program. During the year, OECM issued the EPA Guidance on the
Inclusion of Environmental Auditing Provisions in Enforcement
Settlements. OECM also issued draft guidance on the use of
alternative dispute resolution, third party neutrals, in EPA
enforcement actions.
Major enforcement civil, criminal and administrative cases
were concluded during FY 1986. Following is a list of highlights
of some key precedents established in FY 1986:
0 One of the largest penalty settlements to date for EPA
for violations of the Clean Water Act by a large municipa-
lity;
0 The first agreement in the country that gives a State
authority to regulate the management of radioactive mixed
wa'stes; •
0 The first case in which a defendant was charged with
knowingly endangering human health or life under RCRA;
0 The first case in which a public official has been
charged and convicted of federal environmental crimes?
0 The first case to criminally convict for a violation of
an Air State Implementation Plan;
0 One of the first cases to construe the responsibilities
of an owner or operator of a building under the asbestos
regulations; and,
0 Successful action against the largest uncontrolled
source of sulfur dioxide in the western United States.
0 The most significant criminal sentences (includes
imprisonment) to date for asbestos removal and handling
violations under the Clean Air Act.
0 The first Federal case charging violations of the Safe .
Drinking Water Act's underground injection control program,
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0 Completion of the Federal pretreatraent enforcement
initiative by the end of which virtually all major munici-
palities had adopted acceptable local pretreatment programs
regulating the discharge of industrial wastewatet into
municipal sewage treatment systems.
During FY 1986, EPA/States achieved successful resolution of
significant violators and set record levels of enforcement actions
in specific media programs. Except for those programs with
changes in their significant noncomplier definition, most programs
returned a higher percentage of significant violators to compliance
compared to FY 1985.
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I. SETTING RECORD LEVELS OF NATIONAL ENFORCEMENT ACTIVITY
NationalEnforcement Activity
Over the past 15 years, Congress has passed a number of
environmental laws and EPA intends to ensure the protection
of human health and the environment to the extent that the
laws provide. EPA has significantly increased its enforcement
efforts to put the regulated community on notice that the
Agency will not tolerate -violations of the nation's environ-
mental laws.
In Fiscal Year 1986, the Agency referred 342 judicial
cases to the Justice Department, compared with 276 last year
(see page 2}» Cases involving violations of the federal
clean air and water acts accounted for over 200 of these
referrals? over 80 case referrals involved violations under
federal hazardous waste laws. The Department of Justice
filed 245 cases in 1986 which were referred by EPA. The
year before, Justice filed 214 cases. The States referred
543 cases, compared to 513 last year.
The overall level of compliance and enforcement activity
"continued at record levels in FY 1986. By the end of the
year, 2,603 administrative orders had been issued by EPA.
This is the one highest number of administrative orders issued
since 1982 (see page 3). Administrative enforcement actions
by States also increased compared to last year from 3,978 to
4,877.
In FY 1986, the Regions referred the highest number of
civil cases in the Agency's history (page 3). The national
figure of 386 civil referrals represents an increase of 20%
over FY 1985 and includes six air mobile cases. Since 1982,
the number of civil cases referred by the Regions has more
than doubled. Civil referrals are those cases referred by
the Regions to EPA Headquarters and direct from the Regions
to the Department of Justice.
The best measure o£ accomplishment of the Criminal
Enforcement Program is the success of its investigations to
seek and uncover environmental crime and bring those respon-
sible to justice. Using this measure, the Program experienced
its most successful and productive year since the Program
commenced.
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JUDICIAL CASE REFERRALS TO DOJ
FY 1982 - FY 1986
NATIONAL
1982
1983
i
to
1
1984
FISCAL YEARS
1985
1986
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NATIONAL ENFORCEMENT ACTIVITY
FY 1982 - FY 1986
OYIL REFERRALS
ADMINISTRATIVE ORDERS
K
m
3500 -i
5000-
1982 1983 1984 1985
FISCAL YEARS
1986
1982 1983 1984 1985
FISCAL YEARS
1986
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In Fiscal Year 1986, the Agency referred 45 criminal
cases (an all time high) to the Department of Justice (DOJ)
for prosecution, compared to 36 last year. There were 41
criminal referrals to EPA Headquarters from the Offiej^s of
Criminal Investigations and the Regions compared t>o i44Jlast
year. Criminal charges were filed against 94 defendants by
DOJ for environmental crimes (which includes a very small
number of referrals from other federal agencies). The year
before only 40 such charges were filed and 123 in all previous
years combined. Sixty-seven defendants were convicted or
Centered guilty pleas this year, compared, with 37 last year
and 109 in all previous years. This and past year's investi-
gative activities resulted in the federal courts imposing
fines totalling $1.9 million against environmental criminal
defendants, and prison sentences totalling more than 124
years, of which over 31 years will be served (the remaining
years suspended) in Fiscal Year 1986.
It is also important to note that it is EPA's and DOJ's
policy whenever appropriate to charge responsible individuals
at the highest corporate level, rather than merely charging ,
the corporation, as is done in most civil enforcement cases.
The possibility of serving.a prison term eliminates the cor-
porate notion of writing-off penalties as merely a cost of
doing business. Of the 94 defendants charged in FY 1986, 66
defendants were individuals. Of those 66, there were 25
presidents or owners of firms, 13 vice-presidents, 6 direc-
tors or other officers, .7 managers, 3 foremen, 3 supervisors,
1 chief chemist and 7 other employees charged.
The same is true with respect to pleas and convictions
of environmental crimes in FY 1986. Of the 67 pleas and
convictions, 22 were corporations. Of the remaining 45
convictions, there were 17 presidents or owners, 8 vice-
presidents, 4 directors or other officers, 5 managers, 2
foremen, 1 supervisor, 1 chief engineer, 1 chief chemist and
6 other employees convicted.
II. BUILDING A STABLE AND PREDICTABLE NATIONAL ENFORCEMENT PROGRAM
State/EPA Relationship
During FY 1986, EPA continued to enhance the State/EPA
enforcement relationship and build on the solid foundation
established over the past three years. The Policy Framework
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for State/EPA Enforcement Agreements, originally issued in
1984, along with program-specific implementing guidance,
will continue to serve as the blueprint for the State/EPA
enforcement relationship. The Policy Framework was revised
and reissued in August of 1986, so that there is a comprehen-
sive document that integrates all the related guidance. The
revisions are primarily intended to incorporate addenda
developed over the past two years in the areas of oversight
of state civil penalties, involvement of the State Attorneys
General in the enforcement agreements process, and implementa-
tio.n of nationally'managed or coordinated cases. Through.
the process of revising the Policy Framework, with the assist-
ance of the Steering Committee on the State/EPA Enforcement
Relationship, EPA and the States clearly reaffirmed that
the basic approaches put in place in 1984 for an effective
working partnership are sound and that all parties continue
to be committed to its effective implementation.
The Regions and States have State/EPA Enforcement
Agreements for ,FY 1987 in place for all programs and all
States. Changes in the basic agreements focused on implement-
ing the new areas covered by the revised Policy Framework,
improving the implementation and monitoring of timely and
appropriate enforcement response and clarifying the involve-
ment of the States in the Federal facilities compliance
process.
A major activity in FY 1986 was the development of a
report by each of the three major programs (RCRA, NPDES, and
Stationary Air) on the implementation of the timely and
appropriate enforcement response guidance that was set in
place in 1984. The report addressed the extent to which
both EPA and the States are meeting the established timeframes
and taking the appropriate action. In summary, the report
shows that EPA and the States have made a good start in
implementing the timely and appropriate enforcement response
system and that the guidelines are generally having a favor-
able impact. A wide variation exists among the three programs
in meeting the established timeframes. The NPDES program
has ,been the most consistent in meeting its timeframes (75%),
followed by RCRA (46%) and Air (22%).
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These differences appear to depend primarily on the length
of the timeframe established (it varied from a possible 180-270
days in NPDES to 90 days in RCRA). When performance is com-
pared across programs based on a set number of days (approxi-
mately 270 days) it took to formally respond to the violations,
the results are: NPDES 75%; RCRA 72%; and Air 39%, (although
19% were addressed by the time of the report). It appears
that the State/Federal partnership in this area is also
working well, with the States' performance in meeting the
timeframes in each program comparable to EPA's." EPA sought
penalties ..in 93% of its enforcement actions for RCRA and 811
of the Air actions? while the States sought penalties in 49%
of the enforcement actions for RCRA and 62% of the actions
for Air.
