&EPA Summary of
Enforcement
Accomplishments
Fiscal Year 1985
United States Office of Aftra
I Environmental Protection Enforcement and
Agency < Compliance Monitoring ECDIC-1998-97
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SUMMARY OF ENFOECEMENT ACCOMPLISHMENTS REPORT
Fiscal Year 1985
Office of Enforcement arid Compliance Monitoring
U.S. Environmental Protection Agency
Washington, D.C. • •-
April 1986
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FOREWORD/ACKNOWLEDGEMENT
The purpose of this report is to summarize the enforcement
and compliance accomplishments of EPA and the States in Fiscal
Year'1985. 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 management systems.
The principal coordinator of the report was Robert Banks of the
Compliance and Evaluation Branch of OECM. We would like to thank
each of the Regional Offices and Program Offices for their valu-
able contributions which aided in the production of this report.
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SUMMARY OF ENFORCEMENT ACCOMPLISHMENTS REPORT
Overview
I, Building a Stable and Predictable Enforcement
Program 1
II. Undertaking Enforcement Initiatives .......... 3
III. Improving Strategies for Compliance and
Enforcement .: .... :. ... ~, ....• 5
IV. Achieving Successful Resolution of Significant
Violations and Record Levels of Enforcement
Actions and Inspections ........... 8
V. Highlights of Key Cases and Precedents 18
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Overview
Fiscal Year 1985 was a turning point for the national
compliance and enforcement program, both for EPA and the States,
It was a year in which state and federal environmental civil,
criminal, and administrative enforcement actions and inspections
were undertaken at record levels. More important, however, it
was a year of putting in place more systematic approaches to
managing EPA's compliance monitoring and enforcement programs to
ensure more stable, predictable and timely responses to viola-
tions and assuring effective deterrence to future violations.
This report summarizes the accomplishments EPA and the
States have made in FY 1985: (1) building a stable and
predictable national enforcement program; (2) undertaking key
enforcement initiatives,* (3) improving strategies for compliance
and enforcement; (4) achieving successful resolution of signifi-
cant violations and record levels of enforcement and inspections;
and (5) establishing legal precedents and achieving favorable
settlement of key cases.
I. Buildinga stable and Predictable National Enforcement Program
State/EPA Enforcement Relationship
Fiscal Year 1985 was the first year of implementation of the
State/EPA Enforcement "Agreements" which established a systematic
national approach for ensuring timely and appropriate enforcement
response to significant violations. This established a basis for
expediting enforcement, for ensuring penalties or other sanctions
are imposed in appropriate cases to deter future violations, and
for establishing appropriate State and federal roles in taking
enforcement actions under parallel authorities.
As a result of these Agreements, over the last 18 months
there has been a steady improvement in coordination and consul-
tation with the States under a pno surprises* policy. The
enforcement consultation process, where the States and EPA meet
regularly to mutually review the status of significant noncora-
pliers, based upon negotiated commitments for returning these
sources to compliance, is now generally viewed as a constructive
joint problem solving process by both the Regions and states and
is considered one of the most successful features of the agree-
ments process.
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As part of the agreements process the Agency also began in
FY 1985 to receive where appropriate improved state data on
compliance rates, significant noncomplier status, inspections,
administrative orders and civil and criminal referrals, allowing
EPA for the first time to present a national picture of the
combined State/Federal compliance and enforcement effort.
Beyond the formal enforcement agreements the Agency continues
to assist State criminal and civil enforcement officials with
funding, data sharing and technical assistance. Through a grant
to the .National Association of Attorneys General, the Association
is periodically informing all Attorneys General and EPA of signi-
ficant cases, investigations and new developments in the States.
Additionally, the grant provides funding to assist groups of
States to organize themselves to better coordinate criminal and
civil enforcement actions through joint training, data sharing,
and technical assistance. One such organization funded by the
Agency is the Northeast Hazardous Waste Project, a 13-State group
in.the Northeastern United States that has made significant
strides in environmental enforcement and continues to be a model
for similar future State organizations.
Establishing Consistent Deterrence
FY 1985 also marked the first full year of implementation of
the 1984 Agency's Uniform Penalty Policy. This policy, which
applies to EPA imposed civil penalties, sets forth the requirement
that dollar penalties recoup at a minimum, the economic benefit
of noncompliance where this concept is applicable, in addition to
imposing a penalty based upon the gravity of the harm. The tenet
is that recouping the economic benefit of noncompliance is the
most effective means of deterring future violations.
In FY 1985 new penalty policies were issued or developed in
the air and NPDES programs, data systems were developed and
improved to record penalty information on cases and the BEN
computer model was improved to make it easy for Regions to calcu-
late the economic benefit a violator may have derived from noncom-
pliance. There have been extensive training programs on the use
of the EPA BEN model throughout the Regions and this training
will be extended to States next year. Early results show marked
increases in penalties levied in federal enforcement cases.
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To improve use of penalty authorities and policy, QECM
completed a comprehensive study of civil penalties including a
review of federal practices, state civil penalty authorities and
perceptions of penalties and the role of EPA oversight in improving
deterrence. This work has culminated in a more detailed policy
on how EPA will oversee state civil penalty assessments in addition
to improvements of SPA penalty practices.
OECM has been encouraging the use of criminal enforcement in
appropriate cases to enhance deterrence, especially in areas of
agency priority where civil and administrative enforcement have
not significantly benefited compliance. Among other activities,"
OECM has sponsored legislative initiatives to increase most
criminal penalties in environmental statutes from misdemeanors to
felonies as an added deterrent, and has been encouraging judges and
probation officials in selected cases to impose incarceration on
egregious violators.
