1. Organization and Structure of the U.S. Legal System
Enforcement of Environmental Law
Basic Legal and Program elements

2. Overview
One National Government, 50 state governments, 6 commonwealths/territories.
How do we avoid confusion from so many governments enacting and enforcing conflicting environmental laws?
United States Constitution Establishes Basis for Federal-State Relations

3. Constitutional Basis for United States Federal System of Government
The U.S. Congress has specified powers under the Constitution.
Congress has the authority to regulate matters affecting interstate commerce.
Most U.S. pollution statutes viewed as regulating matters affecting interstate commerce.
A basic assumption of American constitutional law is that the U.S. Congress has limited powers. The federal government does not necessarily have the power to take any action that it deems in the public interest. Since the federal government is a government of limited, delegated powers, its authority to enact a law must be based on a specific power given to it in the U.S. Constitution.
One of the most important of these powers is the power given to Congress to regulate matters affecting interstate commerce. Statutes involving pollution often are enacted based on this power to regulate interstate commerce. Pollution often has interstate consequences. In addition, regulation of the industry, automobiles, and other sources of pollution is viewed as have important consequences for interstate commerce.
One other important source of authority for the U.S. Congress to enact environmental laws is the provision giving it authority to rules with respect to the property belonging to the United States. The U.S. Government controls almost 73 million hectares of land in the United States and can enact environmental and natural resources laws and regulations with respect to that land.

4. Ability of U.S. States to Enact Environmental Laws
States may enact their own environmental laws that:
Do not burden interstate commerce
Do not conflict with federal law.
States also adopt regulations in order to have authority to implement federal environmental statutes within their state.
The fifty states in the United States have the ability to enact laws governing activities within their state so long as the law does not fall within one of the authorities that the U.S. Constitution specifically reserves for the U.S. Congress. Even though the U.S. Congress may enact laws to protect the environment under its Commerce Clause authority, the states can also enact environmental laws. However, they may not discriminate against interstate commerce. For example, the U.S. Supreme Court, our highest court, struck down a New Jersey law that prohibited the import of most waste originating from another U.S. state (City of Philadelphia v. New Jersey (1978)). In addition, the state environmental law may not conflict with an environmental law passed by our federal government. For example, if a state enacted an air pollution law that set looser standards than federal air pollution law, the state law would be “pre-empted” by federal law because it conflicts with the tighter air pollution standards enacted by the federal government.
States also are given important responsibilities in most of the U.S.’s environmental statutes in order to implement the federal environmental

5. Clean Air Act—one example of how states implement the federal program
Clean Air Act requires EPA to establish national air quality standards for pollutants that endanger public health or welfare.
Each State is required to submit a state implementation plan (SIP) to achieve the standards within its boundaries.
EPA approves the SIP if it satisfies statutory criteria.
Once EPA approves plan, it is enforceable as both federal and state law.
The Clean Air Act provides one example of a federal law that imposes requirements on states to enact certain environmental standards to carry out the federal program. Although the Clean Air Act is a federal law that applies to the entire country, the states do much of the work to implement the Act. EPA establishes national ambient air quality standards (NAAQS) for air pollutants that endanger public health or welfare. In order to take over compliance with the Clean Air Act within their state, States must write and submit a state implementation plan (SIP) to the EPA for approval that specifies how they will achieve attainment of the NAAQS within their state. The SIP is comprised of the regulations that the state will use to clean the air in areas that are not attaining NAAQS or that will enable areas already meeting the NAAQS to continue to comply with the law. By giving states the lead in coming up with the plan to achieve air quality standards, the law recognizes that air pollution control in the many different parts of the country requires an understanding of local industries, geographic and weather conditions, housing patterns, etc. The U.S. EPA must approve the SIP. The most important condition for approval is that the SIP provide for attainment of NAAQS as expeditiously as practicable. Once EPA approves a state plan, it is enforceable not only as state law, but also as federal law.