In addition to the Agency's activities to strengthen the
relationship between EPA and the State environmental agencies,
the Agency tried to improve the ties between the State Agencies
and the State Attorneys General and between EPA and National
Association of Attorneys General (NAAG) and the State AGs.
The revised Policy Framework encourages the Regions and State
Agencies to improve the involvement of the State AGs in the
enforcement agreements process.
OECM has also worked closely with the NAAG to increase
awareness by the AGs of environmental enforcement issues. As
part of an effort to exchange information among the various
agencies involved in environmental enforcement, the publica-
tion of the National Environmental Enforcement Journal was
started in FY 1986. This Journal reports major case decisions
and settlements, indictments, federal enforcement policy,
etc. It is distributed within EPA, DOJ, the U.S. Attorneys,
State AGs, State regulatory agencies, etc., and is an impor-
tant tool in developing stronger and more coordinated environ-
mental enforcement efforts. Wi'th EPA assistance, NAAG has
also conducted a series of seminars on waste oil enforcement
which brought together both the legal and technical staffs,
in an effort to develop a more cooperative and coordinated
enforcement program.
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Federal Pen a11y P r a ctices
During FY 1986, OECM revised the draft report on Federal
Penalty Practices to incorporate FY 1985 data. This study of
federal penalties concluded through FY 1985 revealed that the
percentage of cases involving a final penalty is increasing
in nearly all programs and that the size of typical penalties
is also increasing. It appears that the 1984 Uniform Penalty
Policy has, in part, led to greater use of penalties. To
illustrate, the draft analysis revealed that nearly one-third
of ;all federal penal-ties were assessed in Fiscal Year 1985
(excluding mobile source penalties which will be added to the
final report). A separate study was completed by OECM-Water
in FY 1986 penalties under the NPDES program. This study
revealed further, very significant increases in the size of
typical penalties compared to 1985 and a large increase in
the percentage of cases which were concluded with a penalty.
Strategic Profiles Data Base
OECM began developing a data base in FY 1986 to describe
the major components of civil referrals, including both the
main elements of the case (e.g., the types of program viola-
tions) and the major process-related elements which can
influence the referral process (e.g., whether program-specific
"timely and appropriate" requirements were met). This
"strategic profile" data base will eventually be used during
the annual strategic planning cycles, and during Regional
and national program reviews, to help ensure that the civil
enforcement docket continues to consist of a good mix of cases
which reflect program priorities. The data base will become
fully operational in FY 1987.
Improving Inspector Trainingand Development
The Deputy Administrator launched an Agency-wide Work
Group in Inspector Training and Development, led by the
Office of Enforcement and Compliance Monitoring, to establish
the objectives and policy for inspector development applicable
to jail agency programs and to create a framework for more
systematic training of EPA's field investigative personnel
engaged in compliance and enforcement-related field activities.
The group is addressing policy and implementation issues
such as: the scope and purpose of the program, career paths
and grade levels for EPA employees, long-term planning process
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for cross-media and media specific training, training of EPA
contract inspectors and States. An Agency policy should be
issued by FY 1988, which will establish a consistent and
systematic approach to training and development and will
increase the credibility and effectiveness of our compliance
monitoring programs. A generic, basic training course for all
EPA inspectors, currently being developed by an OECM-chaired
work group, will be pilot-tested next year.
Air Mobile Sources Enforcement^ Program
EPA's Mobile Source air enforcement activity experienced
a major shift in program focus during FY 1986. Oversight of
petroleum refineries has been expanded to assure compliance
with the Lead Phasedown regulations while tampering enforce-
ment activities have been augmented. An increased emphasis
has been placed on testing in-use light-duty trucks to deter-
mine their compliance with the more stringent emission stan-
dards while new heavy-duty engines were tested on the produc-
tion line for the first time.
Because of concern over violations of the lead phasedown
regulations, the Agency has significantly shifted its focus
to expand enforcement of the Lead Phasedown regulations
during FY 1986 by instituting a refinery inspection/audit
program. The office will continue that shift even further
during FY 1987. These audits are critical components of
efforts to assure compliance with the regulations. They are
resource intensive, but will help assure that the office
uncovers any violations of these regulations. Historically,
such violations have resulted in multi-million dollar proposed
penalties with the potential for criminal referrals as well.
As a result of Lead Phasedown regulations. Federal, State
and local enforcement activities and expanded refinery over-
sight, there has been a significant reduction in the rate of
contaminated unleaded gasoline found at retail gasoline
outlets. This reduction has resulted in a similar reduction,
therefore, in the number of Notices of Violation (NOV's)
issued by EPA. ..
During this transition, the Agency has been able to
offset the reduced fuels NOV's by enhancing its tampering
enforcement activities for FY 1986 by issuing 73 NOV's with
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proposed penalties of $1.4 million compared to 23 NOV's for
.$600,000 during FY 1985. Similarly, the Agency settled 352
cases with penalties of $1.4 million for FY 1986 compared to
285 with penalties of $570,000 for FY 1985.
III. UNDERTAKING ENFORCEMENT INITIATIVES
A major goal for the enforcement and compliance monitoring
functions of the Agency is to ensure they further the most impor-
tant goals and objectives of Agency programs. In FY 1986, the
Agency implemented and continued several multi-case enforcement
initiatives in priority areas. This approach supplements the
systems established for predictable enforcement by streamlining
EPA referral and DOJ filing procedures for similar cases, and
generating greater publicity from the filing of a number of rela-
ted cases over a relatively short time period through use of a
coordinated communications strategy. EPA has taken these inno-
vative steps to enhance the deterrence impact of individual cases
on the broader regulated community. This is achieved in well
targeted and planned enforcement actions. Experience to date
indicates that handling a number of similar cases at one time is
also more efficient as many of the technical and legal issues are
similar and can be res'olved in a more standardized and consistent
manner.
Asbe_stos Multi-Case Initiatives
On January 16, 1986, EPA filed 11 civil actions throughout
the country for violations of the asbestos NESHAP (National
Emission Standard for Hazardous Air Pollutants) which occurred
during the demolition or renovation of buildings. The purpose
of the coordinated filing was to increase public awareness
of EPA regulations and their applicability to both contractors
and building owners, and the initiative did receive consider-
able media coverage. To date, of the 11 cases filed, five
have been settled, with penalties totaling $112,000.
Volatile Organic Compounds _(VOC) Multi-Case Initiative
On June 30, 1986, EPA initiated Clean Air Act civil
enforcement actions against eight metal coating facilities
located in the Los Angeles Basin for violations of California
State Implementation Plan (SIP) limits on VOC emissions. The
purpose of the coordinated filing was to increase awareness
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within the regulated community that VOC compliance is an EPA
enforcement priority. (VOC emissions are precursors to the
criteria pollutant ozone.) The cases are strategically impor-
tant since the Los Angeles Basin is the worst ozone non-attain-
ment area in the nation. Settlement agreements have been
reached in four of the eight cases, with civil penalties
ranging from $20,000 to $50,000.
Na,t^iona 1L Munlcipal Pol icy (NMP)
The NMP enforcement-initiative was undertaken to emphasize
the Agency's intent to carry out the Policy and to underscore
the need for noncomplying communities to agree to enforceable
schedules to complete their requirements under the CWA.
Beginning in August 1985, OWEP and OECM worked with the Regions
to bring cases against the candidates for immediate enforce-
ment. In March 1986, the effort climaxed with a press release
and briefing at which the Agency announced the filing of
actions against 15 faclities in five Regions. The impact of
the initiative continued well after the press release and by
the end of the fiscal year, 20 additional cases were brought
against major NMP facilities. At the beginning of FY 1986,
approximately. 580 majors were not on an enforceable schedule.
By the end of the fiscal year, over 500 schedules were estab-
lished in permits, administrative orders, and over 50 in
judicial orders.
