Administrative Adjudication O Three main types O Law enforcement O Benefits O Licensing/permitting O Adjudication is similar to the process a court of law goes through when deciding cases O Can be formal or informal
What is it? O Remember that this is different that rulemaking O It is a judicial function O Usually involves specific individuals O Is backward looking, i.e. conduct that has already occurred O Used to resolve conflicts O May involve an administrative law judge (ALJ)
Law Enforcement Enforcement actions that agencies may take to ensure that companies come into compliance with the law A lot of this occurs with environmental issues, but can also occur with OSHA, FDA, etc. Could be as simple as a police officer writing our a parking ticket or a fire marshal telling you to put out a cigarette We are going to take a look at enforcement of RCRA by the EPA
Resource Conservation and Recovery Act Deals with hazardous waste The effective implementation of the RCRA program depends on whether the regulated community complies with the various RCRA requirements. The goals of the RCRA enforcement program are to ensure that the regulatory and statutory provisions of RCRA are met, and to compel necessary action to correct violations. To achieve these goals, EPA and the states closely monitor hazardous waste handlers, taking expeditious legal action when noncompliance is detected. EPA also has various programs to provide compliance incentives and assistance.
To ensure compliance with the program, Congress gave EPA certain distinct powers, or authorities, for enforcement. EPA has the authority to inspect and collect information from facilities and, if a violation is discovered, employ any one of several enforcement actions to bring facilities into compliance. EPA uses a combination of monitoring, administrative actions, and civil actions to reduce the number of waste handlers that are out of compliance and to deter future violators. EPA works with the Regional offices, the states, and, where appropriate, the Department of Justice (DOJ) to implement the RCRA enforcement program. An important component of the enforcement process is the authority to monitor facilities for verification of compliance with the regulations. The Agency collects compliance monitoring information primarily through facility inspections and information requests.
An inspection is a formal visit by an EPA or state representative to a facility to review records, take samples, and observe facility operations. Congress granted EPA the authority to conduct such inspections and collect necessary information to determine compliance under RCRA §3007. EPA has the authority to inspect facilities that handle or have handled hazardous wastes. In addition, the inspection authority is applicable to facilities that handle mixtures of hazardous wastes and domestic sewage (§3018(d)). Furthermore, §4005(c)(2)(B) extends EPA's §3007 authority to facilities that handle wastes from households and conditionally exempt small quantity generators. Inspections are conducted by EPA, authorized states, or both, or authorized representatives of either EPA or authorized states. The inspector’s role is to gather information that will then be used by the Region and/or state to determine compliance status.
EPA has the authority to issue administrative orders to any past or present owner and operator who would reasonably have knowledge of the presence of hazardous waste and potential releases (§§3013(b) and (c)). The orders may compel him or her to perform monitoring, testing, analysis, and reporting. The Agency also retains the option of performing the work and recovering costs from the owner and operator. EPA may sue anyone who fails to comply with a §3013 administrative order for up to $5,500 per day of noncompliance MONITORING, ANALYSIS, TESTING, AND REPORTING When EPA receives information showing that hazardous waste is present or has been released at a facility or site, or that the release of any such waste may present a hazard, the Agency may issue an administrative order or obtain a judicial injunction requiring the owner and operator to conduct monitoring, analysis, or testing to ascertain the extent and nature of the hazard (§3013)..
The mere presence of hazardous waste at a site or facility is sufficient cause to issue a §3013 order, provided that the information indicates that the presence of the waste may present a substantial hazard. Only the potential for harm, as opposed to actual harm, to human health and the environment must be ascertained to determine whether a substantial hazard exists. When the Agency determines that a facility is in noncompliance with the hazardous waste regulations, an enforcement action may be taken.
Under RCRA, EPA uses three types of enforcement mechanisms: – administrative, – civil, and – criminal actions. The Agency has substantial latitude in deciding which action or combination of actions to pursue, depending on the nature and severity of the problem.
ADMINISTRATIVE ACTIONS An administrative action is a nonjudicial enforcement action taken by EPA or a state under its own authority. These actions can be broken down into two general categories: informal and formal. Both of these actions provide for enforcement response outside the court system. This means the Agency takes direct enforcement action against the violator based on its authority granted by the statute, and does not rely on a court of law for enforcement authority.