6. Implementation and Enforcement of Environmental Laws
U.S. government can take over permitting authority if state permit inappropriate.
U.S. may enforce violations of U.S. environmental laws either administratively, or via judicial action in federal court for civil or criminal enforcement.
State governments issue permits, monitor compliance, and have enforcement authority under most federal environmental statutes.
If EPA approves a state’s permit program, it has the authority to issue permits to businesses or others who may discharge or emit pollutants that are regulated by U.S. laws. However, EPA may review and disapprove permits that a State is considering issuing. For example, under the Clean Water Act, a business that plans to discharge pollutants to waters of the United States must submit a permit application to the permitting authority 180 days prior to beginning to discharge or prior to expiration of a permit. EPA will authorize a state to administer the Clean Water Act (NPDES) program if it can demonstrate that it has a program that is at least as stringent as EPA’s regulations. If an approved state receives a permit application, EPA has oversight authority. If EPA is not satisfied that a permit will bring about compliance with water quality standards and other requirements of the CWA, EPA may object to the state permit and issue its own permit.
The Clean Water Act gives states primary responsibility for enforcing the NPDES permits issued by states. However, EPA may take over enforcement if a state fails to enforce permit requirements or fails to pursue someone who is discharging without a permit.

7. State and Federal Environmental Enforcement
State, Tribal, and local enforcement actions.
EPA and other agencies bring administrative enforcement actions.
Civil enforcement actions brought by the Department of Justice on behalf of EPA and other agencies.
Criminal enforcement actions for most serious violations.
Environmental enforcement is often described as a huge pyramid of actors and actions from a quantitative perspective. At the base of the pyramid are state, tribal, and local prosecutors and attorneys general, and also citizen groups. They engage in a wide variety of enforcement actions, from issuing simple citations to compliance orders, permit revocations, to formal civil or criminal proceedings before administrative tribunals or in state or federal court. This accounts for the largest number of environmental enforcement actions.
Next level of pyramid comprised of federal administrative agency actions. EPA exercises primary enforcement authority for most of the environmental protection laws, including CAA, CWA, OPA, SDWA, RCRA, CERCLA, and others. Other agencies such as Coast Guard, Army Corps of Engineers and others may also bring administrative enforcement actions.
Most of the environmental statutes also provide for civil and criminal enforcement in federal courts. These judicial enforcement actions are brought by the Dept. of Justice. Criminal prosecutions of environmental laws usually focus on conduct that presents an endangerment, demonstrates a disregard for human safety or environmental integrity, or reflects a pattern of dishonest or false conduct.

8. Civil Administrative Enforcement of Environmental Laws

9. 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.
Most of the federal environmental statutes provide EPA or other agencies which may have authority with the ability to take administrative enforcement action. They may issue emergency orders to prevent risks to public health; cleanup, corrective action, or compliance orders to address ongoing releases or violations; and formal administrative complaints, usually adjudicated by an administrative law judge, for an assessment of a civil penalty and other relief.
It’s important to note that in many instances an environmental violation could be enforced by either the state government or by EPA. EPA frequently confers with state enforcement authorities on potential violations and discusses which may pursue enforcement action for a particular violation. In some instances both the state and federal government pursue enforcement action.

10. 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

11. Administrative Process cont.
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, DOJ must take action judicially.
Does not require coordination with separate prosecutorial agency (DOJ)

12. Administrative Process cont.
Formal cont..
- 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

13. Administrative Process cont.
Formal cont..
- 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

14. 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).
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.

15. Roles/Responsibilities
Headquarters and Regions: Same as for Civil Judicial Enforcement.
Staff are the 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.

16. Overview of Civil Judicial Enforcement

17. Civil Judicial Enforcement
Who may file civil judicial environmental enforcement actions in U.S.?
Federal Government
State Governments
Citizens
Indian Tribes, directly or through citizen suit provisions.
Virtually all federal environmental laws provide for civil judicial enforcement by the federal government to pursue injunctive relief, civil penalties, recovery of government response costs, enforcement of government administrative orders, or other relief.
Most U.S. Environmental statutes have provisions enabling claims to be brought by states. In addition, many of them, including CWA, CAA, and RCRA, allow for citizen suits. In citizen suits, citizens are bringing suit essentially as “private attorneys general.” As such, they are not able to keep the penalties that they obtain. Civil penalties in actions brought by the federal government and citizens go into the U.S. Treasury. States can keep penalties that they are awarded in cases.
Tribes have direct rights under some statutes. For example, under CERCLA, Tribes are trustees for natural resource damages within tribal lands or where they have traditional hunting and fishing rights. They can sue alongside federal and state governments and are a co-sovereign pursuing claims.