Clean Water Act Industrial Pretreatment EnforcementInitiatives
In PY 1986, civil cases were filed in district court
against twenty-seven Region II electroplating facilities
located in the New York City metropolitan area. Each of these
facilities had failed to comply with applicable pretreatment
standards. This massive effort served notice to the industrial
community that Region II was intent on obtaining timely compli-
ance with pretreatment standards. Four of these cases were
settled in FY 1986, or shortly thereafter, for penalties
ranging from $24,000 to $82,500, recouping economic benefit in
each of these cases. In addition to the Region .II cases, in
the-ifirst quarter of FY 1986, Region IX issued thirty-six pre-
treatment administrative orders, in cooperation with the County
Sanitation District of Los Angeles County, to electroplating
facilities which had failed to comply with the applicable pre-
treatment standards. This effort, and the publicity which it
received, provided strong incentives for industrial users to
achieve compliance.
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Underground Injection Control JQIC) Enforcement Initiative
The Agency initiated the UIC Enforcement Initiative in .
FY 1986 to establish a Federal enforcement presence. By the
end of FY 1986 there were 10 referrals for a program which had
only one referral prior to FY 1986.
Public Water System Enforcement Initiative
EPA sponsored a public water system enforcement initiative
designed to encour-age State- action against systems (mostly with
fewer than 1,000 users) which have persistently violated
Federal requirements for the past three years. Of the 200-plus
target systems, by the end of FY 1986, EPA had either
"resolved" the violations, given the State statutorily-required
notice to take enforcement action, or taken Federal action
against all but 16. Follow-through on this initiative will
continue in FY 1987.
IV. IMPROVING STRATEGIES AND DEVELOPING GUIDANCE FOR COMPLIANCE
AND ENFORCEMENT
Fiscal Year 1986 was the year,in .which the Agency continued
to design and implement an ongoing strategic planning process
for refining and improving compliance and enforcement strategies
and programs that is now an integral part of the Agency's overall
Strategic Planning and Management System (SPMS). The process is
designed to promote strategic thinking and focus on addressing
emerging problems in the compliance and enforcement programs
through joint meetings at the beginning of the planning cycle.
Written strategies for compliance and enforcement especially
for new programs, serve as important communications tools and
frameworks for program operations. Highlighted below are several
example accomplishments for improved strategies in FY 1986.
Loss ofInterim Status EnforcementStrategy
i The Loss of Interim Status (LOIS) 'Enforcement Strategy
was issued in October, 1985, to supplement the guidance on
the Loss of Interim Status Provision for Land Disposal Facili-
ties which was issued in PY 1985. The LOIS Enforcement Stra-
tegy was developed by the Office of Waste Programs Enforcement
(OWPE)-and the Hazardous Waste Division of OECM. The guidance
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delineated four major elements of the enforcement strategy,
including a communication strategy, an inventory of facilities,
the targeting of facilities for priority enforcement, and -
.evaluation o£ ground-water monitoring systems of. facilities
which retain interim status or submit closure plans.
Interpretation of Section J3003(h) of the Solid Waste Disposal
Act
•This guidance was developed and issued jointly by_the
Office of Solid Waste and' Emergency Response (OSWER) and OECM
in January, 1986. Section 3008(h) was added to the Solid
Waste Disposal Act by the Hazardous and Solid Waste Amendments
of 1984 to address environmental problems by requiring cleanup
at facilities that operated or were continuing to operate
subject to RCRA interim status requirements. The purpose of
the guidance was to provide guidelines on the scope of Section
3008(h) and to summarize appropriate procedures for use ot"
the Section 3008{h) authority.
En£orcement Ma n a g em e n t Sy s tem
On February 27, 1986, the Assistant Administrator for
Water signed the revised Enforcement Management System (EMS)
Guide. The EMS Guide establishes the basic principles for
compliance monitoring and enforcement within the Clean Water
Act's NPDES program. The Guide had not been maintained, new
concepts and policies have been incorporated into the basic
management framework. The revised Guide requires that all
NPDES administering agencies (EPA and State) develop their
own written EMS and include procedures and controls needed to
implement each principle in the EMS Guide. The Guide covers
procedures for oversight of State NPDES programs, reviewing
violations (Violation Review Action Criteria), determining
appropriate responses to noncompliance (Enforcement Response
Guide) and managing permit compliance and enforcement infor-
mation.
Pretreatment Compliance. Inspection - (.PCI) and Audit Manual for. _
Approval Authorities
The PCI/Audit manual, which was issued July 1986, provides
EPA and State pretreatment Approval Authorities with informa-
tion and material on audits and inspections of approved local
POTW pretreatment programs. The manual should assist Approval
Authorities in providing effective oversight of approved
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pretreatraent programs under their jurisdiction. The PCI and
audit procedures were consolidated into one manual because
the preparation and follow-up steps for the two activities
are similar. Separate checklists for conducting PCIs and
audits are included. Audits and PCIs are complementary means
of achieving effective pretreatment program oversight. Auditsf
which are more comprehensive and resource-intensive than PCIs,
are most useful when conducted approximately one year after
program approval and again during the POTWs five-year permit
term. In cases where the POTW has failed to implement impor-
tant aspects of its program, the audit may also provide an •
opportunity to determine whether enforcement action against
the POTW is needed. PCIs are less resource-intensive than
audits. The PCI focuses on the POTWs compliance monitoring
and enforcement activities. Optimally, PCIs should be per-
formed annually during the interim years between audits as
part of routine NPDES municipal inspections. PCIs should be
included in the compliance inspection plan developed between
Regions and States.
Permit Comlj^anc Sstem (PCS) Policy Statement
.The Permit Compliance System (PCS) is the national data
base for the Clean Water Act's NPDES permitting and enforce-
ment program. It serves as the primary source of NPDES
information for EPA, NPDES States, Congress, and the public.
The use and support of PCS by EPA Regions and NPDES States
are crucial to the effectiveness and proper oversight of the
NPDES program. The PCS Policy Statement, signed by the Assis-
tant Administrator for Water, establishes for EPA and NPDES
States the key management practices and responsibilities cen-
tral to PCS' ability to contribute to the overall integrity -•
of the NPDES program and the achievement of our long-term
environmental goals. One of the requirements was to have
Regions and States enter all required data into PCS by Septem-
ber 30, 1986 and then keep the data entry current. While the
aim of the policy is a consistent approach across Regional
and State NPDES programs, it retains flexibility for Regions
and States to tailor agreements to the unique conditions of
each State. " " • ' ...... .'
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Guidance ConcerningEPA Involvement in RCRA §7002 Citizen
Suits
This guidance was issued in September, 1986 and was
written to establish a procedure for systematic review of RCRA
citizen suit notices and to provide guidance for EPA enforce-
ment staff to use in deciding what involvement by EPA is
appropriate when a notice of intent to file suit is received
or when an action is filed under RCRA §7002.
Timing of CERCLA Cost; Recovery; Actions.
This guidance, issued jointly by OECM and OSWER on
October 1, 1985, provides guidance on when cost recovery
action under CERCLA Section 107 should be initiated. Its
purpose is to assist Regional offices in management of cost
recovery actions.
Procedural Guidance on Treatment ofInsurersUnder CERCLA
This guidance was issued in November 1985 and focuses
attention on the defense bar's efforts to look to insurance
carriers for legal representation and indemnification in
CERCLA enforcement cases. The guidance is intended to assist
Regional offices in developing procedures for issuing notice
letters, developing referrals, and tracking CERCLA enforcement
cases that may include insurers as third party defendants.
Authority to^ Use CERCLA to Provide Enforcement Funding to
States
This guidance issued by the Office of General Counsel
(OGC) February 12, 1986, provided a broader definition of
state enforcement activities which may be eligible for CERCLA
funding. A draft addendum of March 26, 1986, identified a
number of activities which might be among allowable costs.
Revised Hazardous Waste Bankruptcy Guidance
: Issued on May 23, T986," this guidance updates previous
guidance on enforcement against bankrupt parties. The
Agency's recent experience in CERCLA and RCRA enforcement
against bankrupt parties identified the need for updated,
revised guidance. Among the topics covered are specific
criteria for evaluating the merits of a potential bankruptcy
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referral, policy regarding settlement with bankrupt parties,
and review of recent judicial decisions on the automatic
stay, abandonment, discharge, and claims of administrative -
expenses.
Pretreatment Compliance Monitoring and Enforcement.Guidance
In July 1986, the Office of Water Enforcement and Permits
(OWEP) issued the Pretreatment Compliance Monitoring and
Enforcement Guidance. This document.is intended to be a
comprehensive guide for POTWs tb pretreatment implementation,
particularly on-going compliance monitoring and enforcement
activities. It provides a detailed discussion of:
1) establishing monitoring requirements for industrial
users;
.2) sampling and inspecting industrial users;
3) reviewing industrial user reports;
4) determining industrial user compliance status?
