Enforcement of Environmental Laws

1. Enforcement of Environmental Laws David Tetta, Alton Associates LLC

2. Legal Authorities • Nearly all environmental laws have enforcement provisions • Civil • Criminal • Specify maximum amounts of civil penalties • Per day • Per violation • Vary with statute • Usually detail specific criminal acts • Falsifying records • Intentionally discharging without permit David Tetta, Alton Associates LLC

3. Topics • Administrative Enforcement • Regional Implementation • Administrative Process • Civil Enforcement • Criminal Enforcement • Citizen Suits David Tetta, Alton Associates LLC

4. General Concepts - Administrative Law • Agencies act within powers delegated to them • Agency opinions given deference in most proceedings • APA governs (rulemaking and enforcement) – can’t be arbitrary and capricious • In order to appeal need standing and ripeness David Tetta, Alton Associates LLC

5. Enforcement Response Process • Informal • Notice of Violation • Formal • Administrative Order, Consent Order • Civil • Referral, Complaint, Consent Decree • Settlements • Pertains to Admin and Civil Cases • Core Concept: Timely and Appropriate Response to High Priority Violators David Tetta, Alton Associates LLC

6. Formal Orders • Typically for “High Priority Violators” • Definition varies with stature • Administrative: • Complaint (Penalty), Consent Order, Compliance Order • Civil • Referral, Civil Complaint, Consent Decree David Tetta, Alton Associates LLC

7. Why Administrative? • Agency chooses • Easier, faster • EPA’s Turf • EPA Consolidated Rules of Practice - agency lawyers familiar with • Involves fewer outside parties David Tetta, Alton Associates LLC

8. Consolidated Rules of Practice • Broad scope • Penalties for all EPA laws, permit denials in some cases • Filing of complaint • Filed with regional hearings clerk, sent to Chief ALJ at EPA HQ • Defendant has 30 days to respond and request hearing (trial) • May also request an informal conference David Tetta, Alton Associates LLC

9. ALJ PRocess • Hear 400 cases per year - Average penalty 170k • Typical timeframe from filing to decision - 18 months • Discovery is limited • Presiding Officer Directs EPA & Defendant to share • All documents which will be presented • All witnesses and their expected testimony • Motion required for additional information • Must meet several thresholds in order to be approved David Tetta, Alton Associates LLC

10. ALJ Process • EPA files complaint, lodged with hearings clerk • Lists violations • Penalty according to penalty matrix + injunctive relief • Defendant responds • EPA/defendant hold regular conferences to resolve/settle • Deadlines strictly enforced • Provisions for accelerated decision • Equivalent to motion for summary judgement in civil case David Tetta, Alton Associates LLC

11. Penalty Matrix - Civil and Admin • Looks at: • Potential for harm • Extent of deviation from requirements • Up to statutory limits • Also factors in: • Good faith efforts • Degree of willfulness/negligence • History of non-compliance • Ability to pay • Economic benefit of non-compliance David Tetta, Alton Associates LLC

12. ALJ Process • EPA both prosecutor and judge • Prohibitions on ex parte communications • Hearings may be held in DC, Region or Defendant’s county • Witnesses, exhibits similar to civil, but Rules of Evidence are more informal • Trials generally last just a few days • At end, EPA, Defendant offer opposing findings of fact/conclusions of law, proposed order, supporting briefs David Tetta, Alton Associates LLC

13. ALJ Process • Presiding officer issues”Initial Decision” • All material issues of law or discretion • Proposed penalty, explanation of why it differs from EPA’s (if that is the cae) • Decision becomes final unless • either party files motion to reopen within 45 days • Motion to appeal within 30 days David Tetta, Alton Associates LLC

14. Environmental Appeals Board • Provides for orderly review of important issues of law prior to federal court review • Latter done typically pursuant to Administrative Procedures Act • Usually response to motion to appeal ALJ decision • Also certain permit cases, CERCLA cost reimbursement disputes • Opposing party must file brief within 20 days after that • Board composed of four members • Panel of three typically hears a case • Review is de novo • Final decision last step in admin process David Tetta, Alton Associates LLC

15. Civil Enforcement • Usually reserved for large penalty, egregious violations, national significance • Initiated by referral to USDOJ • Only accept cases they have good chance of winning • Defendant and DOJ have strong incentive to settle • Settlement in form of consent decree, published in Federal Register and Filed with Court • Public Comment before it becomes final David Tetta, Alton Associates LLC

16. Supplemental Environmental Projects • Allows company to do other work in lieu of penalty • Must not be otherwise required to perform • Types of projects • Pollution Prevention - Pollution Reduction • Environmental Restoration - Audit Projects • Compliance Promotion - Planning/Preparedness • Final penalty must still capture economic benefit • 1999 - 197 Decrees and Final Orders w/SEP value of over 236 million David Tetta, Alton Associates LLC

17. I.SCOPE OF RULES--ONE FORM OF ACTION II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS III. PLEADINGS AND MOTIONS IV. PARTIES V. DEPOSITIONS AND DISCOVERY VI. TRIALS VII. JUDGMENT VIII. PROVISIONAL AND FINAL REMEDIES IX. SPECIAL PROCEEDINGS X. DISTRICT COURTS AND CLERKS XI. GENERAL PROVISIONS XII. APPENDIX OF FORMS XIII. SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS Rules of Civil Procedure David Tetta, Alton Associates LLC

18. Controversy Prior to filing. Complaint Answer Intervention Motion Counterclaim Answer to counterclaim Amended Complaint Answer to Amended Complaint. Discovery Pretrial Order Appointment of Amicus Motion for Recusal Trial 2d Amended Answer Mistrial Motions Judgment Appeal Steps in Trial Process David Tetta, Alton Associates LLC

19. Criminal Enforcement • Most environmental statutes have provisions for criminal enforcement • General • Knowing endangerment • Filing false reports • Specific • CWA – intentional discharges • RCRA – Treatment without permit • Fines and imprisonment David Tetta, Alton Associates LLC

20. Process • Each region has criminal investigations office • Follow up on tips by individuals, other jurisdictions, EPA staff • Number of issues in deciding to pursue lead • EPA Crimes Section conducts investigations • Referral to DOJ for prosecution • DOJ usually takes case, begins prosecution David Tetta, Alton Associates LLC

21. Criminal Prosecution Issues • Parallel proceedings (civil and criminal) • Criminal gets priority • Care taken in criminal-civil communications • Ex. No inspections to support criminal investigation • Information must meet specific criteria to be communicated • Double Jeopardy • Corporate office doctrine • EPA looks to include officers where practicable David Tetta, Alton Associates LLC

22. Citizen Suits • Most statutes have provisions for citizen suits • Started with 1970 CAA - expanded as other laws adopted or amended • Must have standing, ongoing violations • Can be against facility or EPA • Notice must be given • Provisions for recovery of attorney fees • Can be preempted by EPA/state action • EPA could also join or comment on settlement David Tetta, Alton Associates LLC