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SUMMARY OF ENFORCEMENT ACCOMPLISHMENTS
Fiscal Year 1987
Office of Enforcement and Compliance Monitoring
U.S. Environmental Protection Agency
Washington, DC
April 1988
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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 1987. 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 G. Banks, Jr. of the Compliance Evaluation Branch of OECM,
We would like 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 OP ENFORCEMENT ACCOMPLISHMENTS REPORT
EXECUTIVE SUMMARY
I. Record Levels of National Environmental Enforcement
Activity 1
II. A Stable and Consistent National Enforcement
Program ....... ........... 2
III. Strategies, Guidance and Initiatives
• for Compliance and Enforcement .....'...... '5
IV. Major Enforcement Litigation and Establishing Key
Legal Precedents 12
V. Media Specific Enforcement Performance;
Successful Resolution of Significant Violators ... 27
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EXECUTIVE SUMMARY
In Fiscal Year 1987, EPA and the States achieved record levels
of environmental enforcement, using the full range of enforcement
authorities. The Agency referred 304 civil cases to the Department
of Justice, which is the second highest number of civil referrals
from EPA to DOJ. 'The DOJ filed 285 cases in FY 1987, compared to
260 last year. State agencies referred 723 cases to their Offices
of State Attorneys General or State attorneys for prosecution,
nearly twice the number of referrals from the previous year, EPA
and the States also carried out a strong administrative program
with EPA and the States each issuing over 3,000 administrative
orders. The Agency established an all-time record for the largest
amount of civil penalties imposed in a year. EPA imposed over
$24 million in penalties. The criminal, enforcement program
referred 41 cases for criminal prosecution, which was one of the
highest numbers of criminal referrals in the program's history.
In FY 1987, EPA also increased its use of the contractor listing
sanctions under the Clean Air and Clean Water Acts.
During FY '1987, EPA continued to enhance and reinforce the
foundation for the State/EPA enforcenien-t relationships by revising
the 'Policy Framework for State/EPA Enforcement Agreements and by
continuing to evaluate the State/EPA implementation of the timely
and appropriate response guidance. EPA and State timely and appro-
priate enforcement response helps assure that enforcement actions
are taken quickly once a violation is discovered and that the
penalty fits the seriousness of the" violation. EPA and the States
have improved timeliness in responding to significant violations
over the last several years. In FY 1987, the Agency created a work
group on Inspector Training and Development to develop an inspector
training program. SPA continued to work closely with the National
Association of Attorneys General (NAAG) to increase the awareness
by Attorneys General of environmental enforcement issues. As part
of an effort to exchange and disseminate information on environ-
mental enforcement, EPA funds and contributes information to the
National Environmental Enforcement Journal.
Numerous strategies, guidance and initiatives were developed
or improved upon in FY 1987. These include the National Municipal
Policy,- which had a primary goal in FY 1987 of assuring successful
implementation of the policy by the July 1988 deadline. The RCRA'"
Enforcement Response Policy was revised during FY 1987. The policy
provided a general framework identifying violations and violators
of concern and describing timely and appropriate enforcement
response to noncompliance. The Agency also issued a lead banking
penalty policy that dealt with the potential profits that could
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be gained by creating and trading unlawful lead rights. Several
other strategies, guidance and intiatives were developed during the
year and are detailed later in this -summary.
Major enforcement civil, criminal and administrative cases
were concluded in PY 1987. Following is a partial list of key
legal, program and regional precedents established in FY 1987:
0 The largest Clean Air Act penalty in Region I was
collected;
)
0 Region IX referred its first civil suit of a Public
«ater Supply System under the SDWA?
0 The first multi-party de minimus cash-out settlement
in the country was reached;
° The first administrative cost recovery case was settled;
0 The first judicially-approved mixed-funding consent
decree was filed;
0 The first judicial interpretation of SARA's broadened
access authority was obtained;
0 The Agency received one of the largest civil penalties
paid for PMN violations;
0 The first EPA case to criminally convict for violations
•of CWA pretreatment requirements was successfully tried;
0 The highest prison term yet in an EPA case was handed
down; and,
0 The Agency received the first judicial opinion upholding
"record review" under SARA.
During FY 1987, EPA and the States maintained high levels of
enforcement actions in specific media programs.. Program offices ,
continued to focus on high priority areas while maintaining an
overall enforcement presence in all regulated areas. Progress in
addressing significant violator? continued to improve in most
programs.
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I.. RECORD LEVELS OF NATIONAL ENVIRONMENTAL ENFORCEMENT ACTIVITY
National and State Enforcement Activity
In FY 1987, EPA and the States achieved another record
setting year in environmental enforcement activity. The Agency
referred the second highest number of enforcement cases in its
history to the U.S. Department of Justice and set an all-time
dollar record for the total amount of.civil penalties assessed,
EPA also expanded its administrative penalty and contractor
listing programs while maintaining and resolving a.large civil
and criminal judicial case docket. In addition., state agencies
developed and referred their highest number of civil cases to
state courts and maintained strong administrative enforcement
programs.
State environmental agencies, which now enforce most of
the federal environmental laws under authority delegated by
'EPA, referred 723 cases -to State Attorneys General for prose-
cution under state law, compared with 408 in the previous
year. In addition, the States took a total of 3,183 adminis-
trative enforcement actions under the air, wateriand'hazardous-
waste laws, compared with 4,106 in FY 1986.
EPA referred 304 civil and 41 criminal cases to the
Justice Department, compared with 342 and 41 in those cate-
gories in FY 1986 (see chart on following page). The Justice
Department filed 285 EPA civil cases in FY 1987, compared with
260 cases last year. At the end of FY 1987, EPA had 387 active
civil judicial orders and consent decrees, compared with 322 in
FY 1986 and 282 in FY 1985.
EPA issued 3,194 administrative orders in FY 1987 compared
with 2,626 in 1986 and 2,609 in FY 1985 (see chart). The larg-
est increase in administrative orders — from 781 in FY 1986 to
1,051 in FY 1987 — occurred under the Toxic Substances Control
Act, primarily in the PCB and asbestos programs.
: The Agency established a new all-time record for the
largest amount of civil penalties imposed in a year. EPA
imposed over $24 million in penalties in FY 1987 compared with
$20.9 million in 1986, and $22.9 million in FY 1985. The penal-
ties imposed in these three years account for 60 percent of
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400-1
550-
100-
50-
NATIONAL ENFORCEMENT ACTIVITY
FY 1983 - FY 1987
CASE REFERRAL TO DQJ
JUDICIAL CASES FILED IN COURT
0
1983
1984
1985
RSCAL YEARS
1986
1987
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ENFORCmi-Hf ACriVlTY
iNlSTUATiVK ORI>I%RS
FY HBO THROUGH FY 1987
Air - Stationary
W.itr-r - NPDES
Safo Drinking Water
RCRA
Supprfund
TSCA
FIFRA
Tbtal
FY 19BO
86
569
*
-
-
70
176
FY 1901
112
rifi2
*
1-V?
-
120
J54
FY 19R2
21
329
*
237
-
101
176
FY 19B3
41
781
*
4J6
2^4
296
FY 1984
141
1644
0
554
137
376
272
FY 1985
122
1028
3
327
160
733
236
FY 1986
143
990
0
235
139
781
338
FY 1987
191
1002
212
243
135
1051
360
901
1107
064
184H
3124
2609
2626
3194
*NPDF,S and SOWA orders corfiined
(CAPO 1/15/88)
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Air - Stationary
Water - NPDFIS
Sif« Drinking Water
RCRA
Suporftirid
TKCA
F1»A FM-DRCWRNT ACTIVfTY
civn, CASI-;S HKI-KIWI-I) MY'I-^A TO
I-^Y nno inHotr.u I-^Y
Air - Mobile Sources
Total
* NPDES and 55DWA cases corrf)inntl
** RCFA ami Superfinrl chines coninnerf
and TSCA c^s«^s confined
FY nno
no
56
* .
53
**
1
»**
20
210
FY 19B1
52
J7
*
14
* *
1
***
14
nn
FY 19R2
31
45
*
21
* *
2
* **
5
112
FY 1903
6(1
56
*
33
-".
7
** »
9
165
FY 19R4
66
95
*
60
• *
14
A**
16
251
FY 1985
86
nn
5
13
35
8
11
30
276
FY 1986
109
100
11
43
41
10
14
6
342
FY 1907
100
05
7
23
54
9
4
22
304
(CATO 1/15/OR)
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all of EPA's penalties imposed since 1974, EPA program offices
generally have increased their use of penalties and the size of
typical penalties under both judicial and administrative
authorities.
EPA's criminal enforcement program has referred 82 cases .
for criminal prosecution over the past two years. In 1987, 58
defendants were convicted or entered guilty pleas, compared
with 66 in 1986 and 40 in 1985. During 1987, federal judges
imposed fines totalling $3.6 million and prison terms of 84
years against individuals convicted of violations of federal
environmental laws.
