Federal pollution control laws: how are they enforced?
Congress has enacted laws requiring individuals and facilities to take measures to protect environmental quality and public health by limiting potentially harmful emissions and discharges, and remediating damage. Enforcement of federal pollution control laws in the United States occurs within a highly diverse, complex, and dynamic statutory framework and organizational setting. Multiple statutes address a number of environmental pollution issues, such as those associated with air emissions, water discharges, hazardous wastes, and toxic substances in commerce. Regulators and citizens take action to enforce regulatory requirements in a variety of ways to bring violators into compliance, to deter sources from violating the requirements, or to clean up contamination (which may have occurred prior to passage of the statutes). Implementation and enforcement provisions vary substantially from statute to statute, and are often driven by specific circumstances associated with a particular pollution concern. Given these many factors, it is difficult to generalize about environmental enforcement.
This report focuses on enforcement of federal environmental pollution control requirements under the Clean Air Act (CAA); the Clean Water Act (CWA); the Comprehensive Environmental Response, Compensation, and Liability Act, (CERCLA or Superfund); and other statutes for which EPA is the primary federal implementing agency. (1) The report provides a brief synopsis of the statutory framework that serves as the basis for pollution control enforcement, including an overview of the key players responsible for correcting violations and maintaining compliance. Implementation and enforcement of pollution control laws are interdependent and carried out by a wide range of actors including federal, state, tribal, and local governments; the regulated entities themselves; the courts; interest groups; and the general public. Figure 1, below, presents the array of local, state, tribal, and federal entities that constitutes the environmental pollution control enforcement/compliance framework and organizational setting.
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A diverse set of regulatory approaches and enforcement tools is applied to a sizeable universe of regulated entities by these multiple regulating authorities to ensure compliance. A general discussion of enforcement monitoring and response tools is included in this report, followed by a summary of recent fiscal year federal funding levels for enforcement activities. Discussion of available enforcement data sources, as well as tables illustrating examples of trends in enforcement activities, is presented in the two appendixes.
While this report touches on many aspects of environmental enforcement, it does not describe every aspect and statute in detail. Rather, the report is intended to provide a broad perspective of environmental enforcement by highlighting key elements, and a general context for the range of related issues frequently debated. Information included in this report is derived from a variety of sources. These sources, including relevant subject-matter CRS reports providing in-depth discussion of specific topics and laws, are referenced throughout.
Several themes reflecting congressional concerns over time since EPA was established in 1970 are reflected throughout the major sections of this report. Congress has conducted oversight, primarily in the form of hearings, on various aspects of the organizational infrastructure and operations designed to enforce pollution control statutes. (2) These aspects of enforcement have also been the topic of investigations by the Government Accountability Office (GAO) (3) and EPA's Office of Inspector General (EPA-OIG). (4) The federal government's oversight of and coordination with states in implementing and enforcing federal pollution control laws have been of particular interest to Congress. (5) The following sections briefly discuss some of the key issue areas.
Federal and State Government Interaction
Since many, but not all, of the federal pollution control statutes authorize a substantial role for states, state autonomy versus the extent of federal oversight is often at the center of debate with regard to environmental enforcement. Not unexpectedly, given the "cooperative federalism" (6) that is often used to characterize the federal, state, and tribal governments in the joint implementation and enforcement of pollution control requirements, relationships and interactions among these key enforcement players often have been less than harmonious.
Disagreements involving environmental priorities and strategic approaches, and balancing the relative roles of compliance assistance with enforcement, contribute to the complexity and friction that come with enforcing national pollution control laws. Other contributing factors include the increasing number of statutory and related regulatory pollution control requirements (some with conflicting mandates) and the adequacy of the resources available for their implementation.
The effects of variability among statutes, coupled with variability in federal and state interpretations and regulations, are often central to the debate. Some argue that this variability leads to too much inconsistency in enforcement actions from state to state, region to region, or between federal versus state actions. Others counter that this represents the flexibility and discretion intended by the statutes to address specific circumstances and pollution problems.
A July 2007 GAO report found that progress had been made regarding federal oversight of state environmental enforcement programs, and that there had been improvements with regard to cooperative federal-state planning and priority setting. However, the GAO concluded that a greater effort was needed to achieve more consistency and effectiveness, and that these issues continue to need improvements. (7) More recently, in a December 2011 report, the EPA OIG found that although "OECA had made efforts to improve state performance and consistency ... state performance remains inconsistent across the country, providing unequal environmental benefits to the public and an unlevel playing field for regulated industries." (8)
Federal Funding and Staffing for Enforcement Activities
The level of federal funding allocated to states and tribes to support effective enforcement of federal pollution control laws has also been a long-standing congressional concern. (9) In March 2012, Environmental Council of the States (ECOS) reported concerns among state environmental agencies with regard to the extent of reductions in federal funding for state environmental protection activities. (10) In a 2008 study, ECOS (11) reported that during 2005-2008 states expected spending to implement federal environmental laws to double while federal appropriations declined. (12) Subsequently, ECOS reported that although federal funding for enforcement allocated to states increased marginally from FY2009 to FY2010, overall, reductions in state budget revenue are impacting their ability to maintain viable environmental enforcement programs. (13) In 2007, GAO reported that, although funding overall for enforcement activities had increased somewhat, it generally had not kept pace with the increasing number of mandates and regulations, or with inflation. (14)
The federal enforcement funding and personnel, primarily within EPA and the Department of Justice (DOJ), to ensure effective enforcement of environmental statutes has also been a concern of both appropriations and authorizing committees in Congress. Recently, in addition to funding priorities among the various EPA programs and activities (including enforcement), several promulgated and pending EPA regulatory actions (15) were central to debates on EPA's FY2011 and FY2012 appropriations and are again prominent in the debate regarding the FY2013 appropriations. (16) During the previous fiscal year's appropriations deliberations, several provisions were proposed, and a subset adopted, that restricted the use of funding for the development, implementation, and enforcement of certain regulatory actions that cut across the various environmental pollution control statutes' programs and initiatives. (17)
Regulatory actions under the Clean Air Act, in particular EPA controls on emissions of greenhouse gases, as well as efforts to address conventional pollutants from a number of industries, received much of the attention during the FY2012 appropriations debate. Several regulatory actions under the Clean Water Act, Safe Drinking Water Act, and Resource Conservation and Recovery Act (RCRA) also received some attention. Some Members expressed concerns related to these actions during hearings of EPA's FY2013 appropriations, and authorizing committees continue to address EPA regulatory actions through hearings and legislation.
Other Enforcement Issues
Many other aspects of pollution control enforcement have been the subject of debate, and highlighted in congressional hearings and legislation. Some additional areas of continued interest include
* whether there is a need for increased compliance monitoring and reporting by regulated entities;
* impacts of environmental enforcement and associated penalties/fines on federal facilities' budgets (most notably the Department of Defense, or DOD, and Department of Energy, or DOE);
* how best to measure the success and effectiveness of enforcement (e.g., using indicators such as quantified health and environmental benefits versus the number of actions or dollar value of penalties);
* whether penalties are strong enough to serve as a deterrent and maintain a level economic playing field, or too harsh and thus causing undue economic hardship;
* how to balance punishment and deterrence through litigation with compliance assistance, incentive approaches, self-auditing or correction, and voluntary compliance;
* the effect of pollutant trading programs on enforcement; and
* the level of funding required to effectively achieve desired benefits of enforcement.
These issues result from disparate values and perspectives among stakeholders, but also from the factors that are the focus of this report: the statutory framework, those who work within this framework, and the tools and approaches that have been adopted for achieving compliance with pollution control laws.
The discussion below, beginning with identification of the principal statutes and key players, followed by an overview of integrated systems of administrative and judicial enforcement, compliance assistance, and incentive tools, is intended to provide a macro-perspective of environmental enforcement infrastructure and operations.
