NCD980602163_19971211_Warren County PCB Landfill_SERB C_A Citizen's Introduction to Environmental Law Enforcement-OCR

Prepared for:
ENVIRONMENTAL JUSTICE ROUNDTABLE
.ENFORCEMENT FORUM
North Carolina Central University
Durham, North Carolina December 11, 1997
' ' A CITIZEN'S INTRODUCTION
TO ENVIRONMENTAL
LAW ENFORCEMENT
* WHAT IS "ENFORCEMENT"?
* HOW DOES IT WORK?
* WHAT IS THE ROLE FOR CITIZENS?
Enforcement is more than just the imposition of fines and jail time for ·
violations of laws or regulations'. It is an organized, deliberate process of identifying
situations where laws or regulations have been violated; determining who is the
appropriate party responsible for the violation and what sanction, if any, is
appropriate for the violation. Achieving a clean, healthy and safe environment
for all people involves more than "enforcement" .... it includes voluntary compliance
. with regulatory standards; it includes implementation of good environmental
· practices by citizens and industry; it includes effective compliance monitoring by
regulatory agencies and the public. A clean and healthy environment ~an only be
achieved through the cooperative efforts of EPA, state and local agencies, industry
and the public.
Enforcement also encompasses education of the public and industry
as to what conduct or behavior is expected; how to achieve or maintain compliance
and publicity to make others aware -of what sanctions may be imposed if such
conduct is not followed. ·
Often many factors must be considered when evaluating the cir~umstances
underlying the violation. To better understand the enforcement process," this
· short summary highlights the key issues that EPA considers when contemplating
the initiation of an II enforce~ent action. II
What does EPA consider when evaulating when to use enforcement?
Four key factors must be considered i~ any"enforcemertt" matter. These are
A. Is the activity prohibited or forbidden?
B. Is the person doing the act aware that the conduct is
prohibited?
C . Are you certain of the identity of the "violator"?
D. Is the sanction or penalty.appropriate for the offense?
To a large extent, each of us have been part of the "enforcement" process,
whether it involves keeping your dog from sneaking a nap on a particular forbidden
chair; your child taking cookies before dinner or a chemical company dumping toxic
waste into a sewer during the middle of the night.
Consider the case of the child and the cookies.
Children (and as well as many adults) love snacks and cookies. Frequently, the
urge to eat and desirability of food, especially cookies and snacks may be the strongest
because you are the hungriest. If a child is discovered eating cookies before dinner, a
number of factors must be considered.
First, is it clear to the child that snacks before meals are not allowed? The1 level
of knowledge expected that before meal snacks are prohibited will be very different
between a ten year old and a three year old child. Has the No sp.acks right before
diriner "rule" been communicated clearly and qften?
Next, are you certain that the particular child, in fact, took the cookies? In
families with more than one child, evidence of missing cookies may require
considerable detective work and even multiple interrogations, unless you find the
child with his or her "hand in the cookie jar. II
, ~ith regard to the appropriate punishment, it is clear that incarceration
or ~he death penalty would be far too harsh. The selection of an appropriate sanction
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may also depend on the willingness of the child to acknowledge the consumption of
cookies or intensity of the denials (even where chocolate evidence around the mouth
is sufficient to establish guilt "beyond a reasonable doubt.") Potential sanctions
might range from a verbal warning to a first time or occasional offender to "no TV
tonight -you have been warned before." _ Another approach might be to acknowledge
that the "violation" has occurred, but that no sanction is appropriate, noting that the ·
child, though technically violating the household rule, has only reversed the order in
which dinner and desert will be eaten. So long as a suitable meal is eaten, one could
conclude that no harm has been done.
As a follow up measure to_ensure future compliance with the "ho snack"
requirement, one might wish to consider a range of "enforcement tools" including
"compliance education" ..... that is explaining that "before meal snacks may keep you
from enjoying a balanced diet, and will deprive you of the Long term benefits of full
_nutrition" to "compliance assistance" such as providing alternative healthy snacks
before meals, like fruit or carrot sticks. A last resort, might include mandatory
_ "permanent engineering compliance controls," such as a locked cookie jar.
What about Rover and the favorite chair?
Your dog (or cat) has been regularly sleeping in a favorite chair. You
would like to institute a series of measures to ensure that the pet remains on the
floor and out of your chair. One day you find the dog asleep in your chair.
How can you effectively "enrorce" the "no chair" requirement.
Obviously, a first consideration must be to determine if the dog has been -
taught to stay off the chair:> Has this been a clear rto-no in the past?· Was this
requirement clearly communicated to the pet? What is the nature of the
violator? is it a puppy or an older dog? Generally "proof" of the violation
will be evident: Rover will be sleeping in the chair.