EPA also is increasing its use of the contractor listing
sanctions under the Clean Air and Clean Water Acts. As of
September 30, 12 facilities were on EPA's "List of Violating
Facilities." Facilities automatically go on the list when
their owners or operators have been convicted of criminal
violations of the clean air and clean water laws {or which have
had. continuous or recurring violations of those laws) or may be
added at EPA's discretion if there is a continuous pattern of
violation of these statutory requirements. Listed facilities
are barred from receiving future contracts, grants, loans or
any other form of assistance from any branch of the federal
government. A facility remains on the list until it demon-
strates that it has corrected the condition that gave rise to
the listing.
II. A STABLE AND CONSISTENT NATIONAL ENFORCEMENT PROGRAM
Updating State/EPA EnforcementAgreements
During FY 1987, EPA continued to enhance and reinforce
the foundation for the State/EPA enforcement relationship
carefully established over the past four years. The Policy
Framework for State/EPA Enforcement Agreements, originally
issued in FY 1984, and the-corresponding program specific imple-
menting guidance, serves as the blueprint for the State/EPA
enforcement agreements. These agreements spell out criteria
for good performance, state-federal roles and relationships
and na^onal reporting of accomplishments. EPA revised the
Policy ?ramework in August of 1986, with the assistance of the
Steering Committee on the State/Federal Enforcement. Relation-
ship, to incorporate new policy and integrate all related
guidance developed since its issuance.* This included oversight
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of state civil penalties, guidance for timely and appropriate
enforcement response, involvement of the State agency attorneys
and Attorneys General and sharing of penalties. The revisions
were reinforced in the guidance issued this fiscal year for the
FY 1988 enforcement agreements process.
Evaluating State/EPAImplementation of Timelyand Appropriate
Enforcement Response Guidance
The Steering Committee on the State/Federal Enforcement
Relationship continues to monitor' implementation of the Policy
Framework. A report on implementation of the timely and appro-
priate enforcement response guidance for the RCRA, NPDES, Air,
TSCA, FIFRA, PWSS, and UIC programs addressed the extent to
which both EPA and States are meeting the timeframes for
enforcement response as established by each program. The
report shows that EPA and States have made improvements in
implementing the timely and appropriate enforcement response
system and that the guidelines are generally having a favorable
impact.
o There are two notable improvements in timeliness of
enforcement actions. When compared to FY 1986 performance,
States in the RCRA program had a six percent increase in
.timeliness; EPA in the Air program had an eleven percent
increase in timeliness.
o Overall, program timeliness is slightly better .than the
FY 1986 results and State and EPA performance in meeting
the timeframes is fairly comparable. Much more needs to
be done to improve timeliness of response and continuing
to assess how realistic the goals are.
o States made a substantial improvement in assessing penalties
in enforcement actions when compared to FY 1986. The most
dramatic change is in the Air program, where States increased
the percentage of enforcement actions with penalty from 62%
to 92%. In RCRA, States increased the percentage of cases
in which penalties are assessed in. formal enforcement actions
from 34% to 41%, however, there is still a significant
difference in the extent to which States and EPA use penal-
ties and sanctions in RCRA enforcement actions.
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The trends are promising* Formal enforcement response by
States has been increasing over the past few years in both
absolute numbers and the proportion of total EPA and State-
actions as is the appropriate use of penalties or other sanc-
tions. Efforts to further improve both State and federal
performance in meeting T&A goals will be undertaken over the
next fiscal year.
Supporting Inspector Training and Development
The Agency-wide Work Group on Inspector Training and
Development was organized in FY 1987 to create an inspector
training program. As part of this project, Region II, organ-
ized the Agency's first profile of Agency personnel performing
compliance inspections and field investigations. Each compli-
ance program worked with its Regional and State counterparts to
develop curricula. The Office of Enforcement and Compliance
Monitoring began developing a cross-cutting basic inspector
training course to teach the fundamentals of inspections to all
agency compliance inspections and field investigations person-
nel. The Office of Enforcement and Compliance Monitoring
assembled necessary materials for the Basic Curriculum in
five areas; legal, administrative, technical, communication and
health and safety. The Office of Administration and Resources
Management led an analysis of the compliance inspection job,
focusing on knowledge, skills and abilities to be developed
through training. The Work Group reviewed a draft policy state-
ment .and guidance .on program implementation. Subsequently, an
EPA Order was drafted that would establish the training program,
Work is continuing in FY 1988 to polish the EPA Order and
Program description for Agency-wide review and approval. The
program will also emphasize the importance of assessing State
training needs and providing assistance to states in meeting
those needs.
Improved Coordination Between State Attorney General, EjPA and
DOJ
i EPA continued to work closely with the National -
Association of Attorneys General to increase the awareness by
Attorneys General for environmental enforcement issues. As
part of an effort to exchange and disseminate information on
environmental enforcement, EPA has continued to fund and con-
tribute feature arcicles, major case decisions and settlements,
indictments, federal enforcement policy, etc. to the National
Snvi ronmen tal Enfgrcement Jpurna1. The Journal is distributed
within EPA and to DOJ," the U.S. Attorneys, State Attorneys
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General, State regulatory agencies and is an important tool in
developing stronger and pore coordinated environmental enforce-
ment efforts. With EPA assistance, NAAG has conducted a series
of training sessions and roundtable discussions on such topics
as hazardous waste enforcement and managing complex environ-
mental litigation.
EPA also continues to work with the National Environmental
Enforcement Council (NEEC) to exchange views about issues on
environmental laws and policy among law enforcement officials
from EPA, DOJ, U.S. Attorneys, State Attorneys General,
District Attorneys, and State Environmental Program Directors.
EPA speakers discuss relevant environmental enforcement topics
with NEEC. The Assistan-t Administrator for OECM was the Vice-
Chair for 1987 and will be the Chair for 1988.
III.' ' STRATEGIES, GUIDANCE AND .INITIATIVES FOR COMPLIANCE AND
ENFORCEMENT
Fiscal Year 1987 was a year in which the Agency continued
. the 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 discus-
sions a.t the beginning of the planning cycle.
Written strategies and guidance 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 and guidance in FY 1987.
Small vpc Source ComplianceStrategy
In July 1987, the Office of Air and Radiation issued the
Agency's small VOC source compliance, strategy. The strategy
provides a process for identifying VOC categories that are
dominated by small sources who are important contributors to
ozone non-attainment for specific areas. The strategy creative-
ly links three components of a compliance approach for address-
ing small VOC sources, i.e., compliance promotion through
publicity and technical assistance, statistical targetting of
inspections, and swift enforcement.
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Lead Banking Penalty Policy
The regulatory changes that allowed refiners to bank lead
rights created the need for a new penalty policy that could
deal with the potential profits that could be gained by creat-
ing and trading unlawful lead rights. Such a policy was
developed in FY 1987 and resulted in the issuance of several
multi-million dollar notices of violation for lead phasedown
violations.
Despite vehement industry opposition to the higher banking
penaltiesi the majority of these cases have already been
resolved. Settlements have typically involved payment of
substantial penalties plus the elimination of large quantities
of lead from the lead pool. Millions of grams of lead that
otherwise would have been used in gasoline production have been
eliminated as a result of these settlements.
National Municipal Policy(NMP)
The primary NMP goal during PY 1987 was to assure
successful implementation of the Policy by the July 1988 dead- :
line. It was critical that the Agency demonstrate that it was
serious in enforcing against violations of established schedules,
other noncompliance with the Policy's objectives and Clean
Water Act requirements for municipals. Following an EPA audit
of State and Regional actions- in the Spring, and bolstered by
schedule violation data collected in a survey performed by
ASIWPCAr OWEP prepared an Enforcement Strategy directed at the
worst cases. The heart of the Strategy is a list of candidates
for referral, including Federal overfile actions. Based on the
trends evident in the EPA and ASIHPCA surveys, the Administrator
sent a directive to the Regional Administrators, requesting
that they work directly with their States to carry out the
Policy during this "final push" to July 1, 1988. Since the NMP
Enforcement Strategy' took effect in September, over 100 major
PQTWs have been targeted for EPA or State action. During FY
1987, the number of NMP majors not under enforceable schedules
was reduced from 63 to 23 Cover 1,500 originally required
schedules under the NMP). The number of majors that had achieved
compliance rose by 234 to 503. Thirty-seven NMP majors were
referred to DOJ and 36 were referred, to State Attorneys General.
Forty-six state and SPA NMP cases (some referred before FY
1987) were settled in FY 1987, placing these POTWs on judicial
schedules.