Tracking Systems for Follow-Through
Fiscal Year 1985 was the first year EPA uniformly tracked
Consent Decree Compliance and enforcement follow through. It is
of great concern to the Agency that once public and private
resources have been expended to reach agreement on compliance,
these agreements must be carefully monitored to ensure they are
implemented as promised.
Improved tracking systems were also developed for Citizen
Suits under the Clean Water Act, RCRA, and TSCA. Citizen suits
provide an important additional impetus for regulatees to comply
and decisions must be made by Agency officials on whether to join
such actions and whether significant decisions rendered in citizen
suits affect Agency policy.
II. Undertaking Enforcement Initiatives
A major agency goal for the enforcement and compliance
monitoring functions of the Agency is to ensure they further the
most important goals and objectives of Agency programs. In
FY 1985f the Agency launched several multi-case enforcement
initiatives in priority areas. - This approach supplements the
systems established for predictable enforcement by stream-
lining EPA referral and DOJ filing procedures for similar cases,
and generating greater publicity from the filing of a number of
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M-
related case's"'over a relatively short time pejriod through- use of
a coordinated^ communi cat ions strategy. (EPA lias taken those
innovative steps" to enhance the deterrence intact of individual
cases on the broader regulated community. Tljp.s 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 resolved in a more standardised and consistent
manner. Also, several criminal enforcement initiatives are
planned or underway that will have a similar deterrent effect.
Pretreatment
The first enforcement initiative was undertaken for the
pretreatment program established under the CWA. In a series of
well publicized waves in FY 1985 the Agency targeted for legal
enforcement action those municipalities-publicly owned treatment
works, (POTWs)-—that had not submitted approvable local pretreat-
ment programs. These programs are required to control pollution
(including toxic pollutants) that industrial users were discharg-
ing into municipal sewage treatment systems which could either
interfere with the treatment system's effectiveness or pass
through directly into waters of the U.S. Early in 1985 the
Agency filed lawsuits simultaneously against 7 of these municipa-
lities. In a second wave at the end of PY 1985t the Agency filed
4 more cases. These enforcement efforts produced a surge in
approved pretreatment programs - from only 201 of the subject POTW
with approved programs in April 1984 to almost 90% at the end of
FY 1985.
Asbestos
Throughout FY 1985 preparation was made for civil and
criminal enforcement actions against violations of asbestos
demolition rules under the Clean Air'Act. violation of the
National Emission Standard for Hazardous Air Pollutants regarding
demolitions and renovations of buildings containing friable
asbestos is a significant health hazard and a requirement about
which many are ignorant. On January 16, 1986 this initiative
came to fruition when DOJ filed 11 cases nationwide resulting in
national news coverage on the major television and radio networks.
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Premanufacture Notifi ea t ion
In FY 1985, under TSCA, EPA issued 13 administrative
complaints for violations of premanufacture.notification require-
ments. Under these provisions, industry must notify the Agency
of the manufacture of a new chemical 90 days prior to its commer-
cial distribution. Failure to provide notice carries a maximum
civil penalty of $25,000 per day. Under the enforcement initia-
tive, penalties totaled over $15 million, three of the complaints
sought penalties over $1.5 million each, among the largest assessed
by the Agency over its history. Currently five of these cases
have been concluded with total final assessed penalties worth
$965,000. ' -'•
This initiative has helped EPA develop an effective "presence"
to promote compliance with the information submission requirements,
violations of which are difficult to discover. The regulated
community has received a clear message that they can get caught,
and that the cost is high.
Ill. •.. Improving Strategies for Compliance and Enforcement
FY 1985 was the year in which the Agency designed and
implemented 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 1985.
MPDES Inspection Strategy/Guidance
In April 1985, the Office of Water Enforcement and Permits
(OWEP) issued the NPDES Compliance Inspection Strategy and Guidance
on Preparing Annual State/EPA Inspection Plans. These documents
describe the major inspection priorities and make clear the mix
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of inspections within each State that should be tailored to the
State's needs while making proper use of inspection resources.
The Guidance describes expected content of Annual State/EPA
inspection plans and discusses in general terms management of
resources.
Federal Facilities Compliance Strategy
In Fiscal Year 1985 in response to the Administrator's call
to make federal facility compliance a model for others, OECM has
been working jointly with EPA's Office of Federal Activities to
revise and: update the Agency's strategy. An Agencywide workgroup
composed of representatives from the Headquarters program offices
and the Regions, held a series of meetings to discuss the key
federal facilities compliance issues and make recommendations.
The draft strategy expands the scope of the current strategy
providing a comprehensive approach to achieving high levels of
compliance. It includes improved use of the A-106 budget review
process on behalf of compliance needs, integration of the timely
and appropriate enforcement response concept tailored to each
media program's authorities, clarification of the involvement of
States, emphasis on innovative approaches, more systematic techni-
cal assistance and training programs and clear identification of
internal EPA management roles. Although not yet final, the work
done on this strategy is already serving to guide improved agency
response and support for the program. When completed this will
be a major accomplishment, putting in place a far more effective
program to gain expeditious compliance.
Clean Water Act Administrative Orders
In 1985, QWEP completed an assessment of the CWA
Administrative Orders, and -in July 1985 issued an Administrative
Order Guidance covering recommendations on standard language and
format for administrative orders issued under Section 309 of the
Act. The purpose is to encourage a consistent nationwide approach
to administrative order content as well as to assure legally
defensible administrative orders.
