Informal and Formal Actions
Summary of Guidance and Portrayal on EPA Websites
U.S. Environmental Protection Agency
Office of Enforcement and Compliance Assurance
Office of Compliance
Washington, DC 20460
July 1, 2010

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July 1, 2010
Informal and Formal Actions
Summary of Guidance and Portrayal on EPA Websites
Summary:
•	States have asked for a clarification in regard to what constitutes a formal and informal
action - this paper discusses the various definitions that exist.
•	The enforcement responses available to EPA and states range from something as simple
as a phone call to a full-blown judicial action. The table below provides an overview of
this continuum.
•	Each statute has policy and guidance that discusses the concept of appropriateness and
escalation of enforcement response in situations of recalcitrance or failure to correct
smaller problems. Each program has different terminology and definitions for
enforcement responses. Some points to consider:
o Informal versus formal enforcement distinctions should not be confused with the
concept of "addressing," which normally refers to what type of action is required
to respond to and "cure" serious noncompliance problems. The concept of
"addressing" is also connected to the concept of "appropriateness."
o Generally across each statute, "appropriateness" is discussed as the right
response based on the degree of noncompliance (i.e., informal actions can
address small or isolated problems, whereas formal actions address bigger
problems). However, there are circumstances where a "formal" action does not
address serious violations (e.g., SNC for CWA and RCRA and HPV for CAA).
Conversely, there may be limited situations when "informal" actions may
address SNC/HPV (though this is not the primary expectation in CWA, CWA, or
RCRA).
o There are also instances where a program defines a "formal" action as an interim
step toward a final enforcement order. The Clean Air Act considers a Notice of
Violation a "formal" document, yet EPA does not count this activity as a "formal
action" when rolling up end of year numbers or showing data in ECHO.
•	Because there are not standard policies that define these terms across programs, it is
difficult to characterize these terms generically. However, ECHO has tried to
standardize the display of this information across programs, and will be making some
improvements to improve the consistency of counting only those informal actions that
are documented, for example, Notices of Violation and Warning Letters.
•	The test for whether a state action meets the definition of "formal" is not based on
what the state calls or labels the action, but whether the action meets the
programmatic definition of formal.
o Example, some states have "formal notices of violation" that meet the definition
of an EPA formal action, and can be counted as a formal action,
o Although in the majority of instances, an NOV is not considered a formal action,
o Attachment 1 includes some legal research with more definitions relating to
each program.
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Summary of Enforcement Actions as Characterized as Formal or Informal
Activity
Statute
Informal
(ECHO)
Informal
(According to
Policy Guidance)
Formal
(ECHO)
Formal (According to
Policy Guidance)41
Addresses
SNC/HPV™
Phone Call or Verbal
CAA
N
n/a
N
N
N
CWA (PCS)
N
Y1
N
N
N
CWA (ICIS-NPDES)
N2
Y1
N
N
N
RCRA
N2
n/a
N
N
N
Warning Letter or
NOV
CAA
Y
N
N
Y3
N
CWA (PCS)
Y/N4
Y
Y/N4
N
N
CWA (ICIS-NPDES)
Y
Y
N
N
N
RCRA
Y
Y
N
N
N
Administrative
Penalty Order (APO)
of Field Citation
CAA
N
N
Y
Y
Y
CWA (PCS)
N
Y5
Y
N
N
CWA (ICIS-NPDES)
N
Y5
Y
N
N
RCRA
N
N
Y
Y
Y
Administrative Order
(w/ compliance
schedule)
CAA
N
N
Y
Y
Y
CWA (PCS)
N
N
Y
Y
Y
CWA (ICIS-NPDES)
N
N
Y
Y
Y
RCRA
N
N
Y
Y
Y
Judicial Action
CAA
N
N
Y
Y
Y
CWA (PCS)
N
N
Y
Y
Y
CWA (ICIS-NPDES)
N
N
Y
Y
Y
RCRA
N
N
Y
Y
Y
1	Phone calls specifically mentioned as an example of informal action in CWA EMS
2	Prior to July, 2010, ECHO was incorrectly crediting phone calls and verbal informals as "informal" actions for ICIS and RCRAInfo. ECHO has been
reprogrammed to exclude these as informal actions (making ECHO consistent with original decisions made during 2002 launch).
3	The policy discusses NOVs as a "formal" part of the enforcement process; however EPA does not treat these as formal actions with regard to addressing HPV.
4	In PCS, NOVs can be entered as "Notice of Violation, Formal" or "Notice of Violation, Informal," so designation depends on a specific NOV-by-NOV basis.
*Note: Consent Agreements/Decrees, and Judicial/Administrative Complaints are also listed in ECHO and in the Policy Guidance under formal enforcement
actions for CAA, CWA, and RCRA. These sub-categories fall with Administrative Orders and Judicial Action on this table. Referrals to the state AG or DOJ
are held as enforcement sensitive, so they do not appear in ECHO; however, these activities are an appropriate way to address SNC/HPV.
**Each policy allows for flexibility and exceptions in regard to addressing SNC/HPV. When the regulatory authority chooses to address SNC/HPV by means
other than a formal action, the databases provide a mechanism to accurately portray the SNC/HPV status - as specified in the underlying policies (i.e. manual
overrides).
5	CWA policy does not define "Informal" but APOs are treated as informal in that they do not typically address SNC.
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Attachment 1 - Discussion and Definitions from Program Guidance
The attached information was compiled by OC legal intern, based upon research into the
enforcement policies of the CAA, CWA, and RCRA programs.