. In determining the appropriate "enforcement response" you must assess
the nature of the violation and the level of understanding appropriate to the
individual violations. For most pets, first, second, third, or multiple "offenses"
will most likely warrant a gentle (but firm) push (to get the sleeping pet's
attention attention) and a definitive, convincing and loud "·rio." Repeat
occurrences might warrant a more definitive "no" along with a moderate wack,
or threat of a '.Y'ack, with a rolled up newspaper. Obviously verbal threats of
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jail time will not work with your pet, nor will withholding meals or sending
the pet to its room "to be without supper" be very effective in enforcing the
"no chair" rule. Dogs, unlike children with cookies, require different
"enforcement" and compliance assistance strategies. In some cases "compliance
assistance" might be needed, such as placing a cardboard box on the chair for a
few days until the pet learns not to sit in the chair. ·
It is important to recognize that how you trea~ a canine (or feline) offender
is very d{fferent than dealing with children because of the obvious differences in
the nature of the violator and their understanding or ability to learn to comply.
EPA, while striving for fairness in·our regulatory and enforcement programs,
· likewise, treats different sectors of the regulated community differently, as well,
Now consider the case of the chemical plant.
Chemical dumping and spills of toxic substances into the environment
constitute uriacceptable risks and potential harm to human beings and the
environment. In assessing allegations of possible improper chemical waste
disposal practices, EPA must first determine if the chemicals discharged, were
in fact, toxic or hazardous and subject to a law or regulation. Then, EPA
would need to determine who was responsible for the chemical releases.
Abandoned chemicals found dumped into the environment on a. vacant lot
may require considerable detective work. Next, EPA would determine
whether the discharges violated a law or regulation. Finally, EPA would
assess wh~t sanction or penalty.is appropriate. ·
To determine what sanction is appropriate, just as in the case of the
child with the cookies, EPA must consider a number of factors, including:
-what is the knowledge of the regulatory requirements?
Did the individuals (or responsible company) know that a law or
. regulation required specific types of disposal or management practices for
the chemicals in question? Is it clear that the action was prohibited? . Was
the chemical dumping done on purpose or was it an accidental leak?
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-what is the gravity or seriousness of the violation?
Did the release of the chemicals constitute a serious threat to health or the
environment? What risk did the chemicals present to health or the environment?
What were the qualities discharged. 10 gallons or 10,000? The discharge of acid,
solvents or ignitable chemicals to a sewer system .presents a substantial threat to
health or the environment. Dumping of chemical wastes is very different than
dumping blocks of broken concrete. Both acts violate federal or local laws, but
the chemical dumping presents a much more serious threat to public health or
the environment.
-what i~ the potential for harm to humans or the environment?
What was the potential for harm to human beings or the environment?
Was it high or low? Was the harm foreseeable and deliberate? What risks were
presented by the illegal activity? EPA looks caretully for the potential for harm
because most of the environmental l~ws and regulations ·are designed to prevent
harm from occurring. EPA does not wait until there are deaths or serious injuries
before initiating enforcement actions. The regulatory 'safety net" is designed to
present environmental situations from becoming public health emergencies.
-what is the company's record, if any, of past violations?
EPA always evaluates the company or individual's prior record of non-
compliance in determining what sanctiqn might be sought in response to an
environmental violation. Is the company a repeat offender? Is this the first
violation or' fifth time the facility or individual has violated the law? Have
they been given warning notices before?
-what are the the circumstances of the violation?
EPA must consider how the violation took place. Was the activity
that led to the violation deliberate, such as "midnight" dumping? Is there
e':'idence that the chemicals discharges were done to avoid compliance with
· laws or regulations? Was it an accident? Did it take place during or as the
result of a hu'rricane or a tornado? Was it done by a new employee who did
not know any better? Was it done by a new employee under the direction of
someone .who did know bette.r? For companies that are "accident prone,"
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should they have instituted measures to ensure that "accidents" do not
.occur so frequently?
-what is the the economic benefit of the violation?
EPA will consider whether the activity took place to save money for
the compa_ny. Did the violation occur to avoid paying compliance costs? By
not paying to dispose of chemicals properly, did the company gain a competitive
advantage over a neighboring company which is paying to do things right?
Can we calculate the economic benefit and recover it as part of the penalty?
What can we do to ensur~ that the violating company does not gain a competitive
advantage over similar company's who have invested in compliance activities?
-what other factors shgould be considered?
EPA considers a range of additional factors in determining what sanction
should be imposed when assessing what sanction should be imposed regarding
the violation and violator?' Factors "as justice may require" may include a
reduction in penalties or sanctions if a company is willing to terminate
managers or employees responsible for the violations or the cooperation
shown to the government in helping to clean up or stop the violation once
it has occurred.