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CleanWater Act Amendments-Authority to Assess Administrative
Penalties
Section 314 of PL 100-4 (Section 309(g}-CWA), effective
February 4, 1987 added a new subsection (g) to section 309 of
the Clean Water Act which authorizes the Administrator or his
delegatees to assess administrative penalties for violation of
National Pollutant Discharge Elimination System (NPDES)
requirements, {including violations of NPDES permits and dis-
charging without an NPDES permit) and for discharges without a
dredge and fill permit required under Clean Water Act §404.
The new statute provides for assessment of Class I and Class II
penalties in maximum amounts of $25,000 and $125,000. Immedi-
ately following the passage of PL 100-4 a joint Office of Water-
OECM work group was formed to develop procedures, policy and
guidance for implementation of this new authority. This work
group included representation from all the Regions. By the end
of August, 1987, procedures for Class I and Class II proceedings
had been formulated and announced in the Federal Register,
Interim Delegations of the Administrator's authority had been
issued and a guidance package including various forms and
explanatory guidance concerning the operations of Section
309(g), was transmitted to all Regions. Additional Section 404
guidance, which requires coordination with the Corps of Engi-
neers is proceeding, and work towards the final promulgation of
procedural hearing rules for both classes of penalties and of
final delegations is also going forward.
Repgrtable Noncompliance for_P_OTW Pretreatment_Program
Implementation
-On September 30, 1987, the Office of Water Enforcement and
Permits (OWE?) issued "Guidance for Reporting and Evaluating
POTW Noncompliance with Pretreatment Implementation
Requirements." The Guidance provides the basis for evaluating
the compliance status of a POTW which must implement an approved
pretreatment program. POTWs that meet the criteria for failing
to implement their approved pretreatment program are considered
in,"Reportable Noncompliance" (RNC) and must be listed by EPA
and approved States on the Quarterly Noncompliance Report. The
criteria cover principal POTW activities including the issuance
of Industrial User (IU) control mechanisms? compliance monitor-
ing and inspections of ICJs; enforcement of pretreatment stand-
ards; and reporting to the Approval Authority. During FY 1988,
Regions and States will use this guidance to identify POTWs
that are failing to implement their approved programs and
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report them on the QNCR. These facilities will be priorities
for enforcement, for permit1 modifications, or for technical
assistance, where appropriate. The effectiveness of this -
Guidance in identifying the most serious noncompliers will be
evaluated during FY 1988, and, with appropriate revisions, will
become the basis for a definition of significant noncompliance
for pretreatment implementation in the future.
Analysis of State Administrative Mechanisms for Enforcement
In FY 1987, a major project was initiated to analyze
State administrative mechanisms for enforcement to assure that
those counted as "equivalent" to Federal Clean Water Act admin-
istrative compliance orders for reporting in Quarterly Noncom-
pliance Reports and other Agency tracking and reporting systems
(SPMS/OWEP) also met the Agency's definition of formal enforce-
ment actions. OWE?, in conjunction with OECM-Water, developed
the specific criteria. Regional program'and counsel staff used
these .criteria to review and evaluate the State administrative
enforcement documents and their statutory and regulatory bases.
The Regional analyses were completed in March 1987. Only one
State was found to lack any equivalent mechanism and this is
presently being remedied.
PretreatmentPermits and EnforcementTracking System (PPETS)
In response to requests by the Regions and States, OWEP
worked with the Regions and States during FY 1987 to develop an
automated tracking system for overseeing the implementation of
the pretreatment program. This system, which is a subset of
the NPDES data system, PCS, is known as the Pretreatment Permits
and Enforcement Tracking System (PPETS), became operational on
November 10, 1987. The system consists of a small set of
required information collected from existing pretreatment data
sources, and also has- the capability to allow for the entry of a
broad range of optional information. PPETS is expected to:
o identify national problem areas in implementation
of the pretreatment program; ....
o provide data on significant industrial users;
o provide a basis for assessment jf the national
program's progress and success; and
o provide data for assessing POTW implementation in
terms of reportable noncompliance.
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Effective January 4, 1988, the Regions and States are required
to begin data entry of the mandatory PPETS information for all
pretreatraent data collected after September 30, 1987.
Enforcement Response Policy
The RCRA Enforcement Response Policy (ERP) was revised
during fiscal year 1987. Originally issued in December 1984,
the ERP provides a general framework identifying violations
and violators of concern and describing timely and appropriate
enforcement response to noncompliance. The changes were made
to reflect changes in the program and the regulated universe.
Since the development of the original ERP, which placed prior-
ity on enforcement against, interim status :land disposal faci-
lities which were out of compliance -with groundwater monitoring,
closure/post-closure, or financial responsibility requirements,
new program initiatives have developed. HSWA and overall
development of the RCRA program have mandated closer scrutiny
of other segments of the regulated community and other types
of violations- This expansion of focus required a broadening
of programmatic emphasis.. For example, corrective action .
requirements and land disposal restrictions direct more atten-
tion to hazardous waste treaters, storers, and generators/ as
well as to land disposal facilities.
The Environmental Priorities Initiative
The Environmental Priorities Initiative (EPI) is an
integrated RCRA/CERCLA Management System designed to enable
the Agency, and ultimately the States, to identify, evaluate,
rank and clean up first those sites that present or may present
the greatest threat to human health and the environment.
Off-Site Policy
The Off-Site Policy describes procedures that should be
observed when a response action under CERCLA or Section 7003
of RCRA involves off-site treatment, storage or disposal of
CERCLA waste. The procedures also apply to actions taken
jointly under CERCLA and another statute. The purpose of the
Off-Site Policy is to avoid having CERCLA wastes contribute to
present or future environmental problems by directing these
wastes to facilities determined to be environmentally sound.
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Interim Guidance;_ __S_treamli,nln_g the CERCLA Settlement Decision
Process
This guidance deals with ways to improve the negotiation
and settlement process, focusing on three areas:
- Negotiation preparation
Management review of settlement decisions
Deadline management
Entryand Continued Access Under CERCLA
In June 1987, OECM issued guidance that set forth the
Agency's policy on gaining entry and continued access to
hazardous waste sites. The guidance discusses changes to the
Agency's access authority brought about by SARA, and describes
the use of consent, administrative orders, warrants, and court
orders to facilitate access.
Interim Guidance on Settlements with mDe Jjinimis Waste
Contributors Under Section 122(g) of SARA
In June 1987, OECM and OSWER issued guidance that examined
which contributors:of hazardous waste qualify for de minimis
treatment under CERCLA and provides direction on the form and
timing of settlement with such parties.
Covenants,Not To Sue Under SARA
In July 1987, OECM, OSWER and DOJ issued guidance that
provides information on implementing the mandatory and discre-
tionary provisions of SARA relating to the use of releases from
liability, or "covenants not to sue," in CERCLA consent decrees.
Guidance on the Use of stipulated_Penalties_ in Hazagd_ous Waste
Consent Decrees
This guidance issued in September by OECM, provides direction
on:how to structure the stipulated penalties provision in
consent decrees.
Guidance on Federal Superfund Liens
This guidance issued by OECM in September 19P7, implements
the new lien authority created by SARA. The document discusses
when liens should be issued and what they should contain.
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Fi_na 1 RCRA _Comgr e hen 3 i ve Gro und-Wa terMon i tor in g Eval ua t i on
Guidance'
In December, 1986, OSWSR issued guidance which provides a
framework for evaluating inspections/evaluations of groundwater
monitoring systems under RCRA.
RCRA Corrective Action Interim Measures Guidance
In June 1987, OSWER issued guidance intended to assist the
Regions in determining the need for an interim measure and
directing the work which must be performed as part of the
corrective action program to mitigate or remove the exposive
threat presented by release.
RCRA Corrective Action Plan
In November 1986, OSWER issued a plan to aid the Regions
and States in determining and directing the specific work which
must be performed as part of a complete corrective action pro-
"gram. It provided a technical framework for use during the
development of Corrective Action Orders and corrective action
permit requirements.
Waste Oil Interim Enforcement Guidance
This guidance provides information to the Regions about
the technology of the waste oil industry as well as strategies
for enforcement.
RCRA Groundwater^Monitoring Technical Enforcement Guidance
This guidance describes in detail what EPA deems to be
the essential components of a ground-water monitoring system
that meets the goals of the Resource Conservation and Recovery
Act. The guidance is to be used by enforcement officials,
permit writers, field inspectors and attorneys at the federal
and state levels to assist them in making informed decisions
regarding the adequacy .of existing .or proposed groundrwater
moni tor ing .systems or modifications thereto.'
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Criminal Press Policy
This policy, issued jointly with the Assistant
Administrator for External Affairs, states the importance of
media (press) releases to maximize deterrence, and describes
the timing and content of media releases allowed in criminal
cases.
Requests for Parallel Proceedings
This policy establishes procedures within the criminal
and civil sides of OECM for expeditious handling of regional
referrals which present parallel proceeding issues.