18. Civil Judicial Enforcement by U.S.
Who Brings the Action?
Department of Justice Environment and Natural Resources Division (ENRD).
On Behalf of Whom?
Client Agencies—EPA, Coast Guard, Fish and Wildlife Service, Forest Service, other agencies.

19. Civil Enforcement Process
ENRD’s Environmental Enforcement Section handles most civil enforcement
Organized into litigating groups handling cases from specific EPA Regions
Most attorneys in Washington, DC, but handle cases across the U.S.
The Environmental Enforcement Section (EES) handles most of the civil environmental enforcement cases referred to ENRD by EPA and other agencies. The Environmental Defense Section primarily defends the U.S. government when it is sued; however, it also brings affirmative litigation in cases involving violation of laws protecting wetlands in the U.S. U.S. Attorneys offices also handle some environmental enforcement cases. U.S. Attorneys are local federal prosecutors who are stationed in the 94 federal district courts spread across the country.

20. Civil Enforcement – Referral Process
Referrals primarily from EPA/agency regional offices.
Referral “litigation report” includes:
Proposed defendant
Violation and the basis for the claim
Evidence supporting claim
Anticipated defenses
Relief sought by agency.
As previously stated, EPA has both a central headquarters in DC but also 10 regional offices across the country. The regional offices investigate and develop most referrals of civil enforcement actions, although OECA in EPA HQ also refers some cases.
As we also explained, EPA must determine whether it wants to pursue a matter through administrative or civil enforcement. Factors include:
Fact that some statutes put limit on amount of monetary penalties that may be recovered.
Whether violation is sufficiently egregious or repetitive to call for greater deterrent impact of civil enforcement
Whether the case will require long-term or complex compliance measures
Whether case has important legal implications or may establish useful new precedent.
DOJ doesn’t have own investigators—agencies investigate cases. When EPA decides to pursue judicial enforcement, it prepares a referral package that it sends to DOJ.

21. Referral Process Reviews Referral to see if:
When DOJ Receives Referral:
Reviews Referral to see if:
Ongoing violations that present immediate risk to human health, environment
Imminent statute of limitations deadline.
DOJ makes independent review of referral as an internal governmental check.
When DOJ receives a referral it conducts an immediate review to see if there are needs to immediate or priority action, including urgent situations where ongoing violations present an immediate risk to human health or the environment. In those situations, DOJ will give the case high priority review to see if injunctive relief is appropriate. There may also be looming deadlines—statute of limitations may be about to expire, or a bankruptcy claim deadline.
After that review, the case is assigned to an attorney in the appropriate litigating group. That attorney makes her own independent review of the referral to determine whether the claims are valid and the evidence is sufficient. The DOJ lawyer must also be sure that the positions being taken in the case are consistent with those taken in other cases and are consistent with the overall goals of the executive branch.
DOJ/ENRD attorneys and EPA attorneys will usually engage in extensive discussion of the referral by phone or in person to discuss the potential claims and the supporting evidence. Sometimes DOJ may suggest that further investigation or evidence is necessary before the case will be filed. DOJ and EPA attorneys usually develop working relationships over the years and work together to make sure the evidence is as strong as possible before the case is filed.

22. DOJ Review of Referral If DOJ counsel recommends filing case:
Prepares a complaint
Approval and briefing memo
Submitted to ENRD management. Must ultimately be approved by Assistant Attorney General or person with approving authority.
Although DOJ litigates, it continues to work with EPA throughout trial and settlement.