5) setting priorities for enforcement actions; and,
6} reporting progress to Approval Authorities.
Additionally, it establishes a definition of a Significant
Industrial User for use by Control Authorities in targeting
primary implementation activities and recommends a definition
of Significant Noncompliance to be applied in evaluating
industrial user performance in complying with effluent and
reporting requirements as well as compliance schedules. This
document provides POTWs with a basis for establishing and
carrying out an effective program to monitor and enforce
against industrial users who fail to comply with pretreatment
standards—responsibilities which are new to most POTWs.
Clean Water Act Civil Penalty Policy
In February 1986, OWEP and OECM jointly issued the Clean
Water Act Civil Penalty Policy to be used by EPA in calcula-
ting the penalty that the Federal government will seek in
settlement of judicial actions brought under. Section 309 of
the Clean Water Act. This Policy was 'developed in response
to EPA's Policy on Civil Penalties and a Framework for Statute-
Specific Approaches to PenaltyAssessments. This penalty
policy is designed to promote a more consistent, Agency-wide
approach to the assessment of civil penalties and will promote
the goals of increasing the recovery of economic benefit of
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noncompliance, providing a more fair and equitable treatment
of the regulated community, and achieving a swift resolution
of environmental problems and enforcement actions.
Administrative Order Authpnities Under SDWA
The Safe Drinking Water Act Amendments of 1986 provided
the UIC and PWS programs with new Administrative Order authori-
ties. In 1986, ODW and OECM jointly developed all the neces-
sary policies and guidelines to quickly begin to use these new
authorities.
Rev.JLS.ed PWS Comp 1 i a nee St. r a t egy
During 1986, the PWS program evaluated its 1984 Compliance
Strategy, and decided to develop an updated strategy. The new
Strategy goes beyond the earlier revision in terms of estab-
lishing the direction of compliance and enforcement activities
and incorporates the new Administrative Order authorities.
The Compliance Strategy focuses on using innovative approaches
to "compliance promotion and discusses how to leverage other
groups (such as HUD) to ensure better compliance.
Environmental Auditing
In FY 1986, OECM worked to finalize the EPA Guidance on
the Inclusion of Environmental Auditing Provisions in Enforce-
ment Settlements. The Guidance provides Agency enforcement
personnel with general criteria for and guidance on selecting
judicial and administrative enforcement cases in which EPA
will seek to include environmental auditing provisions among
the terms of settlement. The inclusion of environmental
auditing provisions is expected to enable EPA to accomplish
more effectively its primary mission, namely, to secure
environmental compliance.
In addition, several case-specific auditing initiatives
were launched by OECM during FY 1986, including an attempt
to resolve compliance problems of Chemical Waste Management
facilities nationwide on'a comprehensive basis.
In conjunction with the multi-media audits, the National
Enforcement Investigation Center (NEIC) provided training to
DOD and DOE personnel on multi-media audit procedures. The
training included discussions of regulation requirements,
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techniques for the collection and shipment of samples, waste
management practices and field safety requirements. In
conjunction with EPA's compliance strategy to improve the
quality and quantity of information on Federal facilities,
NSIC prepared multi-media priority rankings on selected
facilities in Reigons V and IX. The facilities were ranked
based on their potential to cause major environmental problems.
Alternative Dispute Resolution
On December 2, 1986, OECM issued draft guidance on the
use of alternative dispute resolution (ADR), and the use of
third-party neutrals, in EPA enforcement actions. The draft
guidance describes the various ADR mechanisms such as media-
tion and arbitration, suggests criteria by which enforcement
personnel can nominate appropriate cases for ADR from existing
caseloads, describes the method for processing case nomina-
tions, provides guidelines for the selection of neutrals,
describes how to proceed upon selection of a neutral, and
provides sample agreements and procedures.
V. CONCLUDING MAJOR ENFORCEMENT LITIGATION AND ESTABLISHING KEY
LEGAL PRECEDENTS
Each enforcement action, be it administrative, civil or
criminal judicial is important in bringing a violator back to
compliance, deterring future violations by that source or others
and establishing useful legal precedent. Following are highlights
from key cases which go beyond simple success in an individual
action. Examples are selected from each media program.
Air Stationary Litigation
Hope Resource Recovery,Inc. - In the first case to
criminally charge a violation of a State Implementation Plan
(adopted pursuant to the Clean Air Act), Hope Resource
Recovery, Inc., a refuse incineration company located in the
Long Island City area of Queens, New York City,, was sentenced
to a fine of $10,000 upon its plea of guilty entered in July
to one count of violating the federally-approved New York
State Implementation Plan (SIP). The SIP prohibits, inter
alia, operation of an air pollution source without a certifi-
cate to operate. The company was charged with operating its
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incinerator without such a certificate on several occasions
during 1983 and 1984, despite havinq been issued a Notice of
Violation by EPA. (Region II)
U.S. v. Geppert Brothers, Inc., andAmstar Corp. - This
case is significant because it is one of the first to construe
the responsibilities of an owner or operator of a building
under the asbestos regulations. On June 30, 1986, the United
States District Court for the Eastern District of Pennsylvania
ruled that an owner of a building may be held liable for vio-
lations of the asbestos NESHAP regulations* (40 CFR Part 6L,
Subpart M), which occur during demolition of the building by
a subcontractor. In this case, the court rejected the argu-
ments of Amstar, the building owner, that it should not be
held liable because the subcontractor, Geppert Brothers, Inc.,
controlled the demolition operations. The court held that
both Amstar and Geppert Brothers, Inc., were subject to the
requirements of the NESHAP regulations. (Region III)
U.S. v. Phelp5 Pod qe Corp. - The largest uncontrolled
source1 of sulfur dioxide in the western United States was the
target of a successful action brought by Region IX. On
July 29, 1986, the United States, Arizona, and Phelps Dodge
Corporation executed a consent decree resolving Clean Air Act
violations at the company's Douglas Reduction Works copper
smelter, located on the U.S.-Mexican border in Douglas, Ari-
zona. The Environmental Defense Fund was subsequently joined
in the settlement as a plaintiff-intervenor. The facility,
which is located in a non-attainment area for both sulfur
dioxide (SO2) and particulate matter (PM), is the only copper
smelter iri the United States operating without continuous
controls for S02- The smelter has historically emitted in '
excess of 300,000 tons per year of S02 and over 4,000 tons
per year of PM (sulfates, arsenic, lead, etc.), making it one
of the largest sources of air pollution in the country. The
consent decree requires final compliance no later than
January 15, 1987 by permanent cessation of smelting, as well
as stringent interim control measures and civil penalties of
$400,000 for past violations.
U.S. v. Occidental Chemical Corp. - In this civil action
for violations of the vinyl chloride NESHAP, the district
court held that the defendant has the burden of proving its
claim that relief valve discharges of vinyl chloride should
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be excused as "emergencies." The court construed the emer-
gency exception to the prohibition against relief valve "dis-
charges to be an affirmative defense. This decision is
significant because there are a number of cases pending,
including several in the same district, in which EPA is
pursuing claims for violations of this particular provision
of the vinyl chloride NESH&P regulations.
U.S. v. jTones j_JLaughlin Steel Corp» - This decision by
the Sixth Circuit Court of Appeals is important for two
reasons—it reaffirms th_e limited role of a trial court in
reviewing a consent decree, and it adds weight to the numer-
ous case decisions holding that EPA is not stayed by the
Bankruptcy Code from enforcing environmental statutes against
polluters who are in bankruptcy.
EPA appealed after a district court judge rejected a
proposed judgment order because it did not provide for sharing
penalties assessed against J&L with the City of Cleveland.
The appellate court found that the trial court had exceeded
its authority by not approving an order which met the standard
of being fair and adequate and protecting the environment.
The appellate court also found that the Bankruptcy Code provi-
sion which protects debtors from having to pay creditors
except when the debt is owed to the government as a result of
an enforcement action, applies to settlements of enforcement
actions as well.
U.S» v. St. Joe Minerals - The decree in this case called
for the payment of a $2.2 million penalty. The company had
been violating the Pennsylvania 302 SIP standard applicable
to coal-fired boilers for over three years and during the pen-
dancy of the lawsuit had been pursuing a revision to the SIP
standard by means of a "bubble" proposal. Under the settle-
ment, St. Joe is converting its two coal-fired boilers to
allow combustion of both natural gas and coal and -will comply
with the applicable SC>2 regulation by June 1, 1987.