Statutory Framework for Enforcement of Pollution Control Laws and Key Players
As Congress has enacted a number of environmental laws over time, as well as major amendments to these statutes, responsibilities of both the regulators and the regulated community have grown. Organizational structures of regulatory agencies have evolved in response to their expanding enforcement obligations. Regulators also must adapt to an evolving, integrated system of administrative and judicial enforcement, compliance assistance, and incentive tools (see discussion under "Enforcement Response and Compliance Tools," later in this report).
The 11 laws listed in Table 1 generally form the legal basis for the establishment and enforcement of federal pollution control requirements intended to protect human health and the environment.
The discussion in this report focuses on these federal environmental laws for which the U.S. Environmental Protection Agency (EPA) is the primary federal implementing agency. Since EPA was created in 1970, Congress has legislated a considerable body of law and associated programs to protect human health and the environment from harm caused by pollution. Those federal statutes, intended to address a wide range of environmental issues, authorize a number of actions to enforce statutory and regulatory requirements.
Enforcement of this diverse set of statutes is complicated by the range of requirements, which differ based on the specific environmental problem, the environmental media (e.g., air, water, land) affected, the scientific basis and understanding of public risks, the source(s) of the pollutants, and the availability of control technologies. Regulatory requirements range from health and ecologically based numeric standards, or technology-based performance requirements, to facility-level emission and discharge permit limits. Several of the pollution control laws require regulated entities to obtain permits, which typically specify or prohibit certain activities, or delineate allowable levels of pollutant discharges. These permits are often the principal basis for monitoring, demonstrating, and enforcing compliance. In recent years, an increasing number of administrative initiatives have favored incentive-based regulatory approaches, such as trading of permitted emissions, which can affect the applicability of traditional enforcement approaches.
Regulating authorities establish enforcement response and compliance assistance programs to address the enforcement provisions of particular federal pollution control statutes. These environmental statutes typically authorize administrative, civil judicial, and criminal enforcement actions for violations of statutory provisions. For example, Section 309 of the CWA, Section 113 of the CAA, and Section 1414 of the Safe Drinking Water Act (SDWA) cover enforcement provisions. (18) As provisions for specific actions vary from statute to statute, each EPA regulatory program office establishes detailed criteria for determining what sanctions are preferable (and authorized) in response to a given violation. The statutes often provide a level of discretion to regulators for addressing specific circumstances surrounding certain environmental problems or violations of national requirements.
Enforcement of the many provisions of the major environmental laws across a vast and diverse regulated community involves a complex coordinated process between federal (primarily EPA and DOJ), state, tribal, and local governments. Congress provided authority to states for implementing and enforcing many aspects of the federal statutory requirements. Citizens also play a role in ensuring that entities comply with environmental requirements, by reporting violations or filing citizen lawsuits, which are authorized under almost all pollution control laws. The following discussion highlights the roles of these key players.
Key Players in Environmental Enforcement and Compliance
U.S. Environmental Protection Agency
Primarily through its program offices (e.g., air, water, solid waste), EPA promulgates national regulations and standards. (19) Other federal agencies (e.g., the Department of the Interior, Army Corp of Engineers) and states, tribes, various stakeholder groups, and citizens may contribute input to EPA at various stages of regulatory development (including required public comment). (States may also establish their own laws based on the national requirements; see the discussion later in the "States and "Delegated Authority"" section of this report.) EPA (and states) inform the regulated community of their responsibilities and administer permitting, monitoring, and reporting requirements. EPA also provides technical and compliance assistance, and employs a variety of administrative and judicial enforcement tools as authorized by the major environmental laws it administers, as well as incentive approaches, to promote and ensure compliance.
Since EPA's establishment, the agency's enforcement organization has been modified a number of times, and continues to evolve. (20) EPA's Office of Enforcement and Compliance Assurance (OECA) at headquarters and in the 10 EPA regional offices sets the general framework for federal enforcement activities in coordination with the agency's program offices, states and tribes, and other federal agencies, particularly DOJ. OECA serves as the central authority for developing and implementing a national compliance and enforcement policy, and coordinating and distributing policies and guidance.
EPA's National Enforcement Initiatives (NEI) (21) and OECA's National Program Managers (NPM) Guidance are primary strategic planning tools that set out national enforcement program priorities and coordinate and monitor state, regional, and EPA headquarters implementation of environmental enforcement/compliance activities. EPA's 10 regional offices, in cooperation with the states, generally are responsible for a significant portion of the day-to-day federal enforcement activities. The NEI is developed every three years with the cooperation of EPA regions and states/tribes, identifying overall program directions as well as specific enforcement activities/priorities. EPA is currently operating under the NEI for FY2011-FY2013, released February 22, 2010. (22) NPM Guidance is issued annually based on a three-year cycle coinciding with the NEI, identifying allocation of resources and expected outcomes, and serves as the basis for the enforcement agreements ("commitments") with the regional offices. The Guidance applies to OECA, all EPA regional enforcement programs, and states and tribes implementing EPA-approved inspection and enforcement programs. The Agency is currently operating under the FY2012 NPM Guidance was distributed April 30, 2011. (23) The FY2013 NPM Guidance was released April 30, 2012. (24)
The EPA National Enforcement Investigations Center (NEIC) provides technical expertise to the agency and states. The center administers an investigative team that assigns investigators to the regional offices as needed. (25) OECA also facilitates EPA's National Enforcement Training Institute (NETI), established under Title II of the 1990 Pollution Prosecution Act (P.L. 101-593). NETI provides a wide spectrum of environmental enforcement training online to international, federal, state, local, and enforcement personnel, including lawyers, inspectors, civil and criminal investigators, and technical experts. (26)
OECA's headquarters personnel conduct investigations and pursue or participate in national enforcement cases, particularly those potentially raising issues of national significance. More often enforcement activities fall to the regional offices. EPA (and the states') enforcement actions often require coordination with other federal agencies, most frequently DOJ.
U.S. Department of Justice (27)
In coordination with EPA, the Department of Justice (DOJ)-at its headquarters and through the U.S. Attorneys' offices around the country-plays an integral role in judicial federal enforcement actions of environmental regulations and statutes. EPA refers cases (including some initiated by states) to DOJ for an initial determination of whether to file a case in federal court. DOJ represents EPA in both civil and criminal actions against alleged violators, maintaining close interaction as needed with EPA, states, and tribes during various stages of litigation. DOJ also defends environmental laws, programs, and regulations, and represents EPA when the agency intervenes in, or is sued under, environmental citizen suits. EPA-OECA referred 232 civil cases to DOJ in FY2011 and reported 371 criminal cases were opened in FY2011 (28) (EPA reported 168 criminal cases in FY2004 the last year criminal referrals were reported publicly by EPA) (29). Many of these cases are handled by DOJ's Environment and Natural Resources Division (ENRD). (30) EPA and DOJ work conjunctively with the other federal agencies as cases warrant.
Other Federal Agencies
EPA and DOJ coordinate with a number of other federal agencies, particularly when taking criminal action. Key federal agencies include the Federal Bureau of Investigation (FBI), Department of Transportation (DOT), Department of Homeland Security (DHS, particularly the Coast Guard and U.S. Immigration and Customs Enforcement, or ICE), Fish and Wildlife Service, Army Corps of Engineers, Defense Criminal Investigative Service, National Oceanic and Atmospheric Administration (NOAA), U.S. Internal Revenue Service (IRS), and U.S. Securities and Exchange Commission (SEC). These agencies may provide support directly in response to violations of laws implemented by EPA, or, as is often the case, in circumstances where multiple laws have been violated.