Informal Actions Once a decision is made to utilize an informal enforcement mechanism, the facility owner and operator should be given notice of its noncompliance and the steps to take to correct the violations. Examples of informal actions are letters or phone calls to the facility. A warning letter, sometimes referred to as a Notice of Violation (NOV), may be sent, which lays out the specific actions that need to be taken by the facility owner and operator to correct the violation(s). The letter should require demonstration of a facility's return to compliance within an appropriate timeframe, not to exceed 90 days, to ensure that enforcement is escalated appropriately should the facility fail to return to full physical compliance by the established date.
Formal Actions (Administrative Orders) In cases where a facility has been classified as a significant non-complier or the facility owner and operator have failed to respond to an informal action, EPA can issue an administrative order. Administrative orders impose enforceable legal duties. For example, orders can be used to compel the facility owner and operator to comply with specific regulations, to take corrective action, to perform testing, monitoring, or analysis, or to pay fines.
CIVIL ACTIONS A civil action is a formal lawsuit filed in a federal district court by DOJ against a person who has either failed to comply with a statutory or regulatory requirement or administrative order, or who has contributed to a release of hazardous wastes or hazardous constituents.
The statutory authorities for judicial actions under RCRA are: – Section 3013 - injunctions to conduct monitoring, testing, and analysis – Section 3008 – compliance orders and criminal penalties – Section 7003 - injunctions to address violations which pose an imminent and substantial endangerment to health or the environment.
CRIMINAL ACTIONS A criminal action is an action by EPA or the state pursuant to §3008(d) that can result in the imposition of fines and/or imprisonment. The key to criminal liability is that a person knowingly violated RCRA requirements. Seven actions identified in §3008 carry criminal penalties.
Six of these seven actions carry a penalty of up to $50,000 per day of violation and up to 5 years in jail. These acts are: – Knowingly transporting waste to a non-permitted facility – Knowingly treating, storing, or disposing of waste without a permit or in violation of a permit or interim status standards – Knowingly omitting information from or making a false statement on a label, manifest, report, permit, or compliance document – Knowingly generating, storing, treating, or disposing of waste without complying with recordkeeping and reporting requirements – Knowingly transporting waste without a manifest – Knowingly exporting waste without the consent of the receiving country.
The seventh criminal act is knowingly transporting, treating, storing, disposing, or exporting waste in a way that places another person in imminent danger of death or serious bodily injury. This act carries a possible penalty of up to $250,000 and 15 years in prison for an individual, and a $1 million dollar fine for a corporation (§3008(e)).
Benefits Another type of adjudication can be a hearing dealing with Social Security benefits or Department of Agriculture decisions related to deficiency payments made to farmers We are going to take a look at the SSD process This is just a cursory overview and we will NOT touch on all the details and nuances involved in the process. This is just to get you thinking about the agency role as an adjudicator. Info taken from the Social Security website
Parties have the right to appeal any decision Social Security makes on whether they are entitled to Social Security benefits or are eligible for Supplemental Security Income (SSI) payments. If agency determine that parties no longer meet the requirements for Social Security or SSI or find that parties are overpaid, parties have the right to request review of agency decision. The first step in the appeals process is called a reconsideration determination. Parties will receive a new decision by someone who had no part in the first decision. Agency will send a letter explaining how agency made the decision.
If parties disagree with this decision, they have the right to a hearing before an Administrative Law Judge (ALJ). If they disagree with the decision of the ALJ, they may file a request for review with the Appeals Council. Ultimately, parties can appeal to District Court
The hearing process begins after an applicant for benefits has been denied at the initial and (in most states) reconsideration levels. The next step in the appeals process is a hearing before an Administrative Law Judge (ALJ). Parties may request a hearing by an Administrative Law Judge. The ALJ will make an independent decision based on the evidence agency has, including parties testimony at the hearing. Parties can request a hearing online. Otherwise, all requests must be in writing.
Generally, parties have 60 days after they receive the notice of agency’s decision to ask for any type of appeal. In counting the 60 days, agency presumes that you receive the notice five days after they mail it unless party can show that you received it later. If parties do not file an appeal timely, the ALJ may dismiss the appeal. This means that parties may not be eligible for the next step in the appeal process and that they may also lose their right to any further review. Parties must have a good reason if they wait more than 60 days to request an appeal. If they file an appeal after the deadline, they must explain the reason they are late and request that agency extend the time limit.