(Region III)
Water (CWA s SJDWA) Litigation .._......_
City of _Lps Angeles - This case represents one of the
largest penalty settlement to date for EPA and the only case
penalty recovered from violations of the Clean Water Act by a
large municipality. An amended consent decree was lodged with
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the Central District Court on October 2, 1986. The settlement
includes provisions that the city terminate sludge discharge
to the Pacific Ocean by December 31, 1987, and that the City
meet secondary treatment effluent limits at the Hyperion
Treatment Plant by December 31, 1998. In order to settle the
dispute over penalties for violations of the original consent
decree and for violations of their NPDES permit limitations,
the City agreed to pay $3,925,000 in fines. Of this amount,
$625,000 will be paid to the U.S. Treasury and $3,300,000
will be spent on an assessment of and actions to reduce the
pollutants entering Santa Monica Bay via storm drain effluent.
(Region IX)
U_._S* v. City of Key West and the State of Florida - On
June 23, 1986, in U.S. District Court in Miami, Florida,
Judge Scott entered a Consent Decree and a related Stipula-
tion regarding the City of Key West. The Decree provides for
the construction of a 7mgd sewage treatment plant (estimated
cost $30 million), a civil penalty of $600,000, and stipulated
penalties in the event of a failure to meet the milestone
dates in the construction schedule or effluent limitations.
The Key West case is part of the National Municipal
Policy (NMP) Enforcement Initiative. The settlement reached
in this case compares quite favorably with other settlements
under this initiative and, indeed, is the second highest civil
penalty ever received by EPA from a raunicipaltiy for NPDES
violations. This will be an important precedent for EPA's
municipal enforcement program. (Region IV)
U.S. v. City of Moore, Qklahoina - On November 27, 1985,
the Federal District Court for the .Western District ;of Okla-
homa granted the United States motion for partial summary
judgment against the City of Moore for violations of the
requirements in both its NPDES permit and several administra-
tive orders issued by EPA. The defendant raised a number of
defenses to the government's motion.
The court rejected all but one of the defendant's argu-
ments against summary judgment, holding that:- (1) the Glean
Water Act is a strict liability statute and that the plaintiff
only had to show violations of the permit or.order (here,
through submission of DMRs as admissions of liability). The
court stated that harm and/or intent are irrelevant except
where criminal liability is alleged; {2} "when engaged in the
exercise of sovereign power to protect the public interest
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the government is not subject to estoppel" because it did
not previously enforce the permit limits at issuej (3) a
municipality's "duty to comply with the Clean Water Act is
not contingent on grant funding"? (4) the City cannot avoid"
liability for violations occurring after withdrawal of an
administrative order containing less stringent interim limits
where the City had clear oral notice.and subsequent written
notice of the withdrawal; and finally, (5) evidence of the
City's progress in improving its compliance record was perti-
nent to the issue of the amount of the penalty but not to
the issue of liability.
On the issue of whether the alleged inaccurately reported
test results prevented the granting of summary judgment, the
court ruled that there were sufficient issues of fact, in this
particular case, to warrant a hearing as to those alleged
violations. The court pointed out, however, that its ruling
on this issue was different from that of other courts which
had held that "a denial of the accuracy of reported data would
not operate to defeat summary judgment on the issue of lia-
bility."
City_ of Lafayette - On December 5, 1985, the Federal
District Court for the Northern District of Indiana, granted
a motion for partial summary judgment against the City of
Lafayette, Indiana, on the issue of liability for failure to
establish a pretreatment program as required by its NPDES
permit.
In this case, the defendant's permit required that an
approvable pretreatment program be submitted by November 1,
1981. After numerous delays and;communications among EPA,
the City and the State, an approvable program was submitted
in March 1985, except for a sewer use ordinance. EPA filed
suit in April 1985 and the ordinance was passed on May 28,
1985. Therefore, at the time the motion was argued, the
pretreatment program had been developed and approved.
The City argued, {!) that because the program had now
been approved, plaintiff's motion for summary- judgment should
be denied; (2) that the City had acted in good faith to comply
with Federal requirements,* and (3) that any delays were caused
by Federal and State agencies.
In rejecting the City's arguments, the court found that
the City had ample opportunity and assistance to enable it to
comply with its pretreatment requirements and that it had
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violated its permit, the regulations at 40 C.F.R. §403, and
an administrative order issued by EPA. In addition, the
court found no evidence that the City was properly implemen-
ting its program. The court held, therefore, that the Federal
government was entitled to judgment on liability as a matter
of law even in light of any progress the City had made.
Hazardous Waste (RCRA/CERCLA) Litigation
U.S. v* South Carolina Recycling and Disposal, Inc.
(BlufJRoad) - Final judgment was entered in the SCRDI Bluff
Road CERCLA cost-recovery case with the United States being
awarded the entire $1,561,134.55 claimed. While the Bluff
Road liability decision had been and continues to be frequent-
ly cited to by the United States in other CERCLA cost-recovery
cases because of its favorable language regarding the liabi-
lity standards, final judgment on the issue of costs had been
long awaited. With the'cost judgment the Bluff Road case
constitutes a significant CERCLA enforcement success.
(Region IV)
Denver-Arapahoe Chemical Waste Processing Facility -
FY 1986 saw the completion of a major phase of closing the
Denver-Arapahoe Chemical Waste Processing Facility. This
action was the result of a closure plan that was issued by
EPA in 1984. This was the first RCRA administrative penalty
challenged and upheld in the Federal District Court.
The closing consisted of removing approximately 34,000
drums of hazardous waste, which had been disposed in a burial
cell between 1980 and 1982 at the site, as it operated as a
commercial hazardous waste'land disposal facility. The
exhumed drums were each tested, categorized, and shipped to
disposal facilities out of state. All contaminated soil was
excavated, piled into a huge "mountain" and covered with a
(CPER) liner, pending final disposition. The burial cell
itself was then sampled, found to be "clean", and completely
regraded. Also, during the closure process, the company
discovered and reported to EPA that a few drums contained
PCBs. Since this facility was never" approved' for PCB dispo-
sal, the burial of the PCBs was a violation of the PCB regula-
tions. In March of 1986, EPA filed an administrative complaint
proposing a $20,000 civil penalty for the improper disposal
of PCBs. In addition, relative to the Denver-Arapahoe Chemi-
cal Waste Processing Facility, an EPA RCRA enforcement action
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for violations of the interim status regulations has been in
litigation for over three years. EPA finally won its case
which resulted in a fine of $40,000 plus interest,
Queen City Farms - Three years of negotiations has
culminated in the cleanup of three hazardous•waste disposal
ponds (approximately one million gallons) at the Queen City
Farm site near Mapie Valley, WA. This cleanup is unique in
that there was very little expenditure of government resources.
The $5,000,000 cleanup was completed prior to RI/FS. The PRP's
did the testing of the. materials in the hazardous waste ponds.
The consent decree includes a perpetual trust of $100,000 to
monitor the site. EPA will be negotiating with the PRP's for
a RI/FS. The RI/FS will help determine if the clay cap and
diversion trenches installed as part of this cleanup are
effective. (Region X}
Rocky Flats - An agreement was negotiated between DOE,
the Colorado State Department of Health and EPA, regarding
the management of radioactive mixed wastes that are generated
at Rocky Flats outside of Denver, CO (a DOE facility that
manufactures trigger devices for nuclear warheads). This
agreement was the first in the country that gives a state
authority to regulate the management of radioactive mixed
wastes. The agreement also puts DOE on a schedule to submit
plans on its activities relative to managing its wastes.
(Region VIII)
Feed Materials Production Center, Fejmald, OH - On
July 18, 1986, EPA and DOE entered into a compliance agreement
requiring DOE to bring its Fernald, OH, facility into compli-
ance with RCRA, CERCLA and the CAA. The Agreement provides
for much needed oversight of DOE compliance by EPA.
Thirty (30) years of operation at the DOE, Fernald, OH,
plant have caused radioactive contamination of the groundwater
and nearby soils. In addition, DOE, until very recently,
maintained that it was not required to comply with RCRA interim
status and Part B requirements. Poor operation and maintenance
(O&M) procedures at Fernald have resulted in large releases of
radioactive particulates from baghouses and stacks at the
plant? and several hundred tons of thorium and radium are
stored in structurally unsound silos. The agreement requires
DOE to develop and implement initial remedial measures to abate
and prevent the release of radioactive gases from the silos?