Criminal Enforcement Strategy
Since FY 1982 EPA has developed and systematically expanded
its criminal enforcement program. In FY 1985 OECM drafted a
criminal enforcement strategy that is designed to guide the
program in the short and long term future. The focus of the
strategy is to foster the integration of the criminal program
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with the Agency's operating priorities to assure the appropriate
use of the full range of enforcement tools— criminal, administra-
tive, and civil— to further agency goals. This was accomplished
in large measure this year for FY 1987 Operating Guidance and FY
1986 SPMS Measures. Additionally, the strategy establishes {!)-
ways to set enforcement priorities, (2) a plan for incorporating
the program into agency management systems, (3) plans for coordi-
nation of activities with State and local prosecutors, (4) a
legislative strategy, and (5) education and training programs for
the future. This strategy is now under Agency and state review.
Compliance and Enforcement Strategy for QIC
One of the first major efforts in the new UIC program was to
develop a compliance and enforcement strategy, first for direct
implementation by the Regions and then later in draft for state
use. The strategy delivered as much useful information out to
the Eegions and States as quickly as possible, as they began to
implement the program.
The strategy includes a section on compliance promotion and
outreach programs to address the regulated community about
compliance with the Safe Drinking Water Act. Examples of outreach
materials developed by Region VIII were included with the compli-
ance strategy for others to use.
Environmental Auditing
In FY 1985, OECM and OPPE cooperated in developing an Agency
policy on environmental auditing to promote improved environmental
management for improved compliance with environmental requirements.
One innovation is the introduction of environmental auditing pro-
visions in selected consent decrees where environmental management
improvements are clearly part of the desired remedy. Extensive
violations in a number of media at the same £lrm suggest a signi-
ficant failure of management sytems to attain and maintain compli-
ance with environmental laws. When this is the case, requesting
a firm to audit and/or correct that same violation at other plants
may vastly enhance the clean-up leverage of a single enforcement
action. Hence, the virtue of environmental auditing, which the
Agency is now testing in a few precedential decrees.
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IV. A eh i ev i ng Succe s sf ul Resolu t ion of Sign i f i cant Vi olat ions
and Record Levels of Enforcement Actions and Inspections
Addressing significant Noncompliers
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 taking enforcement actions. These
are called "significant noncompliers or significant violations."
In -FY 1985, the 1PA and States improved their ability to
identify and address facilities in significant noncompliance. in
FY 1984, EPA and the States addressed 87% of their BOY significant
noncoraplters, while in FY 1985, 95% of the significant noncompliers
were addressed.
Progress in Returning Significant Air violators to Compliance
The air enforcement program focuses on violators of State
Implementation Plans {SIPS} in nonattainment areas and violators
of New Source Performance Standards (NSPS), National Emissions
Standards for Hazardous Air Pollutants (NESHAPS), and Prevention
of Significant Deterioration (PSD) regulations.
In FY 1985, EPA and the States made progress in returning
significant air violators to compliance. At the beginning of the
year, EPA/States had 513 significant air violators remaining
from the previous year. At the end of the year, 391 significant
violators had been addressed by returning 187 to compliance,
taking enforcement action against 109, and placing 95 on accept-
able compliance schedules, leaving a total of 122 to be addressed
next year (graph A). During FY 1985, EPA/States identified 569
new significant violators. In responding to these new violators,
EPA returned 105 to compliance and placed 42 on acceptable
compliance schedules (graph B).
In comparing the air enforcement efforts in FY 1984 to
PY 1985 in this area, good performance has been maintained. At
the beginning of FY 1984, there were 326 significant violators
versus 513 at the beginning of FY 1985 (graph C/D). In FY 1984,
126 (39%) of the BOY violators were returned to compliance, while
in FY 1985, 187 (36%) were returned. A total of 51 (16%) viola-
tors were placed on acceptable schedules in FY 1984 compared to an
increase to 95 (19%) in FY 1985. In taking enforcement actions,
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*ot«ons
(B)
MR
TO NEW VWUJ10KS
1 2 1
QUARTERS
EPA/States-.acted against 109 (21%) in FY 1985 and 92 (281) in the
previous year. At the end of FY 1984, 5? (17%) violators were
pending, versus 122 (24%) pending at the end of F¥ 1985. Overall,
in .FY 1985 EPA/States addressed 391 of the BOY significant viola-
tors compared to 269 in FY 1984.
Besides addressing a majority of the significant air
violators remaining from the previous year, continued progress
was made in identifying and addressing new significant violators.
In responding to new violators during FY 1985, EPA/States identi-
fied 569 new significant violators. Of this universe, 105 (18%)
were returned to compliance, 42 (7%) were placed on acceptable
compliance schedules and 422 (74%) were pending.
(C/D)
AJR
REJUOION OF SGNRCANT VOUODRS
OH
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Air inspection Frequency and Compliance Levels
In FY 1985, eventhough inspection rates declined for SIP
sources, rates improved for both NSPS and NESHAPS sources.
Inspection frequency rates (States and EPA) for Class Al SIPS
were 87% of all major sources for the year, while inspection fre-
quency rates for NSPS and NESHAP were 92% and 89% respectively."
At the end of the fourth quarter FY 1984, rates were Class Al
SIPS 90%, NSPS 88% and NESHAP 87%. Of the total Class Al SIP,
NSPS and NESHAP universe in FY 1985, 90% were in compliance, 2%
on compliance schedules, approximately 6% were in violation (2%
were significant violators and 4% were in violation but did not
meet the definition of significant violator), and 2% were of
unknown compliance status. The reported compliance levels in FY
1985 for Class Al SIP and NSPS were 90% each while the compliance
level for NESHAP was 87%. At the end of FY 1984 reported compli-
' ance levels were Class Al SIPS 91%, NSPS 90% and NESHAP 92%.