After parties request a hearing, the Social Security office sends their case file to the Administrative Law Judge's (ALJ) office. Often, a hearing by video teleconference can be scheduled faster than an in-person hearing. – Agency has 161 hearing offices nationwide and approximately 40% of their hearings are held in remote locations. At least 20 days before the hearing, agency will send a notice telling the date, time, and place of the hearing. The Administrative Law Judge usually holds the hearing within 75 miles of party’s home. However, hearings may be farther away so more hearings can be held in one location. There are provisions for inability to travel due to health issues, etc.
So what happens at the hearing: – The Administrative Law Judge explains the issues in the case and may question the parties and any witnesses they bring to the hearing. – The Administrative Law Judge may ask other witnesses, such as a doctor or vocational expert, to come to the hearing. – They parties and the witnesses answer questions under oath. The hearing is informal but is recorded. – The parties and their representative, if they have one, may question any witnesses and submit evidence.
After the hearing: – The Administrative Law Judge issues a written decision after studying all the evidence. – The Administrative Law Judge sends the parties and their representative a copy of the decision or dismissal order. After that, there is a further level of appeals that may be undertaken
Permits O Permits are issued by the EPA or FERC to ensure that businesses operate in a proper manner O We are going to take a look at an example with the EPA and RCRA hazardous waste permits O Not all permits follow the steps we will discuss, but this should give you a good idea
Permits RCRA requires a permit for the treatment, storage, and disposal of any hazardous waste as identified or listed in 40 CFR Part 261 Owners or operators of facilities that treat, store, or dispose of hazardous waste must obtain an operating permit under Subtitle C of RCRA Treatment, storage or disposal facilities (TSDFs) in existence on November 19, 1980, operate under interim status until a final permit decision is made New TSDFs (those that were not in operation before November 19, 1980) are ineligible for interim status and must receive a RCRA permit before construction can commence
Permits There are usually going to be exemptions The following entities are exempt from the permitting requirements of RCRA: – Large quantity generators accumulating waste on site for less than 90 days – Small quantity generators who accumulate waste on site for less than 180 days – Farmers disposing of their own (hazardous) pesticides on site – Owners or operators of totally enclosed treatment facilities, wastewater treatment units (tanks) and elementary neutralization units – Transporters storing manifested wastes at a transfer facility for less than 10 days – Persons engaged in containment activities during an immediate response to an emergency – Owners or operators of solid waste disposal facilities handling only conditionally exempt small quantity generator waste – Persons engaged in Superfund on-site cleanups and RCRA §7003 cleanups
Permits There are several different types of permits – Treatment, storage, and disposal permits – RCRA permits issued for treatment, storage, and disposal units – HSWA requires facilities to correct releases to all media, thus interim status facilities or facilities permitted prior to HSWA, are required to include provisions in their Part B Permit application or to revise their permit, respectively, to comply with this requirement – Research, development, and demonstration permits – Post-closure permits
Permits In potentially dangerous situations, EPA can forego the normal permitting process EPA can issue emergency permits – When there is an "imminent and substantial endangerment to human health and the environment," a temporary (90 days or less) emergency permit can be issued to a: – Non-permitted facility for the treatment, storage, or disposal of hazardous waste – Permitted facility for the treatment, storage, or disposal of hazardous waste not covered by its existing permit
Permits Sometimes a trial period may be required Facilities have special requirements for trial burn and land demonstration permits under RCRA – Land treatment facilities and incinerators must go through a trial period during which their ability to perform properly under operating conditions is tested – Owners or operators of these two types of facilities are required to obtain temporary permits that are enforced while the facility is being tested – Final permit may be modified based on trial results
Permits The permitting process involves many steps 1. Pre-application meeting 2. Prepare two-part application (for RCRA, may not always be two-part, etc.) 3. Receipt and review of application 4. Preparation of first draft 5. Public comments 6. Final permit decision
Permits Some problems encountered with the RCRA permitting process: – Quality and completeness of Part B – Constant negotiations – Public hearings – Size of applications can often be cumbersome and overwhelming – The permitting process is quite extensive and can last years: Land disposal permit – 4 years Incineration permit – 3 years Storage or treatment permit – 2 years
UPCOMING O Discussion Board - two threads O UNIT 4 Assignment: Due by August 31 O develop an outline that explains the informal and formal adjudication procedures that administrative agencies follow. 2- 3 Pages O Next week: Midterm week. O Questions? Call me 253-205-6685 or email me firstname.lastname@example.org