Order Code RL34384
Federal Pollution Control Laws:
How Are They Enforced?
February 20, 2008
Robert Esworthy
Specialist in Environmental Policy
Resources, Science, and Industry Division
Federal Pollution Control Laws:
How are They Enforced?
Summary
As a result of enforcement actions and settlements for noncompliance with
federal pollution control requirements, the U.S. Environmental Protection Agency
(EPA) reported that, for FY2007, regulated entities committed to invest an estimated
$10.6 billion for judicially mandated controls and cleanup, and for implementing
mutually agreed upon (supplemental) environmentally beneficial projects. EPA
estimates that these efforts achieved commitments to reduce 900 million pounds of
pollutants in the environment, primarily from air and water. EPA also assessed more
than $145 million in civil and criminal fines and restitution during FY2007.
Nevertheless, noncompliance with federal pollution control laws remains a
continuing concern. The overall effectiveness of the current enforcement
organizational framework, the balance between state autonomy and federal oversight,
and the adequacy of funding are long-standing congressional concerns.
This report provides an overview of the statutory framework, key players,
infrastructure, resources, tools, and operations associated with enforcement and
compliance of the major pollution control laws and regulations administered by EPA.
It also outlines the roles of federal (including regional offices) and state regulators,
as well as the regulated community. Understanding the many facets of how all
federal pollution control laws are enforced, and the responsible parties involved, can
be challenging. Enforcement of the considerable body of these laws involves a
complex framework and organizational setting.
The array of enforcement/compliance tools employed to achieve and maintain
compliance includes monitoring, investigation, administrative and judicial (civil and
criminal) actions and penalties, and compliance assistance and incentive approaches.
Most compliance violations are resolved administratively by the states and EPA.
EPA concluded 4,624 final administrative penalty orders in FY2006. Civil judicial
actions, which may be filed by states or EPA, are the next most frequent enforcement
action. EPA may refer civil cases to the Department of Justice (DOJ), referring 286
civil cases in FY2006. The U.S. Attorney General’s Office and DOJ’s Environmental
Crimes Section, or the State Attorneys General, in coordination with EPA criminal
investigators and general counsel, may prosecute criminal violations against
individuals or entities who knowingly disregard environmental laws or are criminally
negligent.
Federal appropriations for environmental enforcement and compliance activities
generally have remained relatively constant in recent fiscal years. Total funding for
EPA’s enforcement activities in FY2007 was $548.9 million. Many contend that
overall funding for enforcement activities has not kept pace with inflation or with the
increasingly complex federal pollution control requirements.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal and State Government Interaction . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Federal Funding and Staffing for Enforcement Activities . . . . . . . . . . . . . . . 4
Other Enforcement Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statutory Framework for Enforcement of Pollution Control Laws
and Key Players . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statutory Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Key Players in Environmental Enforcement and Compliance . . . . . . . . . . . . 7
EPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Department of Justice (DOJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Other Federal Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
States and “Delegated Authority” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tribal Governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Citizens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Regulated Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Enforcement at Federal Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Enforcement Response and Compliance Tools . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Monitoring, Inspections, and Evaluations . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Administrative Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Judicial Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Criminal Judicial Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Sanctions and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Penalties Assessed to Federal Facilities . . . . . . . . . . . . . . . . . . . . . . . . 28
Supplemental Environmental Projects (SEPs) . . . . . . . . . . . . . . . . . . . . . . . 28
Environmental Justice and Enforcement/Compliance . . . . . . . . . . . . . . . . . 29
Compliance Assistance and Incentive Approaches . . . . . . . . . . . . . . . . . . . 31
Funding for Enforcement/Compliance Activities . . . . . . . . . . . . . . . . . . . . . . . . 33
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Appendix A. Enforcement/Compliance Databases and Reporting . . . . . . . . . . . 37
Overview of Enforcement/Compliance Databases . . . . . . . . . . . . . . . . . . . 38
Appendix B. Examples of Reported Enforcement Actions
and Penalties Over Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
List of Figures
Figure 1. Key Players in Enforcement of Pollution Control Laws . . . . . . . . . . . . 2
Figure 2. EPA Civil Judicial Referrals, Administrative Order Complaints,
and Criminal Referrals, FY1991-FY2007 . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Figure 3. Number of EPA Federal Inspections and Evaluations
by Statute, FY1994-FY2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Figure 4. Environmental Enforcement Penalties Assessed by
EPA: Administrative, Civil Judicial, and Criminal,
FY1986-FY2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Figure 5. EPA Supplemental Environmental Projects: Number of
Projects and Dollar Value, FY1999-FY2007 . . . . . . . . . . . . . . . . . . . . . . . . 44
List of Tables
Table 1. Major Federal Pollution Control Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Table 2. EPA Industry and Government Sectors . . . . . . . . . . . . . . . . . . . . . . . . . 16
Table 3. Number of EPA Criminal Investigators: FY1997- FY2007 . . . . . . . . . 25
Table 4. Sector Web-Based Compliance Assistance Centers . . . . . . . . . . . . . . . 32
Table 5. EPA-OECA’s FY2006-FY2007 Enacted Appropriation and
FTEs by EPA Appropriations Account and Program Activity . . . . . . . . . . 34
Table B-1. EPA Civil Administrative, Civil Judicial, and
Criminal Enforcement Actions, FY2002-FY2006 . . . . . . . . . . . . . . . . . . . . 41
Table B-2. Number of EPA Enforcement Inspections and
Evaluations by Statute, FY2002-FY2006 . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Table B-3. Environmental Enforcement Penalties Assessed by EPA:
Administrative, Civil Judicial, and Criminal,
FY2002-FY2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Table B-4. Supplemental Environmental Projects (SEPs) Dollar Values
as Reported by EPA: FY2001-FY2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Federal Pollution Control Laws:
How are They Enforced?
Introduction
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.
1 See CRS Report RL30798, Environmental Laws: Summaries of Major Statutes
Administered by the Environmental Protection Agency (EPA) (hereinafter referred to as
“CRS Environmental Laws report (CRS Report RL30798)”).
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Figure 1. Key Players in Enforcement of
Pollution Control Laws
Source: Diagram prepared by CRS.
A diverse set of regulatory approaches and enforcement tools are 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 are included in this report, followed by a summary of recent federal funding
levels for enforcement activities. Discussion of available enforcement data sources,
as well as tables illustrating examples of trends in enforcement activities, are
presented in the two appendices.
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. These aspects of enforcement have also been the topic of
investigations by the Government Accountability Office (GAO) and EPA’s Office
of Inspector General (EPA-OIG).2 The federal government’s oversight of and
2 See, for example: Senate Committee on Environment and Public Works, “Oversight
Hearing on EPA Regional Inconsistencies,” June 28, 2006, [http://epw.senate.gov/hearing_
statements.cfm?id=257928]; Government Accountability Office (GAO): Environmental
Compliance and Enforcement: EPA’s Effort to Improve and Make More Consistent Its
Compliance and Enforcement Activities. GAO-06-840T June 28, 2006 [http://www.gao.
gov/new.items/d06840t.pdf]. Environmental Protection: More Consistency Needed Among
(continued...)
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coordination with states in implementing and enforcing federal pollution control laws
have been of particular interest to Congress.3 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”4 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.
2 (...continued)
EPA Regions in Approach to Enforcement, June 2000, GAO/RCED-00-108
[http://www.gao.gov/new.items/rc00108.pdf]; EPA’s Office of Inspector General (EPA-
OIG): Enforcement — Compliance with Enforcement Instruments, Rpt. 2001-P-00006,
March 29, 2001.
3 Ibid.; see also GAO : Environmental Protection: Collaborative EPA-State Effort Needed
to Improve Performance Partnership System, GAO/T-RCED-00-163, May 2, 2000, and.
Environmental Protection: Overcoming Obstacles to Innovative State Regulatory Programs,
GAO-02-268, January 31, 2002. See also EPA-OIG ([http://www.epa.gov/oig/]): EPA
Needs to More Actively Promote State Self Assessment of Environmental Programs, Report
No. 2003-P-00004, December 27, 2002.
4 Many references discuss “cooperative federalism” in the context of environmental policy;
these include Robert L. Fischman, Cooperative Federalism and Natural Resources Law,
New York University Envtl. L. J. 179, vol. XIV 2006, Issue 1; Mark Agrast, et al., How to
Protect Environmental Protections?, Envtl. Law Reporter, vol. 35, 2005 (10413 - 10417),
the Environmental Law Institute; Philip J. Weiser, Towards a Constitutional Architecture
for Cooperative Federalism, North Carolina L. Rev., vol. 79, 2001 (663, 671), University
of North Carolina; Vickie L. Patton, A Balanced Partnership, The Envtl. Law Forum, vol.
13, no. 3, May/June 1996; and, Robert V. Percival, “Environmental Federalism: Historical
Roots and Contemporary Models, Maryland Law Rev., vol. 54, 1995 (1141).