23. DOJ Action Pre-filing
Prior to filing complaint, DOJ must give prospective defendant notice of claim and opportunity to settle.
Many statutes require pre-filing notice to state agency.
State may file own complaint and litigate jointly with U.S.
Prior to filing a complaint that has been approved by the AAG, DOJ is subject to an executive order requiring that we provide advance notice to the defendant of the proposed claims and give them an opportunity to settle. Frequently these pre-filing discussions may lead to productive settlement discussions. However, DOJ tries to keep a deadline on such prefiling settlement discussions and sets a deadline for filing suit if discussions are not resolved.
In complex cases, these pre-filing discussions may extend for quite a period of time. For example, EPA has been pursuing municipalities around country whose aging sewer systems discharge sewage, sometimes mixed with stormwater, into rivers, lakes and bays. These cases involve very costly and complex injunctive relief. Frequently EPA and DOJ together negotiate for many months or even over a year to try to achieve settlement prior to filing suit.
In CERCLA cases, DOJ and EPA attempt to negotiate RD/RA consent decrees prior to filing complaints. EPA has a deadline for negotiating such settlements, but the deadline can be extended if discussions are productive.
Many statutes also require DOJ to notify the State regulatory agency. DOJ also notifies the State Attorney General and give it an opportunity to join in the litigation. In last 6 or 7 years, we have brought joint enforcement actions with at least 48 of the 50 states.

24. Civil Complaint
Complaint filed in federal district court where company located or where violation occurred.
Complaint includes:
On whose behalf complaint filed
Short statement of nature of action
Basis for court’s jurisdiction and venue.

25. Civil Complaint Complaint includes, cont.
Summary of statutory, regulatory, and factual background
Claims for relief
Prayer for relief, including:
Injunction to stop illegal action, require defendant to correct damage, or come into compliance
Civil penalty
Reimburse Government for expenses.

26. Claim for Injunctive Relief
Preliminary injunction or temporary restraining orders sought:
Where unlawful conduct must be stopped immediately
Company facing substantial environmental liabilities seeks to sell largest asset for inadequate value.
If the violations that are the subject of a complaint are ongoing, an injunction will be sought to stop the violations and prevent further harm to the environment or public health. In cases where unlawful conduct must be stopped immediately, the government will seek a temporary restraining order or a preliminary injunction.
Examples:
U.S. v. Penn Hills (W.D. Pa.) pollutants were being discharged immediately upstream of a drinking water intake in a river.
U.S. v. Asarco (D. Ariz.) a company facing substantial environmental liabilities proposed to sell its largest asset to a foreign company related to defendant and to sell it for inadequate value, thus dissipating assets that could be used to address environmental liabilities.

27. Claim for Injunctive Relief
Longer term injunctive relief:
If violations not stopped immediately, we ask court to impose compliance schedule, interim measures.
Mitigation measures where stopping violations will not fully redress harm caused.
If the violation cannot be stopped immediately, the court will be asked to impose a compliance schedule, requiring the defendant to come into compliance as quickly as feasible. We will also ask the court to order defendant to take interim measures to reduce the severity of violations. Examples: Muni sewer system cases, power plant cases where costly and extensive control technology must be installed.
Sewer cases involve both interim measures and long-term control plans to address unauthorized discharges from sanitary sewer collection and treatment systems. Compliance plans may include requiring defendant to apply for applicable permits, install or upgrade pollution control equipment, change its methods of operations, or improve O&M procedures.
Where defendant’s cessation of violations and future compliance with the law will not fully redress the harm its violations have caused, ENRD seeks injunctive relief to mitigate the injuries caused by the polluting event.
Examples: In oil spill cases, we will request that defendants be ordered to cleanup the spill and to address injuries the spill caused.
In CWA case involving defendant illegally filling in a wetland, defendants are usually ordered to remove the fill.
RCRA illegal dumping cases, defendants required to undertake corrective action to address threats posed by discarded wastes.
Even where pollution is dissipated may seek mitigation to address harm caused by violation. For example, where defendant sold heavy duty diesel engines that violated CAA emission requirements, defendant was required to produce and sell cleaner engines than required under EPA regulations.

