Title: Enforcement and the EPA
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 Material Information
Title: Enforcement and the EPA
Physical Description: Book
Language: English
Publisher: National Law Journal Staff Reporter
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Enforcement and the EPA (JDV Box 91)
General Note: Box 23, Folder 1 ( Miscellaneous Water Papers, Studies, Reports, Newsletters, Booklets, Annual Reports, etc. - 1973 -1992 ), Item 48
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004545
Volume ID: VID00001
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ENFORCEMENT





AND THE EPA


The pressures are mounting for
the federal agency to deal more

harshly with violators.

BY MARIANNE LAVELLE
National Law Journal Staff Reporter

WASHINGTON Following through on President
Bush's campaign pledge made on the dusky banks of
Boston Harbor, the administration is moving to re-
store the power and credibility of the government's
pollution police.
But the size of that job only now is becoming
apparent as the effects of Reagan-era decisions by
the Environmental Protection Agency come into fo-
cus. Federal environmental enforcement muscle so
atrophied during the 1980s that the task of rebuild-
ing it is truly monumental, a diverse array of ob-
servers agrees.
The most comprehensive critique of the EPA's
fines, enforcement and litigation practices yet as-
sembled comes from the Environmental Protection
Agency's own watchdog. Inspector General John C.
Martin. In a series of reports issued between 1986
and 1989, the inspector pinpointed dramatic in-
stances in which the government took no action
against polluters, or levied paltry penalties, or nego-
tiated away the fines it originally proposed.
Echoing those conclusions are environmentalists
and Congress' General Accounting Office, which re-
cently completed studies warning that current EPA
enforcement efforts will not suffice in
the 1990s, as anti-pollution laws get
tougher and the temptation to violate
grows with the cost of compliance.
"There are few cops on the street,
and those who are there are writing
warning tickets, not penalty tickets,"
says Eric Olson, attorney with the Na-
tional Wildlife Federation. His group
sued the EPA to force tougher enforce-
ment of safe drinking water laws, after
it conducted a study showing tens of
thousands of violations going unpun-
ished. NWF v. EPA, 90-1072. (D.C. Cir.)
Lawyers representing companies
that bear the brunt of EPA enforce-
ment of federal regulations have their
own reasons for criticizing the agency.
One of them, Kevin A. Gaynor of Wash-
ington, D.C.'s Venable. Baetjer. How-
ard & Civiletti, says the EPA's policing
system is "plagued by a disjointed and
inefficient decision-making process."


Industry fears that past weakness
and inconsistency in EPA enforcement
has caused a backlash. The wide-
spread perception that pollution of the
water, air and land has been ignored is
leading Congress toward more strin-
gent environmental laws for exam-
. pc. the proposed strengthening of the
Clean Air Act and the elevation of the
EPA to a cabinet-level agency. States
and municipalities also have been
prompted to strengthen their laws and
enforcement, while citizen groups in-
creasingly have initiated their own le-
gal action.
Meanwhile, newly unleashed federal
regulators are seeking alternatives -
including the threat of jail to the
traditional and controversial weapon
of EPA enforcement: the fine.
EPA's Record
In its defense, the EPA boasts of a
surge in enforcement in the past two
years collecting $35.1 million in civil
penalties in fiscal year 1989, second
only to the record $36.8 million ob-
tained the previous year. The agency
initiated 4,136 administrative actions
against violators in 1989, a 34 percent
jump over the previous year. In fact, 75
percent of all penalties levied in the
agency's 18-year history were imposed
between 1985 and 1989. (See "Agency's
Cops Grow Tougher," Page 50.)
In 1989, the EPA collected some of
the largest fines in its history a $2.8
million judgment against an Indiana
landfill operator and a $1.1 million levy
against Denver-area sewage systems
for pollution of the South Platte River.
But despite the upswing in police activ-
ity, fines are a pittance compared to
the cost of complying with the law.
The U.S. Department of Commerce
estimates that industry spends about
$70 billion a year to bring its opera-
tions up to environmental standards.
In one case alone last year the Den-

ver-area sewage action it was esti-
mated that authorities would have to
pay $30 million to improve their equip-
ment practically EPA's total fine