Water - Progress in Reducing Significant jj_pjt>_c_pmpilianc_e
The water enforcement program focuses on major facilities
that are in significant noncompliance with compliance (construc-
tion) schedules, permit effluent limits and previous enforcement
orders.
EPA and the States continued to have success in addressing
significant noncompliance in FY 1985. At the beginning of the
year EPA and the States identified 187 major industrial facilities
in significant noncompliance. By the end of the year, 961 of the
major industrials had been addressed by returning 127 to compliance
and taking enforcement actions against 52 others (graph E). For
(E)
ROUCIION OF 9OV1CAHT
(F)
MAJOR MUNORUS
ROXJCTWN OF SW*XANT VIOLATORS
KJY 1 2 3
OUAHTDB
1 2 3
QUARTERS
JIB
GDMMOMXf
Lagwid
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major municipal facilities, there were 384 significant noncompliers
at the start of FY 1985. By the end of the year, 98% had been
addressed by returning 230 to compliance and taking enforcement
actions against 147 others (graph F).
At the beginning of FY 1984, there were 291 major industrial
facilities in significant noncompliance, versus 187 at the begin-
ning of 1985 (graph G). In FY 1984, 65% of the BOY major indus-
trial significant noncompliers were returned to compliance,
while in FY 1985, 68% were returned. A total of 100 (34%) signi-
ficant noncorapliers had enforcement action taken against them in
FY 1984, compared to 52 (29%) in FY 1985. For major municipal
facilities, there were 703 significant noncompliers at the
beginning of FY 1984 and 384 at the beginning of FY 1985 (graph
H). In FY 1984, 321 (46%) were returned to compliance while in
FY 1985, 230 (60%) significant noncompliers were returned. A
total of 363 (52%) major municipals had action taken against them
in FY 1984 compared to 147 (38%) in FY 1985.
MAJOR ICUSIWttS
S»«XAm VWUTORS
(H)
MAJOR MUMCfMS
KDUODN OF SKMFOKT VCUOORS
O «'1UIMI1HB COMBJOKCt
In FY 1985, EPA and the States introduced an exceptions
reporting mechanism for responding to newly found significant
noncorapliers. Only those significant noncorapliers that are in
violation for two or more quarters are reported by EPA and the
States. During FY 1985 a cumulative total of 98 major industrial
facilities were identified as being in significant noncompliance
for 2 or more quarters without an enforcement action taken. Of
these, 32 were returned to compliance and 26 had enforcement
actions taken, leaving a pending balance of 40. For major muni-
cipal facilities, a cumulative total of 239 facilities were
identified as being in significant noncompliance for 2 or more
quarters without an enforcement action taken. Of these, 78 were
returned to compliance and 84 had enforcement actions taken,
leaving a pending balance of 77,
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NPDES Compliance Status
In PY 1985, EFA made further progress in achieving greater
compliance in its National Pollution Discharge Elimination System
(NPDES) program. In FY 1984 and FY 1985 f 94% of the major indus-
trial facilities completed the construction needed to achieve
final effluent limits while 61 needed additional construction.
But, the overall compliance rate for major industrials increased
from 93% in FY 1984 to 95% in FY 1985. For major municipal
facilities in FY 1984 , 62% completed the construction needed to.
achieve final effluent limits while 38% needed additional construc-
tion. Compliance status improved in FY 1985 showing that 671 of
the major municipal facilities completed the construction needed
to achieve final effluent limits while 33% needed further
construction.
RCRA - Progre3s_gL Addressing Major Handlers in Significant
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.
At the beginning of FY 1985, EPA and the States had 729
major handlers in significant noncompliance remaining from the
previous year. By the end of the year, 684 had been addressed
including 327 which were returned to compliance, 357 against which
an enforcement action was taken, leaving 45 to be addressed in
FY 1986 (graph I). During the year, EPA and the States identified
551 major handlers as new significant noncompliers. of this
number, 144 had formal enforcement actions initiated against them
and 112 were returned to compliance (graph J).
RCRA
SGNFC*KT VIOLATORS
(J)
RESPONSE TO MEW VIOLATIONS
I0r 1 2 1 4 S
CI K1WMB IB
B DMMCB0R MUM ttOM
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In FY 1985, EPA and the States substantially increased their
efforts to address significant noneorapliance over the levels
achieved in the previous year. During FY 1985, EPA and the States
addressed a higher percentage (94% compared to 81%) of significant
noncompliers than in FY 1984 on a base that was 150% larger (729
compared to 535).
RCRA - Inspections of Major Handlers
In FY 1985f EPA and the States conducted 34% more inspections
of major handlers than in FY 1984 (5,497 compared to 4,115). EPA
and the States completed 1,104 record reviews for closure plans
and cost estimates in FY 1985 while completing 953 in FY 1984.
Response toTSCA Significant Noncompliance
The TSCA program significant noncomplier is any violation 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 1985 of
454 TSCA significant noncomplier cases. During the year the
Regions closed 342 (75%) cases on the inventory (graph K) by
completing an agreement and final order. In FY 1984, 183 (74%)
cases, were closed against a beginning of year inventory of 247.
During the year, EPA made progress in identifying and initiating
actions against new significant violators. Of the 5,097 inspec-
tions conducted, 919 (18%) significant violators were detected.
More than half of these, a total of 514, had action taken? 156 of
these were closed, leaving 358 new cases open at the end of the
year (graph L). In FY 1985, EPA instituted a major enforcement
PROGRESS AGOGT
SKNTCAHT WXATORS
(L)
TSCA
PROGRESS AGAMST HEW VIOLATORS
•OY 01 OZ Q3 04
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effort in the Asbestos-in-Schools program. Of the 919 new signi-
ficant violators, 591 were asbestos-in-schools violators. In
response to significant noncorapliance in asbestos-in-schools, EPA
issued 383 administrative complaints in FY 1985, over four times
the 82 issued in all of FY 1984.
