&EPA
United States
EnvironmQntal Protection
Agency
Office Of
EnforcarnQnt
(LE-133)
22E-2000
October 1991
Enforcement In The
1990's Project
Recommendations Of The
Analytical Workgroups
Printed on Recycled Paper
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ENFORCEMENT IN THE 1990's PROJECT
RECOMMENDATIONS OF THE ANALYTICAL WORKGROUPS
TABLE OF CONTENTS
A MESSAGE FROM THE ASSISTANT ADMINISTRATOR ii
INTRODUCTION iii
EDITOR'S NOTE iv
MANAGING FOR ENVIRONMENTAL PROTECTION .1-1
STRENGTHENING THE STATE/EPA RELATIONSHIP ;' .'.2-1
ENHANCING ENVIRONMENTAL RULEMAKING . ..3-1
USING INNOVATIVE ENFORCEMENT TOOLS 4-1
PROVIDING COMPLIANCE INCENTIVES/LEVERAGE .. 5-1
UTILIZING LOCAL GOVERNMENT 6-1
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A MESSAGE FROM THE ASSISTANT ADMINISTRATOR
The decade of the 1990's represents a new era in environmental enforcement as
the Federal, State and local governments and citizen's groups better combine their
resources to vigorously enforce our nation's environmental laws. The strategic
planning reflected in the Enforcement Four-Year Strategic Plan set themes and
directions for the Agency's enforcement program. The framework of the Plan,
however, must be implemented by specific, targeted initiatives and activities in
order to succeed. With this and other objectives in mind, Deputy Administrator
Habicht and I directed the Agency's Enforcement Management Council to develop
specific ideas for improving the enforcement process. Drawing on the talents of
Office of Enforcement staff, other EPA personnel in Headquarters and the Regions,
and, in some instances, non-EPA personnel, the six workgroups participating in the
effort have produced reports, collected in the Enforcement in the 1990's Project.
which complement the earlier Strategic Plan. Environmental experts from both
inside and outside EPA were given the opportunity to comment on the draft reports
before they were made final. These final reports provide concrete, thoughtful
recommendations for action in six discrete areas: measures of success, the
State/Federal relationship, environmental rulemaking, innovative enforcement
techniques, compliance incentives, and the role of local governments.
The 1990's Project reports establish an extremely ambitious and exciting agenda
that points in new, and sometimes wholly untried, directions. They identify
numerous action steps for EPA staff at Headquarters and in the Regions, the States,
the local governments, and citizens. We have begun to implement many of these,
and more will be undertaken before the end of the current fiscal year. The
Enforcement in the 1990's Project provides valuable, practical ideas whose
implementation will strengthen significantly the Agency's enforcement program as
we enter the 1990's.
James M. Strock
Assistant Administrator
for Enforcement
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Introduction
The dawning of the decade of the 1990's saw an outpouring of renewed concern
about our environment. Symbolically, Earth Day 1990 signaled the emergence of a
second environmental era at least as vital and energetic as the previous one which
had begun twenty years earlier. Concomitantly, enforcement has re-emerged as a
leading tool of environmental policy in recent years.
In the Fall of 1989, the Agency's Enforcement Management Council undertook
to develop specific ideas for improving the enforcement process, with particular
emphasis upon strengthening the intergovernmental relationship and reviewing
the EPA enforcement management systems to better assess the environmental
impact of the enforcement program. In order to capture a wide range of experiences
and perspectives, the Council surveyed approximately 50 environmental officials
inside and outside the Agency. In addition to the two subjects identified initially,
the interviewees solicited their opinions about other enforcement issues that
warranted analysis. Ultimately, the Council identified the six discrete enforcement
topics which are addressed in the workgroup reports of the Enforcement in the
1990's Project.
The workgroup reports are founded on certain guiding principles:
(1) The relationships between the Agency and the states, and between
the Agency and local governments, represent the key to more
effective enforcement activity in the future; the development and
strengthening of these relationships are essential to the
improvement of enforcement performance.
(2) For purposes of targeting cases, the management system should be
sufficiently flexible to encourage multi-media cases, and generally
those cases which are environmentally significant (i.e., risk-driven).
(3) As a means of measurement, and as a medium of communication
to the public, the counting of cases, referrals, convictions, penalties,
and the like, which constitutes an established and important feature
of the enforcement process, should be supplemented by alternative
measurements which reflect tangible improvements in
environmental quality.
(4) Environmental regulations should be developed in such a way that
their enforceability is assured from the outset; greater involvement
of enforcement attorneys in the rulemaking process will provide
adequate representation of law enforcement interests.
(5) Positive behavior modification in the regulated community and
more effective enforcement can be promoted by the use of
innovative approaches, different incentives and leveraging actions.
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Effective implementation of the 1990's Project recommendations
substantial commitment by the Agency, the States, the local
citizens. Nevertheless these measures can significantly improve an
enforcement program and promote a better environment.
will require a
and
already strong
governments
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EDITOR'S NOTE
The six Workgroup reports were prepared in the Spring of 1990.
Subsequently, some revisions were made in response to certain of the comments
received in the internal and limited external comment processes. In addition, the
first report, "Managing for Environmental Protection," has been revised to
incorporate significant pertinent findings and recommendations produced by the
Multi-Media Enforcement Workgroup and reviewed by the Enforcement
Management Council in the Spring of 1991. Otherwise, the reports appear
essentially as they were written more than a year ago. Nevertheless, a number of
the Workgroup recommendations are already being, or have already been,
implemented; for this reason, and because of other supervening events, some
statements and assumptions contained in the reports may no longer be accurate.
The historic integrity of the documents as written, however, has been preserved.
Finally, I wish to thank Pete Rosenberg for his thoughtful editorial assistance
and Robert Banks for his tireless help in the formatting of the 1990's Project for
publication.
Robert G. Heiss
Director, Office of Enforcement Policy
Office of Compliance Analysis and
Program Operations
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ENFORCEMENT IN THE 1990's PROJECT
MANAGING
FOR
ENVIRONMENTAL
PROTECTION
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WORKGROUP CONTRIBUTORS
Terrell Hunt
William Gillespie
William Watt
Kim Devonald
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ENFORCEMENT IN THE 1990's PROJECT
RECOMMENDATIONS OF THE ENVIRONMENTAL
MANAGEMENT/ENVIRONMENTAL MEASURES WORKGROUP
I. Goals and Objectives of the Project
An important issue among close observers of the country's environmental
enforcement system is whether the most important environmental matters are
being investigated and prosecuted. While there is broad agreement that a significant
level of casework is occurring, some question whether the current federal and state
enforcement efforts are focused upon the right mix of cases. Others wonder
whether the Agency can adequately demonstrate that the federal/state enforcement
effort truly furthers the country's environmental protection goals.
As one would hope, management systems drive behavior. Through direct and
subtle messages they instruct managers what is and is not valued behavior. A
perception exists that current management systems fail to provide adequate
incentives for managers to initiate complex cases which may have the greatest
environmental payoff.
We recognize that fundamental differences exist between the Agency's
respective regulatory programs. These arise from the diverse nature of the regulated
communities, differences in statutory and regulatory schemes, and differences in
program history and culture. Beyond this, each program has developed an approach
to establishing priorities, modeling workload, allocating resources, and rewarding
performance which reflects the best thinking of those closest to the program.
In recommending that each program review certain aspects of their workload
models or significant non-compliance definitions, we are not prejudging the result
of such review. In some programs, the review may reinforce the wisdom and
effectiveness of the current approach. In others, it may be the catalyst for
innovation which helps make good programs even better.
The Environmental Management/Measures Workgroup identified a number
of areas in which specific actions could be taken to address the issues. The objective
of the effort was to evaluate the impact of existing management systems upon
inspection targeting and case selection decisions made in the field. One goal was to
examine whether current systems encourage state and regional managers to allocate
investigative and prosecutorial resources to those matters with the greatest
environmental payoff. The Workgroup also sought to identify opportunities to
enhance the ability of regional and HQ managers to communicate the
environmental significance of our enforcement efforts to the regulated community
and to the American public.
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II. Process Leading to Recommendations
The process for developing recommendations varied in the respective areas. In
general, however, the recommendations were developed after consultation with the
HQ compliance programs and other interested HQ [OPPE'S Environmental Results
Branch] and regional offices.
Where it seemed instructive to do so, we also contacted other administrative
[Administrative Office of the Federal Courts], regulatory [SEC, OS:HA], and law
enforcement [DBA, FBI, ATF] agencies to gain insight into their management
practices. EPA's overall enforcement management system employs rrtany elements
common to these other systems. A description of the key features of the
management systems utilized by these organizations is contained in kttachment A.
Differences in the scope and rigor of regulatory programs, differing cultures and
expectations regarding enforcement within the organization, differing levels and
modes of oversight from Congress, and differing expectations frpm the public
explain some of the dissimilarities between EPA's systems and those! of these other
agencies. j
Nevertheless, many similarities exist. EPA relies heavily upon pieriodic on-site
reviews to complement its quantitative approach to resource allocation and
performance review. We consult with and value input from groups outside of EPA.
Our resource allocation models contain a number of workload factojrs which have
the effect of weighting more heavily certain types of complex cases. An example is
the system of pricing factors utilized in the Office of Regional Counsel (ORC)
workload model. Pricing credits may be allowed for multi-facility pr cross-media
matters, consent decree compliance proceedings, and significant amendments to
complaints and decrees. Credit adjustments are determined by mutual agreement of
the Regional Counsel, the appropriate Enforcement Counsel, and the Office of
Compliance Analysis and Program Operations (OCAPO). j
III. Overview of Recommendations \
\
\ . -
Our Workgroup focused its energies on recommendations designed to increase
the emphasis on the qualitative benefits of enforcement actions. The Workgroup
recommendations fall into six distinct areas: !
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Environmental Initiatives: Dedicating resources to special projects of
unique environmental programmatic significance to complement the
base enforcement program in each medium; :
Management Incentives to Bring Cross Program/Cross Media Ca|ses and
Other Environmentally Significant Cases: Creating positive incentives
to pursue the most significant environmental litigation; i
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Definition of "Significant Non-Compliance" (SNC): Evaluating each
program's SNC definitions to ensure that they direct attention toward
appropriate matters;
Use of Enforcement Initiatives: Developing environmental enforcement
initiatives and incorporating within those initiatives measures of the
environmental impact of enforcement actions;
Effective Communication: Enhancing our ability to communicate the
qualitative environmental significance of individual enforcement cases,
enforcement initiatives, or the body of enforcement casework; and
Improved Environmental Measures: Identifying program specific
measures of the contribution enforcement actions make toward
environmental improvement.
IV. Recommendations
A. PROVIDE REGIONS AND STATES WITH RESOURCES TO PURSUE UNIQUE
ENVIRONMENTAL ENFORCEMENT INITIATIVES.
1. The Agency should allocate its enforcement resources so that some of the
resources in any program are allocated to traditional enforcement workload factors.
The remaining factors would be allocated specifically to special initiatives (e.g.,
targeted industry) or regional environmental priorities (e.g., geographical
initiatives).
There is concern that the current Agency management systems [STARS,
workload models] and priority setting tools [SNC definitions] discourage regional
initiative and innovation, and deter the prosecution of multi-media cases, and
cases that are the most environmentally significant. The management systems were
designed as output-driven means of encouraging and tracking the volume of
inspection and enforcement activities. While these management systems have
served an important function in restoring the flow of enforcement casework, some
feel that they are not sensitive to qualitative distinctions between cases and the
variance in resources needed to manage multi-media cases and the most
environmentally significant cases. Others perceive that they may not allow
sufficient flexibility for a Region to focus concerted attention upon specialized local
problems in an industry, geographic area, or program. Such cases often demand
investments not provided for in our resource allocation models.
In designing such multi-media and "environmentally targeted" projects,
senior Regional management must balance the demands upon Regional Counsel
and program resources. An efficient process for documenting, reviewing and
approving specific projects would need to be established for securing concurrence of
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the Region, the HQ compliance programs affected by a proposal, and OE in such
projects. HQ must be careful not to over-manage this process. The projects should
be managed within the Region with periodic oversight by the HQ office.
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Each Region would negotiate quantitative STARS commitments which reflect
the revised level of resources available for base program riionitoring and
enforcement activities (i. e., outputs commensurate with funding 'at the reduced
resource level). ! .
2. STARS should be used to track the objective outputs associated with these
"environmentally targeted" projects. Descriptions of the administrative and
environmental progress of such projects would be described quarterly in the
Regional Administrator's narrative memorandum accompanying the Regional
Administrator's STARS submission.
The STARS management system was designed to expand managers' ability to
negotiate performance targets which reflect their views of wha!t ought to be
accomplished in their programs. It encourages up-front planning, provides for
qualitative narratives to augment quantitative reporting, and promotes negotiation
in establishing the level of program activity outputs. Indeed, STARS fully
complements the objectives of this set-aside program.
Furthermore, the Deputy Administrator has endorsed the recommendation of
the Multi-Media Enforcement Workgroup that EPA provide balance in the STARS
system, with its current single media focus, by introducing a limited number of new
STARS measures to ascertain the Agency's success in multi-media compliance and
enforcement activities. These cross program/multi-media STARS treasures will be
introduced in FY1992. i
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: STARS is the primary method for tracking the progress of "environmentally
targeted" projects. The RAs can identify the qualitative value and j environmental
impact of these projects in the memorandum accompanying thie RA's STARS
submission. '
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3. To assure that these priority projects are undertaken, the Deputy
Administrator should continue to direct the implementation of this process.
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Since this proposal impacts upon the responsibilities of thej Headquarters
program offices and the Regions, and is covered by the Agency's management and
accountability systems, it is a matter which OE should not (and cannjot) unilaterally
initiate. The Administrator's September 25, 1990, announcement of the
enforcement goal for multi-media enforcement effectively established this
approach as Agency policy. The Deputy Administrator issued; implementing
guidance to the Regions and the program offices applicable to [ FY 1991, and
established an Agency-wide Multi-Media Enforcement Workgroup jchaired by OE,
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to develop policy guidance for future years.
The Workgroup's final report, which was issued after consultation with the
Deputy Administrator and the Enforcement Management Council, presented a
broader goal for application beginning in FY 1992: To integrate a
cross-program/multi-media perspective into all stages of environmental
enforcement planning and decision-making. Its stated purpose was to achieve
additional public health and environmental protection results, deterrence, and
efficiency which could not be achieved by traditional single media approaches alone.
The Workgroup recognized six objectives associated with the revised goal:
(1) To institutionalize processes that provide enforcement staff
with comprehensive information about facility compliance
early enough in the enforcement process to facilitate informed,
efficient targeting and enforcement response;
(2) To consolidate and coordinate cross-program/multi-media
inspection plans and targets;
(3) To consolidate or coordinate enforcement actions where
cross-program/multi-media violations exist at a given facility
or company;
(4) To reduce transaction costs and minimize barriers to
comprehensive solutions to environmental problems by, for
example,developing training programs that foster a
cross-program/multi-media perspective on enforcement;
(5) To seek enforcement settlements which address the broad range
of environmental problems posed by the violator and correct
underlying pollution and compliance management concerns;
and
(6) To develop mechanisms for explaining the cross-
program/multi-media goal to the regulated community,
evaluating the success of cross-program/multi-media efforts,
and communicating the results both internally and externally.
Guidance was also provided on related implementation matters such as
counting multi-media cases for external reporting, allocating penalties in settled
multi-media cases, cross-program/cross-media enforcement activity planning by
Headquarters Program Offices, the evaluation of existing case screening guidance,
and the development of an addendum on Multi-Media Enforcement to the Policy
Framework on State/EPA Enforcement Agreements.
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PROPOSED ACTION: The Regions should implement ap integrated
cross-program/multi-media perspective into all stages of environmental
enforcement planning and decision-making beginning in FY 1992.
B. DEVELOP MANAGEMENT INCENTIVES TO BRING ENVIRONMENTALLY
SIGNIFICANT CASES
1. All of the Agency's primary management systems should b>e reviewed to
identify and remove elements which may discourage Regions from bringing the
most significant cases. :
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2. OE should examine and revise as necessary the ORC workload model to
provide incentives to initiate and prosecute multi-media cases. As part of this
effort, OE should consider whether to utilize a case "tiering" or "weighting" system.
The challenge is to design management systems which implement the vision
of the national enforcement strategic plan by providing incentives to ^ncourage the
enforcement program it foresees. EPA has long considered whether and how to
assign differing resource allocation "weights" to different categories of cases. Prior
efforts to devise a specific weighting scheme have given rise to the current ORC
resources allocation workload model. This model does not expressly distinguish
between the resource demands of major and minor cases. It does, however, contain
a number of discriminating workload factors which tend to reflect trie demands of
more complicated cases. For example, the current model: •
!
• Weights judicial cases more than administrative cases; • : -
• Provides a vehicle for weighting multiple counts within a single referral;
• Provides a vehicle for weighting multi-facility cases greater than
single-facility cases; and
• Provides weighted credit for amending an enforcement referral for separate
and distinct violations of more than one statute. !
The ORC Workload Model should be examined and revised as necessary to provide
weighting factors which provide the resources needed to encourage multi-media
and the most environmentally significant litigation. Some helpful adjustments
have already been proposed for the Model, which is the one most impacted by the
increased costs associated with cross-program/multi-media enforcement. After the
ORCs have had more experience with these types of cases and associated costs, the
Workload Model Workgroup of DRCs should review these adjustments to ensure
that proper incentives are being created.
PROPOSED ACTION: Recent revisions to the ORC workload mo|del for cross
program/multi-media activities should be evaluated in the Spring of J1992 and any
appropriate further revisions considered for FY 1993 implementation. |
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3. If program workload models become unfrozen, the Deputy Administrator
should require each program to review its enforcement workload model, budget
and accountability systems and make any changes that are necessary to provide
incentives to initiate cross-program/cross-media cases, and those cases which are
environmentally most significant.
Upgrading the ORC workload model will have only limited impact upon the
behavior we seek to affect. The Regional program divisions make key decisions
about which facilities to inspect based upon HQ program guidance and tracking
systems like STARS, Because workload models are currently frozen, they are not a
significant disincentive to cross-program/cross-media enforcement at this time.
However, the Agency's budget and its resource distribution models should be
designed to adequately support the planning, development, filing and conduct of
cross-program/cross-media enforcement actions, whether the cross program
elements are combined in one action or simply coordinated during all or part of the
enforcement process. The ORC and program office management systems must
work together to establish mutually reinforcing incentives for the Region's
technical and legal staffs.
PROPOSED ACTION: Given the current workload model freeze, no action is
recommended at this time. If, however, the models become unfrozen at some time
in the future, issues related to the cost of cross-program/cross-media enforcement
will need to be considered and factored into the models as appropriate.
4. At the end of each fiscal year, the Regional Administrators should provide a
narrative analysis of the actions taken to implement the objectives of the Regions'
strategic enforcement plans. This analysis should be included in the Regions'
STARS memorandum for the fourth quarter.
At the end of each fiscal year, the Regional Administrators should evaluate the
Regions' implementation of their strategic enforcement plans with particular
emphasis on actions to implement multi-media approaches. The analysis should
address the environmental significance and strategic value of the enforcement
activity during the fiscal year. OE has provided the criteria and format for this
analysis (see Attachment B).
5. At the end of each fiscal year, the Director, Office of Civil Enforcement,
assisted by the Enforcement Counsels, should provide a narrative analysis of the
manner in which the enforcement actions taken further the strategic enforcement
plan with particular emphasis on actions to implement multi-media approaches.
Where possible, this analysis should consider the environmental significance and
qualitative merit of enforcement actions.
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C ASSURE THE APPROPRIATENESS OF "SIGNIFICANT NON-COMPLIANCE"
DEFINITIONS
i • • • - • .
In designating certain violations to be "significant non-co|mpliance," the
Agency seeks to focus management attention and enforcement resources upon
compliance problems of particular environmental and/or I programmatic
significance. Attachment C is a summary of FY1991 program priorities and the SNC
definitions in all environmental enforcement programs for FY 1991. We should
continue to seek improvements wherever possible in the extent to which the
current SNC definitions focus program activities on environmentally significant
matters. 1
• i
1. OE and the Headquarters compliance programs should establish a consistent
view of the role and function that SNC definitions should play ui each program.
This should take into account the use of SNCs to reflect program priorities, strategic
objectives, and the allocation of Federal/State resources. !
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While the concept of SNC definitions has been with EPA for a number of years,
no consistent set of principles has been applied across programs for tlkeir use. As the
Agency seeks to set clearer enforcement priorities and establish Agency-wide and
Region-specific strategic plans which cut across program areas, it bebomes essential
that SNC definitions reflect the management priorities of each program.
2. The Deputy Administrator should require each program offijce to review its
respective "Significant Non-Compliance" definitions to assure that fAey identify the
most environmentally and programmatically significant behavior knd effectively
target the allocation o£ Federal and State enforcement resources. i
As resources are stretched to meet increasing demands, SNC definitions must
be carefully focused if they are to serve their purpose in priority setting. Each
program should annually review the behavior it seeks to impact and refine its SNC
definitions consistent with that end. . j
In view of the Agency's heightened commitment to strategic planning, it is
appropriate to ask each program to assure that the SNC definitions established for
each program accomplish these goals. Program offices should also review the
backlog of cases which have been pending before the State for an excessive period to
determine whether patterns of .inaction by EPA suggest a need to amend SNCs (i.e.,
whether the SNC definition is too all-encompassing to be an effective prioritization
tool). ;
PROPOSED ACTION: Working in conjunction with the HQ compliance programs,
OE/OCAPO should, through the joint OE/program office Strategic Planning
Meeting process, discuss the criteria and guidance needed to guide; the review of
each program's SNCs. Applying this guidance, each program I office should
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determine by the end of the third quarter of FY 1992 if amendments are needed to its
SNC definitions. Each program should implement appropriate SNC changes by the
beginning of FY 1993.
D. DESIGN ENFORCEMENT INITIATIVES WITH ENVIRONMENTAL IMPACTS
IN MIND, AND DEVELOP BASELINES AGAINST WHICH TO MEASURE
SUCCESS.
1. Focusing initially upon the pilot enforcement projects undertaken by the
Regions, the Regions and HQ program offices should design measures of
environmental impact. Experience gained through these efforts will enhance the
design of future enforcement initiatives.
Enforcement initiatives provide opportunities to set specific environmental
objectives and to evaluate the impact of such initiatives, Specific, measurable
enforcement objectives should be identified at the inception of the initiatives.
Specific means of evaluating the environmental and/or programmatic impact of
the project should also be developed at that time.
The set of enforcement initiatives currently being developed may provide a
useful laboratory for measuring the environmental benefits of pilots focusing upon
a geographic area/a regulatory objective; or a high priority industry.
* Appropriate measures of success for a waterbody enforcement
initiative might include surrogates such as quantifiable pollutant
loadings, scope or frequency of shellfish closures, scope of
"fishable/swimmable" designations, or levels of targeted toxics [PCBs,
DDT] in fish/shellfish. Pollutant loadings measure the location,
magnitude, type and timing of pollutant discharges. They indicate the
pollutant stress placed on a system and the effectiveness of the
regulatory program in controlling discharges. There is a good
correlation between loadings and water quality, and levels are
responsive to enforcement actions as loadings (or loading
authorizations are reduced. Shellfish closures measure the degree to
which states close off or limit access to shellfish harvesting areas.
Because the objective measure used is coliform levels, which respond
quickly to changes in loadings, there is a close link to the effectiveness
of enforcement activities. "Fishable/swimmable" goals are, like
shellfish closures/readily understood by the public, and have an
indirect correlation to the success of enforcement. Toxics in
fish/shellfish, also furnish a potential enforcement measure since,
over time, levels of contamination decline as compliance is achieved
and maintained.
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• Measures of air toxics emission reductions might include reductions
in mass balance net loss calculations, or actual reductions in TRI
emissions reported in subsequent years.
• Environmental indicators for an industry-specific enforcement
initiative may include reduced loadings of fingerprinted
contaminants or reduced levels of specific contaminiants in
fish/shellfish. Used to great effect in the Pretreatment Initiative,
demonstrable changes in industry compliance rates may also be useful
indicators of the impact of an industry-specific enforcement
initiative. ;
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2. Specific attention should be given to the data management and data quality
needs of enforcement initiatives. Mechanisms must be in place to gather, maintain
and analyze data on appropriate measures of enforcement impacts.
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Considerable attention must be given to designing measures for which
compared "before" and "after" data can be obtained. •
E. DEVELOP ENVIRONMENTAL INDICATORS IN EACH PROGRAM TO
MEASURE THE ENVIRONMENTAL IMPACT OF ENFORCEMENT ACTIONS.
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1. In cooperation with OE and OPPE's environmental results staff, each
program should develop indicators of the environmental impact of its enforcement
activities.
!
Key characteristics of environmental indicators include a basis in sound
scientific knowledge, reliance on an adequate data base, and the ability to:
• identify and track environmental progress; j
• mark trends in environmental quality in unique geographic areas or
eco-systems !
• help evaluate program effectiveness; i
• target the allocation of program and compliance and enforcement
resources; and !
• communicate effectively to the public the accomplishment of
Agency programs.
2. The program offices should define appropriate measures which reflect the
environmental impact of enforcement activities. Two types of indicators which can
be implemented now are (1) the amount of pollution or emission reduced,
eliminated, or prevented by each enforcement action, and (2) the results of
effectiveness studies for enforcement initiatives. OE and QPPE will work closely
with the programs in identifying indicators of these types which can be quantified
and tracked. !
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Where these impact measures can be linked directly to enforcement activities,
they may be useful tools in describing the environmental contribution of (1)
individual enforcement cases, (2) specialized enforcement initiatives, or (3) the
aggregate volume of enforcement actions in a given regulatory area.
Identifying indicators of the environmental contribution of a program's
enforcement effort is a complicated matter. The indicators must measure true
environmental conditions and not levels of administrative activity [e.g., permits
issued]. They must be sensitive to the relatively small levels of environmental
change likely to be brought about by an individual case or case initiative, but also
capable of capturing the large benefit of the deterrence created by the enforcement
program. Data on the measures must be scientifically valid and defensible, and cost
effective to obtain. In addition, the measures must be understandable [and
intuitively communicative] to the public, defining environmental protection in
terms that the public cares about [e.g., returning water bodies to fishable/swimmable
status]. Finally, because direct measurable benefit may occur substantially after the
successful resolution of the enforcement action (where controls must be installed),
associating the action with the corresponding benefit requires increased tracking
effort, and the communications impact of reporting the environmental result is
blunted by the passage of time.
Two basic types of indicators of enforcement activity have been recommended
by Agency-wide groups for current implementation. They were identified by the
Multi-media Enforcement Workgroup and reviewed by the Enforcement
Management Council in the Spring of 1991 and presented to the Environmental
Indicators Workshop in July 1991. These measures are as follows:
(1) Amount of pollutant or emission eliminated, prevented or controlled
On a case-by-case basis, the Agency will attempt to quantify the impact of an
enforcement action on the amount of pollution released into the environment or
controlled to avoid release. This measure would be designed to show the effect of
the enforcement activity including pollution prevention and other innovative
settlement provisions in bringing a facility from excess levels to allowable levels or
better. It is intended that the resulting numbers would be reported as part of a
narrative description, rather than in columns on a chart with totals.
(2) Effectiveness studies for enforcement initiatives
The second type of indicator would result from conducting one or two national
enforcement effectiveness studies for each program each year. The recent studies of
the National Municipal Policy and Lead Phasedown Program (see attachment D)
attempt to evaluate the effectiveness of the enforcement strategies employed by EPA
and the States using several measures, including: (1) measures of environmental
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results and public health benefits associated with reductions in pollutant loadings,
and (2) shifts in compliance rates due to enforcement actions. While! deterrence, was
not directly measured, an attempt was made to find an association between
enforcement actions and a subsequent decline in the frequency of1 new violations
detected in the regulated community. i
It is contemplated that effectiveness studies would also provide the potential
vehicle f9r attempting to quantify the reduction in risk from enforcement actions.
Risk reduction would be expressed in lay terms.
The Workgroup also identified another type of indicator for potential future
development: measurements against a baseline of pollutants in| an ecosystem.
Recognizing the additional data needs associated with this indicator, some start-up
time will be involved in bringing this approach on line. j
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PROPOSED ACTION: With respect to identifying environmental indicators of
enforcement activities, OE, in coordination with OPPE, should continue to promote
the use of these types of indicators by the program offices. Each program should use
each of these types of indicators in at least one discrete regulatory activity during FY
1992. i
F. ENHANCE THE AGENCY'S ABILITY TO COMMUNICATE ABbUT THE
ENVIRONMENTAL CONTRIBUTION OF THE ENFORCEMENT PROGRAM.
1. OE should place emphasis on following detailed guidance recently issued to
HQ and regional staff concerning personnel communicating effectively about the
environmental contribution of enforcement actions.
OE has recognized that guidance is needed to assist technical and legal staffs in
helping those HQ and Regional staff responsible for drafting announcements about
enforcement actions. The guidance recently issued by OE's Director of Enforcement
Communications is designed to fulfill our objective of better communicating the
impact or importance of case-specific or program-wide developments. Adopting a
concise and consistent format for all written enforcement communications enables
texts prepared for EPA use also to be used for public outreach purposes. The
guidance mandates the use of plain English in enforcement communications, and
present and explain the formats appropriate for enforcement items used for both
internal and external distribution. The guidance also provides procedures to deal
with internal and external press organizations.
PROPOSED ACTION: OE should promote the use of the formats and concepts
contained in the communication guidance whenever appropriate. |
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2. Enforcement outreach activities need to become a routine and
institutionalized aspect of our casework. Each Region should assure that conscious
consideration is given to the communications aspects of each case, and that HQ is
apprised early of cases of national significance. OE should also consider making
effective communications a part of the performance standard for each ORC and OE
supervisor.
Management encouragement to make enforcement communications more
effective should continue until it becomes as common to plan the communications
aspects of an enforcement action as it is to plan the legal strategy of the case. Each
Region should develop a process to assure that a decision regarding
communications is made for each judicial or administrative case. The
communications strategy for any given case might correctly range from active
outreach to passive response to inquiries. OE should examine how to use the
Weekly Regional Report or other means to make HQ aware of cases of potential
national interest. Incorporating effective communications into the performance
standard for each ORC and OE supervisor, manager or executive would assure that
adequate attention is focused on the important task of enforcement
communications.
PJROPOSED ACTION: A standard clause addressing effective enforcement
communications should be developed and included in the performance agreements
for ORG and OE supervisors, managers and executives.
3. The Enforcement Counsels should be responsible for identifying and
communicating to OE's Director of Enforcement Communications, major
enforcement stories of interest to the trade press and newsletters in their fields as
well as to the national media.
OE's Director of Enforcement Communications maintains liaison with the
specialized trade publications, and conducts outreach activities in coordination with
HQ and Regional public affairs personnel. The Enforcement Counsels should assist
this effort by developing and maintaining active lists of trade press publications,
analyses of these publications, coverage and intended audience, and assessments of
the relative popularity or value of key trade press publications.
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ATTACHMENT A
1-15
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BRIEF DESCRIPTION OF ENFORCEMENT MANAGEMENT
SYSTEMS EMPLOYED BY VARIOUS FEDERAL AGENCIES
The workgroup contacted certain administrative, regulatory, and law
enforcement agencies to gain an understanding of their enforcement management
systems. A brief description of the systems they use follows:
Occupational Safety and Health Administration. OSHA'S enforcement
management system focuses on the number of inspections conducted against a
known and almost infinitely large universe. Inspection targets are never met; but
the management system stresses flexibility and forgiveness, and not attainment of
pre-set objectives. Congressional oversight focuses on the size and nature of the
gap between planned and accomplished inspections, and not upon actual
enforcement accomplishments.
Securities and Exchange Commission. The SEC stresses and strongly
encourages individual entrepreneurial activities leading to the uncovering and
prosecution of cases. Each matter proposed for prosecution must come before the
full Commission for approval. The number of judicial and administrative
enforcement actions brought each year is small by EPA standards [312 in the high
year], and substantial top management attention is given to each case. Accordingly,
the SEC relies less upon management systems and more upon the personal
involvement of top managers in making judgments about the strategic value and
programmatic quality of their cases. Regional workload focuses substantially upon
issues which are unique to the securities industry in their Region [i.e., oil and gas
fraud in Texas; insider trading in NYC; penny stock in Denver]. Performance of
program managers is based upon largely subjective evaluations of the extent to
which cases being brought are consistent with national priorities, are highly
complex, and are of sound legal quality.
Administrative Office of the Federal Courts. Judges maintain and use
minute-by-minute time sheets to allocate judicial resources across over 200
different categories of civil and 1160 categories of criminal cases. This data is
normalized to provide a relative weighting factor for each category of case. Each year,
an analysis is performed of the case docket of each federal district. Multiplying the
number of cases by the weighting factor yields the resources needed by each district.
Drug Enforcement Administration. The DEA management system employs
two key indicators as bases for classifying a case. These indicators are weighted in
descending order of importance to give the investigating office a relative level of
credit for each case based on its value against Agency priorities. The first indicator is
the drug involved, such as heroin, cocaine, morphine, etc. The second indicator is
the level, function or impact of the criminal being investigated, such as a person
who operates a laboratory which produces illegal drugs, the head of a criminal
1-17
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organization which produces or distributes drugs, a financier who provides
trafficking funds, or a person who is legally registered to dispense drugs and diverts
them to illegal traffic. DBA Headquarters uses these two indicators to assign a
weight to each case, based upon descriptive data provided by the field office in
case-opening reports. Each year, resources are allocated pursuant to 'the value of the
cases on the docket of that office, its relative level of success in prosecuting last
year's cases, and Agency priorities for the coming year. j
i
This process requires detailed definitions of the factors which govern the
assigned values, and reserves to DEA Headquarters ultimate weighting judgments.
Even with those factors in place, substantial discussion occurs (concerning the
upgrading or downgrading of cases. |
Federal Bureau of Investigation. The FBI's management system relies heavily
upon periodic in-person evaluations of each office. They do not apply a weight or
value to cases, but instead conduct on-site reviews of each office every two years.
These reviews tend to be exhaustive, using information provided by the office being
reviewed, as well as interviews with other federal, state or local law enforcement
agencies. Based on this information and the number of indictments, convictions
and other relevant data, judgments are made about the office's efficiency and
effectiveness. ! .
i
Bureau of Alcohol, Tobacco, and Firearms. Until about seven years ago, the
ATF utilized a management system which allocated resources based upon a
case-by-case weighting system similar to the mechanism now used by DEA.
Weights were assigned depending upon the nature of the contraband, the volume
involved and the functions and scope of the operators involved. ATF abandoned
the system to eliminate internal disputes. ATF now utilizes a process of periodic
field office reviews similar to that employed by the FBI. |
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ATTACHMENT B
1-19
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT: Guidelines for FY 1991 Regional Reports on Implementation of the
Administrator's Multi-Media Enforcement Goal
FROM: Edward E. Reich <^^ J
Acting Assistant Administrator
for Enforcement
TO: Regional Administrators
This memorandum transmits final guidelines for preparing the FY 1991
Regional Multi-Media Enforcement Reports on implementing the Administrator's
multi-media enforcement goal (also known as the Transition Plan Report). A draft
of the proposed guidelines was sent to you on July 23,1991, for your review and
comment. While several changes have been made to the guidelines in response to
your comments, I have generally resisted adding new elements in an effort to limit
the reporting burden on the Regions. Although the guidelines were developed to
provide direction to the report and to promote some consistency in the Regional
submittals, each Region has broad flexibility on how best to characterize their
activities and on what additional information they want to provide in their report.
The guidelines for the Regions' FY 1991 Multi-media Enforcement Reports
result from the Deputy Administrator's memo of February 19,1991, entitled
"Implementation of the Administrator's Multi-media Enforcement Goal," in which
the Deputy Administrator requested that each Region provide an end-of-year report
on their efforts to achieve multi-media enforcement. Each Region was given the
flexibility to design its own report "to best reflect its progress in addressing each of
the categories of multi-media enforcement." The Deputy Administrator's
memorandum listed five broad categories of cross-program/multi-media
enforcement: enforcement actions deriving from multi-media and cross-program
inspections, even where the subsequent enforcement action is single medium;
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PriMtd on Rtcycltd Paptr
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-2-
enforcement actions deriving from multi-media and cross-program ^initiatives,
even if action is single medium; any enforcement action resulting in multi-media
and cross-program settlement conditions; multi-media or cross-program
enforcement actions; and single medium actions which meet any of jthe above
criteria by virtue of a coordinated effort with State and/or local governments or
with other federal agencies. !
The Multi-Media Enforcement Workgroup was established to analyze and
develop recommendations on multi-media enforcement implementjation issues.
Among other things, it considered the form and content for the end-bf-year reports.
The Workgroup supported the need to retain flexibility in designing1 the Regional
reports, but felt that the Office of Enforcement should develop an outline for the
reports so that there would be some national consistency in reporting, and so that
areas of interest to Headquarters would be covered in the reports. The Workgroup
suggested topics that were appropriate for inclusion in the reports.
The guidelines for the end of year report (Attachment A) incorporate the five
categories of multi-media enforcement, as well as updates on key items discussed in
the FY 1991 Regional Transition Plans for implementing the cross-program, multi-
media enforcement goal. The final guidelines also reflect the specific
recommendations of the Workgroup. i
We received a question on the proposal concerning the appropriate level of
detail for the report, including a question on the Enforcement Results section of the
report, asking whether the Regions should be providing only their raw numbers of
cases, or narrative descriptions of each case, or perhaps narrative descriptions of a
few of their more important cases. While we anticipace that Region? will include
some numerical/statistical data on their multi-media activities, we do not view the
report as primarily statistical. Thus, narrative descriptions of a few of the more
significant cases completed or underway would add useful perspective. In any
event, our primary interest is in the mechanisms the Region has developed or is
developing to support its multi-media enforcement program and its! overall
experiences to date.
One Region expressed the view that the report "should address the real costs
to the Regions of implementing multi-media enforcement." In response to this
comment, we added a reference to costs in the guidelines, but are not asking that
Regions undertake any specific analysis in preparing their reports. VVe would,
however, be interested in Regional insights on the resource question. In this regard,
you may wish to distinguish between the initial start-up costs and projections on
what the longer term, ongoing costs might be.
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-3-
I request that the Regional reports be submitted to me by November 27, 1991.
Questions concerning these guidelines can be directed to Jerry Bryan at 260-4140 or
Rick Duffy at 260-3130.
Attachment
cc: Assistant Administrators
Deputy Regional Administrators
Regional Counsels
Headquarters Compliance Office Directors
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Attachment A
Outline of Topics for the FY 1991
Regional Multi-Media Enforcement Report >
1. Overview ;
• Impact of multi-media enforcement on Regional enforcement effort
• Lessons learned from first year's efforts
• Recommendations for any change to multi-media enforcement approach/future directions
2. Enforcement activities/results/accomplishments
• Civil judicial, criminal, and administrative enforcement activity involving the following:
a. Enforcement actions deriving from multi-media and cross-program inspections, even where the
subsequent enforcement action is single medium;
b. Enforcement actions deriving from multi-media and cross-program initiatives, even if action
is single medium;
c. Any enforcement action resulting in multi-media and cross-program settlement conditions;
d. Consolidated or coordinated multi-media or cross-program enforcement actions
e. Single medium actions which meet any of the above criteria by virtue of a coordinated effort
•with State and/or local governments or with other federal agencies.
• Discussion on the implementation and results of Regional or national cross-program, multi-media
initiatives such as geographic, pollutant, or industry or facility type.
3. Institutional adjustments made to stimulate/integrate multi-medial approaches
• Progress on incorporating multi-media inspections (coordinated, consolidated, checklist) into the
Region's inspection practices.
• Case screening ;
a. Changes or additional details of case screening process since submission of trie Regional
Transition Plan. Changes in case screening planned for FY 1992. ;
b. Early observations on implementing case screening in Region ;
• Organizational or inter-regional coordination changes
• Barriers to and costs of implementing multi-media approaches/how addressed!
• Other i
4. Progress on developing Regional enforcement environmental measures
•i
5. Communications (internally among programs and externally about enforcement
actions) '
• Progress in implementing the FY 1991 Enforcement Communication Plan from this Regional
Transition Plan (progress on communicating significant enforcement cases to the public, including
high-risk cases and those resulting from targeting and other regional initiatives).
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ATTACHMENT C
1-23
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SUMMARY OF FY1991 PROGRAM PRIORITIES AND
"SIGNIFICANT NON-COMPLIANCE" DEFINITIONS IN ALL
ENVIRONMENTAL ENFORCEMENT PROGRAMS FOR FY1991
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PROGRAM
[NPDES]
Program Priorities
• Assuring Municipal Compliance, by expanding upon the success of
the National Municipal Policy by focusing upon continuing
compliance by POTWs
• Pretreatment, and continued enforcement against POTWs which
fail to implement all aspects of their approved Pretreatment programs.
This will include:
- POTW actions to assure compliance by Industrial Users
EPA or State enforcement actions against both the
POTW and IU, focusing upon IUs which violate
categorical Standards and where the POTW has
interference or Pass-through problems;
- Coordination between pretreatment and POTW programs;
- Enforcement of whole effluent toxicity limitations;
- Criminal Enforcement: Above areas/ plus significant
unpermitted discharges, knowing or negligent introduction
into a POTW of toxic pollutants/HWs, fraudulent DMR
reporting; and
- Timely and appropriate enforcement.
Significant Non-Compliance Definitions [By Major Permittees!
• Violation of interim or final effluent limits of a defined duration and
magnitude
• Violation of construction schedules
• Violation of reporting requirements
Non-Compliance with pretreatment implementation standards
1-25
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• Violation of a compliance schedule [short term/non-construttion]
WETLANDS PROTECTION PROGRAM
i
Program Priority
•Unpermitted Discharges
Significant Non-Compliance Definitions: None
PUBLIC WATER SUPPLY SYSTEM PROGRAM
Program Priorities
• Compliance with National Primary Drinking Water Regulations re
microbiological,, turbidity, total trihalomethane, nitrate, VOC
• Consideration of degree of contamination, risk population, risk acuteness
Significant Non-Compliance Definitions
• Violation of microbiological or turbidity MCL for four months^ per year
• Violation of TTHM monitoring or reporting rule for 12 months
• Exceeding MCL for TTHM, for two or more annual averages
• Failing to monitor for, or report any regulated inorganic/ organic [except
TTHM] or radiological contaminant !
I
• Violation of compliance schedule
• Major violation of monitorihg or reporting requirement
UNDERGROUND INJECTION CONTROL PROGRAM
Program Priorities ,
• Violations at deep HW and commercial disposal wells [Class 1]
• Use of banned shallow disposal wells [Class IV]
• Hazardous Waste restrictions under HSWA;
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• Criminal: false reporting, fraud, injections following prohibitions
Significant Non-Compliance Definitions
• Any violation by owner/operator of Class I, Class IV well;
• Following violations by owner/operator of Class II, HI, V well:
- Unauthorized Injection;
- Operation without mechanical integrity;
- Excessive injection pressure;
- Unauthorized plugging and abandonment;
- Violation of Federal/State enforcement order, consent agreement,
judgment; or
- Falsification of permit application, report, data request.
SUPERFUND PROGRAM
Program Priorities
• Integrating enforcement and response programs by:
- Starting PRP searches early;
- Issuing information requests and follow-up;
- Negotiating RI/FSs and RD/RAs where PRPs exist;
- Using negotiating deadlines to push PRP settlements;
- Issuing AOs to legally liable/financially viable PRPs;
-Referring cases to DOJ if PRPs do not comply with AOs; and
- Lodging CDs if settlements on PRP cleanup is reached.
• Priorities for cost recovery include:
- Remedial actions and removal actions over $200,000;
- Cases with statute of limitations problems; and
- Better identification and documentation of costs.
Significant Non-Compliance Definitions: None
HAZARDOUS WASTE MANAGEMENT PROGRAM [RCRA]
Program Priorities
• Imminent hazard threats to health or environment
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• Compliance by commercial TSD to further "off-site" policy to maintain
CERCLA-eligible treatment/disposal capacity
• Land disposal: surface impoundments, or in non-complianc«2 with
corrective action, post-closure, groundwater monitoring requirements
•TSD facilities in violation of land disposal, corrective action requirements
• Federal facility HW management
Significant Non-Cornpliance Definitions
i
• Actual exposure [substantial likelihood] to HW
• Chronic or recalcitrant violator
• Deviation from permit, order, decree by missing deadlines, failing to perform
work '•
i
• Violation of RCRA or regulatory requirement ;
UNDERGROUND STORAGE TANK PROGRAM [UST]
Program Priorities
• Closure or upgrading of existing tanks
• Installation and use of release detection systems
• Enforcement corrective actions or use of LUST Trust Fund for! eligible
corrective actions
Significant Non-Compliance Definitions: None
PESTICIDES PROGRAM [IftFRA]
Program Priorities
• Compliance with major pesticide regulatory actions: Cancellations,
suspensions under Sec. 6; RUP designations; Sec. 3(c)(2)(b) suspensions
• Enforcement of revised worker protection standards
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Significant Non-Compliance Definitions
• Any violation warranting penalty response
• Further defined in State-by»State EPA enforcement agreement
TOXIC SUBSTANCES CONTROL PROGRAM [TSCA]
Program Priorities
• Asbestos control: EPA/State compliance program plans under AHERA;
asbestos in schools inspections; compliance with ban/phase-out
requirements; decentralization to States
« PCB enforcement: compliance by permitted disposal sites; intermediate
handlers/brokers; monitoring of cleanup of natural gas pipelines; compliance
by PCB manifesting, storage, disposal sites. Development of State
enforcement infrastructures
« Tide in TRI [Sec 313]: Assure required and accurate reporting; action against
non-reporters; late reporters; blatant errors
« Criminal: fraudulent reporters
Significant Non-Compliance Definitions
« Major PCB Violations: disposal; manufacturing; processing; distribution; use;
storage; recordkeeping; marking
<» PCB contamination of surface water, groundwater, food, feeds
« Test rule violations
« PMN violations
«Importation: Failure to certify compliance /not subject; falsification of
certification report
• Recordkeeping: Failure to submit, falsification, incomplete reporting
• Any AHERA violation warranting administrative action
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AIR PROGRAM [CAA]
Program Priorities
• Reduce air toxics through compliance with NESHAPS [benzene, asbestos,
arsenic, etc.], using contractor listing and other innovative techniques
• Control toxic emissions from automobiles and fuels by enforcing lead
phase-down rules, fuel switching, price margin for unleaded gas,
truth-in-fuel-additives claims j
• Enforce volatility rules .at all levels: refiners thru distributors, transporters,
retail outlets
• Car/light-duty truck and heavy-duty truck diesel particulate standards; using
audits and recalls ,." ;
• Control of VOCs through NAAQs for ozone and CO
• Review State SIPs for enforceability; ability to achieve attainment for ozone
• Federal motor vehicle standards; pre-production certification, assembly line
testing, selective audits, recalls; in-use operation and maintenance programs
I
•Specialized SO2 prdblems thru SIPs to fix stack height/continuous emissions
monitoring shortcomings
Significant Non-Compliance Definitions
• Violation of any NESHAP [except asbestos]
• Violation of new source requirement: NS performance standards, PSD
requirements; NSR permits i
• Class A source in violation of SIP in non-attainment area
• Violation of Federal CD or AO
• Class A federal facility violation
1-30
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ATTACHMENT D
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF ENFORCEMENT
DEC
6 1990
MfMQRANDUM
SUBJECT: Final Summary Report: Enforcement
Effectiveness Case Studies
FROM:
James M.
Assistant
rator
TO:
Steering Committee on the State/Federal
Enforcement Relationship
Deputy Regional Administrators
Associate Enforcement Counsels
OE Office Directors
Attached is a summary report of two case studies of the
effectiveness of enforcement prepared by the Compliance Policy
and Planning Branch, Office of Enforcement (OE) , in cooperation
with EPA's Surface Water and Mobile Sources Programs for the
Steering Committee on the State/Federal Enforcement Relationship.
The cases selected were the National Municipal Policy (NMP) and
the Lead Phasedown Program. I want to thank the Steering Commit-
tee for their comments at each stage in this project. The
comments helped us to sharpen our analysis and conclusions, and
clarify the methods we used to estimate environmental results.
These case studies are a significant step in ongoing efforts
to evaluate the effectiveness of enforcement initiatives. The
summary shows that enforcement programs can achieve significant
environmental benefits, and the Lead Phaaedown study suggests
that a strong enforcamnt program did create deterrence
reflected in a sharp decline in the frequency of new violations
after initiation of th« auditing program.
iiT"nQ
The two case studies attempt to evaluate tha effectiveness
of EPA's and the State*' enforcement stratogiea uaing several
measures, including: l) measures of environmental results and
public health benefits associated with reduction* in pollutant
loadings; and 2) shifts in compliance rata» du« to enforcement
action(s). while deterrence was not diractly »aa»urad in either
case, the authors did loofe for an association between enforcement
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actions and a subsequent decline in the frequency of new
violations detected in the regulated community.
n
* u ffectiveness
Agreeing on measures of effectiveness was the first step in
the project, while the initial case study design envisioned
drawing association over time among environmental results, com-
pliance rates, inspections, enforcement actions, penalty assess-
ments, and key outreach or policy actions, the final measures
differed from the original proposal because of the limitations in
data and methods of analysis described below. We were, however,
able to quantify several results from each program.
Lead Phasedowri - The Office of Mobile Sources (QMS):
1. Quantified the health effects and monetary benefits associ-
ated with the reduction in lead levels resulting from
enforcement actions; and
2. Shoved a link between enforcement actions and a subsequent
decline in the frequency of new violations, thereby reveal-
ing a possible indicator of deterrence. !
National Municipal Policy - The Office of Water Enforcement
and Permits (OWEP): i
i -
1. Monitored the increase in compliance rates among major
publicly-owned- sewage treatment plants as a result of
enforcement actions; and
2. Estimated the reductions in pollutant loadings associated
with the shift of facilities in the NMP universe^ to second-
ary and/or advanced treatment. '
Despite these successes, there were significant limitations
and difficulties in preparing these studies:
1.
En £01
int Actions Hare Easier to Quantifv than
Trends in enforcement actions were easier to quantify than
were trends in environmental results because: a) counting and
recording enforcement activities over time is inherently less
complex than monitoring changes in the environment, and b) the
Compliance Prograas have developed the necessary information
systems» However, analysis of enforcement trends waa possible
only whon historical enforcement data had been archived in an
accessible way.
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2 .
ueifciQna
Loains Were Eaaiar to Quantif
tan Health d Environmental Benefits.
in order to estimate health and environmental benefits, it
was necessary to calculate reductions in pollutant loadings asso-
ciated with enforcement actions. In both cases it was easier to
estimate pollutant loadings than to .quantify health and environ-
mental benefits. However, estimating pollutant reductions was in
itself a challenge.
Because of the banking and trading of lead rights and asso-
ciated reporting by refiners, QMS was able to estimate the lead
rights that were retired as a result of direct enforcement.
These data, which were included in an enforcement database and in
case files, were aggregated! for this study. Then, QMS quantified
health benefits using cost/benefit methods developed speci-
fically for lead, over several years, by EPA's Office of Policy
Analysis (OPA) for the Agency's regulatory impact analysis
(1985). Without this prior work by OPA, QMS would not have been
able to quantify the health benefits of direct enforcement.
In contrast to Lead Phasedown, it was more difficult to
estimate reductions in pollutant loadings and associated water
quality benefits from the NMP. OWEP roughly estimated the
reductions in toxic and conventional pollutant loadings assoc-
iated with the shift in treatment levels by the NMP universe.
Also, OWEP estimated the number of stream mil«s affected (not
meeting applicable water quality standards) by the discharges of
a subset of NMP facilities — those facilities required to
install advanced wastawater treatment (AWT). However, OWEP could
not assert that water quality standards were met as a result of
NMP without a case-by-case analysis of the stream segment where
the facility is located. While improvements in water quality may
have resulted from th« installation of advanced wastewater
treatment by 43% of the WMF facilities, other point and non-
point sources of pollution might have prevented water quality
from meeting standards. These sources wsr« not addressed by the
NMP.
Together with th« "Enforcement in the 1990s $ Environmental
Management/Environmental Moasures Study," th«s« cas« studies
suggest arsas for future work by the Office of Enforcement, the
Office of Policy Analysis and th« Program Officss on environmen-
tal results of enforcement,, , .
1.
RMUlta Of Dirsct
Additional efforts to quantify th« environmental results of
direct enforcement are important. Step* include:
1-35
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a) Working with regulatory programs from the ou'tset on
reporting requirements and ways to analyze environmental results-
b) Developing ways to quantify pollutant loadings reduced
by direct enforcement; and \
c) Encouraging the Program Offices and OPA. to develop
methods of quantifying and, if feasible, monetizing the health
and environmental benefits of pollutant reductions. !
i
2- Deterrence and the "Total Benefits" of enforcement
An important benefit of enforcement is deterrence which is
very difficult to measure. However, if we only look iat direct
enforcement, we fail to capture the results of deterrence and the
"total benefits" of enforcement. We will continue toj work with
the Steering Committee as we implement our Action Plan for the
Enforcement in the 1990 Vs Project with respect to finding
improved measures of enforcement success. These actions include
reviews of how other federal agencies measure deterrence. These
steps, combined with those outlined above in item # i will enable
us to work toward understanding the "total benefits" of enforce-
ment.
3.
Communications Strateov
The Steering Committee has noted that others will be
interested in this report. We are developing a communications
strategy for your review that will include publication of the
report for other audiences such as Congress, State organizations
and the interested public. The final plan will be ready by
January 31, 1991.
If you hava any general questions, please call Susan Herrod
or Becky Barclay on FTS or (202) 382-7550. For questions on the
individual case studies, please contact the respective authors,
John Ho11ay on FTS 332-2635 or Dave Lyons on FTS 475-8310.
Attachment
cc: Edward Reich
Christian Holmes
OCAPO Managers
1-36
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SUMMARY REPORT:
BN70RCBCBMT BFrSCTIVBfBSS CASK STUDIES
1990
Covplianc* Policy and Planning
office of Coaplianec Analysis and Progr
Of£ie« of
as Oparations
1-37
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This report was a summary of case studies performed by the F'ei
operations and Support Division (Office of Mobile Sources) and
the Enforcement Division (Office of Water Enforcement and Per-
mits). Susan Herrod (Office of Enforcement) was the! principal
author of the summary report. Assistants for th« summary repor
and authors of the case studies were the following:
Field Operations and Support Division
Lead Phasedown Case study
John Hoiley
Phyllis Anderson
Water Enforcement Division
National Municipal Policy cas« study
Chuck Evans
Ted Holly
Davo Lyons
Office) of Compliance Analysis
and Program operations
Rebecca A. Barclay
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SUMSSftJIY
Enforcement is a powerful tool in the ;ef fort to achieve com-
pliance with environmental regulations. The direct results of
enforcement are valuable because of the benefits obtained frcn
bringing violators inco compliance, e.g., the mitigation of
health risks, the reduction in pollution to ground, air, and
water media, and in some instances, the restoration of damages to
the ^environment . Further, and perhaps more significant, are the
potential benefits from the deterrence that an enforcement
presence fosters.
Difficul'ty arises when we try to measure the total benefits
achieved from direct enforcement and deterrence. The results
achieved by bringing violators into compliance can serve as a
measure of the direct benefits. However, the benefits of deterr-
ing potential violators remain elusive du« to the presence of
other forces which influence compliance.
The purpose of this paper is to estimate the total environmental
benefits and the factors contributing to the success of two
enforcement initiatives - the Lead Phasedown Program and the
National Municipal Policy (NMP). Although enforcement approaches
in these cases varied because of extremely different circumstan-
ces, the studies show th« sam« results: enforcement vas success*
ful in producing significant environmental benefits. In the Lead
Phasadown Program, th« health benefits from enforcement actions
alon* totalled at least 40 million dollars. The benefits result-
ing from the National Municipal Policy, due to direct enforce-
ment, were the delivery of atHeast secondary wastewater treat-
ment to about 108 million people.
Enforcement consists of actions intended to compel people to
comply and to create a desire to avoid the consequences of
noncompliance. Beyond restoring the violator to «S£li!J«!;.ni,
enforcement influences compliant behavior through the deterrent
effect it creates. This deterrent effect depends on a I**™***1
violator's expectation that noncomplianc* will be detected and
that undesirable consequences will follow, such as economic harm,
adverse publicity cr Imprisonment. Much of £•* «gr f JSSiJT1
as "voluntary" compliance is actually a result of this deterrent
effect.
EPA has defined four necessary elements to 1
oliance levels. They are credible likelihood of detection, a
&i" and sJrJ response to the violation
ces for violators, and a perception of the
The absence of a strong enforcement presence ere •«•** but
elements risks losing not only the benefits from Jn*fr|!;;nt but
also the benefits of "voluntary- compliance JJ^JJ «S« 3«e«t of
deterrence. The following case studies lll^"*« J^elment
two very different, comprehensive compliance and enforcement
1-39
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strategies. The benefits attributed to enforcement1 and its
deterrent effects are significant and show the important role f~r
enforcement in these two regulatory programs. ;
LEAH
BACKGROUND
F
Evidence of the ill effects of lead exposure on human health
provided the motivation for regulatory efforts aim«d!at reducing
the lead content of gasoline. As Knowledge of the severity of
the negative effects of l«ad grew, the regulations bacame more
stringent.
In October 1979, gasoline lead was first controlled by limiting
the average concentration permitted in a refinery's total gaso-
line pool. A re-evaluation of the regulations in October 1982
resulted in tighter standards and the creation of a trading
system to improve the allocation of lead usage among;refineries.
Refineries which required less lead than the standard were
permitted to sell their excess to other less technologically
advanced refineries.
In 1985, the standard for lead was tightened further^and a system
of banking was introduced. Under the banking provisions a
refiner was allowed to store in a bank account the difference
between the standard and the larger of either actual,lead usage
or .10 gplg (grams per leaded gallon). The banked load rights
were available for us* or transfer to other refiners or importers
during any future quarter through 1987.
Compliance monitoring was conducted using the self-reporting
system, both by checking the internal consistency of;reports and
employing an external check provided by reports fromjmanufac-
turers of lead additives. Th« first full-scale Audits of
refiners began near the end of 1986.
RESULTS
Enforcement actions taken by IPA resulted in the removal of ISO
million grams of lead from gasoline production in th« form of
lead rights that were retired by tha and of 1987 „' This reduc-
tion represents 40 million dollars worth of direct health bene-
'• comprehensive enforcement and compliance strategies include
not only traditional enforcement activities (e.g., affective
compliance monitoring and enforcement response), but also com-
pliance promotion, such as training and technical assistance,
public information materials, and media coverage.
'The Office of Mobile Sources compiled this figure from a
database of enforcement cases and from individual case files
during the Summer 1988.
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fits (1983 dollars).1 For, an estimate of health benefits for
children and adults, see Table I on the following page.'
Although we do not have a method of measuring non-compliance that
would have otherwise occurred without direct enforcement, a
reasonable assumption is that the deterrent effect accounts for
an additional increment of reduction in lead emissions. This
amount is somewhere between 150 million grams and the total
reduction in lead emissions of 380 billion grams attributed to
the entire Lead Phasedown Program. (Figure 1 shows the estimated
lead use had there been no Lead Phasedown Program.)
:S'E SCSNAS'CS
If )( II H II II *• •' '• "
To illustrate the potential
impact of deterrence, we have
estimated tfta health benefits
that would result if we assume
that two more violations were
pr«v«nt«d for every violation
that EPA directed. This level
of deterrence would have gene-
rated a further reduction in
lead use of 300 million grams
beyond tha ISO aillion grams
from direct enforcement for a
total of 450 million grams at-
tributable to enforcement.
with this twofold increase in
the lead rights retired, there
is an equal reduction in the
related health effects among
children and adults. (See
Tat>l« I.)
«t al,£flifia
JD«riv«d using tha aathodology in Schwartz, J
d Benefit of Reducing L.»ad in gMQlinffli flOi!
«et Inalvaia . USEPA. Off ic> of Policy Analy«i«, Washington,
D.C., February 1985. EPA-230-05-8S-006. Pag«« IV-47 and vi-66.
[Confiraad by Hugh Pitch**, Economist, Office of Policy, Plan-
ning and Evaluation) in conversation with John Hollay, Office of
Mobile Sources, USEPA, Suauaer, 1988.]
'ibid, calculated froa health effects data contained in the
tables found on pages 111-38, v-28, and v-34.
1-41
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Tabl« I
•BDUCnON IN LEAD DU1 TO DIRECT ENFORCEMENT
Grans of Uad to health effects coavcnioa
Amount of lead (grams):
150,000.000
Condition
Number of
Cases
Cases of adult hypertension 7,417
Myocardial infarctions of adult males 22
Strokes - adult males 3
Deaths - adult males 21
Children with blood levels of 30 ug/dl 202
Children with blood levels of 25 ug/dl 674
Children with blood levels of 20 uf/dl 2,223
Children with blood levels of 15 uf/d! 6,159
REDUCTION IN LEAD UNDER
PROPOSED SCENARIO
Grans of lead to health tffects coe version
Amount of lead (grams):
450,000,000
Conditioa
Number of
Cases
Case* of adult hypertension 22,251
Myocardial infarctions of adult males 66
Strokes - adult male 14
Deaths - adult males 64
Children with blood levels of 30 uf/dl 606
Children with blood levels of 25 uf/dl 2,023
Children with blood levels of 20 u§/dl 6,674
Children with blood levels of 15 ug/dl 20,576
1-42
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S7IDENC1 OP DSTE&RBfC£
In the Lead Phasedown Program, a high .degree of spontaneous
compliance could have been expected because the regulated
universe was primarily large refiners who were vulnerable to
public opinion. The danger from lead toxicity was becoming a
prominent public concern, which increased the likelihood of
public condemnation of violators. In addition, detection was
more likely because an outside source of information was avail-
able to verify refiners' reports.
Howevar, two factors reveal that the occurrence of spontaneous
compliance was far below a desirable level: one, the initiation
of tha audit program late in fiscal year 1986 revealed substan-
tial noncoapliance in absolute terms; and two, violations fell
sharply after the audit program had been in place long enough to
exert a deterrent effect (see Figure) 2).
Distribution of violations through time shows that audits un-
covered earlier instances of severe noncoapliance while deterring
new violations. In 1985, before the initiation of audits,
violations were at their highest lev«l, probably because of the
opportunities for illicit profit presented by the accumulation
period of the banking program". Most of these violations went
undetacted until EPA initiated the audit program in late 1986.
VIOLATION FREQUENCY
BY QUARTSS OF OCCUflfllNCE
Quarwf
Many of the violations detected through audits were large, and
ths enforcement actions taJcen against, the violators were given
wide publicity. During ths time) when publicity would have drawn
ths attention of potential violators in lit?, there was a sharp
decline in nsw violations to a level about one-third of that
which prevailed in 1986, (see Figure 2). This pattern seems to
indicate that the audits and the resulting Notices of Violation
(KOVs) brought about a reduction in new illegal activity through
1-43
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1«'"«MI( '•"«<.II
their deterrent effect.' This pattern•occurred despite the
increase in the sophistication of the-audit program as a means cf
detecting violations.
As the pattern of violations suggests, the audits fostered deter-
rence because of the likelihood of detection. Together with the
initiation of audits, there <
was a change in the penalty policy
which made violations much
more costly to the perpetrator.
Ti-.-S also helped deter violators.
For example, the introduction of
the audit program resulted in
17 NOVs issued in 1987. A
total of 54.4 million dollars
in penalties was issued for
fiscal 1987, 18 times the
average of the previous four
years. EPA's largest
settlement in fiscal year 1987
was a lead phasedown case for
over two million dollars.
(See Figure 3.)
REASONS FOR DETERRENCE
The principal elements generally considered necessary for deter-
rence were strongly present in the Lead Phasedown Program.
First, there was credible likelihood of detection. Before regu-
lations became complicated enough to require audits, monitoring
was easy because the number of regulated entitiea was reasonable
and lead manufacturing reports were available as an independent
source of information on the extent of compliance Banking and
trading made detection of violation* difficult, which correlated
with an increase in violationa during this psriod. Th« introduc-
tion of individual audits mado detection of violation* mueh more
probable once again, and violation* dropped.
Second, th« cons«qu«nces of d«tsction w«r« serious. with the
initiation of audits for individual operations, a n«w penalty
policy in mid-1906 raising penalties, and high settlements, the
consequence* of violating th« law became quit* significant.
Third and fourth, th« audit program ensured a fair jnd quick
response: audits rsvsalnd violators i»«diat«ly on th* sits,
using a consistent standard of tssts applied to eacifr rsfinsry
this drop in detected violations may also tee
part by th« fact that suspected violators w«r« targeted
audits first. As tim« went on, r«fin«ri«s wars aor« randomly
selected for audits.
in
1-44
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audited anywhere in the country.. NOVs resulting from the audits
received wide publicity in both the public and trad* press. For
an industry dominated by large companies vulnerable to public
opinion, negative publicity was very effective. The combined
presence of these elements created the necessary environment for
successful deterrence.