bounty for 1989. (Authorities agreed to
spend that money only after enforce-
ment pressure by the EPA.)
The fines the agency assessed on the
average $57,025 for Clean Water Act
violations, $69,129 for smokestack air
pollution create an atmosphere in
which it is cheaper for industry to pay
the levy than obey the law, many ob-
servers say. ("The Price of Polluting,
EPA penalties by program in fiscal
year 1989," Page 49.)
"The agency cannot be sure its en-
forcement actions obtain maximum
deterrence or ensure fair and equitable
treatment of the regulated communi-
ty," said Inspector General Martin in a
written report summing up his find-
ings from eight different reports on
EPA enforcement during the past
three years. His job was a difficult one
critiquing EPA's massive programs
on air, water and hazardous waste
laws, which govern every industry and
local government in the nation. The in-
spector decided to sample the EPA's
enforcement efforts much in the way
the agency requires factories to test
samples of the liquid or gases they dis-
charge into the environment.
Mr. Martin's investigators selected
casess for examination "judgmentally,"
choosingg those in which they felt the
enforcementt effort seemed particular-
ly weak. The inspector general says
his office's findings could not be used
statistically to draw conclusions about
EPA enforcement across the board,"
but "our samples were sufficient to sat-
isfy our audit objectives," showing
flaws that jeopardize the government
effort to punish polluters and deter
those who would pollute.
In five cases from Indiana, Illinois
and Ohio, the iixspector general pointed
out that original penalties totaled $18.4
million, fines that EPA lawyers calcu-
lated based on a formula that includes
the seriousness of the offense, the re-
calcitrance of the violator and the eco-
nomic benefit the violator enjoyed by
not obeying the law. But those penal-
ties were reduced 97 %percent, to
$410,000, during negotiations based
on the agency lawyers' assessments
both of the violator's ability to pay and
what the award would be if the case
proceeded to trial. (See "Some Water
Pollution Fine Changes," Page 48.)
Whether these dramatic figures are
clear evidence of enforcement laxity is
a matter of debate both within and out-
side the agency. Some believe that the
EPA with its limited personnel and
budget can gain the most for the
environment by giving companies a
break on fines in return for agree-
ments to comply with the law.
In this respect, the EPA Is similar to
the Occupational Safety and Health
Administration and other governmen-
tal agencies, which are striving to
stretch their enforcement dollars.


("When Fines Collapse," NEJ, 12-4-89.)
But the EPA is different in that its
official penalty policy since 1986 has
been to attempt to recover the money
industries save by not complying with
the law a policy the inspector gener-
al says has been ignored.
Valdas V. Adamkus, EPA's adminis-
trator for one of the regions on which
one of the inspector general's reports
focused, responded that the auditors
failed "to consider the trade-offs be-
tween getting a compliance schedule
i n place sooner with smaller penalties,
or delaying finalization of the order
pending hearings on the penalties."
Richard Mays of the D.C. office of
San Francisco's Pettit & Martin, head
of EPA enforcement in the latter part
of the Reagan administration, says he
knows from experience that the agen-
cy's offices around the country are
"fairly overwhelmed with- work and
they can't spend forever negotiating a
particular case...To give some on the
penalty is tempting if you want to put
into place compliance schedules and
environmental audits," he says.
Industry lawyer Mr. Gaynor, a for-
mer regulator who now negotiates
such agreements for his clients, says
that compliance schedules are "the
most important part" of enforcement,
representing a "major commitment by
the facility to do numerous things that
will cure the problem." As an example
of success, he cites the Chesapeake
Bay region, where industry currently
is believed to be in compliance with its
water-discharge permits.
The EPA works out such agreements
to resolve the vast majority of its en-
forcement disputes, and expects criti-
cism for taking that approach, ex-
plains James M. Strock, EPA's
assistant administrator for
enforcement.
"By definition, in a settlement, peo-.
pie differ later," he says. "This is par-
ticularly true when the potential liabil-
ities are so large." But in August, he
says, the agency put into place new
rules for its attorneys requiring them
to document more clearly the reasons
proposed penalties are reduced.
Mr. Olson of the wildlife federation
says environmentalists support such
efforts at negotiations. "The question is
where you draw the line...We think
EPA is cutting not only into the muscle
of enforcement, but cutting into the
bone."
A wildlife federation study released in
1989 found that out of 101,588 violations
of the laws on contamination, testing
and safety reporting in fiscal year
1987, enforcement action was taken in
only 2.6 percent, or 2,594, of the cases.
In only 13 cases did the EPA seek pen-
alties; in the rest it merely ordered the
systems to comply with the law.