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to conduct a remedial investigation/feasibility study at the
plant and off-site and to implement corrective measures selec-
ted by EPAj to bring the facility into compliance with RCRA
and the NESHAPS provisions of radionuclides promulgated under
§112 of the Clean Air Act; and to develop and implement effec-
tive O&M at the site. Implementation of each of these require-
ments is made subject to the availability of appropriated funds
for such purposes. The latter provision represents agreement
on funding language reached between EPA Headquarters and DOE.
(Region V)
Pesticides and Toxics Litigation
Commonwealth Edison Company - In a Consent Decree filed
in Federal District Court on September 29, 1986, Edison, of
Chicago, IL agreed to cleanup more than 300 sites contaminated
with PCBs. EPA had filed a civil suit in 1984 alleging that
PCB spills resulting from capacitor ruptures constituted
improper disposal and that Edison was not effective in decon-
taminating spill sites. Specifically, the decree requires
Edison to discontinue and physically remove all pole-mounted
PCB capacitors by January 1, 1987. Edison must adopt inspec-
tion and decontamination techniques to insure that spilled
PCBs are cleaned up in high contact residential areas to 5
parts per million. Edison estimated that it will cost 6 to 7
million dollars to decontaminate all old spill sites. The
company expects to pay an additional 20 million dollars to
remove and replace the poll-mounted capacitors. (Region V)
MIBARInc. - On May 21, 1986, a complaint was filed in
the United States District Court for the District of Colorado
against MIBAR and its president,,seeking an injunction against
numerous violations of FIFRA including the sale and distribu-
tion of unregistered pesticides, improper formulation and
waste disposal. On May 30, 1986, a Consent Decree was filed
with the same court in which MIBAR agreed to comply with
FIFRA, initiate a product recall, correct all label misbrand-
ing and properly dispose of a number of drums of pesticide
and chemical waste. These.violations of FIFRA were among
the most serious ever discovered by EPA and 'resulted in the
first use of FIFRA injunctive authority in five years.
In addition to negotiating a favorable consent decree,
Region VIII negotiated a separate $60,000 civil penalty for
the violations alleged in the Complaint. This was the largest
FIFRA civil penalty in 10 years. . (Region VIII)
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Union Carbide Corporation - This administrative penalty
enforcement action charged Union Carbide with failure to
provide to the Agency substantial risk information, a cance-r
study on dietnyl sulfate, as required by section 8{e) of
TSCA. Following a year of administrative litigation, the
innovative settlement agreement requires a comprehensive
environmental audit of the company's risk information and
provides for a novel alternative dispute resolution procedure
(ADR), the first such use of ADR in an EPA enforcement action,
Advanced Genetic S c ienee_s_ - On March 24, 1986, the Office
of Compliance Monitoring filed an administrative civil com-
plaint against Advanced Genetic Sciences (AGS), Oakland, CA,
for violations of the Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA). The case, the first of its type by
the Agency, involved two genetically engineered microbial
pesticides. The intended use of the microbes was to prevent
frost on plants. The complaint charged that AGS falsified
an application for an experimental use permit and conducted
experiments contrary to the conditions set forth in an
experimental use permit. The complaint proposed a total
penalty of $20,000.
On July 21, 1986, the Judicial Officer signed an Order
assessing AGS $13,000 and upholding the Agency's charges
against AGS.
DuPont Corporation - In this action, DuPont was charged
with violations of TSCA Section 5 premanufacture notification
requirements for new chemicals and paid a $100,000 fine.
Under the terms of settlement, DuPont*s Finishes and Fabri-
cated Products Department, the Division involved in this
action, is required to formalize a series of TSCA Section 5
compliance assurance procedures. These procedures were com-
piled into a guidance manual for employees affected by TSCA
requirements. The manual has been distributed at plants and
laboratories throughout the country. Training programs, with
respect to the compliance procedures, have been held at many
of: DuPont's facilities.. The settlement required DuPont to
produce a broadcast quality videotape on the requirements of
TSCA, to be used as part of the Company's employee education
program on TSCA compliance. In addition, DuPont is developing
an "artificial input" system to monitor TSCA compliance.
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Under the program, test inputs will be designed to test the
Company's ability to recognize and prevent the unlawful manu-
facturing or importation of new products containing components
not on the Inventory. Results of these tests will be reported
to EPA.
BASF Systems Corporation - In this action, BASF volun-
tarily disclosed that it imported and used chemical substances
that had not been listed on the TSCA Chemical Substances
Inventory. In the settlement of the subsequent enforcement
action, BASF agreed:to pay a fine of $80,000 and to initiate
a comprehensive environmental compliance audit of its opera-
tions at Bedford, MA, BASF is required to report any viola-
tions discovered in the course of the audit to EPA within 15
days of discovery, and pay a minimum of $10,000 for each
chemical violation reported for chemicals that do not represent
a threat to health or the environment. For other chemicals,
EPA is free to seek the maximum civil penalty. In addition to
these terms, BASF agreed to conduct an evaluation of the TSCA
compliance program of its parent corporation, BASF, A.G. of
West Germany.
gummary of Administrative Litigation
During 1986, 38 Initial or Final TSCA and FIFRA Adminis-
trative Law Judge Decisions were rendered in response to EPA
civil penalty litigation. All but two cases were rendered in
favor of EPA litigators. Of the two cases, one was dismissed
for insufficient evidence and the other case is currently on
appeal to the Administrator.
Of the 36 favorable decisions, 15 were in TSCA and 21
were in FIFRA. Agency Administrative Law Judges upheld or
imposed some of the highest penalties in the history of FIFRA:
Kay-Dee, $30,000, Region VII; Custom Chemical, $21,850,
Region IX; and Chemical Commodities/ $20,000.
Grimina1 Litigation
1 Nabisco - A technically sophisticated night-time s'urveil- '
lance by EPA Special Agents involving the use 6£ infra-red
enhancement uncovered a regular dumping practice at Nabisco's
yeast and vinegar plant in Sumner, WA, that had been going for
years. Op to 80,000 gallons of yeast waste was discharged
almost nightly into the White .River, The corporation pled
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guilty to Clean Water Act violations and was sentenced to pay
a $450,000 fine of which $150,000 was suspended. The corpor-
ation was directed to place $150,000 into an environmental
trust for the enhancement of fish and game fish resources and
hatcheries in the Stuck, Pay - allup and White Rivers. In
addition, the corporation was placed on three years probation
on the condition that its plants nationwide commit no Clean
Water Act violation for the period.
The plant manager pled guilty to mail fraud (in connection
with filing false discharge reports) and conspiracy charges
for his part in the nightly discharge scheme and was sentenced
to one year and one day in jail, a $5,000 fine, three years
and 250 hours of community service. (Region X)
Greer - A proprietor and operator of a now defunct
hazardous waste handling companies based in Orlando, FL was
criminally charged with multiple violations of the federal
hazardous waste laws (RCRA and CERCLA), mail fraud, making
false statements, and the first case in which a defendant was
charged with khowlingly endangering human health or life under
newly adopted provisions of RCRA. Among other acts, the
defendant was accussed of dumping 1,000 gallons of princi-
pally 1, 1, 1-trichloroethane, intentionally mislabeling drums
of hazardous waste as dirt, and endangering employees by
directing them to test chemicals such as cyanide, 1,1,1-
trichloroethanef toluene, methyl ethyl ketone and xylene by
sniffing samples or lighting them in soft drink cans, rather
than performing required chemical analysis.
The judge directed a verdict against the knowing
endangerment counts before trial over the objection of t
prosecutors. After a multi-day trial the jury found the
prosecutors. After a multi-day
defendant guilty of 13 counts of mail fraud, one false state-
ment count, one of failure to notify of a release of a repo
able quantity of a hazardous substance under CERCLA, one
tnislabeling count and one count of illegal disposal. On
September 16, 1986, the defendant was sentenced to five yea
imprisonment (all but three months suspended), four years
and nine months probation, 1,000 hours of community service
and '$23, 000 fine.