BACXGfKXIND
Less than half of all Publicly owned Treatment Works (POTWs) were
operating at treatment levels sufficient to meet national stan-
dards for technology-based effluent limits under the Clean Water
Act (CWA) by the statutory deadline of July 1, 1977. The first
Agency program to address this problem (1979) was unsuccessful.
Its failure was due in part to two factors: EPA's ready issuance
of extensions to POTWs to raach compliance, and EPA 'a and the
States' reluctance to challenge municipalities for noncompliance
if they had not received federal grants to build new facilities.
Congressional and public awareness and support for EPA's effort
to pursue aggressive enforcement grew, in part, because of
concern over the severe noncompliance problem highlighted in
several GAO studies. As a result, EPA and the States created a
work group in 1982 to develop a new strategy for dealing with
municipal noncompliance. This strategy was a sharp contrast to
previous policies. It signaled the Agency's and States' inten-
tion not to tie the compliance requirements to Federal financial
assistance. Enforcement would be the key tool used to achieve
the compliance requirements.* In January 1984, the EPA Adminis-
trator signed the NHP into effect.
RESULTS
The Mi-IP was a highly successful program, targeted at 1,478 major
facilities (the HUP universe), over 71% of these POTWs not in
compliance by 1984 were in compliance by the July 1, 1988 dead-
•Congress amended section 301(i) to provide for extensions
to be grsatad only in cases where reductions in the amount of
financial assistance under the CWA or changed conditions affect-
ing the rate of construction beyond the control of the
owner/operator made it impossible to achieve compliance by July
l, 1983. In no case could extensions be nc.de beyond July 1,
1988. Any POTW not in compliance with its permit and not in
receipt of a Section 30l(i) ex*ension, w«» in violation of CWA.
From 1972 to the drafting of the amendment, v«ry few municipa-
lities were subject to civil complaints brought toy th« Department
of Justice, or to court-imposed sanctions.
1-45
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line for achieving required treatment-(see Table II)]. AS of that
date, NMP facilities were removing an estimated 2.325 million
Tabl« U
COMPLIANCE STATUS OF NMP FACILITIES
(as of July. 1988)
TouJ Major POTWj
Not in Compliance by 1984
In Compliance by 198S
On Enforceable Schedule by 1988
Judicial
Administrative
Not on Enforceable Schedule by 198S
Judicial - Filed
Judicial - Referral, not Filed
3731
1478
1035
235
195
40
188
60
38
100%
71%
16%
13%
more pounds per day of conventional pollutants and 15,000 more
pounds per day of toxic pollutants than in 1984.' (§«e Table
III.)
Tabie HI ' ••••..•iini.
RESULTS OF NATIONAL MUNICIPAL POLICY
(as of July, 1988)
Additional Conventional Pollutants Removed
Additional Toxic Pollutants Removed
2.325 mfflioa Ibs/day
15,006 Ites/day
on
The estimated amount of toxic pollutants roaoved is based
a study of 40 POTWs Pytogite PollutMta in PQTWa.
USEPA, Office of Water Regulation* and Standards, If 81. OWE?
multiplied the average amount of toxic pollutant* raaoved at
these plants by the number of POTW« in the) NMP univorse aeeting
required treatment by July 1988. |
1-46
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The NUP brought the total population of major treatment plants in
compliance to 90%. Even aere iaprassive vere 1^« environmental
benefits resulting froa theae POTWs attaining compliance, because
aany of the MNP facilities vere vary large POTWs. AS a result of
their compliance, 95% of th« total sewage processed in the united
staten was receiving secondary or better treatment, affacting 108
million paopla.
A subset of th« NMP universa (550 facilities or 43%) contributed
to known water quality probleas, and as a consequence, had to
install advanced wastewater treataent technology. Of these
facilities, 525 POTWs, affecting an estiaftted 8,000 streaa ailes,
aet the July 1988 deadline because of th« NMP.9 (See Table IV.)
Taal« IV
NMP FACILITIES MIITING ADVANCED T1IATMEKT
(as of July, 1988)
PUna R«quir«d to Mt«t Advmnc»d Trnoatat, 1984
Piano That M«t Treton«nt L«vtt Required, 1988
Number of Stream Segments Affected
6JO
52$
506
However, we do not know whether these streaa ailes are now
meeting water quality standards, because other sources aay have
contributed to tne water quality iapeiraent.
RBASOCf S FOR SOCCSSS OP MKP
in contrast to the Lead Phasedown Program where deterrence aay
have played a larqe role, the national Municipal Policy owed its
success alaost entirely to direct enforcement efforts. Before
NMP was enacted, aunicipalities typically believed that com-
pliance vac achieved by acquiring grant fund*. Permittees
believed tfcftt the availability of Federal funding was a Jcey part
"This eatiaate of stream ailes is based on OHSP's analysis
of a •Vail sample of reports submitted by HUP facilitlea required
to install AWT. OW1P multiplied tae Average ««»*»? ^ff'lS.i.
ailes affected by the discharge of the faciliCiM i«_25 !HI??iJ
by the number of NMP facilities required to install AMT that met
the July 1988 deadline (525).
1-47
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of determining whether the Federal government and the States
would enforce the regulations. During this time, enforcement
actions did net follow a consistent pattern.
with the initiation of NMP, enforcement by EPA and the states
became she single most affective tool to bring POTWa into com-
pliance. By fiscal year 1937 almost 80% of all NMPjfacilities
(majorsi and minors) were under an enforcement order< either
administrative or judicial. After this point, all POTWs subject
to enforcement action (those who had not started construction),
were domlt with primarily by judicial action, since facilities
that wore not in any phase of construction by this time would be
incapable of compliance by the July 1, 1988 deadline. By the
second quarter of 1988, almost 20% of all NMP major facilities
were subject to judicial referrals. (See Figure 4.) on average,
NMP facilities received 1.5 State or Federal enforcement
ENFORCEMENT ACTIONS VS. COMPLIANCE
X HUP MAJORS UNQifl ENFORCEMENT ACTION j
0
1234,123412341 23 4 1 23 4
I 34 I 83 I 86 I 87 I 88 I
FISCAL QUARTERS
AOS
Co*pll4ict Will AOt -*- Slf^rtlt
actiona.* This means that alaost all of th« POW« in th« MM?
univer»« have b««n under so»« sort of enforcoaowt action.
ties.
'Estimmte is based on a random sample of 4S% of HUP facili-
1-48
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This program was successful largely because of several elements
in the enforcement plan: first, there was a team of EPA managers
and staff specifically assigned to make the effort succeed;
second, the media, public, and Administrator of the EPA sup-
ported the NMP; third, the media gave wide coverage to enforce-
ment initiatives and penalty results; fourth a unified state/
Federal policy was established at the outset and the States
generally supported the strong enforcement measures; fifth, the
program established a fixed universe of facilities to target and
tracked individual facilities on a case-by-case basis, continuing
to pressure facilities until compliance was reached; and sixth,
there was a clear statement and follow-through on the policy of
no link between grant funding and statutory compliance.
All of these factors produced a strong and effective enforcement
presence. The NMP set examples and precedents through federal
and state enforcement actions, combined with favorable rulings on
important cases. These cases and the significant penalties that
were associated with them, permanently altered the commonly held
attitude that it was improper for EPA and the States to enforce
against municipalities. For the first time, enforcement actions
and penalties became realistic, expected responses to noncompli-
ance, and this created the possibility of future benefits from
deterrence among municipalities.
CONCLUSION
The Lead Phasedown Program and the National Municipal Policy were
triumphs for EPA and the States (in the case of the NMP) because
of strong enforcement efforts. Though the conditions for each
program were very different, enforcement proved to be one of the
most important aspects of both regulatory programs.
To illustrate, the NMP was directed at those POTWs which had
failed to comply with national standards established in the mid-
1970s. Many facilities had a long history of noncompliance.
Attitudes toward the need to comply and the reliance on Federal
grants were huge barriers which had to be overcome. Due to this
context, direct enforcement actions by EPA and the States were
necessary for almost all POTWs in the NMP universe.
In contrast, the Lead Phasedown Program forced refineries to
reduce lead use in gasoline through a series of tighter regula-
tions between 1979 and 1985. At the saa« time, the program
introduced new methods of compliance including trading of lead
rights, and later, banking of these rights — methods of compli-
ance which offered flexibility, but made detection of violations
more difficult. Although the emission reductions from direct
enforcement were large, the sharp decline in new violations after
1986, suggests that enforcement had an even larger impact through
deterrence.
1-49
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-------
ENFORCEMENT IN THE 1990's PROJECT
STRENGTHENING
THE STATE-EPA
RELATIONSHIP
FOR
ENVIRONMENTAL
ENFORCEMENT
-------
WORKGROUP CONTRIBUTORS
Donna A. Fletcher
Susan Deller
Bruce Gelber
Paul Guthrie
Tom L. Nessmith
Leroy Paddock
William Phillips
Louise Plater
Eva Ring
Peter Rosenberg
Mark Siegler
Jeff Wells
-------
ENFORCEMENT IN THE 1990's PROJECT
RECOMMENDATIONS OF THE WORKGROUP ON
STRENGTHENING THE STATE-EPA RELATIONSHIP
FOR ENVIRONMENTAL ENFORCEMENT
I. Introduction
The State-EPA Relationship
Most Federal environmental programs were designed by Congress to be
administered at the State (and sometimes local) level whenever possible. EPA's
policy has been to transfer the administration of national programs to State and
local governments to the fullest extent possible, consistent with statutory intent and
good management practice. However, EPA remains ultimately responsible and
accountable to the President, Congress, and the public for progress toward meeting
the national environmental goals of these statutes, including assurance that the
laws are adequately enforced. Therefore, EPA maintains a critical responsibility to
Oversee the conduct of delegated programs.
A fundamental tension exists between EPA and the States in the enforcement
arena. Each side has independent authority and responsibility for assuring
compliance with environmental laws, but EPA has ultimate responsibility for the
national laws. When environmental programs are delegated, States assume
primary, day-to-day enforcement responsibility. EPA generally defers to State action
first, using oversight mechanisms to monitor the State's handling of enforcement
matters. If EPA deems a State unable or unwilling to take appropriate action, EPA
can and should file a Federal action. The actual incidence of EPA overfiling is quite
rare, but the potential does lead to some degree of mutual wariness in the oversight
process. Some of the tension also stems from the external pressure EPA receives on
enforcement matters. Despite delegation, EPA's overall commitment to
environmental protection is often judged by Congress and the public by the number
Of enforcement actions EPA itself pursues. This pressure for EPA enforcement can
sometimes come into conflict with the general policy of deferring to States. On the
other hand, in the interests of maintaining generally harmonious relations with
States, EPA sometimes continues to defer to States on cases where Federal action
would be appropriate.
While routine enforcement activities are conducted largely by the States, EPA
retains an essential responsibility for direct enforcement in situations of national
importance. Reserved for Federal enforcement are cases involving interstate
issues, a unique Federal interest to be defended or vindicated, a program or legal
national precedent, or a State standard that is substantially weaker than the Federal
standard. Given EPA's fundamental charge to assure there is credible enforcement
2-1
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throughout the country, Federal enforcement actions taken in a State with a weak
enforcement program can also meet the criteria of being nationally important.
Finally, Federal enforcement — with its generally higher visibility and greater
deterrent effect - is appropriate when it is the most effective means for addressing
significant environmental problems or patterns of noncompliance.
State-EPA communications and understanding of respective roles and
responsibilities for enforcement are improving. The general boundaries of the
relationship have been established through policy and negotiated agreements
between EPA and individual States. The circumstances that will lead! EPA to take an
enforcement action in a State are better defined. However, State-EPA relationships
are still variable, reflecting differences in interpretation of policy, perceived strength
or weakness of State programs, program and Regional enforcement philosophies,
and even individual personalities.
EPA officials argue that many States still do not have strong enforcement
programs, and the current oversight system which monitors how 'States address
specific violations is necessary to assure that there is adequate enforcement. From
EPA's perspective, EPA's vigilance is a key factor in motivating State action, even in
those States with relatively strong programs. Many EPA officials feel that States
must accept a meaningful oversight process, with overfiling where appropriate, as
the quid pro quo for the large degree of deferral to States.
From the States' perspective, true delegation has not yet occurred. They believe
what they see as EPA's continuing concern with their day-to-day Operations and
decisionmaking to be inappropriate. States want greater flexibility to plan and
implement their enforcement activities according to their own priorities and
enforcement approaches, which may or may not mirror EPA's. State officials feel
that once a program is delegated, EPA should be concerned with overall program
effectiveness and not about how a State handled individual enforcement matters.
Both State and EPA officials agree that improving the functioning of the State-
EPA relationship would help avoid the duplication of effort and; unproductive
conflicts that have sometimes characterized the enforcement relationship. The
challenge is to find the delicate balance in EPA oversight practices that will allow
EPA to assure that States have effective compliance and enforcement programs
while providing flexibility to allow for a diversity of approaches— with State
acceptance of EPA's oversight role.
Strategic Planning for Enforcement
Strategic planning to achieve the greatest benefit from environmental
protection efforts has become a central theme in the management of environmental
programs. A key part of the effort is affording environmental program managers
2-2
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the flexibility they need to be able to focus their resources on the most pressing
environmental problems.
As part of the Agency's strategic planning effort, EPA's Office of Enforcement
worked with the EPA program offices and Regions in early 1990 to develop a
national enforcement strategy. It sets out criteria for setting priorities for base
program compliance monitoring and enforcement activities and for special, focused
enforcement initiatives. Each EPA Region is establishing processes for targeting
inspections and screening potential enforcement cases to assure that resources are
directed to the most pressing problems.
Since States have primary responsibility for enforcement in most EPA
programs, the national enforcement strategy cannot be implemented without active
State participation. Although this first year's strategy was developed quickly with
limited involvement of Regions and minimal State participation, an ongoing
strategic planning process is envisioned that will increasingly involve the States,
both at the Regional and national levels. Ultimately, the strategic planning process
should allow State problems to be surfaced as national or Regional priorities, while
States might be called upon to address problems identified through evaluation of
information on a Regional or national level.
The strategic planning process should help to assure that both State arid EPA
enforcement resources are used more effectively to address the most important
environmental and/or compliance problems. The process has the potential to
result in improved State-EPA relationships by fostering joint planning and greater
cooperation on compliance matters. However, strategic planning also brings
challenges to the State-EPA relationship. For many years, EPA policy for
enforcement in delegated programs has been that States are given the first
opportunity to act, with EPA acting as backstop if the State is unable or unwilling.
Even though application of this policy has been somewhat inconsistent, it
nonetheless serves as the basis for the equilibrium that exists between EPA and the
States. If EPA begins to aggressively pursue national or Regional initiatives without
adequately involving the States, there is serious potential for damaging the EPA-
State relationship. Appropriate State involvement in strategic planning should
address this concern.
The recommendations in this report are designed to foster improved EPA-State
relationships through State involvement in strategic planning as envisioned by
EPA's Enforcement Four-Year Strategic Plan. Recommendations regarding the
strategic planning process and changes that are needed in management systems and
oversight practices are compatible with approaches under development in the
context of the broader Agencywide strategic planning effort. The recommendations
are also consistent with the recommendations of the State-Federal Roles Task Force
(1983) and will further implementation of the Agency's delegations and oversight
policy (1984). Many of the State-EPA issues addressed in this paper, are relevant also
2-3
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to the Headquarters-Regional office relationship.
II. Goals and Objectives of the Project
The task of environmental enforcement is now vast and complex, but there are
limited resources. It is therefore essential that each level of government carry out
those functions for which it is most suited, with a minimum of transaction cost lost
to duplication of effort or disputes between levels of government. Since many
environmental problems are nationwide in scope, it is also essential that there be
some minimum degree of consistency and effectiveness of enforcement efforts
across the country. ;
EPA-State relationships have often been strained by differing views of the
respective roles each partner should play in enforcement as well as by a lack of
flexibility in EPA policies, management systems, and oversight' practices. The
expected benefit of strategic planning for enforcement is that it will help focus
resources on the most pressing problems, while providing the flexibility and
opportunities for innovation long sought by the States (and EPA Regions). At the
same time, however, strategic planning presents challenges in designing and
carrying out EPA's national responsibility for assuring effective enforcement.
This project was undertaken to clarify the appropriate roles and responsibilities
of EPA and the States in environmental enforcement, identify barriers and
opportunities for State involvement in planning and'implementing enforcement
strategic plans, consider the need for more effective EPA oversight mechanisms, and
examine the implications of strategic planning on existing policies and management
systems. If the issues that have been the source of tension in the past are carefully
identified and addressed, strategic planning for enforcement may well become an
important vehicle through which the overall EPA-State relationship can be
dramatically improved. The vision is of a process in which each partner feels
ownership and a stake, resulting in a mutually designed and implemented program
for effective environmental enforcement. !
III. Process Leading to Recommendations
The interview phase of the 1990's Project generated a robust set of views and
ideas on the Federal-State relationship that became the foundation for the project
team's deliberations. In addition, the team consulted managers of the Agency's
overall strategic planning process and accountability system, EPA compliance
program managers, Regional planning and enforcement managers, and several
State officials. The team explored such topics as incentives and barriers to State
participation in strategic planning; the respective roles of EPA and the States in
carrying out enforcement initiatives; and needed changes in policies, management
systems, and oversight practices. For additional background, the team also
reviewed existing documents such as the Final Report of the State-Federal Roles
2-4
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Task Force, the Agency's delegations and oversight policy, Policy Framework for
State-EPA Enforcement Agreements, timely and appropriate response reports, and
the EPA Enforcement Four-Year Strategic Plan.
IV. Findings
Effective enforcement by both EPA and the States is essential to achieving the
nation's environmental goals. Clearer understanding and acceptance of each
other's rples and responsibilities in enforcement will lead to improved relations
and more efficient use of limited State and EPA resources.
Without effective enforcement to assure a high degree of compliance, the
benefits envisioned by national environmental laws cannot be realized. Carrying
out the design that Congress intended, EPA has largely delegated responsibility for
administering national environmental programs to the States. Where States now
have primary responsibility for enforcement, EPA retains responsibility — and is
held accountable by the Congress and the public — for assuring the adequacy of
enforcement efforts through oversight and for taking direct enforcement actions
when necessary to achieve national objectives. There is general consensus on this
basic allocation of enforcement responsibilities between EPA and the States, but
there are sometimes differing views about how it applies to a particular situation.
Environmental requirements are becoming more complex, the size of the
regulated universe is expanding, and the remaining environmental problems are
more technically difficult to resolve. Resources for conducting enforcement
activities are not expanding, so that efficient use of both EPA and State resources has
now become critical. The enforcement challenge is so vast that neither EPA nor the
States can afford to waste resources on duplicative work or unproductive conflicts
between levels of government — recognizing that given EPA's responsibilities,
some tension and conflict is unavoidable. Each partner's roles and responsibilities
in environmental enforcement need to be defined and clarified in the context of
current and anticipated environmental protection programs. Both State and EPA
officials view getting mutual understanding and acceptance of where and how
various enforcement-related functions are performed most effectively to be an
important first step in achieving even more effective enforcement.
The 1984 EPA oversight policy defining the roles and responsibilities of EPA
and States in the partnership for environmental protection is still considered valid.
However, the culture change needed at both the State and Federal levels to put the
full policy into practice has not yet occurred.
State-Federal Roles Task Force
In 1983, a special State-Federal Roles Task Force comprised of senior State and
EPA officials defined the roles and responsibilities of EPA and the States for
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environmental protection in light of increasing delegations of authority to the
States. After extensive analysis and internal and external discussion, the Task Force
defined EPA and State roles and responsibilities as follows:
ROLE
STATE LEAD, EPA supporting
EPA LEAD, State supporting
FUNCTION
Direct program administration
Enforcement
Research
Standard setting
Oversight
Technical support
National information collection
While States are given the initial lead in environmental protection programs,
EPA is responsible and accountable for progress toward national environmental
goals and for the long-term success of environmental programs. Therefore, States
must provide to EPA the information necessary to assess progress and implement
State strategies which support national statutory goals, and if a State is unable or
unwilling to act, EPA must step in if needed to assure that national objectives are
met.
A major finding of the Task Force came from a study of the oversight practices
of successful business and government organizations that have field units.
Headquarters managers in these organizations recognized that they!could succeed
only through the success of their field units, so they viewed |their primary
responsibility to be helping the field units. Each organization had a comprehensive
oversight program which included tracking and monitoring activities, in-depth
audits and evaluations, and, as a crucial component, an extensive program to
provide training and technical support. This finding led the Task Force to
recommend that EPA focus on improving the quality of oversight and support to
the States.
EPA's Oversight Policy
In response to the Task Force findings and recommendations, the Agency
adopted an oversight policy in 1984 which states that the goal of oversight is to
achieve mutually reinforcing evaluation and support activities. EPA's policy is to
oversee State programs in order to: ' !
• Ensure adequate environmental protection, through continued
development and enforcement of national standards, and use of
direct enforcement against polluters as necessary to reinforce; State
action and authority.
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• Enhance State capabilities to administer sound environmental
protection programs, through increased communication and a
combination of support and evaluation activities; and
• Describe and analyze the status of national and regional
environmental quality, through continued collection and
dissemination of information from State agencies and other major,
sources.
The policy sets out objectives for implementation of the partnership approach:
• Ensure continuing strong enforcement activity, with States as the first
line of action and EPA as strong back-up for action when needed;
• Clearly define program goals, priorities, and measures of success;
• Provide constructive evaluations of delegated State programs,
focused on problem-solving;
• Ensure timely identification of State program needs and State
environmental problems and conditions; and
• Utilize a range of responses to State program performance and State
needs, focused on preventing large mistakes and solving identified
needs.
Related Enforcement Policies
The Policy Framework for State-EPA Enforcement Agreements (1984, and as
revised) establishes Agency policy with regard to the partnership for environmental
enforcement. It provides general guidance on developing State-EPA agreements
covering such matters as criteria for oversight, including timeliness and
appropriateness of enforcement response; oversight protocols; criteria for direct EPA
enforcement; procedures for advance notification and consultation; and reporting
requirements. To implement the Framework, individual enforcement programs
developed more specific guidance in each area. Regional offices use the various
guidance documents to negotiate annual State-EPA enforcement agreements.
Central to the management of enforcement programs, and thus to the
oversight issue, is the concept of significant noncompliance. The concept is to focus
inspection resources and enforcement activities on the most serious program
violations. Significant noncomplieince also focuses oversight activity (both within
EPA and EPA to State), for example, by triggering timely and appropriate response
criteria.
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Implementation of the Policies j • •
Most of the people interviewed for the 1990's Project were familiar with the
Task Force effort and the policies that grew out the Agency's interest in improving
State-EPA relationships. There was general agreement that the roles arid
responsibilities defined for EPA and the States by the Task Force are still appropriate.
The only caveat expressed was that EPA's slowness in setting national standards in
recent years has led several States to move ahead and set their own, more stringent
standards — and these more active States are unlikely to relinquish the standard-
setting role.
There are differing points of view, however, about how well th^se policies are
being implemented. Both State and EPA officials agree that communications have
improved substantially in recent years and that the State-EPA enforcement
agreement process as well as the availability of guidance on such matters as timely
and appropriate response have brought greater clarity into this enforcement
relationship. This agreement indicates that some real progress has been made since
the policies were adopted. However, each side also points to aspects of the policies
and/or their implementation that they find troublesome.
Some EPA and DOJ officials feel that the 1984 oversight policy may understate
the role of Federal enforcement. Some think EPA has been far too timid about
overfiling State actions, believing that by deferring to States too much, EPA has lost
credibility as a "gorilla in the closet" — both in terms of pushing for improvements
in State programs and in deterrence value With the regulated community. Many
EPA officials point out that some States have enforcement programs that are still
quite weak, and that EPA's oversight policy has had the undesirable effect of
discouraging EPA from taking direct enforcement actions in such States when they
really should have been pursued. Although the oversight policy does warrant direct
Federal action in cases of national significance, this is left fairly undefined. Some
would prefer a stronger statement of the need for direct Federal enforcement,
expressing the view that the Federal government must preserve the ability and will
to investigate and prosecute cases on its own initiative -- independently of States.
Other EPA officials support the basic policy of giving States the opportunity to act
first, but even among these officials there were differing interpretations of when
EPA direct action is warranted.
According to EPA officials, States should be more willing to accept EPA's
oversight and overfiling role in exchange for EPA's general deference to State action.
EPA cannot fulfill its ultimate responsibility for assuring adequate enforcement
without a means for monitoring State performance. Under current management
systems, EPA tracks whether the State's handling of particular enforcement matters
is timely and appropriate. This case-by-case oversight approach is used so situations
can be identified that warrant direct Federal action because of the inadequacy or
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inappropriateness of the State's action. Many feel that States should not view EPA
overfiling so negatively. They suggest that Federal actions can play an important
role in bolstering the State's enforcement efforts. Sometimes a situation is simply
more appropriately addressed by Federal action because of the associated greater
visibility and deterrent value.
EPA officials generally acknowledge the predominance of State enforcement
activity. However, enforcement staff feel they receive conflicting messages from EPA
management about the work they are supposed to do: "Give States the first
opportunity to act, but keep the EPA enforcement numbers up!" Some noted that
the quality of EPA cases has suffered because many of the cases EPA now receives for
action are cases the State did not pursue because they were of low priority. This
situation is considered a result of current definitions of significant noncompliance
as well as of the timely and appropriate response guidance of the various EPA
programs.
For their part, State officials frequently expressed frustration that the Agency's
oversight policy -- which they generally like — has not resulted in much change in
EPA practice. In particular, State officials said that the promise of more constructive
oversight ~ focused on problem-solving rather than review of day-to-day
operations, and buttressed by greater provision of training and technical assistance —
has yet to be realized. State officials complain that EPA still does not trust them to
perform adequately and that EPA oversight practices have not been modified in
accord with the oversight policy. Both EPA and State officials pointed to a lack of
management support for training and technical assistance, as well as limited or
even reduced budgets for such activities. EPA staff noted that efforts to help States
build better programs receive little recognition.
Several interviewees said that the culture change needed for a more effective
relationship has begun to take hold among EPA's more senior managers, but that
little has changed at the staff level where the day-to-day interactions between EPA
and the States occur. They noted differences by program, by Region, and even by
individuals within a given program or Region in interpreting the policies related to
the State-EPA relationship and overfiling of State actions ~ and these differences
were readily apparent in the attitudes expressed by various EPA officials interviewed
for the 1990's Project itself. Several interviewees did comment that the incidence of
overfiling has diminished substantially, which can be viewed as an indicator of
implementing at least the overfiling portions of the policy; however, not everyone
sees this as a totally positive development.
State officials feel that some EPA policies and procedures drive them to do
work of low importance. (This sentiment is echoed by EPA staff regarding EPA work
as well.) Policies on timely and appropriate response and definitions of significant
noncompliance were initially designed in part to narrow the focus of State-EPA
interactions to the most significant compliance problems. While conceptually this
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is still viewed as a valid approach, existing definitions and policies are viewed as not
always reflecting the relative importance of various kinds of situations. To the
extent this is true, they can focus State resources — as well as EPA oversight and
potential overfilings — inappropriately.
There is a widely held perception that at least some of the enforcement actions
EPA takes in delegated States are pursued solely to satisfy "quotas" in EPA's internal
accountability and performance evaluation systems. State officials point out that
EPA oversight still largely consists of conducting case-by-case reviews of the State's
individual enforcement actions, rather than of conducting programmatic reviews
that seek to identify and correct patterns of problems as the oversight policy directs.
State officials do acknowledge a need for EPA leadership and generally welcome
Federal action if needed to address matters of national importance. Conflicts tend to
rise from inconsistent interpretations of what constitutes situations of national
importance, and from the lack of clear signals from EPA regarding the Agency's
expectations of the State in a given enforcement matter. Interviewees outside the
government were generally more concerned about getting a problem promptly
corrected than about the level of government taking the action. They do ultimately
hold EPA accountable, however, and expect EPA to act swiftly and strongly if a State
fails to adequately enforce. One environmental representative and some State
officials felt that EPA should give more scrutiny to the stringency of the
requirements various States are enforcing. They point out that EPA's assessment of
State performance based on the amount of significant noncompliance and how it is
being addressed may unfairly reflect negatively on States with very stringent
requirements while making a State with weak ~ and therefore easier to comply with
— requirements look good.
Nearly all agreed that the most ideal situation would be one in which State and
Federal officials conduct joint planning and coordinate their enforcement efforts,
with the specific work to be performed divided up between them.
UST Program an Exception
There was one notable exception to the general criticism States had of EPA's
current oversight approach. Virtually every State official interviewed had a very
positive view of the approach being used by the underground storage tank (UST)
program to oversee State implementation. The UST program sees helping States
succeed as its primary function, and has designed its program around identifying
what assistance and tools States need to improve their performance. The approach
is based on an understanding and acceptance of where each State is now, with an
expectation of continued improvement over time. Since to date there has been
limited enforcement experience in the UST program, how well this j approach will
translate to enforcement oversight is not yet known. While State; officials were
universal in their approval of the UST approach and viewed it as a model for other
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EPA programs, some EPA officials were enthusiastic supporters and others were
frankly skeptical.
EPA must be willing and able to take direct enforcement action if a State is
unable or unwilling to enforce where needed to meet a national objective. Direct
Federal enforcement is also necessary when certain national issues are involved.
EPA should withdraw program approval if a State has a consistently inadequate
enforcement program.
Interviewees representing every interest - business, environmental groups,
States, EPA, and the Department of Justice — emphasized that EPA must be vigilant
in watching State performance and be willing and able to take enforcement actions
in a delegated State that fails to have an adequate enforcement program or fails to
take appropriate action in a particular case of national concern. Several used the
"gorilla in the closet" analogy to describe EPA's role in backstopping the States.
Several expressed concern that EPA has been unwilling or unable to play this role as
strongly as it should.
EPA should work with a problem State to build its enforcement capacity, but if a
State's performance continues to be poor even after provision of technical assistance
and training, EPA should ultimately take back direct enforcement responsibility.
Several pointed out that EPA has not exercised its program withdrawal authority
often enough. It was generally recognized, however, that the threat of program
withdrawal is somewhat of an idle one since EPA would have limited resources to
conduct a program in lieu of a State. States pointed out that EPA funds only a small
portion of State environmental budgets now, so threatening withdrawal of grant
funds will not be particularly effective either.
In addition to taking Federal actions when delegated States are unwilling or
unable to act, Federal enforcement is also necessary in several other circumstances.
Of course, direct Federal enforcement is essential where programs have not been
delegated to States (or Indian tribes). Other circumstances for which Federal action
is necessary include cases involving interstate issues, national precedents, violations
of Federal consent decrees or orders, or other issues of national importance. It is
unclear what various people mean on a practical level by the term "issues of
national importance," however.
Recognizing the limits of EPA's ability to directly implement in the States, the
UST program has chosen a different model to follow: it works with State programs
as they are, expecting to improve State performance over time by helping them
strengthen their programs through training and technical assistance. The UST
program believes this approach gives them the greatest leverage in affecting State
behavior.
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The potential for EPA overfiling provides essential leverage in assuring
adequate State enforcement.
Overfiling is universally viewed as an essential tool for assuring that States are
conducting adequate enforcement programs. There were conflicting opinions both
inside and outside the Agency about how effectively EPA uses this tool. Some think
EPA does not overfile frequently enough. They think that since States really hate
overfiling, EPA should overfile more often as a way to push weaker enforcement
States into developing stronger programs.
Overfiling does provide leverage to promote effective State enforcement and
ensure minimum national consistency. Some EPA officials feel that States do not
adequately recognize that EPA must overfile occasionally if the Agency is to carry
out its enforcement responsibilities effectively. In their view, States should accept
overfiling as a necessary part of having program delegation, and not place such a
negative connotation on it. Many pointed out that contrary to a common
perception, actual overfiling — that is, when EPA takes an action because the State's
action is deemed inadequate — is quite rare. More often, EPA takes action at the
State's request, or because the State has not yet acted. Some thought many of the
cases EPA files are "leftovers" the State found not worthy of prosecution. Several
State and EPA officials note that the threat of an overfiling often motivates the State
to take an action itself, so the effectiveness of the overfiling tool cannot be measured
by mere numbers alone.
Because overfiling is a powerful tool, balanced use is important: overfiling
must be used often enough retain its effectiveness while recognizing that its use also
carries some costs. A statement by one State interviewee sums up a typical State
view best: "Nothing is as big a political buzzsaw as overfiling, even pulling back
State grant funds." When EPA and the State disagree about an enforcement matter,
transaction costs can be high. If poorly handled - that is, without adequate State
notice of EPA's expectations and its intent to overfile if they are not met ~ overfiling
can damage the Federal-State relationship itself. Some feel that overfiling by EPA
can undermine the State's ability to deal effectively with its regulated community,
Finally, enforcement disputes between EPA and the State can cost both sides to use
up already stretched legal and technical resources. While the overriding concern in
making an overfiling decision is whether a Federal case is needed to further a
national objective, the transaction costs should also be considered.
Several interviewees feel that an EPA overfiling really means that
communications between EPA and the State have failed. Clear communication of
EPA's expectations was stressed by many as the key to resolving the overfiling
problem.
Differences in enforcement approach between EPA and States - particularly
with regard to economic penalties - are often the source of conflict.
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Enforcement philosophies vary widely, but States generally rely more on
informal mechanisms to achieve compliance than does EPA, Deterrence is a central
theme of EPA's enforcement effort. EPA seeks to deter future violations by the
violator and other potential violators by exacting an economic penalty that removes
any economic benefit gained by being out of compliance as well as an additional
amount based on the gravity of the violation. Several State and EPA interviewees
noted that EPA's emphasis on the assessment of civil penalties has now become a
principal source of conflict.
A few State officials and a representative of an environmental group noted that
EPA's enforcement program seems to consist of infrequent inspections, then hitting
violators hard with big economic penalties when they get caught. One State official
argued that his State inspects frequently and issues citations that are followed up to
assure compliance, creating a strong "presence." His view is that this is an equally
valid approach to assuring compliance. Other State officials noted that they place
greater importance on correcting a violation promptly than on assessing an
economic penalty that might take years to litigate - while noncompliance
continues.
Several pointed out that States do not get "credit" for some kinds of actions
(e.g., permit or license suspension) that have economic consequences, but for which
EPA does not have comparable authorities. One State official pointed out that EPA
would do a better job of influencing States regarding penalties if EPA did a better job
of implementing its own penalty policies.
Establishing greater trust between States and EPA is the key to a successful
partnership.
The relationship between EPA and the States on enforcement matters is still
strained. EPA still has justified reservations about some States' will to enforce.
States are reluctant to provide information to EPA for fear that it will lead to
intervention, and their experience makes them skeptical about whether real change
in EPA's oversight approach will ever occur. This atmosphere of mistrust does not
provide a healthy environment for the open communication between EPA and the
States that is needed to identify and build on the strengths of State programs and for
working together to overcome weaknesses.
V. Recommendations
Summary of Recommendations
Recommendations for improving the EPA-State relationship
environmental enforcement fall into two broad areas, described below.
for
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(1) EPA should work to build successful State programs as a primary
means of achieving effective enforcement.
Recommendations in this area clarify the respective roles and
responsibilities of States and EPA for environmental enforcement
and suggest steps for achieving a more constructive relationship.
(2) EPA should use strategic planning as a means for providing greater
flexibility to States.
These recommendations suggest steps for involving States in
planning and implementing strategic plans for enforcement.
A. EPA SHOULD WORK TO BUILD SUCCESSFUL STATE PROGRAMS AS A
PRIMARY MEANS OF ACHIEVING EFFECTIVE ENFORCEMENT.
1. EPA should reaffirm its commitment to the 1984 oversight policy and take
steps to promote the culture change at the Federal and State levels needed for
implementation. The policy will need to be interpreted in the context of the
Agency's new strategic planning process, particularly for enforcement
EPA's oversight policy has been in place for several years i now, but the
partnership envisioned by the policy has not yet been, realized. EPA's oversight
policy defined EPA's role in the Federal-State relationship several years ago as
setting national standards and then providing States with the technical assistance
and other tools they need to implement the program on a day-to-day basis. EPA is
also responsible for assuring effective enforcement and for taking action when
States are unwilling or unable to act. ;
While many senior managers have embraced the partnership concept
envisioned by the policy, the concept has not fully translated into changes in the
day-to-day interactions between EPA and the States. Implementation of the policy
requires changes in management and performance evaluation systems,
improvements in the content and quality of oversight, and .a commitment to invest
in the States through training and technical assistance.
The 1984 oversight policy, and the Policy Framework for State-EPA
Enforcement Agreements that followed, establish States as the first line of action for
enforcement, with EPA as a strong back-up when States are unwilling or unable to
act. EPA also leads in cases of national significance. This approach characterizes the
basic structure of the enforcement relationship now, although interpretations of
when EPA direct action is appropriate vary substantially.
The strategic planning process initiated by EPA recently presents new
challenges to the State-EPA relationship, particularly in the enforcement arena.
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Under this process, EPA will be targeting special enforcement initiatives based on
such factors as environmental risk or compliance patterns. Over time, States will
become increasingly involved both in planning and implementing the strategic
plans. The process that is envisioned includes joint planning and advance
negotiation of respective roles in carrying out specific initiatives so that conflicts
between levels of government can be avoided, but it will probably be many years
before a smoothly running process is in place. In addition, a State may not wish to
participate in, or may even be opposed to, a national or Regional initiative. Other
initiatives might be designed around the specific tactic of using Federal enforcement
authorities. Each of these situations raises questions about the appropriateness of
the "States as the first line of enforcement action" policy.
EPA could interpret targeted initiatives as being "nationally, important,"
thereby warranting direct EPA action if States do not or cannot participate. However,
such an interpretation would be considered a departure from current policy. If EPA
is viewed by States as asserting a more active enforcement role without adequate
advance agreement about respective roles and responsibilities, there is serious
potential for disrupting the tenuous balance in State-EPA relationships that exists
now. A consensus-building process to refine the Federal-State relationship in light
of strategic planning is therefore essential.
Exhibit 1 summarizes EPA and State roles as defined by the State-Federal Roles Task
Force.
Exhibit 2 summarizes key features of the 1984 oversight policy.
Exhibit 3 outlines the enforcement component of the 1984 oversight policy.
Exhibit 4 describes EPA's current oversight approach and the shift envisioned by the
oversight policy.
2o EPA should seek to build successful State enforcement programs as a
principal means of carrying out the Agency's responsibility for assuring compliance
with national environmental laws.
Direct responsibility for implementing environmental programs — including
enforcement ~ has been largely delegated to the States, so EPA's success in achieving
its environmental mission is dependent upon the success of the States. While EPA
must continue to take direct enforcement action where necessary, EPA must adapt
to the reality that the bulk of environmental enforcement activity takes place at the
State level. States now perform some 90% of the inspections and pursue about 75%
of the environmental enforcement actions taken.
If EPA is to be effective in carrying out its ultimate responsibility for effective
enforcement, EPA must adjust both the content and manner of its work in a way
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that seeks to strengthen State capabilities. This shift entails placing greater emphasis
on building State enforcement capabilities by:
(1) Conducting a constructive oversight program oriented to
fundamental problem-solving;
(2) Developing and providing training and technical assistance
designed to improve the quality of enforcement efforts; and
(3) Analyzing compliance problems and the effectiveness of various
compliance approaches, transferring information about successes
and experiences throughout the enforcement system.
It also entails establishing an atmosphere of mutual trust and acceptance of
each other's roles and responsibilities in the partnership.
Exhibits 5 and 6 provide statistics on the percentage of inspections and
enforcement actions carried out by States.
3. EPA should lead States by example, demonstrating a strong enforcement
posture by maintaining the ability and will to take independent, direct enforcement
action when needed to achieve national objectives.
Ultimately, EPA is responsible and accountable for assuring compliance with
national environmental laws and regulations. The enforcement posture that EPA
maintains will help to establish expectations and set the tone for State enforcement
programs. By its actions, EPA must demonstrate a commitment to strong
enforcement. EPA must make clear the kinds of situations - both in environmental
terms and in terms of enforcement program quality -- that warrant national
attention and potential Federal enforcement action. While EPA will endeavor to
work with States to address enforcement problems of national importance in a
cooperative manner, the Agency must independently exercise its enforcement
authorities when necessary. The Agency must maintain the technical and legal
capability and the will necessary to take direct enforcement actions when needed to
achieve national objectives.
For their part, States should recognize and accept that jsome Federal
enforcement will always be necessary. First, Congress and the public expect EPA to
pursue important national cases. The higher visibility and generally greater
deterrent value of Federal enforcement will sometimes be the most effective
mechanism for addressing some kinds of environmental or compliance problems of
national importance. Ideally, States should be working with EPA to jointly develop
strategies for dealing with enforcement concerns — sharing credit for cooperating
towards efficient and effective enforcement.
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4. EPA and the States should share credit for effective environmental
enforcement. More State enforcement information should be included in national
enforcement reports.
Many of the individuals and interest groups who follow the progress of
environmental protection programs do not fully understand the partnership
between EPA and the States in enforcement. EPA and the States should work
together to project a mutual image of a system that is trying to maximize the use of
limited resources to achieve effective enforcement.
EPA's current management and reporting systems focus on EPA enforcement
actions. Since States perform the bulk of inspections and enforcement actions, to
the extent that State information is missing, the full environmental enforcement
story is not being told. Ultimately, the system should be neutral as to whether EPA
or a State took an enforcement action needed to bring about compliance. Regions
and States should be able to share credit for successful enforcement. State
information should be included in national reports to Congress and the public to
further external understanding and support for the partnership nature of the
national environmental enforcement system. It is also important for States to be
able to share credit for Federal enforcement actions; often, information from a State
inspection forms the basis for Federal action. With the sharing of credit must also
go the sharing of responsibility for meeting enforcement objectives; States must be
willing to assist EPA in telling the enforcement story and take some of the pressure
that is now directed at EPA regarding enforcement performance.
While some State enforcement information is now included in national
reports, there has been some reluctance to providing information in a way that
might lead to comparisons among States. Clearly, there is a large potential for
misinterpretation when information from different States is compared. For
example, a State with very stringent requirements might have more unresolved
violations than a State with minimum requirements; the number of unresolved
violations in the stronger State might be misread as the sign of a weaker program.
Each State has a unique array of enforcement authorities, which are difficult to
compare. Despite these difficulties, EPA is now beginning to publish State-by-State
enforcement information. If State information is not available, EPA will be unable
to convince Congress and the public that good environmental enforcement is
occurring when EPA's "numbers" drop because EPA has shifted its focus to cases of
truly national significance and to providing support to State enforcement efforts.
5. EPA should be clear to States about its expectations on specific enforcement
matters and warn of the Agency's intent to overfile if they are not met.
Improved communications between EPA and the State are considered key to
avoiding unnecessary conflicts and duplication of effort regarding potential
overfiling actions. First, EPA should make its enforcement expectations clear to the
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State, and give the State adequate warning that EPA plans to begin preparation for
an action -- so that the State can file first if they can. However, States should be
aware that once EPA and DOJ actually begin working on filing an action, a State's
rush to file the case in State court has a negative impact on how the Federal
government views the State. By this time, EPA and DOJ have invested resources in
the case.
In making an overfiling decision, EPA's overriding consideration should be the
importance of the case to meeting a national objective. For this reason, potential
overfiling cases should go through the newly-established Regional case screening
process. Because overfiling cases carry transaction costs, EPA should also take into
account how the action is likely to affect the State-EPA relationship and what
benefits beyond the State's action a Federal action would achieve. When an
overfiling decision is made, EPA should work with the State to determine why the
State was unable to take adequate action and develop a plan for helping the State
overcome its barriers to enforcement.
6. EPA should tailor its enforcement oversight to reflect differences in State
program maturity, capacity, and authorities. Stronger State programs should be
given greater flexibility in designing and managing their enforcement efforts, and
reduced day-to-day oversight. EPA should give greater attention to weaker States
both in conducting oversight of enforcement activities and in providing needed
technical and other support to build State capacity.
The concept of "differential oversight" has been discussed by EPA and the States
for many years, and some implementation has occurred on a limited basis.
Implementation discussions have focused largely on quantitative issues, such as
how many fewer (or more) permits/enforcement actions will be reviewed in real
time and under what specific circumstances. To some extent/a numeric approach
misses the point, which is to allow those States with strong programs to design and
manage their own work toward the objectives of their own strategies, and to use
closer oversight as a means for building up weaker State programs.
Implementation of a differential, tailored approach is and will be controversial.
States viewed as weaker will not welcome increased EPA attention. However, EPA
should be able to avoid the strain if it enters this dangerous territory with a positive,
constructive, program-building attitude rather than a punitive one. Reducing EPA
direct oversight in stronger States may be viewed by some within EPA and
externally as abdicating EPA's responsibility. Reduced oversight will need to be
coupled with very open communications between EPA and the State about the
State's enforcement strategy, as well as about progress and problems in achieving its
objectives. The State will also need to keep up a flow of information to EPA that
will allow the Agency to report on State efforts and to exercise its back-up
enforcement authority when needed to achieve national objectives.
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7. Senior, experienced EPA staff should perform periodic, in-depth audits of
State programs as a constructive approach to oversight.
States indicate that EPA would be more effective than it is now in fostering the
development of State enforcement capacity by conducting in-depth program audits.
The quantitative assessments and case-by-case review of States actions that are the
emphasis of current oversight practice are viewed as being of limited benefit. In an
in-depth audit approach, experienced EPA staff would use audit criteria to identify
strengths and weaknesses of an overall State program, followed by the development
of a plan to work with the State to correct problems. Based on the experience of
earlier EPA efforts to do such audits, it is essential that highly-qualified EPA
personnel conduct the audits, and EPA must be committed to following up with the
technical assistance needed by the State. Personnel from other States could
participate in the audit itself and help the State address problems by sharing their
enforcement expertise. Consistent with the concept of differential oversight, in-
depth audits should be done on a periodic basis, with the frequency of follow-up
reviews based on the number and types of problems encountered. The baseline
frequency of periodic audits should be infrequent enough to assure the availability
of the the right level of people and the ability to carry out the needed follow-up.
See Exhibits 2,3, and 4 for a summary of EPA's oversight policy.
8. EPA should give credit to and reward EPA staff work that results in
strengthened State enforcement capability.
Because States carry out the bulk of environmental enforcement work, a
primary goal of everyone in EPA should be to build State capabilities. In many cases,
program managers are given recognition when their counterpart State programs are
successful, but this is not a consistent practice across all programs and all Regions.
The current culture in at least some EPA enforcement circles tends to reward
attorneys who are involved in prosecuting major enforcement cases. Not as visible
are attorneys and other enforcement staff who work with States to build their
enforcement capability through training, technical assistance, and other means.
Where needed, performance standards' should be revised to reflect the State-
program building responsibilities of EPA staff in addition to their direct enforcement
responsibilities. Other forms of getting recognition and credit for assisting States
should also be explored.
B. EPA SHOULD USE STRATEGIC PLANNING AS A MEANS FOR
PROVIDING GREATER FLEXIBILITY TO STATES (AND REGIONS).
1. EPA should actively involve States in the planning and implementation of
the national and Regional enforcement strategies. EPA should begin involving
States now to the extent possible, building a process that will lead to greater State
participation over time.
2-19
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Since States have primary responsibility for and perform the bulk of the
enforcement work in delegated programs, the national and Regional enforcement
strategies cannot be implemented without their active participation. Cooperative
planning of enforcement efforts will have the additional effects of bolstering the
Federal-State relationship and avoiding conflicts and duplication of effort on
enforcement matters of interest to both EPA and the States.
States should become involved in EPA's planning process as soon as possible.
However, it should be understood that developing a strategic planning capability
both in EPA and the States will be a long term effort. Ultimately, the strategic
planning process should be a system that includes planning at the State, Regional,
and national levels — with ideas generated at each level on both a program-specific
and multi-media basis.
Since EPA's own strategic planning process is still in the early development
phase, many issues are as yet unresolved. Chief among the unresolved issues are
the role of the States in strategic planning and how cross-media initiatives will be
funded. EPA can do some coordinated enforcement planning with States in the
near term, but full implementation of State involvement may not be possible until
funding and management of the overall planning process issues have been
resolved.
The Agency must also recognize that not all States will be equally prepared to
participate in comprehensive strategic planning for enforcement. The transition
from program-specific to more comprehensive planning will need to be gradual,
and may not be appropriate at all for some States because of the multiplicity of
agencies involved.
Exhibit 7 shows an idealized enforcement strategy development process.
Exhibits 8 and 9 describe the base program and special initiatives components of the
national environmental enforcement strategic plan.
2. EPA should consider refining base program strategies to allow for greater
focus on priority compliance concerns. EPA should also clarify the relationship
between base program activities and special initiatives.
While there appears to be substantial interest and willingness in EPA to target
special initiatives, it is still unclear the extent to which refinement of base program
strategies will be undertaken as part of the strategic planning process. In some
programs, compliance monitoring plans have not been substantially revised in
many years. In some cases, inspection frequency is directed by regulation or statute.
The definitions of significant noncompliance also serve to direct inspections in the
2-20
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various programs. Within these general constraints, there is some flexibility
regarding the specific type or thoroughness of inspection to be performed.
There is growing sentiment that current base program strategies do not always
direct resources to the most important potential violators or the most
environmentally significant problems. For example, major (large) facilities are
typically inspected annually regardless of their compliance history or contribution to
an environmental problem. A strategy to address toxic discharges to air or water
might focus in part on smaller facilities not now part of the inspection scheme.
Similarly, solving an air or water quality problem on a geographic basis might
involve both small and large facilities.
At issue is whether targeting efforts within a single media should or could be
part of the base program or whether they are more appropriately dealt with in the
realm of special initiatives. Some suggest that States are responsible for the "bread
and butter," routine compliance and enforcement activities, and that States have
enough to do without getting involved with potentially resource-intensive
initiatives. Given the growth in number and complexity of environmental
requirements and the static resources available for enforcement, however, there is
some question as to whether the States can realistically do all the routine things they
are expected to do. At least some States express interest in targeting their routine
activities to be sure they are focusing on the most important compliance concerns.
They feel they cannot afford to do otherwise.
States are unlikely to welcome an EPA strategy that carves out mostly routine,
work for States and focuses EPA efforts on the higher visibility, more interesting
problems. Individual media program enforcement strategies may need to define
base program activities in a manner that readily allows for targeting of even routine
activities.
3. For strategic planning to work, EPA must recognize and accommodate the
diversity of authorities, institutional arrangements, capacity, and environmental
problems among the States.
One source of tension over the years between EPA and the States has been the
limited flexibility available to the States in carrying out environmental enforcement
activities. While current Agency guidance does provide, in theory, some of the
needed flexibility, the willingness and ability of individual EPA programs and even
individual staff members to allow flexibility to be exercised is uneven. The reality is
that, in general, the culture of the Agency as well as its management systems make
exercising flexibility in operation and practice a difficult and potentially risky
undertaking. National guidance and policies as well as oversight measures have
tended to limit the ability of States to target resources to their own perceived
priorities. Further, EPA management systems have tended to push States toward
the use of authorities that are equivalent to EPA's as opposed to other, potentially
2-21
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more effective authorities they might have (e.g., authorities to revoke permits or
licenses or to assess natural resources damages).
EPA also needs to acknowledge and accommodate differences in institutional
and organizational structure among States. A State's enforcement system for
environmental enforcement might include not only the environmental agency or
agencies and the State Attorney General's office but also local district attorneys and
government departments, independent boards, or other institutions. A State's
institutional structure as well as the procedural requirements associated with the
use of various authorities affect the State's enforcement choices and should be
factored into EPA's assessment of State performance.
It is clear that providing greater flexibility to States will make EPA's oversight
function a more challenging responsibility, and statistical reporting will become
more complex. However, the test of a good strategy is not how well it fits a reporting
structure; rather, a reporting structure should be built to fit a good strategy. If EPA
provides greater flexibility, a State's part of the bargain must be to provide the
information EPA will need to understand how well the State's enforcement
program is working, be able to identify problems, and explain and justify the State's
efforts to EPA's overseers.
EPA will need to carefully assess whether particular State authorities are
appropriately incorporated into a broader definition of enforcement mechanisms.
To provide this flexibility, yet carry out its responsibility for assuring consistent
enforcement nationwide, the Agency will need to insist that State authorities meet
some minimum criteria to have them qualified for consideration as an enforcement
mechanism. In some cases, States may find they need to bolster existing authorities
in order to meet the minimum set. For example, if the expected minimum includes
an ability to impose economic sanctions administratively, a State would need to
show that it has either administrative penalty authority or some other sanction
with comparable economic consequences, such as the ability to revoke or suspend
permits.
Changes will need to be planned carefully and pilot tested; full implementation
will come slowly. Disputes between EPA and States will never completely disappear
because there will always be honest differences in enforcement philosophy.
However, EPA recognition and accommodation of each State's enforcement strategy,
based on its own unique array of authorities and capacities, will aid in improving
both the quality of enforcement efforts and the Federal-State relationship itself.
Exhibits 10-15 provide examples of the State institutional, procedural, and legal
diversity.
Exhibit 10 shows the legal and institutional context for environmental enforcement.
2-22
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Exhibit 11 depicts the variety of institutions with a role to play in environmental
enforcement.
Exhibit 12 shows the diversity in State agency organizational structures.
Exhibit 13 gives examples of State authorities different from EPA's.
Exhibit 14 explains how seemingly similar administrative order authorities are
really different.
Exhibit 15 shows that the final review of administrative orders in half of the States
is done by a review board external to the environmental agency.
4. EPA should provide incentives such as increased flexibility in accountability
measures and oversight, technical assistance, and financial support to encourage
State participation in strategic planning and implementation of initiatives.
State officials indicate that perhaps the single most important incentive EPA
can provide to secure their participation in strategic planning and implementation
is greater flexibility in accountability and oversight; they are, however, quite
pessimistic about the likelihood that it will happen. Implementation of initiatives
also will be aided if EPA provides technical assistance, such as giving specialized
training to inspectors and/or attorneys, performing laboratory analyses, or even
lending personnel to the State if needed. To help States in planning, EPA should
provide access to national computer data bases, planning software and guidance,
results of comparative risk or compliance analyses, and other tools and information
useful to States in identifying priority problems. EPA should also facilitate sharing
of the lessons learned from various enforcement approaches and techniques being
tried by EPA and the States. Special financial support would provide a significant
incentive to do initiatives, but if no additional resources are available, at a
minimum there must be a tradeoff against base program activities.
5. To start the momentum for change, EPA should begin right away by working
closely with selected pilot States to learn the opportunities and barriers that exist for
(1) State implementation of initiatives and (2) development of State strategic plans.
It will take many years to wo'rk out the details and policy changes necessary to
fully implement the enforcement strategic planning process that is envisioned and
to achieve the culture change that will result in improved EPA-State relationships.
It is essential that EPA take steps now, however, to begin implementation. To the
extent feasible within the constraints of the FY 1991 grant cycle, EPA should seek to
begin pilot testing the involvement of States in strategic planning and
implementing enforcement initiatives.
in
2-23
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This year, each EPA Region is beginning implementation of a pilot
enforcement project based on integration of data systems. The role of States in these
projects is still being determined, but working out the EPA-State roles is an integral
part of implementation. The successes and problems in working with States should
be assessed as part of the overall evaluation of these efforts.
Some States have expressed interest in developing enforcement strategic plans
themselves. In another pilot effort, EPA could work with and follow the progress of
selected, interested States that want to try to develop strategic plans. This experience
would provide insights valuable in assisting other States doing strategic plans in the
future as well as help EPA refine its policies and procedures regarding involving
State involvement in the EPA strategic planning process.
These pilot tests and experiments should start to build a momentum for
change. Meanwhile, EPA and States can learn together:
• The types of projects that tend to be successful;
• Productive ways to design and carry out progress assessment and
project evaluation;
• What the practical, operational barriers are to implementation;
• Specific changes that need to be made in various management and
oversight systems and policies; and
• Ways to transfer successes and lessons learned from the
initiatives to others.
Exhibit 16 describes funding options for special initiatives.
6. EPA should encourage States to designate a high-level official with multi-
media responsibilities to be responsible for environmental enforcement planning
and negotiations with EPA. EPA should recognize, however, that this will not be
feasible or even desirable for all States.
EPA's new enforcement strategic planning process is designed to target
enforcement efforts to environmental problems that cross media boundaries, such
as on a geographic, industry-wide, or pollutant basis, in addition to targeting within
the individual media. EPA's Regional Administrators (RAs) and Deputy Regional
Administrators (DRAs) are responsible for assuring that cross-media targeting and
case screening occurs at the Regional level. The assignment of this responsibility to
the RAs and DRAs should assure both greater integration within EPA as well as give
State managers a focal point for enforcement agreement negotiations.
2-24
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At present, enforcement agreements are often negotiated between State
program divisions and the corresponding individual EPA program offices. The
strategic planning process could be facilitated immensely if each State designated a
high-level official with cross-media, enforcement responsibilities similar to the RAs
and DRAs to lead the State's participation. Since the traditional program-specific
planning structure cannot change overnight, an interim way to involve States in
EPA's multi-media planning efforts could be to invite an appropriate senior State
officials to meet with the Agency's senior managers to discuss multi-media efforts
and their interest in participating.
Meanwhile, EPA will be gaining experience with a centralized enforcement
planning function at the Regional level. This experience should provide insights
into the benefits of and problems associated with a centralized enforcement
planning function that EPA could use to encourage (or discourage) States from
adopting a similar approach.
It would be generally be desirable for EPA to have a single representative to
work with on strategic planning in a State. However, in some States this may be
difficult to achieve, e.g.,where multiple agencies have environmental enforcement
responsibilities. In other situations, even the attempt to have such an individual
named could be counterproductive, such as where there are conflicting agendas
between the executive and law enforcement branches of government.
7. EPA should work with States toward development, over time, of a multi-
media, integrated State-EPA enforcement agreement contained in a single
document.
Current guidance on the development of State-EPA enforcement agreements
states that the agreements need not be a single "document," but rather can be a
compilation of a variety of conditions in grant agreements, enforcement policies,
memoranda of understanding, and other written documents between EPA and the
States. As noted above, these pieces are often negotiated at the program division
level, and may or may not be compiled in one place even for a single program. With
this fragmented approach, it is often difficult to learn just what the "State-EPA
enforcement agreement" is or to understand the overall structure of the State-EPA
relationship for a given State.
EPA should encourage States to initiate a process, similar to that which EPA
recently began, to develop an integrated strategy. Integrated enforcement
agreements should help facilitate implementation of strategic plans since
implementation will cross traditional program boundaries and require special
negotiation of what EPA and State responsibilities will be in carrying out particular
enforcement initiatives.
2-25
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EPA must recognize that it will take many years before this goal can be fully
realized by either EPA or the States. It is important that this recommendation not be
implemented prematurely, before EPA has adequate experience of its own in trying
to develop and implement a multi-media strategy. In the near term, EPA could
work with an interested State in a pilot effort (see recommendation B-5).
8. Single-media and cross-media enforcement priorities and initiatives should
be generated in a process that considers national, Regional, and State concerns.
Consultation between levels of government about initiatives is essential.
Some national and Regional enforcement priorities and initiatives will emerge
from broad-scale analysis of environmental and/or compliance problems. States
should also be able to generate initiatives since they are in a unique position to
identify the specific problems they face which may warrant national or Regional
attention. Ideally, the process should allow problems on a local level to be identified
and considered for initiatives as well.
Consultation between levels of government, including the Department of
Justice, is essential before embarking on State initiatives involving substantial
Federal involvement (e.g., special funding or technical assistance), novel legal
issues, or the potential for duplicative effort to assure that potential enforcement
problems for the Federal government can be identified and addressed. This process
goes both ways, however; the Federal government must also consult with States on
initiatives to assure proper coordination. However, there are certain rare instances
for which joint planning and execution of an initiative would be inappropriate.
Examples include such situations as some Federal criminal investigations, when a
State is the targeted defendant, when the State cannot accommodate Federal
requirements for confidentiality, or when the Federal government is the subject of a
State action.
Exhibits 17 and 18 present an idealized process for generating initiatives.
9. The respective responsibilities of EPA and the States in implementing
specific initiatives should be negotiated in advance with each State.
The respective roles and responsibilities of EPA and individual States in
carrying out specific initiatives will vary depending on the nature of the initiative
itself, the level of interest of the State, and resource and capacity considerations. The
roles may range from EPA having complete responsibility with virtually no State
involvement to States having complete responsibility with EPA in an oversight role
only. In between are various alternatives such as States conducting inspection work
with EPA taking the lead in enforcement actions, joint inspections and enforcement
actions, and either State or EPA having the lead for implementation but with active
cooperation from the other partner. For smooth implementation, however, it is
essential that these arrangements be negotiated and agreed to in advance.
2-26
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Exhibit 19 shows the possible arrangements that can be established for carrying out
initiatives.
10. If a national or Regional enforcement initiative addresses a problem of low
priority to a State, the State should be able to decline participation. However, the
State recognize that EPA will enforce in the State as needed to achieve the objectives
of the initiative.
Sometimes, a national or Regional enforcement initiative might be designed to
address a noncompliance or environmental problem that is not considered a high
priority by a State. For example, the State might have a single facility of an industry
category targeted by EPA because of a national pattern of noncompliance, and the
particular facility's noncompliance is not a priority for the State when compared to
other more pressing problems. The State might opt not to participate in the
initiative. When implementation is needed to achieve the objectives of the
initiative, however, States must recognize that EPA will take action in that State to
carry out the initiative.
11. EPA should involve States in enforcement strategic planning early enough
in the planning and budgeting cycle to allow for serious consideration of their
priorities in Regional and national strategies.
States must participate early in the planning cycle if EPA is to be able to consider
State priorities in developing Regional and national enforcement strategies and in
preparing budget proposals. At present, the actual schedule for the ongoing strategic
planning process and for phased implementation of Regional strategies is still under
development. Once it has been more firmly developed, a schedule for phasing in
State participation should also be prepared.
12. EPA should reform management systems, policies, and procedures that are
barriers to implementing State strategic plans.
Some aspects of current policies and definitions constrain the ability to design
and implement enforcement programs that are tailored to the particular needs and
legal and institutional situations of individual States. Innovation is not
encouraged. Timely and appropriate response criteria and accountability measures
are viewed as pushing States toward use of enforcement mechanisms that can be
swiftly executed and that are given "credit" by EPA. These mechanisms may not
always be the most effective tools available to address a problem (e.g., suspending a
permit until a violating facility cornes into compliance could achieve compliance
faster and be a greater economic penalty than might be exacted through an
administrative order). The needed flexibility could be accomplished by broadening
the kinds of mechanisms that are considered "enforcement" and thereby given
credit by EPA, and by tailoring timely and appropriate criteria to the institutional
2-27
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and legal situations of individual States. The definitions of significant
noncompliance, a central management tool for environmental enforcement
programs, are viewed as sometimes forcing enforcement efforts to problems of
limited importance.
i
Current accountability measures, which count numbers of various kinds of
enforcement activities (inspections, actions, etc.), may also inhibit State ability to
implement strategic plans. Currently, such measures lump broad categories of
activities together and cannot measure progress toward achieving specific objectives
of initiatives. An alternative approach would include plans for collecting and
analyzing information into the design of enforcement initiatives. Periodic reviews
would focus on the progress being made and on identifying and correcting any
problems being encountered. Some grant-related commitments would need to
continue because of financial management requirements and normally-counted
activities would continue to be included in statistical reports, but otherwise the
emphasis of oversight would be on qualitative issues.
Planned assessment and evaluation will allow EPA and the States to share
experiences about what worked well and what did not in a way that should
ultimately result in future improvements in enforcement program design. These
assessments should take place outside the accountability system if they are to have
the desired results. However, the information gleaned from them i should be used
in explaining in more depth the successes of enforcement efforts and lessons
learned from them that will be applied to future efforts.
In the immediate term, EPA is testing alternative ways of measuring the
success of enforcement initiatives as part of the Regional data integration pilots; the
new STARS management system also provides for greater flexibility in
accountability measures. Ultimately, these kinds of changes will need to be
incorporated into EPA's oversight and accountability system for States.
Exhibit 20 describes the options for progress assessment that were considered.
2-28
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EXHIBITS
2-29
-------
-------
EPA AND STATE ROLES
IN ENVIRONMENTAL PROTECTION
,ifci. *-"* %^V£\x'-^' V/akA*x*o.^
LEAD
ROLE
SUPPORTING
ROLE
FUNCTION
Direct Program Administration
Enforcement
Research
Standard Setting
Oversight
Technical Assistance
National Information Collection
Federal Roles
WWV\MfWS\VMAlVMIUWMAnnWUMIW
Delegations
Force
Oversight
2-31
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PURPOSE OF OVERSIGHT
I. Ensure adequate environmental protection through
development and enforcement of national standards, and use of
direct enforcement action when needed to reinforce State action
and authority
2. Enhance State capabilities to administer sound programs, through
increased communication and a combination of support and
evaluation activities
3. Describe and analyze the status of national and Regional environmental
quality, through collection and dissemination of information from
State agencies and other major sources
OBJECTIVES FOR IMPLEMENTATION
1- Ensure continuing strong enforcement, with States as first line of
action and EPA as strong back-up for action when needed
2.
