Pacific Southwest, Region 9
Serving: Arizona, California, Hawaii, Nevada, Pacific Islands, Tribal Nations
Introduction: Environmental Enforcement and Compliance
- What is the mission of EPA and its regulatory partners?
- How do EPA, tribal and state agencies work together to achieve compliance with our nation's environmental laws?
- How does the environmental enforcement and compliance process work?
EPA's basic mission is to protect human health and the environment -- air, water, and land. EPA, state, local and tribal agencies work together to ensure compliance with environmental laws passed by Congress, state legislatures and tribal governments. These laws cover four types of environmental regulations: controlling the emission discharge of pollution; regulating certain industrial waste and products; public information requirements; and cleanup of contaminated sites. There are also state, tribal and local laws aimed at protecting public health and environment. EPA has strengthened its enforcement and compliance assurance program by expanding, in consultation with its partners, innovative approaches to compliance and enforcement. Employing an integrated approach of compliance assistance, compliance incentives and civil and criminal enforcement, EPA and its partners work to maximize compliance and reduce threats to public health and the environment.
How do EPA, the states and tribes work together to enforce environmental laws and promote compliance?
Once a law is passed by Congress, EPA drafts regulations to clarify how to put it into effect. To ensure consistency and fairness, EPA also develops enforcement programs and uses policies and guidance to assist the regulated community to interpret and implement the regulations.
Our federal environmental laws set national standards for environmental protection, and provided that a state can assume primary responsibility enforcing these standards, it adopts laws that are at least as stringent as the federal laws. Many states have assumed this responsibility through delegation of specific programs. The federal government continues to have enforcement authority in all cases, and EPA has oversight responsibility over the states' activities, and monitoring state and tribal implementation of EPA approved programs. EPA works cooperatively with the states and tribes to better achieve effective enforcement and environmental compliance, and continues to support approved state programs through grant funding, and sharing the work.
To address environmental problems EPA uses innovative strategies that combine compliance assistance, incentives, monitoring and enforcement tools. Compliance assistance helps the regulated community (business, industry and government) understand and meet their environmental obligations. Compliance incentives provide new and creative ways of achieving environmental results. Monitoring and enforcement help protect the environment by assuring compliance with federal environmental laws.
- Providing compliance assistance
- Promoting compliance incentives
- Compliance monitoring
- Enforcement response
- Monitoring return to compliance
EPA, as well as state agencies, make a vigorous effort to educate the regulated community. EPA has developed various compliance assistance tools to help business, industry and government comply with environmental requirements. Among these are the Resources and Guidance Documents for Compliance Assistance, developed to give users quick access to compliance assistance and materials. EPA's nine sector-based Compliance Assistance Centers help small businesses and local governments. The Toxics Release Inventory (TRI) Program provides valuable information to the public about toxic chemicals and to the businesses that are subject to the law requiring disclosure on their releases to the environment. Compliance assistance hotlines; workshops/training, fact sheets and other compliance guidelines all provide important information to the regulated community.
Included in the mix of compliance/enforcement tools are incentives that encourage self-policing through identification, correction, and disclosure of violations by regulated facilities. Finding innovative ways to motivate compliance assures better environmental results. EPA's Compliance Incentives & Auditing Web site includes innovative approaches, such as a self-auditing policy to disclose compliance information, as well as guides to better environmental management practices and pollution prevention. EPA’s National Performance Track Web Site provides information on a voluntary program to recognize and reward businesses and public facilities that demonstrate strong environmental performance beyond current requirements.
A key factor in protecting the environment is assuring compliance with environmental regulations through effective monitoring and compliance assessment. Unless there is compliance, laws and regulations have little impact. There are many ways to determine whether a facility complies with environmental laws and regulations:
Inspections: EPA and state or tribal agencies conduct on-site inspections to determine compliance with federal environmental laws. Inspectors may check to ensure that proper permits are in order or procedures are followed, to ensure that hazardous materials are correctly labeled and handled, or that emergency plans are in place. EPA also works with state agencies for some program inspections.
Routine self-reporting: Industries can be required to routinely monitor their own emissions or discharges, and report these to the government. Failure to monitor, or reporting of inaccurate information, are potential compliance problems which must be part of the overall enforcement strategy.
Targeted information gathering: Instead of, or in addition to routine self-monitoring, EPA may require a business to carry out specific self-testing, or to report other relevant information. EPA may examine operating logs and financial records to show when pollution control equipment was purchased or installed, how much and what type of fuel was used, etc. Congress has granted EPA broad information gathering authorities, which can be used when violations are suspected. Using data efficiently and effectively means smarter enforcement actions that produce beneficial and measurable environmental outcomes. A good use of data can help enforce strategically and wisely. A good use of data can result in smart enforcement actions which will produce beneficial and measurable environmental outcomes
Investigations: Generally a more comprehensive and detailed assessment of a facility's compliance than inspections, investigations may be warranted when an inspection or record review suggests the potential for serious, widespread, and/or continuing civil or criminal violations.