The defendant has appealled the jury verdict and the
government has appealled the directed verdict against the
knowing endangerment counts. (Region IV)
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Hoflin - In the first case in which a public official
has been charged with federal environmental crimes, the former
city public works director of Ocean Shores, WA, was found -
guilty, after a five-day jury trial, of burying drums of old
road stripping paint at the City's sewage treatment plant (in
violation of RCRA) adjacent to a national wildlife refuge in
sandy soil next to the ocean, and dumping 3,500 gallons of
raw sewage into a sandy depression (in violation of CWA) also
next to the ocean. The defendant was sentenced to two years
probation and 200 hours of community service.
Waterbury House Wrecking - The most significant sentences
to date for asbestos removal and handling violations under the
Clean Air Act were handed down by the United States District
Court for the District of Connecticut.
Waterbury House Wrecking Company was contracted by the
Old Pin Shop in Oakville, CT, to demolish its building. The
building was demolished without removing substantial amounts
of. asbestos nor wetting the material to prevent its being
carried in the air.
After pleading guilty the president of Waterbury was
sentenced to.a 1 year suspended sentence, five years probation,
$25,000 fine, 1,000 hours of community service, and must
attend, at his own expense, seminars on disposal of asbestos.
The owner of the Old Pin Shop was sentenced to one year
imprisonment (all but 30 days suspended}, five years probation,
$25,000 fine and 1,000 hours of community service.
Mardikian - Prom mid-1984, the defendants in this case,
used a California-based luxury automobile import and sales
enterprise and an emission testing facility, to carry-on a
scheme to defraud the government. During that time over
2,000 European-version high performance cars were supposedly
imported, modified to meet American emission and safety
requirements and tested by the Mardikian facility. Tests by
EPA's Office of Mobile Sources of over 500 of those vehicles
showed that the test data submitted to EPA was erroneous and
that on many occasions dummy test results were submitted
without the required test being conducted.
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On the second day of trial two defendants pled guilty.
On November 25, 1985, one was sentenced to five years imprison-
ment (all but six months suspended), five years probation, plus
2,080 hours of community service, consisting of at least eight
hours per week over a five-year period teaching under-privi-
leged individuals how to improve job seeking skills, and to
place no fewer than 20 individuals each year into jobs, plus
restitution to the injured parties. Another defendant was
sentenced to five year imprisonment (all but 30 days suspended
and to be served on weekends), five years probation plus an
indefinite amount of community service. ,
« The third defendant was charged with one count of making
false statements to the government, pled guilty and was sen-
tenced to five years imprisonment (all but 20 days suspended
and served on weekends), five years probation, plus 2,500
hours of community service.
Derecktor - During fiscal year 1986, a widely-publicized
major in~dictment was returned against a large ship-building
and dry-dock company in Rhode Island and its owner. The
46-count indictment charged violations of TSCA (PCB violations),
CERCLA (failing to report releases of PCB's and asbestos),
Clean Water Act (discharging pollutants from a dry-dock
without a permit), RCRA (illegal storage and disposal of
hazardous wastes), Clean Air Act (asbestos removal and handling
violations), and the Hazardous Materials Transportation Act
(illegal transportation of hazardous wastes). This was one
of three cases charged in fiscal year 1986 against shipyards
for discharges of sandblasting pollutants into the water.
Assisted Cases - Besides the environmental criminal cases
investigated and referred for prosecution soley by EPA,
special agents gave invaluable assistance in several other
major environmentally-related criminal investigations. In one
case, the defendants were sentenced to 13 years imprisonment
each for shipping a waste solvent mixture instead of the
ordered chemicals to an import business in Zimbabwe. In
another, the defendant was sentenced to two years imprisonment
(all but 180 days suspended)'for dumping hazardous wastes into
unlined pits. EPA also assisted with a case where large quan-
tities of hazardous wastes were shipped from California and
dumped in Mexico and are suspected of causing illness to
Mexican residents.
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- 30 -
VI. ACHIEVING RECORD LEVELS OF ENFORCEMENT ACTIONS AND SUCCESSFUL
RESOLUTION OF SIGNIFICANT VIOLATIONS IN SPECIFIC MEDIA PROGRAMS
In Fiscal Year 1986, the Agency achieved record levels of
enforcement actions in specific media programs, as well as on
the national level.
Starting in FY 1984 each program defined within some broad
criteria what it considers to be its most important violations
to receive highest priority in enforcement actions. These
are 'called "significant noncompliers or significant viola-
tions."
Air Enforcement Activity
IPA's stationary air enforcement activity has remained at
a consistently high level during FY 1986. EPA issued 123
administrative orders during the year. The Regions referred
112 civil cases, the highest"number of referrals in the last
five years (see page 31). Also in FY 1986, three criminal
cases were referred in the air. enforcement program.
In the air mobile sources enforcement program, civil
referrals decreased to six in FY 1986 from 22 in FY 1985 and
14 in FY 1984. The Federal program to regulate lead in gaso-
line and automobile inspection and maintenance programs relies
heavily on administrative settlements to address violations.
In FY 1986, EPA initiated approximately 400 administrative
cases proposing penalties of nearly $4 million. EPA settled
about 350 of the cases and assessed total penalties of about
91.3 million. Where no settlement is reached Mobile source
matters are' referred to the Department of Justice for prosecu-
tion, thus the decline in civil referrals is in large part due
to the success of the program via administrative settlements.
Progress in Returning Significant Air Violators to Compliance
The air enforcement program focuses on violators of State
Implementation Plans (SIPS) .in nonattainment..areas and .viola-
tors of New Source Performance Standards (NSPS), National
Emissions Standards for Hazardous Air Pollutants (NESHAPS),
and Prevention of Significant Deterioration (PSD) regulations.
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AIR (STATIONARY) ENFORCEMENT ACTIVITY
FY 1982 - FY 1986
OVIL REFERRALS
ADMINISTRATIVE ORDERS
120
20-
0-
1982
1983 1984 1985
FISCAL YEARS
1986
1SO-
US-
100-
Bi
m
2
Z
1982 1983 1984 1985
flSCAL YEARS
1986
-------
32 -
In FY 1986, EPA and the States made progress in returning
significant air violators to compliance. At the beginning of
the year, EPA/States had 647 significant air violators remain-
ing from the previous year (fixed base). At the end of the year,
509 significant violators had been addressed by returning 241
to compliance, taking enforcement action against 148, and
placing 120 on acceptable compliance schedules, leaving a
total of 138 to be addressed next year (see page 33). During
FY 1986, EPA/States identified 472 new significant violators.
In responding to these new violators, EPA returned 89 to
compliance and placed 41 on acceptable compliance schedules.
In comparing the air enforcement efforts in FY 1985 to
FY 1986 in this area, good performance has been maintained.
At the beginning of FY 1985, there were 513 significant viola-
tors versus 647 at the beginning of FY 1986. In FY 1985,
187 (36%) of the BOY violators were returned to compliance,
while in FY 1986, 241 (37%) were returned. A total of 95
(19%) violators were placed on acceptable schedules in FY
1985 compared to an increase to 120 (19%) in FY 1986. In
taking enforcement actions, EPA/States acted against 148 (23%)
in FY 1986 and 109 (21%) in the previous year. At the end of
FY 1985, 122 (24%) violators were pending, versus 138 (21%)
pending at the end of FY 1986. Overall, in FY 1986 EPA/States
addressed 509 of the BOY significant violators compared to
391 in FY 1985.
Water Enforcement Activity
EPA's NPDES enforcement efforts continued at a high level
of Activity for issuance of administrative order and civil case
referrals. EPA issued 988 administrative orders and the
Regions referred 107 civil cases, which is the second highest
number of referrals in the last five years (see page 35).
This is a 9% decrease in the number of referrals from FY 1985.
The Safe Drinking Water enforcement program doubled the number
of civil referrals from eight in FY 1985 to 17 in FY 1986. The
Regions also made 15 criminal case referrals in FY 1986. The
States filed two criminal cases in their courts. The SDWA did
not provide for Federal administrative order authority for
regulatory violations in FY 1985 and FY 1986. The three orders
issued in FY 1985 were for emergency orders related to drinking
water systems. The SDWA totals should increase in FY 1987 once
administrative order authority is delegated to the Regions.