States and "Delegated Authority" (31)
Most federal pollution control statutes, but not all, authorize EPA to delegate to states the authority to implement national requirements. (32) For a state to be authorized, or "delegated," to implement a federal environmental program, it must demonstrate the capability to administer aspects of the program's requirements, including the capacity to enforce those requirements. Delegated authority must be authorized under the individual statute, and states must apply for and receive approval from EPA in order to administer (and enforce) federal environmental programs. While many federal pollution control laws provide authority for states to assume primary enforcement responsibilities, there is significant variability across the various laws, including as to standards states must meet and EPA's authority in determining whether states are authorized or have primacy. In some cases, state primacy is almost automatic.
Some federal pollution control laws limit the authority to a specific provision, while others do not authorize delegation at all. For example, Section 1413 of the Safe Drinking Water Act (SDWA) authorizes states to assume primary oversight and enforcement responsibility (primacy) for public water systems, (33) and Section 402 of the Clean Water Act (CWA) authorizes state-delegated responsibilities under that act to issue and enforce discharge permits to industries and municipalities. Under CERCLA (Superfund), states are authorized to participate in the cleanup of waste, from taking part in initial site assessment to selecting and carrying out remedial action, and negotiating with responsible parties. Under FIFRA, states may have primacy for enforcing compliance requirements contained on labels of registered pesticides, but are not granted enforcement authority related to registering pesticides or pesticide establishments. Programs under other laws, such as the Toxic Substances Control Act (TSCA), do not provide authority for state delegation. EPA can also authorize state government officials to conduct inspections for environmental compliance on behalf of the agency, subject to the conditions set by EPA, even if a specific statute does not provide delegation authority. However, there must be authority under the specific statute for authorizing such inspections. (34)
Even if delegation is authorized under a federal statute, states may opt not to seek delegation of a particular environmental program, or they may choose only to implement a select requirement under a federal law. For example, as of June 2012, 46 states had obtained the authority to operate the national permitting program under Section 402 of the CWA, but EPA had only delegated authority to two states to operate the wetlands permitting program under a separate CWA provision, Section 404. (35)
A majority of states have been delegated authority to implement and enforce one or more provisions of the federal pollution control laws. (36) Authorized states generally implement the national laws and regulations by enacting their own legislation and issuing permits, which must be at least as stringent as the national standards of compliance established by federal law. States consider and approve environmental permits, monitor and assess environmental noncompliance, provide compliance assistance and information to the regulated community and the public, conduct inspections, and take enforcement actions. Local government authorities also play a role in permitting and monitoring. For example, EPA has delegated authority to implement Section 112 of the Clean Air Act (CAA) to at least three county governments. However, local governments generally act within the context of assuring states' requirements. For example, local authorities may incorporate land use and other issues as well as code requirements (fire, construction, building safety, plumbing, etc.) in their consideration of permits. A more detailed discussion of the many facets of local authorities is beyond the scope of this report.
A significant proportion of inspections and enforcement actions are conducted by the states. Comparable, comprehensive data from the same or similar sources are not readily available for purposes of directly comparing enforcement activities in states relative to EPA. While EPA routinely reports trends in its major enforcement actions in the annual OECA accomplishments reports and on its website, the agency does not include states' activities. There are a number of limitations with regard to states' information currently retained by EPA in its databases (e.g., not all states report relevant information into the EPA databases, reported data are not provided consistently from state to state, and reporting requirements are variable from statute to statute). (37) EPA is working to enhance and improve enforcement reporting by states. The agency has been implementing its State Review Framework (SRF) tool developed and introduced in 2004, to improve its oversight of state enforcement programs. (38) Under this SRF tool, EPA representatives visit and evaluate each state's compliance and enforcement program based on specified criteria.
Through discussions and reports, EPA provides feedback to each state and based on its review, outlines recommendations for improvement. Full implementation of SRF was initiated by EPA in July 2005 and the agency reported that reviews of all states and territories were completed in 2007. EPA began conducting Round 2 of reviews in 2008, and expects to complete these reviews in 2012. OECA, with its partners, conducted an evaluation of the implementation of the first cycle of SRF recommendations and initialed revisions to SRF guidance for conducting subsequent reviews. OECA continues to work with its partners in evaluating implementation of SRF recommendations. (39) Nevertheless, there are still perceived differences between states, EPA regions, and EPA headquarters.
In recent years, ECOS (40) has served as a forum to improve coordination and promote joint strategic planning between the states and EPA. In addition to other strategic planning tools, EPA and states established the National Environmental Performance Partnership System (performance partnerships, or NEPPS) (41) in 1995 in an effort to improve the effectiveness of EPA-state coordinated environmental management. Under this system, which includes elements of compliance and enforcement, EPA and states enter into individual partnerships (performance partnership agreements) to address jointly agreed-upon priorities based on assessments of localized environmental conditions. The partnerships can be broad in scope or comprehensive strategic plans, and often serve as work plans for funding through EPA grants.
Absent delegation, EPA continues to enforce the federal law in the state, although a state can enforce its own environmental laws where not preempted by federal law. Even with delegation, EPA retains the authority and responsibility as determined by each statute to take enforcement measures, generally taking action when there is a violation of an EPA order or consent decree, or when the federal government deems a state to have failed to respond to a major violation in a "timely and appropriate" manner. Additionally, when a noncompliance case involves an emergency or matters of potential national concern, such as significant risk to public health and safety, the federal government will typically intercede. There are cases where states request the federal government to step in, and other cases where the federal government on its own initiative acts on violations that are the subject of state enforcement action or settlement, known as "overfiling." EPA contends that overfiling occurs infrequently and that certain environmental statutory provisions preclude EPA from overfiling. These provisions are not explicit in all the pollution control statutes, and are limited to specific subsections and violations. (42) Although overfiling of states' enforcement actions has occurred under various pollution control statutes, historically, overfiling of Resource Conservation and Recovery Act (RCRA) violations has been the subject of considerable debate and litigation. States have strongly objected to overfiling, and the utility and extent of overfiling with respect to environmental enforcement has been the subject of considerable litigation, debate, and literature. (43)
The term "overfiling" applies to situations when federal enforcement actions are filed during or after a state enforcement action against the same entity for violation of a federal statute. Some states and regulated entities use the term more broadly in reference to assertion of federal authority. Overfiling or the threat of overfiling sometimes strains EPA-state relations and cooperation, sometimes implying criticism of a delegated state's effectiveness.
EPA and states increasingly have recognized the role of tribal governments in environmental enforcement, where tribes, rather than states, have primary jurisdiction. (44) Indian tribes, as sovereign governments, can establish and enforce environmental programs under their own laws, but must obtain approval from EPA to administer federal environmental programs on their land.
As with states, some of the federal statutes authorize tribes, (45) with EPA approval, to assume responsibility for implementing certain federal pollution control programs. To obtain EPA approval, tribes must demonstrate adequate authority and jurisdiction over the activities and lands to be regulated. Where there is no approved tribal program, EPA exercises its federal authority and may undertake direct program implementation. In some instances, particularly when there are criminal violations, EPA may retain a role in compliance and enforcement even when there is an approved tribal program.