Clearly define program goals, priorities, and measures of success
3- Provide constructive evaluations of delegated State programs,
focused on problem-solving
4' Ensure timely identification of State program needs and State
environmental problems and conditions
5. Use a range of responses to State program performance and State
needs, focused on preventing large mistakes and solving
identified needs
2-32
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ENFORCEMENT DISCUSSION
IN 1984 EPA OVERSIGHT POLICY
Ensure continuing strong enforcement activity, with States
|as the first line of action and EPA as strong back-up
If or action when needed.
^Delegated States have lead for compliance and enforcement activities;
5EPA expects strong State programs
EPA role is shifting from a primary focus on performing inspections and
^taking enforcement actions to an emphasis on conducting review and
Devaluations and providing States with guidance and technical assistance
JEPA must assure that national goals and objectives are met, so must
|be strong back-up to States to provide direct enforcement when needed.
?S¥88S!^^
\EPA should establish in advance with the States the general criteria
jor guidalines for when EPA will take independent action
jEPA and the States should conduct joint annual planning, in order to
festablish and coordinate priorities
SDevelop annual program strategies and priorities for targeting
^compliance and enforcement activities
jEstablish agreed-upon criteria for, and measures of, adequate
soverall State compliance and enforcement programs
SSSSSSSSSSSSsJSSSSSSS^^
llailor national program criteria to fit each State's unique circumstances,
fprocedures, and authorities
[states must provide EPA with prompt, accurate information regarding
fsources out of compliance and on State plans for enforcement actions,
ffocused especially on mutually established annual priorities
2-33
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CURRENT EPA OVERSIGHT
OF STATE ENFORCEMENT PROGRAMS
QUANTITATIVE MEASURES
Number of inspections
Number of enforcement actions
Grant commitments
CASE-BY-CASE REVIEWS
Timely and appropriate enforcement
EPA overfiling
TECHNICAL ASSISTANCE
Training
Direct assistance on specific cases
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IMPLEMENTATION OF EPA OVERSIGHT POLICY
WOULD SHIFT EMPHASIS:
IN-DEPTH PROGRAM REVIEWS
TECHNICAL ASSISANCE
QUANTITATIVE MEASURES
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2-34
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WHO PERFORMS ENVIRONMENTAL INSPECTIONS?
SOURCE: Estimates for FY 1988, as provided by EPA compliance program offices
to the Agency-wide Work Group for Inspector Training and Development
100
50
10
ALL PROGRAMS
(10.517 inspections)
(12,400 inspections)
STATES
EPA
CONTRACTORS
Percent
of inspections
10C
90
80
70
60
50
40
30
20
10
BY INDIVIDUAL PROGRAM
^Contractors Contractors -
Con ractors
Con ractors
nrr
Contractors
WATER/ AIR AIR RCRA*
NPDES STATIONARY MOBILE
° Percentage of inspections performed by contractors is unknown
Loss than t% of Inspections are performed by contractors
TOXICS PESTICIDES DRINKING UNDERGROUND
WATER" INJECTION
States
1 EPA
Contractors
"2-35
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ENFORCEMENT ACTIONS 1988
(AIR, WATER, RCRA)
Total: 7419;
EPA Administrative Orders
1,878 (25.3%)
EPA Civil Actions
352 (4.7%)
[State Civil Actions
904 (12.2%)
I State Administrative Orders
4,285 (57.7%)
Source: EPA Press Release, 1/8/88; Trends in Statutory Enforcement Programs
2-36
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ENFORCEMENT STRATEGY DEVELOPMENT PROCESS
m
CRIMINAL
OFFICE OF
ENFORCEMENT
REGIONAL
REPRESENTATIVES
HQ PROGRAM
OFFICES
NATIONAL
STRATEGY GROUP
STATE
REPRESENTATIVES
(Multi-Media,
Proaram S ecific
Regional
Counsel
Program
Divisions
REGIONAL
STRATEGY
GROUP
State
Representatives
(Multi-Madia,
Attorney
General's
Office
Environmental
Agency
or Agencies
STATE
STRATEGY
GROUP
(Participants, structure;
will vary by State)
Program
Divisions
-------
EPA ENFORCEMENT STRATEGY
BASE PROGRAMS
(Air, Water, Hazardous
Waste, Pesticides, Toxics,
Drinking Water, etc.)
Geographic
Industry
Pollutant
Compliance rate
Innovative method
Other
I
2-38
-------
ENVIRONMENTAL ENFORCEMENT STRATEGY1
INITIATIVES
PROGRAM SPECIFI
BASE
PROGRAM
C
> ,. Sf J
V. ff
MEDIA
. SPECIFIC
..
-
CROSS
MEDIA
Routine compliance monitoring
and enforcement activities
^
J
J Normal program funding
y mechanisms
J Normal accountability measures
y
k
^
k
5
5 '
k
s
k
^
5
5
j
«i
5
^
^
^
Targeted compliance 2
monitoring and J
enforcement based on^
geographic risk, *
industry risk, J
noncompGance J
patterns, other ^
indicators of need foij
focused effort. J
J
Flexible
program
funding
mechanisms
Special
accounta-
bility
measures
Flexible
program
or special
funding
mechanisms
Special
accounta-
bility
measures
J
"2-39
-------
THE CONTEXT FOR STATE ENFORCEMENT
LEGAL
^^
such as: ^^ADMINISTRATIVE PROCEDURES
STATE/LOCAL AUTONOMY
STATE LAWS
IN PLACE
BEFORE EPA
PROGRAMS
STATE LAWS
ADDRESSING
ENVIRONMENTAL
PROBLEMS NOT
COVERED BY
FEDERAL LAW
STATE LAWS
ENACTED OR
MODIFIED TO
IMPLEMENT
EPA PROGRAMS
COMMON LAWS
2-40
-------
STATE INSTITUTIONS WITH ROLE IN ENFORCEMENT
ENVIRONMENTAL
AGENCY
EPA
Direct
Relationship
(oversight,
funding)
LOCAL
AGENCIES
OTHER
AGENCIES
DISTRICT
ATTORNEY
ATTORNEY
GENERAL
LOCAL COURTS
STATE POLICE
STATE COURTS
LEGISLATURE
GOVERNOR
2-41
-------
1 2
ENVIRONMENTAL AGENCY ORGANIZATIONAL STRUCTURES"
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Water Board Ml Waste Board
Secretary
Agency
I
2-42
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STATE ENFORCEMENT AUTHORITIES
ARE SOMETIMES BROADER THAN ERA'S
ERA-REQUIRED
AUTHORITIES
Criminal Sanctions
Injunctive Relief
Administrative
Orders
OTHER COMMON
STATE AUTHORITIES
W////////////////////////A
Registration
Property Transfer
Requirements
Natural Resource
m Damages
2-43
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DIFFERENCES IN ADMINISTRATIVE ORDERS LH
Immediately effective
jupon issuance
(Slate must be prepared
• to litigate right away)
8
States
Effect delayed
if review requested
•^-'- ,, ••' ','
:(Agency has time /
to prepare case
if challenged)
41 States
and EPA*
EPA treats both types the SAME for oversight purposes.
f Most EPA orders are "complaint orders", but there are a few exceptions
2-44
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15
FINAL REVIEW OF ADMINISTRATIVE ORDERS*
BOARD OR COMMISSION
ENVIRONMENTAL AGENCY
ADMINISTRATIVE ORDERS
FINAL
REVIEW
Agency
Director/Secretary
24 States
ronmental agency controls final outcome ^p^sEnvlronmental agency does not have control
administrative case (unless appealed to ^JZ^Mover final outcome of administrative case.
udlcial system)
(*RCRA Administrative Orders only; on* State has no RCRA order authority)
.., 2-45
-------
FUNDING OPTIONS FOR SPECIAL INITIATIVES^
1 6
I PROGRAM SPECIFIC |
Base
Program
A
r.
Media
'7
• Haltd
Media
!" °", 1
OPTION I
Funding for A, B, and C from normal program funding
No special funding available
PROS
OCNS
Reinforces concept that strategic planning should be a routine process
No disruption to current funding approaches
Initiatives may not receive adequate support or attention
Programs would provide resources as needed to carry out initiatives
OPTION 2
Funding for A and B from normal program funding
Special multi-media funding for C
PROS
CONS
Keeps program-specific activities funded through normal process
A portion of "normal" program funds could be reserved for single-program initiatives
Special funds for multi-media projects would help assure projects happen
High visibility to multi-media initiatives
Source of special funds would need to be found (this could be a percentage tap
from each program area)
States unlikely to hire under special funding because of uncertainty
Competition between base program, program initiatives, and multi-media
initiatives could be damaging
Some disruption of current funding process
OPTION 3
Funding for A from normal program funding
Reserved percentage of program funding for B
Special multi-media funding for C
PROS
OCNS
Gives special attention to both program-specific and multi-media initiatives
A required percentage of funds could be reserved for program-specific initiatives,
and each grant program could be tapped for multi-media initiatives
Disruptive to current funding process
Competition for resources could be damaging
Base programs may be jeopardized
Unless there is stable funding, projects may suffer due to lack of certainty
2-46
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NCWWNCtNWNCiMeaCCClJCOSOS^CiSiWXWS^^
\
I
ENFORCEMENT STRATEGIES
BASE
PROGRAM,
SPECIAL
INITIATIVES
I
«la»sc«MClaaaN^^BC*s^s^csc^NCCOla&a»»^a^^
2-47
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ENFORCEMENT INITIATIVES
State Initiatives
;; t;Some State Initiatives
" Ibecome Regional Initiatives,
^ Bothers are originated by */,
-•^^*U-.M — — 1-.—. ^ %V
Regional Initiatives
, -the Region
i. <«t < •&, •&••. % •
Some Regional Initiatives
become National Initiatives,
Including some that were
originated by States; others
are originated at the
national level
National Initiatives
Negotiations Process
REGIONAL PROGRAM
Negotiations Process
iSTATE PROGRAM
1=1
State/Cross Media
State/Single Media
Regional/Cross Media
Regional/Single Media
National/Cross Media
National/Single Media
2-48
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EPA AND STATE ROLES
NATIONAL, REGIONAL ENFORCEMENT INITIATIVES
The chart below summarizes various negotiated arrangements that
can be made between EPA and the States with regard to carrying out
EPA initiatives. In a given State, the roles arrangement might be
different for each initiative, based on the nature of the initiative,
degree of State interest, and resource concerns. To assure smooth
implementation, roles must be clearly negotiated and understood.
KEY TO ROLES SUMMARY
EPA State
Lead
Responsibility
EPA State
Active
Cooperator
EPA State
Joint
Responsibility
O
EPA State
Consultation
Role
Planning
O
EPA State
EPA State
EPA State
EPA State
EPA State
Inspection
EPA State
Dt
EPA State
EPA State
EPA State
EPA State
Enforcement
Response
Decision
pi
vl/
EPA State
Dt
I-PA State
EPA State
EPA State
EPA State
Case
Development
EPA State
IEPA State
EPA State
EPA State
EPA State
Prosecution
EPA State
nt
EPA State
EPA State
EPA State
EPA State
Evaluation
O
EPA State
IEPA State
EPA State
EPA State
EPA State
2-49
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PROGRESS ASSESSMENT
ENVIRONMENTAL ENFORCEMENT STRATEGIES
PROGRAM-SPECIFIC
Base
• Program
A
* j*3£
"''* f 9-
**<««
o -
OPTION t; CUBBCNT ACCOUNTABILITY
^ , - SYSTEM
Nurnercfal commitment* for Inspections, types of enforcement
actions; activities iracked against commitments
PROS Minimum disruption to current program
Numerical measures will be better measure of environmental importance as SNC definitions are refined
Program evaluation can be carried out as completely separate function
CONS Does not provide much flexibility or ability to accommodate innovative approaches
Results of initiatives will be lost in total numbers
Multi-media projects likely to have difficulty getting support, credit
PROS
CONS
IP I
4 fr
OPTION 2? PROGRESS ASSESSMENT
s% ; "'* s FOB fcULTI-MEDIA INITIATIVES
Numerical accountably measures for program-specific
activities,' progressed measured against plans for multi-media
' ' "" '
Same as Option I
Multi-media initiatives assessment will develop experience in designing evaluation measures into plans
Narrative descriptions of results, problems available for external audiences, tech transfer
Still limited flexibility, innovative approaches captured only for multi-media initiatives
The 'numbers' could drop due to initiatives
If multi-media initiatives are outside routine accountability system, they might not recieve adequate attention
OPTIONS: . PROGRESS ASSESSMENT
Numiaflcal accountabiiKy measures for base program,
progressed measured against plans for nlngle-medla
and hiaUI-medta InUiatlves
PROS Reinforces strategic planning and targeting, making initiatives seem more "routine"
Greater flexibility in all areas
Gradual implementation could minimize program disruption
CONS Significant disruption to current program, culture
The "numbers" might drop
Limited experience In progress assessment approach
™£t Reporting,
OPTION 4; , PROGRESS ASSESSMENT FOR INITIATIVES,
; . • WITH NUMERICAL REPORTlNa
Numoricat accQuntablllty measures for foas* program,
progress against plans assessed for Inltlallyes, tint
acttvltks (e.g., numbers of inspections, enforcement
action*) are counted and reported In *c
-------
ENFORCEMENT IN THE 1990's PROJECT
ENHANCING
t
ENVIRONMENTAL
RULEMAKING
-------
WORKGROUP CONTRIBUTORS
Elliott Gilberg
P. Anne Allen
Elyse DiBiagio-Wood
Ken Harmon
Jon Jacobs
Mimi Newton
-------
ENFORCEMENT IN THE 1990's PROJECT
RECOMMENDATIONS OF THE WORKGROUP ON
RULEMAKING ENFORCEABILITY
I. Goals and Objectives of the Project
EPA has encountered problems enforcing some regulations in each of its
statutory programs. These problems may in part be attributable to the Agency's
failure to give sufficient consideration to enforceability during the development of
these regulations. The goal of this project is to propose changes in the way the
Agency develops regulations that will place enforceability considerations in the
forefront of the decisionmaking process.
II. Process Leading to Recommendations
The rulemaking project workgroup identified, in each program, several
examples of regulations which present enforcement concerns. Based on our
analysis of these problems, we selected several issues concerning EPA's rulemaking
process which we would investigate. Each issue was assigned to a workgroup
member, who developed a description of the issue and questions to be posed to
program regulatory and compliance managers. Workgroup members have
discussed their recommendations with managers in most program regulatory and
compliance offices, as well as with the Chairman of the Steering Committee.
III. Recommendations
The recommended actions divide into two categories: those which the Office of
Enforcement can implement unilaterally, and those which require the cooperation
and assistance of other offices. The first category generally addresses ways in which
Office of Enforcement attorneys can more effectively influence the development of
regulations, and ways in which OE managers can pay closer attention to their staffs'
work on regulations. These recommendations can be implemented by the Assistant
Administrator immediately. It is recognized that some of these improvements,
although beneficial, will add to the time it takes to complete a rulemaking, as
commenters have noted. In the implementation process, efforts must be made to
minimize the time costs associated with these measures. The second category
generally addresses ways in which the Agency as a whole can ensure that a
regulation's enforceability receives adequate consideration during the rulemaking
process. These recommendations involve OE's proposing changes to the Steering
Committee and to originating offices.
The recommended actions also break into categories in another sense: those
which improve on existing mechanisms for considering enforceability in
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rulemaking, and those which are new approaches which the Agency has not
previously tested. In this way, our recommendations try to achieve a balance
between "old" and "new" ways of doing business.
It is recognized that some of these improvements, although beneficial, will add
to the time it takes to complete a rulemaking, as commenters have noted. In the
implementation process, efforts must be made to minimize the time costs associated
with these measures.
Finally, rulemaking potentially provides greater opportunities for State
participation than this report expressly recognizes, as noted in the comments. An
example for consideration is field testing. Attentiveness to possible opportunities in
this regard is strongly encouraged.
IV. Recommendations
A. EPA SHOULD PILOT THE USE OF "FIELD TESTING" OF REGULATIONS
PRIOR TO PROMULGATION.
We suggest a pilot project in each medium whereby proposed regulations
would be tested by members of the regulated industry under EPA supervision or
control prior to promulgation. Field tests could be used to test inspectors' ability to
determine compliance with the regulation as well as industry's ability to understand
and implement it. If the field test identified problems, EPA could make corrections
to the regulation before it was finally promulgated.
We realize that field testing could enlarge the length of time it takes to
promulgate a regulation. Nonetheless, field tests of some regulations, particularly
those relying heavily on recordkeeping and self-reporting as means of determining
compliance, could expose weaknesses in the rule that might render the regulation
unenforceable if left uncorrected.
PROPOSED ACTION: Each program office, jointly with the Office of Enforcement,
should identify one or two candidates for a pilot project on field testing. OE will
work with each program office to develop a protocol for field testing of each of the
selected regulations. The timing of the actual field test will vary depending on the
schedule for development of the selected regulations.
B. EPA SHOULD PILOT THE USE OF AN "ENFORCEMENT IMPACT
ANALYSIS" AS PART OF THE DECISIONMAKING PROCESS IN
DEVELOPING A REGULATION.
EPA's regulatory development process has been insufficiently responsive to
enforcement concerns in promulgating regulations. Enforcement concerns which
are "technical" (e.g., unavailability of test equipment or methodology), "logistical"
3-2
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(e.g., shortage of inspectors, lack of training), or "legal" (e.g., vagueness, complexity,
unclear evidentiary standards) are often addressed inadequately.
One way to improve EPA's ability to identify and resolve enforcement concerns
in the regulatory development process would be to formalize consideration of these
issues in an "Enforcement Impact Analysis." Such an analysis would delineate how
technical, logistical and legal enforcement concerns have been addressed in the
regulation. The analysis would set out how the proposed regulation would be
implemented and enforced. It would be a valuable source of information to upper
level managers, the Deputy Administrator and the Administrator in making their
decisions to concur on or sign the proposed regulation.
An Enforcement Impact Analysis should not be required for all regulations, but
only those that would involve sufficient enforcement issues to warrant the analysis.
One suggestion is that a decision should be made at the time of approval of the Start
Action Request. If so, a subgroup of the workgroup could be set up to address
enforcement concerns throughout the process, ensuring that such concerns are
raised early in the rulemaking process and are sufficiently addressed in the proposed
regulation. The subgroup should consist of a variety of people with various areas of
expertise and knowledge of the enforcement issues associated with the regulation.
The Office of Enforcement would take the lead in addressing legal issues, and the
National Enforcement Investigations Center would be available to assist in
addressing technical issues. Additional technical support would be required from
program offices. The subgroup would draft the Enforcement Impact Analysis to be
included in the Red Border Package to the Administrator. Due to the need to keep
such an analysis confidential, a means would have to be devised to ensure that the
analysis would fall within either the deliberative process or attorney-client
privileges.
PROPOSED ACliON: Office of Enforcement representatives on regulatory
workgroups should begin to evaluate regulations early in development, based on
Start Action Requests if possible, to determine if an EIA would be appropriate.
Workgroups will identify one or two candidates in each program for a pilot project
to develop an EIA. The timing of preparing the EIA will vary depending on the
schedule for development of the individual regulations.
C THE OFFICE OF ENFORCEMENT SHOULD ESTABLISH AN AUTOMATED
TRACKING SYSTEM COVERING REGULATORY DEVELOPMENT.
The Office of Enforcement should implement an automated tracking system
for rulemaking projects. Participating Headquarters and Regional attorneys shall
update the system in the same manner as for the Enforcement Case Docket. We
believe that the addition of this system will greatly improve the Office of
Enforcement's ability to complete program reviews and strategic planning. In
addition, we believe that inclusion of this data will enable OE managers to pay closer
3-3
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attention to their staff's participation in rulemaking workgroups. The
implementation of this tracking system will present a comprehensive picture of the
Office of Enforcement's participation in rulemaking projects at EPA.
It is imperative that the system accurately and completely reflect the number,
nature, and status of all rulemaking projects. To do this, procedures similar to those
used for the Enforcement Case Docket shall be modified for purposes of this
proposed system. Such procedures include operation and maintenance of the data
base that pertain to data requirements, initial entry of a project, and regular monthly
review to indicate the status of the project.
PROPOSED ACTION: The Office of Enforcement should evaluate whether to use
the Agency's existing tracking system for regulatory development or to develop one
of its own.
D. THE OFFICE OF ENFORCEMENT SHOULD TAKE STEPS TO ENHANCE
THE EFFECTIVENESS OF ITS REPRESENTATION ON THE STEERING
COMMITTEE
As an initial matter, we recommend asking OPPE to provide some more
information in the Start Action Request that would enable OE to make an early
assessment of enforcement needs. The appropriate OE media division should
review the SAR and either send a representative to the Steering Committee
meeting or supply the OE representative with enforcement-related questions to
raise at the meeting. The OE representative should notify the workgroup chair at, or
shortly after, the Steering Committee meeting of the extent of further OE
participation.
In addition, OE needs to improve its internal procedures for keeping its
Steering Committee representative informed concerning enforcement issues. In
particular, the workgroup member needs to raise issues that are not being adequately
addressed by the workgroup, so that the OE representative can bring such issues to
the' attention of the Steering Committee.
PROPOSED ACTION: The Office of Enforcement should issue a memorandum to
its staff setting forth revised procedures for regulation review. The memorandum
should incorporate our recommendations for keeping the Steering Committee
representative informed of enforcement issues. A Steering Committee workgroup
on regulatory development recommended that the Steering Committee adopt a
format for the SAR that is somewhat more informative, and that change was
instituted at the beginning of FY 1991.
E. THE OFFICE OF ENFORCEMENT SHOULD FORMALLY REQUEST
REVISIONS TO PROMULGATED REGULATIONS WHICH POSE
ENFORCEMENT PROBLEMS.
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The Office of Enforcement currently does not give sufficient feedback to
originating offices regarding enforcement problems with existing regulations.
Concerns are often expressed informally, anecdotally, and at staff level.
When a regulation is presenting enforcement concerns, based on federal and
State experience with its application, OE should evaluate the need for revisions to
the regulation. If OE determines that revisions are needed to enforce the regulation
effectively, OE should make a formal written request to the Assistant Administrator
of the program office to revise the regulation. OE should work closely with the
program office to determine how the need for the revised regulation compares to
competing regulatory priorities. In addition, OE should work with the program
offices to explore development of an expedited, streamlined process to make limited
revisions to regulations to address specific enforcement concerns.
PROPOSED ACTION: The Office of Enforcement should issue a memorandum to
its staff setting forth procedures for requesting program review of a regulation. We
cannot project the timing of invoking such procedures, since it will occur only as
the need arises. OE should meet with representatives of program offices to discuss
ways to expedite rulemaking procedures for the purpose of limited revisions
addressing enforcement concerns. If such a process appears feasible, the Agency
should put such procedures in place.
F. THE OFFICE OF ENFORCEMENT SHOULD RELY MORE HEAVILY ON
WRITTEN COMMENTS AND USE NON-CONCURRENCES WHERE
SIGNIFICANT ISSUES HAVE NOT BEEN ADEQUATELY ADDRESSED.
As OE staff participate in regulatory development workgroups, it is important
that they raise enforcement concerns in writing whenever possible. Written
comments will help to ensure that OE's concerns are clearly understood and are
given adequate consideration, and will establish an administrative record of the
decisionmaking process. Where OE staff believe that enforcement concerns are not
being adequately addressed, it is important that such concerns be elevated early.
Ideally, enforcement concerns will be resolved before workgroup closure, final
Steering Committee and red border review. However, where OE has actively
participated in the regulatory development process and has raised its concerns
appropriately, OE should be prepared to exercise its authority to non-concur on
regulatory packages that have not addressed important enforcement concerns
adequately. Non-concurrence will ensure that these concerns are addressed at the
highest management levels where necessary.
PROPOSED ACTION: The Office of Enforcement should issue a memorandum to
its staff, setting forth revised procedures for regulatory review. (See
recommendation No. 4.) Such procedures should incorporate our
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recommendations for increased reliance on written communications.
G. WORKGROUP MEMBERS DEVELOPING MAJOR REGULATIONS
SHOULD RECEIVE TRAINING TARGETED TO ENFORCEABILITY
CONCERNS BY MEDIUM.
Everyone participating in a regulatory development workgroup has a
responsibility to assure that an enforceable regulation is developed. To assure that
workgroup members can effectively carry out that responsibility, at least for selected
major regulations, training should be provided early in the regulatory process that is
targeted to the types of enforcement concerns that prevail in that particular
medium.
PROPOSED ACTION: OE should begin working with the EPA Training Institute to
develop a session on enforceability concerns arising under each statute. The end
product should be a curriculum for training sessions in each medium, to be given
on an as needed basis, and, if appropriate, an enforceability checklist which can be
used by workgroups for each medium.
WORKGROUP REPORT
I. Introduction
EPA protects the nation's environment largely by regulating activities that
pollute the air, water, or land. If its regulations are not enforceable, the Agency has
failed to fulfill its mission, and the public resources expended upon the
development of those regulations are wasted.
EPA has encountered problems enforcing regulations in each of its statutory
programs. For example, provisions of a State Implementation Plan which grant
discretion to the director of the State air pollution control agency to approve an
"alternative means of control" have been construed by courts to displace EPA's
review of such changes, thereby nullifying EPA's authority to enforce the
underlying requirements. The lack of specific recordkeeping and reporting
provisions in the Underground Injection Control regulations developed under the
Safe Drinking Water Act have hampered enforcement against owners and operators
of well fields. Imprecise definitions of key terms in regulations implementing the
Resource Conservation and Recovery Act have complicated enforcement efforts.
Enforcement problems have manifested themselves in a number of ways.
Judicial enforcement actions have been dismissed. Adverse judicial precedent has
chilled initiation of similar actions. Enormous resources are expended on discovery
regarding the appropriate interpretation or application of a regulation. The Agency
has been forced to discount its minimum penalty settlement amounts because of the
litigation risks associated with enforcing problematic regulations. Even where EPA
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ultimately prevails in an enforcement action, the cost of victory may be
unnecessarily increased by deficiencies in the regulation.
These problems may in part be attributable to the Agency's failure to give
sufficient consideration to enforceability during the development of the regulations.
To assure that its regulations are as effective as possible in achieving their objectives,
EPA must make a greater commitment to examining enforceability concerns during
the development of these regulations.
II. Goals and Objectives of the Project
The goal of this project is to propose changes in the way the Agency develops
regulations that will place enforceability considerations in the forefront of the
decisionmaking process. Specifically, the offices (both legal and technical)
responsible for enforcement and compliance activities must invest time and effort
to identify and resolve enforcement concerns during regulatory development. In
addition, the program offices must recognize an obligation to write regulations
which are understandable, which precisely define the regulated activity and the
regulatory requirements, and which clearly address how compliance is to be
determined.
III. Process Leading to Recommendations
The rulemaking project workgroup identified, in each program, several
examples of regulations which present enforcement concerns. Based on our
analysis of these problems, we selected several issues concerning EPA's rulemaking
process which we would investigate. Each issue was assigned to a workgroup
member, who developed a description of the issue and questions to be posed to
program regulatory and compliance managers. Workgroup members have
discussed their recommendations with managers in most program regulatory and
compliance offices, as well as with the Chairman of the Steering Committee and a
workgroup examining regulatory development.
IV. Findings
A. EPA MUST MAKE A GREATER COMMITMENT TO EXAMINING
ENFORCEMENT CONCERNS IN ITS REGULATORY DEVELOPMENT
PROCESS.
EPA fails to perform its basic function as a regulatory agency when it develops
regulations that are not enforceable. At the heart of this project's recommendations
is a call for the Agency to devote more resources to the critical examination of
regulations for enforceability issues. While the Office of Enforcement should have
the primary role in such review, the enforceability of regulations is ultimately the
responsibility of everyone who participates in the regulatory development process.
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B. ENFORCEABILITY CONCERNS SHOULD BE RAISED AS EARLY AS
POSSIBLE IN THE REGULATORY DEVELOPMENT PROCESS.
Program regulatory managers generally recognize the need to examine
enforcement concerns more carefully in developing regulations but caution that it
must be done as early as possible. Raising problems after critical decisions have been
made is disruptive and may result in significant delay, as well as a waste of resources
already expended.
C REGULATIONS SHOULD BE WRITTEN CLEARLY ENOUGH TO BE THE
BASIS OF A CRIMINAL PROSECUTION
Criminal enforcement of environmental laws is emerging as an increasingly
important part of the Agency's program. To prevail in a criminal enforcement
action, the United States must prove the elements of an offense beyond a reasonable
doubt. This higher standard of proof should be the benchmark for an enforceable
regulation.
V. Recommendations
A. EPA SHOULD PILOT THE USE OF "HELD TESTING" OF REGULATIONS
PRIOR TO PROMULGATION.
Introduction
To assist EPA in its efforts to identify and correct deficiencies in its regulations
before such deficiencies adversely affect enforcement efforts, we recommend that the
Agency pilot a project to field test regulations prior to final promulgation. The
Office of Enforcement and the program office for each medium should select at least
one regulatory initiative amenable to this approach for dedication to the pilot
project. After these regulations have been finally promulgated, EPA will evaluate
the effectiveness of the field testing process, and issue recommendations for its
future use.
Applicability
Not all proposed regulations lend themselves to field testing. EPA cannot
expect the regulated community voluntarily to install capital equipment required by
a unfinished regulation that is subject to change. Even if a trade organization were
willing to fund a field test requiring significant capital expenditures, EPA might not
be willing to approve the test if it would mean delaying the rulemaking process to
allow time for planning, permitting, construction, and start-up of new equipment.
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Accordingly, field testing is more appropriate for regulations involving
operation and maintenance or recordkeeping and reporting provisions/ new
methods of testing compliance with standards, or perhaps even a new standard. In
these areas, the prospective regulated community should be more eager to
volunteer to conduct a field test, and planning and performing the test and
analyzing the results should not greatly delay the process of regulatory
development.
Implementation
The current regulatory development process proceeds from the start action
memorandum, to information gathering, to analysis of different competing
regulatory options, to proposal of the rule, to receiving comments, and to final
promulgation! EPA could insert field testing into regulatory development either as
part of its initial information gathering or after proposal as an expansion of the
comment process. In general, the Office of Enforcement recognizes that conducting
field testing as early as possible in the process is most beneficial, preferably before the
notice of proposed rulemaking is issued.
Whatever the timing, field testing requires EPA oversight and preferably direct
observation. To assure industry cooperation in this regard, correspondence with
sources contemplating field tests should stress that EPA will be visiting solely for the
purpose of observing the test, and will not treat its visit as an opportunity to conduct
inspections for violations of existing regulations. Nonetheless, EPA's
correspondence should reserve the Agency's right to take action to address observed
violations that represent an imminent and substantial endangerment to public
health or welfare.
Field testing as part of information gathering
While EPA is still gathering information to use in developing the regulation,
but after the Agency has collected sufficient information to enable it to produce the
regulation in working draft form, EPA could contact trade organizations or leaders
in the prospective regulated community to solicit comments on the draft and
volunteers for field testing. Field testing a draft regulation prior to proposal allows
the Agency to proceed in an informal fashion with few restraints on time and on
contacts with industry* Some of the persons interviewed in the course of preparing
this study indicated that this is the manner in which EPA currently develops its
regulations.
Before a rule is formally proposed, EPA can engage in ex parte discussions with
industry representatives that need not be recorded and placed in the public docket,
thereby, some say, avoiding the appearance of intimacy with the regulated
community. Because the Agency is not yet formally engaged in the rulemaking
process, EPA can take time to investigate and thoroughly analyze a number of
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different field tests and regulatory approaches without the pressure of short
rulemaking deadlines. Conducting field tests during the information gathering
phase of rulemaking would allow EPA to propose a regulation that should require
very little amendment before final promulgation. Because the major affected
parties should have participated in field testing, comments on the proposed
regulation should not be extensive, and responding to comments should not
demand a great investment of Agency resources.
Conducting field testing during the information gathering phase of rulemaking
would be a front-loaded process. The largest part of EPA's time and resources would
be invested early in the regulatory development process. The contacts with the
prospective regulated community and the actual field testing would occur outside
the public docket, and would not require comment. The regulation would be
proposed in very nearly final form and would draw only limited comment. EPA
could address those comments and proceed to promulgation expeditiously.
Field testing as part of the comment process
Despite a general preference for early field testing, sometimes it is appropriate
to solicit its employment when the rule is formally proposed. In those instances,
EPA, in its notice of proposed rulemaking, would invite members of the targeted
regulated community to enlarge their comments by field testing the proposed
regulation. Field testing would be voluntary. Parties providing comments are
always free to include a discussion of their efforts to apply a proposed regulation to
their operations, but a field test as we envision it requires EPA participation.
Affected facilities, or perhaps trade organizations, would propose a field testing
protocol for EPA approval. EPA would observe the test and review the results. All
correspondence and reports describing the test would be placed in the public docket.
The Agency would then seek additional comments from interested parties. If, as a
result of the deficiencies identified by the field test, EPA determined that it should
make significant changes to the proposed regulation, EPA would repropose the
regulation in corrected form. The public would be given the opportunity to
comment on the amended version before the Agency promulgated the regulation in
final form.
The differences between field testing as an expansion of the comment process
and field testing as part of information gathering are more than just procedural.
The necessary formality of field testing as an expansion of the comment process
would require greater expenditure of resources and would result in greater delays in
promulgating regulations. Nonetheless, conducting field tests in the open (only
confidential business information would be deleted from the public docket)
provides interested parties with the opportunity to comment on aspects of the tests
of which they may have otherwise been unaware. A better regulation should
emerge from wider discussion. The public, too, should respond favorably to open
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field testing. Some members of the public may feel that, by field testing regulations,
EPA allows industry too great a voice in developing regulations, but EPA would
likely appear worse if it were to be revealed that the Agency had participated in ex
parte field tests that helped shape the regulation prior to its proposal.
Incentives
Some of the persons interviewed suggested that EPA may have difficulty
locating volunteers for field testing regulations. Others believed that industry, and
especially industry trade organizations, would jump at the chance. The deciding
factor would probably be the extent to which testing an unfinished regulation would
require unrecoverable capital outlays. EPA should consider this factor when
soliciting participants for field testing. We should recognize, however, that
industry's interest in being subject to understandable and smoothly functioning
regulations will probably provide sufficient incentive to encourage sources to
participate in the field testing of regulations that do not require expenditure of
undue resources. We should also recognize that industry's unwillingness to
volunteer to field test a particular regulation does not signal catastrophe, because
EPA can still proceed with its "normal" rulemaking process. Provision of EPA
funding or other incentives (such as remission of permitting costs, relief from
regulatory requirements, or credit toward penalty amounts) is unnecessary, and not
advised.
Measuring Success
Some of those interviewed proposed that EPA could evaluate the effectiveness
of field testing simply by reviewing regulations that have already been promulgated
and are currently. in use. Their rationale focused on the fact that regulatory
deficiencies identified during actual application of a regulation would be the same
deficiencies that would have been identified in a field test of that regulation.
Additionally, some asserted that industrial volunteers would be unlikely to draw
EPA's attention to regulatory deficiencies that work to industry's benefit.
EPA has already determined that some of its regulations are deficient. EPA's
recognition of this situation led to our recommendation of field testing. The
question is not whether field testing will identify regulatory deficiencies, but how
the Agency can most effectively integrate field testing into the process of developing
regulations.
During the course of the field testing pilot project, EPA can measure the success
of the effort by the number and the magnitude of the regulatory deficiencies
detected. If the process identifies a number of deficiencies that would not otherwise
have been detected and which would render the regulation ineffectual if left
uncorrected, the pilot will have demonstrated that field testing is an avenue to be
pursued. If the process fails to identify significant deficiencies and yet consumes
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large amounts of time and resources, EPA will analyze the additional costs created by
field testing balanced against the benefit accruing to the Agency from occasionally
detecting and correcting a regulatory deficiency before the regulation is promulgated.
B. EPA SHOULD PILOT THE USE OF AN "ENFORCEMENT IMPACT
ANALYSIS" AS PART OF THE DECISIONMAKING PROCESS IN
DEVELOPING A REGULATION.
Why an Enforcement Impact Analysis is Needed
EPA's regulatory development process is deficient with regard to the inclusion
of enforcement concerns in proposed regulations. "Technical" enforcement
concerns are often addressed inadequately, resulting in regulations which may be
impossible to implement due to the unavailability of equipment, test
methodologies or other technical requirements. "Logistical" enforcement concerns
may also not be addressed adequately, and regulations may be promulgated which
are difficult to enforce due to the shortage of inspectors or other resources needed to
enforce the regulation. Finally, "legal" enforcement concerns are often insufficiently
dealt with in the development of regulations. Legal deficiencies may result in
vague or overly complex rules, inadequate provisions directed at evidentiary
standards, such as who has the burden of proving a violation, and other drafting
flaws which make the enforcement lawyer's job more difficult than it might
otherwise be.
There are a variety of reasons why the present regulation development process
fails to adequately address these enforcement concerns in the regulatory process.
One reason may be that enforcement concerns are not perceived as sufficient cause
to hold up a regulatory package. In addition, program office representatives are
often working under a different set of priorities than enforcement representatives.
Program office representatives who typically chair regulatory development
workgroups may simply be unwilling to devote their time to solving enforcement
problems. The lead office may feel pressure, justifiably, to complete a regulation due
to management demands, statutory deadlines, or court orders. Tied into this
problem is the complication that arises when two offices under the same AA-ship
have different priorities in reviewing regulatory packages. An office with
enforcement concerns faces a difficult dilemma if it chooses to recommend
non-concurrence of a sister office's package to their mutual AA.
Another reason that the present system needs to be improved is that the
Administrator and other upper level managers may not be getting enough
information about important enforcement issues which may arise during the
regulatory development process. Sometimes these concerns are addressed in the
transmittal or action memorandum from the lead AA which accompanies the Red
Border Package to the Administrator. However, unless the lead office is especially
concerned with enforcement issues, such issues may not receive the amount of
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attention they deserve in these memoranda. Two or three sentences dealing with
an enforcement problem may simply be an inadequate means of catching the
Administrator's attention.
There is a need to present a cohesive and comprehensive collection of
enforcement concerns to upper level management and the Administrator. Before a
regulation is proposed, the Steering Committee and the Administrator need to
know what kinds and amounts of resources will be needed to implement or enforce
the regulation. They also need to be made aware of the practical issues which are
involved when one particular enforcement mechanism is chosen over another.
This type of information may be inappropriate for inclusion in an action or
transmittal memo but the ramifications and concerns involved with certain
decisions do need to be communicated.
How an Enforcement Impact Analysis Would be Implemented
Agency Rulemaking Process
Almost all proposed regulations require the review of Office of Enforcement
staff and the official concurrence of the AA (AA/OE). Usually, the Enforcement
Counsel (EC) will submit the name(s) of their staff who will participate in the work
group meetings, and the AEC will make any comments on the Start Action Request
to the Office of Standards and Regulations (OSR) in OPPE. OE's representative in
work group activities is responsible for presenting a consensus OE position on
matters and issues discussed before the work group. OE's workgroup member may
raise "real world" enforcement concerns at the workgroup meeting, or those
concerns may be raised by the program compliance office or regional members.
One goal of work group meetings is to discuss, select or reject, and refine the
options for further development. An options selection paper, prepared by the lead
office, should include an evaluation and analysis of the resources required for
implementation and enforcement of the regulation.
Steering Committee representatives are given the opportunity, through the
Consent Calendar review process, to provide written comments on a regulation
package. During the Red Border review process, the AA/OE, along with other
participating AAs, indicates whether he or she concurs in the regulation package.
The package will be reviewed by the appropriate OE media division and concurred
in by the EC, where applicable, or by the AA/OE.
How to Integrate EIAs Into the Agency Rulemaking Process
At the first stage of the development of a regulation, the SAR, a decision would
need to be made whether an EIA should be required for that particular regulation.
Such a decision could be made by the Steering Committee or the office which
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originated the SAR. Many regulations would not need an EIA due to the absence of
significant enforcement issues involved in those regulations.
There are a variety of ways in which EIAs could be prepared. Some
interviewees suggested that a standing committee of various representatives in
offices throughout the Agency be created to examine the enforcement issues
surrounding each regulation. Other interviewees suggested that ad hoc groups be
created by the Steering Committee to coordinate with the workgroups and focus on
the enforcement concerns associated with specific regulations. Another interviewee
suggested that each workgroup, through its chair, make the decision of who would
develop an EIA, a subgroup or the entire workgroup, depending upon how many
people are in the workgroup, or how complex the enforcement issues associated
with the regulation are.
If this last suggestion were implemented, the workgroup, or a specially formed
subgroup, could study the enforcement issues and prepare the EIA. Enforcement
concerns could be analyzed and problems could be resolved during all the stages of
development of the regulation.
The preparation of an EIA will necessarily entail a coordinated effort by various
offices and their staff members with expertise in one or more of the various aspects
of enforcement concerns. Different offices could assign representatives to the
workgroups or subgroups that they wanted to have input in. The Office of
Enforcement would generally have the lead responsibility for the effort. Individuals
would not be burdened with responsibility for examining each enforcement
oriented regulation, and workgroup representatives would be unlikely to feel that
"outsiders" were making suggestions about rules which they do not adequately
understand (as could occur with the situation of a standing committee).
The Office of Enforcement would have the lead responsibility for examining
legal enforceability issues. The National Enforcement Investigations Center will be
able to assist on some technical issues. Nonetheless, program offices would need to
provide technical support for the preparation of an EIA.
As the program is started, one or more EIA$ could be conducted as test pilots in
each media. Such experiments would be useful in allowing workgroup
representatives to get a feel for the extent to which considering enforcement
concerns would affect the regulatory; development process.
i
It would be beneficial if a draft of an EIA were prepared at the options selection
phase of the development of the regulation. This would ensure that Steering
Committee members would be aware of the enforcement issues, and be able to give
their feedback on these issues at an early enough stage so that the workgroup
members could reevaluate enforcement concerns, if necessary. The final EIA would
need to be prepared and presented to the Steering Committee in the Consent
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Calendar review process. It would also be included in the Red Border Package
prepared for the Administrator, since one of the primary purposes of the EIA would
be to inform the Administrator of the ramifications of enforcement issues associated
with a regulation.
What an Enforcement Impact Analysis Would Contain
The basic form of an EIA could be a two-page checklist of broad enforcement
related questions. This would be relatively easy to fill out, although the questions
themselves would have to be constantly considered as the development of the
regulation progressed. This basic form, however, might be too broad. It might not
cover specific and important enforcement concerns which arise during the
development of an individual regulation. A miscellaneous section could be
incorporated into the basic questions form, or the EIA could simply be written
free-form, explaining the specific enforcement issues which arose under each
particular regulation. This free-form option could allow for brevity or length,
depending on the specific regulation involved.
One interviewee suggested that only technical and logistical enforcement
concerns would need to be addressed in an Enforcement Impact Analysis. Most
interviewees, however, felt that legal enforcement concerns should also be
addressed since these legal concerns are often not considered a priority, and
efficiency would seem to suggest that the universe of enforcement concerns be
addressed in one analysis. The scope of analysis, depending upon the specific
program involved and the nature of the regulation, may include its enforceability
not only by EPA, but by States (authorized, delegated, etc.) and by citizens; this
portion of the analysis may raise questions which, in close cases, should be
presented in the notice of proposed rulemaking for public comment.
Confidentiality
An important consideration in preparing an EIA is that it should, to the extent
possible, be protected against disclosure. Such protection would seem to be essential,
particularly because an EIA could reveal weaknesses in enforceability which would,
if publicly disclosed, undermine enforcement, yielding the precise result the Agency
sought to avoid by preparing the EIA. In order to ensure an open and frank
discussion of enforcement issues, the EIA would need to be written so that it would
remain confidential.
A number of legal arguments may be available to protect this information
against disclosure. The deliberative process privilege may apply, but its use is
disfavored by the Agency and often unsuccessful when challenged in court. The
attorney-client privilege could also apply if the document were sent as advice from
the attorney to the client. Assuming an OE representative leads the enforcement
subgroup responsible for the EIA, the AA for OE could sign the analysis and send it
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to the Administrator, the client.
C THE OFFICE OF ENFORCEMENT SHOULD IMMEDIATELY ESTABLISH AN
AUTOMATED TRACKING SYSTEM AND A CENTRALIZED FILING
SYSTEM COVERING REGULATORY DEVELOPMENT.
Why an Automated Tracking System is Needed
The Office of Enforcement does not currently maintain a system to track its
participation in, and the status of, rulemaking projects. As a result, staff attorneys
and managers lack a useful tool to manage and prioritize regulatory development
work. A tracking system would enable OE to participate more efficiently in
regulatory development and help OE to meet important deadlines in the process.
We recommend that the Office of Enforcement immediately implement an
automated tracking system for rulemaking projects. EPA currently maintains an
automated tracking system for regulatory development. The Office of Enforcement
should evaluate whether the current system can meet these needs, or whether OE
should develop its own system.
How the Tracking System Should be Maintained
Participating Headquarters and Regional attorneys should update the system in
the same manner as the Enforcement Case Docket. We believe that the addition of
this system will greatly improve the Office of Enforcement's ability to complete
program reviews and strategic planning. The implementation of this tracking
system will present a comprehensive picture of the Office of Enforcement's
participation in rulemaking projects at EPA.
It is imperative that the system accurately and completely reflect the number,
nature, and status of all rulemaking projects in which OE is participating. To do
this, procedures similar to those used for the Enforcement Case Docket shall be
modified for purposes of this proposed system. Such procedures include operation
and maintenance of the data base that pertain to data requirements, initial entry of a
project, and regular monthly review to indicate the status of the project.
Why A Centralized File is Needed
The Office of Enforcement does not currently require staff attorneys to submit
copies of all relevant documents, comments, briefing papers, concurrences, and
other workpapers generated during the course of rulemaking projects to a
centralized docket. Each staff attorney maintains in his or her own office a
personalized filing system during the course of their participation in the
rulemaking project, regardless of the category of rule (i.e., substantive,
interpretative, or statement of policy) being proposed and finalized or its EPA
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classification (i.e., major, significant, or minor). The result of this informal and
often haphazard storage and filing system is that deadlines are sometimes missed,
and documents as well as comments lost. In addition, new attorneys are often
assigned to a rulemaking project well after its inception due to staff turnover. These
attorneys may be forced to assemble an entire new rulemaking package because the
file has been misplaced or contains inadequate information. Failure to develop
such a system restricts the Office of Enforcement's ability to compile and review, in a
systematic, comprehensive, and timely manner, the information developed during
rulemaking projects at EPA.
How a Centralized File Should be Established
It is recommended that the Office of Enforcement immediately implement an
Enforcement Filing System for rulemaking projects. Participating Headquarters and
Regional attorneys shall submit, on a timely and regular basis, to a
formally-designated office copies of all documents, comments, concurrences, and
other relevant workpapers developed during the rulemaking project. We believe
that the addition of this system will greatly improve the Office of Enforcement's
ability to complete rulemaking projects in a coordinated and timely manner.
The proposed docket and filing systems for rulemaking projects offer a
multitude of advantages over the current ad hoc system for rulemaking
participation, including: tracking projects and relevant documents from the Steering
Committee to Red Border Review, identifying participating attorneys at
Headquarters and the Regions, eliminating gaps in coverage due to staff turnover,
allocating resources, enhancing coordination between the divisions within the
Office of Enforcement, and compiling a record. The system will enable OE to
anticipate resource demands at key stages of the rulemaking process and will greatly
enhance OE's ability to manage the rulemaking process without imposing
significant burdens on Office of Regional Counsel and Office of Enforcement
personnel.
Concerns identified at this point are the following. First, the Office of
Enforcement must create or specify an office to be used for collecting and storing the
relevant documents. This inevitably involves questions of resources, funding,
space allocation, and furniture. Second, the Office of Enforcement must determine
whether this recommendation will apply to all rulemaking projects or be based
upon the category of the rule being developed and finalized. Third, this
recommendation is only for the provision of temporary filing and storage activity.
Once the final rule is issued and the deadline passed for filing a judicial challenge to
the rule, it is incumbent upon the participating attorney to notify the filing center
that the file should be readied for permanent storage at the appropriate facility.
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D. THE OFFICE OF ENFORCEMENT SHOULD TAKE STEPS TO ENHANCE
THE EFFECTIVENESS OF ITS REPRESENTATION ON THE STEERING
COMMITTEE.
Problem Identified
The OE Steering Committee Representative may not have sufficient
information to adequately inform the OE Division Directors of matters important to
OE or to adequately raise OE concerns to the Steering Committee.
At present, the regulatory process is begun by submitting a Start Action request
(SAR) to OPPE. OPPE distributes the SAR to all members of the Steering Committee
and schedules a brief presentation by the originating office to the Steering
Committee. The SAR contains a brief description of the purpose of the regulation,
lists the authority for its issuance and lists the statutes which would be impacted.
Normally, the OE Steering Committee member distributes the SAR to the
Division Director of the OE media likely to be impacted and asks if there is any
interest in the regulation. Because of the paucity of information in the SAR,
however, it is difficult for the Division Director to make such a determination prior
to the initial Steering Committee meeting. The Division Director must, therefore,
either send a member of his staff to the Steering Committee with the hope that the
information provided in the briefing will be sufficient to determine OE interest, as
the staff person is not permitted to ask questions; or, without further information,
determine to participate, or relinquish the right to participate, in the early stages on
a workgroup. Such a system is ineffective in alerting OE to the need for substantial
early participation in the development of a particular regulation.
Conversely, in those situations where OE actively participates in a regulatory
development workgroup, it often fails to use the Steering Committee representative
to raise important issues of concern to OE to the representatives of the originating
program office when those issues are being ignored by the regulatory workgroup.
Recommendations
1. OPPE should require that the SAR contain a descriptive outline of the rule
to be promulgated which should include a) the purpose of the rule; b) what
activities will be regulated and how; and c) the need, if any, to monitor compliance
with and enforce the rule to be proposed.
This improved SAR would provide the appropriate Division Director with
better information with which to retake a determination as to the need for OE
participation.
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2. After review of the "improved" SAR by the appropriate media Division
Director, that Division Director could either send a representative from his\her
office to the steering committee meeting with the OE representative to ask questions
or the OE Steering Committee representative should be supplied by the appropriate
office with a list of enforcement related questions to raise at the meeting. The
appropriate Division Director can then make an informed decision on whether OE
wishes to participate in the workgroup based on these responses.
3. Regardless of which approach is taken in No. 2, the OE Representative
should indicate the intent to notify the workgroup chair of the extent of further OE
participation within the next week.
4. After the regulatory workgroup is formed and in progress, the OE Steering
Committee member should be kept apprised of issues which OE believes are crucial
to OE management but do not appear to be resolvable in the workgroup so that the
OE Steering Committee representative can, if appropriate, ask the entire Steering
Committee to call for a report on progress from the workgroup, or raise the issue of
concern to the other AA representatives during the regulation development
process. This would alert the other AAs and OPPE to the problem before the
workgroup reaches the closure stage when many AAs feel that so much work has
gone into the regulation that they are reluctant to non-concur.
5. In those cases where OE has a genuine problem, the OE representative
should also insist on a formal workgroup closure procedure, even if the Committee
had earlier dispensed with the requirement, as a way of obtaining the formal
position of each AA on conflicting issues.
6. It should also be the responsibility of all Steering Committee representatives
to see that their management is being adequately informed and the position of their
management is being adequately and accurately represented in the workgroup.
However, if this responsibility is assigned to the Steering Committee representative,
some oversight techniques, such as regular reports from workgroup members,
would be necessary to enable him or her to fulfill this function.
E. THE OFFICE OF ENFORCEMENT SHOULD FORMALLY REQUEST
REVISIONS TO PROMULGATED REGULATIONS WHICH POSE
ENFORCEMENT PROBLEMS.
Enforcement in each program is hampered by deficient regulations. Moreover,
a greater commitment by EPA to develop enforceable regulations should reduce, but
cannot be expected to eliminate, problems in the future. Notwithstanding the
competing pressures to develop new regulations to meet program needs, statutory
deadlines, and court orders, the Agency must recognize the need to "fix" regulations
that are posing significant impediments to enforcement.
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The Office of Enforcement currently does not give sufficient feedback to
originating offices regarding enforcement problems with existing regulations.
Concerns are often expressed informally, anecdotally, and at staff level. Program
managers are sometimes unaware of the difficulties the Agency is having in
enforcing a particular regulation.
When a regulation is presenting enforcement concerns, OE should evaluate
the need for revisions to the regulation and the effect of those revisions on other
regulations. If OE determines that revisions are needed to enforce the regulation
effective^, OE should make a formal written request to the Assistant Administrator
of the program office to revise the regulation. OE should work closely with the
program office to determine how the need for the revised regulation compares to
competing regulatory priorities. In addition, OE should work with the program
offices to explore development of an expedited, streamlined process to make limited
revisions to regulations to address specific enforcement concerns.
F. THE OFFICE OF ENFORCEMENT SHOULD RELY MORE HEAVILY ON
WRITTEN COMMENTS AND USE NON-CONCURRENCES WHERE
SIGNIFICANT ISSUES HAVE NOT BEEN ADEQUATELY ADDRESSED.
Problem Identified
Informal comments made by enforcement workgroup members, or comments
accompanying formal concurrences, are often ignored by the lead office in the
interests of "getting the regulation out".
Case studies and discussions with OE personnel concerning their experiences
with regulatory development clearly revealed that the effectiveness of informal
communications in accomplishing enforcement objectives is determined solely by
the receptivity of the originating office and other workgroup members to
enforcement concerns. Although OE can foster receptivity by taking an active,
participatory role on the workgroup, such participation, alone, by no means ensures
that OE's concerns will be adequately addressed. In one case, enforcement members
of a workgroup wrote the enforcement provisions of a regulation in order to ensure
adequate enforceability. The originating office, after red border concurrence by all
offices, then unilaterally removed the enforcement provisions, without notifying or
consulting with OE.
Recommendations
The following recommendations can be implemented unilaterally by OE
without the necessity of approval by other Offices. Some of the recommendations,
however, may require additional budgeting of staff to participate more fully on all
important workgroups.
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1. OE staff should actively participate on each regulatory workgroup involving
the development of a major rule which will require enforcement or has
implications for enforcement.
An OE staffer who understands the objectives of a workgroup and the
complexity of the technical issues involved in a rule is more likely to raise the
appropriate enforcement concerns to both the workgroup and his own management
and have them accorded consideration.
2. OE workgroup participants should communicate all substantive enforcement
concerns in written memoranda.
Regardless of whether communication of enforcement concerns is informal
(staff to staff) or formal (division director to division director or work group chair),
such communications should, in almost all instances, be written, or followed up
with a written memo confirming oral communications. Written communications
should be the rule for two reasons; 1) Written communications are more difficult to
misinterpret; and 2) If there is a subsequent disagreement between offices, written
comments provide an administrative record of each office's concerns and of the
decision making process.
3. When lead offices appear unresponsive to important enforcement concerns,
OE workgroup members should raise and division directors should address such
concerns at an early stage in the regulatory development process.
When it becomes clear, during the regulatory process, that a particular office is
not receptive to important enforcement concerns raised by staff, the OE staffer is
obligated to bring the issues to the attention of his/her division director. If the
division director determines that the issue is significant, the division director
should elevate these concerns by meeting with his/her counterpart in the program
office, or sending a formal memorandum raising OE concerns.
If the program office continues to be unresponsive, and the issue is sufficiently
serious, the conflict should be raised to the Assistant Administrator with a request
that the AA raise it with his counterpart in the originating office.
4. OE should, when necessary, non-concur during workgroup closure or red
border review.
Ideally, enforcement concerns will be resolved before final Steering Committee
and red-border review. However, where OE has actively participated in the
regulatory process and has raised its concerns appropriately, OE should be prepared
to exercise its authority to non-concur on regulatory packages that have not
addressed important enforcement concerns adequately. Non-concurrence will
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ensure that these concerns are addressed at the highest management levels where
necessary. It was determined that addressing important enforcement concerns
through concurrence with comment was not a suitable alternative because the
Agency's regulatory process contemplates that concurrence with comment be
reserved for minor comments and the originating office is free to promulgate its
regulation without addressing such comments.
G. WORKGROUP MEMBERS DEVELOPING MAJOR REGULATIONS SHOULD
RECEIVE TRAINING TARGETED TO ENFORCEABILITY CONCERNS BY
MEDIUM.
Everyone participating in a regulatory development workgroup has a
responsibility to assure that an enforceable regulation is developed. To assure that
workgroup members can effectively carry out that responsibility, at least for selected
major regulations, training should be provided early in the regulatory process that is
targeted to the types of enforcement concerns that prevail in that particular
medium.
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ENFORCEMENT IN THE 1990's PROJECT
USING
INNOVATIVE
ENFORCEMENT
TOOLS
-------
WORKGROUP CONTRIBUTORS
Cheryl Wasserman
Rich Kozlowski
Harley Laing
Bob Greaves
Joe Retzer
Bruce Bellin
JohnHamill
Dave Batson
Tom Maslany
Ramona Trovato
Ann Swerdel
Ray Mushal
Alex Varela
Annejohnsen
Jerry Parker
-------
ENFORCEMENT IN THE 1990's PROJECT
RECOMMENDATIONS OF THE WORKGROUP ON
INNOVATIVE ENFORCEMENT TOOLS
I. Goals and Objectives of the Project
The innovative enforcement workgroup was charged with:
1) recommending ways we can more aggressively implement the
several enforcement innovations that have been identified
within the Agency to better realize .their full potential;
2) identifying areas that may be fruitful to explore over a longer
planning horizon and an ongoing process for doing so; and
3) developing a generic approach to creating an environment for
innovation.
II. Process Leading to Recommendations
Recognized leaders in implementing each of eleven areas of innovation were
asked to lead individual projects to explore:
1) definition of the innovation, potential scope, anticipated benefits and
limitations;
2) current experience, potential for expansion, and barriers; and
3) initiatives to overcome barriers and action plan.
Regions and Headquarters programs were asked to designate contacts to serve as
resource people to the project leaders in reviewing experience to date and
recommendations. Three group discussions facilitated development of individual
products and common themes.
III. Summary of Recommendations
Despite the differences in the eleven innovation areas identified, there was
substantial unanimity about barriers and initiatives to overcome those barriers.
Generic recommendations are offered for more aggressively implementing
innovative enforcement techniques and for creating a climate for innovation.
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See TABLE 1.
IV. Individual Recommendations
V. Findings
A. INNOVATION IS IMPORTANT TO CONTINUALLY IMPROVE OUR
ENFORCEMENT PROGRAMS WHICH ARE CONSTANTLY CHALLENGED
BY NEW DEMANDS AND LIMITED RESOURCES.
Innovations can offer one or more of the following:
Greater Efficiency:
• Timeliness: increase in speed of case closure/compliance; and
• Resource Efficiency.
Improved Settlement Quality:
• Global/comprehensive approach to settlement solutions: and
• Fundamental improvements to environmental management.
Greater Effectiveness — promoting broad compliance/deterrence:
• Leveraging the extent of compliance and deterrence; and
• Leveraging new technology.
B. EPA'S CURRENT APPROACH TO INNOVATION IS CHARACTERIZED BY:
• An atmosphere of encouragement at senior levels without an on
going process for institutionalizing change;
• Isolated efforts to test and implement innovative approaches that
are not tried elsewhere; and
• Loss of institutional memory and the ability to learn from each
experience of what actually worked and did not work well and how
the participants would do it differently next time,
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C WE ARE NOT REALIZING THE FULL POTENTIAL OF ANY OF THE
INNOVATIONS LISTED.
Eventually innovations will either become part of the routine, be used in
limited but well defined circumstances where they are appropriate, or limp along as
occasional trials that show up now and again without realizing their full potential.
Each of the innovations listed in TABLE 2 is in the latter category.
We have neither defined well the circumstances for their use, nor have we
routinized them. Nevertheless, the benefits they offer the agency in carrying out its
mission warrant the expanded use summarized in TABLE 3.
D. THE OBJECTIVES WHICH THE INNOVATIVE TECHNIQUES ARE
DESIGNED TO FURTHER ARE NOT OBJECTIVES FOR INDIVIDUALS WE
EXPECT TO USE THEM.
Innovations have been implemented either by innovators, a risk taking
individual who is sufficiently motivated by and has or acquires the role,
responsibility and/or resources to carry new ideas out, or by someone with a
problem to solve. Usually both conditions are there. The TSCA and Mobile source
programs have been most successful in generating and applying innovative
enforcement techniques, in part due to the small staffs, with broad responsibility
and large universe to address.
Most of the innovative enforcement techniques are expected to be used by
individuals who are neither risk takers, nor do they have the problem the
technique is designed to solve given the current set of priorities, job descriptions
and incentives of the various actors within our organization.
• Leveraging an enforcement case is only a goal if widespread
compliance is a goal of those handling the case.
• Closing a case is only a goal for case attorneys and personnel if they
are accountable for case closure.
• Global, multi-media, risk-based remedies are only a goal if agency
operations are geared to solving environmental problems, not just
implementing programs.
E. MANY OF THE INNOVATIONS LACK CONSISTENT CONTEXTS WITHIN
WHICH THE NEED FOR INNOVATION WOULD MOST LIKELY ARISE.
• To the extent Regions are driven by program implementation rather
than environmental problems which need to be addressed, it is
difficult to find a context for geographic, multi-media or risk-based
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enforcement.
• Multi-media concerns require additional effort to identify as they do
not arise in daily implementation.
• A one-time, useful exercise developing an integrated enforcement
statute, has not been followed with a similar updating annually of
missing authorities, and a legislative agenda for enforcement.
• We do not routinely inquire of staff and managers at both the
Federal and State levels as to what they need to make their jobs
easier, more successful.
F. BECAUSE INNOVATIONS ARE NOT ROUTINE, THEY SUFFER FROM
START UP COSTS AND INERTIA, ALMOST BY DEFINITION THEY
REQUIRE ENHANCED VISIBILITY AND/OR ASSISTANCE FOR INITIAL
IMPLEMENTATION.
There can be significant start up costs to implement innovative enforcement
techniques since nothing is routinized and issues and problems generally have not
been encountered before, at least by the persons responsible for the task. This is true
even if the innovation, if successful, can offer greater efficiencies in the long run.
Opportunities for applying innovative techniques are likely to get passed over
since innovative techniques are not part of the daily experience.
G. THE PERSONAL RISKS FOR INNOVATION ARE TOO HIGH.
In innovation, failure should be as informative as success; however, without
the time to assess their application, bad experiences become folklore and good
experiences become exceptional circumstances. Where the individual is at risk and
not the institution, careers can be affected. Where the person as manager is at risk,
resources may be lost if those parameters which drive allocations are adversely
affected, e.g., trial of a new detection approach which did not lead to any new cases.
H. WHERE WE DO HAVE EXPERIENCE, WE ARE LOSING INSTITUTIONAL
MEMORY AND THE ABILITY TO LEARN FROM EACH EXPERIENCE.
Each experience is an isolated event with no record of how it worked and what
lessons were learned. This is a particular problem since:
• Institutional memory can reduce start up costs; and
• Learning from each experience enables us to fine tune the technique
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and its appropriate application (e.g., a settlement provision
requiring an environmental audit tied up rather than freed up
agency resources because of the way it was drafted. What gets
learned is "never again"instead of how to draft it differently to
avoid the pitfalls).
The lead Region concept as currently implemented is not functioning to capture
institutional memory nor to provide essential assistance to those trying to apply
innovative techniques.
V. GENERAL RECOMMENDATIONS
A. ISSUE AGENCY POLICY WHICH BETTER DEFINES AGENCY OBJECTIVES
IN CASE SETTLEMENTS AND HOW TO RESOLVE COMPETING
OBJECTIVES. ADJUST MANAGEMENT SYSTEMS AND OVERSIGHT
APPROACH ACCORDINGLY.
A policy on enforcement settlements would serve to redefine expectations for
managers to ensure settlements appropriately address real problems facing the
enforcement program in:
• expeditious case closure;
• ensuring the compliance problem and damages are corrected to the
extent possible;
• ensuring solutions to non-compliance do not transfer pollution
from one medium to another;,
• reflecting opportunities to eliminate the source of pollution rather
than to just control it (pollution prevention);
• correcting underlying management problems to maintain improved
compliance over the longer term as well as achieve compliance in
the short run; and
• reflecting opportunities to leverage more widespread compliance
through a single enforcement settlement.
1. OE should develop policy statement in cooperation with Headquarters and
Regions setting forth these broad goals for enforcement settlements. This should be
given immediate priority. The timing must ensure buy-in and sensitivity of
wording. It would have to closely track policy on administrative penalties.
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Coordination with DOJ is essential. An issue that must be resolved is the
distinction between our authority to settle versus authority to impose through
court or administrative action. Most feel they can go to the mat only on penalties
for gray areas where settlement proposals would go beyond correcting the
immediate violation under a single statute. Our policy would therefore reserve
higher penalties for settlements which do not address broad environmental
concerns.
2. Anticipating a National Enforcement Training Institute concept, OE should
prepare material and supporting tape which articulates why we take enforcement
action and what we hope to gain from individual enforcement activities.