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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.5
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.6 In 2004, the Environmental Council of the States (ECOS)7
reported a $1 billion annual gap in the amount of funding needed by states to
implement federal environmental laws, based on a survey of states.8 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.9
The adequacy of overall 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 Congress. Staffing levels of
criminal investigators at EPA has been of particular recent interest. For example,
Congress enacted the 1990 Pollution Prosecution Act (P.L. 101-593) requiring EPA
to hire and maintain 200 investigators criminal investigators. During the first session
of the 110th Congress, 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.10 Congressional concerns regarding staff and funding for EPA’s criminal
(and civil) enforcement were also expressed in conference report language
5 GAO, Environmental Protection: EPA-State Enforcement Partnership Has Improved, but
EPA’s Oversight Needs Further Enhancement. GAO-07-883, July 31, 2007.
6 For example, see EPA’s Office of Inspector General Report, Congressional Request on
EPA Enforcement Resources and Accomplishments, October 10, 2003, Rpt #- 2004-S-00001,
[http://www.epa.gov/oig/].
7 The Environmental Council of the States (ECOS) is a national nonprofit (501(c)(6)),
nonpartisan association of state and territorial environmental commissioners, established in
December 1993. [http://www.ecos.org].
8 ECOS, The Funding Gap, The Journal of the Environmental Council of the States, Winter
2004. [http://www.ecos.org/section/publications].
9 GAO, Environmental Protection: EPA-State Enforcement Partnership Has Improved, but
EPA’s Oversight Needs Further Enhancement. GAO-07-883, July 31, 2007.
10 Title VI — Additional General Provisions Sec. 605 of H.R. 2643 (June 28, 2007, placed
on the Calendar of the Senate). See also H.Amdt. 441 to H.R. 2643, offered and agreed to,
June 26, 2007, inserted under Title VI — Additional General Provisions Sec. 601 (CR
H7221-7222). The FY2008 omnibus appropriations (P.L. 110-161) did not include this
general provision (Joint Explanatory Statement Accompanying Division F of the
Consolidated Appropriations Act for FY2008 (P.L. 110-161, H.R. 2764), as presented in the
Congressional Record, December 17, 2007, pg. H16142).
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accompanying EPA appropriations for FY2003 through FY2005,11 and were the topic
of a congressionally requested EPA-OIG investigation.12 Criminal enforcement
staffing is discussed further in the “Criminal Judicial Enforcement” section below.
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.
11 Conference Report 108-72 (p. 1563) accompanying the Consolidated Appropriations Act,
2005, P.L. 108-447); Conference Report 108-401 (p. 1126) accompanying the Consolidated
Appropriations Act, 2004, P.L. 108-199; and Conference Report 108-10 (p. 1445)
accompanying Consolidated Appropriations Resolution, 2003, P.L. 108-7.
12 EPA’s Office of Inspector General Report 2004-S-00001, Congressional Request on EPA
Enforcement Resources and Accomplishments, October 10, 2003, [http://www.epa.gov/oig/].
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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 the
heading “Enforcement Response and Compliance Tools” later in this report).
Statutory Framework
The 9 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.
Table 1. Major Federal Pollution Control Laws
Statute
Major U.S. Code
Comprehensive Environmental Response,
42 U.S.C. §§ 9601-9675
Compensation, and Liability Act (Superfund)
Clean Air Act
42 U.S.C. §§ 7401-7671
Clean Water Act
33 U.S.C. §§ 1251-1387
Safe Drinking Water Act
42 U.S.C. §§300f-300j
Solid Waste Disposal Act/Resource
42 U.S.C. §§6901-6991k
Conservation and Recovery Act
Environmental Planning and
42 U.S.C. §§11001-11050
Community-Right-To-Know Act
Federal Insecticide, Fungicide, and
7 U.S.C. §§136-136y
Rodenticide Act
Toxic Substances Control Act
15 U.S.C. §2601 et seq.
Pollution Prosecution Act of 1990
42 U.S.C. §4321
Note: This list is not comprehensive in terms of all laws administered by EPA, but rather covers the
basic authorities underlying the majority of EPA pollution control programs. For a discussion of these
statutes and their provisions, see the CRS Report RL30798, Environmental Laws: Summaries of Major
Statutes Administered by the Environmental Protection Agency.
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 the 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.
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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, §309 of the CWA, §113 of the CAA, and §1414
of the Safe Drinking Water Act (SDWA) cover enforcement provisions.13 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
EPA . Primarily through its program offices (e.g., air, water, solid waste), EPA
promulgates national regulations and standards.14 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
under the heading “States and Delegated Authority”). EPA (and states) inform the
regulated community of their responsibilities and administer permitting, monitoring,
13 See 33 U.S.C. §1319, 42 U.S.C. §7413, and 42 U.S.C. §300g-3.
14 See CRS Report RL32240, The Federal Rulemaking Process: An Overview.
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and reporting requirements. EPA also provides technical 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 the EPA’s establishment, the Agency’s enforcement organization has been
modified a number of times, and continues to evolve.15 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.16
EPA’s National Program Managers (NPM) Guidance is the primary strategic
planning tool that sets out national enforcement program priorities and coordinates
state, regional, and EPA headquarters environmental enforcement/compliance
activities. The 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 NPM Guidance is developed jointly with the EPA regions and states/tribes, and
serves as the basis for the enforcement agreements (“commitments”) with the
regional offices, identifying overall program directions as well as specific activities,
allocation of resources, and expected outcomes. On November 12, 2007, OECA
announced EPA’s current national enforcement and compliance assurance priorities
for the years FY2008 through FY2010.17
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.18 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.19
15 For more information regarding EPA’s current organizational structure for enforcement,
see the agency’s website at [http://www.epa.gov/compliance/about/index.html].
16 For more information regarding EPA’s environmental enforcement priorities, and strategic
planning, see EPA-OECA, National Priorities for Enforcement and Compliance Assurance,
[http://www.epa.gov/compliance/data/planning/priorities/index.html].
17 See EPA, OECA, Compliance and Enforcement Short Term Planning website for
individual annual fiscal year National Program Managers Guidance, and Memoranda of
Understanding (MOAs), [http://www.epa.gov/compliance/data/planning/shortterm.html].
18 EPA’s National Enforcement Investigations Center (NEIC) is located in Denver,
Colorado. See [http://www.epa.gov/compliance/neic/index.html].
19 EPA’s National Enforcement Training Institute (NETI), [http://www.netionline.com/].
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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 (DOJ). 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 278 civil cases to DOJ in FY200720
and 168 criminal cases in FY2004 (the last year criminal referrals were reported
publicly by EPA).21 Many of these cases are handled by DOJ’s Environment and
Natural Resources Division (ENRD).22 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”.23 Most federal pollution control
statutes, but not all, authorize EPA to delegate to states the authority to implement
20 EPA-OECA, EPA FY2007 Compliance and Enforcement Annual Results Report,
November 2007, [http://epa.gov/compliance/data/results/annual/index.html].
21 EPA-OECA discontinued reporting criminal referrals beginning with reporting in
FY2005. EPA, National Enforcement Trends FY2004 — Criminal Enforcement,
[http://www.epa.gov/compliance/resources/reports/nets/fy2004/nets04-criminal-enforce
ment.pdf]
22 EPA’s cases are typically handled by three of the division’s 10 sections: the
Environmental Crimes Section, the Environmental Enforcement Section, and the
Environmental Defense Section ([http://www.usdoj.gov/enrd/About_ENRD.html]).
23 The term “delegated authority” has become the most commonly used when referring to
EPA’s authority to approve states’ programs. Federal statutes more often use “primary
enforcement responsibility,” “primacy,” “approved,” or “authorized” states’ responsibility.
CRS-10
national requirements.24 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.
Some federal pollution control laws limit the authority to a specific provision,
while others do not authorize delegation at all. For example, §1413 of the Safe
Drinking Water Act (SDWA) authorizes states to assume primary oversight and
enforcement responsibility (primacy) for public water systems,25 and §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. 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.26
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 November
2007, 45 states had obtained the authority to operate the national permitting program
under §402 of the CWA, but EPA had only delegated authority to two states to
operate the wetlands permitting program under a separate CWA provision, §404.27
A majority of states have been delegated authority to implement and enforce one
or more provisions of the federal pollution control laws.28 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 may
24 See the CRS Environmental Laws report (CRS Report RL30798) for references to sections
of individual acts that provide state authority.
25 CRS Environmental Laws report (CRS Report RL30798), p. 48.
26 See EPA guidance for issuing federal inspector credentials to state/tribal governments to
conduct civil inspections: [http://www.epa.gov/compliance/resources/policies/monitoring/].
27 CRS Environmental Laws report (CRS Report RL30798), pp. 32-33.
28 The Environmental Council of the States (ECOS) has tracked delegated authority by state
and statute; see [http://www.ecos.org/section/states].
CRS-11
play a role in permitting and monitoring. For example, EPA has delegated authority
to implement §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). EPA is working to enhance and improve enforcement reporting by states.
The agency has developed and has been implementing its State Review Framework
(SRF) tool introduced in 2004, to improve its oversight of state enforcement
programs.29 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. EPA reported that, as of May 2007, it
had finalized SRF reports for 25 states.30 Nevertheless, there are still perceived
differences between states, EPA regions and, EPA headquarters.
In recent years, ECOS31 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)32 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.
29 EPA-OECA, Best Practices and Program Improvements Expected to Result from SRF,
September 12, 2007 [http://www.epa.gov/compliance/resources/reports/state/index.html].