In addition to the federal statutes, a tribal government's authority for environmental protection can arise from federal executive orders, treaties, and agreements with the United States and/or state and local governments, (46) some of which explicitly reserve rights pertaining to the environment. When addressing environmental issues within tribal lands, EPA abides by the January 24, 1983, American Indian policy statement, (47) which reaffirmed the government-to-government relationship of Indian tribes with the United States. (48)
Relatively few tribes have obtained authority for implementing federal pollution control laws, and EPA identified tribal environmental compliance as a national enforcement and compliance priority in its FY2005-FY2007 and its FY2008 - FY2011 (49)enforcement strategic plans in an effort to enhance tribal governments' capabilities to implement federal environmental statutes. The primary focus was public drinking water systems, federal pollution control statutes applicable to schools, and unregulated dumping of solid waste. EPA's National Enforcement Initiatives for FY2011-FY2013 did not designate Indian Country as one of the six national enforcement initiatives, however, the sector will continue to be addressed through the structure established under the previous designated initiative or through the regular program compliance assistance, inspections, investigations, and enforcement conducted in regional offices and states. (50) EPA indicated that, during FY2011, EPA regions continued to provide compliance assistance, conduct compliance monitoring, and take enforcement in Indian country, particularly in the drinking water area. (51)
Private individuals play an important role in enforcing certain aspects of federal pollution control laws. Citizen participation, specifically authorized by Congress in many of the federal pollution control statutes, occurs in several ways. Individuals can identify and report violations of the laws, provide comments on settlements that are reached between the federal government and violators of the environmental laws in enforcement cases, and initiate enforcement proceedings directly in response to alleged violations. In addition, individuals may bring actions against EPA for failing to execute nondiscretionary duties required under federal environmental laws. (52)
To further enhance public participation and reporting of potential environmental violations, EPA-OECA introduced the "National Report a Violation" website in January 2006. (53) The website provides access to OECA's online citizens' tips and complaints form. EPA reported that the number of citizen tips and complaints increased from 1,485 in FY2005 to 3,274 in FY2006. According to EPA, more than 18,000 total tips were reported to date, including more than 7,800 received in FY2008 (54) (not reported for FY2009 through FY2011). Additionally, in FY2009 EPA introduced the "EPA Fugitives" website to solicit public assistance in locating alleged environmental criminal fugitives. (See brief overview of the website in the "Criminal Judicial Enforcement" section of this report.)
The size and diversity of the regulated community are vast, spanning numerous industrial and nonindustrial entities, small and large, and their operations. The following discussion provides an overview of the regulated community, and highlights the role and activities of the key regulated entities in the enforcement of the primary pollution control statutes.
The universe of the regulated community as a whole is very large (see discussion below). The majority of those in the regulated community are required to comply with multiple statutes because of the nature of their activities and operations. The regulated community includes a diverse range of entities and operations, including utilities, refineries, manufacturing and processing facilities, agriculture producers and processors, mobile sources (e.g., private and commercial vehicles), and others. Local, state, tribal, and federal governments are also part of the regulated community, as they are engaged in a range of activities and operations--utilities, construction, waste and wastewater management, drinking water management, transportation, and pest management-that generate pollution similar to nongovernment sectors.
Regulated entities vary in their activities and operations, and in size-ranging from small individual business operations such as dry-cleaners to facilities and operations that are part of large corporations and conglomerates. Regulatory agencies generally categorize regulated entities into minor and major emitters/dischargers based on factors such as total earnings, number of employees, production volume, and amount of emissions, for purposes of implementing and enforcing the various statutes. In certain circumstances, some of the pollution control statutes make specific distinctions with regard to major and minor emitters/dischargers. A designation of "major" generally applies to those entities that, because of their size or operations, have the potential to have a significant impact on the environment. Most of the statutes and accompanying regulations include authorities for reducing the stringency, and in some cases providing exemptions from regulatory requirements to minimize their impacts on small businesses and operations.
There is no readily available, current, comprehensive list and description of the complete universe of those who are regulated under all of the major pollution control statutes. EPA has been criticized for not adequately defining the regulated universe, a step that GAO determined to be a critical component necessary to evaluate the effectiveness of enforcement. (55) EPA-OECA compiled data regarding the size of the regulated community in September 2001, and estimated a total universe of more than 41 million. (56) Although cited by EPA subsequently from time to time, most commonly in strategic planning documents, the agency has not updated the estimate.
There are, however, data and information that provide some indications of the size and diversity of this universe--for example, in EPA's primary enforcement and compliance databases (see additional discussion in Appendix A). EPA's publicly available Enforcement and Compliance History Online (ECHO) provides for integrated searches of data for more than 800,000 facilities for compliance with CWA, CAA, and RCRA. (57) The data are primarily based on permitted facilities. Another EPA centrally managed database is the Facility Registry System (FRS), which primarily identifies "facilities, sites or places" subject to federal pollution control requirements; it contains more than 2.5 million unique facility records. (58) The FRS database is primarily based on permit information for CWA, CAA, and RCRA, but includes information reported regarding CERCLA sites. It does not include information indicating the universe regulated under other statutes. In yet another source, the ECOS indicated that states reported that more than 3 million regulated facilities required state agency oversight for environmental compliance in 2003. (59) The differences in the various sources are an indication of the difficulty involved in accurately and consistently tracking the size of the regulated populations.
EPA's various program offices (e.g., air, water, and waste) maintain and publish information and profiles regarding characterizations of regulated entities and their operations. Generally included are estimates of the types and amounts of emissions and discharges, or wastes being handled. For example, EPA's Office of Air and Radiation (OAR) maintains a national database of air emissions estimates for individual point- or major-source categories. (60) The database contains information on stationary and mobile sources that emit common ("criteria") air pollutants (61) and their precursors, as well as hazardous air pollutants (HAPs). (62) The categories presented in these sources do not reflect 100% of the total number of facilities being regulated.
Another source for characterizing the sectors of the regulated community is EPA's "Sector Notebooks." (63) EPA has defined sectors as distinct parts of the economy that share similar operations, processes or practices, environmental problems, and compliance issues. EPA recognizes that there are likely a number of circumstances where regulated entities within specific geographic regions may have unique characteristics that are not fully reflected in the profiles contained in the sector notebooks. In addition, some of the notebooks were completed several years ago. Nevertheless, notebook profiles provide fairly comprehensive characterizations of key sectors included within the regulated community.
Table 2 lists industry and government sectors for which the agency has completed sector notebooks and developed compliance assistance tools.
Enforcement at Federal Facilities (64)
Unless a statutory exemption exists, federal facilities are subject to the federal pollution control statutes, (65) and generally also must adhere to the environmental laws and regulations of the states and municipalities in which they are located, to the same extent as others in the regulated community. EPA reported that it concluded 57 enforcement actions against federal agencies for alleged violations of federal pollution control laws during 2011, resulting in an estimated reduction of more than 713,000 pounds of pollutants. (66) This is compared to 52 enforcement actions, resulting in an estimated reduction of more than 311,000 pounds of pollutants during FY2010. (67) Federal agencies are also subject to relevant requirements of executive orders. (68)
In FY2011, approximately $9.0 million in penalties were assessed for federal facility violations and violators agreed to invest an estimated $5.0 billion in cleanup and improved operations to comply with environmental laws, compared to $749,000 assessed penalties and investment of an estimated $163 million in FY2010. (69)
Regulating federal facilities under pollution control laws presents certain unique challenges. Although all are potentially subject to pollution control laws and regulations, a majority of federal agencies and their facilities are not involved in activities that would generally warrant compliance requirements. According to EPA, facilities operated by DOD and DOE make up a significant portion of the universe of "major" federal facilities. (70) Major federal facilities generally refer to those facilities that, because of their size or operations, have the potential to have a significant impact on the environment. Compliance/enforcement information for DOD and DOE is reported individually, while other federal agencies are generally categorized together as Civilian Federal Agencies. (71)
The major federal pollution control laws provide EPA with authorities to enforce requirements and impose penalties at federal facilities that are not in compliance. The Federal Facility Compliance Act of 1992 specifically amended RCRA to clarify that DOD and all other federal facilities are subject to penalties, fines, permit fees, reviews of plans or studies, and inspection and monitoring of facilities in connection with federal, state, interstate, or local solid or hazardous waste regulatory programs. (72) The SDWA includes similar language regarding federal facilities, but most of the other federal environmental laws do not include such specific provisions. CERCLA (Superfund) Section 120 requires federal agencies with NPL sites to investigate and clean up the contamination, and significantly contaminated federal facility sites have been listed on EPA's National Priorities List (NPL).
Whether other pollution control laws should be amended to clarify their applicability to federal facilities has been an issue of debate in Congress.