Clean Air Act:
Under the CAA program, no explicit definition is given for a "formal" enforcement action,
but qualifications of a "formal" action center around judicial or litigious actions taken,
addressed violations, and anything that "starts the penalty clock." Examples include: the
issuance of a Notice of Violation (NOV) or FOV6; Administrative Order7; Administrative Penalty
8	9	10	11
Order (APO) ; Civil Judicial Referral ; Complaint ; confirming a violation ; Consent Agreement
or Decree12; and Consent Agreement/Consent Order (CACO).13
No specific definition of an "informal" enforcement action is given, but criteria of such
actions center on the identification of violators, consultation, and correspondence between
sources, the States, and EPA before a formal enforcement action is commenced (i.e., before an
NOV is issued).
Resource Conservation and Recovery Act:
Under the RCRA program, a "formal" enforcement action is defined as a written document
that mandates compliance and/or initiates a civil or administrative process or action [for the
EPA, a referral to DOJ; for a state, a referral to the State Attorney General], with or without
appeal rights before a trier of fact, that results in (1) an enforceable agreement or order and (2)
an appropriate sanction. More specifically, notices to alleged violators prior to filing a civil or
administrative complaint, order, or agreement do not constitute formal enforcement action;
rather, it is the ensuing civil or administrative complaint, order or agreement which constitutes
the formal enforcement action.
Additionally, a SNC should be addressed through formal enforcement. This formal
enforcement response should: (1) mandate compliance and initiate an administrative or civil
6	Shifts the burden of proof of continuous compliance to the source and "starts the penalty clock."
7	A CAA section 13(a) or section 167 order that order that requires the source to comply with the CAA or a permit
promulgated thereunder but does not stipulate penalties; a State administrative action (not civil or criminal) against a
source pursuant to the State authority.
8	A CAA section 113(d) order issued by EPA that has stipulated penalties.
9	A Federal or State case that has been referred to the Department of Justice or the State Attorney General for
resolution in a civil judicial forum.
10	A written communication, alleging one of more violations of specific provision of the Act, regulations, or a permit
promulgated thereunder, issued by the complainant to a person.
11	Includes on-site inspection, review of an appropriate self-monitoring report, stack test, reference method
compliance test, or a response to a CAA section 114 letter.
12	Any written document, signed by the parties, containing stipulations or conclusions of fact or law and a proposed
penalty or proposed revocation or suspension acceptable to both complainant and respondent.
13	A signed document settling a CAA Section 113(d) administrative penalty order.
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action that (2) results in an enforceable agreement or order and (3) imposes sanctions (actions
that recover the economic benefit of non-compliance plus some appreciable amount reflecting
the gravity of the violation; additional sanctions may also be available, such as permit
modifications, permit revocation, facility shut down, and suspension and debarment
proceedings). The formal enforcement response should seek injunctive relief that ensures that
the violator resolves its violations and expeditiously returns to compliance. If the order has no
stipulated penalty provision, then the implementing agency should take another formal
enforcement action (e.g., such as a referral to DOJ or the State Attorney General's office).
An "informal" enforcement action under RCRA is broadly defined as "those actions that are
not formal enforcement actions that notify the violator of its violations." These typically
represent written notices to alleged violators prior to filing a civil or administrative complaint,
order or agreement. However, an enforcement action's designation as either "formal" or
"informal" depends on the type of facility by which the action is being made. For example, SNC
violations are expected to receive "formal" enforcement; however, if a facility is found to be in
lesser violation, SV (secondary violations), an informal enforcement response is the minimally
appropriate enforcement response. The implementing agency can choose to take a formal
enforcement response against SV as it deems appropriate, and should escalate SVs to SNCs if
the violation is not quickly corrected.
The RCRA program also designates differences in Response Time Guidelines based on
whether a formal or informal enforcement action is made. For formal enforcement actions,
target response times are differentiated by (1) unilateral or initial orders14 (should be issued by
Day 240); (2) referrals to DOJ or State Attorney General's Office15 (should be made to the
appropriate agency by Day 360); and (3) final or consent orders16 (should be signed by Day
360). For informal enforcement actions, alleged violators should return to compliance in the
shortest possible time frame, with a maximum limit of 240 days after the day the violation(s) is
discovered (i.e., Day Zero). If the facility fails to come into compliance within the timely manner
of 240 days or fails to notify the implementing agency of the inability to return to compliance,
then the implementing agency may re-classify the violator as a SNC and may result in an
escalation to formal enforcement.
Clean Water Act:
Applicable CWA guidance defines a formal enforcement action as "an action that requires
actions to achieve compliance, specifies a timetable, contains consequences for noncompliance
that are independently enforceable without having to prove the original violation, and subjects
the person to adverse legal consequences for noncompliance." Examples of a formal
enforcement response include an Administrative Compliance Order or state equivalent action,
or a judicial referral to the State Attorney General or to the Department of Justice.
14	Orders issued by the implementing agency and assert the agency's position that violations have occurred.
15	These occur when a Federal or State case is officially transmitted to those offices for action.
16	These orders represent the agreement of the parties involved or the decision of a tier of fact, and are documents for
which no appeal remains.
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An "informal" enforcement action is not explicitly defined in CWA guidance, but types of
enforcement responses are described: an inspection; phone call; violation letter (which can be
limited to a notification of the violation or requiring certain steps to be taken within a specific
time frame); or a Federal Notice of Violation (NOV). Note that, an administrative penalty order,
because it does not require actions to achieve compliance, is excluded from the definition of
formal action.
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