30 Ibid.
31 The Environmental Council of the States (ECOS) is a national nonprofit (501(c)(6)),
nonpartisan association of state and territorial environmental commissioners.
32 See [http://www.epa.gov/ocirpage/nepps/] for information regarding NEPPS.
CRS-12
Absent delegation, EPA continues to
enforce the federal law in the state, although
The term “overfiling” applies to
a state can enforce its own environmental
situations when federal enforcement
laws where not preempted by federal law.
actions are filed during or after a
Even with delegation, EPA retains the
state enforcement action against the
authority and responsibility to take
same entity for violation of a federal
statute. Some states and regulated
enforcement measures, generally taking
entities use the term more broadly in
action when there is a violation of an EPA
reference to assertion of federal
order or consent decree, or when the federal
authority. Overfiling or the threat of
government deems a state to have failed to
overfiling sometimes strains EPA-
respond to a major violation in a “timely and
state relations and cooperation,
appropriate” manner. Additionally, when a
sometimes implying criticism of a
noncompliance case involves an emergency
delegated state’s effectiveness.
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.33 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.34
Tribal Governments. EPA and states increasingly have recognized the role
of tribal governments in environmental enforcement, where tribes, rather than states,
have primary jurisdiction.35 Indian tribes, as sovereign governments, can establish
and enforce environmental programs under their own laws, but must obtain approval
33 Provisions of the Clean Water Act (CWA) under §309 are often cited as an example of
legislation limiting EPA’s authority to overfile. EPA’s authority to enforce under this
section is only limited when a state has commenced an “appropriate enforcement action” in
response to and within 30 days of EPA’s issuance of a notice of violation to the state (33
U.S.C. §1319(a)(1)); when the state has “commenced and is diligently prosecuting” an
action under comparable state law; or when a penalty assessed under a state-issued final
order has been paid, the violation will not be subject of a civil penalty action under §1319(d)
§1321(b) or §1365 (33 U.S.C. §1319(g)(6)).
34 Ellen R. Zahren, Overfiling Under Federalism: Federal Nipping at State Heels to Protect
the Environment, 49 Emory L. J. 373, 375 n.18 (2000); Joel A. Mintz, Enforcement
“Overfiling” in the Federal Courts: Some Thoughts on the Post-Harmon Cases, 21 Virginia
Envtl. L. J. 425, 427 (2003). Jeffrey G. Miller, Theme & Variations in Statutory Preclusions
Against Successive Environmental Enforcement Actions by EPA & Citizens, Part II
Statutory Preclusions on EPA Enforcement, 29 Harvard Envtl. L. Rev. 1, 3 (2005)
35 EPA-approved/authorized state programs generally do not apply in Indian country.
CRS-13
from EPA to administer federal environmental programs on their land. As with
states, some of the federal statutes authorize tribes,36 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,37 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,38 which reaffirmed the government-to-government
relationship of Indian tribes with the United States.39
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 enforcement strategic
plan in an effort to enhance tribal governments’ capabilities to implement federal
environmental statutes. The primary focus areas in the tribal strategy, which has been
retained as a priority in the FY2008-FY2011 enforcement strategic plan, are public
drinking water systems, federal pollution control statutes applicable to schools, and
unregulated dumping of solid waste.40
Citizens. Private individuals play an important role in enforcing certain
aspects of federal pollution control laws. Citizen participation, specifically authorized
36 Some pollution control laws have been amended to clarify the role of tribal governments
in the implementation of federal environmental programs. For example, from 1986 to 1990,
Congress amended the Clean Water Act (33 U.S.C. § 1377(e)(2)), Safe Drinking Water Act
(42 U.S.C. § 300j-11(b)(1)(B)), and Clean Air Act (42 U.S.C. §7601(d)(2)(B) to authorize
EPA to treat Indian tribes in the same manner as states for purposes of program
authorization.
37 For example, see Executive Order No. 13175 on Consultation and Coordination With
Indian Tribal Governments, 65 Federal Register 67249 (November 9, 2000); Executive
Memorandum on Government-to-Government Relations with Native American Tribal
Governments, April 29, 1994.
38 Issued by President Ronald Reagan, the policy expanded the 1970 national Indian policy
of self-determination for tribes ([http://www.epa.gov/Indian/pdfs/reagan83.pdf]).
39 In conjunction with the 1983 overall federal policy statement, EPA consolidated existing
agency statements into a single policy statement to ensure consistency . See EPA Policy for
the Administration of Environmental Programs on Indian Reservations [http://www.epa.
gov/superfund/tools/topics/relocation/policy.htm].
40 EPA-OECA, National Priorities for Enforcement and Compliance Assurance,
Enforcement and Compliance Assurance Priority: Indian Country, [http://www.epa.gov/
compliance/data/planning/priorities/tribal.html].
CRS-14
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 the EPA for failing to execute nondiscretionary duties required under federal
environmental laws.41
To further enhance public participation and reporting of potential environmental
violations, EPA-OECA introduced the “National Report a Violation” website in
January 2006.42 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. The majority of these FY2006
citizen submissions (2,800) were referred to civil enforcement, and roughly 480 tips
were referred to criminal agents according to EPA.43
Regulated Community. 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, 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
41 Although not strictly speaking “enforcement,” citizens may also petition for review of
agency actions under a program statute or the Administrative Procedure Act.
42 EPA-OECA, National Report a Violation, [http://www.epa.gov/tips].
43 EPA-OECA, Compliance and Enforcement Annual Results: Report a Violation,
[http://www.epa.gov/compliance/resources/reports/endofyear/eoy2006/sp-reporta
violation.html].
CRS-15
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.44 EPA-OECA compiled data regarding the size of the
regulated community in September 2001, and estimated a total universe of more than
41 million.45 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) contains more than
880,000 unique facility records for compliance with CWA, CAA, and RCRA. These
records 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 1.5 million facility records. 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 2003.46 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
44 EPA-OIG, Limited Knowledge of the Universe of Regulated Entities Impedes EPA’s
Ability to Demonstrate Changes in Regulatory Compliance, 2005-P-00024, September 19,
2005 ([http://www.epa.gov/oig/]); and GAO, Human Capital: Implementing an Effective
Workforce Strategy Would Help EPA to Achieve Its Strategic Goals, GAO-01-812, pp. 24-
25, July 2001, [http://www.gao.gov/docsearch/repandtest.html].
45 EPA-OECA, OECA Regulatory Universe Identification Table. Internal EPA memorandum
November 15, 2001, EPA-OIG, Limited Knowledge of the Universe of Regulated Entities
Impedes EPA’s Ability to Demonstrate Changes in Regulatory Compliance, 2005-P-00024,
September 19, 2005 ([http://www.epa.gov/oig/]).
46 ECOS, State Environmental Contributions to Enforcement and Compliance:2000-2003,
June 2006, [http://ecos.org/section/publications].
CRS-16
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.47 The database contains information on
stationary and mobile sources that emit common (“criteria”) air pollutants 48 and their
precursors, as well as hazardous air pollutants (HAPs).49 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 are
EPA’s “Sector Notebooks.”50 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 the sectors for
which the agency has completed sector notebooks.
Table 2. EPA Industry and Government Sectors
Available Sector Notebooks
Aerospace Furniture
Power
Generators
Agriculture Food
Processing Printing
Automotive Healthcare
Pulp/Paper/Lumber
Chemicals Local
Government
Operations Rubber/Plastics
Computers/Electronics Metals
Shipbuilding and Repair
Construction Minerals/Mining/Processing
Textiles
Dry Cleaning
Petroleum
Transportation
Federal Facilities
Pharmaceuticals
Source: Table generated by CRS with information from EPA’s Sector Compliance Assistance and
Sector Notebooks website [http://www.epa.gov/compliance/assistance/sectors/index.html].
47 EPA, National Emissions Inventories for the U.S., [http://www.epa.gov/ttn/chief/net/
index.html].
48 Under §106 of the Clean Air Act, EPA has set National Ambient Air Quality Standards
for six principal pollutants classified by the EPA as “criteria pollutants”: sulfur dioxide
(SO2), nitrogen dioxide (NO2), carbon monoxide (CO), ozone, lead, and particulate matter.
49 Under §112 of the Clean Air Act, EPA is to establish technology-based emission
standards, called “MACT” standards, for sources of 188 pollutants listed in the legislation,
and to specify categories of sources subject to the emission standards.
50 For more information regarding EPA’s Sector Compliance Assistance and Sector
Notebooks, see [http://www.epa.gov/compliance/assistance/sectors/index.html].