Regional TSCA Inspection and Compliance Levels
In FY 1985, of the 3,083 inspections (compared to 2,022 for
FY 1984) conducted for PCS and other violations, 311 were pending
review for a compliance determination at the end of the year. Of
the 2,110 inspections reviewed during the year, 741 were found in
compliance and 26% were in violation, minor and significant (344
with enforcement action takenj 242 with enforcement action pending)
For asbestos-in-schools, the Regions conducted 2,014 inspections
compared to 1,918 in FY 1984. Nine percent were pending for a
compliance determination at the end of the year. Of the 1,835
inspections reviewed in FY 1985, 32% were in compliance, 68% were
in minor and significant violation (1,083 with enforcement action
taken; 162 with enforcement action pending).
Response toFIFRA Significant Noncoropliance
The Regions had a beginning of year inventory in FY 1985 of
257 FIFRA significant noncompliers. During the year, the Regions
nearly cleared their backlog of cases by closing 242 (94%) cases
on the inventory (graph M). In FY 1984, 137 (64%) cases were
closed against a beginning of year inventory of 214. During
FY 1985, the Regions and States made good progress against new
significant violators. The Regions conducted 1,647 inspections
and detected 299 significant violations. A total of 172 of these
violations had action taken; 74 of these were closed, leaving 98
cases open at year end (graph N). In closing FIFRA significant
noncomplier cases, 113 cases remain open at the end of FY 1985,
compared to the inventory of 214 open cases at the end of FY 1984.
(M)
IVM
E5S t_
9B*C*ffT VBUODR5
( N)
-PROGBESS *GAMST HEW VWLWORS
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National Enforcement Activity
The overall level of compliance and enforcement activity
continued at record levels in FY 1985. By the end of the year,
2,785 administrative orders had been issued by IPA. This is the
second highest number of administrative orders issued since 1981
(graph A).
In FY 1985, the Regions referred the highest number of civil
cases in the Agencyfs history (graph B). The national figure
of 323 civil referrals represents an increase of 23% over FY
1984 and includes 22 air mobile cases. Since 1981 the number of
civil cases referred by the Regions has increased 247%. Civil
referrals are those.cases referred by the Regions to EPA and
direct to the Department of Justice.
FY 1985 was also a record year for criminal referrals. An
all time high of 44 criminal cases were referred by the Regions
to Headquarters. Of these, 22 (50%) were through the RCRA program.
Criminal referrals to DOJ only were also at an all time high with
36 referred in FY 1985, as compared to 31 in FY 1984, 26 in
FY 1983, 20 in FY 1982 and 26 in FY 1981.
(A)
MMBNAt
ORDERS
(B)
NATIONAL.
OVLfCFDlULS
Air Enforcement Activity .• - .......
EPA's air enforcement activity has remained at a
consistently high level during FY 1985. EPA issued 100 adminis-
trative orders during the year (graph C). The Regions referred
85 civil cases, one of the highest number of referrals in Agency
history (graph D). FY 1985 civil referrals surpassed the end of
year target of 79 and also represented a 7.5% increase over FY
1984. Also in FY 1985, 8 criminal cases were referred in the air
enforcement program.
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( C)
MR
ORDERS
(D)
W
OVLREFtiRAlS
to-
M2
Water Enforcement Activity
EPA's water enforcement activity remained at a high level
for administrative orders and reached an all time high for civil
case referrals. EPA and the States issued 1,028 administrative
orders, which is the second highest total in the last five years
(graph E). During FY 1985, the Regions referred 118 civil cases,
the highest number of referrals in the last five years (graph P).
This represents a 12% increase in the number of referrals from FY
1984. The Regions also made 7 criminal case referrals in FY 1985.
(E)
WATER
AOMNSTRATTVC ORDERS
(F)
WATER
OWL REFERRALS
WO MM MB
M2 MS MM WS
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Superfundand RCRA Enforcement Activity
Additional progress was made in Superfund and RCRA enforcement
activity in FY 1985 over the previous year. Onder Superfund, in
FY 1985, 39 enforcement managed RI/PS were initiated as compared
to 35 in FY 1984. By the end of FY 1985, 160 administrative
orders had been issued, a 17% increase over the 137 issued in FY
1984. For RCRA, 525 administrative complaints and consent agree-
ment and final orders were issued in FY 1985. This is the second
highest number in the last 5 years (graph G).
Under the Superfund program, 54 civil referrals were made in
FY 1985, representing a 381 increased over the previous year. In
FY 1985, 19 RCRA civil cases were referred compared to 16 in FY
1984. RCRA and Superfund combined for a total of 73 civil refer-
rals. This is the highest number of referrals in the Agency's
history (graph H), There were 22 RCRA criminal referrals (50% of
all criminal referrals) and 1 Superfund criminal referral in FY
1985.
(G)
RCRA
ADUNETRATTVE ACTONS
CH)
flCRA AND SUPESnJND
CML RCTHRALS
40-
TSCA Enforcement Activity
In FY 1985, the Regions nearly doubled the"number of "
administrative complaints, the primary enforcement tool of the
program, issued in FY 1984. A total of 733 administrative com-
plaints were issued in FY 1985 compared to 376 in FY 1984. The
increase resulted from the Asbestos-in-Schools program, which
issued 443 (60%} of the complaints in FY 1985. There was a total
of S civil referrals in FY 1985, compared to 7 in FY 1984. Also,
in FY 1985, 5 criminal cases were referred.
