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Enforcement

Select Executive Orders on Environmental Compliance Requirements for Federal Facilities

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For Executive Orders 11752, 12088 and 12114, see: "International Environmental Requirements"
 

Executive Order 12088 At A Glance 

Title: Federal Compliance with Pollution Control Standards 
 
Issued: October 13, 1978
 
Amended: January 23, 1987, by Executive Order (E.O.) 12580, Superfund Implementation 
 

Overview

 
The President issued E.O. 12088 to ensure that federal agencies would comply with federal, state, and local pollution control requirements. E.O. 12088 requires a federal agency to notify and consult with its regulator regarding a compliance plan and schedule when the regulator has violated an applicable pollution control standard. This process is in addition to, and not in lieu of, other present or future enforcement actions taken against a federal facility. E.O. 12088 also establishes an administrative process allowing the EPA to resolve conflicts regarding federal agency environmental violations when the Director of the Office of Management and Budget or the EPA Administrator is unable to resolve the conflict.
 

Applicability of Pollution Control Standards

 
Section 1-1 of E.O. 12088 requires each federal agency to take all necessary actions to ensure they meet their pollution control responsibilities with respect to federal facilities and activities under the control of the agency. “Applicable pollution control standards” are the same control standards required of private individuals in substance and procedure. 
 

Agency Coordination

 
Section 1-2 of E.O. 12088 requires each federal agency to cooperate with EPA, state, interstate, and local agencies in the prevention, control, and abatement of environmental pollution. Section 1-2 also requires federal agencies to consult with EPA, state, interstate, and local agencies concerning the best techniques and methods available to prevent, control, and abate environmental pollution. 
 

Technical Advice and Oversight

 
Section 1-3 of E.O. 12088 requires EPA to provide technical advice and assistance to federal agencies to ensure that federal pollution control actions are cost-effective, timely, and in compliance with applicable pollution control standards. In addition, the EPA Administrator is required to conduct reviews and inspections of federal facilities and activities to monitor compliance with applicable pollution control standards. 
 

Pollution Control Plan

 
The former requirements of Section 1-4 of E.O. 12088 regarding pollution control plans were revoked by section 901 of Executive Order 13148, Greening the Government Through Leadership in Environmental Management (April 21, 2000).  
 

Funding

 
Section 1-5 of E.O. 12088 requires the head of each federal agency to ensure that sufficient funds for environmental compliance be included in the agency’s budget. Additionally, the appropriate and lawful use of funds appropriated and apportioned for pollution control responsibilities are the responsibility of the head of each federal agency. However, if a federal agency makes a request to use those funds for other purposes, and it is a lawful request, OMB must specifically approve that use. 
 

Compliance with Pollution Controls/Dispute Resolution

 
Section 1-6 of E.O. 12088 specifies that whenever the EPA Administrator or the appropriate state, interstate, or local agency notifies a federal agency that it is in violation of an applicable pollution control standard, the federal agency will promptly consult with the notifying agency. The notifying agency will provide for its approval a plan to achieve and maintain compliance with the applicable pollution control standard. Additionally, section 1-6 states the EPA Administrator shall make every effort to resolve conflicts regarding such violation between federal agencies. Furthermore, at the request of any party, the EPA Administrator will resolve conflicts between a federal agency, state, interstate, or local agency. 
 
If the EPA Administrator is unable to resolve the conflict, section 1-6 states that the EPA Administrator shall request the Director of OMB to resolve the conflict. The administrative dispute resolution procedures set forth in section 1-6 are in addition to, and not in lieu of, other administrative and enforcement procedures to enforce applicable pollution control standards. 
 

Federal Facilities Overseas 

 
Section 1-8 of E.O. 12088 requires federal agencies outside the United States to comply with all applicable environmental laws of the host country or jurisdiction. This includes the construction and operation of facilities. 

Executive Order 12580 At A Glance

 
Title: Superfund Implementation 
 
Issued: January 23, 1987 
 
Amended: August 28, 1996, by Executive Order (E.O.) 13016, Amendment to E.O. 12580 
 

Overview

 
Executive Order (E.O.) 12580 delegates presidential authorities under CERCLA to the heads of various Executive Branch agencies under certain circumstances. The E.O. delegates the lead response authorities to EPA and the Coast Guard. Generally, the head of the federal agency has the delegated authority to address releases at federal facilities within that federal agency’s jurisdiction. In addition, E.O. 12580 requires federal agencies to assume certain duties, such as participating on national and regional response teams. The 1996 amendment to E.O. 12580 delegates CERCLA abatement and settlement authorities to the Secretaries of Commerce, Interior, Agriculture, Defense, and Energy, to be exercised in concurrence with EPA.
 