Criminal Cases and Injunctive Relief
This policy provides for direct regional responsibility -
-a far more workable alternative than OECM review - to evaluate1
criminal referrals and determine 'whether immediate civil relief
may be" needed.
IV. 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
compliancer deterring future violations by that source or
others and e-stablishing useful legal precedent. Following are
highlights from key case's which go beyond simple success in an
individual action. Examples are selected from each media
program.
Air (Stationary) Litigation
U_._S. v. Ford Mo tor Co. ; The Sixth Circuit held that the U.S.
can enforce the current federally-approved State Implementation
Plan (SIP) even though the defendant and the State of Michigan
had entered a consent judgment in State court invalidating the
SIP regulation. The court held that"the State could only
revise its SIP by submitting a revision to EPA for approval.'
The court distinguished this case from previous cases which
"recognized a State court invalidation of SIP regulations ab
initio based on procedural deficiencies in adoption af the
regulations. The Sixth Circuit also ruled that federal
enforcement of the current SIP regulation could proceed
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despite the pendency of a SIP revision proposed by the State.
This case was subsequently settled for $1.75 million and
resulted in the elimination of approximately 800 tons of VOC
annually. (Region V)
U.S. v. Wheeling-Pittsburgh Steel Corp.: The Third Circuit
ruled that federal enforcement of an existing SIP could proceed
despite the pendency of a SIP revision. In this case, the
district court had ordered a modification to a consent decree
based on a "bubble" proposal which the State had not formally
submitted to EPA. The court ruled that the district'court
erred and held that the company was not relieved of its obliga-
tions to comply with existing SIP requirements, (Region,III)
I
U.S. v.SCH Corp.; The court in this case assessed $350,000 in
civil penalties against SCM Corporation for violations of SIP
particulate matter and acid mist regulations. Among other
• things, the court ruled that penalties may be assessed begin-
ning with the earliest provable date of violation, even prior
to EPA's issuance of a Notice of Violation, subject to a five
•year .statute 'of limitations. {Region III)
U.S. y. Magma Copper Company; A successful civil action was
brought by EPA againstthe second largest sulfur dioxide (SOo)
source in Region IX. {The largest SC>2 source, the Phelps Dodge
Douglas Reduction Works in Douglas, Arizona, shut down on
January 15, 1987 due in part to a Region IX civil action.) A
consent decree entered in Federal District Court in Tucson
between the United States and Magma Copper Company requires
Magma to bring their primary copper smelter into full compli-
ance with Arizona emission limitations by November, 1988, by
upgrading the smelting furnaces and air pollution control .
equipment. The consent decree requires Magma to adhere to a
strict construction schedule for installation of new equipment,
to post a $20 million letter-of-credit to insure shutdown of
the existing smelting furnaces, to meet the SC>2 NAAQS, and to
limit short term peak SC>2 concentration limits to protect
asthmatics. The consent decree also contains stiff stipulated
penalties and requires Magma to pay a civil penalty of $600,000,
-i
U.S. v. Borden, Inc.; In an action to enforce a .consent decree
requiringinstallation of air pollution control equipment, the
District Court awaked EPA $550,000 in stipulated penalties.
The court agreed wifh EPA that Borden had failed to properly
-install and operate equipment, for the control of volatile
organic compounds, and to apply for a State operating permit,
as required by the decree. (Region II)
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14
U. S. v. _Genera 1 Mo tors; On August 17, 1987, Region I filed a
compTaTnt under the Clean Air Act against General Motors in
Framingham, Massachusetts/ to collect $13 million in penalties
for a 20-month period during which GM operated in violation of
the federally-approved Massachusetts ozone State Implementation
Plan (SIP). This case is a central piece of a larger Region I
initiative to address violations by sources emitting volatile
organic compounds (VQCs) which are ozone precursors. The •
initiative also included issuance of the Region's first Notices
of Noneompliance under Section 120 on December 19, 1986, to
Archer Rubber Company and on December 30, 1986, to Haarz-Mason
Company; and entry on January 16, 1987, of a consent decree
with National Gypsum collecting the largest Clean Air Act
penalty to date in the Region.
Vinyl Chloride Cases; The Agency settled several civil actions
for violations of the National Emission Standard for Vinyl
Chloride, a hazardous air pollutant. The settlements typically
require operator training, detailed operation and maintenance
procedures, and where necessary, payment of substantial civil
penalties. The settlement penalty amounts were: Occidental
Chemical Corp. (NJ), $490,000? B.F. Goodrich Co. (LA),
$395,000; Goodrich - Louisville (KY), $333,500; PPG Industries
(LA), $225,000; Union Carbide Corp. (TX), $142,000; Goodrich -
Calvert City (KY), $123,500; Dow Chemical Co. (TX), $105,000;
Dow (LA), $87,400; and Occidental (LA), $75,000.
The City of Indianapolis, Indiana entered into a Consent Decree
with the United States Environmental Protection Agency (U.S.
EPA), Region V to remedy air pollution violations from eight
sewage sludge incinerators at its Municipal Waste Water
Treatment facility. These sewage sludge incinerators emitted
particulate matter in excess of the rate allowed under the
Indiana State Implementation Plan (SIP). Indianapolis agreed
to install.new high-energy venturi scrubbers on each of the
incinerators at a total cost of approximately $4.5 million and
pay a civil penalty of $75,000. Currently, four scrubbers have
been installed and have demonstrated compliance with the Indiana
SIP. (Region V)
Air (Mobile) Enforcement
y.S. v. Nobek Distributors, Inc.; This gasoline distributor
was issued an NOVin 1984 for the distribution of contaminated
gasoline. The proposed penalty was $16,100. When settlement
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discussions failed, an action was brought in federal district
court. On June 30, 1987, a judgement was issued against the
company on a motion for summary judgment for the. full statutory
penalty of $180,000.
Mac's Muffler: . EPA initiated an enforcement action for the
removal of emission control devices by a repair facility.
After trial, the court found the facility, and the owner,
liable and assessed $21,000 in penalties,
Ceds, Inc. i A $75,000 settlement was reached with the largest
manufacturer of catalytic converter replacement pipes. The
manufacturer is also prohibited from any further marketing of
the devices. EPA worked with the state of Indiana to resolve
this and related cases against parts distributors who sold the
devices and repair facilities who installed them on vehicles.
The state cases also involved a large number of catalyst
replacements as a condition of settlement and the collection
of substantial penalties against the distributors, installers
and Ceds, as well.
Geo-Plex Corporation; EPA investigated this manufacturer of
aftermarket catalysts and determined that the devices did not
perform the essential function of a catalytic converter. The
court granted EPA's request for an injunction preventing fur-
ther marketing of the device, and ordered the company to notify
each purchaser that installation of the device could result in
tampering liability. EPA's actions in this case received
excellent trade press coverage and conveyed a strong message
to this industry of the Agency's intent to firmly enforce these
requirements.
Will Petroleum, et al.; An extensive EPA investigation led to
the issuance of an "$11 million NOV to this company based on an
alleged scheme to profit from illegal leaded gasoline blending.
Three other companies were also implicated and received NOVs
for similar penalties. These cases have not yet been resolved.
The announcement of these actions prompted other companies to
initiate their own internal- audits -for .compliance with these ••
regulations.
Good ^ Hope Re finery; An action was filed against this company
seeking?18 mTl1i on in penalties for lead phasedown violations.
The company filed for chapter il bankruptcy. EPA resolved the
.case via a court approved restructuring plan. EPA accepted a
$2.3 million cash-out settlement over another option that would
have amounted- to approximately $10 million in eight years.
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Ca naiRefining Co.; EPA negotiated a $710,000 settlement in a
lead phasedown case in which an NOV had been issued proposing
a $740,000 penalty. ,
Water (CTA & SDWA) Litigation ' .
The CWA enforcement program recorded a significant improvement
over previous years in concluded cases and civil penalty assess-
ments. The Federal program concluded 74 civil cases in FY 1987,
the highest number since 1977, and received judgments for
$6,602,587 in civil penalties, the highest amount ever..
Region I initiated use of EPA's new Clean Water Act
administrative penalty authority by issuing one of the first
administrative penalty orders in the nation. In a Class I
proposed penalty order/ the Town of Biddeford, Maine, a penalty
of $25,000 was proposed to be assessed for failure to implement
a pretreatment program. .In a Class II proposed penalty order,
the Dartmouth Woolen Company of New Hampshire a $125,000 penalty
was proposed .for continuous failure to submit discharge monitor-
ing reports and other data. Five days later, on September 23,
the .Regional Administrator, Region VI, proposed the entry of
Class I penalties against 10 respondents for various alleged
NPDES program violations.