CRS-17
Enforcement at Federal Facilities. Unless a statutory exemption exists,
federal facilities are subject to the federal pollution control statutes,51 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 35 enforcement actions against federal
agencies for alleged violations of federal pollution control laws during 2007,
resulting in an estimated reduction of more than 700,000 pounds of pollutants.52
Federal agencies are also subject to relevant requirements of executive orders.53
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.54 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.55 GAO observed that DOD and
DOE together accounted for 99% of the federal government’s environmental
51 Most federal environmental laws contain provisions that subject federal facilities to
federal, state, and local requirements, and allow such facilities to be sued just as a
nongovernmental entity. In addition, such provisions generally grant the President authority
to exempt federal facilities from such requirements when in the “paramount interest” or (less
commonly) the “national security interest” of the United States. See Clean Air Act (42
U.S.C. §7418), Clean Water Act (33 U.S.C. §1323), Resource Conservation and Recovery
Act (42 U.S.C. §6961), and Safe Drinking Water Act (42 U.S.C. §300j-6). A more limited
federal facility provision and presidential exemption is found in the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. §9620). The Toxic
Substances Control Act nowhere expressly states that federal facilities are subject to the
statute, but nonetheless does authorize presidential exemptions (15 U.S.C. §2621). For
discussion of exemptions, particularly as they pertain to DOD, see CRS Report RS22149
Exemptions from Environmental Law for the Department of Defense: Background and
Issues for Congress.
52 EPA-OECA, Compliance and Enforcement Annual Results: FY2007 Federal Facilities,
[http://www.epa.gov/compliance/resources/reports/endofyear/eoy2007/2007-sp-fedfac.
html].
53 For examples of executive orders with directives addressing environmental management
at federal facilities, see EPA’s Federal Facilities Sector Notebook: A Profile of Federal
Facilities, EPA 300-B-96-03, January 1996, pgs. 2-11 and 2-12, available at
[http://www.epa.gov/compliance/assistance/sectors/index.html].
54 EPA Federal Facilities Enforcement Office, The State of Federal Facilities An Overview
of Environmental Compliance at Federal Facilities FY 2003-2004. EPA Document No:
EPA 300-R-05-004. November 2005. [http://cfpub.epa.gov/compliance/resources/reports/
accomplishment/federal.cfm?templatePage=4#soff].
55 Ibid.
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liabilities as of FY2004.56 Most of these liabilities consist of the estimated cost to
safely dispose of solid and hazardous waste generated from day-to-day operations,
and to clean contamination from releases into the environment.
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.57 The SDWA includes similar language regarding federal
facilities, but most of the other federal environmental laws do not include such
specific provisions. CERCLA (Superfund) §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. 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
56 DOE accounted for $182 billion of the estimated environmental compliance costs. Nearly
all of this amount was for the cleanup of nuclear weapons production sites. DOD accounted
for $64 billion of the estimated costs. Most of this amount was for the cleanup of
contamination from the past release of hazardous substances, and the cleanup of military
training ranges where unexploded ordnance is present. The disposal of radioactive waste
from nuclear-powered ships and submarines, and the disposal of chemical weapons
stockpiles required by the Chemical Weapons Conventions, also constituted a sizeable
portion of these costs. GAO, Environmental Liabilities: Long-Term Fiscal Planning
Hampered by Control Weaknesses and Uncertainties in the Federal Government’s
Estimates, March 2006. GAO-06-427.
57 42 U.S.C. §6961.
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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 criminal58 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). More recently, settlements have also
included requirements that violators undertake mutually agreed-upon
environmentally beneficial projects supplemental to other sanctions.59
As noted, EPA, states, and the courts have considerable discretion in
determinating 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 FY2007, EPA issued more than 1,247
administrative orders and filed 2,237 administrative penalty order complaints. In
comparison, during FY2007, EPA filed 127 civil judicial cases with the court, and
180 civil judicial cases were concluded.60 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
58 For persons who willfully or knowingly disregard the law.
59 See the discussion later in this report on Supplemental Environmental Projects (SEPs).
60 EPA-OECA, EPA FY2007 Compliance and Enforcement Annual Results Report,
November 2007, [http://epa.gov/compliance/data/results/annual/index.html].
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FY2006, then declined in FY2007 to 2,237.61 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:62 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
61 Ibid.
62 The CWA requires evaluations instead of investigations, which include reviewing reports,
records, and operating logs; assessing air pollution control devices and operations; and
observing visible emissions or conducting stack tests.
CRS-21
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 the EPA’s most recent reported trends data, a total of more than
22,000 EPA enforcement inspections and evaluations were conducted under the
various statutes during FY2007.63 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.64 To put the 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 1.5 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.
63 EPA-OECA, EPA FY2007 Compliance and Enforcement Annual Results Report,
November 2007, [http://epa.gov/compliance/data/results/annual/index.html].
64 “State Environmental Agency Contributions to Enforcement and Compliance: 2000-
2003,” the Environmental Council of the States (ECOS), June 2006.
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Through administrative enforcement actions, the 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 FY2007 annual results, during FY2007, EPA initiated 1,247 administrative
compliance orders and 2,237 administrative penalty order complaints. EPA imposed
penalties in 2,255 final administrative penalty orders during FY2007, representing
a total value of $30.7 million.65
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.66 ALJs, appointed by the EPA
Administrator,67 perform adjudicatory functions and render decisions in proceedings
between the EPA and individuals, entities, federal and state government agencies,
and others, with regard to administrative actions taken to enforce environmental laws
and regulations. RJOs, designated by each of the EPA Regional Administrators,68
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.69 Environmental Appeals
Judges are appointed by the EPA Administrator.70 Federal pollution control laws and
regulations specify who may raise an issue before the EAB, and under what
circumstances. EAB decisions frequently 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
65 EPA-OECA, EPA FY2007 Compliance and Enforcement Annual Results Report,
November 2007, [http://epa.gov/compliance/data/results/annual/index.html].
66 Administrative Procedure Act, 5 U.S.C. § 557.
67 5 U.S.C. §3105.
68 Title 40 CFR Part 22 Subpart A § 22.4(b).
69 Title 40 C.F.R. Part 22 Subpart A § 22.8.
70 Title 40 C.F.R. § 1.25(e). EAB judges are Senior Executive Service (“SES”)-level career
Agency attorneys (U.S. EPA, The Environmental Appeals Board Practice Manual, June
2004, available at [http://www.epa.gov/eab/pmanual.pdf]).
CRS-23
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 FY2007, EPA-OECA referred 278
civil judicial cases to DOJ; 127 civil judicial complaints were filed with the court;
and 180 cases were concluded (refers to cases filed during FY2007 and prior fiscal
years).
Criminal Judicial Enforcement
States and EPA may initiate criminal enforcement actions against individuals
or entities for negligent, knowing, or willful violations of federal environmental
control law. Criminal actions are especially pursued when a defendant knew, or
should have known, that injury or harm would result. 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 criminal environmental violation can
result in imprisonment. EPA reported that 340 new environmental crime cases were
opened during FY2007, about 10% more than in FY2006.71 Authorities for pursuit
of criminal actions vary under each of the statutes. For example, under the SDWA
(42 U.S.C. §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. §1319) authorizes criminal misdemeanor 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.72
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
71 EPA, Compliance and Enforcement Annual Results: FY2007 Criminal Enforcement,
[http://www.epa.gov/compliance/resources/reports/endofyear/eoy2007/2007-sp-criminal.
html].
72 For examples of criminal cases for various fiscal years, see EPA’s compliance and
enforcement annual results website at [http://www.epa.gov/compliance/data/results/annual/
fy2007.html].
CRS-24
and cases, environmental crime task forces have been established nationally.73 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. §3063). Further, under Title II
of the Pollution Prosecution Act of 1990 (P.L. 101-563), 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 FY1996.74
As noted, Congress has been concerned with the staffing of criminal
investigators. The number of EPA special agents went from about 50 in 1990 to
more than 200 by 1998.75 As of September 2007, the number of EPA investigators
had dropped to168, and this decline has been an issue of concern in Congress and
elsewhere. EPA has indicated that it is in the process of hiring seven additional
criminal investigators, bringing the total number to 175, and that it plans to hire an
additional six investigators sometime during FY2008.76 Table 3, below, shows the
number of EPA investigators assigned to the criminal enforcement program in
support of environmental crimes work for FY1997 through September FY2007, as
reported by EPA.77
73 For a listing of EPA’s Criminal Investigation Division Offices and associated
Environmental Crimes Task Force Teams throughout the United States, see [http://www.
epa.gov/Compliance/criminal/intergovernmental/environcrimes.html].
74 For a historical perspective of EPA’s criminal enforcement, see EPA Review of the Office
of Criminal Enforcement, Forensics, and Training, November 2003, [http://www.epa.gov/
Compliance/resources/publications/criminal/oceft-review03.pdf].
75 Ibid.
76 CRS communication with EPA’s Office of Congressional and Intergovernmental
Relations, October 31, 2007.
77 Ibid.
CRS-25
Table 3. Number of EPA Criminal Investigators:
FY1997- FY2007
Fiscal Year
Number of Investigators
1997
200
1998
200
1999
192
2000
179
2001
181
2002
217
2003
217
2004
202
2005
189
2006
183
2007 (as of September)
168
Source: Prepared by CRS with data provided by EPA’s Office of
Congressional and Intergovernmental Relations, Oct. 31, 2007.
Note: The number of agents listed for 2002-2004 includes investigators who
performed a mix of environmental crimes and homeland security work. The
number of agents in FY2005 and FY2006 includes 25 criminal agents who
also participated in specialized national security event response training.
Sanctions78 and Penalties
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.79 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.80 However, under CERCLA (Superfund) and CWA, money recovered for
78 In the context of this report, “sanctions” refer to adverse consequences imposed in
response to noncompliance.