28. Penalty Demand and Government Costs
Environmental laws set maximum penalty amounts and specify factors for courts to consider.
Recovering economic benefit of noncompliance essential.
Civil penalties are paid to U.S. Treasury.
Many statutes also allow government to recover costs – CERCLA for example.
Also may recover natural resource damages.
As an example, Section 113(e) of the CAA requires the court, in imposing a civil penalty, to consider “the size of the business, the economic impact of the penalty on the business, the violator’s full compliance history and good faith efforts to comply, the duration of the violation, the economic benefit of noncompliance, and the seriousness of the violation.
Disgorgement of the economic benefit is essential to ensure a level playing field among regulated entities; otherwise, the violator will have profited from its violations and placed its competitors at a disadvantage. For this reason, economic benefit usually serves as a floor below which the penalty should not be mitigated. Atlantic States Legal Foundation v. Tyson Foods, 897 F.2d. 1128, 1141 (11th Cir. 1990); U.S. v. Smithfield foods, 191 F.3d 516 (4th Cir. 1999).
DOJ, in consultation with EPA, will determine an appropriate penalty range for a case. EPA uses its penalty policies as a guide in administrative enforcement cases as well as in its recommendations to DOJ on the appropriate penalty in civil enforcement. While neither the penalty policies nor the BEN model is used as evidence in a federal court, they are frequently used to assist in determining an appropriate pre-filing settlement number.

29. Procedural Rules in Civil Enforcement
Governed by Federal Rules of Civil Procedure
Discovery
Initial Disclosures
Written Interrogatories
Requests for Production of Documents
Requests for Admissions
Depositions
Disclosure of expert testimony
Civil environmental enforcement cases brought by the U.S. are governed by the Federal Rules of Civil Procedure, which applies in all federal civil litigation in the U.S.
The federal rules provide tools for discovery of evidence.
The parties must in an early stage of the case make Initial Disclosures, identifying (a) the name, address, and telephone number of each individual likely to have discoverable information and the subjects of that information, that the disclosing party may use to support its claims or defenses,
(b) A copy or a description by category and location of all documents that the disclosing party has in its possession that it may use to support its claims or defenses (c) a computation of each category of each category of damages claimed by the disclosing party, and (d) any insurance agreement that may be used to satisfy all or part of a judgment.
Interrogatories—25 written questions. They must be answered by the party to whom they are directed, and must be answered in writing and under oath.
Requests for production of documents (Rule 34) may request documents, data, or tangible things.
Requests for Admissions (Rule 36) A party can request that the other party admit the truth of any matters relating to facts, the application of facts to law, or opinions about either, and request admission of the genuineness of a document.
Depositions– Attorneys may depose any person, including a party, by asking questions under oath before a court reporter taking a transcript. Can request documents in conjunction with depositions.
Parties must have their experts prepare reports that summarize all of the opinions that they will provide at trial, as well as the basis for them.

30. Case Management
U.S. frequently asks for bifurcation by the court in a case management order.
In CERCLA cases, U.S. asks for trifurcation.
Cleanup decisions in CERCLA and oil pollution cases based on administrative record.
As a case management device, the U.S. often asks for bifurcation in non-CERCLA enforcement cases. Bifurcation means that a case management order provides that liability will be decided first, and that discovery in the first phase will be limited to those issues, with the second phase addressing remedy and penalty. This organizational tool keeps discovery focused on the issues that the court must consider sequentially. It is useful when we litigate against big defendants with major law firms who may try to overwhelm government attorneys with discovery requests about all aspects of the case. Bifurcation also advances judicial economy—the judge is not asked to rule on discovery disputes and motions on issues that may not come up in the case unless liability is established.
In trifurcation, a third phase is added to address the statutory contribution claims of persons found liable in the first phase by allocating recoverable response costs as determined in the second phase among themselves and any third-party defendants.
In CERCLA and OPA cases, the government will submit and certify the administrative record on which the decision was made and move to limit discovery and restrict the court’s review to the administrative record.

