Civil Administrative Enforcement of Environmental Laws

Direct Authority This is authority granted by the legislature to the Administrator of EPA. May order compliance and/or a penalty for noncompliance. May be delegated by the Administrator. May take many forms, often creative. No need to go to Federal Court.

EPA Civil Administrative Enforcement Process Informal – Action taken by Agency based on its own authority to inform facility of violation and potential enforcement (e.g., Warning Letters, Notice of Violation) – Used as first response with escalation to formal enforcement if action fails to achieve desired response

Administrative Process con’t. Formal – Established process whereby legal action can be taken via an EPA administrative system that allows EPA to enforce environmental statutes through either unilateral or consent orders Administrative Compliance Orders (ACOs) used to compel facility to comply with environmental requirements on an established schedule Administrative Penalty Orders (APOs) used to assess penalties Orders not self-enforcing. If facility does not comply, EPA must take action judicially – Does not require coordination with separate prosecutorial agency (DOJ)

Administrative Process con’t. Formal con’t. - Parties receiving ACOs/APOs may request hearing before specialized Administrative Law Judge (ALJ) with environmental expertise Certified by Office of Personnel Management and appointed in accordance with 5 U.S.C. § They have decisional independence pursuant to Section 557 of the Administrative Procedure Act, 5 U.S.C. § 557 which ensures fair and impartial resolution of proceedings. ALJs conduct hearings, render decisions, and issue final orders - ALJs offer all litigants opportunity to resolve enforcement cases through Alternative Dispute Resolution with ALJ serving as a neutral If litigant declines, case assigned for litigation before another ALJ

Administrative Process con’t. Formal con’t. - ALJ decisions subject to review by Environmental Appeals Board (EAB) ALJ initial decision becomes final EPA order within 45 days after service upon parties unless a party appeals to EAB or EAB elects to review initial decision. - EAB is impartial body independent of all Agency components outside the immediate Office of Administrator - Parties can appeal EAB decision judicially - Regional Judicial Officers (RJOs) perform adjudicatory functions and act as Agency neutrals in administrative cases. Generally, senior EPA attorneys

Advantages of Administrative Process Appropriate for routine, relatively simple violations requiring limited injunctive relief and/or short compliance schedules – Some statutes limit time allowed for injunctive relief (e.g., CAA allows administrative order if relief sought can be completed within 1 year) Appropriate with smaller penalties – Some statutes establish penalty cap (e.g., CAA cap is $200,000, but can be revised with DOJ consent) – By comparison, single largest civil judicial penalty >$30M; whereas, total administrative penalties assessed in FY 2009 were ~$32M Enables Agency to address broader range of violations and maintain greater field presence with limited resources Less costly and time-consuming than judicial approach with violations resolved more quickly

Roles/Responsibilities Headquarters and Regions: Same as for Civil Judicial Enforcement – Staff are same – Enforcement Response Policies, Penalty Policies and calculations are same States/Locals/Tribes: Not involved in administrative enforcement – EPA communicates and coordinates with agencies – Some have independent administrative authority Citizens: – Can not bring cases administratively, but may comment on settlement proposals

Incentive Programs Programs available for both civil and administrative enforcement Self Disclosure Policy – Must meet specified criteria: systematic, voluntary, independent discovery; independent, prompt disclosure; prompt correction; cooperation; prevent recurrence – Reduced gravity component of penalties – Agreement to not prosecute criminally Small Business Policy – Applies Self Disclosure Policy to businesses with 100 or fewer employees

Incentive Programs con’t. Expedited Enforcement Settlement Offers – Offer very small penalty to first time violators if they come into compliance quickly (usually within 30 days) – Facility required to submit documentation to demonstrate that in compliance Supplemental Environmental Projects (SEPS) – Facility voluntarily agrees to undertake environmentally beneficial project related to the violation in exchange for mitigation of penalty – Does not include activities that violator must take to return to compliance