79 2 CFR Part 180, 2 CFR Part 1532, and Executive Order 12549. Debarment is also
authorized following criminal conviction under Clean Water Act (§508) and Clean Air Act
(§306). See information regarding EPA’s suspension and debarment program at
[http://www.epa.gov/ogd/sdd/debarment.htm].
80 Under the Miscellaneous Receipts Act (31 U.S.C. §3302(b)), all court, or administratively
(continued...)
CRS-26
the costs of replacing or restoring natural resources is used to restore the resources.81
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 (§1413 (a)(6)).82 Currently, 55
of 57 states and territories have primacy authority for the PWSS program. 83
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 guidance84 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
80 (...continued)
imposed penalties must be paid by the government official receiving the monies to the U.S.
Treasury.
81 See, for example, 33 U.S.C. §1321(f)(5).
82 SDWA, 42 U.S.C. §300g-2(a)(6), added by SDWA Amendments of 1996 (P.L. 104-182).
83 CRS Report RL31243, Safe Drinking Water Act: A Summary of the Act and Its Major
Requirements (p. 7 in print and PDF versions), by Mary Tiemann.
84 EPA guidance for the “Division of Penalties with State and Local Governments,”
memorandum from Courtney M. Price, Assistant Administrator for Enforcement and
Compliance Monitoring, October 30, 1985.
CRS-27
courts in determining the appropriate penalty. Figure 4 in Appendix B presents
examples of dollar amounts of civil administrative, civil judicial, and criminal
penalties assessed by EPA for the 20-year period FY1988-FY2007. According to
EPA, a significant portion of the reported 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.85
EPA and DOJ have established several policies and guidelines to be considered
by counsel when negotiating agreements and setting penalties.86 EPA-OECA has
also developed five computer models including models for calculating economic
advantage, costs of Supplemental Environmental Projects (SEPs; see discussion
under the heading “Supplemental Environmental Projects (SEPS)”), and for
measuring the ability to afford compliance requirements and penalties. 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.87 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).
85 EPA, Office of Enforcement and Compliance Assurance, FY2006 OECA
Accomplishments Report, Spring 2007, EPA-300-R-07-001, [http://cfpub.epa.gov/
compliance/resources/reports/accomplishment/details.cfm].
86 For example, EPA’s revised Consolidated Rules of Practice (“CROP”) ( 64 FR 40138 ,
July 23, 1999) contains procedural rules for the administrative assessment of civil penalties,
issuance of compliance or corrective action orders, and the revocation, termination or
suspension of permits, under most environmental statutes. See EPA’s Web page, Civil
Penalty Policies, at [http://cfpub.epa.gov/compliance/resources/policies/civil/penalty/].
87 Additionally, see EPA, Guidance on Calculating the Economic Benefit of Noncompliance
by Federal Agencies issued on February 13, 2006, Memorandum from Granta Y. Nakayama,
Assistant Administrator, Office of Enforcement Compliance and Assurance,
[http://www.epa.gov/Compliance/resources/policies/federalfacilities/enforcement/
cleanup/guid-econ-ben-noncomp-2-13-06.pdf].
CRS-28
Penalties Assessed to Federal Facilities.88 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 has rejected state authority to do so under the CWA.89) 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 FY2007, EPA concluded 35 enforcement actions against federal
facilities, and assessed $475,000 in penalties. Federal agencies committed to invest
more than $250 million to improve their facilities and operations to remedy (clean
up) past violations.90
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).91 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.92 These include pollution prevention, public health, and emergency and
88 Prepared by Robert Meltz, Legislative Attorney, American Law Division.
89 U.S. Dept. Of Energy v. Ohio, 503 U.S. 607 (1992).
90 EPA-OECA, Compliance and Enforcement Annual Results: FY2007 Federal Facilities,
[http://www.epa.gov/compliance/resources/reports/endofyear/eoy2007/2007-sp-fedfac.
html].
91 For more information regarding SEPs, see [http://www.epa.gov/compliance/civil/seps/
index.html].
92 Policy and guidance documents related to EPA’s Supplemental Environmental Projects
Policy are available at [http://cfpub.epa.gov/compliance/resources/policies/civil/seps/].
CRS-29
preparedness planning. EPA reported that 184 civil settlement cases during FY2007
included SEPs at an estimated value of $30.0 million.93
The incorporation of SEPs into enforcement actions has become a more
commonly used enforcement tool in recent years, 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 are also employing the use of SEPs in their settlements.94 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
The concept of “environmental justice” has been a controversial topic of debate
among industry and public interest groups, and continues to be a concern highlighted
in legislation and congressional hearings. During the first session of the 110th
Congress, hearings were held by committees in the House and the Senate,95 and
legislation was introduced — H.R. 1103, the Environmental Justice Act of 2007.
Discussion of the many issues and concerns regarding environmental justice is
beyond the scope of this report, however, the following 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.
93 EPA-OECA, Compliance and Enforcement Annual Results: FY2007 Numbers at a
Glance, [http://www.epa.gov/compliance/resources/reports/endofyear/eoy2007/2007
numbers.html].
94 The Environmental Council of States (ECOS), State Environmental Agency Contributions
to Enforcement and Compliance 2000-2003, June 2006.
95 House Committee on Energy and Commerce, Subcommittee on Environment and
Hazardous Materials: H.R. 1103, the Environmental Justice Act of 2007, and H.R. 1055, the
Toxic Right-To-Know Protection Act, Legislative Hearing — Environmental Justice and
the Toxics Release Inventory Reporting Program: Communities Have a Right to Know,
October 4, 2007. Senate Environment and Public Works Committee, Subcommittee on
Superfund and Environmental Health Hearing: Oversight of the EPA’s Environmental
Justice Programs, July 25, 2007.
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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.”96 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.97 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.98
EPA’s OEJ is developing the Environmental Justice Strategic Enforcement
Assessment Tool (EJSEAT), which it expects to begin using in FY2008. EJSEAT
is to be used by OECA 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.99 OEJ published a “Toolkit for
Assessing Potential Allegations of Environmental Injustice,” primarily to assist
agency staff in assessing allegations of environmental injustice.100 Citizens can
evaluate overlap between environmental conditions and demographic characteristics
by using EPA’s Environmental Justice Geographic Assessment Tool,101 through the
agency’s online database — EnviroMapper (see the discussion regarding EPA’s
various enforcement compliance databases in Appendix A).
96 Executive Order 12898, 49 Federal Register 7629, February 16, 1994,
[http://www.archives.gov/federal-register/executive-orders/1994.html].
97 EPA’s Office of Civil Rights (OCR) is responsible for the agency’s administration of Title
VI of the Civil Rights Act of 1964, including processing and investigating administrative
complaints under implementing regulations ( 40 C.F.R. Part 7) prohibiting EPA-funded
permitting agencies from “... permitting actions that are intentionally discriminatory or have
a discriminatory effect based on race, color, or national origin.” See [http://www.epa.
gov/civilrights/t6home.htm].
98 EPA reports that, since 1994, more than $31 million in funding has been provided to more
than 1,100 community-based organizations. For more information regarding EPA’s
Environmental Justice Program activities, see [http://www.epa.gov/compliance/
environmentaljustice/index.html].
99 EPA-OECA, “Environmental Justice Strategic Enforcement Assessment Tool (EJSEAT),”
[http://www.epa.gov/compliance/resources/policies/ej/index.html].
100 EPA-OECA, Office of Environmental Justice, EPA 300-R-04-002, [http://www.epa.gov/
compliance/resources/policies/ej/ej-toolkit.pdf].
101 EPA-OECA, Environmental Justice Geographic Assessment Tool, [http://www.epa.gov/
compliance/environmentaljustice/assessment.html].
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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 1990’s 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.102
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.103 Each EPA region has a designated
Compliance Assistance Coordinator, who participates in an agency-wide compliance
assistance workgroup. This workgroup is composed of representatives from each
EPA program office and the regional coordinators, and contributes to the
development of the agency’s annual Compliance Assistance Activity Plan.104
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.105 There are currently 15 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. Through partnerships, EPA has developed the National Compliance
Assistance Clearinghouse,106 providing Web-based access to compliance tools and
contacts, in order to facilitate information-sharing on compliance assistance. Trade
associations, universities, and consultants are also an increasing source of assistance
information.
102 ECOS, State Agency Contributions to Enforcement and Compliance, ECOS 01-004,
April 2001.
103 For more information regarding EPA’s compliance assistance programs, see
[http://www.epa.gov/compliance/assistance/index.html].
104 EPA-OECA [http://www.epa.gov/Compliance/assistance/planning/index.html].
105 For more information regarding the National Compliance Assistance Centers, see
[http://www.epa.gov/compliance/assistance/centers/index.html] or [http://www.assistance
centers.net/].
106 EPA National Compliance Assistance Clearinghouse, available at [http://134.67.99.39/
clearinghouse/index.cfm?TopicID=C:10:600:].