31. Trial or Settlement in Civil Enforcement
Majority of cases still settle before trial.
Settlement embodied in consent decree.
Settlements “lodged” with court and made available for public comment.
U.S. carefully reviews comments, moves to enter only if appropriate.
Even after we file suit, the vast majority of civil judicial enforcement cases settle before going to trial. However, EES has trials rather frequently. In 2004, they had trials beginning once ever six to seven weeks. That statistic is still probably accurate. In trial for civil penalties, defendants have a right to jury trial. However, most enforcement cases are tried to the court.
Resolution of a settlement is often preferable to litigating a case to judgment because it minimizes transaction costs, conserves resources of the parties and the court, and can expedite compliance, cleanup, or other relief. Settlement also allows parties greater flexibility in fashioning relief that meets their mutual needs than if matter fully litigated. For example, SEPs are permissible as part of a project but cannot be ordered as relief by the court.
Settlements are embodied in CDs, which Pam discussed with you the other day. We frequently make use of model CDs as the basis on which we prepare CDs in individual cases. They include model terms and serve as a basis for expediting negotiation of settlement. They also help to ensure a consistency in the terms of settlements, and help to ensure defendants they are not getting a worse deal than other similarly situated parties.
CDs include injunction requiring defendant to cease its illegal conduct; to undertake cleanup, corrective action, or other measures to mitigate harm caused by violations; or to implement a compliance plan to ensure the violations will cease within a reasonable time. Details of compliance plans are often set forth in work plans, statements of work, and technical appendices attached to the CD. These can frequently be hundreds of pages in length and are very specific.
Environmental audits often included in settlement
Also include civil penalty that goes to U.S. Treasury.
A defendants ability to pay is taken into account. Goal is not to put a legitimate enterprise out of business.
Settlements are lodged with the court and we ask the court not to act on the CD until we publish a notice in federal register and make the CD available to the public comment for 30 days. The U.S. carefully reviews comments to CDs and sometimes changes settlement terms in response to comments. When we file a motion to the Court to enter the CD, we summarize the public comments we receive and respond to comments particularly negative ones.
Courts enter CDs if they are fair, reasonable, and in the public interest. An entered CD is a court order that can be enforced in subsequent actions.

32. Administrative vs. Civil Judicial Enforcement
Some statutes impose caps on amount of civil penalties that may be assessed administratively.
Violation is sufficiently serious or repetitive, meriting the greater deterrent impact of civil enforcement.
Violation requires long-term or complex compliance measures.
Violation is part of an enforcement initiative or is otherwise important.
The Department of Justice’s Enforcement Division (ENRD) does not have investigative staff to investigate and develop evidence that leads to enforcement actions. EPA and other federal agencies investigate potential violations and develop the evidence and refer matters to ENRD for civil enforcement.
As you’ll learn in the next session, EPA has regional offices that develops most civil enforcement referrals. When EPA gathers evidence of a potential violation, it must determine whether to pursue the matter through administrative enforcement or to refer it for civil (or possibly even criminal) enforcement. There are various factors that EPA considers. Some statutes set caps on the amount of civil penalties that may be assessed in an administrative enforcement action. For example, the Clean Air Act sets a $200,000 cap on the civil penalty that EPA may obtain administratively, unless EPA obtains ENRD’s permission to waive the cap. The CWA also has a cap for certain types of violations.
EPA may also want to refer a violation for civil judicial enforcement because the violation has been repetitive or continued over a long period of time. As a result, EPA may believe that the violation merits the greater stigma and attention relating to a complaint being filed in federal court. In addition, EPA may decide that the violation will require long-term compliance measures that should be incorporated into a judicial order, so that violations of specific provisions can be brought to the court’s attention so the court will order compliance.
Finally, EPA may refer a violation to DOJ because it is part of an important enforcement initiative. For example for the last several years EPA has referred to DOJ cases involving air violations at petroleum refineries. Such violations were viewed as widespread, and EPA made an effort to ensure complete compliance across the industry with companies required to comply with judicially approved consent decrees resulting from civil enforcement actions.