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FIFRA Enforcement Activity
The Regions initiated 236 administrative complaints for
significant violations in FY 1985, only slightly below the total
of 272 in FY 1984. There were 11 civil judicial referrals in FY
1985 and 1 criminal referral from the Regions. In FY 1985 the
States conducted 52,409 compliance inspections and took 8,899
enforcement actions.
The enforcement activity for TSCA and FIPRA combined, 969
administrative complaints and 11 civil referrals, is the highest
level of activity in the last five years.
V. Highlights of Key Cases and 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 high-
lights from key cases which go beyond just success in an individual
action. Examples are selected from each media program.
Air Enforcement
In FY 1985, EPA continued to be successful in litigating and
settling major air enforcement cases while also establishing some
valuable legal precedents and obtaining large penalties for
cleanup. Cases 1 and 2 below are examples:
Case 1; In September, a U.S. district court in Texas (Region VI)
imposed one of the largest civil penalties in EPA history against
Chevron, Inc., for Clean Air Act violations of prevention of sig-
nificant deterioration (PSD) requirements, sulfur dioxide emission
requirements, and permit requirements in the Texas State Implemen-
tation Plan. Over $4.5 million was awarded to the United States
and over $1.5 million to the State of Texas and City of El Paso.
Without specifically noting that it was doing so, the court
assessed penalties for violations that occurred prior to EPA's
issuance of the Notice of violation (NOV). The ruling may help
to assess such penalties in future cases.
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Case 2; In July and August, EPA and LTV Steel Corporation filed
three settlement documents in federal court resolving environmen-
tal litigation involving four of the company's iron and steel-
making facilities in Ohio and Illinois (Region V). The company
was required to spend a total of approximately $4,000,000 for
additional air and water pollution control equipment to achieve
compliance, pay $1,000,000 in civil penalties and spend $2,225,000
for environmentally beneficial projects. Several governmental
entities and a citizens group joined in the settlement.
Enforcement of volatile organic compounds (VOC) emission
limitations in State Implementation Plans has been identified as
a top priority by EPA's Office of Air and Radiation. As a result,
more VOC enforcement cases were initiated in FY 1985. Approxi-
mately one-third of the Clean Air Act stationary source civil
judicial enforcement docket in FY 1985 was made up of VOC enforce-
ment actions. In addition to judicial actions, EPA was also
active in administratively enforcing compliance with VOC emissions
requirements. Approximately one-half of the section 120
administrative enforcement actions pending at the end of FY 1985
concerned violations of VOC requirements. Case 3 below was the
first adjudicated §120 action which EPA won and is a typical
example of a successful administrative action in this area:
Case 3; On July 19, and Administrative Law Judge issued an Initial
Decision in favor of EPA with regard to liability initiated under
Section 120 of the Clean Air Act, against American Cyanamid. In
September 1984, Region VI issued a Notice of Noncompliance (NON)
to the company for violations of the Louisiana State Implementa-
tion Plan (SIP). The NON alleged that volatile organic compound
emissions were not being controlled by any means set forth in the
SIP. The company petitioned for reconsideration on grounds that
it was in compliance with the SIP by virtue of a "bubble" that
had been approved by Louisiana, The bubble has been submitted
to, but not approved by EPA. The judge held that since EPA had
not approved the bubble as a SIP revision, the company was, in
fact, in violation of the SIP at the time the NON was issued.
The judge also held that a Section 120 proceeding may proceed
even when EPA has failed to approve or disapprove a proposed SIP
revision for more than four months after submittal by the State.
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Case 4 is an example of one of EPA's successful efforts in
the air criminal enforcement program in FY 1985$
Case 4; After three days of trial, on August 8, 1985t Albert .
Mardikian pled guilty to nine felony counts of making false
statements to EPA and one felony count of mail fraud. Garabet
Mardikian pled guilty to three counts of mail fraud on the same
day. The charges arose out of a scheme by the defendants and
their company, the largest U.S. importer, modifier and emissions
tester, to falsely certify the non-conforming ("gray market")
motor vehicles imported into this country were modified to meet
U.S. emission standards. Subsequently, Albert Nardikian was
sentenced to 5 years imprisonment (with all but 6 months suspen-
ded), 5 years probation, and to do a minimum of 8 hours of
community service per week for 5 years teaching under privileged
individuals to improve job seeking skills/ and must place at
least 20 individuals per year in jobs. He must also make resti-
tution, Garabet was sentenced to 3 years imprisonment (with all
but 30 days suspended), 3 years probation and to perform community
service for 5 years.
Water-' Enforcement'
Case 1; In F¥ 1985, EPA successfully settled a nationally-
coordTnated pretreatment case for violations by an industrial
user of the newly effective federal categorical pretreatment
standards for electroplaters. The consent decree required
Chrysler Corporation to establish a compliance schedule for
several of its plants across the country and pay a civil penalty
of $1.5 million, one of the largest cash settlements in the
history of EPA's water enforcement program. In allf EPA filed
actions against 26 industrial users who failed to comply with
categorical standards.
Ca8_e__ _2s Region II undertook a major initiative during FY 1985 to
enforce industrial user pretreatraent standards in the New York
metropolitan area. The initiative involved the identification of
and referral for civil action against 28 integrated and non-inte-
grated electroplating and metal finishing facilities. These
facilities discharged cyanide and various heavy metals, including
lead and cadmium into publically owned treatment works. The cases
were filed in FY 1986.
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In PY 1985r the Office of Enforcement and Compliance
Monitoring and the Office of Water began a jointly-sponsored case
initiative to support the National Municipal Policy and its July 1,
1988 deadline. Schedules have been coordinated with the Regions,
and EPA is planning for a group of referrals during the first -
quarter of PY 1986 with participation by the majority of Regions.