U.S. v. Joint Meeting, Rutherford, _East__Rutherford and
Carlstadt, NJ; An "amend'ed ~c6n~se~rft "decree was lodged with the
court resolving the above-captioned case. In this action,
municipal defendants have been assessed a civil penalty of
$50,000, pursuant to Section 309(d) of the Clean Water Act, for
their violations of their NPDES permit. The defendants also
violated a previously entered partial consent decree embodying
interim effluent limits and a compliance schedule. For their
violation of the previous consent decree, defendants are
assessed an additional $350,000, based upon the stipulated
penalties provided in the original decree. Of this $350,000,
$100,000 is payable in cash, with the balance suspended pending
defendants' final compliance with the amended decree's require-
ment to "cease discharging" by December 31,,., 19.87. (Region II).
U.S. v. General DevelopmentUtilities; This case involved two
Floridafacilities operatedby General Development Utilities
which were originally intended to be no discharge systems.
Due to insufficient design capacity, increasing flows, and
operations changes, both facilities had unpermitted discharges.
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As a result of extensive pre-'filing negotiations a consent
decree was signed with a $487,000 upfront penalty and schedule.s
(with stipulated penalties) for the construction of a multi-
million dollar facility at each location to cease discharge.
These included spray irrigation at the Silver Springs Shores
site and spray irrigation and deep well injection at the North
Port site. An extremely important factor in the negotiations
involved EPA's presentations of calculations per the penalty
of $100,000 was their maximum based on their perception of
other settlements that they were aware of. Firm insistence on
obtaining more than the economic bene'fit of non-compliance,
under the EPA Civil Penalty Policy, was successful in bringing
about agreement on the much larger penalty. Another unusual .
aspect of the case relating to the North Port site was exten-
sive public controversy. By close coordination with local and
State officials, agreement was reached with no public
objections. (Region IV)
Ashland Exploration Administrative Order; An Administrative
Order was negotiated and signed between Ashland Exploration
and EPA regarding underground- injection activities in the
Martha Field of Kentucky. The Order requires Ashland to plug
and abandon 600 injection wells, 1200 production wells, provide
alternate water supplies to replace contaminated private wells
and to clean up the areas around the oil-brine separators. In
addition, Ashland has paid a penalty of $125,000, the maximum
allowable under the Safe Drinking Water Act. The Order was
finalized in September of 1987. (Region IV)
Region IX referred its first civil suit of a Public Water
Supply System under the SDWA in March, 1987. This case, if
decided in favor of EPA, will have precedential value of
national significance in defining a Public Water Supply System
under the act. The defendant in this case is one of perhaps
several dozen systems in California serving raw or partially
treated irrigation water to hundreds of residences. As this
case unfolds, the Region will prepare a strategy including
administrative orders and further lawsuits to bring these
systems into compliance with the act.
Hazardous (RCRA S CERCLA) Waste Li tigation
Multi-Party Settlements; Probably the n^dt significant:
accomplishments in the Superf und area during the past fiscal
year were the several multi-party settlements achieved. A few
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merit special note. Under the judicial settlement in the
Beacon Heights(Connecticut) case, 32 generators will under-
take remedial action at the site that is projected to cost_
more than $20,000,000 and will pay EPA's oversight costs in
excess of the first $500,000. In the Cannons case, the first
multi-party de minimis cash-out settlement in the country was .
reached; 267 parties combined to contribute $10,900,000 toward
the cleanup of the four Cannons sites in New Hampshire and
Massachusetts. The negotiations in the Union Chemical (Maine)
case culminated In^the first administrative .cost recovery
settlement in the country. Two hundred sixty-three parties
have agreed to pay 80 percent of EPA's and the State of Maine's
past costs at the site; for a total of $1,649,60,0, and to
conduct the RI/FS for the site. In the settlement concerning
the Mc_Kin (Maine) site, more than 200 parties have signed on
to coinpTe'te the necessary remedial action by designing and
constructing a groundwater treatment system, pay past and
:future costs to the U.S. in the amoun-t of $1,850,000, and pay
past and future costs to the State of Maine in the amount of
$.1,150/000.' (Region I)
A consent decree between the United States and General Motors,
governing remedial work at the Harvey and Knotts Site, was
filed in -the United States District Court for the District of
Delaware on August 23, 1987. General Motors agreed to perform
the remedial action, pay $979,638 toward EPA's past response
costs, and pay two-thirds of EPA's future oversight costs.
Pursuant to the terms of the decree, EPA will reimburse General
Motors for one-third of the cost of the remedial action. This
is the first judicially-approved mixed funding consent decree
in the nation. (Region III)
ttaxey Flats Site: On March 24, 1937, Region IV signed an
Administrative Order by Consent with 75 of the 832 potentially
responsible parties (PRPs) at the Maxey Flats Nuclear Disposal
Site in Fleming County, Kentucky. The Maxey Flat site was the
second if six commercial radioactive disposal sites commissioned
in the United States. The site, which was active from 1963 to
1977, had been included..on Superfund's National Priorities List
in ..October 1986. The order requires the PRPs to complete a
remedial investigation and feasibility study by July 1988. The
^ost of the investigation and study has been estimated to be in
excess of $1.3 million. The order requires the PRPs to refund
EPA's oversight costs. (Region IV)
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During PY 1987, the first judicial interpretation of SARA's
broadened access authority was obtained in U.S. v. Long in an
order granting EPA access to the Pristine NPL site. In the
Bofors-Nobel case, a settlement was achieved with a potential
purchaser of the site obtaining $15 million for"cleanup of
this highly contaminated Michigan facility. This agreement,
is now serving as the principal model for the development of
national guidance on potential purchaser settlements.
{Region V)
Perhaps one of the most significant interlocutory rulings
achieved in FY 1987 was in the Seymour Recycling case. 'A
judicial opinion was achieved in that action clearly confirming
that judicial review of SPA's selected remedy would be "on the
record" rather than at a full trial. Such review is very
favorable, to EPA, both in terms of our burden of proof and the
resources required. This was the first judicial opinion
upholding "record review" under SARA, and narrowly limited a
very unfavorable opinion in 01tati and Goss gase to its
somewhat unique procedural circumstances.
In La skin, the Sixth Circuit Court of Appeals granted EPA's
mandamus petition, holding that the reference of dispositive
motions to a special master was not authorized by the Federal
Rules of Civil Procedure. The opinion set national precedent
concerning the appointment of special masters, a circumstance
arising in an increasing number of environmental cases.
A district court order denying the defendant's motion to
dismiss our Conservation Chemical Corporation of Indiana (CCCI)
RCRA case provides precedent clearly upholding U.S.EPA~author-
ity to enforce RCRA in States that have authorized RCRA
programs. The argument that EPA lacks such authority has
clouded RCRA enforcement nationwide since Administrative Law
Judge Yost adopted it in his unfavorable CID decision early
in the year.
Several of the administrative orders issued set national
precedents for implementation of new SARA provisions. The
ElyriayRepublic order was the first tn the nation to exercise
new SARA authority to administratively order access or face
penalties. The Rasmussen order was the first to exercise new
administrative subpoena authority under SARA. The ^'CAAP order
was the first ever issued under new §120 of SARA addressing
federal agencies. This $50 million remedial action agreement
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broke an impasse that had arisen between federal agencies and
EPA, and is currently serving as a national model for our
federal facility negotiations.
U.S. v. Conservation Chemical Company et al. In FY 1987, the
parties to this case reached agreement on ETTe terms of a
settlement and a Consent Decree has been lodged.with the United
States District Court for the Western District of Missouri.
This settlement resolves one of EPA's longest running, most
hotly contested hazardous waste cases. The Conservation Chemi-
cal Company site, a former treatment, storage and disposal
facility, which operated from approximately 1960 to 1980, is
one of the original sites addressed by the pre-CERCLA uncon-
trolled hazardous waste site program. Initial site investiga-
tion was conducted beginning March 1979. In September, 1980,
the first of two lawsuits regarding the site was filed in
Federal District court for the Western District of Missouri
under Section 7003 of RCRA. In November 1982, the United
States filed its second suit involving this site, under
Sections 106 and 108 of CERCLA and Section 7003 of RCRA,
seeking to obtain responsible party cleanup of the site. The
suit named not only the site owner/operators but also the
parties believed to be the principal generators of the hazard-
ous wastes/hazardous substances of concern at the site. In
1984, these companies sued approximately 250 additional
parties, including 16 insurance companies and 10 Federal agen-
cies and departments, for contribution or indemnification.