Use training opportunities, particularly joint training of program personnel
and attorneys involved in enforcement to create/change the enforcement culture to
emphasize these broader goals and identify, what approaches/techniques may be
appropriate to achieve these objectives, beyond just routine enforcement. The
training material should build on the policy statement (Recommendation #1), and
may include a tape of the AA/Deputy Administrator to senior managers and staff
involved in enforcement.
3. Tie management accountability more closely to implementation of Regional
strategic plans that are based upon a sound assessment of the compliance or
environmental problems of the Region as envisioned by the Four Year Strategy.
Ensure that Regional Flans foster the use of innovative tools by requiring Regional
Strategic plans to provide the context for the use of innovative techniques
specifically addressing, e.g.:
• multi-media enforcement targets
• facilities with underlying management problems, including repeat
violators in same medium, multi-media violators, facilities ranking
high in number of chemical emergencies/releases for consideration
of environmental auditing provisions in any outstanding
settlements.
• use of ADR, short form NOV's, and other "field citation" or related
techniques for specific cases or violator categories in the Region for
expediting settlements.
• repeat violators as candidates for contractor listing and
environmental auditing.
4. OE should assess workload and accountability implications of expanded use
of comprehensive settlements in criminal enforcement,"contractor listing, and
multi-media involvement in cases.
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OE should explore how to capture the multi-year, multi-office implications of
innovative enforcement techniques related to both workload models and STARS
commitments (in particular, how to avoid having innovations appear as a negative
experience due to insufficient information in case dockets. (See D.4. below)
OE also should explore how to address the fluctuations in workload created by
innovations. Almost everyone wants the Agency to provide resources and/or relief
in exchange for innovation, despite the fact that some of the innovations may
represent resource savings over the longer run. Strategic plans may provide a
mechanism for synchronizing resource credits and work requirements of
innovative activities.
B. CREATE MECHANISMS TO CAPTURE INSTITUTIONAL MEMORY AND
ADVANCE THE APPLICATION OF THE INNOVATIONS.
1. Create a support network for specific innovations.
OE and Headquarters Program Offices, as appropriate, should assign key
individuals in Headquarters to be responsible for maintaining contacts and
expertise in the Regions for each innovative enforcement technique. The existing
lead Region support networks should be enhanced to ensure there are designated
individuals in each of the Regional Offices who are or should become resident
experts and who would receive materials, training and keep up to date on
developments. Designations must be kept current. Resident experts would include,
for example, expertise in: 1) use of information gathering authorities across all EPA
statutes and authorities which can be used effectively in a multi-media context; 2)
environmental auditing provisions in enforcement settlements, etc.
The Agency should involve the States in the innovative networks by
dissemination of information, sharing Federal experiences with specific innovative
approaches as well of those of other States, and by soliciting information about
innovative approaches that States have successfully employed on their own.
2. Prepare written evaluations of each use of an innovative technique.
a. OE should identify areas to be described and analyzed for each use of an
innovative technique, and create a short summary sheet that would be prepared
and maintained in a centralized notebook retained by each program office in
Headquarters, and, as relevant, each lead individual in Headquarters responsible for
the support group. (See recommendation B.I.).
b. Each Headquarters office should issue implementing guidance to Regional
Divisions and Headquarters staff for completing evaluations following use of an
innovative enforcement technique.
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3. Develop Targeted Training Units for Innovative Techniques:
OE should develop hands on training courses/materials to be delivered
through the National Enforcement Training Institute, capturing what has been
learned from experience in implementing the innovative technique(s). Resident
experts would assist in developing the training. This exercise includes an analysis
of past experiences. Training materials would be routinely updated based upon
lessons learned. Training would be offered to States as well as Regions.
C. HEIGHTEN THE VISIBILITY OF POTENTIAL AND FOSTER USE OF
INNOVATIVE TECHNIQUES
1. Require that the listed innovations be duly considered in appropriate cases
through the use of case checklists to accompany referrals, and case files, but do not
require that the listed innovations be used or implemented. This avoids ineffective
or inappropriate use of the innovations where they may increase cost at little
benefit.
OE with program office and regional input should develop criteria for which
cases do or do not warrant consideration of a specific innovative technique, and
develop a simple vehicle i.e. checklist for making this process more visible and
routine. Checklists should force explicit consideration of innovations by asking
questions that lead one to explore the potential advantages of using the innovative
approach in that case.
2. Regions should be encouraged (by OE/Deputy Administrator) to institute
enforcement oriented bulletin boards and seminars in the Regions to overcome
lack of institutional focus for talking enforcement/compliance.
D. INCREASE PERSONAL INCENTIVES TO INNOVATE
1. Enhance recognition of those who try to employ innovative enforcement
techniques through stories in EPA news journals, soliciting articles in NAAG
Journal etc. The Headquarters lead for support groups should identify such
opportunities to the OE Special Assistant for Communications, and make
arrangements for responsible staff to prepare such articles.
2. Emphasize use of AA/RA awards for innovative pilots and leadership
within networks.
3. Include in ORC and Regional Program Office performance standards for
outstanding performance, effective use of innovative enforcement techniques to
further the broad objectives of agency compliance programs highlighted in A above.
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4. Ensure complete information on innovative cases is captured in
Enforcement Dockets. OE and the Programs should create new docket fields and
codes to support recognition of the full benefits from innovative cases which
inappropriately now appear to be less significant. For example, a case may have
lower penalty levels or delayed compliance but greater successes may have been
achieved but not captured.
E. INVEST IN SUCCESS AND MAKE IT EASY TO SUCCEED.
1. OE and Program Offices need to offer Headquarters assistance, investing in
early applications to ensure success and overcome start up costs related to having to
develop prototype procedures, agreement language etc. and to assist in the
evaluation of the use of the innovative technique. Headquarters support group
leads should facilitate such requests.
2. Implement the support networks and training as described above.
3. Facilitate data integration and access by inspectors, program and attorney
staff. OE implements data integration project as planned.
4. Be willing to go to the brink in selected cases to establish precedents.
Most of the innovative settlement conditions do not have a clear statutory
basis, although clearly within the broad mandate of the agency, statutes, and
enforcement approach. As a result, they have usually required some penalty
reduction and settlement discretion to be accepted as settlement terms. The policy
statement in recommendation A should address the extent to which these
conditions would be required of settlements and whether we would be willing to
litigate if not included. Such a strategic view of what it may take to foster precedent
should be facilitated through the support networks, with the Headquarters lead
ready, willing and able to give a negotiating team feedback on what senior
management is willing to do in a particular case.
F. ASSIGN TO OE/OCAPO RESPONSIBILITY FOR ISSUING THE POLICY,
ENSURING THE SUPPORT NETWORKS AND TRAINING PROGRAMS ARE
ESTABLISHED AND RUNNING AS PLANNED, THAT RELEVANT
GUIDANCE IS ISSUED AND CHANGED AS APPROPRIATE TO IMPLEMENT
IT, AND THAT PROBLEMS AND ISSUES ARE SURFACED FOR SENIOR
MANAGEMENT ATTENTION.
One focal office is needed, not to assume responsibility for implementation of
specific techniques nor for running any or all support networks, but rather to
ensure that the proper linkages have been made, for example, between the umbrella
policy, and program specific guidance, and that the broad range of recommendations
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have been implemented.
G. EVALUATE THE NEEDS OF ENFORCEMENT PERSONNEL ON A REGULAR
BASIS TO ENSURE THERE IS AN ONGOING CLIMATE FOR NEW IDEAS TO
SURFACE.
Budget and management systems issues currently predominate in our reviews
of enforcement and how it is working. A greater focus on compliance and how to
achieve it would lead to more creative thinking.
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TABLE 1
INNOVAHON-SPECIHC RECOMMENDATIONS
[other than those already addressed above]
Contractor Listing
- OE should highlight contractor listing and debarment as "off the shelf",
ready to use tools.
- OE should initiate projects with GSA to: amend FAR to make
mandatory listing more self-implementing i.e. less dependent on
notice and strengthen FAR/DAR on general compliance, e.g. contract
language on contract performance vs. compliance, and bases for award
fees.
- OE should work with OL to seek Statutory Amendments to RCRA,
TSCA, FIFRA, MPRSA.
- OE should increase coordination with GAD and IG issuing joint
guidance on regional and HQ referrals for both civil and criminal
violations.
- OE should issue policy on plea bargaining and work with DOJ to
disseminate to each USA handling case, and to reinforce through DOJ
training.
Criminal Sentencing
- Approach Administrative Office of the U.S. Courts, which oversees
operations of the U.S. probation offices, to define any avenues by which
EPA, in coordination with the Environmental Crimes Division of DOJ,
can facilitate the monitoring of compliance with terms of probation for
environmental offenders.
- Develop computerized central informational source relating to
criminal convictions at both the State and Federal levels. (NEIC with
Hazardous Waste Projects)
- Issue a reference guide on possible probation and sentencing terms for
use by probation officers and courts. (Show how easy it can be to
impose meaningful terms.)
- More aggressively use contractor listing to leverage comprehensive
settlements in criminal cases.
- Revise MOUs with other agencies performing environmental
investigations to improve communications and case referral process.
- Strengthen specific statutory language which is weak on criminal
enforcement e.g. TSCA, FIFRA, CAA. OE should work with OL and
program offices to identify opportunities for change.
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Innovative Remedies
- Seek legislative changes which specifically allow innovative remedies
such as TSCA which include mitigation of penalties. OE/OL develop
language and a strategy for incorporating in enforcement provisions in
statutes as they come up for revision.
Legal Tools
- Seek legislative changes to develop broad information gathering
authorities to address emerging issues of toxic chemicals and
emergency preparedness. OE/OL develop language and a strategy for
incorporating enforcement provisions in statutes as they come up for
revision.
Risk-based/Pollution Prevention
- Broaden use of some authorities such as CERCLA, TSCA, SARA,
EPCRA explicitly for more comprehensive enforcement responses to
pollution problems.
- Develop written policy and guidance on how to evaluate pollution
prevention initiatives submitted by industry.
Field Citation
- Determine specific program needs for implementation, and identify
where techniques are potentially used in each program, e.g., ask each
program to identify type of case/violation where there is a
backlog/significant resource component where settlements have
become or could be routinized.
- Establish pilots nationally in using short form settlements to assess
resource savings and feasibility of moving to next step of field citation
in identified areas.
ADR
- Establish national roster of ADR neutrals.
- Identify and commit resources for all programs (as done in Superfund).
Environmental Auditing
- Expand outreach to promote environmental auditing in public and
private sectors.
- Continue to facilitate auditing by developing and publishing inspection
and other protocols for determining compliance and pollution
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prevention opportunities.
- Develop auditing guidance ifor municipalities and transfer successful
approaches.
- Offer technical assistance to groups attempting to define audit
standards and protocols, including compliance, pollution prevention
and real property assessments and audits.
- Further examine the need for certification of environmental auditors.
Consider needs and differences among compliance audits,
waste/minimization and pollution prevention audits, and
environmental assessments for real property transactions. Explore
options ranging from federal inspector certification as a model, to
sponsoring legislation for an independent public/private certifying
body, to approaching states/organizations willing to pilot certification
programs and offering assistance/evaluating results. Issues include
scope of certification and whether it is effective in influencing quality
of service and resources required to monitor compliance.
Compliance Monitoring
A significant effort to improve compliance monitoring agency-wide has had no
home. The inspector training program was a limited recent effort to focus on this
aspect of the function. An agency-wide compliance monitoring workgroup, could
develop further some of these recommendations:
- Increase use of self-monitoring data, especially submittal of data in an
electronic format that is easily screened. (Task the Agency electronic
reporting workgroup to address this issue).
- Increase use of continuous or on-line monitors. (Ask ORD to evaluate
current use in programs, available technology and potential for
expansion)
- Run a citizen awareness campaign and encourage tip offs of violations.
Institute an enforcement hotline. Publicize and reward those who help
the Agency find and prosecute violators. (OE should explore feasibility
of a hotline for enforcement possibly using the Superfund bounty
program as a base; Regional tie-ins and region specific numbers should
be explored along with implications for state enforcement programs).
- Include Operation and Maintenance requirements in permits to help
insure compliance and treat as equally important as
emission/discharge violations. (Refer to work group on improving
enforceability of permits).
- Provide inspectors with more information in the field through the use
of portable computers which could link up to national data bases.
Computers would also allow report preparation in the field. (Ask
OIRM to set up pilot in one Region using productivity improvement
funds from OMB; link to data integration project).
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- Perform more surprise inspections. (Pilot in a Region and evaluate
success).
- Make more use of statistical approaches for targeting inspections. (OE
reviews results of pilots). Consider software to assist regions and states
in applying statistical techniques.
- Vary the frequency of inspections based upon the number of violations
detected and the compliance history. Begin with a given frequency, if
no violations are detected, then decrease the frequency or the converse.
(Pilot and evaluate, or adopt as national policy that overlays program-
specific frequency guidance).
- Improve the transfer of information on successful approaches across
agencies and levels of government. Consider an electronic newsletter.
(Locate home for leadership in this area and assign mechanism to communicate
successful approaches).
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TABLE 2
SCOPE OF INNOVATIONS STUDIED
CONTRACTOR LISTING/SUSPENSION AND DEBARMENT: includes use of both
EPA'S programs as well as the GAD/GSA program to debar or suspend contractors.
CRIMINAL ENFORCEMENT: includes greater use of criminal probation to speed
application of legal sanctions for new violations and creative sentencing for
compliance and pollution prevention consistent with the new U.S. Sentencing
Guidelines.
ENVIRONMENTAL AUDITING: includes use of environmental audit conditions
in settlements to address management problems and/or patterns of violations as
well as promotion of the practice of environmental auditing and exploration of
possible certification programs for environmental auditors.
LEGAL TOOLS: includes innovative use of existing authorities such as subpoenas,
as well as other authorities which federal EPA lacks which could enhance
enforcement. It draws upon past efforts to develop an integrated enforcement
statute by the EPA and the Environmental Law Institute.
MULTI-MEDIA ENFORCEMENT: includes planned multi-media inspections
and/or consolidated enforcement responses.
TARGETING: includes approaches to targeting either compliance monitoring
and/or enforcement response to specific industries, chemical sources, geographic
areas or compliance problems.
RISK BASED/ POLLUTION PREVENTION ENFORCEMENT: includes the use of
conditions and existing enforcement authorities to prevent or correct
environmental problems which cannot be addressed through traditional
regulatory/permit enforcement.
INNOVATIVE REMEDIES: includes use of specific case conditions of settlements to
leverage a single enforcement action to influence greater compliance behavior,
deterrence and/or environmental result. Examples include training provisions,
oversight and training programs for distributors and subcontractors, or small
businesses in related fields, etc.
FIELD CITATIONS: includes use of in-field "traffic-type" tickets with penalties, in-
field notices of violation (as opposed to notices issued from the main office), and
proposed settlements accompanying notices of violation to speed resolution of cases.
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ALTERNATIVE DISPUTE RESOLUTION: includes arbitration, mediation,
facilitation, and other negotiation aids for settlements.
COMPLIANCE MONITORING: includes an examination of innovations such as
privatization of quality assurance of self-monitored data (i.e., source pays fee to
certified lab lab for performance of check sample, and, if it fails, it must use an
outside party which has passed such tests until problems are corrected) and use of
computers in the field to speed inspector report preparation and access to laws,
compliance history, etc..
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TABLE 3
THERE IS SIGNIFICANT UNTAPPED POTENTIAL FOR INNOVATIVE
TECHNIQUES
INNOVATIVE ENFORCEMENT TECHNIQUE POTENTIAL FOR EXPANSION
Contractor Listing
- Failure to Comply with AOs/CDs
- Unresolved judicial cases past certain timeframes which are
otherwise good listing candidates
- Other Statutes: RCRA,TSCA/FIFRA,MPRSA
- More aggressive State solicitations
- Solicitations from citizens
- More aggressive use for GOCOs
(Suspension/Debarment)
- Aggressive use of referrals for repeat/significant violators
Environmental Auditing
- Compliance audits to efficiently address similar violations at other
facilities or to ensure problems remain corrected over time
- Management Audits for repeat violators, multiple/multi-media
violations and frequent chemical emergency releases
- Management audits of both health, safety and environmental
programs for appropriate types of problems
- Auditing by municipalities
Alternative Dispute Resolution
- Superfund cost-recovery
- Resolving technical provisions of consent decrees and orders
- Multi-party PRP disputes under the Superfund program
- Great potential generally given limited use to date and flexible
formats
Innovative remedies/settlements
Expand beyond major users in TSCA and Mobile source enforcement:
- Major violations where there is substantial room to negotiate and
still preserve economic benefit and gravity component of penalty
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- Programs where public perception or education and outreach are
important
- Where individual action can affect a generic solution
Multi-Media
- Where multi-media violations have been identified
- Where settlement in one media has multi-media impacts or other
violations are discovered
- Screening for other media while on single media inspection
- Where targeting is on an industry or geographic basis
Pollution Prevention/Risk Based Enforcement
- Addressing TRI data and waste minimization potential.
- Releases of hazardous substances from all media
Criminal Sentencing
- Most criminal cases
Compliance Monitoring
- Expanded use of self-monitoring and reporting based upon
continuous monitors, particularly air program
- Productivity improvements through computer applications in-field
and in-office
Targeting
- Untapped potential for using targeting to leverage broad based
compliance within the target class with well placed
publicity and escalating penalty approaches which
encourage expeditious compliance or settlement
Legal Tools
- Information gathering in multi-media, pollution prevention,
problem based situations
Field Citation
Short-form settlements can be employed in any program, for any
violation amenable to standardized settlement terms.
Low priority violations,violations which are objectively
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recognizable and unlikely to be challenged, warranting low
penalties are good candidates for field citations.
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II. CONTRACTOR LISTING/SUSPENSION-DEB ARMENT
I. Definition
Contractor listing is a formal administrative procedure to prohibit Federal
contracts, loans, or grants to "facilities" violating the Clean Air or Clean Water Acts.
EPA listing regulations (40 CFR 15) provide for mandatory (criminal) and
discretionary (civil) listing. Suspension and debarment is administered by the
Grants Administration Division (GAD) under 40 CFR 32 and Federal procurement
law (FAR) to bar contractors for offenses including fraud or performance integrity.
Contractor listing, suspension and debarment actions were also the subject of
another "1990's" subcommittee, which arrived at similar recommendations.
II. Scope of Potential Use
• Listing and debarment can reinforce environmental compliance as a U.S.
Government-wide policy, thereby making it an integral part of the way
all agencies procure services or offer assistance.
• Both of these sanctions may be used in addition to ongoing
administrative and judicial proceedings to compel better compliance
settlements ("global" settlements).
• These actions work as a substitute or addition to enforcement actions
(such as contempt) to address violations of existing settlements.
• They may act as the civil component of criminal actions to ensure
comprehensive compliance plans ("correcting the underlying
condition").
• A list of violators can operate as a longer "dirty dozen" list in identifying
environmentally unsatisfactory contractors under the GSA procurement
and assistance lists. 40 CFR and FAR criteria include "responsible"
compliance with applicable law, including environmental laws and
regulations.
III. Type of Benefits
(listing may apply more than debarment in some of these generalized benefits)
• Using these actions may expedite settlement negotiations which are not
progressing, in order to achieve more immediate compliance.
• The streamlined administrative procedures, elements of a cause of
action, and burden of proof (e.g., no "right" to a government contract)
can reduce the time and resource investments needed to achieve
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compliance with existing orders/decrees.
• Listing and debarment can enhance environmental results by requiring
that the underlying "condition" be corrected before removal from the
list. However, discretionary listing, suspension, and debarment may
apply for a particular period of time.
• One of the basic purposes is to protect the government from doing
business with violators who may have a competitive advantage by
avoiding compliance costs, or who are not complying with the contract
or with applicable law.
IV. Limitations
• The violator would have to do government business (even indirectly)
for these sanctions to be effective. If the violator is an important sole-
source to the government, the sanction may not be practicable.
• Under listing, the "facility" must have a pre-existing CAA or CWA
enforcement action for criminal, continuing, or recurrent violations
(distinctions between mandatory and discretionary listing are described at
40 CFR15).
V. Current Experience
• Discretionary listing has not been used alone, but in conjunction with
parallel ongoing civil actions. When the underlying action is resolved,
listing has been withdrawn, the facility removed from the list, or
conditionally removed from the list.
• Discretionary listing has been initiated solely by the Regions, although
HQ has the authority to initiate (and reviews regional actions). States
and citizens have not utilized the listing authority through petitions to
EPA.
• Mandatory listing represents the large majority of listing cases and
facilities on the list. (Currently, 32 mandatory, one discretionary).
• EPA regulations make listing an automatic consequence of applicable
CAA and CWA criminal convictions (which is defined as judgment).
However, other procedural requirements can complicate the application
of actual listing sanctions. For example, Federal Acquisition Regulations
and forms focus on the applicant's listing status as opposed to CAA or
CWA convictions. Delays in the required notice to GSA and the
violating "facility" and the determination of applicability of listing to the
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violation can postpone the date of the GSA listing of a violator.
• Most mandatory cases involve little leverage (limited reliance on
Federal dollars) for expanding compliance terms in plea agreements or
settlements. Nevertheless, in several major important cases listing has
been used to achieve global settlements with significantly enhanced
environmental results.
• CAA and CWA counts may be removed from indictments during plea
bargaining by U.S. Attorneys either out of ignorance of potential listing
impact or as part of a quid pro quo. While only the EPA AA for OE can
remove a listed source, EPA has little control over U.S. Attorney actions
on specific counts.
• Some Regions have utilized listing more than others, or used listing for
different reasons, and achieved different results. In addition, EPA has
experienced time and resource demands widely divergent from those
originally expected. This has led some Regions or offices to question
their expectations of listing as an expeditious, low-cost enforcement
technique with relatively straightforward procedure. As current
contested cases reach judgment and create a body of listing "case law,"
some protracted proceedings on new issues may become shorter and
more routine.
• The suspension and debarment staff process about 100 actions a year
encompassing a broader concern than just environmental violations,
with very few referrals from the listing program, the criminal program,
completed civil cases, and other environmental enforcement sources.
There is no formal OE referral strategy at present.
Suspension/debarment actions have formed the basis for "global"
settlements in certain cases.
VI. Potential for Expansion
• Discretionary listing is underutilized, and could be more strategically
used, for example, for serious {violations of AOs/CDs in CAA and CWA.
• EPA could work further with States to use their petition authority under
the listing regulations.
• Listing authority may be added in the RCRA reauthorization bill and
strengthened in CAA amendments. In addition, listing could be
incorporated, with certain limitations, in CERCLA/SARA, TSCA, FIFRA,
andMSPRA.
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• EPA could make more systematic use of suspension and debarment for:
(a) violators of all environmental statutes (not just CAA/CWA) (b)
repeat violators (c) multi-media violators and "global" settlements and
(d) referral to GAD offices in other agencies.
• EPA could expand the use of listing and debarment against GOCOs under
the Federal Facility Compliance Strategy.
• The citizen petition provision has never been used. However, it may
have unknown but potentially significant impact.
• Any expansion of listing, either strategically planned or imposed from
outside the Agency, will have resource implications.
VII. Barriers to Expanded Implementation
• The timeliness of involvement in plea bargaining with criminal
defendants may reduce leverage for compliance and broader
environmental results from settlements.
•Judges may be reluctant to allow administrative proceedings parallel
with litigation. These remedies should not be over-employed as empty
"threats" to coerce settlements. However, even if stayed, the listing
action may have a beneficial impact.
• Staff size and resources in HQ may be too limited to provide regional
support and process more cases (including trial costs, etc.).
• There is a lack of workload credit comparable to other enforcement
actions (including the potential regional and HQ work on listing
removal and suspension/debarment), although there has been some
recent effort to incorporate these actions in workload models.
• There are inadequate incentives to bring cases to closure in current policy
and procedures.
• If used as a parallel enforcement tool, listing may not be as efficient at
achieving some innovative remedies in national companies because of
its limitations to CAA or CWA, and the definition of "facility."
VIII. Initiatives to Overcome Barriers
• EPA should continue backing legislation to include listing in other
statutes (such as CAA and RCRA in the near term).
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• OE, with DOJ, should consider the need for a plea bargaining policy
statement to address underlying compliance problems, restrict authority
to bargain listing away, and specify procedures and restrictions on listing
removal before conviction or sentencing. In general, OE should
continue its training programs including U.S. Attorneys and EPA staff.
OE should promote listing through case studies.
• EPA should develop policy for application to state criminal convictions.
• OE should make case closure a priority, and require management review
of cases pending more than a certain time.
• EPA should institutionalize listing by requiring explicit consideration of
listing in certain enforcement areas, such as AO and CD violations (need
to evaluate potential problems with this type of proposal).
• Incorporate environmental audits in listing removal actions.
• OE and other affected offices need to examine and improve workload
models to incorporate listing activities. OCE and CLS should coordinate
potential listing removal issues with affected Regions.
• EPA should recommend amending the FAR and FAR assistance
agreement language to strengthen compliance with environmental laws
and regulations (as DOE has just completed).
• OE should expand and formalize use of a referral system in conjunction
with the IG and GAD to more closely coordinate joint interests in
improving environmental compliance by contractors and grantees.
IX. Plan of Action
(Note: Many of these recommendations require resources to implement as well as operate a new or
expanded program.)
Immediate
- Workload models
- Reporting Systems
- Training
Near Term
- Strategy integration and planning
- Plea bargaining policy/guidance
- Training and guidance
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- Referral system
Long Term
- Statutory changes: OE, GAD, OGC, OL
- Regulatory changes: OE - Listing OE, GAD, OGC, OIR - FAR
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III. CRIMINAL ENFORCEMENT
I. Definition
All of the environmental statutes administered by EPA include three types of
sanctions for violations of the statutes and their progeny regulations ~
administrative, civil, and criminal. Criminal enforcement is distinguished from
administrative and civil actions in several key respects: (1) the severity of the
sanction, i.e., imprisonment of convicted individuals; (2) the level of proof (beyond
a reasonable doubt) the government is required to establish as to each element of
title offense; (3) and the societal stigma and accompanying attention associated with
a criminal conviction.
One of the other key distinguishing aspects of criminal enforcement is the
possible use of probation in the sentencing process. Federal statutes, in particular 18
U.S.C. § 3563, the Sentencing Guidelines now in effect for individuals, and the
Guidelines for Organizational Defendants as proposed by the U.S. Sentencing
Commission, allow a sentencing court to impose discretionary conditions of
probation, which may include community service having a nexus with the nature
of the offense, restitution, and remedial measures which address future harms.
II. Scope of Potential Use
• Sentencing courts are allowed much leeway in fashioning conditions of
probation, provided conditions further overall sentencing purposes
and are not unreasonably burdensome.
• Since probation can be used in sentencing individuals and
organizational defendants, sentences can be specifically structured to
the type of defendant.
• Environmental trusts, such as those covering future anticipated health
costs arising from environmental offenses, as well as compliance plans,
and audits can be required as part of sentence.
III. Type of Benefits
• Provides opportunity for Agency to have input with U.S. Attorney on
outcome of criminal prosecution. Such input is increasingly necessary
to apply the Sentencing Guidelines.
• Probation allows a single judicial forum to potentially address all
aspects of an environmental violation through orders of restitution
and specific remedial measures.
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• Due to severity and stigma of criminal convictions, individual and
business environmental offenders are very receptive to accomplishing
suggested corrective measures in order to be placed in a favorable light
before sentencing court.
• Use of probation allows for swift imposition of severe sanctions via
violation of probation hearing if environmental misconduct is
repeated during term of probation.
• Since probation requires compliance with both federal and state laws,
state and federal environmental compliance can be enhanced during
probation.
• Probation and threat of violation of probation can be strong tool for
inducing long-term modifications of business practices to ensure
permanent changes in corporate behavior.
• While on probation, individual and organizational defendants are
especially responsive to environmental compliance duties and can be
closely monitored by environmental authorities. Inspection authority
can be based on fact of probationary status.
IV. Limitations
• Because EPA has only 53 criminal investigators for the entire U.S.,
wide-ranging sentencing options can be used in only few cases.
• Cases are not uniformly selected consistent with Agency enforcement
objectives to ensure that criminal investigations are targeted on
criminal problems where sentences will have the maximum benefit.
• There is insufficient notification to EPA's program components of
pending criminal sentencing hearings and program involvement in
fashioning constructive sentencing terms.
• Working relationships between probation authorities of the U.S.
Courts, and EPA programs which can monitor compliance with
environmental aspects of probationary terms, have not been
established.
• There is insufficient exchange of information between state and federal
enforcement authorities to ensure that federal environmental
compliance monitoring personnel know of state sentences involving
terms of probation and vice versa.
4-27
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V. Current Experience
• If we obtain jail term for individual defendants, or substantial fine for
company, restitution and remedial measures are often forsaken.
• In the few cases where the Government has taken the initiative in its
sentencing recommendations, courts have been responsive to such
suggestions and have established, for example, environmental trusts
covering, for instance, enhancement of river's fisheries, funding a local
recycling program, and paying for employees' long-term medical costs.
• Many U.S. Attorney Offices are still not tapping Agency expertise on
sentencing issues, especially with regard to cases developed
independently by FBI.
VI. Potential for Expansion
• If Sentencing Guidelines are adhered to by federal courts, and courts
make maximum use of courts' broad powers to require restitution and
formulate conditions of probation, criminal enforcement should
become the most effective and attractive of the Agency enforcement
tools.
• Federal support through training programs and regional state
enforcement associations will develop criminal enforcement programs
on state and local levels, so that advantages to be gained from criminal
sentencing process are realized on all levels.
VII. Barriers to Expanded Implementation
• Too few federal environmental criminal investigators and limited case
support resources means too few criminal cases can be developed,
which means too few defendants can be the subject of the sentencing
process.
• U.S. Probation Offices, due to large caseloads and limited resources, do
not give attention to environmental cases that the Agency believes is
necessary.
• U.S. Sentencing Guidelines for Organizational Defendants may be
modified by Congress to limit use of federal courts' sentencing options.
4-28
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VIII. Initiatives To Overcome Barriers
•', a it •
EPA is continuing to work with the U;S. Sentencing Commission to
ensure that present Sentencing Guidelines for Individuals and draft
Sentencing Guidelines for Organizational Defendants address EPA
concerns in federal sentencing process.
EPA is providing training to Agency enforcement personnel and
(through NEEC, NAAG, and Regional State Environmental
Enforcement Associations) developing awareness by state personnel to
the role regulatory agencies can play in the sentencing process.
IX. Plan of Action
Continue to seek to obtain more enforcement resources for the
criminal enforcement program.
Continue training for EPA personnel and federal prosecutors on
significant services that EPA can provide as to sentencing matters.
Develop increased awareness in program offices to potential presented
by sentencing process for correcting environmental harm and
enhancing environmental compliance by immediate defendant and
similarly situated defendants.
Work to make EPA compliance monitoring personnel "partners" with
U.S. Probation Offices.
4-29
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IV. ENVIRONMENTAL AUDITING
I/Definition
The July 9, 1986 EPA Policy Statement on Environmental Auditing (51 FR
25004) defines environmental auditing as "a systematic, documented, periodic, and
objective review by regulated entities of facility operations and practices related to
meeting environmental requirements. Audits can be designed to accomplish any
or all of -the following: verify compliance with environmental requirements;
evaluate the effectiveness of environmental management systems already in place;
or assess risk from regulated and unregulated materials and practices." It can be
performed by internal or external third parties so long as it meets basic standards of
independence. The EPA policy statement defines several key elements of what
constitutes an effective audit program: top management support for auditing and
commitment to follow-up on audit findings; independence of function; staffing and
training; structure with explicit writtjen audit procedures and protocols; a system for
collecting all necessary information; and a process for reporting findings to senior
management and for tracking commitments and schedules for corrective action.
Environmental auditing is distinguished from: a) government inspections
which are conducted to determine compliance with requirements; b) source self-
monitoring, record-keeping and reporting which are required in regulations and
permits to enable the facility and government to assess compliance status; and c)
ongoing environmental management programs which are responsible for day-to -
day compliance, reporting, monitoring and recordkeeping.
II. Scope of potential use
• In circumstances where noncornpliance appears to be the result of
underlying problems in management commitment, organization,
and/or systems, environmental management audits may be treated as
a part of the remedy in enforcement settlements when accompanied by
commitments to correct management deficiencies.
• When violations are likely to be found in similar facilities and
operations owned and/or operated by the violator, environmental
compliance audits can serve as an efficient means of improving
compliance, although not replacing separate government inspections
and enforcement actions.
• In the context of an enforcement settlement, third parties may be called
upon to provide recommendations as to an effective remedy. This
advice may involve the conduct of an audit.
4-30
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• Environmental auditing as a standard practice for regulated entities can
aid them in achieving current and continued compliance through
improved management systems and compliance awareness at the
highest levels in the organization. Environmental (risk) audits which
focus on waste minimization or pollution prevention can lead to
reduced environmental risk.
• Third party audits and certifications of compliance, while not
substitutes for government inspections, may enable EPA to acquire a
more comprehensive compliance evaluation.
HI. Type of Benefits
• Requiring management audits in enforcement actions enables EPA to
address management problems at facilities without itself getting in a
position in which EPA is telling sources how to manage their
operations.
• Requiring management audits ensures that enforcement corrects
compliance problems so as to increase the likelihood that the source
will improve its environmental compliance.
• Compliance audits can add to the value of Federal and state inspections
when undertaken in a manner in which EPA can be confident of
quality and thoroughness.
IV. Limitations
• Environmental auditing does not substitute for sound environmental
management nor can an audit be expected to uncover all violations or
management problems.
• Environmental auditing is ideally an ongoing process; however, as a
provision in an enforcement settlements it is generally limited to the
life of the decree or order.
• Audits are not useful in simple cases (single violation, limited
sanction) where actions needed to achieve compliance are well defined,
where compliance is easy to detect, or where management does not
appear to be a major problem.
« Neither industry nor a third party can substitute for an independent
EPA role, and the value added of the audit must be carefully appraised
as to whether it truly represents a resource savings.
4-31
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• An audit is only as good as the individuals performing the audit and
the management support for the audit and follow through on
recommendations. There is j currently no quality control or list of
acceptable auditors, nor is certification viewed as a fool-proof means of
ensuring quality. |
V. Current Experience
• The Office of Enforcement has issued policies encouraging
environmental auditing, guidance for incorporating audits in
enforcement settlements and for establishing effective Federal facility
audit programs.
• Several articles have been published describing the use of audits in
enforcement actions. OPPE and OE maintain an active program
encouraging voluntary private sector audits. Many well-established
environmental audit principles are incorporated in audits employed in
enforcement actions.
• The attached chart summarizes most of EPA's experience in audit
provisions in enforcement settlements. In summary, cases have
included audits addressing single pollutants or requirements (PCS),
multi-media, multi-facility, foreign importation, risk-based,
management, compliance-plus-management, and compliance
capability artificial input audits. Environmental audits have been used
in conjunction with stipulated penalties, compliance certifications,
and ADR provisions, as well as other innovative and established
enforcement methods.
• Interviews with staff indicated that, as with many settlement terms,
enforcement-designed environmental audits have been primarily
negotiated in exchange for penalty mitigation or penalty remitted
credits (primarily mitigation). Audits were most easily negotiated
where there was a sufficient differential between the original proposed
penalty and the economic benefit of noncompliance (if applicable).
Evaluating the "value added" component of an environmental audit
in a particular case is extremely problematic, but not a good reason to
rule out audits. EPA now has a fair amount of experience and data on
the cost of audits, the value to the Agency, and the risks and
compliance impacts on the source. The extent to which a judge could
"order" the remedy EPA is attempting to achieve has been an
important consideration in negotiations. For example, a court could
possibly order a company to comply with a audit term, but would be
unlikely to "order" management improvements recommended in an
audit. "Comprehensive" audits, negotiated in settlements, may go
4-32
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beyond the court's jurisdiction to enforce, if enforcement becomes
necessary.
Staff made observations that an audit is most desirable where neither
EPA nor the source have all the answers nor knowledge about all the
problems. It is not as useful in cases, e.g., asbestos demolition, where
good management and operations practices such as training and
reporting can be pre-packaged as an injunctive relief.
Outreach activities to promote audit programs in public and private
sectors now include: speeches and articles which are regularly given by
OE/OPPE on the policy, encouraging these practices; technical assistance
in the form of case studies, protocols and bibliographies distributed on
request (recently waste minimization assessment guidance was added
to these materials); audit guidance for federal agencies; active
representatives in the Environmental Auditing Roundtable, an
industry group dedicated to promoting auditing as a profession. NEIC
has trained federal agency auditors.
VI. Potential for Expansion
Auditing works well in conjunction with other innovative tools, such
as pollution prevention arid multi-media actions.
Management audits have been underutilized as a means of correcting
underlying compliance problems, particularly for repeat violators and
multi-media violations.
The chemical emergency preparedness strategy calls for a rank ordering
of emergency incidents and either a chemical emergency preparedness
audit or a comprehensive environmental audit requirement within
any pending enforcement actions.
Auditing may become an important tool under new statutory
authorities (such as EPCRA, CAA, FIFRA, and MPRSA which either
have draft auditing provisions in proposal bills, or inherently require
the use of auditing to effectively comply with requirements).
Development of auditing for municipalities is another frontier for
auditing and ripe for its application given compliance pressures on city
and county governments. We are aware of only one municipal
auditing program at present. In response to interest expressed by this
community, OE and OPPE explored and proposed an initiative to
promote auditing practices tailored to this group and its
environmental concerns. The project is on hold pending funding.
4-33
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VII. Barriers to expansion
Staff need experience with drafting audit provisions in settlements so
they do not generate more EPA follow-up than necessary to achieve the
benefits.
Management and staff are reluctant to initiate cross-program and cross-
regional audit requirements because of the increased workload and
difficulty of tracking follow through.
Environmental audits have been an innovative remedy as part of an
overall set of settlement terms. There is no specific statutory
"authority" for environmental audit remedies, and EPA could have
difficulty incorporating an audit (especially a management audit) in an
individual judgment, although EPA and DQJ believe they have the
authority to require an audit as an element of injunctive relief where
appropriate.
VIII. Initiatives to Overcome Barriers
Require Headquarters OE/Program to identify which settlements lend
themselves to using audit provisions in settlements, and which do not,
(e.g., voc cases may not but air toxics cases may).
Create a network of individuals in the Regional Counsel's office in
each branch and OE Headquarters in each Division who would
maintain up-to-date case examples and information on audit
provisions in settlements. Request such individuals also to make
themselves available to speak to industry groups in their Region about
environmental auditing. HQ should have a trained, knowledgeable
contact in each OE office. [
Provide additional credit for enforcement settlements (including
workload models) with audit provisions, especially multi-media,
Federal facility, or multi-facility audits.
Expand outreach to promote environmental auditing in public and
private sector.
Continue to facilitate auditing by developing and publishing inspection
and other protocols for determining compliance and pollution
prevention opportunities.
4-34
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• Develop auditing guidance for municipalities and transfer successful
approaches.
• Offer technical assistance to groups attempting to define audit
standards and protocols, including compliance, pollution prevention
and real property assessments and audits.
• Further examine the need for certification of environmental auditors.
Consider needs and differences among compliance audits,
waste/minimization and pollution prevention audits, and
environmental assessments for real property transactions. Explore
options ranging from federal inspector certification as a model, to
sponsoring legislation for an independent public/private certifying
body, to approaching states/organizations willing to pilot certification
programs and offering assistance/evaluating results. Issues include
scope of certification and whether it is effective to monitor compliance.
IX. Plan of Action
Immediate
- Designate an office as a repository for audit provisions in enforcement
actions.
- Designate and train contacts in HQ offices and Regions.
- Identify potential settlement negotiation.
- Prepare options for enhancing outreach efforts to public and private
groups.
Near Term
- Develop and implement training.
- Prepare white paper on certification of environmental auditors.
- Develop and implement municipal audit guidance and initiative.
- Develop workload and reporting measures to credit audit
project in enforcement actions.
Long Term
- Support groups develop audit standards and certification programs.
4-35
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V. LEGAL TOOLS
L Definition
"Legal Tools" is a. label for a project leading to line personnel identifying,
describing, using and evaluating useful new or untried applications for identified
statutory enforcement mechanism or legal tools.
This endeavor has no media boundaries and encourages efforts to transplant
LEGAL TOOLS and mechanisms ! from any media where they have proven
practicable to any other program with the same or an analogous need.
II. Scope of Potential Use
• Inter-media enforcement is a prime source for exploring the abstract
merits of case-specific legal tools innovation (e.g., TSCA subpoena use
to investigate what may turn out to be a FIFRA pesticide misuse case).
• The first-priority candidates for "re-thinking" and "re-examining" (and
resharpening) EPA's legal tools seem to be EPA's information gathering
tools. Not only is accurate information the first consideration in any
enforcement case, but that is also the area where the courts are most
likely to be sympathetic. It is the area in which EPA in the past has had
the most visible successes.
• Only modest successes have been registered in regard to innovatively
applying existing statutory authorities in a way that the ordinary reader
of the precise language for such authorities might not have anticipated
even if he/she had thought about the matter. But what few authorities
do exist seem to be encouraging. (The Tivian Laboratories case and
Alyeska Pipeline Service Co. case, in the appended illustrations are
prime examples). The techniques in using existing tools can be
preserved (cataloged) or "warehoused" and disseminated through
training by the EPA Institute which in part has been funded by OE.
Mere memos to Regional Counsels are inadequate to the job.
• Just keeping track of, and inventorying, failures as well as innovative
ideas serves EPA well as an institution because it "earmarks" pitfalls
experienced previously which can be avoided.
• Some identified group (probably at headquarters) to be tasked with
"sheparding" this project is essential to success. Such group needs to
catalog track, analyze, and recommend/advocate or disparage some
technique touted as innovative.
4-46
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A long range vision of ideal "legal tools" for EPA must be created,
publicized, and promoted as a baseline, recurring and simmering
activity so that at any point in time EPA can respond to Congress'
inquiry re EPA's legislative desires, with answers to the question,
"What tools does EPA need, which EPA now lacks?", in order to make
EPA enforcement more 'behaviorally influential' as well as more of a
genuine disincentive to violate, or to fail to comply with applicable
environmental requirements?" Putting together and periodically re-
examining a "consolidated proposed statute" for EPA enforcement
(which EPA has done) helps maintain a long range vision of
enforcement whether or not such a statute is ever actually enacted.
III. Types of Benefits
Morale of "front-line" EPA employees is inevitably raised by a senior
management initiative to invite work-in-process "suggestions" or
"alternative solutions" to case-specific problems. THIS IS NOT a "bean-
counting high-yield" endeavor or a short term or "one-shot" endeavor.
It is a long-term investment, particularly as to attorney training.
Avoiding past miscalculations - EPA can avoid past mistakes, errors
and miscalculations, by cataloging and advance in-depth analytical
study of how EPA's enforcement tools have been, and are being, used.
That promotes and advocates use of legal tools in ways which have an
acceptable risk of loss in the courts and thus appear genuinely
productive.
Managed vice serendipitous innovation - Risk assessment of
enforcement innovation can be estimated, but unless the specific efforts
can be cataloged for imitation and use, or avoidance, by some
component of EPA in addition to the innovating originator, the "yield"
from the effort may not be worth the cost. Such management
consumes personnel and time which OE must commit on a long term
basis.
Networking is promoted - The freedom regional personnel would feel
by having a pro-innovation enforcement "think-tank" or unit for
enforcement available at Headquarters, both as a stimulator and as a
reality-check resource for contact and kicking around case specific
problems, would counterbalance the inhibition which regional units
tend to fear as a source of criticism of their field generated ideas as being
"wild and crazy".
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Need for uniform generic authority is highlighted - The fact that
"assembly-line innovations must become relied upon" is significant
evidence that the "explicit existing regime" is in need of a re-
examination, and an "overhaul" where warranted. This effort creates a
clamor for a "one tool-kit" system for EPA enforcement ~ regardless of
the statute or substantive standards involved.
IV. Limitations
• Both APA (5 U.S.C. Section 551 et seq.) and Constitutional limitations
are fundamental recurring limits to innovation which EPA must live
with and explicitly support lest popular acceptance of EPA's regulatory
role degenerate in the public view to one of heavy-handedness, or
mindless bureaucracy. "Compliance", NOT "bean counting" or "scalps",
must remain the articulated goal of EPA enforcement.
• Expanding the application of some existing statutory legal tool of EPA
must be carefully distinguished and separated in its treatment from
what is, in fact, or what will be perceived to be (by the bar, by the
regulated community, by the Congress, or by the courts) a legislative
proposal ONLY, but not acceptable as an interpretive based innovation
(e.g., if it is perceived .ONLY as a boot-strapping technique
masquerading in euphemistic language, it is probably doomed).
• "Traditional" mechanisms, analogous to those techniques which some
sister federal administrative agency (for example, the IRS) already
employs, seem to be the most fruitful areas for EPA to explore as new
stimuli for innovative techniques in enforcement. "Analogy" and
"Imitation" seem to justify as well as to exemplify innovative
enforcement mechanisms.
• Incremental evolution of enforcement techniques and mechanisms
seems to have been about the only work-a-day innovations which
"catch-on" in a real sense in EPA enforcement as opposed to broad-scale
announced "initiatives". The Branch Chief and Section Chief levels
seem to be the sources ;for truly promoting and encouraging
enforcement innovation.
V. Experiences to Date
• Most of the limited successes EPA has enjoyed in innovation since 1974
seem to have clustered around enforcement-related information
gathering mechanisms or "tools" whether or not they originated as
legal tools "dubbed" as "innovative". Illustrative examples are
appended. That is also the primary focus of the draft "consolidated
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enforcement statute".
VI. Potential for Expansion
The phenomenon of innovation is inevitable ™" particularly where the
workforce is composed of bright and dedicated people. But it should be
routinized and managed rather - than allowed to "grow wild".
"Managing innovation" seems more efficient and productive.
Refurbishing "legal tools" requires some unit (probably at
Headquarters) to be tasked to do the cataloging analysis-training
functions which would be crucial to "managed-innovation". To the
extent that some innovative technique received OE approval and
support, the EPA Institute which provides training for newly hired
EPA attorneys could be enlisted to design and present modular courses
which would articulate, display and epitomize the advantages of some
innovative technique and would provide "how-to-do" instruction
with respect to it — a very pressing need for this type of
institutionalization — particularly in enforcement. EPA has never
formally trained personnel in "enforcement". Institutional memory
drains away with departure of experienced employees unless captured
by formalized training.
VII. Barriers to Expanded Implementation
"Media-myopia" - This means that some units have become overly
comfortable with some familiar boundaries and limitations on the
enforcement techniques provided by a particular statute and are
disinclined to take "risks", or to attempt some expanded use of an
existing technique, or some new application of some statutory
technique which has not been tried before. No stigma or career-
affecting view should exist for any such innovative efforts.
Lack Of Training Resources - Even if regional units are amenable to
trying new and innovative techniques, it is essential that for any
routinized use they be first "trained and instructed" in such new
methods. That, by itself, is an invitation to become innovative. The
EPA institute which provides training for newly hired EPA attorneys is
probably the best vehicle for articulating and promoting "enforcement
innovation". Previously, an annual "national enforcement
conference" was held for EPA, but that method (while useful for
demonstrating some headquarters support) did not sufficiently
institutionalize the "training" necessary to establish, agency-wide, any
innovative enforcement techniques. Money, positions, and qualified
instructors must be made available to EPA's training institute if
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innovation in enforcement tools is to become meaningful in EPA.
i
!
VIII. Initiatives to Overcome Barriers
a. An articulated and descriptive "clear and distinct" workplan must be
prepared for this project and written down.
b. Some already-cohesive unit under the Office of Enforcement must be
identified and charged at Headquarters with the collateral task of
"shepherding and advocating" sound innovative enforcement efforts,
and obtaining case-specific OE support for any such innovative action
before it is widely employed — but with an attitude that "risk-taking" is
AOK.
c. Such unit's secondary ongoing mission could be established as
preparing "training modules or short-term courses" (and materials
therefore) which could be offered to the Regions under the EPA
training institute auspices regarding, for example, information-
gathering mechanisms (e.g., warrants, TSCA subpoenas, CERCLA 104(e)
orders, etc.) in a generic way.
d. Such unit must also establish a "contact" network in the regional
offices so that any innovation to be publicized and promoted actually
reaches those people who presumably run into the problem an
innovation can alleviate.
e. As an initial effort, such unit could profitably focus on:
(1) Forms and procedures for using TSCA investigative
subpoenas in non-public investigations regarding
possible releases of imminently hazardous chemical
substances or mixtures (Thereby building on the
favorable decision in the Alyeska case);
. \
(2) Forms and Procedures for judicially enforcing
investigative subpoenas;
(3) Forms and procedures for applying for and executing
administrative warrants (or any CERCLA functional
equivalent); and
(4) Preparing course outlines and syllabuses in anticipation
of disseminating innovating experiences forces the
analysis and evaluation needed for any innovative
technique to be emulated and to prosper.
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APPENDIX
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APPENDIX
"LEGAL TOOLS PROJECT IN INNOVATIVE ENFORCEMENT"
- An early case illustrative of innovation was U.S. v. Tivian Laboratories, 589
F.2d 49 (1st Cir., 1978) where what EPA then called a "request for information"
under CWA Section 308 was used to call for industry-wide information about PCBs.
There, EPA asked the court for specific enforcement of its request for information.
EPA explicitly declined to ask for civil penalties under CWA Section 308, and sought
only specific enforcement. The Court of Appeals upheld and specifically enforced
EPA's request USING RULES OF LAW TRADITIONALLY EMPLOYED
THERETOFOR IN CASES WHICH HAD INVOLVED ADMINISTRATIVE
INVESTIGATIVE SUBPOENAS—a different "legal tool".
- A more recent illustrative case involving a so-called "request for
information" was EPA v. Charles George Trucking Co., 24 ERC 1812 (D.Mass.,19860),
under RCRA Section 3007 where EPA sought both specific enforcement of the
request for information PLUS civil penalties for having failed to comply therewith.
(The FTC v. St. Regis Paper Co. case, penalizing while enforcing specifically FTC
subpoenas was regrettably not relied upon by EPA).
- A recent case illustrative of "purposeful" innovation is U.S. v. Alyeska
Pipeline Service Co., 836 F.2d 443 (9th Cir., 1988). There, EPA sought to specifically
enforce an administrative investigative subpoena which had been issued under
TSCA Section ll(c), 15 U.S.C. Section 2610(c). EPA wanted the company president to
produce records and to testify about activities regarding the Valdez, Alaska, pipeline
terminal and the ballast liquids there off-loaded from oil tankers. EPA's legal,
theory, in part, was that EPA was trying to learn whether an "imminently
hazardous chemical substance or mixture" under TSCA section 7, [15 U.S.C. section
2606] had been released in consequence of such activities. The trial and Circuit
courts specifically enforced EPA's TSCA subpoena using traditional administrative
investigative subpoena enforcement rules and used unusually supportive language
of EPA efforts. The DOJ appellate division gave yeoman service on the appeal to
EPA's cause. The appeal indicated that EPA was not constrained to using TSCA for
its ultimate enforcement so long as EPA remained legitimately within the
empowering statutory language for subpoena issuance.
- A case illustrative of EPA's "fitting in" with the administrative warrant
scheme, laid down by Supreme Court caselaw is the Bunker Hill Co. v. EPA, 658 F2d
1280, (9th Cir., 1981). There, instead of forcibly entering with U.S. Marshal
assistance, EPA sought a contempt order against the company which had obstructed
entry and inspection under CAA Section 114. Both the trial and Circuit court
upheld the administrative warrant but declined to find the company in contempt,
yet confirmed EPA's right to seek such warrants ex parte without need for surprise,
etc.
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- Not all experiences have been rosy for EPA with its use of investigative
information-gathering tools.
- In a recent ruling, the Idaho District Court (faced with essentially the same
fact pattern reported in 820 F2d 308 (9th Cir. 1987) dismissed as moot and not
decided) ruled (on the basis of dicta appearing in See v. City of Seattle, 387 U.S. 541
(1967)) that an administrative warrant obtained under CAA Section 114 allowing an
examination of all records on the premises should be treated like an investigative
subpoena thereby allowing the premises occupant to screen and segregate its own
records rather than enabling EPA officers executing the warrant to verify the
presence and whereabouts of "to-be-copied" records by examining all records on the
premises and then copy those they selected as indicative of compliance or non-
compliance with NESHAPS (asbestos removal-demolition) regulations.
- One Regional office took the specific wording of CERCLA Section 104(e)(2)
at face value, regarding the word "require" in that subsection to be equivalent to
"order"; and based on that reasoning^ proposed having civil investigators searching
for PRPs sign and issue administrative orders pursuant to that subsection calling for
provision of information orally as well as by the production of pre-existing records.
One such order was signed and served. The company attorney contacted EPA
Headquarters by letter, saying, in effect, that EPA had no authority under CERCLA
Section 104(e)(2) of the type it had claimed by such order, and EPA Headquarters
contacted the region, in turn, indicating dissatisfaction with what the region had
done. The company had made a pro-forma response and the matter was not pressed
by the region. Innovation was not "risked" here.
- EPA directed self-investigation Orders have run into some legal snags:
- The case of Wyckoff v. EPA, 796 F2d 1197 (9th Cir. 1986), a case involving a
RCRA self-investigation directed by an order under RCRA Section 3013 resulted in
EPA's power to direct such action even in an "authorized State" being upheld, but
also resulted in a protective order being imposed because the company involved
was then under criminal indictment;
- The case of ASARCO, INC.v. EPA. 616 F2d 1153 (9TH Cir. 1980) involved EPA-
ordered stack testing under CAA Section 114. There, the Circuit Court probed EPA's
informal administrative record for EPA's rationale for so imposing such a
requirement on the company. It concluded that such informal administrative
record did not substantiate EPA's rationale, for so issuing such a requirement, hence
EPA's order under CAA Section 113 was ruled "arbitrary, capricious, and not in
accordance with law...." the APA standard. The need for "informal administrative
record" pre-paration became clear from this decision, but EPA training has not kept
pace with the need for a well done informal administrative record.
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VL MULTI-MEDIA ENFORCEMENT
I. Definition
Multi-media enforcement includes coordinating inspections and/or
enforcement responses involving violations in more than one environmental area
or "media" at a single facility.
II. Scope of Potential Use
All violators, excluding CERCLA, RCRA corrective action, wetlands and minor
violations or small facilities where the potential for violations in more than one
media is limited.
II. Type of Benefits
Multi-media enforcement can produce the following benefits:
• Additional leverage over violators;
• Conserving EPA enforcement resources by improving efficiency;.
• Increased media coverage for enforcement actions;
• Larger penalties, and greater likelihood of getting company's
management attention; and
• Greater potential for innovative settlements, audits, pollution
prevention projects, and comprehensive environmental solutions.
IV. Limitations
Multi-media enforcement by definition is only appropriate for industrial
facilities or companies whose activities require compliance under more than one
statute. Also, since the relevant statutes, CAA, CWA, RCRA and TSCA primarily,
have different enforcement provisions and procedures, timely coordinated response
may be difficult or impossible. There are limitations in DOJ and EPA settlement
policies which currently limit certain aspects of the more innovative settlements
which may logically flow from multi-media enforcement. Settlements involving
multimedia aspects such as audits, pollution prevention projects or remedial
action in non-target areas may violate current policies. Additional quasi-
limitations are EPA program guidance, strategic plans, workload models and
accountability systems which cause disincentives to working on cases that are not
priorities in all programs.
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V. Current Experience
In discussions with individuals who have had experience with multi-media
enforcement, we have developed four models representing the range of experience
with these activities.
a. Targeted multi-media enforcement - This approach involves selecting
potential facilities for multi-media enforcement by reviewing available information
on facility location, emissions and compliance history. Automated data systems and
other state and federal information can be used. Geographic Information Systems
may be used for assessing priorities according to industry clusters, pollutant type,
environmental or health risks or other factors. Once facilities are selected,
coordinated inspections are arranged and multi-media response is based on the
results of the inspections. This targeting approach requires a significant up-front
resource commitment and there is, of course, no guarantee that violations will be
found. It is the best way of ensuring that multi-media cases are developed in areas
that fit environmental program priorities.
b. Multi-media case screening - Under this approach, a process is established
for screening known violators for the potential for violations in other areas. The
screening can be done by searching data systems for other violations, past or present,
reviewing source information, TRI data and state and federal files to see if the
violator is one with a significant potential for violations in other areas. Based on
the screening process, coordinated inspections and enforcement would be
undertaken as appropriate. This screening approach differs from the targeting
approach in that the starting point is an existing violation rather than a source/risk
review. Up-front resource commitment is significantly less and there will always
be, by definition, at least one violation. The multi-media cases identified will not,
however, necessarily reflect planning priorities,
c. Self-generating multi-media cases - Some multi-media enforcement cases
just happen as a result of the development of a single-media case. EPA staff
occasionally discover other violations or the potential for them as they are
reviewing source information during the case development process. When this
happens, decisions are necessary concerning additional compliance inspections,
timing or follow up and lead responsibility. Occasionally, violations are discovered
in a second or third area that are more significant than the original case.
d. Single-media violation/multi-media settlement. The fourth type of multi-
media case is one in which a single-media case leads to a multi-media settlement or
decision. Examples of this would be a settlement requiring the facility to conduct a
multi-media compliance audit or to undertake a pollution prevention project in
another area. This approach is particularly useful where it was not possible or
appropriate to arrange for up-front multi-media inspections and followup but the
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facility is nonetheless one with emissions affecting more than one medium.
VI. Potential for Expansion
The focus for expansion of the use of multi-media enforcement lies in
improving the enforcement case development and screening process to develop
and follow through on multi-media cases. Multi-media enforcement can be made a
part of our routine enforcement process, as can criminal enforcement or ADR, if
appropriate procedures are established to encourage and support such an approach.
Multi-media enforcement can become simply one option in our process rather than
a special initiative. (One useful tool for assisting in making multi-media
enforcement more routine would be a case development/screening flowchart for
use by Regions. This is listed as one element in the Plan of Action, part 9.)
VII. Impediments to Expanded Implementation
EPA's organizational structure is a significant impediment. Our media-focused
agency leads to differing enforcement priorities, inspectors that are familiar with
only one program and compliance and other environmental data systems; which
have not been designed to be compatible. Of course, our structure mirrors our
statutory authority and the substantial variance in the enforcement tools in the
various statutes can also make coordination challenging. An additional
impediment, at least in the approach taken to date, is that startup costs are
substantial due to the need to analyze data, identify sources and coordinate
inspections. It is entirely possible that after this substantial effort no, or only
insignificant, violations may be identified. Also, programs may be reluctant to
become involved in a multi-media case if it means a loss of control over the
enforcement process. A significant impediment in the Regional counsels' offices is
that multi-media cases receive no more credit in workload models than single-
media cases.
VIII. Potential Incentives
• Workload models, STARS measures and other accountability systems
need to give credit for multi-media cases.
• Strategic plans should include specific consideration of the
development and management of multi-media enforcement.
• Enforcement reports should highlight multi-media successes.
• Media releases should emphasize multi-media cases.
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IX. Plan of Action
Development of inspector training and checklists for multi-media
inspections j
i •• • - ' -•
Improved data system compatibility
Statutory and regulatory amendments to make enforcement
procedures more uniform
Accountability system and workload enforcement
Policy development by the Office of Enforcement with followup
policies by other offices j
Inclusion of multi-media enforcement in Strategic Plans
Development of a model case development/screening flowchart to aid
Regions in managing the enforcement process
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VII. ENFORCEMENT TARGETING
I. Definition
Enforcement targeting is the activity of selecting a category of sources to
evaluate for compliance and appropriate enforcement action. The category that is
selected has a common theme that is based on a defined objective. This objective
may be pollution reduction from an industrial class of sources that has a high
noncompliance rate, risk reduction in a geographic area, evaluating the
effectiveness of a particular regulation, or ensuring awareness of a new regulation*
Given the resource constraint environment in which we work, a selection process
to reduce the number of violators that we address, while ensuring the deterrent
effects remains high, must be incorporated into our strategic planning.
II. Scope of Potential Use
Targeting can be program-specific or a multi-media/multi-statute approach. It
can be geographic area based or source typed based.
• Program specific targets may be based on industry type, geographic
area,pollutant type, individual regulation, or a combination of these. It
may be decided to identify a specific industry, such as steel,
petrochemical, or feedlots, for compliance with either a newly adopted
regulation or a regulation that has been on the books for some time.
• Targeting a geographical area may be based on determining compliance
for specific pollutants in a sensitive area or focusing on an area known
to have incidence of a specific cancer or other health effect relating to a
pollutant that is regulated under a program.
• Multi-media/multi-statute targeting is usually done to address a
potential high risk concern or reported environmentally related health
problem, or to ensure that a class of sources is in full compliance. This
type of targeting may be driven by Toxic Release Inventory analysis,
public concerns, or Agency priorities.
HI. Types of Benefits
As previously mentioned the prime reasons for enforcement targeting is
driven from resource constraints. Targeting carries with it a number of efficiencies:
• Dealing with a specific industry or pollution problem allows greater
expertise to be developed throughout the staff involved in the project;
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• Efficiencies in the development of technical and legal background
material are gained through the use of targeting.
• There is a greater consistency in the implementation of the individual
regulations;
• Greater compliance can be leveraged through a carefully planned
outreach program;
• The effectiveness of an individual regulation can be evaluated;
• Awareness of a new regulation can be enhanced; and
• The greatest risk reductions can be addressed with scarce resources.
IV. Limitations
• Any office using a targeted enforcement approach must reserve some
resources for general enforcement so unexpected important compliance
problems can be addressed.
• Certain regulated populations are so large and the program resources
devoted to monitoring compliance is so small that initially a neutral
inspection/enforcement program is the best way to send the
enforcement message out to the community.
V. Current Experience
Most program offices have policies on "Significant Non-compliers" and
"Timely & Appropriateness". While these are forms of targeting there has been
significant use of more defined targeting by each program office.
• Most of the current experience in enforcement targeting has been on a
national program level with the Regional Offices following these
strategies. Recently, Regional Offices have initiated targeted
enforcement efforts based on high risk geographical areas or groups of
sources screened for there high risk.
• When new regulations are adopted, a special emphasis is usually
placed on the regulated sources during the first year.
A program office may decide
maintain a high level of
therefore periodic "messages
community. Such was the
that a source category is too large to
continual compliance monitoring and
need to be sent to the regulated
targeted enforcement initiative that
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culminated in the announcement of the filing of 21 civil complaints
against NESHAPS asbestos removal activities by the U.S.
Attorney General in 1988. By targeting this source type for intensive
inspections over a finite period of time and then bunching the cases,
the announcement became a media event and the agency was able to
reach a much larger segment of the community with the enforcement
message men would have occurred if each case was worked separately.
• Targeted enforcement has been used to judge the effectiveness of
various VOC regulations. Prior to conducting these projects it was
assumed that from a planning perspective these regulations were 100%
effective. However, after reviewing a high percentage of sources
covered under a specific regulation through a well planned process it
was determined that somewhat less than the assumed environmental
reductions in loadings were actually occurring. This type of targeted
effort can help to identify inconsistencies in implementation, problems
with language interpretation by field inspectors and office case review
teams, adequacy of surveillance, and why planning strategies did not
meet desired goals.
VI. Potential for Expansion
The greatest area for increasing the use of enforcement targeting is in the
Regional Offices. With the increased emphasis on regional strategic planning and
flexibility in STARS, the Regions have greater latitude to initiate strategies that
reflect regional, state, or community concerns and needs.
• Identification of geographic areas of high risk through the use of Toxic
Release Data (TRI) is becoming more commonplace in Regional Offices.
The usefulness of TRI data to screen for high risk areas is enhanced by
the tools available in the Graphic Information System (GIS). The use of
these tools to target multi-media/multi-statute risk reduction should
be increased.
• A targeting strategy can be combined with penalty policies and an
outreach program so that as time passes the penalties will increase. As
the strategy progresses and the regulated community's awareness of
the compliance initiative and staged penalties is increased, this will
hopefully increase voluntary compliance.
• Data integration of the compliance records from all media and States
will enhance our ability to improve targeting.
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VII. Barriers to Expanded Implementation
• The major barrier to expanding regional targeting initiatives is the
need to comply with national Timely & Appropriateness policies or the
perception of that need.
• Timely & Appropriateness policies also can present difficulties with
state agencies in the implementation of an enforcement targeting
strategy.
! .
• If targeting is heavily directed towards complex cases and a mix is not
maintained in the case load of an office, then the general enforcement
statistics may suffer. !
• Multi-media/multi-statute targeting currently suffers from the
limitations on who gets credit for the case.
VIII. Initiatives to Overcome Barriers
• Regional initiatives should be encouraged by national program offices.
National program managers should solicit regional initiatives and
ensure that these initiatives receive the same recognition that
enforcement generated through conventional adherence to national
objectives receives.
• Equally, the Regions must share responsibility in ensuring that
national program objectives can be met. This requires the regional
offices to develop strategies; clear objectives, and explanations of
increased benefits, and present their plans early in the planning cycle to
their national program managers, so that they can be incorporated into
the national commitments.
• If responsibility for enforcement of the targeted population is shared
with the state agency, then it must be brought into the planning. This
will help to ensure that their support and expertise will enhance the
effort, state needs can be factored in the strategy, and ensure that they
will conduct their enforcement efforts in support of the initiative.