Case 3; In Region I's Boston Harbor cleanup litigation, EPA won
a judgment against the Metropolitan District Commission and the
Commonwealth of Massachusetts, establishing their liability for
violating NPDES permit provisions. Of particular significance
was the court's rejection of the defendants argument that there
was no liability for violating secondary treatment requirements
because defendants were pursuing a Section 301(h) waiver. This
marked the first time that a court ruled on this issue in an
enforcement case. The total cleanup involved will cost
approximately $2 billion.
Case 4; In FY 1985, Region VI settled a total of nine major
municipal cases in Arkansas, Louisiana and Texas. These settle-
ments require compliance with the appropriate NPDES permit limi-
tations on or before July 1, 1988, with or without Federal Grant
Funds. The cumulative up-front penalties from these settlements
will exceed $660,000, including three of the largest cash penal-
ties ever to be collected from municipalities in the NPDES
program. In two Louisiana cases alone the settlements require
construction that will contribute to the clean up of several
coastal oyster beds, currently closed to harvesting due to high
bacterial counts in the estuaries.
Case 5; On September 6, Eric D. Roth, the owner of a private
water testing laboratory, was sentenced to 8 months imprisonment
on two misdemeanor counts of falsifying Discharge Monitoring
Reports in violation of Section 309(c)(2) of the Clean Water Act
after pleading guilty. He also pled guilty to one felony count
of making a false statement. Sentencing on the felony count was
suspended pending Roth's completion of 5 years probation and 200
hours of community service.
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Hazardous Waste Enforcement
In F¥ 1985, several nationally significant hazardous waste
cases were litigated and/or settled with major corporations such
as the following cases (Region V served as the lead region in
Cases 1, 2, and 3):
Case Is U.S. v. Ghent-Dyne, Inc. involved a multi-party long-term
cleanup of significant groundwater contamination. This was one
of the first decrees to provide for long-term remedial work for
groundwater contamination.
Case 2; U.S. v. Westinghouse required $1 million in reimbursement
for past response costs in evacuating PCB-contarainated waste from
six sites plus incineration of waste in a fully permitted incinera-
tor. EPA estimated the value of the negotiated remedy at $75 to
$100 million.
Case 3; U.S» v. Berlin and Ferro required 87 settling defendants
to perform extensive surface removal action estimated by EPA to
cost $14 million and the reimbursement of $350,000 to U.S. for
past costs.
Case 4; In the Diamond Shamrock case EPA received 100% of
$2 million .in past costs.
Further examples of hazardous waste enforcement
accomplishments in FY 1985 include the following examples:
Case 5; Region X obtained it's first criminal conviction
resulting in imprisonment of a company's president. In FY 1985,
the Department of Justice obtained a twelve-count indictment
against the president of Wyckoff Company and three supervisors for
alleged conspiracy, disposing of hazardous waste without a permit,
making false statements to the government, and discharging pollu-
tants without a permit. The case resulted in fines, imprisonment,
and sentences to perform community service while on probation.
Case 6; Region I was involved in the first liability trial
involving multiple off-site generators. In the case, U.S.v»
Ottati and Goss, et al.f the court found that the generator
defendants and owners and operators of the sites were jointly and
severally liable for costs incurred at the sites and for harm that
may result from the sites, and that such liability is strict.
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Case 7: In Region VII, the National industrial Environmental
Services Facility, a subsidiary of Chem Waste, entered administra-
tive orders on consent under CERCLA and JRCRA«_ commit ting the
company to approximately $12.5 million dollars in corrective
action. The cleanup plan requires development and implementation
of groundwater extraction wells, monitoring wells, and closure of
surface impoundments. The orders were issued on May 24, 1985,
and implementation has commenced, with groundwater extraction
activities underway.
Case 8i On November 14, 1984, a 14 count indictment was filed
charging John Suerth, president of QuVoe Chemical Industries,
Inc., with transportation of hazardous waste to an unpermitted
facility; treatment, storage and disposal of hazardous waste
without a permit, and submitting a false statement to the govern-
ment. After a plea agreement, the court on May 24, 1985, sen-
tenced Suerth to 9 months imprisonment plus 5 years probation and
a $25,000 fine. This is the longest actual jail time (not sus-
pended) imposed on an individual from a case investigated and
referred by the Agency.
Pesticides and Toxic Substances Enforcement
In FY 1985 total enforcement activity for the Toxic Substances
and Pesticides programs was the highest it has been in the last
five years including the filing of two criminal cases. Several
policy and management initiatives were also undertaken in FY 1985
to enhance this effort.
Under FIFRA, emphasis was given to the use and enforcement
of Stop Sale, Use and Removal orders and tracking data call-ins
in keeping with the Agency priority on controlling the use of
existing chemicals. A new National Evaluation Protocol was
developed by Headquarters to evaluate enforcement programs in
primacy states.