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PROGRESS IN RETURNING SIGNIFICANT AIR VIOLATORS TO COMPLIANCE
As Of September 30.1986
REDUCTION OF FIXED BASE
PENDING AS OF OCTOBER 31,1985
RESPONSE TO NEW VIOLATIONS
(DYNAMIC BASE)
TOO
soon
400-
500
uwn
BOY
1 2 3
QUARTERS
200
LEGEND
C3 M COUPUANCt
CS OH ACCEPTAKf SCHEDUUES
ea iNronccMENT ACHOM
•IKKDINO
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- 34 -
Water - Response to Significant Noncompliance - Exceptions
Report
At the beginning of FY 1986, the NPDES program implemented
Quarterly Noncompliance Report regulations and modified its
definition of SNC to promote greater consistency in noneompli-
ance reporting and to clarify quantifiable and qualitative
violations. This major change involved how to report permit
effluent violations, as well as a stronger emphasis on viola-
tions of reporting requirements and violations of formal
enforcement orders.
Onlike the other Agency enforcement programs, the NPDES
program no longer tracks SNC against a "fixed base" of SNC
that is established at the beginning of the year. Instead,
it uses the Exceptions List to track instances of SNC as they
are reported throughout the fiscal year. The exceptions report
identifies those facilities that have been in SNC for two or
more quarters without returning to compliance or being
addressed by a formal enforcement action. At the beginning
of FY 1986, there were 139 major municipal industrial or
Federal Facility permittees unaddressed from FY 1985 or newly
identified. During FY 1986, there were 542 permittees identi-
fied on the exceptions report. The Regions and/or the States
returned 204 of them to compliance and took enforcement actions
against 176 others leaving 301 facilities on the exceptions
report unaddressed at the end of FY 1986. The number
unaddressed represents about 4% of all major NPDES permittees.
Superfund and RCRA Enforcement Activity
Additional progress was made in Superfund and RCRA
enforcement activity in FY 1986. Under Superfund, by the end
of FY 1986, 139 administrative orders had been issued, a
decrease from the 160 issued in FY 1985. Superfund civil
referrals also decreased slightly from 54 in FY 1985 to 45 in
FY 1986. The somewhat lower levels of Superfund enforcement
activity are attributable to the effects of the delays in
obtaining reauthorization of the program. The program exceeded
its Agency commitments for referring §107 Cost Recovery cases.
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WATER (NPDES) ENFORCEMENT ACTIVITY
FY1982 - FY 1986
CIVH REFERRALS
ADMINISTRATIVE ORDERS
20001
40
20
1982 1983 1984 1985 1986
FISCAL YEARS
1982 1983 1984 1985 1986
FISCAL YEARS
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- 36 -
For RCRA, 235 administrative complaints and consent
agreement and final orders were issued. In FY 1986, 66 RCRA
civil cases were referred compared to 19 in FY 1985. The
more than threefold increase in the number of RCRA referrals
is largely attributable to vigorous enforcement of the Loss
of Interim Status (LOIS) provisions of HSWA. Most of the
referrals were to land disposal facilities listed on the
Strategic Planning and Management System's Significant Noncora-
plier List. RCRA and Superfvmd combined for a total of 111
civil referrals. This is the highest number of referrals in
the last five years (see page 37). There were also 20 criminal
referrals in the RCRA program.
RCRA_- Progress on Addressing Land Disposal Facilities in
Significant incompliance
The RCRA program considers a significant noncoraplier as
a land disposal facility with one or more Class I violations
of regulatory or statutory requirements related to groundwater,
closure, post-closure, or financial responsibility.
In FY 1986, EPA and the States substantially increased
their efforts to address significant noncompliance over the
levels achieved in the previous year. At the beginning of
FY 1986, EPA and the States identified 792 land disposal faci-
lities as significant noncompliers. By the end of the year,
772 had been addressed including 331 which were returned to
compliance, 219 were under a final, effective administrative
order, court judgment or consent decree, 222 received an
initial administrative or judicial complaint, leaving only
20 pending (see page 39). During FY 1986, EPA and the States
addressed a higher percentage (97% compared to 94%) of signi-
ficant noncompliers than in FY 1985.
TSCA_and FIFRA Enforcement Activity
In both the TSCA and FIFRA enforcement programs, each
issued the highest number of administrative orders in the last
five years (see page 40). For TSCA, 781 administrative orders
were issued compared to 733 in FY 1985. FIFRA administrative
orders rose dramatically from 236 (FY 1985) to 337 (FY 1986).
Also, both programs approximately doubled the number of
civil case referrals. For TSCA, civil referrals increased
from six to 13 in FY 1986. FIFRA civil referrals increased
from 11 to 20 in FY 1986. The levels of both judicial and
administrative action rose in both programs during FY 1986.
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ENFORCEMENT ACTIVITY
FY 1982 - FY 1986
120-
100-
m
20-
1982
RCRA/CERCLA
CIVIL REFERRALS
1983 1984 1985
FISCAL YEARS
1986
35-,
TSCA/FTFRA
CIVIL REFERRALS
1982 1983 1984 1985
TISCAL YEARS
1986
-------
- 38 -
The rise in judicial enforcement is largely attributable to
an increase in the number of collection actions for penalties
assessed in previously issued administrative orders. There.
were two TSCA criminal referrals and one FIFRA criminal
referral in FY 1986.
Response to TSCA Significant Noncompliance
The TSCA program significant noncomplier is any violator
of a PCB, asbestos, or premanufacturing notice rule which
warrants the issuance of an administrative complaint for
penalties.
The Regions had a beginning of year inventory in FY 1986
of 782 TSCA significant noncomplier cases. During the year,
the Regions closed 614 (78%) cases on the inventory (see page
41) by completing an agreement and final order. In FY 1985,
342 (75%) cases were closed against a beginning of year
inventory of 454. During the year, EFA made progress in
identifying and initiating actions against new significant
violators. Of the 5,985 inspections conducted, 913 (15%)
significant violators were detected by the end of the year.
More than half of these, a total of 527, had action taken; 118
of these were closed, leaving 409 new cases open at the end of
the year.
Response to FIFRA Si_gn_i£_i_c_ant Noncompliance
Beginning in FY 1986, FIFRA significant noncompliance was
redefined to focus on pesticide misuse violations and to
reflect the major role of the States in enforcing these types
of violations. EPA Regions and each of their States 'agreed on
significant violation categories, given patterns of use unique
to each State. They also established timeframes for investi-
gating and taking enforcement actions against these significant
violations. During the year, 274 significant violations were
identified. Of these, 182 (66%) were addressed within the
agreed-upon tiraeframes. Only 14 (5%) of violations were
carried beyond the timeframes? 12 of these were addressed and
two were not addressed by the end of the year. The remaining .
78 '(29%) were pending action within timeframes at the end of
the year. In addition, 56 significant use violations were
identified for action by the EPA Regions during FY 1986.
Of the 56, 45 (80%) were addressed within timeframes. Seven
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RCRA-PROGRESS ON ADDRESSING
LAND DISPOSAL FACILITIES IN SIGNIFICANT NONCOMPUANCE
As Of September 30,1986
800
HHI-
SfMl
300
400
300
200
100
Reduction of Fixed Bos*
(Pending As Of October 1.1985)
BOY
1 2
QUARTERS
«D
CO
O
o.
LEGEND
CD RETURNED 10 COMPLIANCE
CS OH COMPLIANCE SCHEDULES
CZ1 INITIAL ENFORCEMENT ACTION TAKEN
•I PENDING
o
-------
TSCA AND FIFRA ENFORCEMENT ACTIVITY
FY 1982 - FY 1986
TSCA
ADMINISTRATIVE ORDERS
400-1
350
300-
m
2
1982 1983 1984 1985
FISCAL YEARS
1986
FFRA
ADMINISTRATIVE ORDERS
o
I
1982 1983 1984 1985
~ FISCAL YEARS
1986
-------
MO
•00
O 400
200-
-------
MO
MO-
ltO
HO
•0
10
ADDRESSING FIFRA SIGNIFICANT NONCOMPUANCE
As Of September 30,1986
REFERRALS TO STATES
2 3
QUARTERS
ERA USE CASES - REFERRALS FROM STArtS
•On
90
40
SO-
10-
I
LEGEND
•i NOT ADDRESSED BEYOND TIMEFRAUE
DO ADDRESSED BEYOND T1MEFRAIIE
tn PENDING WFTHIN TIHEFRAME
(=1 ADDRCSSEO WITHIN THIEFIAIIE
2 3
QUARTERS
------- |