IX. Plan of Action
• Guidance pertaining to development of annual program objectives and
strategic planning should encourage greater use of enforcement
targeting. Encouragement should be directed to both the national
program offices and the regional offices.
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• Workload models must provide appropriate recognition for regional
enforcement targeting.
• Guidance should be expanded to aid in the development of the various
types of targeting strategies. This guidance should identify factors that
must be considered in developing a targeting strategy, evaluating the
success, understanding the leveraging effects of penalties and outreach,
and use of targeting tools such as TRI and GIS.
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VIII. RISK-BASED /POLLUTION PREVENTION ENFORCEMENT
I. Definition
Risk-based enforcement considers application of existing federal authorities to
any media in order to address releases into air, groundwater or surface water which
pose a high risk to human health or the environment. Superfund authorities in
particular are very broad and provide an opportunity to address all releases at a
facility using a risk based approach. Once releases are identified and prioritized, a
waste minimization or pollution prevention strategy for remediation can be
developed in an enforceable agreement, starting with those that pose the highest
risk.
II. Scope of Potential Use
• Risk based enforcement can be incorporated into ongoing enforcement
actions in any media or can be applied to targeted facilities which have
reported releases under TRI.
III. Types of Benefits
• EPA can target any facility, which has high risk releases into air,
groundwater or surface water.}
• Sites with multi-media releases of hazardous constituents can be
characterized at one point in time.
• EPA can negotiate total site 'clean-up, incorporating waste reduction
strategies.
• Facilities will be required to focus clean-up efforts on the most
significant releases.
• TRI information can be effectively utilized.
IV.
Limitations
Administrative enforcement procedures are inconsistent among media
programs.
Not all media regulate using a risk-based approach.
There is no policy or guidance available to the Regions on how to
evaluate, approve and incorporate industry pollution prevention
initiatives into an enforcement agreement.
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V. Current Experience
EPA's enforcement approach is inconsistent under current
Federal/State control programs.
Existing statutes provide varying degrees of protection.
Not all programs use risk-based authorities to determine clean-up
levels.
Some Regions have initiated pilot studies for risk-based enforcement.
Facilities have been targeted based on TRI information, geographic
studies and compliance history. Multi-media assessments for targeted
facilities are currently being done.
Regions have begun negotiating pollution prevention conditions into
enforceable agreements; however, in some cases final agreements are
being delayed due to a lack of settlement guidance from HQ.
VI. Potential for Expansion
There is substantial interest and activity by the Regions in the areas of
risk-based enforcement and pollution prevention. With EPA's focus
changing to total environmental impact, risk-based enforcement and
waste minimization are both key tools for addressing facilities which
pose the highest risk to human health and the environment.
Risk-based enforcement and pollution prevention can be incorporated
into existing media programs.
Ongoing Regional pilot projects should be nurtured by OE. Expansion
to all Regions should be evaluated based on success of the pilot efforts.
VII. Barriers to Expanded Implementation
Implementation is subject to buy-in by Regions and HQ.
A significant investment in cross-media enforcement training will be
required by HQ and Regions.
Risk-based enforcement actions will be more complicated and resource
intensive.
Each media program may have other enforcement priorities.
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• EPA risk-based enforcement may conflict with authorized state
programs.
• Need to make pollution prevention guidance available to the Regions
for settlements.
i
• Risk-based enforcement may supersede media-specific decisions to
allow higher risk releases in k particular industry.
VIII. Initiatives to Overcome Barriers
t
• Regions and HQ must work together to overcome "media-myopia."
Risk-based enforcement and pollution prevention initiatives by
definition must cut acros;s traditional media boundaries to be
implemented effectively. Environmental groups are already beginning
to target facilities using risk as the principal criterion.
• For risk-based enforcement, existing legal authorities are available to all
media programs. Evaluation of legal authorities has not resulted in
any apparent impediments to cross-media application to date. Lack of
progress in this area appears to be principally self-imposed.
• An infrastructure should be established by OE which results in
successes and failures from, ongoing pilot projects being effectively
communicated to the Regions and HQs. Formal training should be
made an integral part of the process to ensure best possible
implementation.
i
• Criteria should be developed by OE in conjunction with each program
to determine when application of risk-based enforcement or pollution
prevention is most appropriate.
• HQ should develop policy for evaluating pollution prevention/waste
minimization initiatives submitted by industry. Lack of written
guidance is hindering negotiation of enforceable agreements
incorporating pollution prevention in some Regions.
IX. Plan of Action
Near Term
- Educate Agency offices regarding ongoing pilot projects.
- Develop written policy and guidance for evaluating pollution
prevention initiatives submitted by industry.
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- Develop penalty mitigation guidance for pollution prevention
initiatives.
Long Term
- Evaluate pilot projects for suitability for larger scale implementation.
- Determine specific program needs for implementation.
- Conduct training for program offices and legal staff.
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IX. INNOVATIVE REMEDIES
I. Definition
Innovative remedies and settlements include both legal and technical
enforcement activity included in case resolution which in some unusual way
promotes compliance and/or reduces pollution to improve the public health,
welfare, and the environment. Broad categories of such activity consist of:
a. Publicity which creatively combines innovation with tradition to
extend the reach of response strategies and promotes compliance;
i , .
b. Promoting new technologies with potential to improve our ability to
solve environmental problems;
c. Promoting training in the regulated communities which fosters
compliance; and
d. Environmentally beneficial projects aimed at achieving a number of
objectives, such as:
«increasing the use of effective, though infrequently used, remedies;
"importing remedies from other media and tailoring them to fit
specific cases;
«leveraging a single case for broader compliance; and
» remedial action which goes beyond fixing the current problem.
Examples of such activity include | the following:
i
• designation of settlement funds in trusts held to foster vehicle
inspection programs;
• training courses for operators of control facilities;
• use of public information to change public perceptions about
tampering and fuel-switching and automobile emission controls; and
• use of publicity in trade magazines to deter removal of vehicular
emission control systems.
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II. Scope of Potential Use
Full Range of environmental enforcement activity;
« Federal, State and local enforcement;
• All environmental media; and
» . •
• Initially best limited to applications in areas where risk of failure is low
and there is a well defined potential benefit (e.g., large cases where the
total penalty is well beyond economic gain and the benefit of the
innovation is easily recognized). Gradually build on the successes until
such projects can be routinely considered as part of the settlement
process for all cases.
III. Benefits
• Deal with specific problems larger than the case (e.g., publicity to
reduce customer demand for tampering and fuel switching; translating
TSCA Import regulations for foreign chemical manufacturers
(Japanese) to ensure compliance upon arrival in USA).
• Deter original offenders, repeat offenders and set the stage for non-
recurrence of violations in broad context (e.g., ad in trade publication by
a violator cautioning peers about non-compliance),
• Support overall environmental efforts (e.g., allow violator to fund
AAA program to test cars).
• Test new technology.
• Identify most effective remedies and standardize (encourage refiners
who exceeded lead in gasoline standard to reduce usage in future
periods).
• Publicize new Agency efforts (e.g., MWPP training).
• Settle cases better.
• Allow previously unresolved, unaddressed problems to be dealt with.
IV. Limitations
• Although the recently issued policy on the use of Supplemental
Environmental Projects in assessing penalties provides considerable
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flexibility to enhance settlements with innovative remedies, some
restrictions still apply because of the Anti-Deficiency and Miscellaneous
Receipts Acts.
• Past misuse of innovative remedies limits their effectiveness.
Negotiators have sometimes accepted poorly designed, minimally
acceptable projects which were difficult to monitor in order to expedite
settlement. These become horror stories and frighten other program
officials.
• Initial Investment can be high. This include new project start-up costs
as well as the risks of mistakes in trial-runs, field tests or false starts.
These become sunk costs which dampen the desire to innovate.
I • .
• Statutory provisions for enforcement and compliance vary among the
major environmental laws (CWA, CERCLA/SARA, TSCA etc.),
making it difficult to achieve consistency and compatibility.
• Many cases, therefore, just are not conducive to innovative settlement.
Innovative remedies/settlements must fit within case structure to
make sense (e.g., major innovations may be out of proportion for
minor settlements) (e.g., can't negotiate where major portion of
penalty is economic gain).
• Enforcement sanctions are carried out through multiple organizations,
either directly or through delegated authority; this makes consistency
difficult to achieve.
I
V. Current Experience
The Office of Mobile Sources in the Air program has historically used
innovative settlement, primarily in the use of publicity (see Attachment 1), and
auditing to deal with tampering and fuel switching. The publicity was successful
because a major problem in its effort was public perception. The public believed
that fuel switching (using leaded gasoline in cars designed to use unleaded), and
tampering did not hurt the environment (i.e., my car really is clean - look at the
buses), gave them increased performance, saved energy, and was cheaper.
Dispelling this perception through publicity via case settlement was a good way to
reduce or eliminate the very basis for non-compliance by the regulated industry.
This effort- in conjunction with other effective program activities did in fact reduce
both fuel switching and tampering.
The basic process used in case settlement by the Mobile Source Program also
helped. In every instance in order to settle a case the violator was required to: 1) fix
the problem (e.g., replace ruined catalysts), and 2) pay a penalty in excess of
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economic gain, and then, if appropriate, the penalty could be mitigated further if the
violator did something beneficial to the environment.
Over time the office built up a record of settlements with examples of good
mitigation projects so that each case attorney had a good example to follow for
almost any case which might arise. As the experience grew the settlements became
more creative and better. ;
The TSCA program also has successfully used innovative remedies as part of
its case settlements. In each case it used one case to achieve a broader goal
successfully leveraging the value of that one settlement. Attachment 2 contains a
list of these cases.
VI. Potential for Expansion
• Use by all programs for major violations where there is substantial
room to negotiate.
• Use in new program efforts to describe value, goals, etc., of innovation
(e.g., potentially valuable in settlement of CWA municipal violations
where the new Municipal Water Pollution Prevention Program can be
forwarded by POTW operators explaining how the program works to
their peers.).
• Use publicity in any case where public opinion can directly influence
environmental activity.
• Use where individual activity can affect a generic solution.
• State and local regulators should be encouraged to adopt Federal
innovations as appropriate, adjusting them or creating their own.
VII. Barriers to Expanded Implementation
• Current "culture", performance standards, program, enforcement goals
and organization not yet set up to recognize value of innovative
settlements.
• Bad experiences with new ideas discourage repeated attempts.
• Economic benefits of non-compliance are often so high that they more
than offset deterrent value of penalties (i.e., no room to negotiate).
• State-Federal-local jurisdictions sometimes have different ~ even
incompatible — views of remedies.
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• Competing priorities for fixed resources may require that some current
activity either be discontinued or redirected.
1
• There is an absence of shared successful experiences.
• There is some regional perception that demand for innovative
remedies is greater in Superfund than in Air or Water Programs.
• Pollution can be easily be pushed from one media to another (e.g.,
burning sludge may solve a water pollution problem while creating an
air pollution problem).
VIII. Initiatives to Overcome Limitations and Barriers
• OE and/or individual program offices to evaluate current practices to
see if remedies are really working as expected; if not, identify areas for
improvement and innovation.
• Update Guidance Documents to incorporate areas where innovative
remedies can be (have been) successfully used.
• Ensure quicker response to non-compliance to reduce economic gain
from violations. ;
• Ensure a sufficient range of penalties to accommodate innovative,
rnultifaceted settlements as well as deterrence.
• Give awards for outstanding innovative settlements and publicize
these awards in EPA.
• Analyze "bad" experiences to ascertain what went wrong and develop a
checklist of practices to avoid consider transferability of remedies from
both technical and legal points of view.
• Seek legislative changes whijch specify acceptability and desirability of
innovative remedies. ;
IX. Plan of Action
- [
Fashion generally acceptable "innovative remedies" for specific type
cases in specific program. i
Put "innovation" into performance agreements of key enforcement
personnel in headquarters and Regions.
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• Add innovative settlements as a criteria for an outstanding rating in
ORC performance standards.
• Promote value of innovation repeatedly in memos to programs and
Regions on case settlements focusing discussion on specific types and
how they worked.
• Include guidance on when and how to use innovation in Guidance
Documents to programs and Regions, requiring that it be considered in
all settlements in selected well-defined cases.
• Have Program Offices review existing penalty policies to determine
how to incorporate innovative remedies.
• Have OE put together examples of successful innovative remedies, put
these into a notebook and distribute.
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ATTACHMENT 1
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Attachment #1
Air - Mobile Sources
Following are examples of environmentally beneficial penalty mitigation projects
designed to change the behavior of known polluters and raise the environmental
awareness of potential polluters among various groups such as fleet operators,
mechanics, high school students and other members of the driving public using
group events, when appropriate. (Use of these remedies in settlements prior to
involving DOJ is still not routine, especially in program areas outside of Air.)
- On EARTH DAY, pre-diagnostic emissions testing will be conducted by the
AAA and the American Lung Association with funds from penalties.
- Notices about emission controls were, included in routine mail-outs of motor
vehicle registration forms to alert drivers that they need to know not only
that their licenses are expiring, but also that new clean air requirements are
in effect.
- A Goodyear blimp with an environmental message was rented by a polluter
to circle a baseball field during a world series game.
- Clean Air jogging marathons were organized and conducted with penalty
funds to make a serious statement about the effects of pollution on breathing.
- Radio and T.V. ads were developed and delivered by polluters describing
their particular violation and resulting penalty.
- Magazine articles were written and published by polluters under Agency
guidance to detail the harmful effects of their violations and make a case for
preventing pollution rather than paying penalties.
- Posters warning drivers about the ruinous effects of fuel switching on their
engines or tampering with emission controls were hung up in gas stations.
- Polluters funded endowments for professorship or grants for environmental
studies at universities (e.g., Brown Cloud Study at Denver).
- Courses on emission controls and environmental impacts were developed
for mechanics as well as high school students in vocational-technical
curricula.
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ATTACHMENT 2
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Attachment #2
TSCA
El Paso Polyolefin (1982) - Used settlement to compel respondent to develop an EPA
- approved trade association presentation stressing compliance with new TSGA pre-
manufacture notification requirements.
AT&T (1986) - Settlement required notice in major trade journals of TSCA
compliance implications for "high-tech" industries, which had recently been
identified as having a high rate of noncompliance.
Canon Copier - Settlement attempted to address foreign chemical importers'
noncompliance with TSCA. Settlement compelled translation of TSCA regulations,
policies, guidelines into Japanese, and development and presentation of a Japanese
national trade association program on TSCA compliance. An EPA representative
supervised the translation and attended the meeting.
Chemical Waste Management (Emelle and Vickery) Combined TSCA and RCRA
environmental audit with credit for "experimental" waste reduction technology
demonstration projects.
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X. FIELD CITATIONS
.
I. Definition
The term "field citation" defines a class of enforcement documents issued by
inspectors in the field and designed to streamline enforcement of health and
environmental regulations. Field citations have characteristics similar to traffic
tickets, that is, the citation typically addresses a clear-cut violation, requires the
violator to correct the violation, often carries a small penalty, and provides for some
type of appeal. However, the citation can be one of several legal entities, including a
notice of violation, an administrative order, a short-form settlement agreement, or
a summons. While field citations are, by definition, issued in the field and assess
penalties, related procedures include in-field notices (issued in field but without
assessing a penalty) and short-form.; notices (issued from the office after review of
the inspection report). In contrast to traditional enforcement, field citations and
these related techniques usually provide resource-effective, on-the-spot
enforcement response and remediation since the violator has a greater incentive to
address the cited violation than to contest.
II. Scope of Potential Use
• Because field citations are flexible tools, they can be used by a variety of
federal, state and local programs to address numerous clear-cut or
relatively minor violations.
• By arming inspectors with an on-site enforcement tool, field citations
provide an enforcement presence in the field. Field citations allow
inspectors to address violations that may not have been addressed
previously or to address a greater number of violations.
• Field citations allow a program to reduce a backlog of environmental
cases. Each case can be resolved in a shorter period of time, using fewer
program resources, thus enabling programs with small staffs to
improve compliance. This is j especially true for programs that settle
certain classes of cases for relatively low amounts, as field citations will
achieve the same result quicker and easier.
i
• Programs that experience difficulty competing for legal resources or
getting on a court docket may be able to avoid this barrier through the
use of field citations. If properly designed and implemented, field
citations are infrequently appealed and often allow the substitution of
informal appeals procedures for traditional legal procedures.
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III. Type of Benefits
• Field citations streamline the enforcement process, making it quicker,
less resource-intensive, and more automatic. Field citations reduce the
amount of time inspectors and administrative staff spend on each
violation by reducing the amount of follow-up paperwork that must be
completed. For example, California's Department of Health Services
initiated a field citation pilot program in 1989 to enforce RCRA Class II
violations (i.e., less serious violations). Before the ticket was
developed, "minor" violations took about 592 hours of staff time per
case to resolve; after the ticket, total staff time was reduced to 7 to 10
hours per case.
• Field citations, especially those carrying penalties, create a clear
enforcement message for violators that no violation will be
overlooked.
• Field citations can reduce court backlogs and facilitate enforcement.
The Province of Ontario, Canada initiated a field citation program in
part to remove many of its environmental and health violations from
criminal court, where they competed with much more serious
violations (e.g., murder), were rarely placed on the court docket, and
rarely enforced.
• A field citation program builds staff morale. Field citations allow staff,
especially inspectors, to see a case through from initial ticketing to
settlement and compliance. Inspectors also substitute for higher level
administrative personnel and lawyers for certain classes of violations.
• Field citations with penalties can be used to generate revenue.
IV. Limitations
• Field citations may not be useful for addressing all violations, especially
those that cause immediate environmental harm, such as spills or
releases of hazardous substances.
• Field citations might not significantly expedite enforcement in
programs with complex regulatory requirements. Field citations are
most appropriate for clear-cut violations; if the regulations are too
complex and/or require inspectors to use too much discretion in the
field, inspectors may prefer to continue using traditional enforcement
tools and violators may be more likely to contest the citation.
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Because the inspector has the key role in determining when to issue a
citation or when more or less severe enforcement is indicated,
inspector training is critical. In addition, providing support and
building incentives into inspector performance review are important
to program success.
While some programs have effectively implemented field citation
programs without having administrative penalty authority (e.g., using
short-form settlement agreements), others want to obtain clear
legislative authority before proceeding with the program. Obtaining
this authority may be difficult for some programs, especially if the
legislature is cautious in granting policing authority or if passing
legislation is excessively protracted.
Field citations may not be effective in a jurisdiction that anticipates a
large number of appeals of the citations. If the agency must devote
substantial resources to accommodating appeals (e.g., court time,
lawyers, etc.), the advantage of using field citations disappears. The
nature of the regulated community, previous enforcement efforts, and
the amount of the fine can all affect the number of appeals.
V. Current Experience
The most significant effort to implement field citations is in the Office
of Underground Storage Tanks (OUST). Field citations appear to be
ideal for the UST program because of the size and nature of the
regulated universe, OUST's decentralized approach to enforcement and
the number of relatively minor violations that are not well suited to
traditional enforcement. OUST has already initiated pilot field citation
projects in several state and county UST programs. OUST is examining
using field citations as an additional federal enforcement tool during
initial inspections in those pases where EPA will conduct inspections.
However, field citations may not be appropriate for addressing state
referrals, since, by the time a state refers a case to EPA, the violation is
likely to merit a more serious enforcement response than a ticket.
EPA's Office of Mobile Sources inspectors issue $200 citations for fuel
dispenser nozzle violations. Originally, the citation was a short-form
settlement agreement issued from the office after the inspection, but
the citation evolved into a ticket which could be issued in the field.
PCB pilot programs were initiated in Regions III and V; while Region
El discontinued the pilot because it felt that the regulations were too
complex to be effectively addressed with citations, Region V has
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integrated the successful pilot into its program. As described below,
minor PCB violations, as well as other environmental violations, are
addressed using field citations in Region VII.
Region VII inspectors issue various forms of a notice of violation on-
site for addressing minor violations in several environmental
programs (PCBs, pesticides, RCRA, and NPDES). The notice instructs
the violator to correct the infractions and submit evidence of
compliance within a set period of time or risk penalties or formal
orders, although the notice reserves the right to pursue enforcement
of any other violations detected during the inspection. By reserving
case developer and attorney time for more ambiguous cases and civil
complaints, the field citations have successfully reduced backlogs of
minor enforcement cases and allowed the programs expeditiously to
achieve high rates of compliance for these classes of violations
Several state and local programs have also independently instituted
field citations in a number of health and environmental areas ( e.g.,
New Jersey, the District of Columbia, Dade County, FL and New York
City), or for select programs (e.g., California for RCRA violations or
North Carolina for water discharge violations).
VI. Potential for Expansion
Programs currently using field citations to address a few violations may
be able to expand the number of citable violations.
Federal programs that do not use field citations but where federal, state
or local efforts have indicated success should be able to adopt field
citation techniques. For example, the RCRA program might examine
the California, New Jersey arid Region VII field citation experience. A
number of Regions might benefit from Region VII's success using field
citations in a variety of environmental programs.
Programs with large regulated universes and scattered sites should be
targeted for expansion efforts, since on-site enforcement can be effective
in these situations.
Expansion is most likely to occur in those programs which have an
incentive to apply field citations, such as those with a large case backlog
or new programs that would like to institute compliance monitoring
and enforcement activities but have limited staff and resources.
Concern over placing inspectors into potential confrontations with
violators or, even worse, into compromising relationships, might
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discourage some programs from using existing authority to issue
citations in the field. However, short-form settlement agreements
issued from the office after case review can be substituted for field
citations without seriously diminishing the efficiency Of the program.
VII. Barriers to Expanded Implementation
Lack of knowledge of field citation program and its uses
i • f
Lack of authority for issuing field citations with penalties. Some
programs might be reluctant to permit inspectors to issue citations
without clearly defined statutory authorization, e.g., the EPA Office of
Stationary Sources is awaiting specific statutory authority under the
Clean Air Act to support a field citation program. In contrast, the Office
of Mobile Sources pioneered; a field citation program using a short-
form settlement agreement in lieu of administrative penalty authority
i
Lack of authority for delegating enforcement powers to inspectors;
inability or unwillingness to provide adequate training and incentives
for inspectors
Federal penalty policies and enforcement procedures that restrict ability
to use streamlined citation and appeals procedures
Reluctance of decision-makers to accept change
Federal focus on big enforcement cases that leads to the impression
among program staff that small cases are expendable or that a backlog of
minor cases is permissible
F
VIII. Initiatives to Overcome Barriers
Promote field citations through sales efforts, focus groups, or word of
mouth. Provide interested staff with "sales" material designed to
overcome psychological barriers to implementation and change.
Encourage and train federal program managers to systematically study
the need for improved methods for enforcing regulations. For
example, managers that apply total quality management analysis to
examine program shortcomings in addressing violations, enforcing
against violators, or reducing time and resource expenditures may find
that field citations would be an effective method for improving
performance in these areas.
Create ways to overcome structural barriers to implementation, such as
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the delegation of authority to inspectors, or the conflict between
traditional enforcement measures (which reward programs for large
numbers of "big" enforcement cases and large penalties) and the use of
field citations (which are effective but address minor violations and
assess smaller penalties).
Provide ways for programs to overcome some of the practical
difficulties of implementing field citations by providing programs with
tools for implementation, such as inspector training in field citation
techniques.
EPA may be able to assist states in obtaining administrative penalty
authority by taking every legislative and administrative opportunity to
include the requirement that states obtain administrative penalty
authority as a condition for state program approval.
IX. Plan of Action
Immediate
- Educate Agency offices about successes using field citations.
- Develop Agency-wide list of interested and appropriate programs for field
citations.
- Determine specific program needs for implementation.
- Study barriers to federal and state use of field citations and identify methods
for removing each barrier.
Near Term
- Pilot field citation programs in several federal and state programs.
- Work with EPA and DOJ attorneys to identify and overcome real and
perceived barriers to the use of field citations. Determine and identify which
classes of cases are appropriate for field citations and which require
traditional enforcement.
Long Term
- Provide training in field citation techniques.
- Alter state program approval requirements and penalty and enforcement
policies to allow greater flexibility in a program's approach to enforcement.
- Revise measurement and reporting criteria for enforcement.
Recommendations
"Get the word out" about field citations to environmental enforcement
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programs.
Provide interested programs with names of contact persons in programs that
use field citations; show "who's doing it".
Develop identifiers that will help EPA target the types of programs that will
benefit from using field citations.
Get programs to systematically study enforcement problems and areas for
improvement (using total quality management analysis) and then explore the use
of field citations to improve program performance. Other expedited techniques
may be identified as well.
Examine structural and practical barriers to the implementation of field
citations and work to eliminate those barriers.
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APPENDIX I
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APPENDIX I
Field Citations - Supporting Program Examples
California's Department of Health Services initiated a field citation pilot
program in 1989 to enforce RCRA Class II violations (i.e., less serious violations).
The program was implemented without acquiring administrative penalty authority.
Program officials simply streamlined the corrective action order and complaint for
penalty procedures into a ticketing process. Thus, they did not have to undergo the
difficult task of obtaining authority in order to proceed with field citations. Officials
have noted that before the ticket was developed, "minor" violations took about 592
hours of staff time per case to resolve, and after the ticket, total staff time was
reduced to 7 to 10 hours per case.
Inspectors schedule informal conferences when field citations are issued in the
field. Respondents can argue their case at the informal conference or request a
formal hearing. Most cases are resolved at the informal conference stage, thus
avoiding complicated court proceedings.
New Jersey Department of Environmental Protection issues summons on site
to violators of RCRA Class II violations. The program has been effective in
promoting compliance. New Jersey officials hope to expand the program to cover
violations of air and water regulations, as well as RCRA Class I violations.
EPA's Office of Mobile Sources' federal inspectors issue $200 citations for fuel
dispenser nozzle violations. After instituting the field citation program, the
program was able to eliminate a large backlog of enforcement cases that had
developed. Average case completion time shrank from 3 months to 30 days under
the field citation program, and only 1 to 2 cases are prosecuted in court annually; the
remaining cases are resolved using field citations.
Dade County, Florida's Department of Environmental Resources
Management's inspectors issue citations for many code violations in virtually all of
its various environmental programs. Overall, greater than 90% of all violators
comply within a month's time. Program directors believe the field citation
program provides the Department with high visibility within the regulated
community and allows program staff to address a greater number of violations and
to concentrate on more serious violations.
The District of Columbia's Department of Civil Infractions uses field citations
to enforce a number of environmental and health violations and is currently in the
process of expanding the use of field citations to its new programs, such as
underground storage tanks. The District of Columbia's inspectors have used Civil
Infraction Notices for two years and have found that the compliance rate has shown
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a significant increase. In fact, inspectors no longer encounter some violations that
used to be the most prevalent problems.
A number of Region VII environmental programs (hazardous waste, water
and toxic substances) use field citations to address relatively minor violations in
their enforcement programs. These notices, variously entitled notices of violation
(RCRA), notices of non-compliance (PjCBs), and notices of deficiency (NPDES), serve
the same purpose of notifying the violator of violation, requiring corrective action
within a set period of time, and instructing the violator to submit evidence of
compliance. If potentially more serious violations are uncovered, the file is
reviewed in the office before the field citation or more serious enforcement action
issues. Of the hundreds of citations issued annually, the vast majority are quickly
closed. Only a few must be followed up with civil citations and most of these are
settled before administrative hearings.
Region V PCB field inspectors isjsue field citations for a variety of minor, clear-
cut violations. Region V staff attribute their success with field citations (despite
relatively complex regulations) to clear direction from the program managers and
strong inspector training. Inspectors have a clear idea of what they should cite and
what should be reviewed for more serious action before they arrive in the field,
thus avoiding ambiguity and inconsistency. Region V also occasionally stipulates
that states must adopt field citation techniques in their cooperative grant
agreements in order to increase the program's enforcement presence in the field.
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APPENDIX II
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APPENDIX II
A Systematic Approach to Create a Better Climate for Innovation in Enforcement
A. Identify major existing enforcement problems.
B. Three-pronged approach to enforcement:
1. Traditional enforcement;
2. More "high publicity" actions; and
3. Innovative approaches.
C. List examples of types of innovative approaches which have proven
effective.
D. Focus on the enforcement "customers'" needs:
1. Identify who the enforcement customers are (e.g., Regional
attorneys, judges, DOJ,OE, RPMs, State officials, etc.).
2. Identify their enforcement needs:
a. What do they indicate are their needs?
b. Work together with customer to do a TQM analysis of their
needs (fish-boning, etc.).
3. Do a TQM analysis with the customer on potential innovative
solutions, (e.g., process flow-charting, etc.).
E. Create the tools that the innovative approach requires
1. Convene workgroup of experts and potential customers;
2. Study history and potential uses of new tools;
3. Develop manual on how to set up new innovative approach;
4. Develop training manuals, as required; and/or
5. Develop "sales" brochures.
F. Develop a strategy on how to communicate with and best sell the new
innovative enforcement ideas to potential customers.
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APPENDIX I
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-------
APPENDIX I
Field Citations - Supporting Program Examples
California's Department of Health Services initiated a field citation pilot
program in 1989 to enforce RCRA Class II violations (i.e., less serious violations).
The program was implemented without acquiring administrative penalty authority.
Program officials simply streamlined the corrective action order and complaint for
penalty procedures into a ticketing process. Thus, they did not have to undergo the
difficult task of obtaining authority in order to proceed with field citations. Officials
have noted that before the ticket was developed, "minor" violations took about 592
hours of staff time per case to resolve, and after the ticket, total staff time was
reduced to 7 to 10 hours per case.
Inspectors schedule informal conferences when field citations are issued in the
field. Respondents can argue their case at the informal conference or request a
formal hearing. Most cases are resolved at the informal conference stage, thus
avoiding complicated court proceedings.
New Jersey Department of Environmental Protection issues summons on site
to violators of RCRA Class II violations. The program has been effective in
promoting compliance. New Jersey officials hope to expand the program to cover
violations of air and water regulations, as well as RCRA Class I violations.
EPA's Office of Mobile Sources' federal inspectors issue $200 citations for fuel
dispenser nozzle violations. After instituting the field citation program, the
program was able to eliminate a large backlog of enforcement cases that had
developed. Average case completion time shrank from 3 months to 30 days under
the field citation program, and only 1 to 2 cases are prosecuted in court annually; the
remaining cases are resolved using field citations.
Dade County, Florida's Department of Environmental Resources
Management's inspectors issue citations for many code violations in virtually all of
its various environmental programs. Overall, greater than 90% of all violators
comply within a month's time. Program directors believe the field citation
program provides the Department with high visibility within the regulated
community and allows program staff to address a greater number of violations and
to concentrate on more serious violations.
The District of Columbia's Department of Civil Infractions uses field citations
to enforce a number of environmental and health violations and is currently in the
process of expanding the use of field citations to its new programs, such as
underground storage tanks. The District of Columbia's inspectors have used Civil
Infraction Notices for two years and have found that the compliance rate has shown
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a significant increase. In fact, inspectors no longer encounter some violations that
used to be the most prevalent problems.
A number of Region VII environmental programs (hazardous waste, water
and toxic substances) use field citations to address relatively minor violations in
their enforcement programs. These notices, variously entitled notices of violation
(RCRA), notices of non-compliance (PCBs), and notices of deficiency (NPDES), serve
the same purpose of notifying the violator of violation, requiring corrective action
within a set period of time, and instructing the violator to submit evidence of
compliance. If potentially more serious violations are uncovered, the file is
reviewed in the office before the field citation or more serious enforcement action
issues. Of the hundreds of citations issued annually, the vast majority are quickly
dosed. Only a few must be followed up with civil citations and most of these are
settled before administrative hearings.
Region V PCB field inspectors issue field citations for a variety of minor, clear-
cut violations. Region V staff attribute their success with field citations (despite
relatively complex regulations) to clear direction from the program managers and
strong inspector training. Inspectors have a clear idea of what they should cite and
what should be reviewed for more serious action before they arrive in the field,
thus avoiding ambiguity and inconsistency. Region V also occasionally stipulates
that states must adopt field citation techniques in their cooperative grant
agreements in order to increase the program's enforcement presence in the field.
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APPENDIX II
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APPENDIX II
A Systematic Approach to Create a Better Climate for Innovation in Enforcement
A. Identify major existing enforcement problems.
B. Three-pronged approach to enforcement:
1. Traditional enforcement;
2. More "high publicity" actions; and
3. Innovative approaches.
C. List examples of types of innovative approaches which have proven
effective.
P. Focus on the enforcement "customers'" needs:
1. Identify who the enforcement customers are (e.g., Regional
attorneys, judges, DOJ, OE, RPMs, State officials, etc.).
2. Identify their enforcement needs:
a. What do they indicate are their needs?
b. Work together with customer to do a TQM analysis of their
needs (fish-boning, etc.).
3. Do a TQM analysis with the customer on potential innovative
solutions, (e.g., process flow-charting, etc.).
E. Create the tools that the innovative approach requires
1. Convene workgroup of experts and potential customers;
2. Study history and potential uses of new tools;
3. Develop manual on how to set up new innovative approach;
4. Develop training manuals, as required; and/or
5. Develop "sales" brochures.
F. Develop a strategy on how to communicate with and best sell the new
innovative enforcement ideas to potential customers.
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XI. ALTERNATIVE DISPUTE RESOLUTION
i
I. Definition
Alternative Dispute Resolution (ADR) consists of processes other than
adjudication for resolving disputes.; These processes include:
Mediation / Conciliation - Facilitation of a negotiation by neutral 3rd-party
professional.
(1) Parties retain power to decide issues; outcome of discussions non-
binding
(2) Voluntary process
i
(3) Party-selected outside faklitator, often with specialized subject matter
expertise
i
(4) Mutually acceptable agreement sought
Settlement Judge - Facilitation of a negotiation by a court appointed neutral
jurist. |
(1) Parties retain power to decide issues; outcome of discussions
nonbinding
I
(2) Voluntary or court mandated process
(3) Mutually acceptable agreement sought
i
Fact-Finding - Determination by a neutral 3rd party of issues specified by
parties. ;
(1) Parties retain power to decide issues; outcome of fact-finding
nonbinding without agreement of parties.
(2) Voluntary and non-binding, but may be admissible
(3) Parties select a 3rd-party neutral with specialized subject matter
expertise.
(4) Informal procedures; investigatory process or arbitration-type setting
!
(5) Results in report or testimony to parties
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(6) Useful in narrowing factual or technical issues in dispute
Arbitration - Formal hearing before a neutral 3rd-party decision-maker.
(1) Party-selected 3rd-party arbitrator, usually with specialized subject matter
expertise.
(2) Procedural rules usually set by arbitrator or parties
(3) Scope of issues to be decided by arbitrator determined by parties
(4) Voluntary; can be binding or non-binding at option of parties
Mini-trial - Neutral 3rd-party monitored trial-like presentation of each party's
position regarding dispute to ultimate decision-makers
(1) Parties retain power to decide issues
(2) Voluntary and non-binding
(3) 3d-party neutral advisor, usually with specialized expertise in subject
matter of dispute, sits as 'judge' to advise parties regarding possible
court rulings. Third-party neutral also runs mini-trial process
(4) Procedures and scope of issues set by parties and neutral advisor
(5) Opportunity for each side to present best case arguments supporting
results in its favor
(6) Useful in evaluating both sides of a cases
II. Scope of Potential Use
* Alternative means of dispute resolution have long been utilized in the
private sector to resolve contractual and commercial disputes.
• Substantial potential exists for use in the resolution of disputes which
arise in the context of enforcement cases under all statutes
administered by EPA.
• Substantial potential exists for increasing the efficiency of enforcement
negotiations proceedings.
• Substantial potential exists for use to expedite resolution of costs
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reimbursement actions through use of arbitration under Superfund.
j • •
Substantial potential exists for decreasing EPA and judicial resources
expended in enforcing the technical provisions of consent agreements
by providing for resolution of future implementation disputes through
ADR.
III. Types of Benefits
Provides increased enforcement case efficiency at time of expanding
enforcement responsibilities and respective increasing caseload.
Enhances ability of Agency to process increased number of enforcement
cases. I
Allows enforcement staff the opportunity to concentrate on
substantive aspects of actions instead of being overwhelmed by
complex negotiation process.
Lowers average time for resolution of complex enforcement cases
which are not readily addressed through traditional enforcement
negotiations. I
I
Lessens burden on federal judicial/administrative law system caseload.
IV. Limitations
ADR should not be utilized in any civil action in which a negotiated
settlement is not an appropriate outcome (e.g., judicial precedent is
desired).
The ability of the Agency to effectively utilize ADR professionals is
limited by the present lack of training and experience with ADR by
EPA and DOJ staff. This leads to a reluctance on the part of staff to use
ADR processes in situations where it could prove useful to the
enforcement process.
It is the stated position of the Attorney General that the U.S. favors the
use of alternative dispute resolution methods such as minitrials,
arbitration and mediation. This preference is balanced, however,
against the responsibility of the Attorney General, as ultimate legal
official of the U.S., to ensure that settlements of liability for violations
of federal law are in the public interest. Therefore, there is a
presumption against the use of ADR processes which are binding
upon the U.S. to resolve ultimate issues of statutory liability unless
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such authority is specifically granted by statute (e.g., CERCLA small
cost recovery cases).
• The Agency's experience in the use of ADR indicates that it is crucial to
the effective resolution of protracted disputes that the appropriate ADR
process be matched with cases ripe for ADR assistance. (See, ADR Case
Selection Criteria, Section HI of the August 1987 ADR Guidance, cited
below)
V. Current Experience
In order to establish the practice of ADR usage in EPA enforcement activities,
the Agency established a national ADR enforcement program in 1987.
On August 14,1987, the Administrator issued "Guidance on Use of Alternative
Dispute Resolution Techniques in Enforcement Actions" (ADR Guidance). This
Agency-wide guidance establishes a preference for the use of ADR in appropriate
cases. The guidance provides a basic education in ADR processes, suggests criteria
for selection of cases for ADR assistance and of ADR professionals, establishes
funding for employment of ADR professionals, and describes procedures for
approval of cases for ADR assistance. Model ADR agreements and procedures for
conduct of ADR processes are also included. As a pilot project in the use of ADR
processes, the Administrator requested that each Regional Administrator nominate
cases for ADR assistance.
Issuance of the ADR Guidance has been followed by an ongoing effort to
educate Agency personnel about the advantages of ADR and to solicit appropriate
cases for ADR assistance.
The Assistant Administrator has assigned two senior staff attorneys with
extensive experience in ADR and negotiations, David C. Batson (OE) and Richard
Robinson (OWPE), as ADR Coordinators to oversee guidance implementation and
funding. The Agency has established a $500 Million fund, administered by OE-
Waste, for the employment of ADR professionals to assist EPA staff in the
resolution of CERCLA related disputes.
The ADR Coordinators provide regular trainings on ADR techniques, and
work to establish active ADR enforcement programs for regional staff and
management. In addition, the ADR coordinators act as resources and ADR experts
to assist regional and HQ staff in the selection of cases for ADR assistance and the
employment of ADR professionals.
The Agency, in a joint effort with the Administrative Conference of the United
States (ACUS), has developed a nation-wide roster of ADR professionals. The
roster, to be implemented by ACUS with initial funding from EPA, will serve as an
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important resource to EPA and other parties seeking to use ADR processes in
disputes involving federal agencies.
To date, the Agency has processed 20 nominations from regional offices for use
of ADR in Agency enforcement actions. ADR processes have been, or are currently
being, used in 12 of those actions. Additionally, ADR provisions have been
included in 8 consent agreements entered by the Agency in settlement of
enforcement actions as a mechanism for resolution of future agreement
implementation disputes. \
The Agency has successfully I used ADR processes in several enforcement
related activities:
i
Settlement Mediation - U.S. v Citv of Sheridan (Wyoming)
This civil action concerning violations of the Safe Drinking Water Act, involved
numerous parties with a long history of mistrust and protracted negotiations.
Parties included federal, state, and local governments, industry and local citizen
organizations. After extended unsuccessful negotiations between EPA and
responsible local government officials, the parties employed a professional
mediator to facilitate settlement discussions. The mediator expanded discussions to
include all affected citizens and industry, allowing for a full review of the issues
preventing settlement by the local government. A settlement agreement was
obtained shortly after the mediator became involved.
i . ' .
Fact-Finding Settlement Provision - U.S. v Union Carbide Corp.
This civil action was initiated for violations of reporting requirements of the Toxic
Substances Control Act. As part of the settlement agreement, the Agency included a
provision which provided that factual disputes that arose over the company's
compliance with statutory reporting requirements would be forwarded to a neutral
panel of experts selected by the parties for an opinion prior to initiation of civil
action for penalties by EPA. EPA agreed to accept the factual determination of the
panel in deciding whether enforcement action was warranted.
Private Industry Mediation - (e.g., Clean Sites Inc.)
Agency enforcement actions under the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) often involve sites where liability for
site cleanup costs is shared jointly and severally by numerous companies. Some
hazardous waste sites involve over 200 defendant companies, each equally liable
under CERCLA for the full cost of site cleanup. This multiplicity of defendants
makes settlement negotiations extremely difficult, if not impossible. To assist the
numerous liable companies to reach agreement on a common negotiating position
and their relative monetary liability, several private firms provide mediation
4-108
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expertise to industry. ADR services generally include mediation of the negotiations
between the numerous liable companies and data evaluation efforts to
appropriately allocate the costs of cleanup. In many cases, the employment of such
mediation services by "PRPs" is crucial to the Agency's ability to complete
settlement negotiations without lengthy court procedures.
Small Claims Arbitration - CERCLA Section 122(h)(2)
An area of federal enforcement endeavor which has great potential for benefit from
the use of ADR is statutory claims for monetary recompense which are of amounts
too small to justify the expenditure of litigation expenses to obtain payment. The
use of a binding arbitration process to determine the appropriate amount of such
claims would save federal resources while expediting the resolution of claims. The
Agency, as authorized in CERCLA Section 122(h)(2), may utilize arbitration in small
claim actions under CERCLA reimbursement actions. CERCLA claims arbitration
procedures are codified at 40 CFR 304:.
RCRA SitingXSite Cleanup Dispute Mediation
The siting of hazardous waste landfills and incinerators required by RCRA, and the
cleanup of contaminated sites under statutory enforcement actions, is a matter of
extreme sensitivity and public concern. A siting or cleanup decision often raises
extreme public opposition and desire for involvement in decisions affecting the
site. Unfortunately, these situations often involve emotional and divisive positions
which make discussions difficult. The Agency has found that employment of ADR
professionals by the parties to such a dispute is extremely useful in facilitating
discussions. This approach has been used by the Agency and state officials with
success at several sites.
Administrative Settlement Judges
The use of jurists as settlement mediators in filed civil actions has been used with
great success by several state and district courts. In an effort to expedite the
resolution of cases filed with the EPA administrative court system, the Agency is
initiating a program of allowing Administrative Law Judges (ALJ) to require
mediation of appropriate disputes prior to hearing. Negotiations are mediated by
an ALJ not associated in any way with the substance of the dispute. EPA is currently
scheduling training for ALJ jurists in ADR techniques.
VI. Potential for Expansion
• Given the limited use of ADR to date, substantial potential exists for
expanded use of nonbinding ADR techniques to assist Agency
enforcement negotiations under all statutes administered by the
Agency.
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• CERCLA small cost recovery cases provide a unique opportunity for
experimentation with arbitration for the expeditious resolution of
reimbursement actions. i
• Substantial potential exists for expanded use of ADR provisions in
settlement agreements to provide expeditious resolution of disputes
over implementation of technical provisions.
• Substantial potential exists for expansion of the use of ADR
professionals to, assist PRPs in the resolution of internal PRP
committee disputes, thereby allowing expedited resolution of EPA
enforcement actions.
i
VII. Barriers to Expanded Implementation
f
• Lack of training and experience of EPA/DOJ staff in the use of ADR
techniques and professionals
• Lack of internal incentives (resource allocations, audit criteria, etc.) for
Regional offices to utilize ADR
• Lack of coordination between EPA and other federal and state
enforcement agencies regarding the use of ADR
i
• Lack of understanding and agreement between EPA and the regulated
community regarding the appropriate use of ADR in enforcement cases
• Lack of understanding in enforcement offices that ADR is standard
operating procedure for Agency enforcement actions
i
• Lack of specific legislative direction authorizing the use of ADR in
federal agency practice
VIII. Initiatives to Overcome Barriers
At the direction of former Assistant Administrator Richard Mays and the
current Assistant Administrator, OE has initiated several initiatives to foster and
routinize the use of ADR in Agency civil enforcement actions as requested by the
Administrator in the August 1987 ADR Guidance and subsequent memoranda.
Activities to date include:
• Regional pilot projects in the use of ADR in enforcement actions;
• Establishment of a national roster of ADR neutrals;
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• Assignment of OE and OWPE senior staff to serve as Coordinators of
the ADR Enforcement Initiative;
• Establishment of a funding mechanism for the use ADR professionals
in CERGLA cases; and
• Training of Agency personnel in ADR techniques and the
establishment of effective regional ADR programs.
At the direction of the Assistant Administrator, the OE ADR Coordinators
developed an ADR Development Workplan to fully implement use of ADR in
Agency civil enforcement actions. The Workplan, which was approved by the
Assistant Administrator in November 1989, is currently being implemented by the
ADR Coordinators.
IX Plan of Action
Continue implementation of the ADR Development Workplan as approved by
the Assistant Administrator.
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XII. COMPLIANCE MONITORING
I. Definition
Compliance monitoring is any activity undertaken by EPA to insure that a
regulated entity is in compliance with a regulation, permit, or other standard. This
could include, but is not limited to, reporting, testing, and notifying requirements
which are overseen, audited, or reviewed by the Agency. As is is most commonly
used in the Agency, it involves self-monitoring and reporting, notifications and
inspections.
II. Scope of Potential Use
• Caia be employed in any instance where the Agency imposes a
standard or regulatory requirement.
• Increase use of self-monitoring data, especially submittal of data in an
electronic format that is easily screened.
• Increase use of continuous or on-line monitors.
• Run a. citizen awareness campaign and encourage tip offs of violations.
Institute an enforcement hotline. Publicize and reward those who
help the Agency find and prosecute violators.
• Include Operations and Maintenance (O&M) requirements in permits
to help ensure compliance and treat these violations as equal in
importance to emission/discharge violations.
• Provide inspectors with more information in the field through the use
of portable computers which! could link up to national data bases.
Computers would also allow report preparation in the field.
• Make more use of statistical approaches for targeting inspections and,
additionally, perform surprise inspections.
• Vary the frequency of inspections based on the number of violations
detected and the compliance history. Begin with a given frequency, if
no violations are detected, then decrease the frequency or conversely, if
violations are detected, increase the frequency of inspection.
• Improve communication among Federal, State/ and local
governments. Share successful strategies and other information
among agencies. Consider using an electronic "newsletter".
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Improve ability of Federal inspectors to support State and local
inspectors and encourage consistent inspections among the various
levels of government. Maintain Federal skill level in the field.1
Increase the number of inspectors trained to perform multi-media
inspections and with multiple program knowledge. Consider the
organizational structure needed to support this.
Assign inspectors to cases - from planning the inspection through the
enforcement action - including planning the remedy.
Streamline inspection procedures to target the most critical violations.
III. Type of Benefits
Receiving self-monitoring or other data in an electronic format allows
a quicker, more accurate, and less resource intensive screening thereof.
The computer can also generate Notices of Violation or notification
letters to other levels of government immediately.
Using continuous monitors provides a constant check on effluents and
allows faster detection of and quicker response to non-compliant
levels.
An educated citizenry with a means and motive to monitor their
environment provides the Agency with more eyes and ears, and in a
sense, expands the inspector force.
Consistent operation and continuous maintenance of equipment
assures fewer breakdowns and more accurate response to deviations,
overall providing better compliance with a permit and less pollution
entering the environment.
Inspectors with electronic links to national data bases can perform
more informed inspections and better target potential problem areas.
Preparing reports in the field allows the inspector to record the
information while it is still fresh.
Statistical, and other targeted approaches to inspections, coupled with
surprise inspections provide for maximum effectiveness and most
efficient use of inspector resources while providing a maximum
deterrent to non-compliers. Also varying frequency of inspection
based on compliance history makes better use of resources, as does the
See the attachment, "EPA Inspector Profile", for specific information on inspectors.
4-113
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ability to detect violations in multiple programs while on an
inspection.
• Assigning an inspector to a :. case provides consistency to the entire
enforcement process as well as educating the inspector as to what
he/she can do better to support the enforcement actions. It also
increases professionalism among the inspectors and improves morale.
IV. Limitations
Limitations to the implementation of these suggestions fall under several
categories; resources ($ and FTE), statutory and regulatory requirements, support
structures (data bases, software, etc.), and training.
V. Current Experience
i
The Agency has experience with all of these suggestions in some manner or
program. The challenge is to apply them successfully to all programs where
compliance monitoring is conducted.
VI. Barriers to Expanded Implementation
• The increased use of self-monitoring data and on-line monitors, and
inclusion of O&M requirements in permits may require regulatory,
statutory, or permit modifications.
* Improving the effectiveness and efficiency of inspectors/inspections
will require time and money for training, money to purchase hardware
and software, and management/ organizational structure changes to
support inspectors (i.e., organizational placement of multimedia
inspectors and enforcement teams, etc.).
I
I
VII. Initiatives to Overcome Barriers
i
• Support the Enforcement Advocacy Institute and other program
specific training for EPA and State/local inspectors in order to provide
necessary training.
• Support development of software to screen self-monitoring data.
• Support development of hardware/software to link HQ data bases to
each other and to inspectors ir> the field.
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Follow success of Regional Enforcement Pilot Projects to determine
which types of targeting approaches are most effective and encourage
their use.
Develop an electronic newsletter or bulletin board to share
information and successes among various agencies and levels of
government.
Develop an advertising campaign to educate the public and encourage
them to report violations. Establish a hotline to accept the calls.
4-115
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ATTACHMENT
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV - ATLANTA, GEORGIA
DATE:
SUBJECT!
FROM:
TOi
Self-Monitoring and the Clean Water Acts A Model for
the Clean Air Aet
Paul S. Reinermann, Environmental Engineer
Compliance Technology Section
Self-Monitoring Workgroup
(Addresses on last page)
As discussed in our March 6, 1990, conference call, I have contacted
Mr. Pete McGmrry of Region IV'• Water Division to ascertain their
•elf-monitoring and enforcement program. In general, self-monitoring
is the backbone of their enforcement program and oversite by
Headquarters to ensure that their enforcement policies are followed
does exist.
SBU^MONITORING AND TOB CUBAN WATER ACT. ; "•
The water program has promulgated self-monitor ing test procedures to
determine compliance vith the permitee's effluent limitations.
Excluding effluent flowrate, temperature and ph monitoring, the
•elf-monitoring data does not represent a continuous sampling test
procedure but instead represents a weekly, daily or hourly grab
•ample. Bach permit specifies the self-monitoring and reporting
eequirements for the discharger. OMB approved forms are provided to
the discharger for periodic subaittal to the permit enforcement
.agency.
Enforcement of permit limitations and identification of violators are
dictated by a dynamic document entitled the Enforcement Management
System (SMS). A portion of this document is enclosed. The purpose
of the EMS is to provide " a systematic administrative approach to
compliance monitoring and enforcement with the objective of achieving
u consistent, uniform national posture in the implementation of the
National Pollutant Discharge elimination System (NPDBS) program...".
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-2-
Tfa« EMS provide* a system foe translating compliance information
into timely and appropriate enforcement actions in a manner to
achieve a swift return to compliance, to protect water quality
and to ensure that dischargers receive fair treatment under the
law. Basically/ more severejpermit violations are dealt with
more severe enforcement action* as indicated in the tables of
the EMS entitled VIOLATION REVIEW ACTION CRITERIA and
ENFORCEMENT RESPONSE. Pleas® note that these tables indicate
that some degree of noncompliance is tolerated.
STATUS OF SELF-MONITORING IN THE AIR PROGRAM
The air program has a much different approach to self -monitor ing
than th« water program. Originally, measurement of air
pollution was accomplished toy short-term, wet test methods which
became the basis for our regulations and sole basis for
enforcement of the emission standards. Eventually, C&Ms were
developed and subsequently required to be installed on major air
pollution sources. However, j these CEMs were not promulgated to
be the technique to determine compliance with the emission
standard except in a very feW cases. Since most CEMS are not
the compliance method but juet inconclusive proof that an
•emission standard may have been violated, CZM data does not have
the importance of water self -monitoring data. The .oniy
difference between the two boing the difference in th«
regulations.
Self-monitoring in the air program also includes monitoring of
process and air pollution control device (APCD) parameters. In
most cases , process and APCD monitoring data is not submitted to
•any enforcement agency but ia required to be kept on file «t the
uourca for review. This type of self-monitoring data very
neldoro becomes the origin of any significant enforcement action
because the type of violation would be procedural in nature.
HOW W CAM QQ BETTER
:Cn order to upgrade the status of self -monitor ing data within
the current air program structure, several steps should be
undertaken such ast
1. Headquarters should prescribe meaningful SFMS commitments
regarding implementation of their self -monitoring related
policies and guidance.
2 . Enforcement guidance should be revised to state that as
part of the resolution for ail enforcement cases, source owners
should be required to prepare an 0*M manual which must address
all required self -monitoring data. The basic principal should
be that as the self-monitor indicates that the monitored
parameter or pollutant is near ing its limitation, then
corrective action should be taken before a violation occurs.
4-132
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-3-
3. All new permits, especially PSD and NSR permits, should
required sources to install OEMs, where possible, which are
considered the compliance method for enforcement of the
emission standards and to prepare an O&M manual which must:
address all required self-monitoring data. Theae permits
should also state that if certain process and/or APCD
parameters are exceeded, then these exceedances would be
considered violations of the related emission standards.
where CBMB are not available or too costly for monitoring
pollutants, then annual stack testa should be required.
4. We should require sources to submit self-monitoring data in
a standardised format and should revamp the CBNS Subset so that
the self-monitoring data is properly reflected. For example,
leak detection reports required to be submitted under NSPS,
Subpart W and NtSHAP, Subpart J cannot be inputted or
retrieved in a manner to reflect the requirements.
The new amendments to the Clean Air Act should allow us to
promulgate regulations which allow self-monitoring to be as
important to the air program as it is to the water program. For
•example, the acid deposition regulations will rely heavily upon
self-monitoring for enforcement of the annual SO* and MOX
.allowances. The Title 4 permitting program could Incorporate
items 3 and 4, above. Part, of the new enforcement provisions
under Title 6 could include a document such as water's BMS.
4-133
-------
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4-136
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XIII. LIST OF REGIONAL AND HEADQUARTERS CONTACTS
Compliance Monitoring
R I
R II
R in ;
R IV
R VI
R VII
R IX
OA SSCD
OA Mobile
ow
OFA
AEC Air
OCE
R I
R II
R III
R IV
R V
R VI
R VII
R IX
OA SSCD
OA Mobile
OW
OFA
AEC Air
AEC Water
OCE
R I
R II
R III
R IV
R V
R VI
R VII
R IX
OA SSCD
OA Mobile
OW
OFA
AEC Air
Carol Wood
Barbara Metzger
Robert Kramer
Paul Reinermann
Bob Reeves
Martha Steincamp
Fred Leif
Howard Wright
Marcia Ginley
Hans Waetien
Jim Edward
Justina Fugh
Bruce Bellin
Innovative Remedies
Hugh Martinez
Walter Mugden
Robin Cole
Rob James
Michael Smith
Jim Turner
Martha Steincamp
Fred Leif
Rich Biondi
Rich Ackerman
Matt Charsky
Bill McGovern
Charles Gar low
Susan Gary Watkins
Bruce Bellin
617-860-4320
264-4019
597-8173
257-2904
255-6486
276-7010
484-1364
308-8668
321-6485
260-4833
260-3270
260-2864
260-9662
835-4526
264-1618
597-4914
257-2641
886-6823
255-2125
276-7010
484-1364
308-8666
260-2643
260-9805
260-5052
260-7088
260-2856
260-9662
Multimedia Enforcement
Sam Silverman
Walter Mugden
Peter Schaul
Bill Phillips
Michael Smith
Bennett Stokes
Martha Steincamp
Fred Leif
Mark Seigler
Marc Hilson
Debbie LeBow
Jim Edward
Charles Gar low
835-3443
264-1018
597-8334
257-2641
886-6823
255-2120
276-7010
484-1364
308-8673
260-2938
260-6770
260-3270
260-7088
4-137
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Pollution Prevention
R I
R II
R III
R IV
R V
R VI
R VII
R IX
OA SSCD
OA Mobile
OW
AEC Air
OCE
R I
R II
R III
R IV
R V
R VI
R VII
R IX
OA SSCD
OA Mobile
OW
OFA
AEC Air
R I
R II
R III
R IV
R V
R VI
R VII
R IX
OA Mobile
AEC Water
OCE
Tim Williamson
Walter Mugden
James Hemby j
Betsy Shaver j
Phyllis Reed |
Jim Turner :
Donald Toensijng
Fred Leif :
Mark Siegler •
George Lawrerice
Peter Siebach
Charlie Hendo'n
Bruce Bellin j
i
i
Field Citations
Tom Who1ley !
Karen Reed
Gary Bryant |
Betsy Shaver;
John Connellj
Bob Reeves •
Bill Fairless
Fred Leif ;
Maimi Miller '•
Ross Ruski ;
Reggie Cheatham
Jim Edward I
Rachel Hopp J
835-1154
264-1019
597-8327
257-7109
886-6018
255-2125
276-7446
484-1364
308-8673
260-4412
260-9849
260-8542
260-9662
835-3233
264-6195
304-233-1271
257-7109
886-6832
255-6486
276-3881
484-1364
308-8666
260-4410
260-9360
260-6920
260-2859
Criminal Enforcement
Andy Lauterback 835-3436
Gary Nurkin 264-5341
Bob Boodey 597-0122
Mike Newton j 257-2641
David Taliaferro 886-0815
Katherine McGovern 255-2110
Martha Steineamp 276-7010
Fred Leif 484-1364
Marc Hilson 260-2938
Lourdes Bufill 260-8184
Bruce Bellini 260-9662
4-138
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Legal Tools
R I
R II
R III
R IV
R V
R VI
R VII
R IX
R X
OA Mobile
ow
OFA
AEC Air
AEC Water
OCE
R II
R III
R IV
R V
R VI
R VII
R IX
OA SSCD
OA Mobile
AEC Air
AEC Waste
R I
R II
R III
R IV
R V
R VI
R VII
R IX
OA SSCD
OA Mobile
OW
OPTS
AEC-Air
OCE
John Blunstein
Walter Mugden
Mike Vaccaro
Bill Phillips
Timothy Thurlow
Evan Pearson
Martha Steincamp
Fred Leif
John Hand 11
Irv Pickell
Rick Colbert
Jim Edward
Charles Gar low
Dave Drelich
Bruce Bellin
Alternative Dispute
Doug Blazey
Mike Vaccaro
James Sergent
Lynn Peterson
Mike Schulze
Robert Richards
Fred Leif
Ron Shafer
Cathy Clark
Charles Garlow
Bat s on/ Ac ke rman
Targeting
Larry Brill
Walter Mugden
Robin Cole
Tom Nesmith
Michael Smith
Randy Brown
Martha Steincmap
Fred Leif
Howard Wright
Ross Ruski
Jim Woolford
Mike Wood
Elliot Gilberg
Bruce Bellin
835-3446
264-1018
597-8914
257-2641
886-6625
255-2125
276-7010
484-1364
399-1260
321-6485
260-4015
260-3270
260-7088
260-2949
260-9962
Resolution
264-1017
597-8914
257-2256
886-0556
255-2110
276-7502
484-1364
308-8686
260-4412
260-7088
260-8173
835-3484
264-1018
597-4914
257-7109
886-6823
255-6745
276-7010
484-1364
308-8668
260-4410
260-8304
260-7835
260-7089
260-9662
4-139
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Contractor Listing
R I
R II
R I! I
R IV
R V
R VI
R VII
R IX
R X
OA SSCD
OW
OFA
AEC Air
AEC Water
OCE
Other:GAD
CLS:
Sharon Welles
John Dollimar
John Machita
Alan Dion
Steve Mendoza
Miles Schulze
William Ward
Fred Leif .
John Kami11
Jerry Kraus j
Rich Kozlowski
Jim Edward
Justina Fugh
Watkins/Bufill
Bruce Bellin
Frank Dawkins
Tracy Gibson
835-
264-
597-
257-
886
255-
276-
484-
399
308
260
260-
260-
260
260
260
260-
-3318
-5695
-8989
-2335
-6852
-2110
-7285
-1364
-1260
-8668
-8304
-3270
-2864
-4451
-9662
-8028
-8780
R I
R II
R III
R IV
R VI
R VII
R IX
OA SSCD
OA Mobile
OPTS
OFA
AEC Air
AEC Waste
AEC TOX
AEC Water
OCE
Environmental Auditing
Toni Bandrowicz 835-3316
Doug Blazeyi 264-1017
Lori Reynolds 597-8221
Drew Peake 257-3973
Bennette Stokes 255-2120
Martha Steincamp 276-7010
Fred Leif 484-1364
Ron Shafer 308-8686
Lawrence Andrews 260-4412
Mike Wood 260-7835
Jim Edward ' 260-3270
Charles Garlow 260-7088
Schive/Keplinger 260-3098
Mike Walker 260-8697
Susan Gary Watkins 260-2856
Bruce Bellin 260-9662
4-140
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ENFORCEMENT IN THE 1990's PROJECT
PROVIDING
COMPLIANCE
INCENTIVES/LEVERAGE
-------
WORKGROUP CONTRIBUTORS
DouglasR. Blazey
Allyn M. Davis
Bruce Diamond
Robert Heiss
Connie Musgrove
Commentators
\
i
BiliDickerson
Donna Fletcher
Terrell Hunt
Craig Johnson
Cheryl Wasserman
-------
ENFORCEMENT IN THE 1990's PROJECT
RECOMMENDATIONS OF THE WORKGROUP ON
COMPLIANCE INCENTIVE/LEVERAGE
I. Goals and Objectives of the Project
Our Workgroup sought to identify and develop proposals that would increase
the effectiveness of our existing enforcement resources. We recognize that the
traditional civil enforcement process is essentially linear with the addition of
technical and legal resources producing a proportionally greater set of enforcement
results. Our goal was to develop mechanisms that would serve to leverage our
enforcement resources so that proportionately greater levels of compliance could be
achieved -with the application of any given level of resources. This is not a new
theme for the Agency as many individuals have devoted great effort to enhance the
generally law abiding attitude of U.S. regulatees by increasing the deterrent effect of
our actions and encouraging compliance through various incentives. For example,
the significant and increasing commitment to the criminal program and our
commitment to enforcement communications are clearly intended to be major
disincentives to noncompliance. The TSCA self-confession program, various
"good actor" provisions included in our penalty policies, and regional compliance
recognition programs represent examples of incentives to compliance because they
encourage compliance by allowing appropriate penalty consideration for the
disclosing party, for good faith compliance efforts and for certain environmentally
beneficial activities and offer praise for those with solid records of performance.
Our Workgroup sought to identify innovative additions to the
incentives/disincentives arsenal. We have identified four concepts that we believe
can significantly aid the EPA in deterring noncompliance. These are the escalation
of environmental auditing to the baseline of expected performance with our civil
penalty policies and requests for injunctive relief being adjusted accordingly; the
increased use of the contractor listing and debarment/suspension programs; the
active recognition of the affirmative role of citizen enforcement; and the enhanced
use of the Agency's moral authority and public reputation to encourage compliance.
We also believe there are significant vehicles to increase the incentives to
compliance. These include the already mentioned suggested modifications to our
civil penalty policies and a carefully structured regional and national compliance
recognition or awards program. We also recommend continued consideration of
applying our technology transfer and education capabilities in direct aid of the
compliance/enforcement process.
5-1
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II. Process Leading to Recommendation
Our Work Group had five project leaders and five commentators. Each project
leader accepted responsibility for one or more of our six projects and prepared draft
white papers or activity reports that the other project leaders and commenters
reviewed. The Workgroup leader managed the overall process by suggesting work
schedules, targeting outputs and encouraging participation, and summarizing
results.
Douglas R. Blazey was project leader for identifying a possible field test of
regional leveraging in the context oft the regional enforcement pilot projects and for
developing the proposed cooperative enforcement pilot with citizens and other
non-government organizations (developed in conjunction with William J.
Muszynski, Deputy Regional Administrator, Region II and other Region II Division
Directors). Bruce Diamond analyzed the potential benefits of establishing
environmental auditing as the new "norm" for compliance performance and
sought the appropriate incentives and disincentives to achieve that result. Allyn M.
Davis, with the active support of 1 Randall Brown, Susan McKinney and other
Region VI staff, developed an integrated regional/national compliance recognition
program utilizing broadbased agency surveys and draft proposals to shape the first
agency-wide external compliance recognition proposal. Robert Heiss, with the
active support of Kathy Summerle^ and Susan Gary Watkins, reviewed existing
Agency systems to implement the contractor listing and debarment/ suspension
programs and recommended several enhancements to increase the compliance
incentive inherent in these powerful tools. Connie Musgrove assessed the potential
for using environmental education and technology transfer in direct support of
enforcement results. All project leaders benefited from the support of various EPA
colleagues and our Workgroup commentators, William Dickerson, Donna Fletcher,
Terrell Hunt, Craig Johnson (Department of Justice), and Cheryl Wasserman.