Range of Potential Enforcement Responses
EPA has a variety of Enforcement responses that cover a wide ra.nge
of types of violations. Once EPA determines that a viohtion has occurred
and who the responsible individual or company is, a decision must be made
regarding the appropriate penalty or sanction to be imposed. Sanctions range
from the issuance of a warning letter or notice of violation to jail time and
cash penalties. The selection of the appropriate enforcement response or
sanction will vary from situation to situation and is dependent on a careful and
?eliberate consideration of the facts and circumstances as spelled out above.
Keep in mind that enforcement sanctions are only one part of the
enforcement process. Education and outreach activities initiated by EPA to
help individuals and companies become aware of what conduct is expected;
how to a,chieve and maintain appropriate compliance conduct and what
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sanction might be imposed if appropriate conduct is not followed are major
aspects to the EPA enforcement program. ·
The ability to initiate specific enforcement actions has a direct relationship
to the knowledge that an individual or company may have regarding a regulatory
provision .. Thus EPA and many state and local agencies are engaged in aggressive
outreach programs designed to educate the regulated commu,nity about important
regulatory requirements. Providing "fair notice" of what is expected is an
important element of EPA' s compliance assistance and compliance assurance
operations. EPA's efforts to p
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romote compliance through a .better understanding .
of regulatory requirements include providing information on the Internet; toll free
"hot lines" that can respond to que~tions raised by the regulated community and the
public; providing speakers and materials to trade groups and the development of
regional compliance assistance centers staffed with knowledgeable people to
provide technical assistance and guidance.
EPA compliance monitoring activities involve a variety of activities including
inspection of facilities for compliance with permits or regulatory requirements.
Inspections may be random or" for cause." For cause inspections may be in reaction
to a complaint or tip from a plant worker or a member of the community who is
concerned about activities within the facility. EPA considers tips and complaints very
carefully and has established procedures to evaluate complaints that are received .
. Sometimes EPA will target specific inspections based upon an educated
assessment that the facility or a.specific type of facility may represent particular
. .
compliance concerns. Increasingly, EPA is using risk-based targeting strategies to
evaluate facilities that manufacture, handle or discharge chemicals of particular risk to
human health or the environment. The .Toxic Release Inventory, which is part of the
Emergency Planning & Community Right-To-Know Act, has been an imJortant
source for risk-based compliance monitoring st~ategies.
If inspection activities do document a violation and EPA is certain of the
identity of the person or company responsible for the violation, a range of
enforcement responses will be considered, based upon the factors enumerated above.
Please note that each of these enforcement options, through representing varied levels
of severity, do constitute public actions that have consequences for individuals or
companies; Thus, EPA is careful to ensure that evidence gathered in s~pport of
enf?rcement actions is both accuracy and convincing.
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Warning Letters
Warning letters are issued for relatively minor violations and are issued to alen
individuals or companies that further enforcement actions may be initiated if
compliance is not achieved or maintained.· Sometimes a warning letter may seek to
~larify a "gray" area of the law or regulations or in the beginning of a new regulatory
requirement where there might be confusion. Warning letters might also be issued in
circumst,mces where the violation is "technical" and may not represent a serious threat
to health or the environment, such as when a company has submitted self-monitoring
repons late to a state or federal agency. Submitting repons late can impacts the ability
of the government to process and.assess permit information on a timely basis and may .
impact the ability of the public to monitor compliance. Multiple warning letters
issued over a period of time may se~e to document a pattern of non-compliance with
regulatory provisions and may lead to a more severe sanction.
Notices of Violation
Notices of Violation may be issued to an individual or company where the EPA
determines that the violation is relatively minor; can be corrected quickly and does
not appear to be the result of a .deliberate effon to circumvent the law and does not
result in a significant threat to human heath or the environment. An example of a
situation where a notice of violation might be appropriate might be the failure of a
company to have a responsible official sign and date a mandatory reponing or
compliance monitoring 1forms. Signing forms is imponant to EPA's self-monitoring
programs because it establishes accountability for the data submitted. The violation is
quickly correctable through the submission of a revised and signed reponing form:
A second or third violation might warrant the impositi<?n of a penalty, panicl ... : / if
it seemed apparent that the failure to sign the repons has become pan of an effon to
avoid responsibility ior the accuracy of the data submitted. Frequently the responsible
pany or violator will be required to submit proof that the violation has been or will be
corrected and the notice of violation can be withdrawn. ·
Administrative Orders
EPA and many state agencies have the ability to issue administrative orders to
compel compliance with regulatory requirements. Examples of such orders include
Stop Sale Orders under the Fede.ral pesticide act,· wher~ an inspecto.r in the field can
, order a company to stop selling pesticide containers that ate out of date or mislabeled,
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to compliance orders issued to compel the correction of hazardous waste storage or
transportation violations. Administrative orders are important tools to compel
responsible parties to comply with applicable regulatory or operational requirements.