Enforcement Response and Compliance Tools
EPA and states apply a set of environmental enforcement tools to identify and correct noncompliance, restore environmental damage, and impose penalties intended to deter future violations. Compliance with pollution control laws is addressed through a continuum of response mechanisms, ranging from compliance assistance to administrative and civil enforcement, to the stronger criminal enforcement. The spectra of tools, which escalate in terms of their level of severity and intensity, are authorized in each of the environmental statutes. The following sections of this report provide a brief overview of the various enforcement response mechanisms.
Over the years, EPA and states have sought to effectively balance the provision of guidance and assistance to prevent violations or achieve compliance by regulated entities with federal pollution control requirements, with the imposition of strong enforcement actions in response to violations. Some critics have depicted environmental enforcement as overly litigious, or requiring unwarranted remedies. Others counter that actions are not pursued with enough rigor and frequency, or that penalties are not severe enough to deter noncompliance. EPA officials have countered that, in some instances, the agency is relying more on settlements and focusing on requiring increased expenditures on pollution control technologies, and that it is focusing judicial actions on larger and more complex cases that are expected to result in larger environmental benefits.
EPA and states maintain a considerable degree of flexibility in determining how to respond to potential violations, to the extent authorized by individual statutes. Initially, a potential violation is identified through monitoring, inspecting, citizen reporting, or through self-reporting by the regulated entity. As a first step in the enforcement process, unless an imminent danger or hazard has been determined, EPA and states may attempt to obtain corrective actions by simply issuing a warning or notifying a facility that minor violations may exist, and granting reasonable time for compliance. EPA or a state may then (or sometimes as a first step) initiate a civil administrative action under its own authority without involving the judicial process, or file formal civil or criminal (73) judicial actions in court.
Sanctions imposed, whether through negotiated settlements or decisions by the court, generally include required actions to achieve compliance and to correct environmental damage (injunctive relief), and may include monetary penalties (and incarceration in the case of criminal violations). During the last 10 years, settlements increasingly have also included requirements that violators undertake mutually agreed-upon environmentally beneficial projects supplemental to other sanctions. (74)
As noted, EPA, states, and the courts have considerable discretion in determining sanctions and remedies on a case-by-case basis so that the individual circumstances of each case are appropriately addressed. A majority of environmental violations are addressed and resolved administratively by states and EPA, and many of these cases are settled through negotiations between the government and the alleged violator. For example, during FY2011, EPA issued 1,324 administrative compliance orders and filed 1,830 final administrative penalty order complaints. In comparison, during FY2011, 148 civil judicial cases were filed with the court, and 180 civil judicial enforcement cases were concluded. (75) Civil judicial cases constitute the second-largest category of environmental enforcement actions. Historically, judicial actions focused on violation of a single environmental statute. In recent years, EPA and states have increased the frequency of reliance on a multimedia (multi-statute) approach and multimedia investigations.
The number of administrative and judicial enforcement actions and penalties often fluctuate significantly from year to year. These fluctuations are generally a reflection of a combination of factors, including statutory deadlines; new or amended requirements in response to new scientific information or amended and new regulations; increased or decreased resources; environmental priority changes at the federal or state levels; and increased or improved monitoring/reporting. For example, EPA reported that the number of administrative penalty order complaints issued by the agency more than doubled, from 2,229 complaints in FY2005 to 4,647 in FY2006, then declined to 2,237 in FY2007, 2,056 in FY2008, 1,914 in FY2009, 1,901 in FY2010, and 1,735 in FY2011. (76) The combined $152.0 million in civil penalties (administrative and judicial) assessed in FY2011 were the highest in the last five fiscal years. (77) Additionally, the total dollar amount of penalties collected in a given year could reflect the completion of one or two large cases. For example, EPA reported that a single case accounted for 62% of the total civil penalties assessed for FY2004. Illustrations of the frequency of enforcement actions by type over time are presented in Appendix B; this appendix also includes illustrations of administrative and judicial penalties assessed over time by statute.
Monitoring, Inspections, and Evaluations
Critical steps in enforcing environmental laws include the compilation of monitoring data, and inspection and evaluation of the activities of the regulated community to determine who is complying with applicable regulatory requirements and permit conditions, and who is not. Compliance monitoring, evaluations, and investigations all serve to identify violations and provide insights into potential priority issue areas that may need to be addressed more broadly. Monitoring and reporting can be both media program-based (e.g., air, water, waste) and sector-based (e.g., industrial, mobile source, utilities), and are often included in permit requirements. Data reported and obtained, as well as observations and evidence collected by inspectors, enable EPA and states to identify specific environmental problems and determine whether a facility is in compliance. The information and evidence could eventually be used in an enforcement action. The mere collection of information or threat of inspection itself often creates an awareness of the regulators' interest, and can encourage compliance.
EPA identifies several forms of compliance monitoring that are used differently by the agency and states, depending upon the statute, the nature of the pollutants, and the types of facilities being regulated:
* Self-Monitoring/Reporting: Most environmental laws require (typically through permitting) regulated entities/facilities to monitor and record their own compliance status and report some or all of the tracking results to the responsible regulating authority. In addition to informing the regulators, self-monitoring also allows a company to measure its performance and evaluate its strategies for achieving or maintaining compliance.
* Review of Records: Regulatory agencies review data and information reported or otherwise compiled and collected.
* Full and Partial Inspections/Evaluations: (78) Individual facility environmental inspections, conducted by EPA regional staff and the states, are the primary tool used by regulators for initial assessment of compliance. Through sampling, emissions testing, and other measures, inspections examine environmental conditions at a facility to determine compliance (or noncompliance) with specific environmental requirements, and to determine whether conditions present imminent and substantial endangerment to human health and the environment. Inspections/evaluations can be conducted all at once or in a series of partial inspections.
* Area Monitoring: Area monitoring looks at environmental conditions in the vicinity of a facility, or across a certain geographic area. Examples of methods used for area monitoring include ambient monitoring and remote sensing.
According to EPA's most recent reported trends data, a total of 19,000 EPA enforcement inspections and evaluations were conducted under the various statutes during FY2011. (79) Although most inspections are carried out by the states, annual data for the total number of inspections conducted by states are not readily available due to data-reporting variability and other limitations. Based on a subset of states surveyed, ECOS reported that roughly 136,000 compliance inspections were conducted by states in 2003 for the major federal environmental programs-air, drinking water, surface and groundwater, hazardous waste, and solid waste. (80) The total number of inspections reported by ECOS does not account for all inspections conducted by states under federal pollution control programs-for example, inspections under FIFRA are not included. In reports to EPA by states under the Pesticide Enforcement Grant program, states, tribes, and territories reported between 90,000 and 100,000 FIFRA inspections each fiscal year for FY2006 through FY2008. These FIFRA activities, typically administered by states' departments of agriculture, are not reflected in the EPA or the ECOS totals.
To put the ECOS number of inspections into perspective, in 2003, the ECOS survey identified 440,000 regulated facilities under these five major environmental programs. EPA's Facility Registry System (FRS), which identifies facilities and sites subject to federal environmental regulation, currently contains unique records for more than 2.5 million facilities (see the above discussion under the heading Regulated Community). Appendix B presents data on the number of inspections conducted annually by EPA over time.
Civil Administrative Actions
As noted earlier, a majority of environmental pollution control violations are addressed and resolved administratively by states and EPA without involving a judicial process. EPA or a state environmental regulatory agency may informally communicate to a regulated entity that there is an environmental problem, or it may initiate a formal administrative action in the form of a notice of violation or an Administrative Order to obtain compliance. An Administrative Order imposes legally enforceable requirements for achieving compliance, generally within a specified time frame, and may or may not include sanctions and penalties.