III. Summary of Recommendations
Although our Workgroup reviewed six separate projects, we believe that they
"work" together to deliver the meissage that EPA expects regulatees to actively
manage their environmental and pollution control activities or pay a higher price
in terms of penalties and public disapproval for their noncompliance. On the other
hand, we feel recognition and support are appropriate for those who seek a more
cooperative relationship with EPA and State environmental departments and
achieve consistent or even exemplary compliance with 6ur environmental laws.
Individual Recommendations relatejd to each project are listed in Section IV with a
more complete summary of each project appearing in the attachments to this report.
5-2
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IV. Recommendations
A. ENHANCE THE UTILIZATION OF ENVIRONMENTAL AUDITING
1. Declare EPA's expectation that environmental auditing be used by regulatees.
The good environmental manager should not be reactive to environmental
regulation or pollution control problems but should be proactively assessing,
maintaining and managing his or her production processes and pollution control
systems to avoid infractions of permits or accidental spills or other releases. The
performance of an environmental audit by a regulatee and the subsequent
utilization of that audit report to actively manage the firm's regulated conduct and
to maintain itself in compliance is to be expected of a properly managed facility.
2. Modify EPA penalty and enforcement policies to establish expectation that
certain entities utilize environmental auditing. A manager who awaits an
infraction before taking corrective action "allows" pollution and should be
penalized more severely than one who has utilized environmental auditing in an
effort to avoid noncompliance. If the proactive manager is to become the hew
norm, penalty policies must reflect this reality and impose heavier sanctions on
those who ignore the expectation that they conduct and utilize environmental
auditing. Implementation of this goal will occur as each program in consultation
with OE revises its penalty regulations and policies. Exemplary performance by a
regulatee in waste minimization or pollution prevention can receive additional
penalty reduction recognition. However, the new base penalty calculation would
assume the utilization of the environmental auditing process for the defined class
of regulatees.
3. Encourage active environmental managers "to go the next step" and self-
disclose their violations. An active manager seeks to prevent violations and to
resolve those violations that do occur. True resolution of a violation involves
paying the appropriate penalty. The existing TSCA self-confession program is a
good model for the other media programs to consider when reviewing their penalty
regulations and policies. Appropriate penalty recognition should be given to a
regulatee who voluntarily steps forward and discloses its self-discovered violation.
Because of valid concerns about ensuring the integrity of regulatees' conduct in this
process, we recommend that each media program initiate in at least one regulatory
area a pilot project to test and develop a self-disclosure concept similar to that used
in the TSCA program.
B. STRENGTHEN THE USE OF CONTRACTOR LISTING AND
DEBARMENT/SUSPENSION
1. Bring the contractor listing and debarment/suspension programs into the
mainstream of EPA's decisionmaking regarding available enforcement responses to
noncompliance. We need to distribute more widely within the Agency information
5-3
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regarding these powerful and currently available leveraging tools and prepare addi-
tional guidance to assist field enforcement units to identify priority candidates for
either Part 15 Contractor Listing or Part 32 Debarment and Suspension. This would
include guidance on evaluating a firm's compliance with court or administrative
orders that resulted in the listing to determine whether delisting is appropriate.
As a next step, the OE should prepare informational guidance that describes the
debarmerit/suspension sanction, the: statutory and regulatory prerequisites to its
application and, in general, its availability to EPA and to enforcement officials. This
guidance needs to be widely distributed to EPA enforcement officials.
2. Utilize as criteria for application of either Part 15 or Part 32 the utilization of
environmental auditing; available self-disclosure programs and proactive
abatement activities by the regulatee. Each enforcement tool, if networked, has the
potential to strengthen the impact or utilization of other programs. A willingness
to limit the application of these additional sanctions when a regulatee has utilized
environmental auditing, self-disclosure the violation or demonstrates proactive
abatement should encourage that environmentally beneficial conduct.
I •
As a next step the Agency needs to develop a policy interpreting provisions of
the contractor listing and debarment/suspension process with particular focus on
activity by the candidate, such as self-disclosure or voluntary implementation of
more active abatement procedures, i and its relevance to the Agency's listing or
debarment/suspension decision.
3. Leverage the enforcement potential of every litigation referral by reviewing
the violation history contained therein and screening for listing or
debarment/suspension candidates. Every litigation referral essentially contains a
review of all the information required to make a listing or a debarment/suspension
decision. Although it will take additional effort to organize and evaluate it for its
listing or debarment/suspension potential, the leveraging potential is substantial.
OE should provide guidance requiring an Agency assessment of the
applicability of these sanctions in connection with all enforcement actions.
4. Capitalize on EPA data that is better integrated to (1) identify cross-media
noncompliance and (2) identify the extent and significance of the financial
relationship between the government and a listing or debaraieitt/suspension
candidate. The Agency's data integration efforts can enhance the usefulness of
existing Agency or public data in making determinations relevant to the appropriate
case by case application of the contractor listing and debarment/suspension
sanctions. With more information readily available to the agency, application of
this sanction can become more routine and predictable, and its leveraging impact
will most effectively be utilized.
5-4
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5. Consider requesting legislative authority to expand the contractor listing
program to other media. Currently, the contractor listing program is limited to
those with air and water violations by virtue of the specific authorizations in the
CAA and CWA. EPA should consider requesting authority in RCRA, TSCA, EPCRA
and FIFRA to similarly "list" violating facilities in these media programs.
C COOPERATE WITH CITIZENS AND OTHER NON-GOVERNMENTAL
ORGANIZATIONS COMMITTED TO ENVIRONMENTAL COMPLIANCE
AND ENFORCEMENT
1. Field test or "pilot" a cooperative relationship with citizens and non-
governmental organizations (NGO's) to determine whether improved compliance
can be more efficiently achieved. EPA and State regulatory agencies seldom
coordinate enforcement activities with citizens utilizing the citizen suit authority
granted by Congress. There are examples of positive cooperation by citizens
identifying possible violations and reporting them to EPA or State agencies. Given
the limited resources of government and citizen organizations/ increased
coordination could yield increased enforcement impact just as do our own
geographic or industry special initiatives.
We recommend that either headquarters or a Regional office (in cooperation
with headquarters and the Department of Justice) pilot an effort to identify areas for
increased cooperation or coordination between government and citizen
organizations dedicated to increased compliance with our environmental laws. A
proposed Regionally based pilot is described in the attachment to this summary.
2. Endeavor to change what is often a negative relationship with citizens and
NGO's into a positive one. While some government departments inevitably have
conflicts with citizens and NGO's because of their Congressionally mandated,
multiple use, resource development and management functions, EPA is more
singularly devoted to environmental resource and human health protection.
Consequently, the potential for mutually reinforcing conduct is real.
We recommend that EPA attempt to foster this new, more positive
relationship, by exploring the opportunities for increased cooperation and
coordination discussed in #1.
D. FIELD TEST THE LEVERAGING BENEFIT OF UTILIZING A REGIONAL
ADMINISTRATOR'S AUTHORITY AND PUBLIC INFORMATION ACCESS
1. Utilize the Regional Administrator directly in the compliance and
enforcement process in order to encourage cooperative behavior and discourage
adversarial/litigative conduct. The EPA "norm" is that enforcement is targeted and
developed by program and legal specialists. As good as these specialists are at
developing a "case," EPA basically receives only linear benefits from the resources
5-5
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employed. A Regional Administrator with the visibility and credibility of his/her
office can command the attention of the senior executives in the regulated
community and fully engage their desire to avoid "gray or black hat" status in this
environmental age. Also, it is these'senior executives who must decide whether to
disengage from costly adversarial tactics (also very costly and inefficient for EPA) and
engage in active environmental management and cooperative relations with EPA.
i
2. Field test the leveraging potential of the Regional Administrator's active
involvement in the compliance/enforcement process. Although one can theorize
about the leveraging potential of a Regional Administrator's "jawboning," its actual
value could be assessed with some precision in the context of the Regional enforce-
ment pilot project Where a Region has selected a particular industry on which to
focus enforcement attention, it should be possible to see how many of the regulatees
respond to a direct invitation by the Regional Administrator to actively cooperate
with EPA in achieving compliance. Those that do not choose to cooperate will
receive the disapprobation of the Regional Administrator and the attendant public
consequences. Both Regions VI's and X's enforcement pilot projects appear
amenable to this field test, and both Regions are willing to participate.
We soon expect the proposed Regional enforcement pilots to take final shape
after review by OE and the Deputy Administrator. Thereafter a leveraging support
team composed of OE and DOJ representatives should be assembled and commence
work with the Regional enforcement team to structure the RA leveraging
component of each enforcement pilot. Other Regional pilot projects can be
considered after the support team is formed and the most appropriate project
selected for this demonstration.
•
E. IMPLEMENT ENVIRONMENTAL AWARDS
j .--'". < ' '
1. Initiate a multi-media compliance recognition program. Implementation of
a multi-media Environmental Compliance Recognition Program would serve to
augment the Agency's existing enforcement program using nontraditional, positive
procedures. The goals and objectives of the program are threefold. First, to formally
recognize facility management which has been consistently successful in meeting
the federal and State environmental regulations. Second, to provide incentives for
increased compliance with federal and State environmental regulations. Third, to
encourage facilities to go beyond traditional regulatory requirements in providing
increased protection of the environment. The proposed compliance recognition
program includes three categories of environmental recognition: State-specific
compliance recognition (Regional option); Region-specific compliance "plus"
environmental recognition; and national compliance "plus" environmental
recognition. i
The program would originate at the State level recognizing municipal,
industrial and federal facilities achieving consistent regulatory compliance in all
5-6
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environmental media during the last two annual inspections. (Each EPA Region
would have the discretion not to acknowledge the State "compliance only" winners
but those state winners would automatically be candidates for the EPA regional
compliance "plus" recognition program.) State award winners would then advance
to compete for a Regional level award for organizations which have gone above and
beyond the environmental regulatory requirements in their management practices;
thus, the designation compliance "plus". Winners of the regional awards would
become eligible candidates for a national award. The national award winners would
be the exemplary industrial and federal organizations which have demonstrated a
strong environmental ethic and a strong preventative environmental program.
Note: The certificate or notice of any environmental award should state that its
receipt is no defense to an action for any past or future conduct.
2. Consider publicly identifying those. facilities or entities with a verified
history of significant noncompliance. Because of the valid concerns about assuring
the accuracy and fairness of this "watchlist" program, the Enforcement Management
Council recommended against immediate adoption of a full program. Instead, we
recommend a Region or national pilot program to identify facilities with poor
compliance histories or environmental management practices and to develop the
screening mechanisms to assure fairness. For example, the pilot project could
identify those facilities with significant environmental violations (and not on a
compliance schedule) in more than one media program for more than three years,
having substantial negative environmental impacts. The pilot project could be on a
Regional or national basis.
3. Field test the environmental award program in Region VI. A pilot project of
the state and regional program was initiated in Region VI during FY 90. After a
successful pilot, a national program could be implemented.
F. CONSIDER ENVIRONMENTAL EDUCATION AND TECHNOLOGY
TRANSFER FOR ENFORCEMENT RESULTS
The Office of Enforcement, with the support of the Office of Cooperative
Environmental Management, the Office of Technology Transfer, and other offices
with responsibility for technology transfer, should review the opportunities for
enhancing compliance and enforcement results through technology transfer
activities. This review would first determine whether the basic idea is viable given
the inherent complexities of the government identifying, in an adversarial context,
remedial technologies to a regulatee. Assuming there are opportunities to utilize
our information base more effectively, the review should result in guidance for
compliance/enforcement personnel who would be conducting technology transfer
activities and a quick list/short list of technology transfer resources within EPA that
will allow Regional users easy access to this resource.
5-7
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Note: There is considerable hesitation
Enforcement Management Council was
addition to
the tech transfer programs already operating
about conducting the €:ffort. The
narrowly against pursuing this project in
or being developed.
5-8
-------
ATTACHMENT A
5-9
-------
A. Enhance the Utilization of Environmental Auditing
5-10
-------
Enforcement in the 1990's - "Leverage" Committee
Policy incentiv_esLPro±es£
Introduction
This project is envisioned as having two components; first, a
reevaluation of the role of environmental auditing in EPA'S response
to environmental violations with "particular emphasis on our various
penalty policies; and second,, an effort to maximize self-confessing
anong regulated entities. The fundamental premises of this project
are, one; that EPA should recognize that environmental auditing is a
proven, available and valuable compliance tool and accordingly
encourage its use by publicly announcing that this practice Will now
be considered normal responsible behavior. A corollary of this
premise is that regulated entities which do not fully utilize this
tool will be presumed to have failed to make good faith efforts to
comply, with appropriate negative implications for the amount of
penalties they would be expected to pay as a result of enforcement
actions. The second premise is that self-confessing to violations
(where not otherwise required), should also be ancouraged. However,
this encouragement may require a more "carrot" - oriented approach.
A. Auditing
BACKGROUND
EPA has for some timo encouraged th« practice of
environmental auditing. The most important statement of that
support is the Environmental Auditing Policy Statement, published in
final form at 51 F.R. 25004, (July 9, 1986). (An interim version of
the policy was issued on Novomber 8, 1985.) The final policy
defined environmental auditing as "a systematic, documented,
periodic and objective review by regulated entities of facility
operations and practices related to meeting environmental
requirements. "51 F.R. 25006. An appendix to the policy sets out
the elements of effective environmental auditing programs. This
appendix is attached to this report and will serve as a working
definition of adequate environmental auditing.
The July 9, 19*6 policy sets forth EPA's encouragement of
auditing, for all regulated entities, including federal facilities.
The policy does BS£ promise that EPA will reduce inspection
frequency or penalty amounts for facilities that audit, but points
out that an effective audit program will tend to reduce violations
and thus indirectly could lead to the possibility of fewer
inspections as an entity becomes a lower priority for inspection.
The policy also hints that an effective audit program which leads to
efforts to prevent violations and prompt discovery and correction of
violations, could lead EPA to "take into account1* such actions as
"honest and genuine efforts to assure compliance,"particularly if
the violation was promptly and voluntarily reported. Sfift 51 F.R.
25007.
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I
The policy also discusses such matters as when EPA will request
disclosure of audit reports and\when audits will be included as a
remedy for a violation.
i
In light of the environmental auditing policy statement and
recent Agency experience there appears to be no neetf to
fundamentally reevaluate EPA's views on the over-all usefulness or
role of environmental auditing. But more guidance is needed on the
subject of tne role that pre-existing environmental auditing, or
lack thereof, should play in assessing the gravity of violations and
the amount of penalties to collect. .
Environmental auditing has lost whatever aura of novelty it may
ance have had and is now a well-established, reasonably available
and proven technique. Thus, while EPA still has very good reason to
sncourage the practice, whatever temptation may have existed to
provide positive "rewards" for its use (such as lower penalties) are
now clearly inappropriate. Instead, the time has come for EPA to
state in clear terms as a general proposition that a violating
entity which cannot demonstrate'. that, as of the time of non-
compliance, it was fully utilizing *2, environmental auditing shall
be considered to have not made "good faith efforts to comply". *J_
The consequence for that entity would be an appropriate upward
adjustment of the penalty to b« imposed. Thus, full use of
environmental auditing would bo considered a component of the
minimum standard of behavior w«|now expect of regulated entities.
This policy posture, if clearly articulated and widely disseminated,
would appropriately encourage use of environmental auditing, while
not diminishing the overall deterrence impast of the penalties we
impose. I
Additional Issues
Having recommended the issuance of a general policy statement, a
number of additional issues need to be addressed. This report will
not attempt to answer all of these questions.
1. How to announce the poljicy? A number of vehicles could be
chosen to do this, considering the connection both to the
Environmental Auditing Policy Statement and the Agency's penalty
policies. One method would b« a formal policy statement issued by
*/ "Fully utilizing" means morje than just conducting good audits.
It also moans using audit results in a pro-active fashion to prevent
as well as remedy compliance problems.
*/ Where a statute and/or its corresponding penalty policy uses
different terminology the same basic concept would apply.
the AA for Enforcement which would also be deemed an addendum to
both the environmental auditing policy and the penalty policies.
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specific changes to media-specific penalty policies could follow, if
needed, in due course.
2. What exceptions to the general policy should be recognized?
what makes sense for large (and, probably, medium-size) entities may
not be appropriate for small entities. Newly regulated entities may
be another area deserving different treatment.
3. what transition should be allowed to the new policy? .Since
the new policy looks to the prior- behavior of the regulated entity
(i.e., did the violator use auditing as of the time of violation)
some discussion may be appropriate of how to apply the policy to
behavior that occurred prior to its issuance. Prospective
application may be appropriate here, with the policy only applying
to violations occurring after its issuance.
4. Perhaps the trickiest issue involves the question of
relevance. What if the violator can show that there is no
connection between the violation at issue and tho presence or
absence of environmental auditing?
5. What is the State role in all this?
States to adopt this policy?
Should wo encourage
6. How do we define "adequate11 or "full" use of environmental
auditing? It nay be enough to use the criteria appended to the July
9, 1985 auditing policy, noted above, but some thought should be
given to this question, especially as it relates to the ways we
expect persons to use audit results.
7. There may be a relationship between this policy and the
general policy to encourage pollution prevention/waste minimization.
Should this be explored further?
Nftxt Stena
If the Enforcement Management Council endorses the general
recommendation of this report a drafting committee should be
established to draft a policy statement. This could then be
circulated to the Regions (and, perhaps, the States) for comment
prior to being finalized.
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There are circumstances where confession can be good not only for
the soul but for the environment. It is in EPA's interest to
encourage voluntary self-confession of environmental violations
(i.e. reporting of violations where such reporting is not legally
required). Such self-confession allows EPA (and/or States) to
assure that appropriate remedial and preventive actions are taken
and to mete out.sufficient punishment to achieve deterrent effect.
Unlike the previous discussion of our expectations for
environmental auditing, it is probably necessary to encourage self-
confession through a more "carrot" oriented approach. Self-
confession which is not legally required cannot now be considered
something we can expect to see as the norm for regulated behavior.
Therefore, consideration needs to be given to adjusting penalties
downwards in appropriate instances of voluntary confession of
violations.
The TSCA enforcement program has utilized a "self-confessor
policy" under Section 5 of tha Act since 1985. This policy is
viewed by Headquarters personnel as having achieved some significant
success. A brief description of the policy is attached.
In light of the above considerations there may well b«
substantial value in expanding our use of self-confessor policies.
However, it must also be recognized that there are valid and
important concerns about insuring th« integrity of this process and
in carefully considering it» potential impact on other enforcement
objectives. Moreover, differences in statutory mandate must also be
taken into account. Therefore), it is recommended that as an initial
step each media program initiate at least one pilot project similar
to the TSCA policy. This will [allow us to test and further develop
this concept under various circumstances.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
/ 5 /
PCSTICIOC* AND TOXIC •UBSTANCCS
S'JSJ
Self-Conf
F?.?X: "" .Connie "S.fKirsg'rove
Chief Executive Officer
Office of Compliance Monitoring
TO: Workgroup Members
(See Below)
Below is a sketch of the TSCA self-confessor program which
has been operating since 1985. We intend to provide some, more
analytical*"meat to the bones", such as enforcement trends,
amount of industry traffic in the office, negotiation issues,
applicability to other statutes we oversee, such as pesticides,
EPCRA, as well as the impact on the overall TSCA enforcement
procram. We were affected by a bit of the "plague" which so many
key"staffers are at this time of the year, so we are slightly off
schedule. We will be present at the December 2G meeting and
would like your reaction concerning any additions, deletions or
revisions at this time.
cc: Douglas R. Blazey
Work Group Members:
Donna Fletcher (A-101F)
Richard Caspe (2WMD)
Fred Stiehl (LE-134P)
Bruce Diamond (05-500)
Terrell Hunt (LE-134A)
Bob Heiss (LE-134W)
Allyn Davis (6HWMD)
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Self-Confessor Policy
c Section 5 (a)(1) of the Toxic Substances Control Act (1976)
states that no person may manufacture a chemical substance
without submitting a notice (PMN-Premanufacturing Notice) to
the Administrator of EPA at least 90 days before manufacturing
such substance.
o Reason for Establishment of a Self-Confessor Policy: Secticr. 16
of1 T3CA authorizes the asessrnent of a civil penalty of up tc
325,033 per day for each violation of TSCA. Perhaps because
the Enforcement Response Policy (ERP) provided for substantial
penalties for Section 5 PMN violations (penalties may be in the
plus million dollar range); a number of potential violators
began cor.ing into EPA to confess violations (around 1984) .
o As an incentive to encourage more voluntary disclosures for
Section 5 violations in particular, an automatic penalty
reduction for self-confessors was officially established in a
January 9, 1985 TSCA Section 5 Enforcement Response Policy
(ERP) Supplement. This ERP:
-provided for a penalty reduction of 25% for voluntary
disclosure .
-to be eligible a firm must:
-make the disclosure prior to being notified of a pending
inspection
-disclosure cannot be one that is required by TSCA
Section 8(e) [8(e) requires that any person who
manufactures, processes, or distributes in commerce a
chemical substance or mixture and who obtains information
which reasonable supports the conclusion that such
substance presents a substantial risk of injury to health
or .to the environment shall immediately inform the
Administrator of such [information...]
-disclosure cannot be one that is made after EPA has
received information relating to the alleged violation
-disclcyyare must be-made to EPA when the company has a
reasonable belief that a violation has occurred.
-provided for an additonal 25% penalty reduciton for immediate
voluntary disclosure (on or within 30 days of discovery).
o Final TSCA Section 5 Enforcement Response Policy issued on
August 5, 1988 which incorporated a 25% penalty reduction (up
to 50% for immediate disclosure within 30 days of having reason
to believe that they may be in violation), for self-disclosure.
j
-provided for additional penalty reductions for the following
factors:
! 5-16
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l)the penalty could be decreased 15% for the good faith
attitude of the violator. Likewise, for bad faith
efforts, the penalty could be increased up to 15%.
2)15% for takes all steps reasonably expected/requested by
EPA to mitigate the violation or for costs for
'.environmentally beneficial expenditures.
•penalty reduction may be made prior to issuing the civil
complaint
•Civil Complaint should state the original penalty and the
reduced penalty and the reason for the reduction.
-the Agency will disregard the firm's prior history of
violations for self-confessors
o Largest penalty imposed on self-confessor-BASF A.G., a company
headquartered in West Germany.
-Final Order-Si,281,950 penalty
-TSCA Sections 5, 13, and 15 violations
-25 counts in complaint
-11 chemical substances involved
o other significant cases-AT&T
-Civil Complaint issued on May 8, 1987 with a proposed penalty
penalty of $2,625,000.
-AT&T had manufactured and used two chemical substances not on
the TSCA inventory
-Consent Agreement and Final Order (CAFO) was signed on June
30, 1987 for $1,000,000 (***largest penalty collected under
PMN program}
O INFORMATION NEEDS FROM SELF CONFESSORS
-to be eligible for the maximum reduction in civil penalties,
pre-filing documentation of violations must be acceptable and
timely
-when a potential respondent contacts EPA, the EPA
representative shall advise the self-confessor that the
following information must be delivered to EPA or submitted
within 21 ffays or sooner:
1) name of chemical(s) or chemical substance(s) including
a chemical composition
2) the suspected nature of the violation, i.e. No PMN, no
NOC, or late NOC (Notice of Cbmmencement-NOC-Section 8
(b)(1) requires that the manufacturer of the chemical
substance file a Notice of Commencement of Manufacture
on or within 30 days of beginning manufacture)
3) number of batches produced
4) a complete description of how the violations were
discovered. By whom? When?
5) Has manufacture, use or distribution of the illegal
chemical(s) been stopped?
-2-
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6) Has (have) the cher.ical (s) reached consumers or end
users?
7} What is the existing inventory of the chemicals?
8) Where are the non-conforming chemicals being stored?
who is the responsible corporate official?
9) Will you be submitting any TSCA CBI? OCM/OECM/EPA w
explain how to handle the submission and what can be
claimed as CBI . •; ••
0) What is the size 'of
there be an ability
the business? Gross sales? will
to pay defense?
c PEsSSP.AL TO REGIONS I
-OCX will refer self-confessor violations that take place in
Regions II, III, or V to those regions for case development
and filing. Recently, OCM and OECM delegated the TSCA Section
5 & 8 program to the regaining seven regions. As these
regions become experienced in these two programs, Headquarters
plans to refer self-confessors to them.
c INFORMATION TO BE TOLD TO SELF-CONFESSORS
and
1) Every effort will be [made to expedite review of the PMW
to develop the case.
2) the eligibility for the (up to) 50% timely and voluntary
disclosure may be forfeited if further evidence comes to
light that the violations were knowing or willful, that
notice to EPA was not! timely, or that the "self-confession"
notification was in response to a scheduled inspection.
3) Inquiries involving the status of a pending PMM or
enforcement investigation shall be directed to one person.
EPA reserves the right to limit inquiries to written
requests or one telephone call per day to minimize
disruption to normal Agency operations.
o TERMS TO BE MET PRIOR TO ISSUANCE OF ENFORCEMENT DISCRETION
LETTERS I
I
-Prior to the exercise of enforcement discretion to allow the
continued manufacture, use, sale or distribution in commerce
of chemicals not in conformance with TSCA, the following
conditions must be met
1) there must be a complete disclosure of the chemical
identity of the subject chemical(s) including the
submission of a complete PMN
2) there must be a complete submission to EPA of all
production data, including batch records, dates, volume's
sales records and customer lists. The submitter shall
certify as to the accuracy of such information.
3) All use or manufacture of the chemical must have stopped
at the time of voluntary disclosure.
-3-
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5)
No enforcement discretion letters can be issued without
a complete health and safety review by OTS. Section 5
(e) and 5 (f) chemicals [the chemical restriction
Sections of TSCA] are generally never eligible for
enforcement discretion.
ronpiaint terms are not negotiable. ;
SETTLEMENT WITH CONDITIONS(EXAMPLES)
-BASF CONSENT AGREEMENT
-Required purchase of 5 advertisements in national
publ icator.s.
-required two seminars on TSCA compliance in West
and submission of material to EPA
-required certification of TSCA compliance program
Group exports, and submission of materials to EPA
-required adherence to audit agreement (will audit
facilities for TSCA violations post 4-1-87)
trade
Germany,
for BAS;
151
-AT&T CONSENT AGREEMENT
-Required preparation of an internal TSCA training manual
-conduct in-house traiining programs for employees
-company expended up to 34,000,000 for their TSCA compliance
activities.
o HIGHLIGHTS FROM 1989 HQ SELF-CONFESSOR PROGRAM
-15 OF 21 HQ cases which were issued and settled were self-
confessors accounting for 31,782,654 (97.5%) out of
31,827,654 collected as of October 1989.
-Several Significant Cases
1) Eastman Kodak-TSCA Section 5-Cornplaint issued on 9-16-88
for 51,260,000.
2) Dow Chemical Co-TSCA Section 5-Cowplaint issued on 6-16-89
for 51,013,000.
3) Union Camp-TSCA Section 5-Coraplaint issued on 12-5-89 for
5285,000.
4) McClos*y Corp.-TSCA Section 5-Coraplaint issued on 2-16-89
for 31,353,000.
-4-
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Wednesday
July 9, 1986
Part IV
Environmental
Protection Agency
Environmental Auditing Policy Statement;
Notice
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25004
Federal Register /Vol. 51. No. 131 / Wednesday. July 9, 1986 / Notices
ENVIRONMENTAL PROTECTION
AGENCY
[OPPE-FRL-3046-6]
Environmental Auditing Policy
Statement
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final policy statement.
SUMMARY: It is EPA policy to encourage
the use of environmental auditing by
regulated entities to help achieve and
maintain compliance with
environmental laws and regulations, as
well as to help identify and correct
unregulated environmental hazards.
EPA first published this policy as
interim guidance on November 8,1985
(50 FR 46504). Based on comments
received regarding the interim guidance,
the Agency is issuing today's final
policy statement with only minor
changes.
This final policy statement
specifically:
• Encourages regulated entities to
develop, implement and upgrade -
environmental auditing programs;
• Discusses when the Agency may or
may not request audit reports;
• Explains how EPA's inspection and
enforcement activities may respond to
regulated entities' efforts to assure
compliance through auditing; ,
• Endorses environmental auditing at
federal facilities; <
• Encourages state and local
environmental auditing initiatives; and
• Outlines elements of effective audit
programs. • • •
Environmental auditing includes a
variety of compliance assessment
techniques which go beyond those
legally required and are used to identify
actual and potential environmental
problems. Effective environmental
auditing can lead to higher levels of
overall compliance and reduced risk to
human health and the environment EPA
endorses the practice of environmental
auditing and supports its accelerated
use by regulated entities to help meet
the goals of federal, state and local
environmental requirements. However.
the existence of an auditing program
does not create any defense to, or
otherwise limit, the responsibility of any
regulated entity to comply with
applicable regulatory requirements.
States are encouraged to adopt these
or similar and equally effective policies
in order to advance the use of
environmental auditing on a consistent.
nationwide basis.
DATES: This final policy statement is
effective July 9,1986.
FOR FURTHER INFORMATION CONTACT:
Leonard Fleckenstein, Office of Policy,
Planning and Evaluation, (202) 382-
2726;
or
Cheryl Wasserman. Office of
Enforcement and Compliance
Monitoring, (202) 382-7550.
SUPPLEMENTARY INFORMATION:
ENVIRONMENTAL AUDITING
POLICY STATEMENT
I. Preamble
On November 8,1985 EPA published
an Environmental Auditing Policy
Statement, effective as interim guidance,
and solicited written comments until
January 7,1986.
Thirteen commen/ers submitted
written comments. Eight were from
private industry. Two commenters
represented industry trade associations.
One federal agency, one consulting firm
and one law firm also submitted
comments.
Twelve commenters addressed EPA
requests for audit reports. Three
comments per subject were received
regarding inspections, enforcement
response and elements of effective
environmental auditing. One commenter
addressed audit provisions as remedies
in enforcement actions, one addressed
environmental auditing at federal
facilities, and one addressed the
relationship of the policy statement to
state or local regulatory agencies.
Comments generally supported both the
concept of a policy statement and the
interim guidance, but raised specific
concerns with respect to particular
language and policy issues in sections of
the guidance.
General Comments
Three commenters found the interim
guidance to be constructive, balanced
and effective at encouraging more and
better environmental auditing.
Another commenter, while
considering the policy on the whole to
be constructive, felt that new and
identifiable auditing "incentives" should
be offered by EPA. Based on earlier
comments received from industry, EPA
believes most companies would not
support or participate in an "incentives-
based" environmental auditing program
with EPA. Moreover, general promises
to forgo inspections or reduce
enforcement responses in exchange for
companies' adoption of environmental
auditing programs—the "incentives"
most frequently mentioned in this
context—are fraught with legal and
policy obstacles.
Several commenters expressed
concern that states or localities might
use the interim guidance to require
auditing. The Agency disagrees that the
policy statement opens the way for
states and localities to require auditing.
No EPA policy can grant states or
localities any more (or less) authority
than they already possess. EPA believes
that the interim guidance effectively
encourages voluntary auditing. In fact,
Section II.B. of the policy states:
"because audit quality depends to a
large degree on genuine management
commitment to the program and its
objectives, auditing should remain a
voluntary program."
Another commenter suggested that
EPA should not expect an audit to
identify all potential problem areas or
conclude that a problem identified in an
audit reflects normal operations and
procedures. EPA agrees that an audit
report should clearly reflect these
realities and should be written to point
out the audit's limitations. However,
since EPA will not routinely request
audit reports, the Agency does not
believe these concerns raise issues
which need to be addressed in the
policy statement.
A second concern expressed by the
same commenter was that EPA should
acknowledge that environmental audits
are only part of a successful
environmental management program
and thus should not be expected to
cover every environmental issue or
solve all problems. EPA agrees and
accordingly has amended the statement
of purpose which appears at the end of
this preamble.
Yet another commenter thought EPA
should focus on environmental
performance results (compliance or non-
compliance), not on the processes or
vehicles used to achieve those results. In
general, EPA agrees with this statement
and will continue to focus on
environmental results. However, EPA
also believes that such results can be
improved through Agency efforts to
identify and encourage effective
.environmental management practices,
and will continue to encourage such
practices in non-regulatory ways.
A final general comment
recommended that EPA should sponsor
seminars for small businesses on how to
start auditing programs. EPA agrees that
such seminars would be useful.
However, since audit seminars already
are available from several private sector
organizations, EPA does not believe it
should intervene in that market, with the
possible exception of seminars for
government agencies, especially federal
agencies, for which EPA has a broad
mandate under Executive Order 12088 to
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Federal Register / Vol. 51, No. 131 / Wednesday, July 9. 1986 / Notices
25005
provide technical assistance for
environmental compliance.
Requests for Reports
EPA received 12 comments regarding
Agency requests for environmental audit
reports, far more than on any other topic
in the policy statement. One commenter
felt that EPA struck an appropriate
balance between respecting the reed for
self-evaluation with some measure of
privacy, and allowing the Agency
enough flexibility of inquiry to
accomplish future statutory missions.
However, most commenters expressed
concern that the interim guidance did
not go far enough to assuage corporate
fears that EPA will use audit reports for
environmental compliance "witch
hunts." Several commenters suggested
additional specific assurances regarding
the circumstances under which EPA will
request such reports.
One commenter recommended that
EPA request audit reports only "when
the Agency can show the information it
needs to perform its statutory mission
cannot be obtained from the monitoring,
compliance or other data that is
otherwise reportable and/or accessible
to EPA. or where the Government deems
an audit report material to a criminal
investigation." EPA accepts this
recommendation in part. The Agency
believes it would not be in the best
interest of human health and the
environment to commit to making a
"showing" of a compelling information
need before ever requesting an audit
report. While EPA may normally be
willing to do so. the Agency cannot rule
out in advance all circumstances in
which such a showing may not be
possible. However, it would be helpful
to further clarify that a request for an
audit report or a portion of a report
normally will be made when needed
information is not available by
alternative means. Therefore, EPA has
revised Section III.A.. paragraph two
and added the phrase: "and usually
made where the information needed
cannot be obtained from monitoring,
reporting or other data otherwise
available to the Agency."
Another commenter suggested that
(except in the case of criminal
investigations) EPA should limit
requests for audit documents to specific
questions. By including the phrase "or
relevant portions of a report" in Section
III.A., EPA meant to emphasize it would
not request an entire audit document
when only a relevant portion would
suffice. Likewise, EPA fully intends not
to request even a portion of a report if
needed information or data can be
otherwise obtained. To further clarify
this point EPA has added the phrase.
"most likely focused on particular
information needs rather than the entire
report," to the sjecond sentence of
paragraph two. Section III.A.
Incorporating the two comments above.
the first two sentences in paragraph two
of final Section III.A. now read: "EPA's
authority to request an audit report, or
relevant portions thereof, will be
exercised on a case-by-case basis where
the Agency determines it is needed to
accomplish a statutory mission or the
Government deems it to be material to a
criminal investigation. EPA expects such
requests to be limited, most likely
focused on particular information needs
rather than the ;entire report, and usually
made where the information needed
cannot be obtained from monitoring,
reporting or oth'er data otherwise
available to the Agency."
Other commenters recommended that
EPA not request audit reports under any
circumstances, [that requests be
"restricted to only those legally
required," that requests be limited to
criminal investigations, or that requests
be made only when EPA has reason to
believe "that the audit programs or
reports are being used to conceal
evidence of environmental non-
compliance or otherwise being used in
bad faith." EPA appreciates concerns
underlying all of these comments and
has considered each carefully. However,
the Agency believes that these
recommendations do not strike the
appropriate balance between retaining
the flexibility to accomplish EPA's
statutory missions in future, unforeseen
circumstances, and acknowledging
regulated entities' need to self-evaluate
environmental performance with some
measure of privacy. Indeed, based on
prime informal comments, the small
number of formal comments received,
and the even smaller number of adverse
comments, EPA believes the final policy
statement should remain largely
unchanged from the interim version.
Elements of Effective Environmental
Auditing
Three commenters expressed
concerns regarding the seven general
elements EPA outlined in the Appendix
to die interim guidance.
One commenter noted that were EPA
to further expand or more fully detail
such elements, programs not specifically
fulfilling each element would then be
judged inadequate. EPA agrees that
presenting highly specific and
prescriptive auditing elements could be
counter-productive by not taking into
account numerous factors which vary
extensively from one organization to
another, but which may still result in
effective auditing programs.
Accordingly, EPA does not plan to
expand or more fully detail these
auditing elements.
Another commenter asserted that'
states and localities should be cautioned
not to consider EPA's auditing elements
as mandatory steps. The Agency is fully
aware of this concern and in the interim
guidance noted its strong opinion that
"regulatory agencies should not attempt
to prescribe the precise form and
structure of regulated entities'
environmental management or auditing
programs." While EPA cannot require
state or local regylators to adopt this or
similar policies, the Agency does
strongly encourage them to do so, both
in the interim and final policies.
A final commenter thought the
Appendix too specifically prescribed
what should and what should not be
included in an auditing program. Other
commenters, on the other hand, viewed
the elements described as very general
in nature. EPA agrees with these other
commenters. The elements are in no
way binding. Moreover, EPA believes
that most mature, effective
environmental auditing programs do
incorporate each of these general
elements in some form, and considers
them useful yardsticks for those
considering adopting or upgrading audit
programs. For these reasons EPA has
not revised the Appendix in today's
final policy statement.
Other Comments
Other significant comments addressed
EPA inspection priorities for, and
enforcement responses to, organizations
with environmental auditing programs.
One commentei1, stressing that audit
programs are internal management
tools, took exception to the phrase in the
second paragraph of section III.B.l. of
the interim guidance which states that
environmental audits can 'complement'
regulatory oversight. By using the word
'complement' in this context, EPA does
not intend to imply that audit reports
must be obtained by the Agency in order
to supplement regulatory inspections.
'Complement' is used in a broad sense
of being in addition to inspections and
providing something (i.e., self-
assessment) which otherwise would be
lacking. To clarify this point EPA has
added the phrase "by providing self-
assessment to assure compliance" after
"environmental audits may complement
inspections" in this paragraph.
The same commenter also expressed
concern that, as EPA sets inspection
priorities, a company having an audit
program could appear to be a 'poor
performer' due to complete and acouiute
reporting when measured against a
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Federal Register / Vol. 51. No. 131 / Wednesday. July 9. 1986 / Notices
company which reports something less
than required by law. EPA agrees that it
is important to communicate this fact to
Agency and state personnel, and will do
so. However, the Agency does not
believe a change in the policy statement
is necessary.
A further comment suggested EPA
should commit to take auditing
programs into account when assessing
all enforcement actions. However, in
order to maintain enforcement flexibility
under varied circumstances, the Agency
cannot promise reduced enforcement
responses to violations at all audited
facilities when other factors may be
overriding. Therefore the policy
statement continues to state that EPA
may exercise its decretion to consider
auditing programs as evidence of honest
and genuine efforts to assure
compliance, which would then be taken
into account in fashioning enforcement
responses to violations.
A final commenter suggested, the
phrase "expeditiously correct
environmental problems" not be used in
the enforcement context since it implied
EPA would use an entity's record of
correcting nonregulated matters when
evaluating regulatory violations. EPA
did not intend for such an inference to
be made. EPA intended the term
"environmental problems" to refer to the
underlying circumstances which
eventually lead up to the violations. To
clarify this point, EPA is revising the
first two sentences of the paragraph to
which this comment refers by changing
"environmental problems" to "violations
and underlying environmental
problems" in the first sentence and to
"underlying environmental problems" in
the second sentence.
In a separate development EPA is
preparing an update of its January 1984
Federal Facilities Complianse Strategy,
which is referenced in section III. C. of
the auditing policy. The Strategy should
be completed and available on request •
from EPA's Office of Federal Activities
later this year.
EPA thanks all commenters for
responding to the November 8,1985
publication. Today's notice is being
issued to inform regulated entities and
the public of EPA's final policy toward
environmental auditing. This policy was
developed to help (a) encourage
regulated entities to institutionalize
effective audit practices as one means of
improving compliance and sound
environmental management, and (b)
guide internal EPA actions directly
related to regulated entities'
environmental auditing programs.
EPA will evaluate implementation of
this final policy to ensure it meets the
above goals and continues to encourage
better environmental management,
while strengthening the Agency's own
efforts to monitor and enforce
compliance with environmental
requirements.
II. General EPA Policy on
Environmental Auditing
A. Introduction
Environmental auditing is a
systematic, documented, periodic and
objective review by regulated entities'
of facility operations and practices
related to meeting environmental
requirements. Audits can be designed to
accomplish any or all of die following:
verify compliance with environmental
requirements; evaluate the effectiveness
of environmental management systems
already in place; or assess risks from
regulated and unregulated materials and
practices.
Auditing serves as a quality assurance
check to help improve the effectiveness
of basic environmental management by
verifying that management practices are
in place, functioning and adequate.
Environmental audits evaluate, and are
not a substitute for, direct compliance
activities such as obtaining permits.
installing controls, monitoring
compliance, reporting violations, and
keeping records. Environmental auditing
may verify but does not include
activities required by law, regulation or
permit (e.g., continuous emissions
monitoring, composite correction plans
at wastewater treatment plants, etc.).
Audits do not in any way replace
regulatory agency inspections. However,
environmental audits can improve
compliance by complementing
conventional federal, state and local
oversight.
The appendix to this policy statement
outlines some basic elements of
environmental auditing (e.g., auditor
independence and top management
support) for use by those considering
implementation of effective auditing
programs to help achieve and maintain
compliance. Additional information on
environmental auditing practices can be
found in various published materials.2
1 "Regulated entities" include private firms and
public agencies with facilities subject to
environmental regulation. Public agencies can
include federal, state or local agencies as well as
special-purpose organizations such as regional
sewage commissions.
2 See. e.g., "Current Practices in Environmental
Auditing." EPA Report No. EPA-230-09-S3-008.
February 1984: "Annotated Bibliography on
Environmental Auditing." Fifth Edition. September
1985 both available from: Regulatory Reform Staff.
PM-223. EPA. 401 M Street SW, Washington. DC
204(«1.
Environmental auditing has developed
for sound business reasons, particularly
as a means of helping regulated entities
manage pollution control affirmatively
over time instead of reacting to crises.
Auditing can result in improved facility
environmental performance, help
communicate effective solutions to
common environmental problems, focus
facility managers' attention on current
and upcoming regulatory requirements,
and generate protocols and checklists
which help facilities better manage
themselves. Auditing also can result in
better-integrated management of
environmental hazards, since auditors
frequently identify environmental
liabilities which go beyond regulatory
compliance. Companies, public entities ,
and federal facilities have employed a
variety of environmental auditing
practices in recent years. Several
hundred major firms in diverse
industries now have environmental
auditing programs, although they often
are known by other names such as
assessment, survey, surveillance, review
or appraisal.
While auditing has demonstrated its
usefulness to those with audit programs,
many others still do not audit.
Clarification of EPA's position regarding
auditing may help encourage regulated
entities to establish audit programs or
upgrade systems already in place.
B. EPA Encourages the Use of
Environmental Auditing
EPA encourages regulated entities to
adopt sound environmental
management practices to improve
environmental performance. In
particular, EPA encourages regulated
entities subject to environmental
regulations to institute environmental
auditing programs to help ensure the
adequacy of internal systems to achieve,
maintain and monitor compliance.
Implementation of environmental
auditing programs can result in better
identification, resolution and avoidance
of environmental problems, as well as
improvements to management practices.
Audits can be conducted effectively by
independent internal or third party
auditors. Larger organizations generally
have greater resources to devote to an
internal audit team, while smaller
entities might be more likely to use
outside auditors.
Regulated entities are responsible for
taking all necessary steps to ensure
compliance with environmental
requirements, whether or not they adopt
audit programs. Although environmental
laws do not require a regulated facility
to have an auditing program, ultimate
responsibility for the environmental
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25007
performance of the facility lies with top
management, which therefore has a
strong incentive to use reasonable
means, such as environmental auditing,
to secure reliable information of facility
compliance status.
EPA does not intend to dictate or
interfere with the environmental
management practices of private or
public organizations. Nor does EPA
intend to mandate auditing (though in
certain instances EPA may seek to
include provisions for environmental
auditing as part of settlement
agreements, as noted below). Because
environmental auditing systems have
been widely adopted on a voluntary
basis in the past, and because audit ,
quality depends to a large degree upon
genuine management commitment to the
program and its objectives, auditing
should remain a voluntary activity.
HI. EPA Policy on Specific
Environmental Auditing Issues
A. Agency Requests for Audit Reports
EPA has broad statutory authority to
request relevant information on the
environmental compliance status of ,
regulated entities. However. EPA
believes routine Agency requests for
audit reports 3 could inhibit auditing in
the long run, decreasing both the
quantity and quality of audits
conducted. Therefore, as a matter of
policy, EPA will not routinely request
environmental audit reports.
EPA's authority to request an audit
report, or relevant portions thereof, will
be exercised on a case-by-case basis
where the Agency determines it is
needed to accomplish a statutory
mission, or where the Government
deems it to be material to a criminal
investigation. EPA expects such
requests to be limited, most likely
focused on particular information needs
rather than the entire report, and usually
made where the information needed
cannot be obtained from monitoring,
reporting or other data otherwise
available to the Agency. Examples
would likely include situations where:
audits are conducted under consent
decrees or other uettlement agreements:
a company has placed its management
practices at issue by raising them as a
defense; or state of mind or intent are a
relevant element of inquiry, such as
during a criminal investigation. This list
' An "amrironmental audit report" is a written
report which candidly and thoroughly presents
finding! from a review, conducted as part of an
environmental audit as described in section H.A.. of
facility environmental performance and practices.
An audit report is not a substitute for compliance
monitoring sports or other reports or records \fchieh
may be rnqtilrmJ by EPA or other regulatory
is illustrative^ rather than exhaustive,
since there doubtless will be other
situations, not subject to prediction, in
which audit reports rather than
information may be required.
EPA acknowledges regulated entities'
need to self-evaluate environmental
performance with some measure of
privacy and encourages such activity.
However, audit reports may not shield
monitoring, compliance, or other
information that would otherwise be
reportable and/or accessible to EPA,
even if there is no explicit 'requirement'
to generate that data.4 Thus, this policy
does not alter regulated entities' existing
or future obligations to monitor, record
or report information required under
environmental statutes, regulations or
permits, or to allow EPA access to that
information. Nor does this policy alter
EPA's authority to request and receive
any relevant [information—including that
contained in audit reports—under
various environmental statutes (e.g.,
Clean Water! Act section 308, Clean Air
Act sections 114 and 208) or in other
administrative or judicial proceedings.
Regulated entities also should be
aware that certain audit findings may by
law have to be reported to government
agencies. However, in addition to any
such requirements, EPA encourages
regulated entities to notify appropriate
State or Federal officials of findings
which suggest significant environmental
or public health risks, even when not
specifically required to do so.
B. EPA Response to Environmental
Auditing
1. General Policy
EPA will not promise to forgo
inspections, reduce enforcement
responses, or offer other such incentives
in exchange for implementation of
environmental auditing or other sound
environmental management practices.
Indeed, a credible enforcement program
provides a strong incentive for regulated
entities to audit.
Regulatory agencies have an
obligation to assess source compliance
status independently and cannot
eliminate inspections for particular firms
or classes of firms. Although
environmental audits may complement
inspections by providing self-
assessment to assure compliance, they
are in no way a substitute for regulatory
oversight. Moreover, certain statutes
(e.g. RCRA] and Agency policies
establish minimum facility inspection
frequencies to which EPA will adhere.
However, EPA will continue to
address environmental problems cm a
priority basis and will consequently
inspect facilities with poor
environmental records and practices
more frequently. Since effective
environmental auditing helps
management identify and promptly
correct actual or potential problems,
audited facilities' environmental
performance should improve. Thus,
while EPA inspections of self-audited
facilities will continue, to the extent that
compliance performance is considered
in setting inspection priorities, facilities
with a good compliance history may be
subject to fewer inspections.
In fashioning enforcement responses
to violations, EPA policy is to take into
account, on a case-by-case basis, the
honest and genuine efforts of regulated
entities to avoid and promptly correct
violations and'underlying environmental
problems. When regulated entities take
reasonable precautions to avoid
noncompliance, expeditiously correct
underlying environmental problems
discovered through audits or other
means, and implement measures to
prevent their recurrence, EPA may
exercise its discretion to consider such
actions as honest and genuine efforts to
assure compliance. Such consideration
applies particularly when a regulated
entity promptly reports violations or
compliance data which otherwise were
not required to be recorded or reported
to EPA.
2. Audit Provisions as Remedies in
Enforcement Actions
EPA may propose environmental
auditing provisions in consent decrees
and in other settlement negotiations
where auditing could provide a remedy
for identified problems and reduce the
likelihood of similar problems recurring
in the future.5 Environmental auditing
provisions are most likely to be
proposed in settlement negotiations
where: , ,
• A pattern of violations can be
attributed, at least in part, to the
absence or poor functioning of an
environmental management system; or
• The type oir nature of violations
indicates a likelihood that similar
noncompliance problems may exist or
occur elsewhere in the facility or at
other facilities operated by the regulated
entity.
4 See. for example. "Duties to Report or Disclose
Information on the Environmental Aspects of
Business Activities." Environmental Law Institute
report to EPA. final report. September 1985.
4 KPA is developing guidance for use by Agency
negotiators in structuring appropriate environmental
audit provisions for consent decrees and olhor
suiilflir-unt nngntiations.
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Federal Register / Vol. 51. No. 131 / Wednesday. July 9. 1986 / Notices
Through this consent decree approach
and other means, EPA may consider
how to encourage effective auditing by
publicly owned sewage treatment works
(POTWs). POTWs often have
compliance problems related to
operation and maintenance procedures
which can be addressed effectively
through the use of environmental
auditing. Under its National Municipal
Policy EPA already is requiring many
POTWs to develop composite correction
plans to identify and correct compliance
problems. .-•.-.
C. Environmental Auditing at Federal
Facilities
EPA encourages all federal agencies
subject to environmental laws and
regulations to institute environmental
auditing systems to help ensure the
adequacy of internal systems to achieve.
maintain and monitor compliance.
Environmental auditing at federal
facilities can be an effective supplement
to EPA and state inspections. Such
federal facility environmental audit
programs should be structured to
promptly identify environmental
problems and expenditiously develop
schedules for remedial action.
To the extent feasible, EPA will
provide technical assistance to help
federal agencies design and initiate
audit programs. Where appropriate, EPA
will enter into agreements with other
agencies to clarify the respective roles,
responsibilities and commitments of
each agency in conducting and
responding to federal facility
environmental audits.
With respect to inspections of self-
audited facilities (see section III.B.1
above) and requests for audit reports
(see section III.A above], EPA generally
will respond to environmental audits by
federal facilities in the same manner as
it does for other regulated entities, in
keeping with the spirit and intent of
Executive Order 12088 and the EPA
Federal Facilities Compliance Strategy
(January 1984, update forthcoming in
late 1986). Federal agencies should,
however, be aware that the Freedom of
Information Act will govern any
disclosure of audit reports or audit-
generated information requested from
federal agencies by the public.
When federal agencies discover
significant violations through an
environmental audit, EPA encourages
them to submit the related audit findings
and remedial action plans expeditiously
to the applicable EPA regional office
(and responsible state agencies, where
appropriate) even when not specifically
required to do so. EPA will review the
audit findings and action plans and
either provide written approval or
negotiate a Federal Facilities
Compliance Agreement. EPA will utilize
the escalation procedures provided in
Executive Order 12088 and the EPA
Federal Facilities Compliance Strategy
only when agreement between agencies
cannot be reached. In any event, federal
agencies are expected to report pollution
abatement projects involving costs
(necessary to correct problems
discovered through the audit) to EPA in
accordance with OMB Circular A-106.
Upon request, and in appropriate
circumstances, EPA will assist affected
federal agencies through coordination of
any public release of audit findings with
approved action plans once agreement
has been reached.
IV. Relationship to State or Local
Regulatory Agencies
State and local regulatory agencies
have independent jurisdiction over
regulated entities. EPA encourages them
to adopt these or similar policies, in
order to advance the use of effective
environmental auditing in a consistent
manner.
EPA recognizes that some states have
already undertaken environmental
auditing initiatives which differ
somewhat from this policy. Other states
also may want to develop auditing
policies which accommodate their
particular needs or circumstances.
Nothing in this policy statement is
intended to preempt or preclude states
from developing other approaches to
environmental auditing. EPA encourages
state and local authorities to consider
the basic principles which guided the
Agency in developing this policy:
• Regulated entities must continue to
report or record compliance information
required under existing statutes or
regulations, regardless of whether such
information is generated by an
environmental audit or contained in an
audit report. Required information
cannot be withheld merely because it is
generated by an audit rather than by
some other means.
• Regulatory agencies cannot make
promises to forgo or limit enforcement
action against a particular facility or
class of facilities in exchange for the use
of environmental auditing systems.
However, such agencies may use their
discretion to adjust enforcement actions
on a case-by-case basis in response to
honest and genuine efforts by regulated
entities to assure environmental
compliance.
• When setting inspection priorities
regulatory agencies should focus to the
extent possible on compliance
performance and environmental results.
• Regulatory agencies must continue
to meet minimum program requirements
(e.g., minimum inspection requirements.
etc.).
« Regulatory agencies should not
attempt to prescribe the precise form
and structure of regulated entities'
environmental management or auditing
programs.
An effective state/federal partnership
is needed to accomplish the mutual goal
of achieving and maintaining high levels
of compliance with environmental laws
and regulations. The greater the
consistency between state or local
policies and this federal response to
environmental auditing, the greater the
degree to which sound auditing
practices might be adopted and
compliance levels improve.
Dated: June 28.1986.
Lee M. Thomas,
Administrator.
Appendix—Elements of Effective
Environmental Auditing Programs
Introduction: Environmental auditing
is a systematic, documented, periodic
and objective review by a regulated
entity of facility operations and
practices related to meeting
. environmental requirements.
Private sector environmental audits of
facilities have been conducted for
several years and have taken a variety
of forms, in part to accommodate unique
organizational structures and
circumstances. Nevertheless, effective
environmental audits appear to have
certain discernible elements in common
with other kinds of audits. Standards for
internal audits have been documented
extensively. The elements outlined
below draw heavily on two of these
documents: "Compendium of Audit
Standards" (*1983, Walter Willborn,
American Society for Quality Control)
and "Standards for the Professional
Practice of Internal Auditing" (»1981.
The Institute of Internal Auditors, Inc.).
They also reflect Agency analyses
conducted over the last several years.
Performance-oriented auditing
elements are outlined here to help
accomplish several objectives. A general
description of features of effective,
mature audit programs can help those
starting audit programs, especially
federal agencies and smaller businesses.
These elements also indicate the
attributes of auditing EPA generally
considers important to ensure program
effectiveness. Regulatory agencies may
use these elements in negotiating
environmental auditing provisions for
consent decrees. Finally, these elements
can help guide states and localities
considering auditing initiatives.
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Federal Register / Vol. 51. No, 131 / Wednesday. July 9. 1986 / Notices 25QQ9
An effective environmental auditing
system will likely include the following
general elements:
I. Explicit top management support for
environmental auditing and
commitment to follow-up on audit
findings. Management support may be
demonstrated by a written policy
articulating upper management support
for the auditing program, and for
compliance with all pertinent
requirements, including corporate
policies and permit requirements as well
as federal, state and local statutes and
regulations.
Management support for the auditing
program also should be demonstrated
by an explicit written commitment to
follow-up tin audit findings to correct
identified problems and prevent their
recurrence.
II. An environmental auditing function
independent of audited activities. The
status or organizational locus of
environmental auditors should be
sufficient to ensure objective and
unobstructed inquiry, observation and
testing. Auditor objectivity should not
be impaired by personal relationships.
financial or other conflicts of interest,
interference with Free inquiry or
judgment, or fear of potential
retribution.
III. Adequate team staffing and
auditor training. Environmental auditors
should possess or have ready access to
the knowledge, skills, and disciplines
needed to accomplish audit objectives.
Each individual auditor should comply
with the company's professional
standards of conduct. Auditors, whether
full-time or part-time, should maintain
their technical and analytical
competence through continuing
education and training.
IV. Explicit audit program objectives,
scope, resources and frequency. At a
minimum, audit objectives should
include assessing compliance with
applicable environmental laws and
evaluating the adequacy of internal
compliance policies, procedures and
personnel training programs to ensure
continued compliance.
Audits should be based on a process
which provides auditors: all corporate
policies, permits, and federal, state, and
local regulations pertinent to the facility;
and checklists or protocols addressing
specific features that should be
evaluated by auditors.
Explicit written audit procedures
generally should be used for planning
audits, establishing audit scope,
examining and evaluating audit findings,
communicating audit results, and
following-up.
V. A process which collects, analyzes.
interprets and documents information
sufficient to achieve audit objectives.
Information should be collected before
and during an onsite visit regarding
environmental compliance^),
environmental management
effectiveness^}, and other matters (3)
related to audit objectives and scope.
This information should be sufficient,
reliable, releyant and useful to provide a
sound basis for audit findings and
recommendations.
a. Sufficient information is factual
adequate and convincing so that a
prudent, informed person would be
likely to reach the same conclusions as
the auditor.
b. Reliable information is the best
attainable through use of appropriate
audit techniques.
c. Relevant^ information supports audit
findings and recommendations and is
consistent with the objectives for the
audit.
d. Useful information helps the
organization meet its goals.
The audit process should include a
periodic review of the reliability and
integrity of this information and the
means used to identify, measure,
classify and report it. Audit procedures,
including the testing and sampling
techniques employed, should be selected
in advance, to the extent practical, and
expanded or altered if circumstances
warrant. The process of collecting,
analyzing, interpreting, and
documenting information should provide
reasonable assurance that audit
objectivity is maintained and audit goals
are met. :
VI. A process which includes specific
procedures to* promptly prepare candid,
clear and appropriate written reports on
audit findings, corrective actions, and
schedules for implementation.
Procedures should be in place to ensure
that such information is communicated
to managers, including facility and
corporate management, who can
evaluate the information and ensure
correction of identified problems.
Procedures also should be in place for
determining what internal findings are
reportable to state or federal agencies.
5-26
VII. A process which includes quality
assurance procedures to assure the
accuracy and thoroughness of
environmental audits. Quality assurance
may be accomplished through
supervision, independent internal
reviews, external reviews, or a
combination of these approaches.
Footnotes to Appendix
(1} A comprehensive assessment of
compliance with federal environmental
regulations requires an analysis of facility
performance against numerous
environmental statutes and implementing
regulations. These statutes include:
Resource Conservation and Recovery Act
Federal Water Pollution Control Act
Clean Air Act
Hazardous Materials Transportation Act
Toxic Substances Control Act
Comprehensive Environmental Response.
Compensation and Liability Act
Safe Drinking Water Act
Federal Insecticide. Fungicide and
Rodenticide Act
Marine Protection. Research and Sanctuaries
Act
Uranium Mill Tailings Radiation Control Act
In addition, state and local government are
likely to have their own environmental laws.
Many states have been delegated authority to
administer federal programs. Many local
governments' building, fire, safety and health
codes also have environmental requirements
relevant to an audit evaluation.
(2) An environmental audit could go well
beyond the type of compliance assessment
normally conducted during regulatory
inspections, for example, by evaluating
policies and practices, regardless of whether
they are part of the environmental system or
the operating and maintenance procedures.
Specifically, audits can evaluate the extent to
which systems or procedures:
1. Develop organizational environmental
policies which; a. implement regulatory
requirements; b. provide management
guidance for environmental hazards not
specifically addressed in regulations:
2. Train and motivate facility personnel to
work in an environmentally-acceptable
manner and to understand and comply with
government regulations and the entity's
environmental policy;
3. Communicate relevant environmental
developments expeditiously to facility and
other personnel;
4. Communicate effectively with
government and the public regarding serious
environmental incidents;
5. Require third parties working for, with or
on behalf of the organization to follow its
environmental procedures:
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Federal Register / Vol. 51. No. 131 / Wednesday. July 9. 1986 / Notices
6. Make proficient personnel available at
all times to carry out environmental
(especially emergency) procedures:
7. Incorporate environmental protection
into written operating procedures;
8. Apply best management practices and
operating procedures, including "good
housekeeping" techniques;
9. Institute preventive and corrective
main'rnance systems to minimize actual and
pole .ml environmental harm:
10. Utilize best available process and
control technologies:
11. Use most-effective sampling and
monitoring techniques, test methods,
recordkeeping systems or reporting protocols
(beyond minimum legal requirements);
12. Evaluate causes behind any serious
environmental incidents and establish
procedures to avoid recurrence;
13. Exploit source reduction, recycle and
rouse potential wherever practical: and
14. Substitute materials or processes to
allow use of the least-hazardous substances
feasible.
(.'») Auditors could also assess
environmental risks and uncertainties.
|KR Doc. 86-15423 Filed 7-8-86 8:45 am)
BILLING COOE 6S40-KMI
5-27
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Wednesday
July 9, 1986
Part IV
Environmental
Protection Agency
Environmental Auditing Policy Statement;
Notice
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Federal Register / Vol. 51. No. 131 / Wednesday, July 9, 1986 / Notices
ENVIRONMENTAL PROTECTION
AGENCY
[OPPE-FRL-3046-6]
Environmental Auditing Policy
Statement
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final policy statement.
SUMMARY: It is EPA policy to encourage
the use of environmental auditing by
regulated entities to help achieve and
maintain compliance with
environmental laws and regulations, as
well as to help identify and correct
unregulated environmental hazards.
EPA first published this policy as
interim guidance on November 8,1985
(50 FR 46504). Based on comments
received regarding the interim guidance,
the Agency is issuing today's final
policy statement with only minor
changes.
This final policy statement
specifically:
• Encourages regulated entities to
develop, implement and upgrade
environmental auditing programs;
• Discusses when the Agency may or
may not request audit reports;
• Explains how EPA's inspection and
enforcement activities may respond to
regulated entities' efforts to assure
compliance through auditing;
• Endorses environmental auditing at
federal facilities;
• Encourages state and local
environmental auditing initiatives; and
• Outlines elements of effective audit
programs.
Environmental auditing includes a
variety of compliance assessment
techniques which go beyond those
legally required and are used to identify
actual and potential environmental
problems. Effective environmental
auditing can lead to higher levels of
overall compliance and reduced risk to
human health and the environment EPA
endorses the practice of environmental
auditing and supports its accelerated
use by regulated entities to help meet
the goals of federal, state and local
environmental requirements. However,
the existence of an auditing program
does not create any defense to, or
otherwise limit, the responsibility of any
regulated entity to comply with
applicable regulatory requirements.
States are encouraged to adopt these
or similar and equally effective policies
in order to advance the use of
environmental auditing on a consistent,
nationwide basis.
DATES: This final policy statement is
effective July 9,1986.
FOR FURTHER INFORMATION CONTACT:
Leonard Fleckenstein, Office of Policy,
Planning and Evaluation. (202) 382-
2726;
or
Cheryl Wasserman, Office of
Enforcement and Compliance
Monitoring, (202) 382-7550.
SUPPLEMENTARY INFORMATION:
ENVIRONMENTAL AUDITING
POLICY STATEMENT
I. Preamble
On November 8,1985 EPA published
an Environmental Auditing Policy
Statement, effective as interim guidance,
and solicited written comments until
January 7,1986.
Thirteen commen/ers submitted
written comments. Eight were from
private industry. Two commenters
represented industry trade associations.
One federal agency, one consulting firm
and one law firm also submitted
comments.
Twelve commenters addressed EPA
requests for audit reports. Three
comments per subject were received
regarding inspections, enforcement
response and elements of effective
environmental auditing. One commenter
addressed audit provisions as remedies
in enforcement actions, one addressed
environmental auditing at federal
facilities, and one addressed the
relationship of the policy statement to
state or local regulatory agencies.
Comments generally supported both the
concept of a policy statement and the
interim guidance, but raised specific
concerns with respect to particular
language and policy issues in sections of
the guidance.
General Comments
Three commenters found the interim
guidance to be constructive, balanced
and effective at encouraging more and
better environmental auditing.
Another commenter, while
considering the policy on the whole to
be constructive, felt that new and
identifiable auditing "incentives" should
be offered by EPA. Based on earlier
comments received from industry, EPA
believes most companies would not
support or participate in an "incentives-
based" environmental auditing program
with EPA. Moreover, general promises
to forgo inspections or reduce
enforcement responses in exchange for
companies' adoption of environmental
auditing programs—the "incentives"
most frequently mentioned in this
context—are fraught with legal and
policy obstacles.
Several commenters expressed
concern that states or localities might
use the interim guidance to require
auditing. The Agency disagrees that the
policy statement opens the way for
states and localities to require auditing.
No EPA policy can grant states or
localities any more (or less) authority
than they already possess. EPA believes
that the interim guidance effectively
encourages voluntary auditing. In fact,
Section II.B. of the policy states:
"because audit quality depends to a
large degree on genuine management
commitment to the program and its
objectives, auditing should remain a
voluntary program."
