Administrative Enforcement Process 1. Violation detected  NOV 2a. Settlement OR 2b. “hearing” Paper hearing or ALJ hearing 3. EAB 4. Judicial Review

Civil Judicial Enforcement Process 1. Violation detected  NOV 2a. Settlement OR 2b. Trial in court 3. Judicial Review

Enforcement XYZ Corp.: CAA and RCRA Unpermitted benzene vapor emissions for 8 weeks from 8 plant locations Failure to test benzene vapor pollution control equipment (“hoods”). Drums of liquid benzene wastes stored on site for 1 year Drums not properly stored Drums not properly labelled

Statutory Penalties – CAA 42 USC Sec. 7413 (d) Administrative assessment of civil penalties (1) The Administrator may issue an administrative order against any person assessing a civil administrative penalty of up to $25,000, per day of violation, whenever, on the basis of any available information, the Administrator finds that such person— (A) has violated or is violating any requirement or prohibition of an applicable implementation plan … (B) has violated or is violating any other requirement or prohibition of this subchapter …

Statutory Penalties – CAA 42 USC Sec. 7413 (b) Civil judicial enforcement The Administrator shall, as appropriate, in the case of any person that is the owner or operator of an affected source, a major emitting facility, or a major stationary source, and may, in the case of any other person, commence a civil action for a permanent or temporary injunction, or to assess and recover a civil penalty of not more than $25,000 per day for each violation, or both, in any of the following instances: (1) Whenever such person has violated, or is in violation of, any requirement or prohibition of an applicable implementation plan or permit. …

Statutory Penalties – RCRA 42 USC Sec. 6928 (d) Criminal penalties Any person who— (2) knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subchapter— (A) without a permit …shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed … five years … or both. (g) Civil penalty Any person who violates any requirement of this subchapter shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. Each day of such violation shall, for purposes of this subsection, constitute a separate violation.

Statutory Penalties – RCRA 42 USC Sec. 6928 (e) Knowing endangerment Any person who knowingly transports, treats, stores, disposes of, or exports any hazardous waste … who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be subject to a fine of not more than $250,000 or imprisonment for not more than fifteen years, or both. A defendant that is an organization shall, upon conviction of violating this subsection, be subject to a fine of not more than $1,000,000.

Civil Enforcement Statutory Factors the size of the business the economic impact of the penalty on the business violator's compliance history good faith efforts to comply duration of violation economic benefit to violator of noncompliance seriousness of the violation other matters as justice may require How did the court in the Cedar Point Oil case use these factors?

How does EPA decide what penalty to seek? Preliminary deterrence amount Gravity component Economic benefit (BEN)

Economic benefit: Money never spent (O&M) Time value of money spent late (capital) XYZ Corp? Chemical company example? Gravity component Seriousness of harm Importance of regulatory scheme Size of violator

How does EPA decide what penalty to seek? Preliminary deterrence amount Gravity component Economic benefit (BEN) Adjustment factors SEPs Should EPA insist upon highest possible civil penalty? Should it always recover economic benefit?

Judicial Enforcement Actions: Civil and Criminal

Civil Administrative Enforcement Actions

Civil Judicial Penalties (Avg. 1994-99, $ millions) Avg. total = $69.5 million/year

Civil Administrative Penalties (Avg. , 1995-99 $millions), Avg Civil Administrative Penalties (Avg., 1995-99 $millions), Avg. Total = $33.78 million/yr.

Criminal Penalties, Avg. 1995-99 ($millions) Avg. Total = $84.7 million/year