In May 1985, on the eve of trial, an agreement was reached
which called for partial reimbursement of past response costs
and initiation of implementation of the remedy by the defend-
ants. The defendants agreed to complete all remedial design
and construction work, operate the treatment system and under-
take all operation and maintenance activities required to keep
the pump and treat system functioning properly. In addition,
the generator defendants will pay response costs. The CCC
defendants, through their insurers, will pay past response
costs of $1,600,000. This case is one of the most often cited
cases in favor of the Government, since it has resulted in the
establishment of a number of favorable legal precedents,
relating to constitutional issues, as well as questions of
liability and the meaning of "imminent and substantial endan-
germent." This case was one of the first cost recovery cases
to have tue Government's cost accounting techniques exposed to
the scrutiny of extensive discovery,.which in turn lead to the
adoption of improved cost accounting procedures. This case
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was also one of the first to make extensive use of computerized
data bases for litigation support. Computerized document con-
trol and transactions analysis currently in use by EPA are,
largely the offspring of similar systems first developed for
CCC. (Region VII)
Bunker Hill; Bunker Hill, a Superfund site since 1983, is one
of the largest Superfund sites in the region. Over 5,000
people live in the vicinity of the site. When Gulf Resources
and Chemical Corporation was still running the Bunker Hill
site, negotiations between the company and EPA proceeded at an
excrutiatingly slow pace. In FY 1987, EPA and Gulf Resources
signed a consent order initiating a Remedial Investigation/
Feasibility Study (RI/FS) at the site. The RI/FS, one of the
largest being conducted nationally, is being funded by Gulf
Resources. The RI/FS is expected to cost between $5-6 million.
This is quite possibly the largest settlement with a single
party for an RI/FS, representing a sizeable cost savings to
the government. (Region X)
Region I has been one of the national leaders in addressing
the serious problems resulting from lead contaminated soil.
The Region has embarked in a major project in the City of
Boston. The Region was granted over $6 million to abate lead
contaminated soil in Boston's inner city neighborhoods. The
project is intended to be a pilot program which demonstrates
the positive effects of removing contaminated soil from
children's environments. In addition, the Region began efforts
to require owners of lead contaminated properties to undertake
cleanup efforts under Section .7003 of RCRA. During FY 1987, a
landmark agreement was reached with the City of Boston under
which the City will cleanup 25 contaminated properties which
it owns.
Lancaster Metals and Fulton Financial Realty Co.; In this
case, Region III issued its first enforcement action for viola-
tion of RCRA's financial assurance requirements to provide
proof of a bond and liability insurance.
In:Region VI, as a result of a three week multi-media
inspection which included participation by the Groundwater
Task Force, a civil action was filed in federal court against
Cecos/BFI in Livingston, Louisiana. A penalty in the amount
of $70,000,000 is being sought. The filing of this action
followed six weeks of intense negotiations between the company,
the Department of Justice and the EPA. An agreement could not
be reached; therefore, the civil action was initiated;
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Pesticides and Toxics Litigation
In one noteable action, EPA filed a Motion To Show Cause in
the District Court of Alaska to require the Alyeska Pipeline
Service Company to comply with an investigative subpoena
issued to Alyeska in response to allegations that they were
mis-handling chemical substances or waste materials. In
December, 1987, Chief Judge Fitzgerald; of the District Court
of Alaska, issued a written opinion upholding the Agency's
authority to use TSCA subpoenas to conduct investigations.
The decision in UnitedStates v. Alyeska Pipeline Service
Company is the first written decision of any court concerning
EPA's TSCA subpoena authority. This decision is currently on
appeal to the Ninth Circuit Court of Appeals.
American Telephone & Telegraph Company; This action was
brought seeking civil penalties for the illegal production and
use-of two chemical substances that the American Telephone and
Telegraph Company (AT&T) had manufactured without listing the
chemicals-with the TSCA Chemical Substances Inventory, as
required by Section 5 of TSCA. A civil penalty of $2.65
million was sought in the complaint. Although AT&T voluntarily
disclosed the violations to EPA, the EPA viewed these viola-
tions as serious because the Agency was precluded from conduct-
ing required premanufacture safety review of the chemicals
before the substances were manufactured and distributed in
commerce. In settlement, AT&T agreed to pay a civil penalty
of $1.0 million and to implement a number of specific types of
compliance activities, including: corporata-wide employee
education concerning TSCA requirements, payment of all costs
for a number of public service announcements about TSCA
requirements applicable to the electronics and semiconductor
industry, and the initiation and completion of a comprehensive
TSCA compliance survey audit at all AT&T domestic facilities.
The compliance survey which began in July, 1987, will assess
compliance with Sections 5, 8{a), 8{c), 8(d), 12 and 13 of
TSCA. EPA retained the authority to initiate criminal enforce-
ment actions or actions to abate situations involving imminent
hazards during the terra of the compliance survey. For viola-
tions discovered by AT&T as the result of the audit, AT&T
agreed to pay as a stipulated penalty the sum of 10,000 for
each chemical or chemical substance found to be in violation
of any or all of TSC« Sections 5 8(a), 8(c), 8(d), 12 or 13,
unless EPA determines that the chemical or chemical substances
presents an unreasonable risk to health or the environment.
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For chemicals identified in the survey and found by EPA to
represent an unreasonable risk, EPA reserved the right to seek
penalties of up to $1.0 million per chemical substance. The
$1.0 million civil penalty is the largest penalty paid to date
for PMN violations.
Canon U.S.A.r Incorporated; Canon U.S.A. of Lake Success,
New York, the American subsidiary of the Japanese Canon Corpor-
ation, was charged in this administrative complaint with viola-
tions arose in connection with the manufacture and import into
the United Sta'tes of two photocopier toners containing chemical
substances not listed on the TSCA inventory. The complaint
sought civil penalty of $1.6 million. Canon voluntarily dis-
closed the violations to EPA upon their discovery. The consent
agreement negotiated in the Canon -case requires the payment of
a.civil penalty of $400,000 and the initiation and satisfactory
completion of a number of items of specific performance,
including: development and implementation of a training program
on United States TSCA requirements for Canon personnel in both
Japan and the United States, translation of EPA TSCA require-
ments, regulations and guidance documents into the Japanese
language and presentation of a comprehensive seminar on Ameri-
can TSCA requirements for Japanese businesses involved in the
export of chemicals to the United States. This seminar was
held in Tokyo, Japan in the spring of 1987 and included the
participation of several representatives of EPA's Office of
Pesticides and Toxic Substances.
Delonghi America, Inc.; This action concerns the ille.gal
import, sale and distribution in commerce of oil-filled port-
able electric space heaters from Italy by Delonghi. The
violation was initially discovered by Environment Canada. EPA
tests confirmed that several shipments of heaters contained
high levels of oil contaminated with PCBs. Import of PCBs or
PCS Items were banned in 1978. Since these heaters were sold
in commerce of the United States to consumers for home use,
EPA considered the violations to be serious. Delonghi has
subsequently terminated all import and distribution of PCS
contaminated heaters. EPA .issued a civil, penalty of $1,507,000
for the violations.
Mitsubishi International Corporation; This Complaint charged
Mitsubishi International with theTTlegal import of a chemical
substance on nine separate occasions prior to the submission
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of a Premanufacture Notice (PMN), as required by TSCA §5, and
of violation of the U.S. Customs Service regulations promul-
gated pursuant to TSCA §13. An adjusted gravity based penalty
of $280,000 was proposed. In settlement of this action,
Mitsubishi agreed to pay a civil penalty of $98,000 and to
return 31,000 pounds of the unregistered chemical to Japan,
BASF Corporation and BASFInmont Division; The- Agency issued
anadministrative civil complaint against BASF Corporation and
one of its divisions, Inmont, seeking a civil penalty of $4.3
million for violation of. the TSCA Sections 5 and 13 require-
ments when it imported seven chemical substances into the
United States without completing the Premanufacture Notice
requirements of TSCA and for false certification of U.S.
Customs Service import certifications. Manufacturers or
importers are required to notify the Agency of their intent to
manufacture or import new chemicals so the Agency can evaluate
any hazards posed by the chemicals before they are manufactured
or brought into the United States. This was the sixth civil
complaint filed against BASF or its subsidiaries for violations
of' TSCA and the proposed penalty included an increased civil
penalty for prior TSCA violations, in conformance with the
Agency's TSCA Civil Penalty Policy, 45 FR 59770, September 10,
1980. This penalty was the largest ever sought under TSCA for :
violations other than PCBs. EPA is barred from disclosing
which chemicals or chemical substances are involved, the
amounts produced or actual uses. Under TSCA such information
is considered confidential business information. On April 19,
1988, the case was settled in which BASF has agreed .to pay a • ,
$1.3 million penalty and establish a comprehensive TSCA •
training program for its employees both in this country and its
parent company's headquarters in West Germany. BASF is also
required to encourage TSCA compliance by advertising in
national trade publications and conducting TSCA seminars, and
it must perform an extensive TSCA compliance audit at 151 of
its facilities. This is the largest penalty ever for illegally
importing and processing PMN chemical substances.