An initial step in the enforcement process is often a Notice of Violation, or in some instances, a warning letter. Warning letters are issued mostly for first-time violations that do not present an imminent hazard. These notifications are intended to encourage regulated entities to correct existing problems themselves and come into compliance as quickly as possible. According to EPA, in many cases, these notices are not escalated to further formal enforcement action because a facility corrects problems and returns to compliance in response to the notice.
Through administrative enforcement actions, EPA and states may (1) require that the violator take specific actions to comply with federal environmental standards, (2) revoke the violator's permit to discharge, and/or (3) assess a penalty for noncompliance. As indicated previously, administrative actions frequently end in negotiated settlements. These mutually agreed-upon resolutions are typically in the form of a Consent Agreement or Final Administrative Order/Penalty. According to EPA's FY2011 annual results, during FY2011, EPA initiated 1,324 administrative compliance orders and 1,760 administrative penalty order complaints. EPA imposed penalties in 1,735 final administrative penalty orders during FY2011, representing a total value of $47.9 million. (81)
Federal administrative orders are handled through an administrative adjudicatory process, filed before an administrative law judge (ALJ), or, in the regions, by EPA's regional judicial officers (RJOs). The EPA Office of Administrative Law Judges (OALJ) is an independent office within the agency. (82) ALJs, appointed by the EPA Administrator, (83) perform adjudicatory functions and render decisions in proceedings between EPA and individuals, entities, federal and state agencies, and others, with regard to administrative actions taken to enforce environmental laws and regulations. RJOs, designated by each of the EPA Regional Administrators, (84) perform similar adjudicatory functions in the EPA regions. Decisions issued by ALJs and RJOs are subject to review and appeal to the Environmental Appeals Board (EAB), which also functions independently of EPA. (85) Environmental Appeals Judges are appointed by the EPA Administrator. (86) Federal pollution control laws and regulations specify who may raise an issue before the EAB, and under what circumstances. EAB decisions often involve reviews of the terms of federal environmental permits and the amount of assessed financial administrative penalties.
Civil Judicial Enforcement
After civil administrative enforcement actions, civil judicial cases constitute the next-largest category of environmental enforcement. These are lawsuits filed in court against persons or entities who allegedly have not complied with statutory or regulatory requirements, or, in some cases, with an Administrative Order. Authorities for pursuing civil judicial actions and penalties are specified in each of the individual environmental statutes. Civil judicial cases are brought in federal district court by DOJ on behalf of EPA, and, for the states, by State Attorneys General. Not all of the cases referred to DOJ are filed with the court. The length of a civil case from its initiation to completion is highly variable, often extending across several years and sometimes across different presidential administrations. Like administrative enforcement actions, many civil judicial actions end as negotiated settlements, typically in the form of Consent Decrees. During FY2011, EPA-OECA referred 232 civil judicial cases to DOJ; 148 civil judicial complaints were filed with the court; and 182 cases were concluded (cases filed prior to and during FY2011). (87)
Criminal Judicial Enforcement
States and EPA may initiate criminal enforcement actions against individuals or entities for negligent or knowing violations of federal pollution control law. Criminal actions are especially pursued when a defendant knew, or should have known, that injury or harm would result. Knowing criminal violations of pollution control requirements are considered deliberate, and not the result of accident or error.
In addition to the imposition of monetary fines and requirements to correct a violation and restore damages, conviction of a criminal environmental violation can result in imprisonment. EPA reported that 371 new environmental crime cases were opened during FY2011,88 7.2% more than the 346 criminal cases opened in FY2010. (89) Authorities for pursuit of criminal actions vary under each of the statutes. For example, under the SDWA (42 U.S.C. [section]300h-2(b)), the criminal violations must be deemed willful-that is, they were committed with intent to do something prohibited by that law; the CWA (33 U.S.C. [section]1319(c)) authorizes criminal sanctions against those who have knowingly or negligently violated that statute.
Recent examples of criminal actions include the illegal disposal of hazardous waste; importation of certain banned, restricted, or regulated chemicals; the export of hazardous waste without prior notification or permission of the receiving country; the removal and disposal of regulated asbestos-containing materials inconsistent with requirements of the law and regulations; tampering with a drinking water supply; and negligent maintenance resulting in discharge of hazardous materials. (90)
The EPA-OECA Office of Criminal Enforcement, Forensics, and Training (OCEFT), the office to which the agency's criminal investigators are primarily assigned, oversees implementation of the agency's federal environmental crimes investigation program. Within DOJ, the U.S. Attorneys Offices and ENRD's Environmental Crimes Section (ECS) prosecute criminal cases and work closely with EPA's OCEFT investigators.
State and local law enforcement agencies and their environmental protection-related agencies, and other federal agencies, are also often key participants in federal environmental criminal actions. To facilitate investigations and cases, environmental crime task forces have been established nationally. (91) These task forces are composed of representatives from federal (including representatives from DOJ-ECS and special agents from EPA), state, and local law enforcement, and environmental regulatory enforcement. The FBI, DOT, Coast Guard, Fish and Wildlife Service, Army Corps of Engineers, SEC, IRS, and other relevant federal agencies also may play significant roles.
An increased emphasis on criminal enforcement of the pollution control laws occurred in the mid-1970s with the issuance of extensive guidelines for proceeding in criminal cases, and in 1981 with the creation of an Office of Criminal Enforcement and the hiring of criminal investigators in EPA's regional offices. During the late 1980s, criminal environmental enforcement was further enhanced when Congress conferred full law enforcement powers upon EPA criminal investigators as part of the Medical Waste Tracking Act of 1988 (18 U.S.C. [section]3063). Further, under Title II of the Pollution Prosecution Act of 1990 (P.L. 101-593), Congress authorized the appointment of a director of a new Office of Criminal Investigations within EPA, and mandated the hiring of 200 criminal investigators by FY1996. (92)
Staffing levels of criminal investigators at EPA have been of interest to some Members, particularly during deliberations on appropriations. For example, the 1990 Pollution Prosecution Act (P.L. 101-593) required EPA to hire and maintain 200 criminal investigators. A provision in the House-passed FY2008 Interior and Environmental Agencies Appropriations bill (H.R. 2643) would have required EPA to bring the total number of investigators up to the level of 200 as statutorily required. (93) The provision was not included in the FY2008 appropriations (P.L. 110-161, Title II of Division F). Congressional concerns regarding staff and funding for EPA's criminal (and civil) enforcement were also expressed in conference report language accompanying EPA appropriations for FY2003 through FY2005, (94) and were the topic of a congressionally requested EPA-OIG investigation. (95)
EPA's criminal enforcement agents are authorized law enforcement officers who, in addition to investigating federal environmental statutes, investigate U.S. Criminal Code (Title 18) violations often associated with environmental crimes, such as conspiracy, false statements, and interfering with federal investigations. As noted, Congress has been concerned with the staffing of criminal investigators.
Table 3 below shows the number of EPA investigators assigned to the criminal enforcement program for FY1997 through FY2013 (projected), as reported by EPA. (96) The number of EPA special agents went from about 50 in 1990 to more than 200 by 1998. (97) As of September 2007, the number of EPA investigators had dropped to 168; this decline was an issue of concern in Congress and elsewhere. As a result of an EPA/OECA three-year hiring strategy to increase the number of criminal investigators, the number of investigators increased to 183 in FY2008, 186 in FY2009, and 206 in FY2010. The total number of criminal investigators declined to 202 in FY2011 and EPA expects the current 192 inspectors on board will be 191 by the end of FY2012, and anticipates this number will remain constant in FY2013. (98)
In FY2009, EPA opened the "EPA Fugitives" website, which provides photographs and information about alleged violations of individuals who have avoided prosecution for allegedly committing environmental crimes. (99) The site solicits assistance from the public and from law enforcement agencies to help locate identified environmental "fugitives," and provides guidance on how to report information related to the fugitives' identity and/or current location. EPA reported that creditable reports received through the website assisted in the arrest or capture of three fugitives and the surrender of two others during FY2009; four were sentenced and one awaits trial. (100) Comparable information regarding "EPA Fugitives" was not reported by EPA in its FY2010 or FY2011 Annual Results; (101) however, the agency indicated that information obtained through the "Report a Violation" website (102) during FY2010 contributed to the opening of seven active criminal investigations, one of which resulted in an indictment. (103) EPA did not report any similar direct correlations with the "Report a Violation" website in its FY2011 annual results.