CRS-32
Table 4. Sector Web-Based Compliance Assistance Centers
Sectors
Agriculture
Metal Finishing
Automotive Recycling
Paints and Coatings
Automotive Service and Repair
Printed Wiring Board Manufacturers
Chemical Manufacturing
Printing
Construction
Transportation
Federal Facilities
Tribal Governments and Indian Country
Healthcare
U.S./Mexico Border Issues
Local Government
Source: Table created by CRS with information from the National Compliance Center websites,
available at [http://www.assistancecenters.net/].
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 1995.107 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.108 More recently, to further
promote compliance through the use of various incentive approaches, EPA has
encouraged incentive approaches as part of its core program guidance included in the
OECA FY2008 National Program Manager Guidance. The guidance was distributed
to Regional Administrators and State Environmental Commissioners in June 2007.109
EPA’s reliance on incentive approaches has been met with some skepticism by
those who favor more traditional enforcement. Critics are concerned that incentive
107 For more information regarding EPA’s incentive programs and initiatives, see
[http://www.epa.gov/compliance/incentives/index.html].
108 72 Federal Register 27116, May 14, 2007.
109 EPA-OECA, National Priorities for Enforcement and Compliance Assurance,
[http://www.epa.gov/compliance/data/planning/priorities/index.html].
CRS-33
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.110
Funding for Enforcement/Compliance Activities
The adequacy of resources needed by EPA, DOJ, and the states to effectively
enforce the major federal environmental pollution control laws is often highlighted
during congressional debate of fiscal year appropriations. Congress has specified
funding levels for certain aspects of EPA enforcement activities, or required the
agency to undertake certain actions under annual appropriations; an example is the
previously mentioned provision included in the House-passed FY2008 Interior and
Environmental Agencies Appropriations bill (H.R. 2643) that would have required
EPA to hire criminal investigators to bring the total number of investigators up to the
statutory requirement of 200, pursuant to the Pollution Prosecution Act of 1990.111
(The provision was not included in the FY2008 consolidated appropriations.112)
The FY2007 enacted appropriation for EPA’s enforcement activities was $549.0
million.113 Table 5 illustrates the distribution of funding and full-time equivalents
(FTEs) among various enforcement activities across the agency’s appropriations
accounts for the two most recently completed fiscal years. (Similarly detailed
information on the distribution of funding for other fiscal years, including FY2008,
is not readily available).
110 EPA-OIG: Performance Track Could Improve Program Design and Management to
Ensure Value, Report No. 2007-P-00013, March 29, 2007. GAO: Environmental Protection:
Challenges Facing EPA’s Efforts to Reinvent Environmental Regulation, RCED-97-155,
July 2, 1997.
111 Title VI — Additional General Provisions, Sec. 605 of H.R. 2643 as placed on the
Calendar of the Senate (June 28, 2007).
112 Joint Explanatory Statement Accompanying Division F of the Consolidated
Appropriations Act for FY2008 (P.L. 110-161, H.R. 2764), as presented in the
Congressional Record, December 17, 2007 (pg. H16142).
113 EPA’s appropriations are within the jurisdiction of the Interior, Environment, and Related
Agencies appropriations subcommittees.
CRS-34
Table 5. EPA-OECA’s FY2006-FY2007 Enacted Appropriation
and FTEs by EPA Appropriations Account and Program Activity
(dollars in thousands)
FY2006
FY2007
EPA Appropriation Account / Program Activity
Enacted
Enacted
Dollars
FTEs
Dollars
FTEs
Total
$521,604.0
3,469.3
$548,934.0
3,450.0
Environmental Programs Management (EPM)
$305,805.8
2,248.2
$322,933.0
2,241.2
Brownfields
$719.0
5.0
$768.0
5.0
Civil Enforcement
$117,746.2
945.0
$125,438.0
942.8
Compliance Assistance and Centers
$27,906.9
205.1
$29,070.0
204.8
Compliance Incentives
$9,409.1
75.9
$9,695.0
75.7
Compliance Monitoring
$85,373.5
625.7
$92,769.0
630.1
Congressionally Mandated Projects
$719.2
0.0
$0.0
0.0
Criminal Enforcement
$37,540.0
223.6
$38,939.0
221.6
Enforcement Training
$2,938.5
12.8
$2,562.0
12.8
Environmental Justice
$5,558.0
18.0
$4,675.0
16.9
Homeland Security
$3,175.9
20.8
$4,006.0
20.8
International Capacity Building
$671.5
5.7
$0.0
0.0
NEPA Implementation
$12,632.6
101.7
$13,967.0
104.0
Congressional, Intergov., Ext. Rel.
$1,141.2
8.9
$1,044.0
6.7
IT / Data Management
$274.2
0.0
$0.0
0.0
Science and Technology (S&T)
$13,122.7
83.8
$13,568.0
83.0
Forensics Support
$13,122.7
83.8
$13,568.0
83.0
State and Tribal Assistance Grants (STAG)
$25,913.2
—
$25,913.0
—
Categorical Grant: Pesticides Enforcement
$18,621.8
—
$18,622.0
—
Categorical Grant: Toxics Substances
$5,074.5
—
$5,074.0
—
Categorical Grant: Sector Program
$2,216.9
—
$2,217.0
—
Leaking Underground Storage Tanks (LUST)
$711.0
5.5
$724.0
5.5
Compliance Assistance and Centers
$711.0
5.5
$724.0
5.5
Oil Spills Response
$2,194.0
15.8
$2,007.0
15.8
Civil Enforcement
$1,910.0
14.0
$1,730.0
14.0
Compliance Assistance and Centers
$284.0
1.8
$277.0
1.8
Hazardous Substances Superfund
$173,857.3
1,116.0
$183,789.0
1,104.5
Civil Enforcement
$796.0
1.7
$880.0
1.7
Compliance Assistance and Centers
$11.0
0.0
$22.0
0.0
Compliance Incentives
$186.0
0.9
$141.0
0.9
Compliance Monitoring
$955.0
1.9
$1,182.0
1.9
Criminal Enforcement
$8,275.0
49.9
$9,047.0
49.2
Enforcement Training
$581.0
4.2
$612.0
4.1
Environmental Justice
$827.0
0.0
$757.0
0.0
Forensics Support
$3,643.0
24.8
$3,802.0
24.8
Homeland Security
$1,442.0
9.2
$1,813.0
9.2
Superfund: Enforcement
$147,683.3
939.6
$155,021.0
930.3
Congressional, Intergov., Ext. Rel.
$48.0
1.1
$151.0
1.1
Superfund: Federal Facilities Enforce.
$9,410.0
82.7
$10,361.0
81.3
Source: Compiled by the Congressional Research Service with data received from the Environmental
Protection Agency’s Office of Congressional and Intergovernmental Relations (OCIR) in a June 4, 2007,
written communication. An equivalent detailed breakdown for the FY2008 budget request was not available.
CRS-35
DOJ’s resource (funding/staff) requirements and outlays associated with its
litigation activities under the major federal pollution control statutes are, in the main,
a subset of the funding (proposed and previously appropriated) for ENRD in its
annual budget justifications. As discussed previously, ENRD is responsible for the
majority of DOJ’s support of the federal pollution control laws, as well as many other
responsibilities, including representing the United States in matters regarding natural
resources and public lands, acquisition of real property by eminent domain for the
federal government, and cases under wildlife protection laws.
The President’s FY2008 budget request for DOJ included $101.40 million for
ENRD, and $24.9 million included in the request for EPA was to be transferred to
ENRD through a reimbursable agreement for Superfund work, for a total of $126.3
million and 683 FTEs. FY2007 enacted levels for ENRD were $95.1 million, plus
$26.3 million transferred from EPA, for a total of $121.4 million and 674 FTEs. Of
the FY2007 budget, roughly $66.5 million and 366 FTEs were for environmental
litigation activities; $10.7 million and 59 FTEs were for criminal litigation conducted
by ECS; and $55.8 million and 307 FTEs were for civil environmental defensive and
enforcement litigation conducted by the Environmental Defense and the
Environmental Enforcement Sections.114
Detailed reporting of federal funding to states and states’ funding contributions
for pollution control enforcement/compliance activities is not readily available.
ECOS has tracked a broader category of state funding and expenditures that it defines
as annual “environmental and natural resource spending,” which, in more recent
years, has been primarily based on survey data reported by states. The data, which
include state and federal funding, are limited for purposes of enforcement of federal
pollution control laws in that they combine environmental and natural resource
spending. Also, states vary in how they track and report this type of spending. The
data do provide a source of state funding from a national perspective. For example
for FY2003, the most recent fiscal year reported, ECOS reported that states budgeted
a combined total of $15.0 billion for environment and natural resources spending;
this represents 1.4 percent of their combined total budgets. ECOS found that $5.0
billion, or one-third of the amount budgeted, was from federal funding to states for
these purposes.115
Federal appropriations, in particular allocations to states, for adequate staffing
and effective enforcement of federal environmental statutes to protect human health
and the environment, will likely continue to be an issue of concern.
114 DOJ, Justice Management Division, Budget Staff, FY2008 Budget and Performance
Summary 2008 Budget Highlights: Resources and Key Performance Measures by Strategic
Goal [http://www.usdoj.gov/jmd/2008summary/pdf/004_budget_highlights.pdf], and
information provided by ENRD in written communication to CRS. See also, Budget Trend
Data 1975 Through the President’s 2003 Request to the Congress, pp. 55-61, Spring 2002
[http://www.usdoj.gov/jmd/budgetsummary/btd/1975_2002/btd02tocpg.htm].