Another commenter suggested that
EPA should not expect an audit to
identify all potential problem areas or
conclude that a problem identified in an
audit reflects normal operations and
procedures. EPA agrees that an audit
report should clearly reflect these
realities and should be written to point
out the audit's limitations. However,
since EPA will not routinely request
audit reports, the Agency does not
believe these concerns raise issues
which need to be addressed in the
policy statement.
A second concern expressed by the
same commenter was that EPA should
acknowledge that environmental audits
are only part of a successful
environmental management program
and thus should not be expected to
cover every environmental issue or
solve all problems. EPA agrees and
accordingly has amended the statement
of purpose which appears at the end of
this preamble.
Yet another commenter thought EPA
should focus on environmental
performance results (compliance or non-
compliance), not on the processes or
vehicles used to achieve those results. In
general, EPA agrees with this statement
and will continue to focus on
environmental results. However, EPA .
also believes that such results can be
improved through Agency efforts to
identify and encourage effective
environmental management practices,
and will continue to encourage such
practices in non-regulatory ways.
A final general comment
recommended that EPA should sponsor
seminars for small businesses on how to
start auditing programs. EPA agrees that
such seminars would be useful.
However, since audit seminars already
are available from several private sector
organizations, EPA does not believe it
should intervene in that market, with the
possible exception of seminars for
government agencies, especially federal
agencies, for which EPA has a broad
mandate under Executive Order 12088 to
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25005
provide technical assistance for
environmental compliance.
Requests for Reports
EPA received 12 comments regarding
Agency requests for environmental audit
reports, far more than on any other topic
in the policy statement. One commenter
felt that EPA struck an appropriate
balance between respecting the need for
self-evaluation with some measure of
privacy, and allowing the Agency
enough flexibility of inquiry to
accomplish future statutory missions.
However, most commenters expressed
concern that the interim guidance did
not go far enough to assuage corporate
fears that EPA will use audit reports for
environmental compliance "witch
hunts." Several commenters suggested
additional specific assurances regarding
the circumstances under which EPA will
request such reports.
One commenter recommended that
EPA request audit reports only "when
the Agency can show the information it
needs to perform its statutory mission t
cannot be obtained from the monitoring,'
compliance or other data that is
otherwise reportable and/or accessible
to EPA. or where the Government deems
an audit report material to a criminal
investigation." EPA accepts this
recommendation in part. The Agency
believes it would not be in the best
interest of human health and the
environment to commit to making a
"showing" of a compelling information
need before ever requesting an audit
report While EPA may normally be
willing to do so, the Agency cannot rule
out in advance all circumstances in
which such a showing may not be
possible. However, it would be helpful
to further clarify that a request for an
audit report or a portion of a report
normally will be made when needed
information is not available by
alternative means. Therefore, EPA has
revised Section I1I.A., paragraph two
and added the phrase: "and usually
made where the information needed
cannot be obtained from monitoring,
reporting or other data otherwise
available to the Agency."
Another commenter suggested that
(except in the case of criminal
investigations) EPA should limit
requests for audit documents to specific
questions. By including the phrase "or
relevant portions of a report" in Section
III.A., EPA meant to emphasize it would
not request an entire audit document
when only a relevant portion would
suffice. Likewise, EPA fully intends not
to request even a portion of a report if
• needed information or data can be
otherwise obtained. To further clarify
this poinl EPA has added the phrase.
"most likely focused on particular
information n£eds rather than the entire
report," to thejsecond sentence of
paragraph two. Section III.A.
Incorporating the two comments above,
the first two sentences in paragraph two
of final Section III.A. now read: "EPA's
authority to request an audit report, or
relevant portions thereof, will be
exercised on a case-by-case basis where
the Agency determines it is needed to
accomplish a statutory mission or the
Government deems it to be material to a
criminal investigation. EPA expects such
requests to be limited, most likely
focused on particular information needs
rather than thp entire report, and usually
made where the information needed
cannot be obtained from monitoring.
reporting or oiher data otherwise
available to the Agency."
Other commenters recommended that
EPA not request audit reports under any
circumstances, that requests be
"restricted to only those legally
required," that requests be limited to
criminal investigations, or that requests
be made only when EPA has reason to
believe "that ^e audit programs or
reports are being used to conceal
evidence of environmental non-
compliance or otherwise being used in
bad faith." EPA appreciates concerns
underlying all of these comments and
has considered each carefully. However,
the Agency blelieves that these
recommendations do not strike the
appropriate balance between retaining
the flexibility to accomplish EPA's
statutory missions in future, unforeseen
circumstances, and acknowledging
regulated entities' need to self-evaluate
environmental performance with some
measure of privacy. Indeed, based on
prime informal comments, the small
number of formal comments received,
and the even smaller number of adverse
comments, EPA believes the final policy
statement should remain largely
unchanged from the interim version.
Elements of Effective Environmental
Auditing
Three commenters expressed
concerns regarding the seven general
elements EPA outlined in the Appendix
to the interim guidance.
One commenter noted that were EPA
to further expand or more fully detail
such elements, programs not specifically
fulfilling each element would then be
judged inadequate. EPA agrees that
presenting highly specific and
prescriptive auditing elements could be
counter-productive by not taking into
account numerous factors which vary
extensively from one organization to
another, but which may still result in
effective auditing programs.
Accordingly, EPA does not plan to
expand or more fully detail these
auditing element!!.
Another commenter asserted thai
states and localities should be cautioned
not to consider EPA's auditing elements
as mandatory steps. The Agency is fully
aware of this concern and in the interim
guidance noted its strong opinion that
"regulatory agencies should not attempt
to prescribe the precise form and
structure of regulated entities'
environmental management or auditing
programs." While EPA cannot require
state or local regulators to adopt this or
similar policies, the Agency does
strongly encourage them to do so. both
in the interim and final policies.
A final commenter thought the ,,
Appendix too specifically prescribed
what should and what should not be
included in an auditing program. Other
commenters, on the other hand, viewed
the elements described as very general
in nature. EPA agrees with these other
commenters. The elements are in no
way binding. Moreover, EPA believes
that most mature, effective
environmental auditing programs do
incorporate each of these general
elements in some form, and considers
them useful yardsticks for those
considering adopting or upgrading audit
programs. For these reasons EPA has
not revised the Appendix in today's
final policy statement.
Other Comments
Other significant comments addressed
EPA inspection priorities for, and
enforcement responses to, organizations
with environmental auditing programs.
One commenter, stressing that audit
programs are internal management
tools, took exception to the phrase in the
second paragraph of section III.B.l. of
the interim guidance which states that
environmental.audits can 'complement'
regulatory oversight. By using the word
'complement' in this context, EPA does
not intend to imply that audit reports
must be obtained by the Agency in order
to supplement regulatory inspections.
'Complement* is used in a broad sense
of being in addition to inspections and
providing something (i.e., self-
assessment) which otherwise would be
lacking. To clarify this point EPA has
added the phrase "by providing self-
assessment to assure compliance" after
"environmental audits may complement
inspections" in this paragraph.
The same commenter also .expressed
concern that, as EPA sets inspection
priorities, a company having an audit
program could appear to be a 'poor
performer' due to complete and aco'ji «te
reporting when measured against H
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Federal Register / Vol. 51, No. 131 / Wednesday. July 9. 1986 / Notices
company which reports something less
than required by law. EPA agrees that it
is important to communicate this fact to
Agency and state personnel, and will do
so. However, the Agency does not
believe a change in the policy statement
is necessary.
A further comment suggested EPA
should commit to take auditing
programs into account when assessing
all enforcement actions. However, in
order to maintain enforcement flexibility
under varied circumstances, the Agency
cannot promise reduced enforcement
responses to violations at all audited
facilities when other factors may be
overriding. Therefore the policy
statement 'continues to state that EPA
may exercise its decretion to consider
auditing programs as evidence of honest
and genuine efforts to assure
compliance, which would then be taken
into account in fashioning enforcement
responses to violations.
A final commenter suggested the
phrase "expeditiously correct
environmental problems" not be used in
the enforcement context since it implied
EPA would use an entity's record of
correcting nonregulated matters when
evaluating regulatory violations. EPA
did not intend for such an inference to
be made. EPA intended the term
"environmental problems" to refer to the
underlying circumstances which
eventually lead up to the violations. To
clarify this point, EPA is revising the
first two sentences of the paragraph to
which this comment refers by changing
"environmental problems" to "violations
and underlying environmental
problems" in the first sentence and to
"underlying environmental problems" in
the second sentence.
In a separate development EPA is
preparing an update of its January 1984
Federal Facilities Compliance Strategy,
which is referenced in section III. C. of
the auditing policy. The Strategy should
be completed and available on request
from EPA's Office of Federal Activities
later this year.
EPA thanks all commenters for
responding to the November 8,1985
publication. Today's notice is being
issued to inform regulated entities and
the public of EPA's final policy toward
environmental auditing. This policy was
developed to help (a) encourage
regulated entities to institutionalize
effective audit practices as one means of
improving compliance and sound
environmental management, and (b)
guide internal EPA actions directly
related to regulated entities'
environmental auditing programs. '
EPA will evaluate implementation of
this final policy to ensure it meets the
above goals and conlinues to encourage
better environmental management,
while strengthening the Agency's own
efforts to monitor and enforce
compliance with environmental
requirements.
II. General EPA Policy on
Environmental Auditing
A. Introduction
Environmental auditing is a
systematic, documented, periodic and
objective review by regulated entities *
of facility operations and practices
related to meeting environmental
requirements. Audits can be designed to
accomplish any or all of the following:
verify compliance with environmental
requirements; evaluate the effectiveness
of environmental management systems
already in place; or assess risks from
regulated and unregulated materials and
practices.
Auditing serves as a quality assurance
check to help improve the effectiveness
of basic environmental management by
verifying that management practices are
in place, functioning and adequate.
Environmental audits evaluate, and are
not a substitute for, direct compliance
activities such as obtaining permits,
installing controls, monitoring
compliance, reporting violations, and
keeping records. Environmental auditing
may verify but does not include
activities required by law, regulation or
permit (e.g., continuous emissions x
monitoring, composite correction plans
at wastewater treatment plants, etc.).
Audits do not in any way replace
regulatory agency inspections. However,
environmental audits can improve
compliance by complementing
conventional federal, state and local
oversight.
The appendix to this policy statement
outlines some basic elements of
environmental auditing (e.g., auditor
independence and top management
support) for use by those considering
implementation of effective auditing
programs to help achieve and maintain
compliance. Additional information on
environmental auditing practices can be
found in various published materials.2
1 "Regulated entities" include private firms and
public agencies with facilities subject to '
environmental regulation. Public agencies can
include federal, state or local agencies as well as
special-purpose organizations such as regional
sewage commissions.
2 See. e.g.. "Current Practices in Environmental
Auditing." EPA Report No. EPA-23O-09-83-006.
February 1984: "Annotated Bibliography on
Environmental Auditing." Fifth Edition. September
1985 both available from: Regulatory Reform Staff.
PM-223. EPA. 401 M Street SW. Washington. DC
2046(1.
Environmental auditing has developed
for sound business reasons, particularly
as a means of helping regulated entities
manage pollution control affirmatively -
over time instead of reacting to crises.
Auditing can result in improved facility
environmental performance, help
communicate effective solutions to
common environmental problems, focus
facility managers' attention on current
and upcoming regulatory requirements,
and generate protocols and checklists
which help facilities better manage
themselves. Auditing also can result in
better-integrated management of
environmental hazards, since auditors
frequently identify environmental
liabilities which go beyond regulatory
compliance. Companies, public entities
and federal facilities have employed a
variety of environmental auditing
practices in recent years. Several
hundred major firms in diverse
industries now have environmental
auditing programs, although they often
are known by other names such as
assessment, survey, surveillance, review
or appraisal.
While auditing has demonstrated its
usefulness to those with audit programs,
many others still do not audit.
Clarification of EPA's position regarding
auditing may help encourage regulated
entities to establish audit programs or
upgrade systems already in place.
B. EPA Encourages the Use of
Environmental Auditing
EPA encourages regulated entities to
adopt sound environmental
management practices to improve
environmental performance. In
particular, EPA encourages regulated
entities subject to environmental
regulations to institute environmental
auditing programs to help ensure the
adequacy of internal systems to achieve,
maintain and monitor compliance.
Implementation of environmental
auditing programs can result in better
identification, resolution and avoidance
of environmental problems, as well as
improvements to management practices.
Audits can be conducted effectively by
independent internal or third party
auditors. Larger organizations generally
have greater resources to devote to an
internal audit team, while smaller
entities might be more likely to use
outside auditors.
Regulated entities are responsible for
taking all necessary steps to ensure
compliance with environmental
requirements, whether or not they adopt
audit programs. Although environmental
laws do not require a regulated facility
to have an auditing program, ultimate
responsibility for the environmental
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25007
performance of the facility lies with top
management, which therefore has a
strong incentive to use reasonable
means, such as environmental auditing,
to secure reliable information of facility
compliance status.
EPA does not intend to dictate or
interfere with the environmental
management practices of private or
public organizations. Nor does EPA
intend to mandate auditing (though in
certain instances EPA may seek to
include provisions for environmental
auditing as part of settlement
agreements, as noted below]. Because
environmental auditing systems have
been widely adopted on a voluntary
basis in the past, and because audit
quality depends to a large degree upon
genuine management commitment to the
program and its objectives, auditing
should remain a voluntary activity.
HI. EPA Policy on Specific
Environmental Auditing Issues
A. Agency Requests for Audit Reports
EPA has broad statutory authority to
request relevant information on the
environmental compliance status of
regulated entities. However, EPA
believes routine Agency requests for
audit reports 3 could inhibit auditing in
the long run, decreasing both the
quantity and quality of audits
conducted. Therefore, as a matter of
policy, EPA will not routinely request
environmental audit reports.
EPA'o authority to request an audit
report, or relevant portions thereof, will
be exercised on a case-by-case basis
where the Agency determines it is
needed to accomplish a statutory
mission, or where the Government
deems it to be material to a criminal
investigation. EPA expects such
requests to be limited, most likely
focused on particular information needs
rather than the entire report, and usually
made where the information needed
cannot be obtained from monitoring,
reporting or other data otherwise
available to the Agency. Examples
would likely include situations where:
audits are conducted under consent
decrees or other settlement agreements;
a company has placed its management
practices at issue by raising them as a
defense; or state of mind or intent are a
relevant element of inquiry, such as
during a criminal investigation. This list
3 An "environmental audit report" is a written
report which candidly and thoroughly presents
findings from a review, conducted as part of an
environmental audit ai described in section II.A., of
facility environmental performance and practices.
An audit report in not a substitute for compliance
monitoring »««ports or olher reports or records which
may be WITH,! by EPA or other regiilaipry
is illustrative rather than exhaustive,
since there doubtless will be other
situations, not subject to prediction, in
which audit reports rather than
information may be required.
EPA acknowledges regulated entities'
need to self-evaluate environmental
performance with some measure of
privacy and encourages such activity.
However, audit reports may not shield
monitoring, compliance, or other
information that would otherwise be
reportable and/or accessible to EPA,
even if there is no explicit 'requirement'
to generate that data.4 Thus, this policy
does not alter riegulated entities' existing
or future obligations to monitor, record
or report information required under
environmental statutes, regulations or
permits, or to ajlow EPA access to that
information. Nor does this policy alter
EPA's authorit]!' to request and receive
any relevant information—including that
contained in audit reports—under
various environmental statutes (e.g.,
Clean Water Act section 308, Clean Air
Act sections ll'4 and 208) or in other
administrative or judicial proceedings.
Regulated entities also should be
aware that certain audit findings may by
law have to be reported to government
agencies. However, in addition to any
such requirements, EPA encourages
regulated entities to notify appropriate
State or Federal officials of findings
which suggest Significant environmental
or public health risks, even when not
specifically required to do so.
B. EPA Response to Environmental
Auditing
1. General Policy
EPA will not promise to forgo
inspections, reduce enforcement
responses, or offer other such incentives
in exchange for implementation of
environmental auditing or other sound
environmental management practices.
Indeed, a credible enforcement program
provides a strong incentive for regulated
entities to audit.
Regulatory agencies have an
obligation to assess source compliance
status independently and cannot
eliminate inspections for particular firms
or classes of firms. Although
environmental audits may complement
inspections by providing self-
assessment to assure compliance, they
are in no wayia substitute for regulatory
oversight. Moreover, certain statutes
(e.g. RCRA) and Agency policies
establish minimum facility inspection
frequencies to which EPA will adhere.
However, EPA will continue to
address environmental problems on a
priority basis and will consequently
inspect facilities with poor
environmental records and practices
more frequently. Since effective
environmental auditing helps
management identify and promptly
correct actual or potential problems,
audited facilities' environmental
performance should improve. Thus,
while EPA inspections of self-audited
facilities will continue, to the extent that
compliance performance is considered
in setting inspection priorities, facilities
with a good compliance history may be
subject to fewer inspections.
In fashioning enforcement responses
to violations, EPA policy is to take into
account, on a case-by-case basis, the
honest and genuine efforts of regulated
entities to avoid and promptly correct
violations and'underlying environmental
problems. When regulated entities take
reasonable precautions to avoid
noncompliance, expeditiously correct
underlying environmental problems'
discovered through audits or other
means, and implement measures to
prevent their recurrence, EPA may
exercise its discretion to consider such
actions as honest and genuine efforts to
assure compliance. Such consideration
applies particularly when a regulated
entity promptly reports violations or
compliance data which otherwise were
not required to be recorded or reported
to EPA.
2. Audit Provisions as Remedies in
Enforcement Actions
EPA may propose environmental
auditing provisions in consent decrees
and in other settlement negotiations
where auditing could provide a remedy
for identified problems and reduce the
likelihood of similar problems recurring
in the future.8 Environmental auditing
provisions are most likely to be
proposed in settlement negotiations
where:
• A pattern of violations can be
attributed, at least in part, to the
absence or poor functioning of an
environmental management system: or
• The type or nature of violations
indicates a likelihood that similar
noncompliance problems may exist or
occur elsewhere in the facility or at
other facilities operated by the regulated
entity.
4 See. for example. "Duties to Report or Uisduse
Information on the Environmental Aspects of
Business Activities." Environmental Law Institute
report to EPA. final report. September 1985.
11 iT-A is developing guidance for use by Agency
tipgcttatnrs in structuring appropriate environmental
.tudi! provisions for consent decrees and othor
si;n! negotiations.
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Through this consent decree approach
and other means, EPA may consider
how to encourage effective auditing by
publicly owned sewage treatment works
(POTWs). POTWs often have
compliance problems related to
operation and maintenance procedures
which can be addressed effectively
through the use of environmental
auditing. Under its National Municipal
Policy EPA already is requiring many
POTWs to develop composite correction
plans to identify and correct compliance
problems.
C. Environmental Auditing at Federal
Facilities
EPA encourages all federal agencies
subject to environmental laws and
regulations to institute environmental
auditing systems to help ensure the
adequacy of internal systems to achieve.
maintain and monitor compliance.
Environmental auditing at federal
facilities can be an effective supplement
to EPA and state inspections. Such
federal facility environmental audit
programs should be structured to
promptly identify environmental
problems and expenditiously develop
schedules for remedial action.
To the extent feasible, EPA will
provide technical assistance to help
federal agencies design and initiate
audit programs. Where appropriate. EPA
will enter into agreements with other
agencies to clarify the respective roles.
responsibilities and commitments of
each agency in conducting and
responding to federal facility
environmental audits.
With respect to inspections of self-
audited facilities (see section III.B.l
above) and requests for audit reports
(see section III.A above), EPA generally
will respond to environmental audits by
federal facilities in the same manner as
it does for other regulated entities, in
keeping with the spirit and intent of
Executive Order 12088 and the EPA
Federal Facilities Compliance Strategy
(January 1984, update forthcoming in
late 1988). Federal agencies should.
however, be aware that the Freedom of
Information Act will govern any
disclosure of audit reports or audit-
generated information requested from
federal agencies by the public.
When federal agencies discover
significant violations through an
environmental audit, EPA encourages
them to submit the related audit findings
and remedial action plans expeditiously
to the applicable EPA regional office
(and responsible state agencies, where
appropriate) even when not specifically
required to do so. EPA will review the *
audit findings and action plans and
either provide written approval or
negotiate a Federal Facilities
Compliance Agreement. EPA will utilize
the escalation procedures provided in
Executive Order 12088 and the EPA
Federal Facilities Compliance Strategy
only when agreement between agencies
cannot be reached. In any event, federal
agencies are expected to report pollution
abatement projects involving costs
(necessary to correct problems
discovered through the audit) to EPA in
accordance with OMB Circular A-106.
Upon request, and in appropriate
circumstances, EPA will assist affected
federal agencies through coordination of
any public release of audit findings with
approved action plans once agreement
has been reached.
IV. Relationship td State or Local
Regulatory Agencies
State and local regulatory agencies
have independent jurisdiction over
regulated entities. EPA encourages them
to adopt these or similar policies, in
order to advance the use of effective
environmental auditing in a consistent
manner.
EPA recognizes that some states have
already undertaken environmental
auditing initiatives which differ
somewhat from this policy. Other states
also may want to develop auditing
policies which accommodate their
particular heeds or circumstances.
Nothing in this policy statement is
intended to preempt or preclude states
from developing other approaches to
environmental auditing. EPA encourages
state and local authorities to consider
the basic principles which guided the
Agency in developing this policy:
• Regulated entities must continue to
report or record compliance information
required under existing statutes or
regulations, regardless of whether such
information is generated by an
environmental audit or contained in an
audit report. Required information
cannot be withheld merely because it is
generated by an audit rather than by
some other means.
• Regulatory agencies cannot make
promises to forgo or limit enforcement
action against a particular facility or
class of facilities in exchange for the use
of environmental auditing systems.
However, such agencies may use their
discretion to adjust enforcement actions
on a case-by-case basis in response to
honest and genuine efforts by regulated
entities to assure environmental
compliance.
• When setting inspection priorities
regulatory agencies should focus to the
extent possible on compliance
performance and environmental results.
• Regulatory agencies must continue
to meet minimum program requirements
(e.g., minimum inspection requirements,
etc.).
" Regulatory agencies should not
attempt to prescribe the precise form
and structure of regulated entities'
environmental management or auditing
programs.
An effective state/federal partnership
is needed to accomplish the mutual goal
of achieving and maintaining high levels
of compliance with environmental laws
and regulations. The greater the
consistency between state or local
policies and this federal response to
environmental auditing, the greater the
degree to which sound auditing
practices might be adopted and
compliance levels improve.
Dated: June 28.1936.
Lee M. Thomas.
Administrator.
Appendix—Elements of Effective
Environmental Auditing Programs
Introduction: Environmental auditing
is a systematic, documented, periodic
and objective review by a regulated
entity of facility operations and
practices related to meeting
environmental requirements.
Private sector environmental audits of
facilities have been conducted for
several years and have taken a variety
of forms, in part to accommodate unique
organizational structures and
circumstances. Nevertheless, effective
environmental audits appear to have
certain discernible elements in common
with other kinds of audits. Standards for
internal audits have been documented
extensively. The elements outlined
below draw heavily on two of these
documents: "Compendium of Audit
Standards" («1983, Walter Willborn,
American Society for Quality Control)
and "Standards for the Professional
Practice of Internal Auditing" (C1981,
The Institute of Internal Auditors, Inc.).
They also reflect Agency analyses
conducted over the last several years.
Performance-oriented auditing
elements are outlined here to help
accomplish several objectives. A general
description of features of effective,
mature audit programs can help those
starting audit programs, especially
federal agencies and smaller businesses.
These elements also indicate the
attributes of auditing EPA generally
considers important to ensure program
effectiveness. Regulatory agencies may
use these elements in negotiating
environmental auditing provisions for
consent decrees. Finally, these elements
can help guide states and localities
considering auditing initiatives.
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25009
An effective environmental auditing
system will likely include the following
general elements:
I. Explicit top management support for
environmental auditing and
commitment to follow-up on audit
findings. Management support may be
demonstrated by a written policy
articulating upper management support
for the auditing program, and for
compliance with all pertinent
requirements, including corporate
policies and permit requirements as well
as federal, state and local statutes and
regulations.
Management support for the auditing
program also should be demonstrated
by an explicit written commitment to
follow-up on audit findings to correct
identified problems and prevent their
recurrence.
II. An environmental auditing function
independent of audited activities. The
status or organizational locus of
environmental auditors should be
sufficient to ensure objective and
unobstructed inquiry, observation and
testing. Auditor objectivity should not
be impaired by personal relationships.
financial or other conflicts of interest,
interference with free inquiry or
judgment, or fear of potential
retribution.
III. Adequate team staffing and
auditor training. Environmental auditors
should possess or have ready access to
the knowledge, skills, and disciplines
needed to accomplish audit objectives.
Each individual auditor should comply
with the company's professional
standards of conduct. Auditors, whether
full-time or part-time, should maintain
their technical and analytical
competence through continuing
education and training.
IV. Explicit audit program objectives,
acope, resources and frequency. At a
minimum, audit objectives should
include assessing compliance with
applicable environmental laws and
evaluating the adequacy of internal
compliance policies, procedures and
personnel training programs to ensure
continued compliance.
Audits should be based on a process
which provides auditors: all corporate
policies, permits, and federal, state, and
local regulations pertinent to the facility;
and checklists or protocols addressing
specific features that should be
evaluated by auditors.
Explicit written audit procedures
generally should be used for planning
audits, establishing audit scope,
examining and-evaluating audit findings,
communicating audit results, and
following-up.
V. A process which collects, analyzes,
interprets and documents information
sufficient to achieve audit objectives.
Information should be collected before
and during an onsite visit regarding
environmentaljcompliance(l),
environmentalimanagement
effectiveness{2), and other matters (3}
related to audi't objectives and scope.
This information should be sufficient,
reliable, relevant and useful to provide a ,
sound basis for audit findings and
recommendations.
a. Sufficient information is factual,
adequate and convincing so that a
prudent, informed person would be
likely to reach the same conclusions as
the auditor.
b. Reliable information is the best
attainable through use of appropriate
audit techniques.
c. Relevant information supports audit
findings and recommendations and is
consistent with the objectives for the
audit.
d. Useful information helps the
organization meet its goals.
The audit process should include a
periodic review of the reliability and
integrity of this information and the
means used to identify, measure,
classify and report it. Audit procedures,
including the testing and sampling
techniques employed, should be selected
in advance, to the extent practical, and
expanded or altered if circumstances
warrant. The process of collecting,
analyzing, interpreting, and
documenting information should provide
reasonable assurance that audit
objectivity is maintained and audit goals
are met.
VI. A process which includes specific
procedures to promptly prepare candid,
clear and appropriate written reports on
audit findings, corrective actions, and
schedules for, implementation,
Procedures should be in place to ensure
that such information is communicated
to managers, including facility and
corporate management, who can
evaluate the information and ensure
correction of identified problems.
Procedures also should be in place for
determining what internal findings are
rcportable to-state or federal agencies.
VII. A process which includes quality
assurance procedures to assure the
accuracy and thoroughness of
environmental audits. Quality assurance
may be accomplished through
supervision, independent internal
reviews, external reviews, or a
combination of these approaches.
Footnotes to Appendix
(7) A comprehensive assessment of
compliance with federal environmental
regulations requires an analysis of facility
performance against numerous
environmental statutes and implementing
regulations. These statutes include:
Resource Conservation and Recovery Act
Federal Water Pollution Control Act
Clean Air Act
Hazardous Materials Transportation Act
Toxic Substances Control Act
Comprehensive Environmental Response.
Compensation and Liability Act
Safe Drinking Water Act
Federal Insecticide, Fungicide and
Rodenticide Act
Marine Protection, Research and Sanctuaries
Act
Uranium Mill Tailings Radiation Control Act
In addition, state and local government are
likely to have their own environmental laws.
Many states have been delegated authority to
administer federal programs. Many local
governments' building, fire, safety and health
codes also have environmental requirements
relevant to an audit evaluation.
(2) An environmental audit could go well
beyond the type of compliance assessment
normally conducted during regulatory
inspections, for example, by evaluating
policies and practices, regardless of whether
they are part of the environmental system or
the operating and maintenance procedures.
Specifically, audita can evaluate the extent to
which systems or procedures:
t. Develop organizational environmental
policies which: a. implement regulatory
requirements; b. pa^ovide management
guidance for environmental hazards not
specifically addressed in regulations;
2. Train and motivate facility personnel to
work in an environmentally-acceptable
manner and to understand and comply with
government regulations and the entity's
environmental policy;
3. Communicate relevant environmental
developments expeditiously to facility and
other personnel;
4. Communicate effectively with
government and the public regarding serious
environmental incidents;
5. Require third parties working for. with or
on behalf of the organization to follow its
environmental procedures:
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25010
Federal Register / Vol. 51. No. 131 / Wednesday. July 9. 1986 / Notices
6. Make proficient personnel available at
all times to carry out environmental
(especially emergency) procedures:
7. Incorporate environmental protection
into written operating procedures:
8. Apply best management practice!) and
operating procedures, including "good
housekeeping" techniques:
9. Institute preventive and corrective
main'pnance systems to minimize actual and
polf ...il environmental harm:
10. Utilize best available process and
control technologies:
11. Use most-effective sampling and
monitoring techniques, test methods.
recordkueping systems or reporting protocols
(beyond minimum legal requirements):
12. Evaluate causes behind any serious
environmental incidents and establish
procedures to avoid recurrence;
13. Exploit source reduction, recycle and
reuse potential wherever practical; and
14. Substitute materials or processes to
allow use of the least-hazardous substances
feasible.
(3] Auditors could also assess
environmental risks and uncertainties.
|KR Doc. 86-15423 Filed 7-8-86 8:45 ami
BILLING CODE 6SSO-SO-M
5-35
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ATTACHMENT B
5-37
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B. Contractor Listing and Debarment/Suspension
5-38
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CNVInUNMcfilAi.l-'rtO fCC i lU'ft AucNCV
WASHINGTON, O.C. 20460
3 1990
MEMORANDUM
CrPCc C"
ENFORCEMENT AKQ.
COMPLIANCE MONITORING
SUBJECT: Final Report on Contractor Listing and Debarment/
Suspension—Enforcement Leveraging Workgroup
FROM:
TO:
Robert G. Heiss
Associate Enforcement Counsel
for Water
Douglas R. Blazey
Regional Counsel, Region II
As a follow up to our conference call on March 28, I have
made final additions to th« preliminary report on this subject
that we provided March 12, 1990. Further, as you are aware,
responsibility for additional follow up on the contractor listing
and debarment/ suspension issue in connection with the Enforcement
for the 90s project has be«n transferred to Cheryl Wasserman in
connection with her work on innovative enforcement.
BACKGROUND
The Agency has two sanctions that can be used as incentives
for compliance and a» disincentives for violating environmental
laws:
1. Contractor Listing under 40 CFR Part 15; and
2. Debarment and Suspension under 40 CFR Part 32.
The applications and potential uses of these sanctions to
leverage our enforcement rosources are outlined below. For the
purposes of this project, we considered only the discretionary
use of Part 15 , not the mandatory listing required for criminal
convictions under th« Clean Water Act (CWA) or Clean Air Act
(CAA) . Part 32 is entirely discretionary. Th« effect of either
of these sanctions in to pa:aven£ A firm that violates
environmental laws from contracting for business with any agency
in the federal government and from receiving any financial aid
from the federal government.
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USE OF SNCTIONS
Listing
Ovar the past three years, the Contractor Listing Official
has r«c®iv«d four to five referrals a year. Few of those
referrals result in listing. Tha major banafit of ,th« referrals
seams to be shortaning sattlament negotiations , thus saving
Regional resourcas. '
Debarmant /Suspans ion |
Tha Grants Administration Division reviews contractor
debarment/suspension recommendations about 100 times a year.
About 70 percent of these recommendations end in settlement,
usually of criminal enforcement actions, e.g., contract fraud.
The Grants office uses debarment/suspension to leverage
settlements to include compliance programs to ensure honesty in
future dealings with the federal government.
path Sanctions
Once a month, GSA publisher its "List of Parties Excluded
from Federal Procurement and Monprocurement Activities,11 This
3ist is distributed to all government contracting offices and is
accessible by computer. Government contracting officers are
uupposed to consult this list before awarding contracts or other
financial aid. Further, every firm bidding on a government
contract must certify that it is not on the GSA list.
EPA tracks the GSA lists to ensure that listed facilities
are included. However, neither GSA nor SPA has any way of
knowing whether a listed firm inadvertently wins a contract or is
approved for financial aid.
COMPARISON OF SANCTIONS j
A comparison of contrmctoar listing with debarment/suspension
is outlined below.
4Q CFR Part IS
A. Sanction for violations of certain sections of the
Cl«an Air Act and Clean wateif Act only.
Bv Sanction -affects oiily-the violating facility, not the
nntire firm.
C. Facility has the right to a listing proceeding to
determine the propriety of the proposed listing before the
listing is affective.
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40 CFR Part 32
A. Sanction for violations of any federal lavs,
environmental or otherwise.
B. sanction affects all of the debarred or suspended
firm's facilities.
c. Respondent in a debarment/suspension action has an
opportunity for a hearing to contest the proposed debarnent or
suspension.
D. Sanction can be used only in the public interest and to
protect the federal government and not for purposes of punishment
( §32 . 115 (b) .
RELEVANT INFORMATION ALREADY
TW MA BfFQUegmT
40 CFR Part 15
Information supporting a Regional request that a facility be
listed is already developed as a usual part of preparing a
litigation report. The criteria for listing that the Regions
could apply routinely while preparing an enforcement action are:
1. whether the facility has been convicted under 1113 fc) (2)
of the CAA;
2. Whether the facility has been convicted of a criminal
offense by a state court;
3. Whether a federal ox* state court has issued a civil
ruling, including an injunction, judgment or consent decree,
as a result of noncompliance with CAA or CWA standards at
the facility recommended for listing;
4. Whether the facility has violated an administrative
order issued under certain sections of the CAA and CWA;
5. Whether EPA ha* issued an MOV under the CAA; or
6. Whether the Department of Justice has filed a civil
judicial action in a federal court against the facility
recommended for listing.
If one -of the criteria above is .present, the Assistant
Administrator for Enforcement can make a determination as to
whether the recommended facility has a "record of continuing or
recurring noncompliance1* and list that facility.
5-41
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Part 32
Information that Regional offices already collect in
preparing litigation reports jbhat also are criteria for debarment
or suspension are:
l. Whether the firm or persons in the firm are subject, to
criminal conviction or civil judgment for falsification or
deutruction of records, or -making false statements;
i
2. Whether the firm or persons in the firm are subject to
criminal conviction or civil judgment for committing any
other offense indicating a lack of business integrity that
directly affects the present responsibility of those
persons;
3. Whether persona in the firm willfully violated a
statutory or regulatory provision or requirement applicable
to a public agreement or transaction; or
4. Whether the firm or persons in the firm failed to pay a
single substantial debt,; osr a number of outstanding debts
(but not including sums owed to the IRS) owed to any federal
agency, e.g., fines, civil penalties, stipulated penalties.
If one of the criteria above is present, the Director of the
Grants Administration Division may impose debarment or
suspension.
I
CONCLUSION AND RECOMMENDATIONS
The possibility of being listed, debarred, or suspended may
be an additional incentive to violating firms to enter into a
self -monitor ing, self -confession, and self -assessment program.
The Agency cannot use these sanctions to coerce firms into the
program, but focusing the regulated community's attention on
these sanctions may <§ncourag« the kind of self -monitor ing that
would leverage the Agency's tesources as well as implement the
government's policy of doing business only with responsible
persons* .
We make the following recommendations:
1.
THE
AHP ngBAaMgNT/SUSPENSION
HQMCQMPLIAKCE. W« need to distribute more widely
within the Agency information about these powerful and
currently available leveraging tools and prepare
additional guidance to assist field enforcement units
to identify priority candidates for either Part 15
Contractor Listing |or Part 32 Debarment and Suspension.
5-42
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2
4.
This would include guidance on evaluating a firm's
compliance with court or administrative orders that
resulted in the listing to determine whether del ia ting
is appropriate. As a next step, informational guidance
is required that describes the debarm«nt/suspension
sanction, the statutory and regulatory prerequisites to
its application and in general, its availability to EPA
and to enforcement officials. Informational guidance
on both contractor listing and debarment/ suspension
needs to be widely distributed to EPA enforcement
officials.
UTILIZE AS A CRITERION FOR APPLICATION OP EITHER PAST
15 OR PART 32 THE ACTIVE ENVIRONMENTAL MANAGEMENT
ABATEMENT ACTIVITIES. Each enforcement tool, if
networked, has the potential to strengthen the impact
or utilization of other progress. A willingness to not
apply these additional sanctions when a regulatee self-
confesses or demonstrates proactive abatement should
encourage that environmentally beneficial conduct. As
a next step, the Agency needs to develop a policy
interpreting previsions of the contractor listing and
debarment/ suspension process with particular focus on
activity by the candidate, such as self confession or
voluntary implementation of more active abatement
procedures, and its relevance to the Agency's listing
or debarment/ suspension decision.
ENFORCEMEHT POTENTIAL OF EVERY LITIGATION
REFERRAL BY REVIEWING AJ^ f^ VIOLATION HISTORY
CONTAINED THEREIN AND SCREENING FOR LISTING OR
DgBARMENT/susPENSlQN CANDIDATES. Every litigation
referral essentially contains a review of all the
information required to make a listing or a
debarment/ suspension decision. Although it will take
additional effort to organize and evaluate it for its
listing or debarment/ euspens ion potential, the
leveraging potential is substantial. OS should provide
guidance requiring an Agency assessment of the
applicability of these sanctions in connection with all
enforcement Actions.
CAPITM.T2B QM EPA DATA THAT IS BETTER IMTEGRATED TO
TP1MTTFY CROSS MEDIA MONCQMPLIANCE AMP (2) IDENTIFY THE
BETWEEN THE GOVERNMENT AKP, A, MSTIlf* QB
PEBARMENry SUSPENSION CANDID ATE. The Agency's data
integration efforts can enhance the usefulness of
existing Agency or public data in making determinations
relevant to the appropriate case by case application of
the contractor listing and debarment/ouspension
5-43
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sanctions. With moir« information raadily availabla to
the Aaancv, application of this sanction can bacoma
mora routins and predictable, and its lavaraging impact
will most effectively b« utilized.
Additional recommendations may be appropriate as further
experience and study of these enforcement lavarmging tools occur.
cc: Edward E. Raich
Kathy summarlaa
Choryl.Wassarman
Donna Flatch«r (A-101F)
Connie Musgrove (IN-342)
Richard Casp« (2WMD)
Fr«d Stishl (LE-134P)
Bmce Diamond (OS-500)
^•:rr«ll Bunt (LE-133)
Allyn Davis (6HWMD)
Bill Dickerson (A-104)
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ATTACHMENT C
5-45
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C. Cooperation with Citizens and Other Non-Governmental
Organizations Committed to Environmental
Compliance and Enforcement
5-46
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UNITED STATES ENVIRONMENTAL P«OTECTION AGENCV
OATE: Harch 30, 1990 REGION II
Cooperation With Citizens and Other Non-Government Organizations
SUBJECT: Committed to Environmental Compliance and Enforcement
FROM-, Douglas R. Blasey
Regional Counsel,
T0: Donna Fletcher (A-101F)
Connie Musgrove (EN-342)
Fred Stiehl (LE-134P)
Bruce Diamond (OS-500)
Terrell Hunt (LE-134A)
Bob Heias (LE-134W)
Allyn Davis (6HWMD)
Bill Dickerson (A-104)
Craig Johnson, DOJ
Those of us in government who manage the regulatory programs,
encourage and require compliance, and apply enforcement When
compliance is not forthcoming often forget that the Congress did
not intend us to be the sole or exclusive repositories of enforce-
ment authority. Congress envisioned that citizens and other non-
governmental groups could affirmatively supplement the compliance
and enforcement activities of the government and empowered such
groups to bring enforcement action* when EPA declined to act
after notification. This empowerment of citizens to act in lieu
of the governnent is a concept virtually as old as the nation
itself and has antecedents in the environmental area going back
to the turn of the century in the Rivers and Harbors Act and its
authorization of qui tarn actions.
For many reasons government has historically not been an active
cooperator with citizens and their various advocacy groups who
wish to utilize their Congressionally authorized authority to
undertake enforcement actions. Some of the reasons that cooper-
ation has been limited are well founded in problems inherent in
direct cooperation between government and citizens in this essen-
tially governmental function. For example, information gathered
by the Agency may be confidential and be required to be maintained
ai such in order to protect the integrity of our own anticipated
enforcement, whether it; b« a civil or criminal action. In other
cases, citizens groups may bring actions and seek relief incon-
sistent with national penalty or compliance policy.
Nonetheless, recent hiotory also shows a substantial increase in
citizen suit enforcement particularly for Clean Water Act (CWA)
violations and now also fSr violations of the Emergency Planning
and community Right-to»Know Act (EPCRA). The Safe Drinking Water
let (SDWA), the Clean Air Act (CAA), the Toxic Substances Control
5-47
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Act (TSCA), the Ocean Dumping Act and the Solid Waste Disposal
Act (RCRA) all have citizen suit authority. We can expect the
trend toward* increasing uae of citizen suit authority will only
accelerate in the future due to the ever heightening environmental
consciousness of the public and the resource "squeeze" on govern-
ment that precludes us from addressing every violation. To the
extent that citizens groups successfully undertake enforcement, &
positive result has been achieved; namely, the availability of
citizen suit remedies has served to leverage our scarce enforce-
ment resources. More to thej point, Congress has leveraged the
scarce federal enforcement resources. Moreover, to the extent
that the regulated community views citizens enforcement as
unpredictable, an even greater deterent effect is achieved by the
reality of active, broadly spread citizen suit enforcement as
regulatees seek to achieve compliance to avoid not only federal
and staite prosecution but also to avoid independent citizen
enforcement actions.
Given this background, can further incentives to compliance be
achievtsd in this arena by some level of cooperation between
government and citizen enforcers? Hopefully the answer is yes.
Traditionally, the government has accepted reports of violations
and excursions from permit limits or other standards from citizens
as an initial indication of a violation. The government agency
then "follows up" by sendingj an inspector to further investigate
the problem. Tho most sophisticated citizen compliance programs
have involved river or air watches including formal monitoring
programs where citizens in an organized fashion supplement the
existing eyes, ears and nose; of the Agency. However, we have
seldom cooperated or inter-acted with citizens groups to target
areas for combined federal, state and citizen enforcement or to
stimulate additional, independent citizen enforcement to fill a
gap in government coverage that we would not otherwise address.
We speculate that at the very least enhanced cooperation between
the government and citizens group* should result in a more posi-
tive attitude toward the government by the citizens group. Citi-
zens groups often now attack the Agency for dilatory or absent
enforcement rather than compliment EPA and state agencies for
what they do accomplish. To those of us active in the field, it
is a truism that there are nore violations that we can address,
consequently, we do not think the failure to address every vio-
lation should *ubject us to criticism. Rather, we think we
should be complimented for developing targeting and priority
systems that allow us to direct our resources at the mo*t
"important" violation*. Thi* targeting unfortunately leaves
a significant number of lesser violation* unaddreased. We can
only be pleaaed with any effort on the part of citizen* groups
that cover* *ome of the arena we are unable to cover. However,
our collective credibility would be enhanced if citizen* viewed
their activities a* a cooperative venture with us in Aid.of the
548
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- 3 -
general enforcement policy of the government rather than in the
manner adversarial to us. We believe a field test or pilot
project of a cooperative effort would allow us to explore all the
pluses and minuses, costs and benefits, problems and opportunities
associated with such a sore interactive relationship.
To this end Region II has volunteered to develop and field test a
paradigm of a cooperative EPA, state, citizen enforcement effort.
The Deputy Regional Administrator is fully committed to this
project and wishes to take an active part in it. We are aware
that both headquarters and DOJ have an interest in such a project
because of the complex legal and policy issues involved, and we
would welcome their participation in this prototype. Given the
fundamental and profound involvement of state government in
virtually all of the basic enforcement programs, we would hope to
enlist our states' active involvement in the prototype project.
Our expected first step would be to invite each state to partici-
pate with us in an effort to establish a collaborative venture
with the active citizens' groups in each jurisdiction. The
sta:.ad purpose of the coordinated effort would include the
following elements:
0 To ensure maximum enforcement pressures are brought to bear
on violators of federal and state environmental laws.
0 To ensure that penalties and relief sought by citizens
groups are at least as stringent as those that we would
seek.
9 To coordinate the efforts of federal, state and local govern-
ments with that of environmental citizens groups to avoid
conflict, minimize duplication of efforts, and reach a com-
mon goal of maximizing compliance with environmental laws.
* To foster a greater spirit of understanding and cooperation
between federal and ntate governments and citizens on
environmental enforcement issues.
• To optimize the opportunity for pollution prevention and
waste minimization in enforcement actions by all parties.
Assuming each state i» willing to participate, we would plan for
the first major meeting with citizens groups. We envision the
first meeting to be quite general in tone to see if the basis for
cooperation or an interest in cooperation exists. We do not
expect to "jump" immediately into such hard issues as data
sharing, data protection, or targeting. Issues related to
confidentiality, data sharing, specific targeting, allocation of
violations, and/or assignment of responnibility for certain types
of violations would all b« deferred. The initial session is to
determine if the governments and the citizens groups can identify
5-49
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!- 4 -
benefits from the more cooperative approach. The benefits could
be as simple as sharing general information on compliance/enforce-
ment goaila which would be useful to the other in developing a
more active and coordinated relationship. Once it is established
that there is a basis for cooperation, further meetings will be
held to develop particular areas of cooperation and all of its
ramifications. A tentative schedule to test this paradigm over
several months is suggested below:
Start a) Internal meeting with media Division Directors, OECM,
Month 1 headquarters compliance offices and DOJ to scope out
issue/concerns and .to develop discussion items for
initial meetings with states and citizen environmental 1
groups.
b) Discussions between EPA and state counterparts on
the draft meeting proposal.
Month 2 a) Develop proposed agenda for the meeting of EPA, the
state agency and the citizen environmental groups.
'
b) Assemble list of active groups.
-
c) Invite citizen environmental groups to an intro-
ductory meeting.
Month 3 Hold meeting with citizen environmental groups to solicit:
their interest in and comments upon the establishment of
an ongoing, cooperative enforcement relationship.
i
Hefifeh 4 Additional nesting* a* necessary to develop wofkinf
protocols of cooperation*
Month 5 Implement cooperative protocols.
A number of issues will have to be addressed in the process of
developing cooperative protocols. They include:
• Procedures to increase effective utilization of publically
available compliance information (information involving any
criminal enforcement on the part of the federal or state
governments will not b« shared).
• Procedure* to identify areas of enforcement emphasis and, as
appropriate, possible enforcement targets.
• Commitment to respecting the confidentiality of the discussions.
• A statement must be included that recognizes that this agree-
ment does not change our delegation agreement with our states.
• Any new relationship* wi|th citizens cannot restrict our
statutory authorities. !
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ATTACHMENT D
5-51
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0. Field Test the Leveraging Benefit of Utilizing a
Regional Administrator's Authority and
Public! Information Access
5-52
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.•» v *i i * *
i«to4^>
V. «*s
V I It U N IVl ^ N f
P M
«.>».:•«. N A
SUBJECT: Regional Enforcam«nt Pilot; Projuct
FROH: Rob«rt E. Layton Jr., P.S.
Regional Xdwiniutrator (6,A)
TO:
-------
BitoftzmoM or
Region 6
proposal for Regional
Enforcement Pilot Project
OF
The focus of the Regional Enforcement Pilot Project (REPP) is a two
prong approach that will attempt to obtain a reduction of risk frota
toxic chemicals emitted from industrial sources in Region 6. Th*
first approach will initiate, a. review of selected sources
identified in the recently released Headquarters Air Toxics
Exposuro and Risk Information System (ATER1S), also referred to as
the "Wawaan" list, to explore (1) the possibility of reducing toxic
emissions (2) insuring compliance with all regulatory provisions
and (3) conducting u complete multi-media risk assessment. The
second approach will direct etar attention to a specific geographic
area in Region 6, the Saton i Rouge - New Orleans corridor, well
known for its -high concentration of industrial sources emitting
toxic chemicals. This second initiative will initiate a multi-
media compliance investigation and subsequent multi-media ri«k
assessment of selected sources in the target area to explore the
potential for risk reduction. The terr. multi-media includes at a
minimum the Regional air, water, haiardour. waste, super fund, toxic
substances, wetlands, ground^ater, underground injection, under-
ground storage tank and pesticides programs. Personnel from al.
Divisions within the Regional! Office will be participating in this
project. !
This pilot project will to* referred to as the Toxic Release
Reduction Project. In addition, th* ATERIS initiative will fc«
called PHASE X. while the Baton Rouge/Hew Orleans initiative wi.l
be referred to as PHASE II. 2n general both approaches will be on
a parallel track, but th« PHASE I initiative is expected to rove
quicker into the negotiation phase because of the work tha. has
already been done toy Headquarters offices.
In the PHASE I initiative target facilities for the initial group
will bo those with a recalculated individual risk of 10 or
Greater, as indicated on the revised ATERIS list of .January 2.
1990? of which ther« are five in Region 6. These facilities ara
the following: |
• Texaco, Port Heches, Texas
Kobil, Beaunoht, Texas
Shell Oil, 0««r Park, Texas
Anoripol synpol. Port Heches, Texas
American Chrome, Corpus Christ!, Texas
5-54
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Although several Headquarters offices have initiated some contact
with three of the atoov® 1'aciliti**, the Regional office win
coordinate its activities in concert with those Headquarters
initiatives. The Regional review will address all media, while the
current Headquarters initiatives are addressing a specific air
pollutant eaissien situation.
A key feature of the PHASE 2 initiative will be a meeting between
the Regional Administrator, State Officials, and Company CEOs; who
have not already met with El?A to- discuss reductions to reduce the
risk identified by tho ATERIS data and regional analysis of T3I
data. Multi-media inspections and analysis will also be conducted
to insure facility compliance and assess other aedia risk problems,
if any, at the five target facilities. Enforcement actions will
be initiated as Appropriate.
The PHASE II project study area will bo the parishes or parish
along the Mississippi River starting at Baton Rouge, Louisiana
downstream to New Orleans. A risk screening will be performed an
the facilities reporting under SARA Section 313 which will consider
the relative toxicities. of the chemical emissions as well as trie
quantity of emissions. A number of facilities will be chosen tor
multimedia investigations based on this screening, compliance
history review and other data available to the regional office.
PHASE Z and II initiatives will focus en reductions of toxic
chemical enissions which have exhibited a demonstrable or
predictable effect on public health and the environment and will
seek facility alterations through the following mechanisms.
Formal Enforcement Actions • Multimedia statutory provisions
would be utilized to achieve compliance with existing
provisions of regulations and peraits. Negotiated settlements
could include reductions in unregulated emissions.
Review of Existing Permits - To be considered by all media
where results of inspections reveal a need to revise existing
permits to address « problem whi<& would net result in an
enforcement action.
Non-traditional Hst&ods to If feet Emissions Reductions -This
could include such techniques as a a«eting between the
Regional Administrate? and selected facilities to discuss
voluntary plant-wids omission reductions. Another possible
^technique would be to utilise existing authorities) tnach as the
RCRA pewit program or the Super fund progran to obtain
reductions in unregulated air and water emissions
Use of Imminent and Substantial Enhancement provisions of the
various media regulatory authorities. This aight be necessary
for high risk facilities where there is «n urqent need for
5-55
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significant EPA action to reduce the risks to the public
health and environment.
i
Environmental Awards Program - Continue rational environmental
awards program for facilities which arc in compliance with all
•nvironnental regulation* in an exemplary fashion. Consider
additional criteria for eligibility such as voluntary
participation by facilities in this pilot project to l.ov»r
total emissions by at least- 90%.
• voluntary Compliance - When facilities agree to voluntarily
exceed current regulatory, requirements to lower emissions at
facilities, and/or implement pollution prevention measurer.
consider incentives such as decreasing EPA surveillance and
inspections and only require self auditing to encourage
voluntary compliance.
.
• Voluntary Reporting - T©|encourage facilities to report and
correct violations, consider incentives sue** as agreement to
not initiate criminal prosecution for the violations a
facility voluntarily reports which EPA is not awaris of.
Reduction In Penalties For Enforcement Actions -- consider
incentives tor facilities to lower emissions o: unregulated
chemicals at facilities such as agreement to love? penalties
proposed for violations detected during multimedia <»valuatisr.
of the facility.
Multi-media inspections will be conducted along with multi-redia
information requests for data and wasta management practices. A
keystone of the pilot project will be to review the potential tor
pollution prevention.
A significant activity to support this project is integration of
data from all existing sources .into one system, such as the
Geographic Information Systea (CIS). A CIS database will be
developed to support this project. The purpose of this CIS wj.ll
be;
spiitiaUy integrate compliance, release, amfeient, and
po|>u.lation data,
i
conduct geographic analyses of the proximity pollutant source
to human populations and sensitive habitats,
provide a frame worlc for facility specific and area wide
characterization, end
• track and display the* .progress and results of the project.
5-56
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The CIS will bt developed in ARC/ 1 MFC on the Regions 's cis'cortcu-
ttr. Environaental data will be pulled from several S?A data&asaa.
Digital data will bs secured from USGS, The State or Louisiana, the
Census Bureau, ar.d other available sources. A survey of applicable
program and other Regions and EPA offices will be conducted.
ENVIRONMENTAL RESULTS YQ
-------
5
Enforcement Communications Strategy workgroup - TO
develop a communication strategy dealing with -he
regional enforcement pilot project and related actions
that result from the pilot.
To implement the project, .specific enforcement teams will be
developed across nedia programs And will if possible, include both
state and EPA personnel. Xdaally a team will be assigned to each
target facility and will b« responsible for coordinating tne
activities associated witft the project at that facility. Each team
will bit headed by a workgroup member. Team members will t>e
designated by each madia. Depending on th« situation, an
individual may serve on mora than one team.
Although the pilot will be implemented through existing
organizational structure, one of the sub-element* o£ this pilot
will be to review the need for any organizational change in order
t;o fully implement a multi-madia enforcement effort.
JHAT2 AGENCY ZMVOLVXMXMT/ZSStriS
The state relations workgroup will be responsible for effecting the
support from, and coordination with, appropriate state agencies in
Louisiana and Texas. Region € will actively seek the State's
participation. Upon rinaliiation of this proposal, a briefing -.nil
be conducted for both Texas iand louisiana to insorm thorn of our
specific plans. Issues to SKI rcsolvod with the State include:
Willingnass of state agencies to participate in this
pilot. Additional I funding if any, from EPA ftegien 6 to
support activities !ep tradeoffs with existing activities
will have to bo negotiated with state agencies arcs
MOUs/grantft aaondo4»
• Degree of Participation by state agencies could vary f ron
none to full participation in all areas. This will also
have to bo negotiated with state agencies.
Coordination with ongoing State activities and special
initiatives will nstod to be addressed to avoid
duplication.
• Tho Stato will at a »iniou« have to .bo kept fully
informed of all EfA Region 4 activities of this pilot
program. :
Aesunincj State agreoaent to participattti vo roeomnend a joint
announcement with tfio iitate of implementation and
of the pilot project.
5-58
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SUPPORT/ASSISTANCE RJQUXREO FROK ENFORCBMEMT MAHAaZKEOT COUNCIL,
HEADQUARTERS OFFICES, AJTS/0* HEXC.
Sinea several Headquarters offices have initiated discussions vith
several of the sources on the ATSRIS list, the Region will need to
work with these offices to insure an effective agency approach for
dealing with these facilities. Likewise, Headquarters offices
should keep the Regional office infomed of its dealing vith the
sources in the product.
The region will inform Headquarters Program Offices on changes to
National STARS targets currently crramitted -« &Y th« Region. These
will be specifically identified in the March 31, 1S-90, Quarterly
Report and it is anticipated that there will be a reduction of 10-
151 of targeted measures as a rtsult of this project.
Specific assistance from various Headquarters Offices nay b«
required in the facility risk determination phase of the Pilot.
Theso requests will bo »ad«i on an as needed basis.
TRADEOFFS WITH OTK* 1*0011* OUTPUTS
There will be sone reduction in EPA inspections and enforceR«nt
actions in other geographic aroas. Headquarters offices wiii so
notified of specific STARS reductions per Mr. Hnbichfs December
IS, 1939, aemo. Also review of new permit applications nay be
impacted by review or existing porait* in the pilot pro:ect areas.
The benefits cf tai* pilot project should outwoigh the tr.vieolfs
and allow the enfcrcencnt efi'or* to be acre focused in an area and
against sources with higher risks fron omissions.
PROJOCTED COMfiETXO* OXTB/3WTBUlf STBP4
The Regional Enforcement Pilot Project is envisioned to last three
to five years. Provided b
-------
Initial Planning/Organization
Ddvclop Pilot Prcposa.1* and Submit
to Headquarters
Meet with States and identify1 level
of state participation
Develop detailed Regional Workpian
P«C.
Jan.
Fab. 1993
Feb. 198 j
PHASE I
PHASE II
Review TRI data
arid develop, with
ATCRIS data, plant
risk situation
Meet with CEOs to
discuss plan to
reduce
Receive reduc-
tion plan
Evaluation of
facilities for
compliance, re-
duction plan and
ctulti-media risk
Mar. 1999
Apr. 1999
run 1999
Aug-Sept
1V99
Initiate enforce- Oct. 1990
t as appropriate
IMC. 1999
Annual project
evaluation
Select target Mar. 1990
facilities, using
TRI data, and other
Regional information
Sond information Apr. I990
requests
Receive
responses
Evaluate
responses
Multi-Media
inspections
Evaluation ef
compliance
Finalize
i reformation
for determination
ef total risK
assessment
Initiate
enforcement as
appropriate
Annual project
evaluation
May 19-3'C
Jun 1
OCt-KOV
199V
KOV. 1990
Sec.
5-60
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PHASE I
PRASE II
Follow-up on Jan.
residual risk at
targeted facilities
1991
Review ATERIS Feb. 1991
list for addit-
ional oources at 10-3
risk for further
investigation
Repeat year one Fab-Sept 1991
activities for
new target sources.
Annual project
evaluation
Doc. 1991
Meet with coap- Feb. 199;
anies to discuss
reductions of risk
Submit Reduction Kay 1991
Plan •
Conduct multi- Jun-Jul i<
media inspections
to review reduction
and residual risk.
Select additional Oct. 1991
sources and repeat
process.
Annual project Dec. 1991
evaluation
Quarterly reports will be aubaitted to Headquarters on March 31,
June 30, September 30, and December 31.
(2) Formal enforcement Actions could take significant amounts of tiae.
5-61
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REGION 10
PROPOSAL FOR REGIONAL ENFORCEMENT PILOT PROJECT
Description efprMM/Statument rf Envimruiviad Problem
Project: Title: Dtta Link Approach for Targeting and Prioritizing Multimedia Compliance
Each media program has a focused program specific approach for issuing permits and
conducting compliance inspections on permitted facilities; consequently environmental
problems asy*p*"H with other media programs at those facilities have not been included.
Also missing in the "single compliance program" approach is the potential combined
adverse environmental impact of multimedia violations (some of which may be individually
minor, but collectively critical).
EPA, nationally, has initiated a dak linkage project which will have die capability of
combining Agency compliance and facility information now located ia individual computer
data files This combined information will eventually be used to evaluate facility
"compliance" and "potential release" status on a multimedia basis. An Agency steering
committee and workgroup have been established to develop the approach and mefcodology
to Accomplish mis complicated task. Although some of the work a scheduled to be
conpleted, in calendar 1990. the final goals are not expected to be achieved unnl 1993 or
later.
Region 10 proposes to develop a less owapl
focuses on the permits violation history of all R
ilex 4am
knal diita bases which
foUowini
d^ilt^'warbTteiu^^ ^«er (NPDES-PCS). Air (CDS). TSCA
OFATES-Asbestos). RCRA (RCRIS). HFRA, CERCLA (CEROJS). and aUtegal cases
which are tracked ia DOCKET. Ttepsopo^u^udetcseaaonofasiimminzeddatabase
which will draw upon the data baseji described above to exaa« selected dm (e.g., pemui:
violations, kx^onVname. ete.) and generate suinmarJesbysoiiiwtopiovMteamultimediai
compliance assessment for all aouiees wiihin Region 10.
(sXpossibty
wifl be com
fbr
investigatioos aadeafoeaflMos acsicos tor.
••••••••^^^ "^ " ^ • ^ ^ ' 9r
Invemory. population density and environment^
gion's CIS. These summary data dispUys would
ik Scwninr techniques wherein the health
a^
ast tf a relative sense, tlie risks auociaaed mth the releases.
noted » pnoritue multimedia compliance
Thiis proposal win provide a neartBrra "real-world- appUcatun of Ae ninonal data link
RegSnal^el aad wiH allow the Regkxi » ft«a Mftohnes that may have
mpacts at Ae local and sta» level barmyotha^i not appear to be
iTBis information should be valuable «o the national dau
Mrtanwlewedu iBs normaon sou
linlcworkgroup white they are still in the developmental stage of the projeo.
5-62
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PROPOSAL FOR REGIONAL ENFORCEMENT PILOT PROJECT
Description of Project/Statement of Environmental Problem
Responsibility for regulating waste emissions from pulp mills is
fragmented among many EPA programs. This situation wastes agency resources
and may Inadvertently encourage cross-mtdla shifts of pollution rather than
overall pollution reduction.
Region 10 proposes multi-media Inspection of pulp mills focusing on toxic
emissions. He would plan to use EPA and state inspectors and LOE
contractors. Other staff would begin the project by reviewing available data,
Including CEM reports and Toxic Rel-ease'Inventory (TRI) data. We would start
by selecting mills in a high priority, environmentally sensitive geograpni;
area. The project would be closely coordinated with two pollution prevention
Initiatives targeted at the pulp industry: (1) a Pulp Mill Pollution Reduction
Initiative focusing on Identifying all toxic releases to the environment and
Identifying ways of reducing the toxics generated; and (2) a recently funaed
Pacific Northwest Pollution Prevention Research Foundation which supports
needed research and surfaces related policy issues.
Environmental Results Expected
Improved air and water quality because remaining toxic pollutants would
be effectively regulated. It would lead to corporate-wide multi-media
pollution control strategies and consent decrees with enforceable limits and
stipulated penalties.
Resources Applied to the Project
LOE contract funds of $10,000 and EPA staff from divisions.
Organizational Implications
Coordination of Inspections among various staff and LOE contractor
shouldn't bt a problem as wt havt the precedent of Federal facility
multl-ratdia Inspections.
State Agency Involvtmtnt/Issuts
Anticipate participation by statt staff, thtrtfort wt will nttd to market
the concept to them. Again, wt navt somt prtctdtnt so it shouldn't be a
probltra.
Support/Assistance Required from the Enforcement Management Council. HQ
Offices, and/or NEIC
Support way bt required In pursuing utulti-MdU enforcement actions from
the EMC and/or HQ. Tht NEIC may bt nttdte to docuctnt night-tlmt violations
at tht ml Us (ust of LI OAR truck).
5-63
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Environmental Results Expected
This project will allow multimedia industrial inspections to be targeted and performed t^e
upon criteria of "most important sources and greatest potential environmental impact ri:$7
Resources Annlifd to tttt Protect
Most data bases are now available or will be during FY 90, therefore approximately
$30,000 will be needed to hire a contractor so provide the link programming and to QA
facility data. In addition approximately 1/2 Fit will be needed to provide CIS support
Approximately 0.1 FTE within the compliance program will be necessary during FY 90 for
the purpose of supporting the data link activity.
No major organizational implications are anticipated. However, an individual (contractor or
FTE) will be needed on an ongoing basis to keep die system updated so that a current focus
on compliance status and environmental results can be maintained. In addition, a
multimedia permit/compliance cocnaiioee should be formed to evaluate combined data and
reach consensus on facility prioritizarion for mnlrimififtia activity.
A o»ne
No active state involvement is expected in FY 90 other than so familiarize diiem with process
and goals. In FY 91, the Region jwould invite them to combine data bates (through the
state data management project) and make joint decisions regarding multimedia compliance
activity.
»fHt\9*A Fr
FMf ffeadauarrer OtRees NEK*
Ccntract dollars to fund in-house data
personnel) in presiding additional; dan
su]jpon from NEIC in FY 91.
gement coancaor, support (either dollars or
K> CIS system, possibly irame inspection
It is anticipated tiaat actual permit writing and omrpHincfi inspeeaoo suppon will not be
shifted from the currentFY 90 plms until laie in the FY. At mat time some of the existing
commitments for CTinpHtftgy tassectioas win have to be eidser reduced m allowed to be
modified in favor of the new muloaiedia cempliafice approach.
Pmierted Starttnt Date —
Stare Feb. 1990
GxDpietioa: September 1990 for $# data fiakportioeof me projeo
5-64
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ATTACHMENT E
5-65
-------
E. Environmental Awards
5-66
-------
1 UNIT
ED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 6
14«!J ROSS AVENUE. SUITE 1200
DALLAS. TEXAS 75202
April 20, 1990
MEMORANDUM
Subject:
Draft Final Report on Compliance Incentives/
Leveraging Project
From:
To:
Allyn M. Davis
Di rector. .