Union Carbide; A Consent Agreement and Final Order was signed
on ;July 1, T987, in the Union Carbide TSCA Section 8(e)
enforcement case. The initial complaint was issued in March
1985 for $3.9 million. This settlement sets a penalty of
$80,000 and calls for Union Catuide to conduct a comprehensive
review of its potential TSCA substantial risk information
acquired since 1977. This case represented the first 8{e)
case issued by the Agency.
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GonzagaUniversity in Spokane, Washingtont EPA's first
inspection of Gonzaga University revealed the presence of six,
large transformers which were leaking. EPA assessed a final
penalty of $29,325, but settled for a cash penalty of about 10%
in exchange for a unique and unusually ambitious program of
early disposal and other activities whose value far exceeded
the penalty. First, Gonzaga disposed of the six transformers
and replaced them with non-PCB transformers. Then, Gonzaga
developed an outreach program to identify all PCB Transformers
in the metropolitan Spokane area. By working with the Washing-
ton Water Power Authority and the Spokane Fire Department, the
outreach program contacted the owners of known and potential
PCB Regulations. In particular, the University worked with the
Spokane Fire Department to develop a PCB Transformer registra-
tion program to insure that all the PCB Transformers which had
been identified were also registered with the Fire Department,
The value in the increased awareness of PCBs in the Spokane
area should go well beyond the amount of penalty which was
mitigated.
•pacifie Power and Light Co. of Portland, Oregon; In a first-
of-a-kind Consent Agreement, EPA has agreed to forgive a
$66,000 assessed penalty exchange for cleanup of a site. In
six separate transactions, Pacific Power and Light Co. sold
discarded, undrained electrical equipment to Portable Equipment
Salvage. The equipment, which had not been tested for PCBs,
was drained at Portable Equipment Salvage -and the liquid was
either resold, drained onto the ground or burned in an on-site
incinerator not approved by EPA. The unique feature of this
agreement is that clean-up of the entire site will be accom-
plished by Pacific Power pursuant to the Superfund Amendments
and Reauthorization Act (SARA) regardless of the involvement
of .other potentially responsible parties who may have contri-
buted to improper disposal at the site. Pacific Power will
perform stabilization and a Remedial Investigation and Feasi-
bility Study, and will then implement all such actions as EPA
deems necessary. Other potentially responsible parties will
.be encouraged to participate in the cleanup, but it will be
accomplished with or without their .participation. However,
if. Pacific Power does not complete the requirements of the
Consent Agreement, it will be required-to pay the $66,000
penalty. (Region X)
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Criminal Litigation
Robert E. Derecjctor; In this multi-media case, guilty pleas
encompassed "Hour~EPA statutes (the indictment has charged
violation of six EPA statutes); in addition to .substantial
fines, the sentence includes the requirement tha.t the presi-
dent certify monthly to the probation department for five
years that his corporation has not violated any environmental
law.
USMi The first EPA case to criminally convict (by guilty plea)
for violations of CWA pretreatment requirements,- the fine of
$1,025,000 was the largest since the 1976 kepone case against
Allied Chemical Corporation.
Harwe11 and Bagge11; In this case (involving unlawful
transportation, storage and disposal in violation of RCRA), two
individuals pled guilty and were sentenced; one received three
years ^of incarceration, the highest prison term yet in an EPA
ca>se;. the other, a former employee of a state environmental
•protection division, received 1 1/2 years. • •
Edmund Woods; The first EPA case to criminally convict {by
guilty pleas) for falsehood arising out of the UIC requirements
.of the SDWA.
Mercier and McLeod; The first EPA case to criminally convict
(by guilty pleas)for violations of CAA lead phase-down
requirements.
Custom Engineering: The testing laboratory and its president
pled guilty and were sentenced; this is another in a series
of CAA criminal"cases involving falsification to meet auto-
mobile emissions standards.
Marine Power: The dry dock company and its officers pled
guilty and were sentenced; this is one of three CWA criminal
cases involving discharge of ship-repair wastes, and is notable
in part because the investigation included the use of.SCUBA
divers.
Assisted and joint investigations -
Jack E. White - a major, joint investigation involving milk
and cattle contaminated by a restricted pesticide; White was
convicted at the conclusion of a two-week jury trial of counts
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under Title 18, FDCA, and CWA (for discharge of pesticide-
contaminated wastewaters), and he was sentenced to three .years
of incarceration.
In"a case with international ramifications which is pending
sentencing, as a result of a joint investigation the second
convictions (by guilty pleas) were obtained for the export of
hazardous wastes for unlawful disposal (the first was the
Colbert brothers case for shipment to Africa; in this case the
wastes were shipped to Mexico).
In another case with international ramifications which has not
yet.been tried, as a result of a major, joint investigation
into the ocean dumping of hazardous wastes, twenty-one defend-
ants (including a foreign company and many of its ship captains]
were indicted in thi.s first case to enforce MPRSA.
V. MEDIA SPECIFIC ENFORCEMENT PERFORMANCE; SUCCESSFUL RESOLUTION
OF SIGNIFICANT VIOLATORS •
In Fiscal Year 1987, the Agency maintained high levels of
enforcement actions in specific media programs, as well as on
the national 'level. Also, 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 violators."
Air Enforcement Activity
EPA has maintained a strong Federal enforcement program
directed at violations of State Implementation Plan require-
ments (SIPs), New Source Performance Standards (NSPS), and
'National Emission Standards for Hazardous Air Pollutants
(NESHAPs). The Agency has also increased its emphasis in the
last year on enforcement of Prevention of Significant Deterio-
ration (PSD) and nonattainment new source review (NSR)
requirements. ... . , ... '
The initiation of stationary source civil cases was down
• slightly from the record level of 112 cases initiated in
<.•!' 1986 to 98 in FY 1987. The decline of about 15% may be
attributable to some extent to an adverse court decision
affecting enforcement of SIPs where SIP revisions are pending.
However, the air program issued the highest number of adminis-
trative orders'(191) within the last five years.
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Based on initial penalty data which is currently being
assembled, the median Stationary Air judicial penalty increased
65% from FY 1986 to $62,000 in FY 1987. The percentage of_ Air
cases which involved a penalty was maintained at 96% in FY 1986
and 1987.
The Mobile Source program has achieved significant
increases in penalty sizes in FY 1986 and 1987, The program
doubled its yearly penalty total from $2.3 million in FY 1986
to $4.6 in FY 1987, principally due to the fact that the average
penalty increased from $5,500 to $13,100.
Progress in Returning Significant Air Violators to Compliance
.In FY 1987, EPA and the States made progress in returning
significant air violators to compliance. At the beginning of
the year, EPA/States identified 637 significant air violators
including 160 with enforcement action initiated. At the end
of the year, 490 significant violators had been addressed by
returning 247 placing 108 on acceptable compliance schedules,
'leaving a total of 147 to be addressed next year (see page ).
During FY 1986, EPA/States identified 472 new significant vio-
lators. 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 1987 to
previous years, good performance has been maintained as
detailed in the chart below:
• FY 1985 FY 1986 FY 1987
BOY SVs 513 647 ' 637
Total Addressed
at EOY 391 (76%) 509 (79%) 490 (77%)
Returned to
Compliance 187 (36%) 241 (37%) 247 (39%)
Initial Enforcement
Action Taken 109 (21%) 148 (23%) 135 (21%)
Placed on Acceptable
Schedule 95 (19%) 120 (19%) IQf (17%)
Pending 122 (24%) 138 (21%) 147 (23%)
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EPA and the States identified 586 new significant
violators in FY 1987 compared to 472 in PY 1986. Of the 586
new significant noncompliers 399 (68%) remain unaddressed as
compared to 342 (72%) for FY 1986.
Water Enforcement Activity
CLEAN WATER ACT - NPDES
The decrease in the referral of Clean Water Act cases to
the Department of Justice from FY 1986 to FY 1987 reflects a
decrease in pretreatraent referrals against industrial users
(four in FY 1987 and 29 in FY 1986). The Agency continued its
emphasis on municipalities that need construction to meet the
July 1988 deadline under the National Municipal Policy. To
support this effort EPA had 33 referrals in FY 1987 compared
with 23 in the previous year. Administrative orders issued by
EPA remained essential; the.same as last year.
Judicial penalties continued to increase in FY 1987; based
•oh Initial figures., the total amount of penalties imposed in
1987 was nearly $6.8 million, up from 30% from the FY 1986
total of $5.2 million. The medial penalty for all cases also
increased from $37,500 in FY 1986 --to over $50,000 in FY 1987.
With the new CWA amendments EPA was given the authority to
administratively assess penalties against violations of water
pollution requirements. In some circumstances, an administra-
tive order with penalties may be' a, more appropriate enforcement
tool than a civil referral. The Regions will be using this new
enforcement tool in place of the traditional civil referral to
address many kinds of violations in the future.