National Contingency Plan

 
Section 1 of E.O. 12580 requires the National Contingency Plan (NCP) to provide for national and regional response teams (NRTs and RRTs) to plan and coordinate preparedness and response actions. Representatives from EPA and the Coast Guard chair these teams and are composed of members from the Federal Emergency Management Agency, the Nuclear Regulatory Commission, and the Departments of State, Labor, Health and Human Services, Commerce, Transportation, Energy, Defense, Justice, Interior, and Agriculture. RRTs also may include representatives from state, tribal, and local governments. EPA has the delegated responsibility to revise the NCP.
 

General CERCLA Authorities

 
E.O. 12580 delegates several CERCLA authorities to Executive Branch agencies, if there is a release on or solely from a vessel or facility under the agency’s jurisdiction, custody, or control. Under these circumstances, 2, 3, and 6 of E.O. 12580 delegate to the head of the Executive Branch agency a number of specific powers and duties, including the authority to: 
 
  • Gather information necessary to carry out their functions under E.O. 12580 or CERCLA (Executive agencies have information gathering authority no matter whether they own/operate property)
  • Issue information/access orders to gather necessary information and gain access (with concurrence from the U.S. Attorney General)
  • Award response action contracts (RACs) and indemnify RAC contractors. 
In exercising these powers, such agencies are given the responsibility to establish an administrative record and to provide an opportunity for public comment before the adoption of a remedial action plan. 
 

Response and Related Authorities/Enforcement

 
Sections 2 and 4 of E.O. 12580 delegate authorities to Executive agencies to respond to releases in particular situations, including the authority to carry out the following:
 
  • Initiate studies and investigations of releases on or from a facility under the jurisdiction, custody, or control of the federal agency; 
  • Select remedial actions (at non-National Priorities List (NPL) federal facilities); and 
  • Conduct removal or remedial actions. 
With regard to non-NPL releases, §4(b)(1) provides authority to federal agencies (with concurrence of the Attorney General) to enter into settlements with potentially responsible parties (PRPs) and to assess penalties for violating a settlement. The one exception to this delegation of authority is that federal agencies cannot enter into mixed funding settlements under CERCLA §122(b)(1) unless the federal agency is the PRP seeking mixed funding from EPA. 
 
E.O. 13016 delegates to the Secretaries of Interior, Agriculture, Commerce, Defense, and Energy the authority to implement CERCLA §106(a) pertaining to abatement and CERCLA §122 pertaining to settlements (except §122(b)(1) regarding mixed funding). Under E.O. 13016, these authorities can be exercised only with the concurrence of the Coast Guard with respect to: 
 
  • Any release or threatened release in the coastal zone, Great Lakes waters, ports, and harbors, affecting natural resources under its trusteeship; or 
  • A vessel or facility subject to its custody, jurisdiction, or control. 
Furthermore, such authority can be exercised only with the concurrence of the EPA Administrator with respect to any release or threatened release affecting:
 
  • Natural resources under their trusteeship; or 
  • A vessel or facility in its custody, jurisdiction, or control.
Under E.O. 13016, §106(a) and §122 (except §122(b)(1)), authority may not be exercised at any vessel or facility at which the Coast Guard or the EPA Administrator is the lead federal agency for the conduct or oversight of a response action. 
 

Management of Hazardous Substance Superfund and Claims

 
Section 9(d) of E.O. 12580 authorizes Executive agencies that receive Superfund monies to designate federal officials who may obligate the funds. Section 9(i) stipulates that EPA and the Coast Guard may use Superfund monies, at their discretion, to pay for removal actions at federal facilities. However, the federal agency must repay these Superfund monies to the Superfund.
 

General Provisions

 
Section 11(b)(2) of E.O. 12580 requires each federal agency head to consider the availability of qualified minority contractors. Section 11(e) grants federal agencies the authority to issue such regulations as may be necessary to carry out the functions delegated to them by E.O. 12580. 
 

Executive Order 13514 At a Glance

Title: Federal Leadership in Environmental, Energy, and Economic Performance
 
Issued: October 5, 2009 
 

Overview

 
Executive order (E.O.) 13514 was signed by President Obama October 5, 2009 and expands requirements introduced under E.O. 13423. EO 13514 requires federal agencies to reduce energy and water use and achieve other environmental management and sustainability goals. Among other things, E.O. 13514 introduces new goals for reducing greenhouse gas (GHG) emissions and water and petroleum use, as well as deadlines for meeting these requirements. Federal agencies are also expected to reduce or divert waste, incorporate sustainable building and management practices in new and existing buildings, increase use and generation of renewable energy, and practice good electronics stewardship.