The GAO followed up with a repc
June saying that EPA's monitorir
water systems is inadequate anc
forcement is not timely or effect
The auditors said the situation
particularly troublesome at a
when water systems' costs are ex]
ed to rise by $2.5 billion in the cor
years because of new regulation.
In addition to its criticisms of E
negotiation of fines, the inspector
eral identified cases in which the u
penalties as an enforcement we:
was overlooked completely.
For example, two sugar plant
Hawaii were violating air stand
for most of a decade, but paid fint
only $1,000 and $500, respectively,
ing that period. The law permits f
of $25,000 per day for such violati
The inspector general says reg
tors also failed to enforce the
against facilities that discharge w
water into Chesapeake Bay w.
virtually all water grasses have
killed and fishing has been seven
diminished as a result of pollution
cited the case of L.A. Clarke & So
Spotsylvania County, Va., which
ceived five warnings, or enforcer
orders, during a 13-year period
waste-water violations and never
assessed a penalty. As a result of
face and groundwater contamina
the site was placed on the Superf
list in 1986, with cleanup costs estir
ed at $23 million.
"More aggressive enforcement
tion might have forced the industry
act more responsibly and might -
reduced or even eliminated the r
for a Superfund cleanup," Mr. Ma
said.
Mr. Strock says his office plan:
focus on "sensitive" environmental
eas such as the Chesapeake for agg
sive enforcement action. The EPA ;
in the past few months has reor
nized to make administrators in
agency's 10 regional offices across
country field marshals in the
forcement effort accountable to
generals in Washington.
This is by far the most signific
change the Bush administration
made to strengthen EPA enforce
says Mr. Mays of Pettit & Martin.
argues that much of the enforcer
laxity is a result of difficult and dec
tralized organization put into placid
the early years of the Reagan admi
tration under Anne Gorsuch Burfor
who had even abolished the office
enforcement for a time.
Industry, too, has begun to critic
the unevenness of EPA enforce
from one region of the country to






next. "Industry has matured to the
point where it understands it has to
commit resources to environmental
compliance," Mr. Gaynor says. "The
questions they ask are how soon they
have to comply with what standards,
and how fair is enforcement?"
Environmentalists have criticized
the decentralization of EPA enforce-
ment for another reason, saying it
makes it easier for politics to creep
into the decision of how vigilaintly to
pursue violators.
David S. Bailey, attorney with the
Environmental Defense Fund, says
Avtex Fibers Inc. In Front Royal, Va.,
is a "classic, classic case" in which the
state and EPA issued only warnings
and minor fines for well-documented
violations. Mr. Bailey believes Virginia
officials did not want to pressure Av-
tex, and risk losing the industry and
the hundreds of jobs it created.
He argues that tougher enforcement
even 10 years ago could have forced
the plant to change its operations in a
way that met environmental stan-
dards.. Now, the bankrupt company
stands on useless land, the largest Su-
perfund site in Virginia one that has
severely polluted 50 miles of the Shen-
andoah River.
Such egregious cases as the Avtex
disaster have helped to spur a trend
toward tougher laws and a shift to-
ward criminal enforcement by EPA. In
fiscal year 1989, the EPA worked with
the Department of Justice to indict 101
defendants and enter 107 guilty pleas
and convictions more than double
the totals for just four years ago. In
Congress, bills would enhance penal-
ties for environmental crimes and
would increase the number of EPA
criminal investigators from 54 this
year to 200 by 1995.


The Price of Polluting
EPA penalties by program in fiscal year
SA
Program
Clean Water Act $
Safe Drinking Water Act $
Clean Air Stationary Sources $
Clean: Air Mobile Sources $
Resource Conservation and Recovery Act $
Superfund' : :
Toxic Substances Control Act $
' First year of concluded cases.
Source: EPA's National Penalty Report for Fiscal Year 1989.


1989
average Highest
penaltyy penalty
57,025 $1,540,000
11,478 ': $125,000
69,129 $600,000
16,403 $1,166,666
43,311 $2,778,000


$7,295
13,563


$15,550
$615,650


Agency's Cops

Grow Tougher.
According to Its report on
enforcement accomplishments for
fiscal year 1989, the Environmental
Protection Agency:
Collected a total of $35.1 million
in civil penalties. This is the second-
highest total; the highest, in 1988,
was $36.8 million.
Initiated a record 4,136
administrative actions. The previous
record of 3,613 was met in 1976.
Assessed the highest Clean
Water Act civil penalty in its history,
$1.125 million against Denver-area
..sewage systems for pollution of the
South Platte River, for violations
dating back to 1981. Total facility
Improvements under the consent
decree will cost $30 million.
.* Obtained the largest civil
penalty assessed under the
% Resource Conservation Recovery
.,,Act, $2.778 million, against
SEnvironmentalWaste Control Inc. in
. Indiana for continuing to operate a .
Landfill after falsely certifying it met ..-
,groundwater and liability ::,
Requirements. (EPA was joined in -
litigation by a citizens' group, STOP:..
Inc.) .. ':" -




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