33. Trends in Civil Enforcement
More multi-facility settlements.
Industry-wide enforcement efforts.
Enforcement actions to change company practices.
Multi-media settlements
Since late 1990s EPA has improved targeting of violations and priority setting in enforcement cases. EPA used to refer a large number of smaller cases to DOJ for enforcement, such as illegal removal of asbestos materials from a single construction site, in violation of CAA. Many of these smaller cases are now being handled administratively by EPA, enabling DOJ to focus on the higher priority cases that EPA has identified through its targeting efforts. EPA identifying patterns of noncompliance that result in significant threats to human health and the environment. EPA has also shifted its investigation to violations that result in significant emissions of pollution having widespread impact—the resulting enforcement cases can bring about significant reductions in pollution.
In January 2010 we lodged two Clean Air Act settlements with Saint-Gobain Containers, Inc., the nation’s second largest container glass manufacturer, and the Lafarge Company, the nation’s second largest manufacturer of Portland cement. Both companies were alleged to have violated requirements that companies install air pollution control equipment when they construct new plants or modify existing plants. After negotiating with the companies, we achieved company-wide settlements with both Saint-Gobain and Lafarge at 28 plants nationwide. We were joined in these settlements by 17 states and two local air pollution control agencies where the companies had plants. St. Gobain agreed to install air pollution control equipment at an estimated cost of $112 million, and LaFarge agreed to install air pollution control equipment at an estimated cost of $170 million. It is estimated that as a result of these settlements, emissions of sulfur dioxide, nitrogen oxides, and particulate matter from all of the facilities will be reduced by a combined 41,000 tons per year. The companies also agreed to pay over $7 million in fines to federal and state officials.
here are a number of trends in civil enforcement that I want to bring to your attention.
DOJ has also brought enforcement actions on behalf of EPA to bring about changes in practices by major corporations that resulted in environmental violations on a regular basis. For example, Home Depot and Walmart are very large corporations that build “big-box” stores—very large stores with big parking lots. These companies in the past did not take measures to ensure that stormwater runoff from their construction sites did not contaminate rivers, lakes and other water bodies—such contaminated water adds silt and particulate matter pollution and harms fish habitat among other things.
IN 2008 WE entered
A CONSENT DECREE WITH HOME DEPOT UNDER WHICH THE COMPANY AGREED TO PAY A $1.3 MILLION PENALTY AND IMPLEMENT A NATIONWIDE COMPLIANCE PROGRAM. THE SETTLEMENT RESOLVES ALLEGED STORMWATER VIOLATIONS DISCOVERED AT MORE THAN 30 CONSTRUCTION SITES IN 28 STATES WHERE NEW HOME DEPOTS WERE BEING BUILT. THIS SETTLEMENT, JOINED BY THE STATE OF COLORADO, REQUIRES THAT HOME DEPOT IMPLEMENT A COMPREHENSIVE CORPORATE-WIDE PROGRAM TO PREVENT STORMWATER POLLUTION AT EACH NEW STORE IT BUILDS NATIONWIDE. THE ENVIRONMENT DIVISION ENTERED INTO A SIMILAR CONSENT DECREE WITH WAL-MART IN 2005 UNDER WHICH WAL-MART ESTABLISHED A COMPREHENSIVE STORMWATER COMPLIANCE PLAN AND PAID A FINE OF OVER $3 MILLION.
In 2007 entered into a settlement with Equistar Chemicals involve multi-media violations –meaning violations of more than one environmental statute. The case was brought for MYRIAD AIR, WATER, AND HAZARDOUS WASTE VIOLATIONS. SECOND, IT INVOLVED SEVEN PETROCHEMICAL PLANTS IN TEXAS, ILLINOIS, IOWA, AND LOUISIANA. EQUISTAR WILL SPEND MORE THAN $125 MILLION ON POLLUTION CONTROLS AND EQUIPMENT TO IMPROVE OPERATIONS. BUT IT WILL ALSO CONDUCT A NUMBER OF ENVIRONMENTAL AUDITS TO IDENTIFY ADDITIONAL PROBLEMS AND REPORT ITS FINDINGS AND PROPOSED CORRECTIVE MEASURES TO EPA AND STATE REGULATORS. EQUISTAR WILL ALSO PAY A $2.5 MILLION PENALTY AND SPEND $6.56 MILLION ON SUPPLEMENTAL ENVIRONMENTAL PROJECTS. FINALLY, IT IS A SETTLEMENT JOINED BY THREE STATES: IOWA, ILLINOIS, AND LOUISIANA.
In past EPA would refer for civil enforcement cases involving single violations of a particular statute, or multi violations of one statute (such as CAA) at a single facility. Increasingly, we are investigating patterns of violations that require more comprehensive relief.

34. Incentive Programs

35. 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.

36. Incentive Programs cont.
Expedited Enforcement Settlement Offers (Administrative only)
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.