In addition, the Regions have been providing additional
legal and technical support to a growing on-going case docket.
Supporting on-going litigation has required resources to be
redirected from development of new cases,"
SAFE DRINKING WATER ACT
EPA's Safe Drinking Water program was given a new
enforcement tool this year — authority under the Safe Drinking
Water Act t~. issue administrative orders, with penalties if
appropriate, rather than having to work solely through the
courts. Under the amended SDWA, EPA proposed 123 and issued 61
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final administrative orders for the Public Water System program.
The Underground Injection Control program proposed 89 adminis-
trative orders and issued 18 final orders in FY 1987. Because
of its use of the new administrative authority, the SD«A
program referred seven cases in FY 1987, compared with 11 cases
in FY 1986.
Water - Response to Significant Nonconipliance (SJjC)_-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 noncompli-
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.
Unlike the other Agency enforcement programs, the NPDES
program no longer tracks SNC against a "fixed ba-se" 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.
During FY 1987, there were 494 new permittees reported on
the Exceptions List (those in SNC two quarters), 230 formal
enforcement actions taken and 299 facilities returned to compli-
ance. Overall, of the total facilities appearing in SNC on the
QNCR for the first time during FY 1987, an average of 76 percent
were resolved (i.e., either returned to compliance or addressed
by formal enforcement action) prior to appearing on the Excep-
tions List the subsequent quarter. The number of facilities in
SNC for four or more quarters decreased during FY 1937 from 70
1st Quarter to 57 by 4th Quarter.
Superfund and RCRA Enforcement Activity
SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT
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Reauthorization of CERCLA in late FY 1986 reinstituted
funding for the Superfund program and provided strong enforce-
ment and settlement provisions in the statute. The Agency
increased its administrative and judicial enforcement activity
under Sections 106 and Section 107 SARA. There was an increase
in the number of judicial referrals to DOJ, 54 in PY 1987 from
41 in FY 1986. In addition, there were administrative orders
or consent decrees with PRPs for 64 RI/FS {including 14 take-
overs by PRPs from Fund initiated actions), 57 removal actions
and 19 remedial responses. These agreements require actions by
PRPs with a value close to $200 million. The value of RD/RA
settlements was in excess of $110 million. The Agency achieved
43 cost recovery settlements with PRPs with a, total value of
almost $36 million. The cost recovery program referred 49
cases to headquarters with a combined value of more than
$82 million.
.'RESOURCE CONSERVATION AND. RECOVERY ACT - '
Fiscal Year 1987 also marked continued prosecution of the
many civil judicial cases filed last year as part of the "Loss
of Interim Status" initiative.
The Hazardous and Solid Waste Amendments of 1984 required,
among other things, that land disposal facilities for which
owners and operators did not (1) certify compliance with
groundwater monitoring and financial responsibility require-
ments and (2) submit a final {Part B) permit application would
lose interim status on November 8, 1985. This loss of interim
status (LOIS) provision requires that all noncomplying land
disposal facilities be closed.
The Agency's response to the LOIS violations that are
potentially the most harmful to the environment — the contin-
ued operation of facilities lacking adequate groundwater
monitoring, insurance or closure resources ™ has been compre-
hensive. Enforcement actions have been taken to address 97%
of these violations, and the prosecution of these actions
remained a high priority for the Agency in 1987.
Under RCRA, the Agency referred 23 judicial cases to DOJ
in FY 1987 compared to 43 cases referred in FY 1986. The large
majority of the cases referred last year, FY 4.y86, were part of
the one-time LOIS initiative. The 1987 numbers reflect the
changing nature of the LOIS initiative from referral of cases
to litigation and settlement of these cases. Seven of these
filed cases have been settled.
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At this time, EPA does not anticipate that many additional
LOIS violations will be discovered. The focus of EPA's effort
with regard to LOIS in FY 1988 will be to continue litigating
the LOIS cases which have been filed, and to monitor the -
closure of all the facilities that were required to close.
EPA took 243 administrative actions in PY 1987, compared
with 235 actions in FY 1986. According to initial calcula-
tions, the RCRA program maintained its high level of adminis-
trative penalties, and increased the numbers of very large
cases.
In addition, RCRA increased its percentage of cases with
a penalty to 88% in FY 1986 and 89% in FY 1987.
RCRA - Progress onAddressing Land Disposal Facilities in •
Significant Noncornpliance ' ' .
The RCRA program considers a significant noncomplier 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 1987, EPA and the States increased their efforts to
address significant noncompliance over the levels achieved in
the previous year,
FY 1986 ' FY 1987
BOY SNC 792 • 753
Total Addressed at EOY 772 737
- Returned to Compliance 331 (42%) 165 (22%)
- On Compliance Schedule 219 (28%) 320 (42%)
- Initial Action Taken 222 (28%) 252 (33%)
- Pending - .20 (2%) 16 (3%)
TSCA aid FIFRA Enforcement Activity
TOXIC SUBSTANCES CONTROL ACT/FEDERAL INSECTICIDE, FUNGICIDE AND
RODENTICIDE ACT
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- 33 -
The number of administrative enforcement actions rose for
both the toxic substances (TSCA) and pesticides (FIFRA) pro-
grams. Penalties collected this past year were the highest
ever obtained under the TSCA premanufacturing notice program.
In addition, five civil judicial actions were referred under
FIFRA and eight actions were referred under TSCA during the
fiscal year. Host judicial actions are for collection of
penalties previously assessed through administrative orders.
One TSCA case (Noble Oil) was significant in that it repre-
sented enforcement of an administrative order issued in the
first TSCA enforcement case to be appealed to the U.S. Supreme
Court, The Agency also obtained, in the first reported deci-
sion on the subject, a favorable decision in U.S. District
Court upholding its right to require information under a TSCA
investigative subpoena.
Response, to TSCA Si_gn_ificant Noncompliance
In the TSCA program, significant noncompliance is defined
as PCB disposal, manufacturing, processing, distribution,
storage, record-keeping, or marking violations, Asbestos-in-
School violations, testing or premanufacturing notification
violations, import certificaiton and recordkeeping violations.
In FY 1987, the Regions had a, beginning of year inventory
of 584 open TSCA SNC cases. By the end of the year, the
Regions had closed 520 (89%) cases on the inventory. Sixty-
four cases remained on the inventory. During the year, EPA
made progress in identifying and initiating actions against
new violators. The Regions identified 1,316 new significant
violators In FY 1987, compared to 923 in FY 1986. Of the 1,316
new violators, 923 had action taken.
Response to FIFRA Significant Noncompliance
Beginning in FY 1986, FIFRA significant noncorapliance 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.
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- 34 -
In FY 1987, the Regions referred to the States a total of
155 significant use violations for investigation and enforce-
ment action. Last year, the Regions referred 274 cases. At
the end of the year, of the 155 casesj nine were addressed-
beyond the timeframe, 23 were pending action within the time-
frame and 123 were addressed within the timeframe.
By the end of the year, the Regions had identified 40
significant violator cases for EPA action. Seventeen of the
cases were addressed and six of these were closed by the end
of. the year.
Criminal Enforcement Activity
The Criminal Enforcement program maintained steady
progress during FY 1987. EPA Special Agents, building on
earlier successes, have begun to investigate matters of greater
.complexity, and beginning in 1987 in a number of Regions,
matters to be investigated criminally were selected by SAICs
and RAICs acting in closer consultation with regional personnel,
As a result, investigations will be more likely to produce
indictments in areas of programmatic priority and thus of
greater deterrent value to EPA. During 1988, EPA expects the
trend to greater sophistication to continue, so that criminal
enforcement will even more directly support EPA media programs.
The historical statistics are as follows:
(Pre-1982 data is omitted.) 1982 1983
Investigations (referrals) 20 26
to DOJ (does not include investigations
jointly with FBI and/or other agencies)
Investigations (referrals) 7 13
to DOJ resulting in filing of charges
Number of defendants charged 14
(individuals and corporations)
Successful cases prosecuted 7
(resulting in r\ finding of guilty)
1934
31
16
1985
40
16
1986
41
40
1987
41
25
Number of defendants
convicted
Number of special agents
11
34
12
28
23
36
14
26
26
40
15
40
34
98
26
66
34
66
27
58
40
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Beginning in early 1987, the Agency began keeping more
detailed data with which to produce additional statistics of
interest, including the following totals:
1987
Referrals of investigations
0 resulting in a conviction 27
0 in which all charges were dismissed 2
or all defendants acquitted
Defendants sentenced
0 entities 16
0 individuals ' 48
Total 6T
Total amount of fines assessed
(before suspension)' $3,622/876
Total "months
.° sentenced (before suspension) 1,015.25 months
0 of incarceration ordered 302,5 months
(after suspension, before parole)
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