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Civil Administrative Enforcement of Environmental Laws

Civil Administrative Enforcement of Environmental Laws. Direct Authority. This is authority granted by the legislature to the Administrator of EPA. May order compliance and/or a penalty for noncompliance. May be delegated by the Administrator. May take many forms, often creative.

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Civil Administrative Enforcement of Environmental Laws

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  1. Civil Administrative Enforcement of Environmental Laws

  2. Direct Authority • This is authority granted by the legislature to the Administrator of EPA. • May order compliance and/or a penalty for noncompliance. • May be delegated by the Administrator. • May take many forms, often creative. • No need to go to Federal Court.

  3. EPA Civil Administrative Enforcement Process Informal • Action taken by Agency based on its own authority to inform facility of violation and potential enforcement (e.g., Warning Letters, Notice of Violation) • Used as first response with escalation to formal enforcement if action fails to achieve desired response

  4. Administrative Process con’t. Formal • Established process whereby legal action can be taken via an EPA administrative system that allows EPA to enforce environmental statutes through either unilateral or consent orders • Administrative Compliance Orders (ACOs) used to compel facility to comply with environmental requirements on an established schedule • Administrative Penalty Orders (APOs) used to assess penalties • Orders not self-enforcing. If facility does not comply, EPA must take action judicially • Does not require coordination with separate prosecutorial agency (DOJ)

  5. Administrative Process con’t. Formal con’t. - Parties receiving ACOs/APOs may request hearing before specialized Administrative Law Judge (ALJ) with environmental expertise • Certified by Office of Personnel Management and appointed in accordance with 5 U.S.C. § 3105. They have decisional independence pursuant to Section 557 of the Administrative Procedure Act, 5 U.S.C. § 557 which ensures fair and impartial resolution of proceedings. • ALJs conduct hearings, render decisions, and issue final orders - ALJs offer all litigants opportunity to resolve enforcement cases through Alternative Dispute Resolution with ALJ serving as a neutral • If litigant declines, case assigned for litigation before another ALJ

  6. Administrative Process con’t. Formal con’t. - ALJ decisions subject to review by Environmental Appeals Board (EAB) • ALJ initial decision becomes final EPA order within 45 days after service upon parties unless a party appeals to EAB or EAB elects to review initial decision. - EAB is impartial body independent of all Agency components outside the immediate Office of Administrator - Parties can appeal EAB decision judicially - Regional Judicial Officers (RJOs) perform adjudicatory functions and act as Agency neutrals in administrative cases. • Generally, senior EPA attorneys

  7. Advantages of Administrative Process • Appropriate for routine, relatively simple violations requiring limited injunctive relief and/or short compliance schedules • Some statutes limit time allowed for injunctive relief (e.g., CAA allows administrative order if relief sought can be completed within 1 year) • Appropriate with smaller penalties • Some statutes establish penalty cap (e.g., CAA cap is $200,000, but can be revised with DOJ consent) • By comparison, single largest civil judicial penalty >$30M; whereas, total administrative penalties assessed in FY 2009 were ~$32M • Enables Agency to address broader range of violations and maintain greater field presence with limited resources • Less costly and time-consuming than judicial approach with violations resolved more quickly

  8. Roles/Responsibilities • Headquarters and Regions: Same as for Civil Judicial Enforcement • Staff are same • Enforcement Response Policies, Penalty Policies and calculations are same • States/Locals/Tribes: Not involved in administrative enforcement • EPA communicates and coordinates with agencies • Some have independent administrative authority • Citizens: • Can not bring cases administratively, but may comment on settlement proposals

  9. Incentive Programs • Programs available for both civil and administrative enforcement • Self Disclosure Policy • Must meet specified criteria: systematic, voluntary, independent discovery; independent, prompt disclosure; prompt correction; cooperation; prevent recurrence • Reduced gravity component of penalties • Agreement to not prosecute criminally • Small Business Policy • Applies Self Disclosure Policy to businesses with 100 or fewer employees

  10. Incentive Programs con’t. • Expedited Enforcement Settlement Offers • Offer very small penalty to first time violators if they come into compliance quickly (usually within 30 days) • Facility required to submit documentation to demonstrate that in compliance • Supplemental Environmental Projects (SEPS) • Facility voluntarily agrees to undertake environmentally beneficial project related to the violation in exchange for mitigation of penalty • Does not include activities that violator must take to return to compliance

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