115 All dollar amounts are adjusted to a 2003 basis for inflation. ECOS Budget Survey:
Budgets are bruised ,but Still Strong, R. Steven Brown and Michael J. Kiefer, Summer 2003
ECOStates ([http://www.ecos.org/section/states/spending]).
CRS-36
Conclusion
Fully evaluating and measuring the overall effectiveness of current (and past)
enforcement/compliance activities can be quite complicated. Discussion throughout
this report highlights the difficulties inherent in characterizing the many facets of
environmental enforcement at a macro level, and identifies many of the factors that
may contribute to its perceived successes and shortcomings. However, several
indicators do provide insight into a better understanding of the complexities
associated with elements of enforcement, such as the vastness and diversity of the
regulated community, the multiplicity of the activities and priorities across many
regulating entities, and variability across statutes.
Since the establishment of EPA in 1970, Congress has been interested in a
number of crosscutting issues associated with the enforcement of pollution control
statutes and regulations, as reflected in provisions of enacted and amended
environmental legislation over time. Congressional interest remains heightened,
particularly with regard to the substance of intergovernmental relations, EPA-state
relations, and fiscal requirements. Congress’s involvement with these issues could
take several directions. One likely result could be oversight hearings. Alternatively,
relevant appropriations legislation may contain provisions or language regarding
funding for specific enforcement activities.
Congressional interest might focus on statutory approaches to establish changes
in the EPA-states’ partnership, such as legislation similar to past proposals
concerning refinement of the National Environmental Performance Partnership
System (performance partnerships, or NEPPS) and the associated grants award
process. Congress may also consider other statute-specific legislation to address
other longstanding concerns that affect enforcement/compliance activities.
The regulated community, public interest groups, federal and state officials, and
Congress are often divided on whether to pursue legislation that would further
expand or constrain enforcement/compliance. They are similarly divided with respect
to proposals that would expand states’ authority for implementing and enforcing
certain aspects of the major federal pollution control laws.
Views and congressional involvement with respect to these issues are likely to
evolve during the remainder of the 110th Congress and in the years ahead.
CRS-37
Appendix A. Enforcement/Compliance Databases
and Reporting
Compliance monitoring data are used to manage the compliance and
enforcement program, and to inform the public of enforcement actions taken and
penalties imposed. EPA and the states collect and maintain compliance/enforcement
data in many forms. ECOS reports that states collect about 94% of environmental
quality data contained in EPA’s databases, primarily from state issued permits and
monitoring programs.116 Information is often entered into multiple databases or
transferred from state databases. Historically, the databases were often incompatible,
making cross media/statute queries difficult. In recent years, EPA has been working
to integrate several of the individual databases to allow more cross referencing of
compliance data by regulators and to provide querying capabilities to the public.117
EPA compiles data from the various databases and provides various statistics
in the form of annual accomplishment and multi-year trends reports.118 Reporting has
traditionally focused on statute-by-statute results, including actions initiated and
concluded, and penalties and other sanctions assessed. How effectively the reported
information can be used as an indicator of environmental progress and the impacts
of environmental enforcement, has been an issue of some debate, and questioned in
reviews conducted by EPA-OIG.119 Critics contend, and EPA has long recognized,
that while somewhat indicative of the failure to comply with environmental
requirements, counting enforcement actions alone (“bean counting”) does not
provide a complete measure of the effectiveness of the national environmental
enforcement/compliance program.
EPA has initiated efforts to expand its reporting by including estimates of
environmental benefits (pollution reduction and impacts avoided). Additionally,
there have been efforts to account for states’ contributions; the FY2006 OECA
Accomplishment Report for the first time contained a brief summary of states’
enforcement accomplishments as reported by ECOS.
116 EPA, FY2006 OECA Accomplishment Report, EPA-300-R-07-001, Spring 2007
[http://cfpub.epa.gov/compliance/resources/reports/accomplishment/details.cfm].
117 For a more complete list and descriptions of EPA’s enforcement/compliance databases,
see [http://www.epa.gov/compliance/data/systems/index.html].
118 See “EPA Results and Reports” at [http://www.epa.gov/compliance/data/results/nets.
html].
119 EPA-OIG: Overcoming Obstacles to Measuring Compliance: Practices in Selected
Federal Agencies, Report No. 2007-P-00027, June 20, 2007; EPA Performance Measures
Do Not Effectively Track Compliance Outcomes, Report No. 2006-P-00006; Congressional
Request on Updating Fiscal 2003 EPA Enforcement Resources and Accomplishments,
Report 2004-S-00002 . [http://www.epa.gov/oig/].
CRS-38
Overview of Enforcement/Compliance Databases
A number of EPA’s single- and multi-media national databases include
enforcement and compliance data elements. While these databases are generally
available to EPA staff, and in some cases state and local governments, most are not
readily available to the public. The Enforcement and Compliance History Online, or
ECHO, developed and maintained by OECA is the most prominent publicly
accessible database. Introduced in 2003, ECHO queries provide a snapshot of the
most recent three years of a facility’s environmental compliance record, but are
limited primarily to certain requirements under the CAA, CWA, and RCRA. EPA
continues to expand the integration and capabilities of this and other databases.
Finally, several state environmental agencies maintain additional information about
compliance and enforcement (beyond what is reported to EPA systems).120
The following brief summaries of several of EPA’s integrated national databases
are a consolidation of descriptions provided on the agency’s website:
Enforcement and Compliance History Online (ECHO). ECHO is an
interactive website that allows users to query permit, inspection, violation,
enforcement action, informal enforcement action, and penalty information for
individual or multiple facilities. Initial queries return a list of relevant facilities, each
linked to a “Detailed Facility Report,” indicating:
! whether a facility has been inspected/evaluated,
! occurrence and nature of violations (noncompliance),
! nature of enforcement actions (including penalties) that have been
taken,
! contextual information about the demographics surrounding the
facility.
Envirofacts. Envirofacts provides public access to information about
environmental activities, such as releases, permit compliance, hazardous waste
handling processes, and the status of Superfund sites, that may affect air, water, and
land anywhere in the United States. Data are retrieved from various EPA source
databases. Users can develop on-line queries, create reports and map results.
[http://www.epa.gov/enviro/]
Facility Registry System (FRS). FRS (a companion to the integrated
facility searches in Envirofacts) can be used to create facility identification records,
including geographical location, and to locate sites or places subject to environmental
regulations or oversight (e.g., monitoring sites). Records are based on information
from EPA program national systems, state master facility records, and data collected
from EPA’s Central Data Exchange. [http://www.epa.gov/frs/]
120 Several states have provided direct links to related websites, which EPA posts on the
ECHO website at [http://www.epa-echo.gov/echo/more_state_data.html].
CRS-39
Integrated Compliance Information System (ICIS). ICIS integrates data
that are currently located in several separate data systems. ICIS contains information
on federal administrative and federal judicial cases under the following
environmental statutes: the CAA, CWA, RCRA, EPCRA, TSCA, FIFRA, CERCLA
(Superfund), SDWA, and MPRSA. The Web-based system enables states and EPA
to access integrated enforcement and compliance data. The public can only access
some of the federal enforcement and compliance information in ICIS by using the
EPA Enforcement Cases Search and EPA Enforcement SEP Search through ECHO.
[http://www.epa.gov/compliance/data/systems/modernization/index.html]
Integrated Data for Enforcement Analysis (IDEA). IDEA maintains
copies of EPA’s air, water, hazardous waste and enforcement source data systems
that are updated monthly. An internal EPA database, IDEA uses “logical” data
integration to provide a historical profile of inspections, enforcement actions,
penalties assessed and toxic chemicals released, for EPA-regulated facilities.
[http://www.epa.gov/compliance/data/systems/multimedia/idea/index.html]
Online Tracking Information System (OTIS). OTIS is a collection of
search engines which enables EPA, state/local/tribal governments and certain other
federal agencies to access a broad range of data relating to enforcement and
compliance. No public access is available. This Web application sends queries to the
IDEA system (discussed above). IDEA copies many EPA and non-EPA databases,
and organizes the information to facilitate cross-database analysis. [http://www.epa.
gov/compliance/data/systems/multimedia/aboutotis.html]
A number of other databases, mostly for single media, also include
compliance/enforcement data. Many of these databases are the basis for certain data
elements in the various integrated databases, and typically are not directly available
to the public. Other databases include
! the Air Facility System (AFS);
! Permit Compliance System (PCS);
! Resource Conservation and Recovery Act Information System
(RCRAInfo);
! National Compliance Data Base System and Federal Insecticide,
Fungicide, and Rodenticide Act/Toxic Substances Control Act
Tracking System (NCDB/FTTS); and
! Safe Drinking Water Information System/Federal (SDWIS/FED).
For a more complete list and descriptions of EPA’s enforcement/compliance
databases, see EPA’s “Compliance and Enforcement Data Systems” Web page at
[http://www.epa.gov/compliance/data/systems/index.html].
