[EPA press release - January 28, 1988]

The U.S. Environmental Protection Agency referred the second highest number of enforcement cases in its history to the U.S. Department of Justice and set an all-time record for the amount of civil penalties assessed in fiscal year 1987. In addition, state agencies last year developed and referred their highest number of cases to state courts and maintained strong administrative enforcement programs.

EPA also expanded its administrative penalty and contractor listing programs while maintaining and resolving a large civil and criminal judicial case docket.

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 prosecution under state law, compared with 408 in the previous year. In addition, states took a total of 3,183 administrative enforcement actions under the air, water and hazardous-waste laws, compared with 4,106 in 1986.

EPA referred 304 civil and 41 criminal cases to the Justice Department, compared with 342 and 41 in those categories in 1986. The Justice Department filed 285 EPA civil cases in 1987, compared with 260 cases last year. At the end of 1987, EPA had 387 active civil judicial orders and consent decrees, compared with 322 in 1986 and 282 in 1985.

EPA issued 3,194 administrative orders in 1987 compared with 2,626 in 1986 and 2,609 in 1985. The largest increase in administrative orders--from 781 in 1986 to 1,051 in 1987--occurred under the Toxic Substances Control Act, primarily in PCB and asbestos programs.

EPA established a new all-time record for the largest amount of civil penalties imposed in a year, based on a preliminary analysis. The agency imposed over $24 million in penalties in 1987 compared with $20.9 million in 1986, and $22.9 million in 1985. The penalties imposed in these three years account for 60 percent of 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.

Thomas L. Adams, Jr., EPA's Assistant Administrator for Enforcement and Compliance Monitoring, said, "The record for 1987 reflects a strong commitment by EPA and the Department of Justice to ensure compliance with our environmental standards. The statistics also indicate that the states are equally committed to taking appropriate enforcement action.

"The higher administrative figures reflect a commitment by the agency to use more aggressively the administrative enforcement powers Congress has provided under most of the environmental laws. At the same time, we will continue our strong use of the federal courts when injunctive relief, court-imposed sanctions or criminal prosecution is the appropriate response to a violation."

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 totaling $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." EPA may place facilities 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). 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 demonstrates that it has corrected the condition that gave rise to the listing.

Federal enforcement activities also included an expansion of the direct referral program with the Justice Department, which allows EPA regions to refer civil cases directly to Justice with simultaneous EPA headquarters review. Of the above 304 cases referred to Justice in 1987, 141 were direct referrals, compared with 90 of 342 cases referred directly in 1986.

Adams noted, "During 1988 we will be pursuing an active docket of 820 civil judicial cases and conducting aggressive criminal enforcement and contractor listing programs. We also will expand the administrative enforcement programs, particularly under the new statutory authorities given to EPA under the reauthorized Clean Water and Safe Drinking Water Acts."

Observations in Trends in Media Enforcement Programs

Clean Air Act

EPA has maintained a strong Federal enforcement program directed at violations of State Implementation Plan requirements (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 Deterioration (PSD) and non-attainment new source review (NSR) requirements.

The initiation of stationary source civil cases was down slightly from the record levels of FY 1986. 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.

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, largely due to larger sizes of penalties. The average penalty increased from $5,500 to $13,100.

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 pretreatment 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. To support this effort EPA had 33 referrals in FY 1987 compared with 23 in the previous year. Administrative orders issued by EA remained essentially the same as last year.

Judicial penalties continued to increase in FY 1987; based on initial figures, the total amount of penalties imposed in 1987 was nearly $6.8 million, up 30% from the FY 1986 total of $5.2 million. The median 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 administrative 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 to 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 final administrative orders fro the Public Water System program. The Underground Injection Control program proposed 89 administrative orders and issued 18 final orders in FY 1987. Because of its use of the new administrative authority, the SDWA program referred seven cases in FY 87, compared with 11 cases in FY 86.

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 requirements 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 non-complying land disposal facilities be closed.

The Agency's response to the LOIS violations that are potentially the most harmful to the environment--the continued operation of facilities lacking adequate groundwater monitoring, insurance or closure resources--has been comprehensive. 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 1986, 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 cases have been settled.

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 FY 1987, compared with 235 actions in FY 1986. According to initial calculations, the RCRA program maintained its high level of administrative 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.

Superfund Amendments and Reauthorization Act

With the support of the increased funding, and strong enforcement and settlement provisions in the statute, the Agency increased the number of injunctive actions under §106 and the number of cost recovery cases under §107. In addition to the increase in the number of judicial referrals to Department of Justice (DOJ), 54 in FY 1987 from 41 in FY 1986, there were 64 Remedial Investigation/Feasibility Study agreements, and 19 remedial action consent decrees. These agreements require actions by the potentially responsible parties with a value of close to $200 million. The Agency also issued a number of significant and comprehensive policies designed to help implement SARA.

Toxic Substances Control Act/Federal Insecticide, Fungicide and Rodenticide Act

The number of administrative enforcement actions rose for both the toxic substances (TSCA) and pesticides (FIFRA) programs. 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. Most judicial actions are for collection of penalties previously assessed through administrative orders. One TSCA case (Noble Oil) was significant in that it represented 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 decision on the subject, a favorable decision in U.S. District Court upholding its right to require information under a TSCA investigative subpoena.