Sanctions (104) and Penalties
Sanctions and penalties imposed for violation of federal environmental pollution control laws have been of interest to some in Congress and the topic of a recent EPA-OIG report. (105) Settlements often require that violators achieve compliance and remedy environmental damages (injunctive relief). Monetary penalties may be included. Sanctions can also include permanent or temporary closure of facilities or specific operations, increased monitoring/reporting, revocation of existing permits or denial of future permits, and barring of receipt of federal contract funding or other federal assistance. (106) The settlement-required corrective and compliance actions, and the monetary penalties (and possibly incarceration for criminal violations), are intended to correspond directly with the specific violations (noncompliance) and the extent (or "gravity") of action committed.
Monetary penalties collected by the federal government as a result of an environmental enforcement agreement, order, or decision, are deposited with the U.S. Treasury. (107) However, under CERCLA (Superfund) and CWA, money recovered for the costs of replacing or restoring natural resources is used to restore the resources. (108) In the December 11, 2008, Federal Register, (109) EPA published its modifications to civil violation penalties in a final rule revising statutory penalties at 40 C.F.R. Parts 19 and 27. The final rule increased most of the penalties by adjusting for inflation under the Debt Collection Improvement Act of 1996,110 and also corrects previous calculation errors made during EPA's 2004 revisions to the penalties. The December 2008 rule adjusted the maximum penalty under section 203(a)(3)(B) of the Clean Air Act, and under the Toxic Substances Control Act and the Federal Insecticide, Fungicide, and Rodenticide Act.
States may have the explicit administrative authority to impose penalties under individual federal statutes. For example, the Safe Drinking Water Act requires (unless prohibited by a state's constitution) administrative penalty authority for states in certain dollar amounts as a condition of obtaining and/or retaining primacy for the Public Water System Supervision (PWSS) Program ([section]1413 (a)(6)). (111) As of June 2012, 55 of 57 states and territories had primacy authority for the PWSS program. (112) Although authorized under several of the other federal pollution control laws, EPA has not required-and not all states have obtained-administrative penalty authority. In some states, unlike the federal government, penalties obtained (or shared) as a result of an environmental enforcement action can be used to directly fund activities for environmental agencies and programs in the state, and not always to fund the state's general treasury.
In certain cases where the federal government has led the enforcement action, a state or states involved in the action may "share" resulting civil monetary penalties to the extent that the division is permitted by federal, state, and local law. A number of critical factors must be considered in accordance with EPA guidance (113) when determining division of penalties, including the state's active participation in prosecuting the case and its authority to collect civil penalties. EPA's guidance emphasizes that an agreement to include a division of civil penalties with states must be completed prior to issuance of a final settlement (order or consent decree).
The several statutes establish various factors to be considered in determining penalties: (1) the magnitude of environmental harm and the seriousness or gravity of a violation; (2) the economic benefit or gain to the violator as a result of illegal activity (noncompliance), including the gaining of a competitive advantage by the delaying or avoidance of pollution control expenditures that have been incurred by those in compliance; (3) violation history of the violator; and (4) in some circumstances, the ability of the violator to pay. Other factors, such as the degree of cooperation by the violator, whether the violation is self-reported, or the extent to which immediate action has been taken by the violator to mitigate potential harm, may also be considered. Precedents in previous cases involving similar violations are also a consideration when determining penalties.
The federal pollution control statutes include civil administrative and judicial penalty assessment authority and limits, which are to be considered by ALJs or the courts in determining the appropriate penalty. Figure B-3 in Appendix B presents examples of dollar amounts of civil administrative, civil judicial, and criminal penalties assessed by EPA for the 20-year period FY1991-FY2011. According to EPA, a significant portion of the total annual dollar amount of all penalties assessed often reflects penalties assessed in a few cases, and, in some years, a single case. For example, EPA reported that a major RCRA case accounted for 26% of the total value of civil penalties reported in FY2006, and that, in FY2005, penalties assessed in a single RCRA corrective action case accounted for 53% of the reported assessed civil penalties for the year. (114)
EPA and DOJ have established several policies and guidelines to be considered by counsel when negotiating agreements and setting penalties.115 EPA-OECA has also developed five computer models for calculating economic advantage, costs of Supplemental Environmental Projects (SEPs; see discussion under "Supplemental Environmental Projects (SEPs)," below), and for measuring the ability to afford compliance requirements and penalties. (116) The latter models vary depending on whether a violator is an individual, municipality, individual facility, or business entity (small business, large corporation, or conglomerate partnership). Findings of limited ability or inability to pay are one factor under which an enforcement case may be settled for less than the economic benefit of noncompliance. The models are to be used in conjunction with the policies and guidelines for calculating civil penalties. (117) The available models are:
* BEN, for calculating economic advantage/savings from avoidance of compliance;
* ABEL, for measuring a noncompliant entity's (e.g., a corporation's) ability to afford compliance and cleanup, and civil penalties;
* INDIPAY, for measuring an individual violator's ability to afford compliance and cleanup, and civil penalties;
* MUNIPAY, for measuring a noncompliant municipality's ability to afford compliance and cleanup, and civil penalties; and
* PROJECT, for calculating cost to a violator of undertaking a SEP (see the discussion regarding SEPs later this report).
Penalties Assessed to Federal Facilities (118)
Most federal pollution control statutes contain a provision expressly subjecting federal facilities to federal (and state and local) environmental regulation, and waiving sovereign immunity (thereby allowing federal agencies to be sued by nonfederal entities). Further, many federal environmental statutes authorize (or arguably authorize) EPA, states, and local governments to assess civil monetary penalties against federal agencies. (The Supreme Court rejected state authority to do so under the CWA.) (119) DOJ has issued opinions concluding that the CAA and RCRA underground storage tank provisions give EPA authority to assess civil money penalties against federal facilities. However, DOJ limits these conclusions to administrative assessment of penalties. Citing its constitutional theory of the "unitary executive," DOJ has historically refused to allow EPA to enforce judicially against other federal agencies, though case law has consistently been to the contrary. In contrast with EPA enforcement, there is no longer serious doubt that the Constitution allows states and other nonfederal entities to use the citizen suit provisions in federal environmental statutes to judicially enforce those laws against federal facilities.
During FY2011, EPA concluded 57 enforcement actions against federal facilities, and assessed $9.0 million in penalties. Federal agencies committed to invest more than $5.0 billion in FY2011 to improve their facilities and operations to remedy (clean up) past violations, to comply with federal laws, and to prevent future violations/pollution. (120)
Supplemental Environmental Projects (SEPs)
In addition to requiring violators to achieve and maintain compliance, and imposing appropriate sanctions and penalties, enforcement settlements may also include Supplement Environmental Projects (SEPs). (121) SEPs are projects that provide environmental and human health benefits that a violator may voluntarily agree to undertake in exchange for mitigation of penalties. A project must be related to the violation, and cannot be an activity the violator is legally required to take to achieve compliance. Penalties are to be mitigated by a SEP only during settlement negotiation, prior to imposition of the final penalty.