CRS-40
Appendix B. Examples of Reported
Enforcement Actions and Penalties Over Time
The following figures and tables provide examples of the type of enforcement
data collected, compiled and reported over time. They are intended to show
proportional relationships of the various types of enforcement actions (e.g.,
administrative vs. judicial) in a given year and by statute, not annual or long-term
enforcement trends. To compare the reported activities from year to year requires
more detailed information regarding the specific circumstances in those years. There
can be significant variability from year to year in how data were reported and which
entities reported. EPA has refined terms and definitions in the data elements from
year to year. Other factors that result in variability include the introduction of new
regulatory requirements in a given year, and fruition of statutory deadlines.
The figures presented below reflect longer-term data (15 to 20 years), whereas
the tables generally provide data for the most recent five or six years, depending on
the availability of data for the most recent fiscal year (FY2007).
CRS-41
Figure 2. EPA Civil Judicial Referrals, Administrative Order
Complaints, and Criminal Referrals, FY1991-FY2007
5000
s
n 4500
tio
c 4000
Total # of EPA
t A
Criminal Referrals (Not
3500
n
Reported FY05-FY07)
3000
Total # of EPA Admin.
rceme 2500
Order Complaints
fo
n 2000
f E 1500
Total # of Civil Judicial
o
Referrals
er 1000
mb
500
u
N
0
1991 1993 1995 1997 1999 2001 2003 2005 2007
Fiscal Year
Source: Compiled by CRS using data from EPA’s: National Enforcement Trends FY2004 —
Criminal Enforcement; National Enforcement Trends — Enforcement Actions (FY 2006), and
Compliance and Enforcement Annual Results - FY2007 [http://www.epa.gov/compliance/data/results/
index.html].
Table B-1. EPA Civil Administrative, Civil Judicial, and
Criminal Enforcement Actions, FY2002-FY2006
Enforcement Action
FY2002 FY2003 FY2004 FY2005 FY2006 FY2007
Administrative Compliance
Orders
1,250
1,582
1,807
1,916
1,438
1,247
Administrative Penalty
Order Complaints
1,533
1,888
2,122
2,229
4,647
2,237
Final Administrative
Penalty Orders
1,417
1,706
2,248
2,273
4,624
2,255
Civil Judicial Referral
252
268
268
259
286
278
Civil Judicial Cases
Concluded
216
195
176
157
173
180
Criminal Judicial Referral
250
228
168
NR
NR
NR
Criminal Judicial Cases
Initiated
674
508
422
372
305
340
Source: Compiled by CRS using data from EPA’s National Enforcement Trends — Enforcement
Actions (FY 2006), and the agency’s Compliance and Enforcement Annual Results - FY2007
[http://www.epa.gov/compliance/data/results/index.html].
NR = not reported. EPA terminated the count of criminal referrals as an internal Criminal
Enforcement program measure in FY2005 and discontinued reporting this data in its trends reports.
CRS-42
Figure 3. Number of EPA Federal Inspections and Evaluations
by Statute, FY1994-FY2006
25000
s
n
o 20000
ti
a
f
lu
a 15000
r o
v
e
b
E
s/
m
n 10000
o
Nu
ti
ec
5000
sp
In
0
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006
Fiscal Year
CAA
CWA
EPCRA
FIFRA
RCRA
SDWA
TSCA
Source: Compiled by CRS using data from EPA’s FY2006 National Enforcement Trends -
Enforcement Actions [http://epa.gov/compliance/data/results/nets.html].
Table B-2. Number of EPA Enforcement Inspections and
Evaluations by Statute, FY2002-FY2006
Statute
FY2002
FY2003
FY2004
FY2005
FY2006
CAA
809
1,019
2,524
3,362
3,918
CWA
3,553
3,769
3,726
3,650
4,453
EPCRA
733
987
970
905
928
FIFRA
810
338
472
215
344
MPRSA
NR
3
4
0
0
RCRA
2,480
2,970
3,042
2,768
3,812
SDWA
6,545
7,418
8,501
8,771
7,768
TSCA
2,738
2,376
1,792
1,611
2,008
Total
17,668
18,880
21,031
21,282
23,231
Source: Compiled by CRS using data from EPA’s FY2006 National Enforcement Trends —
Enforcement Actions [http://epa.gov/compliance/data/results/nets.html].
Notes:
CAA: Clean Air Act
CWA: Clean Water Act
EPCRA: Emergency Planning and Community Right-to-Know Act
FIFRA: Federal Insecticide, Fungicide and Rodenticide Act
MPRSA: Marine Protection, Research, and Sanctuaries Act
RCRA: Resource Conservation and Recovery Act
SDWA: Safe Drinking Water Act
TSCA: Toxic Substances Control Act
CRS-43
Figure 4. Environmental Enforcement Penalties Assessed by EPA:
Administrative, Civil Judicial, and Criminal, FY1986-FY2007
Adjusted for Inflation (2007 dollars)
$350
s $325
ion
ill $300
M $275
$250
$225
$200
$175
$150
$125
$100
$75
$50
$25
$0
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
2006
Fiscal year
Civil Administrative Penalties
Civil Judicial Penalties
Criminal Penalties
Source: Compiled by CRS using data from EPA’s National Enforcement Trends — Enforcement
Actions (FY 2006), and the agency’s Compliance and Enforcement Annual Results - FY2007
[http://www.epa.gov/compliance/data/results/index.html]. Amounts were converted to 2007 dollars
using the GDP Chained Price Index from the Office of Management and Budget, Budget of the U.S.
Government for FY2009, Historical Tables [http://www.whitehouse.gov/omb/budget/fy2009/].
Table B-3. Environmental Enforcement Penalties Assessed
by EPA: Administrative, Civil Judicial, and Criminal,
FY2002-FY2006
(dollars in thousands — not adjusted for inflation)
Fiscal Year
Administrative
Civil Judicial
Criminala
Total
FY2002
$25,860
$63,817
$62,252
$151,929
FY2003
$24,376
$72,260
$71,000
$167,636
FY2004
$27,637
$121,213
$47,000
$195,850
FY2005
$26,731
$127,206
$100,000
$253,937
FY2006
$42,007
$81,808
$43,000
$166,815
FY2007
$30,700
$39,800
$63,000
$133,500
Source: Compiled by CRS using data from EPA’s National Enforcement Trends — Enforcement
Actions (FY 2006), and the agency’s Compliance and Enforcement Annual Results - FY2007
[http://www.epa.gov/compliance/data/results/index.html].
a. Criminal penalties represent fines and restitution.
CRS-44
Figure 5. EPA Supplemental Environmental Projects: Number of
Projects and Dollar Value, FY1999-FY2007
250
$250
r
200
$200
o
,
f
Ps
s
d
P
e
E
st
150
f SE
$150
f S
ju
)
n
r o
e
e o
t ad
tio
b 100
$100
lu
o
m
a
n
fla
u
(
s
in
N
r V
a
n
50
$50
ll
o
illio
D
M
0
$0
in
1999
2000
2001
2002
2003
2004
2005
2006
2007
Fiscal Year
Number of SEPs
Total Dollar Value
Source: Compiled by CRS using data from EPA’s National Enforcement Trends — Enforcement
Actions (FY 2006), and the agency’s Compliance and Enforcement Annual Results - FY2007
[http://www.epa.gov/compliance/data/results/index.html].
Table B-4. Supplemental Environmental Projects (SEPs)
Dollar Values as Reported by EPA: FY2001-FY2006
Statute
FY2001
FY2002
FY2003
FY2004
FY2005
FY2006
CAA
$33,805,273 $33,109,876 $36,322,929
$21,816,001 $31,637,689 $41,712,947
CERCLA
$830,957
$2,960,218
$207,035
$564,821
$363,145
$2,732,762
CWA
$3,390,528 $13,078,678
$7,979,944
$16,067,018 $18,427,947 $21,712,824
EPCRA
$3,711,428
$1,223,257
$4,638,911
$1,094,415
$1,426,046
$1,208,242
FIFRA
$107,000
$12,000
$0
$247,359
$62,056
$31,090
MPRSA
NR
NR
$0
$0
$104,000
$0
RCRA
$44,393,575
$6,261,460 $15,218,061
$2,757,927
$3,249,467
$2,923,336
SDWA
$2,290,419
$428,200
$0
$322,911
$734,596
$133,055
TSCA
$585,776
$832,652
$1,054,709
$5,031,478
$1,031,121
$7,313,084
Total
$89,114,956 $57,906,341 $65,421,589
$47,901,930 $57,036,067 $77,767,340
Source: Compiled by CRS using data from EPA’s National Enforcement Trends — Enforcement
Actions (FY 2006) [http://www.epa.gov/compliance/data/results/index.html].
Notes:
CAA: Clean Air Act
CERCLA: Comprehensive Environmental Response, Compensation and Liability Act (Superfund)
CWA: Clean Water Act
EPCRA: Emergency Planning and Community Right-to-Know Act
FIFRA: Federal Insecticide, Fungicide and Rodenticide Act
MPRSA: Marine Protection, Research, and Sanctuaries Act
RCRA: Resource Conservation and Recovery Act
SDWA: Safe Drinking Water Act
TSCA: Toxic Substances Control Act