Citizen Tips and Complaints: Tips from community members living near a facility, or workers in a facility, can be very valuable in identifying possible violations. Such tips can be encouraged by publicizing regulations, and making telephone"hotlines" available for anonymous calls. Some federal environmental laws also provide legal job protection for "whistle-blowers" who report infractions by their employers.
Remote sensing: Technology available today can "stretch" EPA's limited inspection resources. For example, aerial photography or satellite data can disclose potential hazardous waste sites through the presence of dead or dying vegetation. Aerial photos showing changes over time can disclose illegal filling of wetlands, or unauthorized landfills. Infrared photography can yield clues to the location of industrial discharges (including thermal discharges) into waterways. EPA has also developed a mobile laser beam device for precise remote measurement of the opacity (density) of smoke stack plumes at night.
An effective compliance monitoring program will detect violations. An enforcement response policy instructs government agencies on how to respond to these violations in a timely and appropriate manner. Timeliness is very important. A prompt enforcement response is more effective in deterring future violations than a long delayed response of greater severity.
In determining an appropriate response to a violation, it is first necessary to assess the range of sanctions legally available. For most of the environmental programs administered by EPA and the states, a wide range of enforcement options is available:
Informal response: Agencies can simply notify the violator and request that they come into compliance, without taking any further formal legal action. They may request that the facility operator certify in writing that it has come into compliance.
Formal administrative enforcement: Government agencies can also issue an administrative order to compel compliance, and in many cases can impose a monetary penalty for past infractions.
Formal civil/judicial enforcement: EPA, through the U.S. Department of Justice, can initiate a civil lawsuit against a violator in the federal district courts. Such a lawsuit may seek a court order compelling compliance and imposing a monetary penalty. Civil lawsuits are more involved than administrative enforcement proceedings, but carry greater weight since the federal district courts can enforce their own orders.
Criminal enforcement: The criminal provisions of the environmental laws are the most powerful enforcement tools available to the Agency. These provisions enable the Agency to pursue criminal investigations and refer for prosecution the most significant and egregious violators. Criminal penalties can include the imprisonment of responsible individuals, substantial fines, and restitution to victims.
Cleanup enforcement: At sites where there's been a migration or a release of hazardous substances into the environment, EPA investigates the identity of, and negotiates with, potentially responsible parties to do the cleanup or to recover the costs of a cleanup. These environmental cleanups also affect federal facilities and occur under the Comprehensive, Environmental Response, Compensation and Liability Act (CERCLA or Superfund), the Resource Conservation and Recovery Act (RCRA), and the Oil Pollution Act (OPA). EPA encourages cleaning up and developing formerly contaminated sites through the Brownfields Initiative.
Selecting An Enforcement Response
In selecting among the enforcement options listed above, EPA will evaluate the severity and duration of the violation, risk to human health and environment, and the past compliance history of the violator. For example, an informal response may be deemed appropriate for one who, for the first time, commits a relatively minor violations, particularly if the regulatory requirement is new. Most violations will be the subject of administrative enforcement actions. A repeat violator will likely face a civil judicial lawsuit. And the most serious violations that are the result of deliberate or negligent actions (including serious repeat violations) will be handled as criminal prosecutions. For many of its programs, EPA has issued official guidance documents which assist EPA Regional offices in determining the appropriate enforcement response to a given violation.
Settlement of Enforcement Cases
As is true in other areas of the law, most EPA enforcement cases are settled before trial or hearing. EPA and the states use a variety of written penalty policies to determine what penalty it should seek in settling a case, and also what its "bottom line" for the penalty amount will be in settlement discussions with a violator. When seeking penalties, EPA considers the economic benefit violators may have gained from noncompliance as well as the environmental harm. Penalties serve to "level the playing field" and ensure that noncompliers do not gain a competitive advantage over competitors who have invested time and money to comply.
Notification and the Deterrent Effect
In major cases EPA and the states will often publicize their enforcement actions through news releases. This helps deter future violations among the regulated community. The idea is that if facilities are more aware of the monetary risks of noncompliance, they will have more incentive to comply voluntarily. EPA publishes "Enforcement Alert" Newsletters to inform the regulated community of specific areas where EPA is finding significant violations.
As part of their programs, EPA and the states also monitor compliance after a violation. Facilities are typically required to document claims that violations are no longer occurring, and this final step usually completes the enforcement process at a given facility.
Note: This introduction is provided for informational purposes only and does not create any new rights, responsibilities or liabilities for the government or industry.