EPA has established a SEPs policy and developed guidance for their legal requirements and applicability, and has specified eight categories of acceptable projects. (122) These include pollution prevention, public health, and emergency and preparedness planning. EPA reported that 103 civil settlement cases during FY2011 included SEPs at an estimated value of $25.0 million. (123)
The incorporation of SEPs into enforcement actions became more common during the last decade, particularly by federal regulators, because of the potential for direct environmental benefit from such projects, versus the use of a monetary fine or penalty alone. Some states with administrative penalty authority have also employed the use of SEPs in their settlements. (124) Although these projects are required to be supplemental to other requirements, some contend that, in practice, inclusion of SEPs may result in lower monetary fines. The extent to which specific SEPs may have resulted in reduced monetary fines and penalties is not easily calculable.
Environmental Justice and Enforcement/Compliance
Environmental justice (EJ) has been an area of debate among industry and public interest groups, and ongoing concern highlighted in congressional hearings and legislation. For example, an administrative provision included in the Omnibus Appropriations Act, 2009 (P.L. 111-8, Title II), specified that none of the funds made available by this act may be used in contravention of, or to delay the implementation of, Executive Order No. 12898 relating to federal actions to address environmental justice in minority populations and low-income populations. (125) On August 4, 2011, the White House announced the signing of a Memorandum of Understanding (MOU) on Environmental Justice and E.O. 12898 by the heads of 17 federal agencies. (126) The MOU included a Charter to add more structure and efficiency to the Federal Interagency Working Group on Environmental Justice; processes and procedures to more efficiently assist communities, and guidance for agencies to better coordinate their EJ activities; and various commitments each agency will be responsible for meeting. Discussion of the full scope of issues and concerns regarding environmental justice is beyond the scope of this report. However, the following discussion briefly highlights environmental justice in the context of enforcement and compliance.
The terms "environmental justice (or injustice)" and "environmental equity (or inequity)" may be interpreted broadly to describe the perceived level of fairness in the distribution of environmental quality across groups of people with different characteristics. In this sense, the environmental impact of any human activity might be evaluated to determine the distribution of environmental amenities and risks among people categorized according to any population characteristic, including gender, age, race, place of residence, occupation, income class, or language. In the political context, however, emphasis generally is more on the distribution of health risks resulting from exposure to toxic substances in residential or occupational environments of different racial, ethnic, or socioeconomic groups.
The 1994 Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, directs each federal agency to "make achieving environmental justice part of its mission." (127) EPA is the federal agency with lead responsibility for implementing the executive order. EPA's Office of Environmental Justice (OEJ), located in OECA, is responsible for coordinating efforts to include environmental justice into policies and programs across the agency's headquarters and regional offices. (128) EPA's OEJ provides information and technical assistance to other federal agencies for integrating environmental justice into their missions, engages stakeholders to identify issues and opportunities, and administers EPA environmental justice grants. (129)
EPA incorporated Environmental Justice in its FY2011-FY2015 Strategic Plan as the Cross-Cutting Fundamental Strategy "Working for Environmental Justice and Children's Health." (130) EPA has initiated implementation of "Plan EJ 2014," a strategy for expanding its efforts to integrate environmental justice into its various programs and strengthen "the Agency's effort to improve the environmental conditions and public health in overburdened communities." (131) At the time this CRS report was updated, EPA was soliciting comment through July 6, 2012, on an "informational publication" entitled Creating Equitable, Healthy, and Sustainable Communities: Strategies for Advancing Smart Growth, Environmental Justice, and Equitable Development (132)
EPA's OEJ developed the Environmental Justice Strategic Enforcement Assessment Tool (EJSEAT). (133) EJSEAT remains a draft tool in development for internal EPA use only. OECA expects to use EJSEAT to "consistently identify possible environmental justice areas of concern," where potentially disproportionately high and adverse environmental and public health burdens exist, and assist EPA in making "fair" enforcement and compliance resource deployment decisions. (134) OEJ published a "Toolkit for Assessing Potential Allegations of Environmental Injustice," primarily to assist agency staff in assessing allegations of environmental injustice. (135) Citizens can evaluate overlap between environmental conditions and demographic characteristics by using EPA's EJView (formerly Environmental Justice Geographic Assessment Tool). (136)
Compliance Assistance and Incentive Approaches
A frequent criticism regarding implementation and enforcement of federal environmental requirements has been an emphasis, historically, on a "command and control" approach. In response to these criticisms, since the 1990s EPA and states have relied increasingly on compliance assistance to help the regulated community understand its obligations to prevent violations and reduce the need for enforcement actions, as well as to assist violators in achieving compliance. Many states have advocated compliance assistance and developed assistance programs designed to address specific environmental issues at the local level. (137)
EPA's Office of Compliance (OC) within OECA has introduced a number of compliance assistance programs, many of them developed in conjunction with support from the regions, states, and tribes. (138) Each EPA region has a designated Compliance Assistance Coordinator who serves as an "expert" within the region on compliance assistance priorities, strategies, and performance measurement. The coordinators work with subject-matter experts in the regions and at headquarters in the development of compliance assistance guides and workshops, and contribute to other assistance activities such as conducting compliance assistance visits. (139)
In addition to providing compliance assistance across the individual pollution control statutes, sector-based assistance is also provided. Developed and introduced in partnership between EPA, states, academia, environmental groups, industry, and other agencies, the National Compliance Assistance Centers provide sector-specific assistance. (140) There are currently 16 sector-specific web-based compliance assistance centers. As shown in Table 4 below, the sector-specific centers include agriculture, auto repair, chemical manufacturing, federal facilities, and local governments.
The use of compliance incentive approaches has been evolving. Incentives generally are policies and programs that may reduce or waive penalties and sanctions under specific conditions for those who voluntarily take steps to evaluate, disclose, correct, and prevent noncompliance. Examples include self-disclosure programs and related tools such as environmental audit protocols, Environmental Management Systems, and other innovation projects and programs designed to achieve environmental benefits.
One of the earliest formal EPA incentive approaches is the EPA Audit Policy--"Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations"--in effect since 1995.141 Under the policy, certain violations are voluntarily reported after being discovered through self-audit. In many cases EPA eliminates civil penalties, and may offer not to refer certain violations for criminal prosecution. In early 2007, EPA solicited comments on the question of to what extent, if any, the agency should consider providing incentives to encourage new owners of recently acquired facilities to discover and disclose environmental violations, and to correct or prevent their reoccurrence. (142)
To further promote compliance through the use of various incentive approaches, EPA encouraged incentive approaches as part of its core program guidance included in the OECA FY2012 (143) and FY2013 (144) National Pro gram Manager Guidance. The FY2013 guidance was distributed to Regional Administrators and State Environmental Commissioners in April 2012. However, EPA also continues to evaluate its various voluntary programs.
In March of 2009, for example, EPA notified participating stakeholders of its decision to discontinue the National Performance Track Program, which had been in place since July of 2000. (145) Designed as a private-public partnership to supplement EPA's existing regulatory activities, Performance Track encouraged facilities who met certain criteria (146) to voluntarily work toward environmental goals that were beyond the legal requirements. EPA reported that at the time of its termination on May 14, 2009, (147) the program had a total membership of nearly 547 facilities (including 82 new members in 2008) in 49 states and Puerto Rico. In her March 2009 memorandum to Performance Track stakeholders, (148) EPA Administrator Jackson announced her decision to halt the program "with the intent of refining those concepts that can lead us to a stronger system of environmental protection." EPA had conducted reviews of the Performance Track and the agency's environmental leadership programs in general.
EPA's reliance on incentive approaches has been met with some skepticism by those who favor more traditional enforcement. Critics are concerned that incentive and voluntary approaches subtract resources from an already limited pool of enforcement resources. EPA and other supporters of these approaches contend that they result in cost savings by reducing burdens on investigators, achieve desired environmental improvements, and allow for the leveraging of additional resources through partnerships. Aspects of EPA's incentive approaches have been the subject of reviews by EPA-OIG and GAO. (149)
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|Title Annotation:||Introduction-Enforcement Response and Compliance Tools|
|Publication:||Congressional Research Service (CRS) Reports and Issue Briefs|
|Date:||Jul 1, 2012|
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