For several years, the bulk of TSCA cases has been composed
of PCS marking, disposal, and storage violations. In FY 1985
such complaints accounted for only about 30% of total cases. EPA
caseload has been expanded by the dramatic increase in the
Asbestos-in-Schools program and the developing enforcement, programs
for the recently implemented sections of TSCA, Development of
these new areas continue to raise complex and novel enforcement
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issues. Thirty million dollars in total penalties for TSCA and
FIFRA violations were assessed in PY 1985 with over $6 million
collected on completed cases. This record amount included several
precedentially large penalties. The largest civil administrative
penalty in the history of EPA was collected in FY 1985. In addi-
tion, for the first time, full scale environmental audits were
included in Agency case settlements. Among the most significant
TSCA civil administrative actions in 1985 were the following:
Case 1t On December 19, 1984, an Order was issued enforcing the
Administrative Consent Agreement entered by EPA, the State of
Alabama and Chemical Waste Management, Inc. (CWM) in resolution
of a 1984 enforcement action involving violations of PCS storage
and disposal rules. The Agency's action alleged that the company
illegally stored PCB's at its Emelle, Alabama facility beyond the
one year time limitation of TSCA and that the company violated
several RCRA monitoring provisions* The litigation constitutes
the most comprehensive administrative enforcement action taken
under TSCA. The Consent Agreement establishes several important
and precedential provisions. The Agreement requires the company
to perform a full-scale environmental audit of its storage and
disposal facilities, the first such requirement to be obtained by
the Agency under any statute. The settlement assesses a prece-
dentially large penalty of $600,000, with $150,000 accruing to
the State of Alabama, and requires compliance-related performance
costing about $14 million. In addition, the company is required
to meet a schedule for the disposal of 2.8 million gallons of
PCB's, conduct an innovative technology demonstration for mechan-
ical waste solidation, establish a compliance officer program,
and provide a dioxin sampling, analysis and disposal plan.
Case 2; In a settlement against Diamond Shamrock Corporation,
(Irving, Texas) EPA obtained a penalty of $900,000, the highest
single penalty ever collected under TSCA S5 Premanufacture Notifi-
cation requirements. In addition, the company will conduct TSCA
compliance audits at forty-three facilities nationwide.
Case 3; In September, OECM, working closely with Region V,
negotiated a Consent Decree and Final Order in resolution of a
1982 FIFRA enforcement action involving misbranded hospital
disinfectants manufactured and sold by Huntington Laboratories,
Inc. ^In this action, EPA charged that seven batches of the
tested products, Quanto and Hi-Tor, failed to meet federal
standards for control of organisms when tested in accordance with
the A.O.A.C. Use Dilution Test at EPA's leltsville, Maryland
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laboratories. The company vigorously contested the Agency's
enforcement action and challenged the accuracy of the A.O.A.C.
Use Dilution Test Method. Huntington spent over $400,000 dollars
contesting EPA's data and test methodology. In settlement, the
company agreed to cease manufacture of Quanto and Hi-Tor and to
register new and more effective formulations of the products using
a modification of the disputed A.O.A.C. test method acceptable to
EPA. In addition, the company agreed to pay a civil penalty of
$5,000.
The settlement is significant for a number of reasons. First,
substantial public health benefits accrue from the elimination of
ineffective products. The company's products command over 40% of
the domestic hospital disinfectant market. Second, the Agency's
future enforcement efforts were enhanced by the pioneering coordi-
nation and involvement of the Registration Division of the Office
of Pesticides Program and OECM. Third, future litigation will be
eliminated by the agreement between industry and EPA in this case
on the need for refining and modifying the A.O.A.C. Use Dilution
Test to include certain scientific refinements.
Case 4s Chemical Waste Management (viekery, Ohio) - This
settlement, negotiated by EPA Region V staff, concerned TSCA and
RCRA violations. .These violations included the illegal sale and
distribution in commerce of over 6,000,000 gallons of pCB-conta-
minated waste oils. The settlement required the suspension of
additional waste receipts at the facility for a period of 10
months, construction of a toxic chemical waste landfill, imple-
mentation of a comprehensive groundwater monitoring program, an
environmental management audit, and the payment of a civil penalty
in the sum of $2,500,000. This is the largest civil administra-
tive penalty ever collected in the history of EPA.
Cage__S: Commonwealth Edison Corporation — Chicago, Illinois.
This Settlement, negotiated in January, 1985, by Region V staff,
settled an administrative penalty action involving improperly
disposed of PCBs, which had been spilled from polemounted elec-
trical capacitors. Edison decontaminated each spill site,
demonstrated the cleanup levels through verification sampling and
analysis, and paid a civil penalty of $80,000, the largest penalty,
ever paid by an electrical utility.
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In addition to the above enforcement actions brought in
PY 1985i the Agency also undertook four enforcement initiatives
in areas of high priority to the toxics and pesticides program.
In June, EPA simultaneously filed six civil administrative com-
plaints under TSCA's PMN requirements seeking penalties ranging
from $6,000 to $3.7 million. The simultaneous filings of these
actions by Headquarters and by Region V were intended to promote
the visibility of the Agency's chemical assessment program.
A similar effort followed in July with respect to TSCA
reporting requirements. As part of a Headquarters-coordinated
effort, EPA regional personnel filed administrative cases
assessing civil penalties totaling $160,000 against six companies
for reporting violations.
These cases all concerned major violations of the reporting
requirements with respect to commercial and industrial uses of
asbestos. These were the first such cases ever brought by EPA
concerning asbestos reporting under TSCA,
The Agency followed with two additional enforcement
initiatives in September, 1985, both undertaken by Region II
attorneys. First, the Region filed three .civil administrative
actions under TSCA seeking total penalties of $75,000. Section 4,
a test rule, requires manufacturers to submit notices of intent to
test shipments of certain chemicals or to submit an application
for exemption from the test rule at the time of manufacture.
These cases represented the first EPA enforcement actions ever
taken under TSCA section 4.
Also in September, Region II filed twelve administrative
complaints seeking total penalties of $90,000 for failure to
comply with the import certification requirements of TSCA, This
provision requires a chemical importer to either certify the
compliance of shipments with TSCA requirements, or to declare
that shipments are exempt from TSCA requirements. These were the
first enforcement actions to be taken by the Agency for import
violations.
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