Legal Practitioner's Guide
EPA is empowered by Congress to take enforcement action against parties that violate federal environmental laws. These enforcement actions fall into two major categories:
Civil and Criminal Judicial Actions
Most statutes authorize U.S. EPA, through the United States Department of Justice, to file actions in federal district court to obtain civil penalties and/or appropriate injunctive relief against violators. Criminal penalties are also authorized under most of these statutes. In these federal district court proceedings, the Federal Rules of Civil (or Criminal) Procedure and the local rules of the particular district court govern the practice before the court.
Most of the environmental statutes also authorize U.S. EPA to issue administrative orders to violators. These orders may require compliance and/or assess civil penalties, depending upon the nature of the statutory authorization and the violations involved in the particular case. Most administrative penalty order proceedings are governed by U.S. EPA's "Consolidated Rules Of Practice Governing The Administrative Assessment Of Civil Penalties And The Revocation Or Suspension Of Permits," which are set forth at 40 C.F.R. Part 22. The types of administrative penalty actions subject to 40 C.F.R. Part 22 are set forth at 40 C.F.R. section 22.01. In other administrative penalty order proceedings, various internal agency rules of practice govern the adjudication. The rules governing administrative penalty proceedings assure that all Respondents receive a fair opportunity for a hearing prior to issuance of the final order, as required by the federal Administrative Procedure Act (APA). In terms of basic structure, these proceedings resemble typical civil court litigation proceedings although there are some very significant differences, such as extremely limited opportunity for discovery.
ORC represents U.S. EPA in all administrative penalty order proceedings. The Regional Hearing Clerk (service hours, mailing address) maintains the official case file unless the parties are notified otherwise.
All penalty order adjudications are initiated by U.S. EPA filing a document with the Regional Hearing Clerk. In cases governed by 40 C.F.R. Part 22, the document is termed a "Complaint," while in other cases it may be referred to as a "Complaint" or "Proposed Administrative Order."
In adjudications governed by the procedures set forth at 40 C.F.R. Part 22, the case is presided over by an Administrative Law Judge (ALJ) who is assigned from U.S. EPA's Office of the Administrative Law Judges in Washington, D.C., after the Respondent files an Answer to the Complaint. Prior to the filing of an Answer by the Respondent, the case is presided over by the Regional Judicial Officer (RJO). In penalty adjudications not under 40 C.F.R. Part 22, the RJO presides over the proceeding at all times.
In general, either of the parties may administratively appeal an adverse initial decision by the presiding officer. In cases governed by 40 C.F.R. Part 22, an appeal is made to U.S. EPA's Environmental Appeals Board. See 40 C.F.R. Subparts F and G.