Administrative Complaints for Penalties
EPA and most states have broad authority to seek civil penalties for violations
of environmental requirements. At EPA these actions are processed by administrative
law judges and may involve fines from $5,000 to many millions of dollars. In 1994, the
Tenneco Natural Gas Pipeline Company paid an administrative penalty of $6.4
million dollars for illegal discharges of the chemical PCB at a number of locations
along its gas pipeline .. Other companies have paid fines for violations of the Clean
Water Act; Clean Air Act, Hazardous waste act; pesticide act; toxic chemical act and
community right-to-know act.
Civil Actions in Federal Court
Where EPA determines that a warning letter or administrative civil penalty
action may be insufficient to compel a facility or individual to get into compliance, it
becomes necessary to seek the assistance of a U.S. District Court judge. Actions in the
federal district courts of the United States are initiated by the lJ.S. Department of
Justice on behalf of EPA and often seek specific injunctive relief or court orders to
compel a company or individual to achieve compliance or clean up a particular
environmental problem. Actions for injunctive relief in the past have involved
petitions to close down hazardous waste dumps or incinerators. These actions are
frequently very high visibility and require considerable effort and cooper'ation by EPA
and the Department of J·<:~ice.
Criminal Pro sections
EPA will seek criminal prosection, including fines and jail time for corporations
or individuals who knowingly or willfully violate federal laws or regulations. While
only individuals may serve jail time, corporations may stand to ·1ose more than money
if prosecuted_ for criminal violations of environmental requirements. Criminal
prosecution may be the last resort for those individuals or corporations who fail to
heed earlier warning letters ·or notices of violation. The key' is that there must be
evidence of a knowing a.nd willful violation of the law often these cases will include
evidence that individuals or corporations deliberately violated environmental
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requirements to save time or money. Examples of sev'eral recent criminal prosecutions
include the improper disposal of hazardous waste (partially empty glue tubes) that
allow several children to become asphyxiated from the fumes and a crimin;:il
prosection of a barge company that allowed oil and waste chemicals to be released into
the environment.
Contractor Listing-or Debarment
An additional sanction that EPA can use is contractor listing or debarment.
These two. separate administrative processes that allow the agency to keep a violating .
companies or individuals from obtaining or fulfilling contracts with the Federal
governmer:it (any agency) or EPA. Uncle Sam should not do !:msiness with
enviro~mental violators or persons with poor business integrity. These programs
allow EPA to make a determination that an individual or company is unfit to do
business with the government or EPA. Frequently the potential loss of business with
the government will far exceed any penalty that might be imposed for the prohibited.
activity, making the threat of these actions a powerful incentive to avoid violations.
Adverse Publidty
Though not a sanction, the possibility of adverse or negative publicity is a
factor that must be ~eighed when individuals or companies consider the potential
costs and benefits of illegal conduct. Publicity concerning illegal environmental
activity may erode consumer support for a particular product or company; can affect
the value of the stock for publicly,-traded companies and may cause individuals within
a corporation to report other examples· of illegal conduct to regulatory officials. . .
ENFORCEMENT CAN BE CHALLENGING
& NEEDS PUBLIC SUPPORT
Like many other types of crimes, some environmental crimes are never solved.
Environmental enforcement often involves significant amounts of detective work and
is limited by the statutory provisions of individual federal laws and regulations. For
example, while EPA could collect a large penalty or seek jail time against a company
that misused a pesticide that affected the health of farm workers, federal
environmental laws do not allow EPA to seek reimbursement for damages that the
workers might experience.
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Discovering and proving environmental crimes involves a lot of hard work and
·cooperation between state, fed~ral and local offices, as well as the public. Often
industry or members of the regulated community may help when it is evident that the
illegal actions of a company may be creating a negative image for that panicular
industry.
Finally, citizens have an imponant role to play. First, regulatory agencies need
citizen suppon and cooperation. · If you see violations or learn of illegal activities that
may threaten your health or community, notify your state, federal or local
environmental officials. Complaints can be made without disclosing your name.·
Second, let your state and EPA officials know about problems or concerns that you
have about facilities within your_ community. If enforcement actions are initiated,-it
may be possible to make recommendations for settlement terms that may help to
funher cleanup your community. Finally, citizens have the ability to initiate suits, on
behalf of he United States, under most federal environmental laws .. Citizen suits play
an imponant role in identifying non-compliance and in correcting violations.
Prepared by Michael J. Walker
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