Hazardous Waste Management Division (6H)
Douglas R. Blazey
Regional Counsel (20RC)
In response to your memorandum dated April 18, 1990, and our telephone
conversation , I have attached the revised project document for the
Environmental Awards project. This document 1s to be included in the
overall report.
If you have any questions, please contact me or Randy Brown at
FTS 255-6745.
Attachment
5-67
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STATE ENVIRONMENTAL COMPLIANCE RECOGNITION PROGRAM
BACKGROUND ;
The State Environmental Compliance Recognition Program, initiated at the
discretion of each- Region, is intended to formally recognize facility
management which has been consistently successful in meeting the Federal
and State environmental regulations. This is an annual, multi-media
award presented to facilities in each State which meet the requirements
of more than one environmental regulatory program. The multi-media awards
will Jbe presented to industrial (i.e., manufacturing), municipal, and
Federal facilities, as appropriate.
The majority of facilities are inspected periodically by EPA or EPA»authorized
States to determine their compliance with the regulatory requirements of
the environmental regulations. Each of these programs have complex requirements,
and facilities which have met all of the requirements over the two year period
are deserving of some type of recognition.
CRITERIA
The criteria for a State Environmental Compliance Recognition Program will
require that the facility have annual inspections for the last two years, is
in compliance with applicable State and Federal environmental regulations
and is multi-media. In addition to compliance status, the facilities will be
further evaluated for non-regulited environmental activities! i.e, noise,
odor), as well as public perception as a good corporate citizen.
SCREENING PROCESS
In order for a facility to be eligible for an award, compliance inspections
must have been performed for the last two years or as required by the media
programs. This inspection must be a \complete review of the facility for each
media program. A partial inspection jwill not be considered as an annual
review. The inspection may be conducted by EPA, the State or their contractors,
If certain types of facilities do not; require an annual inspection, then
the reviewer will look at the most recent applicable inspections.
A determination by EPA Regional staff will be made regarding the facility's
compliance status. A facility must meet the requirements in more than one
media and be in physical compliance with all media regulations for two
years, to be eligible for consideration. A checklist will be completed
by EPA Regional staff on each facility noting the compliance status for
all environmental regulations. State program staff will also review the
list of facilities for compliance with State regulations that go beyond
Federal requirements. j
SELECTION PROCESS
An Award Selection Committee will be established in each State, and be
comprised of representatives of elected officials, public interest ind
environmental groups, media, the regulated industry and trade associations.
Members should be knowledgeable of environmental programs. Each State
Environmental Program will be requested to provide names for membership
in the State Environmental Compliance Recognition Selection Committee.
5-68
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REGIONAL ENVIRONMENTAL COMPLIANCE "PLUS" RECOGNITION PROGRAM
BACKGROUND
The Regional Environmental Compliance "Plus" Recognition Program is being
initiated by the EPA to formally recognize management which has been
consistently successful in meeting the Federal and State environmental
regulations while implementing innovative solutions to environmental problems
thereby, demonstrating strong environmental ethics with a strong preventative'
program. This is an annual, multi-me'dia Regional award presented to
organizations which meet the requirements of more than one environmental
regulatory program.
CRITERIA
Organizations eligible to receive the Regional Environmental Compliance
"Plus" Recognition award are multi-media industrial and Federal facilities.
The organizations must have more than one facility in the region and one
must have been a winner of a State Compliance Recognition award. In the
event that a Region is not implementing a State Environmental Compliance
Recognition Program, candidates will be nominated for this award based
on the screening criteria below. In addition, all facilities owned or
governed by the same organization in one or more States within the region
must be in compliance with applicable State and Federal multi-media
regulations. The organization must also demonstrate its commitment to
enhancing and preserving the environment, for example: having a history
of compliance for greater than-two years; establishment of corporate
goals to reduce pollution within specific timeframes; institutionalization
of pollution prevention practices by changing processes to eliminate and
recycle wastes; support of an environmental education effort in the workplace
and community; and a reward system for employees with innovative ideas in
environmental protection.
SCREENING PROCESS
A checklist will be completed by EPA Regional staff on each organization
which meets the basic criteria noting the compliance status for all. of
the environmental regulations and a synopsis of the compliance history of
all other facilities owned by the same organization, within the region.
State program staff will also review the organizations for compliance
with State regulations. Any Information in the State files which will
enhance the "Plus" activities of an organization, will be submitted to
EPA for review. Letters will be sent to all organizations meeting the
criteria, requesting that they submit information on their activities
that go beyond compliance with the regulations.
SELECTION PROCESS
An Award Selection Committee will be established in each Region, and be
comprised • representatives of elected officials, public Interest and
environment! groups, media, the regulated industry and trade associations.
Members should be knowledgeable of environmental programs. Each State
will be requested to provide names for membership in the Regional Environ-
mental Compliance "Plus" Recognition Selection Committee. The Committee
will meet at the Regional Office and review the eligible organizations.
5-69
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S2
The State Selection Committees will screen the final list of facilities
identified hv EPA and State environmental personnel as eligible,
dl!euss ng Sy public c"cern from, or contributions of a facility's management
to. the local communities. Follow ng their screening and discussion the
Committee will formally vote by ballot to select the facility or facilities
best exemplifying compliance and conscientious environmental management
practices.* Each State Selection Committee will select one facility in
the following categories: industrial, municipal, and Federal. This is
contingent upon facilities qualifying in each category.
RECOGNITION PRESENTATION j
Following the Selection Committee's decision on facility selection, an
appropriate presentation date will be established for -the recognition
ceremony at the State Office or State Capitol. The Plantation will be
conducted by the Regional Administrator and Governor Letters of announce-
ment and invitation to the presentation .ceremony will be sent to State
and Local Officials and Selection Committee members.
Presentation
1. Introduction of Special Guests
a. Selection Committees - Air, Hazardous Waste, Water
b. State and Local Officials
2. Explanation of State Environmental Compliance Award, multi -media
3. Present, award to facilities
Press releases will be prepared for distribution prior to the ceremony
explaining the Program and its significance to the regulated community and
to the local population. It is anticipated that the presentation ceremony
will be covered by the local media.
Each facility will receive a plaque and a specially-designed flag to
be flown over the facility. The plaque will specify the timeframe of
compliance which was reviewed.
The winners of the State Environmental Compliance Recognition
will then be eligible to compete for the Regional Environmenta Compliance
"Plus" Recognition Award. Each State may or may not have facilities
eligible to compete for the "Plus" award.
*Note: This process 1s currently under review for accordance with the
requirements of the Federal Advisory Committee Act.
5-70
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NATIONAL ENVIRONMENTAL COMPLIANCE "PLUS" RECOGNITION PROGRAM
BACKGROUND
The National Environmental Compliance "Plus" Recognition Program is being
initiated by the EPA to formally recognize organization management which has
been consistently successful in meeting the Federal and State environmental
regulations while .implementing innova'tive solutions to environmental problems,
thereby, demonstrating strong environmental ethics with a strong preventative
program. This is an annual, multi-media national award presented to organizations
which meet the requirements of more than one environmental regulatory
program. The multi-media awards will be presented to one industrial and
one Federal facility each.
The National Environmental Compliance "Plus" Recognition Award Program
will be coordinated in EPA Headquarters (HQ), with input from the regional
office staff.
CRITERIA
In addition to being a Regional Environmental Compliance "Plus" Recognition
award winner, the criteria for receiving a National Environmental Compliance
"Plus" Recognition award is that the organization must have facilities in
more than one region and all facilities in more than one region must be
in compliance with all media regulations. The organization must also have
established nationwide environmental Initiatives to address environmental
issues.
SCREENING PROCESS
The organizations eligible for the National Environmental Compliance "Plus"
Recognition Award will have been screened at the Regional level and are the
Regional Environmental Compliance "Plus" Recognition winners.
SELECTION PROCESS
An Award Selection Committee will be established by Headquarters. They will
be comprised of representatives of national elected officials, public interest
and environmental groups, media, the regulated industry and trade associations.
Members should be knowledgeable of environmental programs.
The Selection Committee will screen the 11st of eligible organizations,
discussing any public concern from, or contributions of a organization's
management to, the local communities. Following their screening and
discussion, the Committee will formally vote by ballot to select the
organization or organizations best exemplifying conscientious environmental
management practices.* National Awards will be presented to one Industrial
and one Federal organization. Runners-up will also be recognized.
*Notes This process is currently under review for accordance with the
requirements of the Federal Advisory Committee Act.
5-71
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The Selection Committees will screen the final 11st of eligible facilities,
discussing any public concern from,;or contributions of a facility's
management to, the local communities. Following their screening and
discussion, the Committee will formally vote by ballot to select the
facility or facilities best exemplifying conscientious environmental
management practices.* Regional Awards will be presented to one industrial
and one Federal facility. This is contingent upon facilities qualifying
in each category.
AWARD PRESENTATION j
Following the Selection Committee's decision on facility selection, an
appropriate presentation date will be established for the award ceremony
at the Regional Office. The award ceremony will be conducted by the
Regional Administrator. Letters of announcement and Invitation to the
award ceremony will be sent to locap facility managers, Corporate Chief
Executive Officers, Federal Agency Executive Officers, the appropriate
U.S. Congressional and Senate delegations, State Governors, State Legislative
delegations, local Mayors, State Agency Directors, as well as to the
Selection Committee members. •
Press releases will be prepared for! distribution prior to the ceremony
explaining the Award and its significance to the regulated community and
to the local population. It is anticipated that the award ceremony will
be covered by State-wide media.
Each facility receiving an award will receive a plaque, which will specify
the timeframe of compliance which was reviewed, and a flag.
The winners from each Regional Environmental Compliance "Plus" Recognition
Award will then be eligible to compete for a National Environmental Compliance
"Plus" Recognition Award.
*Mote: This process 1s currently under review for accordance with the
requirements of the Federal Advisory Committee Act.
5-72
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REGIONAL LIST OF TOP 10 NON-COMPLIANT FACILITIES
BACKGROUND
Each Region may consider publlcally 1ndent1fy1ng those facilities which
have a verified history of significant noncompllanee with multi-media
Federal and State environmental regulations. These are facilities
which have demonstrated a consistent lack of commitment to protecting
the environment.
The majority of facilities are inspected periodically by EPA or EPA-authorized
States to determine their compliance with the regulatory requirements of
the environmental regulations. Each of these programs have complex requirements
and facilities which are consistently non-compliant with the requirements
should be made known to the public.
This project could be implemented on a regional or national basis.
CRITERIA
Facilities will be reviewed for multi-media compliance for a minimum of
three years. Their non-compliance status will be determined based on
the following: non-compliance in more than one media for more than three
years (significant EPA violations); length of time out of compliance, (such
as time from violation determination to settlement to compliance); number
of civil enforcement actions; number of violations per outstanding enforcement
action; penalties assessed, (considering amount, mitigation required, lack of
good faith efforts); environmental damage indicators and risk, (such as
quantity of emissions/discharge, magnitude of environmental impact/degradation,
public health implications); and negative non-regulatory problems, (such as
odor and noise). Facilities will also be checked for compliance with
environmental regulations and their significance/impact on States and/or
City/Counties ability to meet specific environmental requirements i.e.,
National Ambient Air Quality Standards, Maximum Contaminant Level or
Maximum Concentration Limit, etc.
SCREENING PROCESS
Each media program will prepare a list of at least 10 facilities which have
been non-compliant for the last three years and not on a compliance schedule.
To insure the accuracy of this 11st, the facility files will be reviewed to
supplement the data tracking system used by the programs. As necessary,
State files will will also be reviewed. Potential non-compliant facilities
will be further checked further checked to see if other facilities in the
Region, under the same Organization are non-compliant for significant
violations. A checklist will be completed by each media program for each
potential facility noting the compliance history.
This effort will be coordinated by one office in each region. Those
facilities which have significant violations in more than one media program
will be submitted to the Selection Committee for their review.
5-73
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N+2
AWARD PRESENTATION
Following the Selection Committee's decision, an appropriate date will
be established for the award ceremony in Washington. D.C. The award
ceremony will be conducted by the EPA Administrator or designee.. Letters
of announcement and invitation to the. award ceremony will be sent to
Corporate Chief Executive Officers, Federal Agency Executive Officers,
the appropriate U.S. Congressional and Senate delegations. State Governors,
and the Selection Committee members.
Press releases will be prepared for distribution prior to the ceremony
explaining the Award and Us significance to the regulated community and
to the Nation. It is anticipated that the award ceremony w.ll be covered
by the national media.
Each facility receiving an award
the timeframe of compliance
will receive a plaque, which will specify
reviewed, and a flag.
5-74
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BG-2
SELECTION PROCESS
The Selection Committee, composed of EPA regional staff, will screen the
11st of facilities, and formally vote, by ballot, to select the facilities
to appear on the Regional List of Top 10 Non-Compliant Facilities. Those
selected will not be ranked, rather they ^111 be listed alphabetically as
the Top Ten No n- compliant Facilities 1n the Region.
PUBLIC NOTIFICATION
Following the selection, the list will be made public through a regional
press release.
5-75
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STATE
REGIONAL
PLUS
NATIONAL
PLUS
NON-COMPLIA'.
1ST
Municipal, Federal, industrial facility
Industrial and Federal Facility
Two annual inspections in more than one media
Compliance with all Federal regulations in all
media for the last two inspections
Compliance with all State regulations in all
media for the last two inspections
No non-regulatory problems
Positive environmental impact
More than one facility in the Region
Facility is a winner of a State Compliance
Recognition Award or a Regional nominee
Facilities owned or -governed by the same
Organization in the Region are in compliance
Organization commitment to enhancing and
preserving the environment
i
Facilities owned and governed by the same
Organization in more than one Region
Organization is a winner of a Regional
Compliance Plus Award
Facilities owned and governed by the same
Organization in the Region are in compliance
Nationwide environmental initiatives
1
Three annual inspections in more than one media
Non-compliant in more than one media for
more than three years
i
Length of time out of compliance
I
Number of civil enforcement actions
Number of violations
Penalties assessed
Negative, environmental impact
AWARDS — Flag and plaque
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
5-76
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CRITERIA
STATE ENVIRONMENTAL COMPLIANCE RECOGNITION AWARD
1.
Facility must be either municipal, Federal,
Industrial
2.
3.
Two annual Inspections 1n nore than one media
Compliance with all Federal regulations 1n all media
for the last two Inspections
Compliance with all State regulations 1n all media
for the last two Inspections
S.
No non-regulatory problems
(I.e. noise, odor, public perception)
Positive environmental Impact
(I.e. pollution reduction/prevention, corporate
and community environmental education efforts)
NOTE: Compliance 1s defined throughout this program as no
significant EPA violations (e.g. Class I or high priority
violators of RCRA regulations, significant non-compilers
of water regulations,, significant violators of air
regulations)
5-77
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CRITERIA
REGIONAL ENVIRONMENTAL COMPLIANCE PLUS RECOGNITION AWARD
(ORGANIZATION AWARD)
1. The organization must have more than one facility in the region
2. One facility must have been a winner of a State Compliance
Recognition Award (Federal, Industrial) for the current
year, or, in Regions not implementing a State Compliance
Award, the facility must be nominated by Regional staff
based on screening criteria
3. All facilities owned or governed by the same organization in one or
more States within the region must be in compliance
with applicable State and Federal multi-media regulations
to be eligible for this award
4. Organization commitment to enhancing and preserving the
environment (i.e. pollution reduction/prevention, organization
and community environmental education efforts, history of
organization compliance greater than two years)
5-78
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CRITERIA
NATIONAL ENVIRONMENTAL COMPLIANCE PLUS RECOGNITION AWARD
(ORGANIZATION AWARD)
1. The organization must have facilities 1n more than one region
2. the organization 1s a winner of a Regional Compliance Plus Award
for the current year
3. All facilities owned or governed by the same organization 1n more
than one region are 1n compliance with all media regulations
4. nationwide environmental Initiatives to address environmental
Issues (I.e. pollution reduction/prevention, organization/community
environmental education efforts, history of organization compliance
greater than two years)
5-79
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CRITERIA
i
LIST OF TOP 10 NQN-COffLIANT FACILITIES
1.
Non-compliant 1n mor0 than one media for more than
three years (non-compliant being defined as having
significant EPA violations)
2.
Length of time out of compliance (e.g. time from violation
determination to settlement and return to compliance)
3.
Number of civil enforcement actions
4. Number of violations (per outstanding enforcement action)
5. Penalties assessed (e.g. amount, mitigation required,
lack of good faith efforts)
6.
Environmental damage, indicators/risk (i.e. quantity of
emissions/discharge, magnitude of environmental impact/
degradation, public health implications)
7.
Negative non-regulatpry problems (I.e. odor, noise)
5-80
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PROCESS
REGIONAL ENYIROWOTAL COMPLIANCE PLUS RECOGNITION AWARD
EPA regional staff will determine status of physical compliance
for each media as well as a organizational commitment to enhancing
and preserving the environment
EPA will determine whether there is more than one facility within
the Region for individual organizations
State programs provide names for membership 1n award selection
committee
EPA regional staff will establish an award selection committee
in each state
Award selection committee screens eligible facilities based upon
facility compliance and non-regulatory criteria and advises EPA
Award selection committee selects by ballot one facility in each
category*
EPA regional staff will establish award presentation, date
EPA regional staff will transmit letters of announcement and
invitation to federal, state, and local officials, U.S. Congressional
and Senate delegations
EPA regional staff will prepare a press release
Awards ceremony conducted by the Regional Administrator will be
conducted at the Regional Office
Each facility will receive a flag and plaque
*Note: This process 1s currently under review for accordance with the
requirements of the Federal Advisory Committee Act.
5-81
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PROCESS
STATE ENVIRONMENTAL COMPLIANCE RECOGNITION AWARD
EPA regional staff/state staff/contractors perform periodic
Inspections at appropriate facilities
EPA and State personnel review applicable Inspection reports
EPA regional staff completes checklist on facility compliance
status
EPA regional staff will determine status of physical compliance
for each media
State staff will determine status of compliance with State multi'
media environmental regulations
State program provides names for membership In award selection
committee . , '
EPA regional staff will establish an award selection committee
in each state
Award selection committee screens and advises EPA of eligible
facilities
Award selection committee sfelects one facility in each category *
EPA regional staff will establish award presentation date
EPA regional staff will transmit letter? of announcement and
invitation to federal, stata, and local officials
EPA regional staff will prepare a press release
Awards ceremony conducted by the Regional Administrator and Governor
will be conducted at the State office or State Capitol
Each facility will receive a flag and plaque
*Note: This process is currently under review for accordance with the
requirements of the Federal Advisory Committee Act.,
5-82
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PROCESS
NATIONAL ENVIRONMENTAL COMPLIANCE PLUS RECOGNITION AWARD
EPA Headquarters staff will coordinate and develop the program, and
with regional support, will evaluate the status of physical compliance
for each media as well as the sensitivity the organization has
exhibited for environmental concerns
EPA Headquarters staff, with regional staff assistance, will
determine whether the organization has facilities in more than
one Region
EPA Headquarters staff will establish an award selection committee
Award selection committee screens eligible facilities based upon
compliance and environmental initiatives
Award selection committee selects by ballot ont facility in each category*
EPA Headquarters staff will establish award presentation date
EPA Headquarters staff will transmit letters of announcement and
invitation to Chief Executive Officers, U.S. Congressional and
Senate delegations, State Governors
EPA Headquarters staff will prepare a press release
Awards ceremony conducted by the EPA Administrator and
will be conducted 1n Washington, DC
Each facility will receive a flag and plaque
*Note: This process 1s currently under review for accordance with the
requirements of the Federal Advisory Committee Act.
5-83
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PROCESS
.
REGIONAL LIST OF TOP 10 NON-COK>LIANT FACILITIES
I
EPA regional staff/state stiff/contractors perform periodic
Inspections it appropriate facilities
EPA staff reviews applicable Inspection reports
EPA regional staff completes checklist on facility compliance
status
EPA regional staff will determine status of non-compliance
for each media |
I
EPA regional staff will select the 10 facilities to appear In
alphabetical order on the list
i
j
EPA regional staff will prepare a press release
5-84
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5-85
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-------
ATTACHMENT F
5-87
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F. Environmental Education and
Technology Transfer for Enforcement Results
5-88
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SUBJECT:
Environmental Education and Technology Transfer
for Enforces
FROM: Douglas R. Bias
Regional Counse
0> Donna Fletcher (A-101F)
Connie Musgrove (EN-342)1
Fred Stiehl (LE-134P)
Bruce Diamond (OS-500)
Terrell Hunt (LE-134A)
Bob Heiss (LE-134W)
Allyn Davis (6HWMD)
Bill Dickerson (A-104)
Craig Johnson, DOJ
It is almost axiomatic in the Agency that we do not offer "advice"
on technologies that sight be utilized to achieve coapliance.
However, the Agency does identify available technology in
development documents. This information is generally available
in published fora and not localized to a particular problem.
When the Agency confronts the particular problem either in the
permitting context or when faced with a compliance inquiry or an
actual enforcement action, we tend to deliver officially a clear
and uniform message. Mamely, we provide the number or standard
which you are expected to meet, but it is up to you how you
achieve it. In other words, except for those aspects of each
program that are based on a particular technology, such as, for
example, the LEAR, NSPS, BPT, BAT or BACT, we tend to have a
black box approach to compliance.
Nonetheless, the Work Group thought of various examples where a
regulatee for a variety of reasons needed "help" in achieving
compliance. The examples range from people-based problems where
an operator of a facility lacks adequate training or competence
and therefore does not have the skills to respond to influent
qualities and treatment technologies applicable to them in the
context of a local waste water treatment plant or water treat-
ment facility to more complex questions regarding technologies
available to capture and control VOCu, air toxics and other types
of air fugitive omissions, or to treat toxics or control color in
waste water treatment systems. The culture of EPA has both
encouraged and even required that our compliance and enforcement
personnel remain neutral when regulateee ask for assistance even
if the request for assistance is the request for general guidance,
direction or insight into possible technologies or to sources of
technical help or expertise in given areas.
5-89
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- 2 -
The basic rationale for not suggesting technical information to
regulatees is twofold. First, as public employees we have a
general obligation to remain neutral and not to favor or appear
to favor one purveyor of equipment or services over another.
Second, ws do not want to be "responsible" for any regulatee's
failure to achieve compliance by virtue of installing a technology
v/e recommend. The first reason is based less on legal constraints
than on policy; the second reason has significant enforcement
policy concerns underlying itf. Namely, we have alwaya been
concerned that equitable defenses, such as estoppel, lack of
clean hands or detrimental ral-iance, will be raised against our
compliance demands if technology that we "suggested" does not
v/ork. It is difficult enough to compel a regulatee whose control
strategy has failed to go back to the drawing board and start all
over again without the added complication of the regulatee com-
plaining that EPA sent him "barking up the wrong tree.
One could generally describe our posture as being "risk
in this arena. The consequence of being risk averse is. that the
accumulated, collective technical expertise of the Agency has not
funneliid itself systematically through our compliance and enforce-
ment offices to the regulated community. Our expert ia
-------
• Identify tht ttch transfer resource in each Bedta
and a»k them to review with OECM and th« Office of Tech
nology Transfer th« opportunities and vehicles for com-
pliance/enforcement tech transfer outreach assistance.
• Great* for Agency use a quick list/short list of tech
transfer resources within the Agency that will allow
regional users easy access to this resource.
0 Request for each AAship to establish, if not already
undertaken, a compliance/enforcement tech transfer
focal point in headquarters and within each regional
office.
0 OECM (in consultation with AA compliance offices) develop
guidance/protocols.
0 Prepare a formal Agency statement of this policy.
5-91
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-------
ENFORCEMENT IN THE 1990's PROJECT
UTILIZING
LOCAL
GOVERNMENT
-------
WORKGROUP CONTRIBUTORS
Susan Herrod
Lee Paddock
Sebastian Patti
H,LeeHolden
Gregory B. Lie
Josh Baylson
-------
ENFORCEMENT IN THE 1990's PROJECT
RECOMMENDATIONS OF THE WORKGROUP ON
LOCAL ROLE IN ENVIRONMENTAL ENFORCEMENT
I. Introduction
Historically, the focus of environmental regulations has been on controlling
discharges from large facilities which represent the most significant sources of
pollution. However, the scope of many environmental programs has expanded to a
large number of smaller facilities with the realization that compliance by large
sources alone has not provided adequate protection against health and
environmental risk.
The vast increase in the regulated universe raises questions about the potential
contribution local government can make to enforcement. Although EPA has not
assessed whether local governments can be effective environmental enforcers on a
broad basis, in certain specific regulatory areas, some local governments have
stepped forward to assume an extremely valuable role.
Based on extensive discussion with the states, EPA needs to foster an expanding
local government role as we face tighter resources and regulatory responsibilities.
Our role should be to encourage greater involvement by: 1) identifying regulatory
areas amenable to local government participation: 2) articulating a range of
functions local government could perform to advance environmental enforcement;
3) developing guidance in identifying local governments which might play a greater
role; 4) developing local, stand-alone institutions to aid local governments; 5)
developing training for supporting institutions to identify environmental crimes;
and 6) fostering greater DA criminal prosecutions.
Four programs which include a role for local government have been chosen as
case studies because of the broad range of resources and expertise they represent as
enforcement models. These programs (UST, EPCRA, Pretreatment, SQG) offer
lessons to guide us as we examine the factors which affect successful enforcement by
local governments, and the institutions which local governments may use in an
enforcement effort.
If we want the expanded role of local governments to be successful, we need to
promote greater involvement of District Attorneys in criminal prosecutions. DAs
represent a valuable resource that give "teeth" to local programs. To make effective
use of their unique contribution, we need to examine the obstacles which impede
greater involvement and offer ways of overcoming these obstacles.
6-1
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II. Goals and Objectives of the Project
The objective is to determine the circumstances under which it is feasible and
beneficial to broaden the role of local government in environmental enforcement,
and to identify the opportunities and limitations for doing so. Based on this
analysis, recommendations will center on whether and how we might foster further
local involvement in environmental enforcement. These recommendations reflect
our ideal position for EPA over the next five to ten years as a promoter and
facilitator of greater local responsibility for environmental programs.
II. Process Leading to Recommendations
First, the work group identified four programs with a range of both
opportunities for and experiences with local government involvement:
• Underground [Storage Tanks (UST);
• Pretreatment;
• Small Quantity Hazardous Waste Generators; and
• EPCRA (SARA Title III).
These four programs were studied in depth to determine 1) current level of local
involvement, 2) resources and tools used, 3) obstacles to implementation, 4) benefits
from their involvement, and 5) ways to foster greater local responsibility. Interviews
were carried out with Headquarters program offices, regional and state
environmental offices, and local government officials and associations. The
recommendations in this report stem from lessons learned in these programs and
interviews.
IV; Findings
A. LOCAL GOVERNMENT CAN SERVE IN THREE GENERAL ROLES TO
AUGMENT FEDERAL AND STATE EFFORTS AT ENVIRONMENTAL
ENFORCEMENT.
Local entities can serve in one or all of the following capacities: a.s reporters of
violations (or "eyes and ears") to state and federal officials; as evidence gatherers; as
enforcers of regulations. (For examples within the four programs, see Table 1 on
page 6-10.)
The daily contact often necessary to detect violations makes local government
effective as "eyes and ears". For instance, fire and police are frequently the observers
of midnight dumping or the illegal transport of hazardous waste. In the
northeastern States over the period of a year, most hazardous waste violations were
uncovered through reports by police^ fire and private citizens reporting suspicious
6-2
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activity. Under EPCRA, the Local Emergency Planning Committees (LEPCs) are
most often the ones who uncover violators of reporting requirements and notify
the State Emergency Response Committees (SERCs) of the noncomplying facilities.
Local governments have also contributed significantly to state and federal
enforcement by gathering evidence against violators. Fire and police are frequently
the evidence gatherers against noncompliers. Firemen, building code inspectors, or
local health departments are used to inspect facilities for compliance with EPCRA.
The information they glean may be used by SERCs to bring enforcement actions
against facilities. Health departments are also frequently used as evidence gatherers.
They may inspect for compliance with UST and SQG requirements. Their
laboratory services and investigative support are used by States and EPA in
enforcement cases.
Finally, some local governments take enforcement actions against violators.
Local officials or Sewer Authorities enforce against industrial violators of
pretreatment. In the UST program, some counties, such as Dade County (Dept. of
Environmental Resources Management) and Suffolk County (Dept. of Health
Services), perform civil and criminal enforcement activities as well as expedited
enforcement (tickets) for simple violations. LEPCs take enforcement actions against
noncompliers under EPCRA, although this authority is just beginning to be
exercised. Some county governments enforce the SQG requirements, where they
have the authority to do so. The Ramse County SQG program not only takes
enforcement actions but has also used the following resources to gather evidence for
its own enforcement cases: local police, the local sheriff, the Department of
Transportation, laboratories of the Department of Health and the Bureau of
Criminal Apprehension, as well as the County Attorneys. Although criminal cases
have been rare, felony and misdemeanor cases have been successfully prosecuted.
The examples above illustrate that local governments are taking enforcement
actions, but enforcement authority may restrict this role somewhat, especially
among smaller local governments. Authority to enforce environmental regulations
can be either exclusively state or permissively local. Exclusively State statutory
authority allows federal programs to be formally delegated only to States, then States
may or may not delegate programs to local governments. Permissively local
statutory authority allows federal programs to be formally delegated to States and
local governments. (Local governments may be within authorized or unauthorized
states.) For example, pretreatment is permissively local. EPA may deal directly with
local pretreatment programs as well as with State programs. UST, SQG, and EPCRA
are all EPA programs dealing exclusively with States. In these, EPA authorizes the
State program and then the State may either retain the program or pass laws
requiring local governments to handle the program.
Local governments have played a valuable part in enforcement in all three
areas mentioned above, but most of the local entities who participate have been the
6-3
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larger metropolitan areas. Because a certain level of personnel and resources are
required to play even an "eyes and ears" role, smaller local governments are
unlikely to play much a substantial enforcement role in the next five to ten years.
This is particularly true for local government involvement in the initiation of
enforcement actions, since not only !are substantial resources required, but often
enforcement authority must be provided through local ordinances. Therefore,
enforcement actions as well as reporting and evidence gathering will reside
primarily with the larger cities.
B, NO CRITERIA EXIST FOR IDENTIFYING REGULATORY PROGRAMS THAT
MAY BENEFIT FROM DIRECT LOCAL GOVERNMENT INVOLVEMENT.
The need to develop a guide for expanding local government's enforcement
role is illustrated by noting the differences between the EPCRA and Pretreatment
programs, both of which are models for a strong local role:
• Facilities subject to EPCRA requirements are in the hundreds of
thousands. Minnesota has 10,000 facilities required to report. In one
county alone, Cuyahoga County (Ohio), 650 facilities are subject to
EPCRA.
There are approximately 1,500 local Pretreatment programs.
• EPCRA requires minimal training of police, firemen or btdlding
inspectors in order to identify barrels of hazardous materials
unreported by a facility, or potential chemical hazards.
Pretreatment often requires full time, skilled technicians with proper
laboratory equipment in order to detect industrial waste streams with
traces of illegal chemicals.
• Single personal computers may be used by LEPCs to manage all of the
data for EPCRA reporting.
i
Pretreatment requires a sophisticated data management system and
huge memory storage to maintain all necessary data.
i
The burgeoning number of facilities subject to environmental regulations
indicate EPA's need for additional resources to provide specific deterrence.
However, the differences in programs described above show that the tools, resources
and expertise required of a regulation must to be carefully considered as we look at
local government's capabilities and desire to participate in enforcement.
Two areas should be considered together when deciding whether to expand the
role of local government: first, the statutory/ regulatory scheme being implemented
6-4
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and the nature of its enforcement requirements; and secondly, the resources, culture,
and infrastructure of the local government. The programs examined in this report,
(UST, EPCRA, Pretreatment, SQG), provide information on the issues which should
be considered in both areas when deciding whether to open the door to wider
participation by local governments. The issues or factors identified in considering
these two areas may be grouped into eight categories:
Statutory/Regulatory Scheme
1.
2.
3.
Infrastructure
4.
5.
6.
7.
8.
Characteristics of regulated universe
Program requirements for implementation
Administrative burden in establishing program
Expertise available at local level
Resources of local government
Demographic and economic conditions of
community
Social environment of local government
Political environment of local government
Statutory/Regulatory Scheme
One of the first considerations when reviewing a regulatory scheme is the
character and scope of the regulated universe. Programs that regulate large numbers
of small facilities are difficult to administer at the federal or State level. For
instance, in the UST program, effective monitoring and oversight require review of
building plans and supervision of construction. With almost 2 million USTs to
regulate at about 750,000 facilities, local governments provide the site-specific
compliance assistance and oversight functions which State programs or the Federal
government can not provide.
The program requirements, the ease of detecting violations, and the
administrative burden placed on the regulatory entity also impact the effectiveness
of local government participation. Unless the means of accomplishing their
expected function is offered to local governments, enforcement is likely to be
ineffective. Where these factors prohibit involvement of a program that otherwise
would be best handled at the local level, higher levels of government (i.e. EPA or
the States) should explore creative means of providing assistance, such as technical
expertise, peer exchanges, public partnerships, or training.
For example, local governments found that computer hardware and software
were necessary to run an effective SARA Title III program. Without this equipment,
6-5
-------
information submitted by hundreds of industries would remain in boxes in a totally
unusable form. Local governments with largely volunteer staffs often had neither
computer equipment nor staff to input data. In some instances, creative use of fee
systems and grants helped solve the problem. In other cases, private industry
provided funds to purchase equipment. One industry even donated personnel to
input the data.
Infrastructure j
Expertise at the local level is a pivotal factor to consider in identifying the role
of a local entity. Technically sophisticated programs (such as the Pretreatment
program) cannot be enforced effectively by a local entity which lacks the
commensurate skills. If these do not match, EPA ultimately enforces against the
local government. Additional training may be required before it is feasible to have a
local government assume a traditional enforcement role.
Resources and organizational entities available at the local level should be used
whenever possible. This avoids the cost and bureaucratic struggles which arise in
forming new organizations. The SARA Title III program has made successful use of
such local resources as fire marshals, jbuilding inspectors, local police agencies, fire
departments, and health departments in performing program and enforcement
responsibilities, (see Table 1 on page 10). Programs that are complex in nature, such
as those requiring significant laboratory testing, may be best enforced at the state
level, unless laboratory facilities can be made available for use by the local units of
government. Some counties have turned to private laboratories because no other
laboratories were available, but the cost of doing so is usually prohibitively high.
The demographic and economic conditions of each community should be
considered. The term "local government" encompasses cities or counties from over
one million people down to towns of only 1000. The community income, size,
access to financial markets, access to technical services, urban v. rural nature of the
community, and funding sources va'ry immensely and affect the ability of local
governments to play a role in environmental enforcement.
The social and political environment of local governments is important.
Communities whose citizens are ^knowledgeable and concerned about an
environmental problem will encourage and promote local participation. Elected
officials often seek to provide leadership on an issue where public support is
apparent. However, if there is no perception of a problem and support is lacking,
local government units may not effectively or successfully participate. For instance,
where citizens perceive that they are directly dependent upon groundwater as a
source of drinking water, as is the case in Minnesota and Florida, extensive
hazardous waste and underground storage tank programs have been developed at
the local level.
:6-6
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These factors are not to be considered in isolation, but together. The degree of
the positive (or negative) presence of factors, as well as the number of positive (or
negative) factors present will indicate a local government's ability to handle an
increased role successfully. (For a detailed list of factors within these eight
categories, see Appendix I.)
C. LOCAL.GOVERNMENTS HAVE MANY INTERNAL INSTITUTIONS
AND OUTSIDE ORGANIZATIONS WHICH CAN MATERIALLY
CONTRIBUTE TO THEIR EFFECTIVENESS IN HELPING TO MONITOR
OR ENFORCE ENVIRONMENTAL STANDARDS.
We can increase local government's ability and willingness to play a greater
role in environmental enforcement by enlisting the aid of existing local institutions
whose responsibilities parallel those required by environmental regulations. As
more regulations cover numerous small facilities and stretch already thin resources,
using all existing local institutional support will become critical. Examples below
illustrate the type of support local institutions can offer.
• Local law enforcement agencies and fire departments are invaluable as
a source of information in detecting environmental crimes ("eyes and
ears") and gathering evidence against violators. For instance,
municipal police, fire and other local regulatory officers have observed
hazardous waste criminal activities during the course of their normal
investigative or monitoring responsibilities which have resulted in
violators brought to trial. Such incidents as early morning motor
vehicle activity at disposal sites, burning wastes, the discovery of
abandoned drums, and in one instance, the release of waste through
the rear spigot of a moving tank truck have been discovered by local
police and firemen. EPA has not taken full advantage of the aid police
and fire officials can give to environmental enforcement, and has not
systematically pursued them as an additional resource for providing
effective enforcement.
• Building Code Regulators arid Housing Inspectors are an effective
source of local oversight of asbestos exposure in schools and
commercial/public buildings, or asbestos exposure from demolition
and renovation projects. They could also note PCS leaks from
electrical equipment, and the absence of PCS fire walls.
• Health departments are another excellent source of information on
potential violators. Health inspectors may detect violations of EPCRA
or SQG in their routine inspections of facilities for health regulations.
In the SQG program, public health and safety authorities most often
are the agencies used to monitor and enforce compliance with
6-7
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regulations. In the future, Health departments may be the natural
agency to assist in monitoring compliance with the medical waste
regulations.
• Ambulance crews, Hazmat teams, Fire and Police are all important for
detecting and collecting evidence of violations (for all four .programs
examined) where environmentally-related emergencies have
occurred. Accidents have been the source of discovery of a number of
criminal cases. Some examples are explosions at landfills, .highway
waste spills caused by improper vehicle loading of wastes, and
chemical burning of sanitation workers.
• Local Emergency Planning Commissions are an excellent example of
using a broad range of institutions to carry out environmental
programs, detect violations and gather evidence. LEPCs have used
building code inspectors and firemen to do routine inspections. These
Local Emergency Planning Commissions have also identified parties
who fail to report according to EPCRA. LEPCS may be made up of
members of emergency management, industry, environment, city
attorneys, health departments, media, EMS, Red Cross, elected
officials, police, fire, civic organizations, and the National Guard.
LEPCs are now beginning tb take enforcement actions against those
who fail to report.
• Hospitals are also potential "eyes ,and ears" for detecting violators.
Reports of workers overcome by releases of poisonous gases can lead
to discovering industrial violators of pretreatment or other
regulations. Hospitals may also provide important information on
possible violations through reports of injuries caused by industrial
accidents or explosions.
• Game Wardens and Fish and Wildlife Agencies are also a good source
of information regarding illegal discharge of a hazardous chemical or
midnight dumping. Information about fish kills, pollutant loadings
in shell fish, game fish or wildlife may first be detected by these agents.
Such data may suggest violations of pretreatment or SQG regulations.
Nature clubs, special interest groups, insurance companies; and banks are other
institutions whose potential support remains untapped. The National Association
of Towns and Townships (NATaT)|is negotiating with insurance companies now to
develop a pilot project where insurance representatives would assist in
environmental enforcement.
As a note, not many enforcement actions were taken at the local level in the
programs we examined, except in isolated instances, or in pilot projects with EPA
6-8
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regional offices (EPCRA). The focus of inspections has been on education about the
regulations. Some of the programs are beginning to turn toward enforcement, but
the change is slow. For a breakdown of the groups which play or can play
enforcement functions for all four programs, see the chart on the following page.
Some problems exist in using these local institutions to aid in monitoring and
enforcement. First, because these groups have important public health and welfare
responsibilities already, added environmental tasks may be given a low priority.
Even more difficult is the fact that many potential support personnel are
volunteers, (80 percent of the firemen across the country are volunteer), whose
volunteer services are in addition to their full time jobs. Adding further tasks may
be difficult, if not impossible.
Second and third, necessary training is often unavailable or at least difficult for
the local government to provide, and coordination of the different agencies may be
difficult. Appropriate responsibilities need to be matched with the tasks already
performed by the support personnel from the respective institutions.
Fourth, liability is a concern among institutions who assist in an enforcement
role. Protective legislation may need to be passed at the State level in order to
encourage greater participation by local institutions.
Finally, critical to success of efforts to use these resources is education about the
importance of protecting our environment and training on recognizing
environmental crimes. EPA needs to assist in developing these organizations as
tools by designing "key indicator" training courses. These courses would help local
participants identify specific indicators of violations for each regulation and provide
instructions on how to make such information available to appropriate federal or
State officials.
6-9
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TABLE 1 - ROLES IN ENFORCEMENT
EPCRA
ROLE
"Eyes and Yes
Ears"
Fire
Police
Hazmat Team
Ambulance Pers
Build. Insp.
LEPCs
Citizen
Groups
Evidence
Gatherer Yes
Fire
Build. Insp.
LEPCs
Citizen
Groups
SQG
Yes
Health Djspt.
Environinental
Agency
Fire
County Sheriff
Build. Insp.
Transp. Dept
Yes ;
I
Health Dept.
Environmental
i
Agency
County Sheriff
Fire
Build. Insp.
Transp. Dept.
UST
Yes
Health Dept.
Environmental
Agency
Police
Fire
Yes
Health Dept.
Environmental
Agency
Fire
Police
PRE-
TREATMENT
Yes
Sewer Line
Crews
Police
Hospitals
Police
Fire .
Labor Boards
Fish &
Wildlife
Citizen
Groups
Yes
Sewer Line
Crews
Regional Sewer
Authority or
Public Works
Dept.
Police
Enforcement Yes
Actions
LEPCs
SERCs
Citizen
Groups
Yes
Health Dept.
Environmental
Agency
Yes
Health Dept.
Environmental
Agency
Fire
Police
Yes
Elected
Officials
Regional Sewer
Avithority or
Public Works
Dept.
Citizen Groups
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D. DISTRICT ATTORNEYS CAN PLAY AN IMPORTANT ROLE IN BRINGING
CRIMINAL ENFORCEMENT ACTIONS AGAINST THOSE WHO
KNOWINGLY VIOLATE ENVIRONMENTAL LAWS.
Millions of facilities across the country, both large and small, handle
environmentally hazardous materials which can present significant risks to human
health and the environment. When criminal violations occur, District Attorneys
provide an important resource in prosecuting these violators and deterring further
criminal acts. However, training, laboratory and technical resources, and lack of
information hinder DA involvement in environmental crimes.
Greater DA involvement in criminal prosecutions would provide a faster
response to environmental crimes, reducing environmental risk or damage.
Prosecution by DAs also deters criminal behavior within a class of violators too
numerous for EPA and the States to reach. The seriousness of committing
environmental crimes is reinforced with the public. In addition/operations can be
tailored to indigenous community conditions to meet community needs and
cooperative relationships can be built between local, state and federal agents to form
task forces necessary to investigate and prosecute environmental crimes efficiently
and effectively.
Despite their growing involvement in environmental crimes, District
Attorneys continue to face three barriers. First, only a small number of investigators
and attorneys have been trained in techniques and procedures required for
successful prosecution of environmental crimes. Current training capacity is
limited and access to training is sometimes difficult. The Hazardous Materials
Investigation Training Program at the Federal Law Enforcement Training Center
provides excellent training, but the number to be trained is constrained by the
limited amount of experts available to staff the courses. The Regional Hazardous
Waste Projects are another good source of training, but they must meet the needs of
a broader audience in their training courses. Expanding courses for District
Attorneys might occur at the expense of other necessary training. Also, local
governments in remote areas often find it too expensive or logistically difficult to
reach training centers where needed courses are offered.
Second, adequate laboratory arid technical resources are frequently unavailable.
Sometimes private labs are employed, but they are prohibitively expensive. Local
Health Departments are often used, but they are rarely trained in the forensic
procedures necessary to properly test and preserve evidence and maintain the
chains of custody necessary to make that evidence admissible at trial.Third, no
information on pollution prosecutions is being exchanged on a nationwide basis.
There is no federal support for the national dissemination of information to
provide assistance in the prosecution of environmental crimes. Even local
convictions are not systematically documented, cataloged and analyzed.
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The situation at the local level is often characterized by a lack of trained
investigators and prosecutors who are unable to develop evidence sufficient for
prosecution. Court administration may also present a problem, causing prosecution
documents to be misdirected. Not only are inexperienced investigators and
prosecutors a problem, but the courtfs unfamiliarity with environmental laws can
present difficulties. For instance, in one county, a case was dismissed after a plea of
guilty had been entered at arraignment, apparently due to the court's unfamiliarity
with the concepts presented.
If these barriers are not addressed, then DA involvement in criminal
prosecutions will grow at an extremely slow rate, and we will fail to take full
advantage of a valuable resource. The National District Attorneys Association is
pursuing a solution to these obstacles now. They are beginning to negotiate with
DOJ to develop comprehensive training programs and a national computer system.
EPA should be a participant, if not a lekd in these efforts.
Recommendations presented in i the following section address the obstacles
uncovered in this project and provide a way of expanding local government
involvement as a whole, as well as enhancing the role of local prosecutors in
enforcing environmental crimes.
V. Recommendations
A. Expanding the Enforcement Role of Local Government
1. EPA SHOULD ARTICULATE A SET OF CRITERIA FOR EXPANEMNG LOCAL
GOVERNMENT'S CURRENT ROLES WHICH FOCUS ON THE NATURE OF
THE REGULATORY PROGRAM.
i
• Develop criteria more fully \jyith program offices and states to identify
types of regulatory programs which are amenable to local
government assistance in enforcement.
• Issue criteria to program offices and states.
• Require periodic review of criteria by states and program offices.
In considering how to expand (local government's role in environmental
enforcement, one should first examine the statutory and regulatory structure. The
number of facilities regulated is a crucial factor which affects the appropriateness of
local government involvement. Some [regulatory programs cover huge numbers of
small facilities which are difficult to monitor at the State or federal level. The
complexity and technical expertise required under the regulation, as well as the
equipment and laboratory support necessary may limit local government's role.
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These factors should be examined for a successful expansion of the local
government's role in regulatory programs.
PROPOSED ACTION: A set of criteria should be issued to program offices and States
for planning use.
2. EPA SHOULD ARTICULATE A SET OF CRITERIA FOR EXPANDING LOCAL
GOVERNMENT'S CURRENT ROLES WHICH FOCUS ON THE
INFRASTRUCTURE OF THE LOCAL GOVERNMENT.
• Develop criteria more fully with States and selected local governments to
identify characteristics that local entities should exhibit to assist in
environmental enforcement.
• Issue criteria to States.
• Require periodic review of criteria by States,
Not only must we examine the nature of the regulatory program, but we must
also examine the characteristics of the local government. Local governments may
not be effective environmental enforcers on a broad basis. They vary widely in size,
capability, environmental awareness, political independence and will, and resources.
The local government infrastructure needs to be examined against the articulated
criteria to determine whether the nature of the regulation and the local government
infrastructure both support an expanded local role. The necessary requirements
suggest that EPA should focus on the large metropolitan areas for greater
involvement.
PROPOSED ACTION: Along with the criteria above, this set of criteria should be
issued to states for planning use.
3. EPA SHOULD WORK WITH THE STATES AND LOCAL GOVERNMENTS TO
USE EXISTING SPECIALIZED UNITS WITHIN AND OUTSIDE LOCAL
GOVERNMENTS TO THEIR FULLEST ADVANTAGE.
• Work with states to promote use of specialized units within the existing
institutions of local governments and outside in compliance and
enforcement.
• Develop "key indicators" training for support personnel.
• Initiate pilot projects with selected local governments which use or extend
use of existing institutions and outside organizations for enforcement and
compliance.
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• Promote exemplary projects among all local governments.
We should work with States and local governments to develop and promote the
assistance of organizations for compliance and enforcement tasks. Greater assistance
from existing units of local government and outside organizations may enable them
to participate more effectively in environmental programs. Assistance is not
difficult for some institutions who perform parallel tasks or functions which may be
easily expanded to include compliance and enforcement responsibilities. Some of
these "inside" institutions are police, fire, health, and housing. Some of the outside
organizations which may be used are insurance companies and lending agencies.
These agencies represent a resource which should be tapped as we look at expanding
local government's role.
PROPOSED ACTION: Pilot projects should be initiated, followed by training
development
4. EPA AND/OR THE STATES j SHOULD DEVELOP INCENTIVES TO
ENCOURAGE LARGER LOCAL GOVERNMENTS TO PLAY AN EXPANDED
ROLE,
Few municipalities or local governments may want to increase their
administrative and resource burden by taking on a larger role in environmental
enforcement. However, their involvement in some programs may be necessary for
successful enforcement. The potential for greater local involvement could be
encouraged by exploring incentives such as technical assistance, guidance, training,
partnerships, and other tools.
PROPOSED ACTION: Incentives should begin to be investigated with a goal of
marketing existing ones to local governments in FY 1992 and developing new ones
by FY1995.
B. Expanding the Role of DAs in Enforcing Environmental Crimes
1. EPA IN COOPERATION WITH (THE DEPARTMENT OF JUSTICE SHOULD
DEVELOP A NETWORK WITH STATE DISTRICT ATTORNEY
ORGANIZATIONS, REGIONAL ENVIRONMENTAL ORGANIZATIONS,
NDAA, NAAG, AND OTHER INTERESTED PARTIES.
• Use network to explore:
1) establishing criteria for screening cases;
2) developing an environmental crime profile; and
3) conducting exemplary practices projects.
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Environmental cases are only a priority to a minority of District Attorneys.
Consequently, the value of handling such cases is not widely known, nor do DAs
have much expertise in managing environmental criminal prosecutions. In order
to broaden their interest and ability in handling environmental crimes, EPA and
DOJ need to establish a network for communication and development of tools to
assist District Attorneys.
PROPOSED ACTION: The network should be built using NEEC, the Steering
Committee, and FLETC
2. EPA SHOULD EXPAND CURRENT TRAINING CAPACITY FOR DAs AND
INVESTIGATORS, IN ASSOCIATION WITH OTHER LAW ENFORCEMENT
ORGANIZATIONS.
• Develop national training program in investigating and prosecuting
environmental crimes in association with other interested organizations;
steps will include:
1) Analysis (needs assessment, job/task analysis, student profiles);
2) Curriculum design;
3) Development of delivery system;
4) Implementation; and
5) Evaluation.
Only a small number of investigators and attorneys have been trained in techniques
and procedures required for successful prosecution of environmental crimes. The
Hazardous Materials Investigation Training Program at the Federal Law
Enforcement Training Center provides excellent training, but staffing and resources
limits capacity. Through such organizations as FLETC, Regional Hazardous Waste
Organizations, DOJ, NAAG, NDAA and other interested parties, the Office of
Enforcement will explore the expansion and coordination of environmental
enforcement training. Efforts are already underway by NDAA to develop a national
training program. We may begin to build the group who will oversee training
development now.
PROPOSED ACTION: Curriculum should be designed in FY 1992, implementation
should be completed by FY 1995, and evaluation of training and delivery should be
ongoing.
3. EPA SHOULD EXPAND TRAINING OF SUPPORT PERSONNEL, IN
ASSOCIATION WITH OTHER LAW ENFORCEMENT ORGANIZATIONS.
• Develop standardized cross-media screening training for inspectors and
police (other than environmental police investigators).
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• Market to state agencies for inclusion in police academies.
• Work with interested parties to provide chain-of-custody training to
alternative laboratory personnel.
Where DAs are active in environmental prosecution, they are already facing the
problem of inadequate laboratory and technical support. To meet these needs, DAs
have sometimes employed private labs, but these tend to be prohibitively expensive.
Local Health Departments are often used, but they are rarely trained in the forensic
procedures necessary to properly test and preserve evidence and maintain the
chains of custody necessary to make that evidence admissible at trial. If we want to
involve more DAs in criminal investigation, we need to expand the laboratory and
support personnel trained in proper forensic procedures.
PROPOSED ACTION: NEIC could develop the delivery plan for chain-of-custody
training. Cross-media screening training should be developed by FY 1993.
4. EPA SHOULD ASSIST IN DEVELOPING A METHOD FOR COLLECTING
CRIME STATISTICS AND PROVIDING INFORMATION ON TECHNICAL
AND LEGAL ISSUES CONCERNING CRIMINAL ENVIRONMENTAL CASES.
• Assist in developing standard definitions for environmental crimes.
• Assist in promoting model statutes for adoption by states.
• Assist in developing centrally located computerized system
to collect national crime statistics and establish profiles of
environmental criminals.
No method is currently in place for gathering and disseminating data on criminal
cases brought at the local level, or for disseminating technical and legal information
to assist DAs in prosecuting cases. To begin collecting crime statistics, standard
definitions for environmental crimes and model statutes need to be developed first.
Then options for the maintenance anjd use of information can be explored, such as
through a national statistical database modeled after systems in other law
enforcement areas. NDAA is examining the possibility of a centrally located
computerized system now. j
PROPOSED ACTION: NEIC, the Regional Hazardous Waste Organizations, NDAA,
NAAG, DOJ, and other interested parties could form a planning group immediately
to begin the development of an information system.
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C. Broader Contribution of Local Government
1. EPA SHOULD ENCOURAGE LOCAL GOVERNMENTS TO MANAGE
THEMSELVES IN A MORE ENVIRONMENTALLY SOUND WAY AND TO
TAP INTO THE GOODWILL OF THE CITIZENRY THROUGH
ENVIRONMENTALLY SOUND PROJECTS.
• Promote compliance in municipal government operations through
use of environmental auditing and program methods.
• Promote communication and adoption of exemplary
environmental projects among local governments
(see specific recommendations below).
Local governments can play a significant role in reducing pollution in their
communities, both by their own practices and by projects which take advantage of
citizens' greater awareness and eagerness to clean up the environment. The city of
Toronto has initiated projects oriented toward this goal. They offer a good example
of what local governments can do to bring about better environmental practices.
Examples of the type of environmental leadership that a local government can offer
include:
• Studying the local government's use of small vehicles with the following
objectives:
- Reducing the number of such vehicles used by the local
government;
- Improving maintenance programs on these vehicles;
- Replacing high energy consumptive vehicles with low energy
consumptive vehicles;
- Implementing an auto-trip reductions strategy to reduce the need
for such vehicles; and
- Providing city bicycles rather than city cars for short trips.
• Calling upon all companies in downtown areas to take steps to reduce the
use of automobiles by their staff for commuting to work;
• Instituting comprehensive energy audit program;
• Contributing to reforestation projects; solicit participation by Boards of
Education;
• Instituting shade tree planting program to reduce adverse effects of local
warming and reduce need for air conditioning;
6-17
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• Increasing city parking rate to meet private sector rates; use proceeds from
parking revenues for purpose of reducing environmental
consequences of automobile traffic;
• Providing more bicycle trails to promote cycling; and
• Initiating a home retrofitting program for energy efficiency in home
appliances and light fixtures.
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APPENDIX I
6-19
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CRITERIA FOR EXPANDING THE ROLE OF LOCAL GOVERNMENTS
LOCAL GOVERNMENT PROJECT
ANALYTICAL PROJECT OF THE 1990's PROJECT
STATUTORY/REGULATORY SCHEME
1. Characteristic of regulated universe is retail rather than manufacturer (i.e.
numerous small facilities)
2. Administrative Burden in establishing program:
• Information system requirements not significant
• Not many personnel required to staff new jobs or additional
responsibilities
• New, expensive equipment not required
• Training requirements, where necessary, are light
3. Program Requirements for implementation:
• Amount and difficulty of training required is minor
• Amount and availability of technical assistance not critical
• Able to incorporate multiple sources or agencies in program
implementation and staffing
• Regulations are clear
• Little oversight of program is needed
LOCAL GOVERNMENT INFRASTRUCTURE
4. Expertise is available at the local level
5. Resources of existing local government
• Full time, experienced personnel rather than volunteers
• Full time personnel from support agencies rather than volunteers (for
example, fire fighters)
• Enforcement authority exists at local level
• Similar programs exist which require similar structure and expertise
• Appropriate equipment and training available
6. Demographic and Economic Conditions of the community
« Larger size and population density of community (economies of scale
and scope)
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• More Income (able to afford environmental enforcement)
• Good management of local government (good access to financial
markets)
• Good location (good access to technical services)
• Current amount of environmental burden not significant (not currently
investing an above average amount of resources to combat existing
pollution problems)
• Funding sources available to local government
7. Social Environment of local government
• Perception of environmental problem and need for program
• High priority, relative to other problems
• Historical relationship with the community more regulatory rather than
"service" mentality
8. Political Environment of local government
Interest in complying with law
Ability of local government itself to comply with program regulations
Visibility of benefits over costs
Good economic conditions; of the community
Little influence of noncompliers on other members of the community
and on local government officials
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APPENDIX II
6-23
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EPCRA
BACKGROUND
The Emergency Planning and Community Right-To-Know Act (EPCRA) of 1986 lays
the groundwork for a coordinated effort to identify potential chemical hazards for
individuals and community leaders and to develop a comprehensive state, district
and local strategy to respond to hazardous materials accidents. The Act addresses
planning for chemical emergencies, notifying proper authorities of chemical
accidents and releases, reporting hazardous materials inventories, and reporting
routine or planned toxic chemical releases.
The required emergency planning is carried out by Local Emergency Planning
Committees (LEPCs), which have been organized at a district or county level by State
Emergency Response Committees (SERCs). Larger cities and in some instances
towns themselves, have been designated a separate planning district with their own
LEPC. But in the vast number of states outside of New England, small and rural
communities function as sub-units within a State-designated Title in planning area.
Local planning committees must include the following: representatives of elected
state and local officials; law enforcement officials, civil defense workers, and fire
fighters; first aid, health, hospital, environmental, and transportation workers;
representatives of community groups and the news media; owners and operators of
industrial plants and other users of chemicals, such as hospitals, farms, and small
businesses.
STRUCTURE
Tools
LEPCs use a variety of tools for planning, information gathering, and training. To
obtain information on facilities required to report, inspections are conducted via
local planning and zoning ordinances or fire codes. Information may also be
requested from facilities directly. Other sources have been local tax rolls, phone
books, State Underground Tank registration listings, Trade Associations, Business
Coalitions, public interest groups, State Manufacturers Association, and State
Department of Labor Right-To-Know listings.
Training
The required training is coordinated by the LEPCs. Sources for training have been
local industries who have their own in-house emergency responders, and training
6-25
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grants from the National Institute of Environmental Health Science, the Federal
Emergency Management Agency, atid EPA. Other federal agencies have offered
courses fulfilling EPCRA requirements, such as the Coast Guard and the U.S.
Department of Transportation. Local academic institutions have also been sources
for training. All fire and rescue institutes have appropriate course offerings, such as
State Fire Fighters Schools who offer hazard recognition and personal protective
equipment. "Train the Trainer" courses are also offered through the joint
cooperation of EPA, FEMA and DOT. Finally, a fairly new method of training in use
now is Video Conferencing.
An example of using a variety of training resources is the Pampa, Texas LEPC. They
take advantage of free training for their hazardous material specialists, which
include courses hosted by EPA, DOE and the State of Texas. For more hands-on
training, hazard material specialists are sent to the Houston Fire Department to
work with their hazmat team whi|ch sometimes responds to as many as three
incidents per day. Another training!resource is the Santa Fe Railroad, which offers
training on handling railroad accidents.
Funding
Funding for LEPCs has come from SERCs, county or city budgets, and donations
from individuals and industry. One example of creative funding is Calhoun
County, Alabama which received donations from Monsanto Corporation and the
City of Anniston to purchase equipment (computers). Monsanto also donated the
time of an employee to provide word processing assistance.
Compliance Efforts !
I
Compliance efforts by LEPCs have been mostly directed toward educating facilities
about the need to report, rather than taking enforcement actions. Inspections are
conducted primarily to educate businesses on their reporting and planning
requirements under EPCRA. Typically, these inspections are conducted by volunteer
firemen. For instance, the Pampa F,ire Department inspects all businesses within
the city limits for fire hazards at least once per year. A hazardous materials specialist
now accompanies the fire inspection officer on these inspections to assist with
implementing Title III and provide information on Title III requirements.
In a few cases, LEPCs participate in enforcement actions. In Wisconsin, the SERC is
in the process of adopting formal compliance and enforcement procedures. The
LEPC and individual citizens will act as "eyes and ears" by notifying the SERC of
noncomplying facilities. The LEPC then acts as the "evidence gatherer" by
contacting the facility after the facility has been notified of the complaint and Title DI
6-26
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requirements. If the facility fails to respond within a specific time, the case is
referred to the state for prosecution.
Citizen Suit Provisions
Additional enforcement authority is available through the citizen suit provisions
under Title III of the Superfund Amendments and Reauthorization Act (SARA),
though they have not been used extensively. Citizen suits provide an additional,
cost-effective tool in the enforcement of this Act, but only a few organizations, such
as the Atlantic States Legal Foundation and the Environmental Action Foundation,
are making use of these provisions to uncover noncomplying facilities.
BENEFITS
Programs run at the local level offer a variety of benefits not reaped when States or
the federal government run the same programs. First, information is disseminated
more thoroughly at the local level. Articles in local newspapers and public service
announcements are often used. Local hospitals have even offered free luncheons to
businesses where panels of local officials discuss Title III requirements.
Second, having programs implemented at the local level multiplies EPA's available
resources, even though most of these resources are voluntary. To accomplish
program requirements, LEPCs have built on cooperative relationships which are
already established and have facilitated new relationships. Many communities
have gained from handling Title III programs as well. For instance, LEPC members
cited local responsibility for EPCRA as creating mutually beneficial relationships
between fire departments, local officials and businesses.
Third, locally run programs provide means for citizens to participate in programs
and provide needed information previously unattainable by States and EPA. In
Fairfax County, citizens now look to the LEPC for answers to their concerns about
particular chemical hazards in their community. With representatives who are
responsible at the local level, citizens are more likely to report violations than they
were previously.
Fourth, locally run programs not only allow for more complete identification of
those who fail to report under EPCRA, but they also prevent duplication of efforts.
For instance, LEPCs can maintain consistency with emergency plans being done for
different hazards, thus saving limited resources.
OBSTACLES
The political make-up of LEPCs has been an obstacle in enforcement of EPCRA.
6-27
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Although the programs run extremely well at the local level, enforcement has not
been pursued actively, except in limited cases where Regions assisted in pilot
projects. Since both business and local government officials must participate on the
planning committees, enforcing the I requirements of the law could mean enforcing
against neighbors, employers, business partners, or the local constituency.
Sometimes LEPC members even view enforcement against local businesses as
economic suicide.
Another obstacle to enforcement is! the voluntary status of most LEPC members.
Work done by and for LEPCs is voluntary, whether it be inspections done by LEPC
members or by the local fire department. Enforcement requires substantial time
commitment beyond potentially burjdensome training and outreach responsibilities.
Lack of centralized information dissemination is also an obstacle. Information
provided by businesses to the State and LEPCs is not enough to determine whether
enforcement actions should be taken. This information should be combined with
permit information available from EPA to determine whether businesses are in
compliance.
In addition to the obstacles mentioned above, funding is difficult to obtain for
planning and enforcement. Although LEPCs are composed primarily of volunteers,
a stable basis of funding must be established to ensure secure local administration.
Finally, an obstacle local governments face is lack of expertise necessary to
understand the reporting forms and the significance of the information being
reported by industry.
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SMALL QUANTITY HAZARDOUS WASTE GENERATOR PROGRAM
BACKGROUND
EPA's small generator regulations are an extension of regulatory authority over the
generation, transport, treatment, storage, and disposal of hazardous wastes which
was established in 1976 under the Resource Conservation and Recovery Act
(RCRA). In recent years, public attention has focused on the potential for
environmental and health problems that can result from mismanaging even small
quantities of hazardous waste. With the passage of the Hazardous and Solid Waste
Amendments of 1984, Congress extended the regulation of hazardous wastes to
facilities generating less than 2,200 pounds of hazardous waste in a month.
Federal law allows states to set their own requirements for small quantity
generators, provided that the state requirements are at least as strict as federal
requirements. A number of States (at least fifteen) have their own small quantity
generator programs. Under these programs, the role of local governments has
ranged from advisor for other small quantity generators in the community to
enforcement agent.
STRUCTURE
Tools
An assortment of tools are available for monitoring and enforcing compliance with
regulations. To obtain information on facilities required to report, local authorities
cross-reference SIC codes of local businesses with EPA data on the typical hazardous
wastes generated by various types of businesses. Information on nonbusiness small
generators are sometimes obtained from local landfill operators and trash haulers.
Full-scale surveys of local waste generators had also been done to find local small
quantity generators. In order to reach all SQGs in the area, local officials from one
New York State community notified all the lawyers and insurance companies and
invited them to a regional meeting.
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Public health and safety authorities most often monitor and enforce compliance
with the regulations covering small quantity generators at the local level. City
public health, building, and fire departments are used to provide a force of officers to
make the inspections. Generally, the^e inspectors receive additional training to deal
with the technical side of monitoring and enforcing compliance with hazardous
waste regulations. Using experienced inspectors from other programs not only
saves valuable resources but also speeds up the training process.Ernergency response
planning for small quantity hazardous waste generators is included in local
emergency plans required by Title [III of SARA. All of the tools and resources
available for responding to chemical emergencies under EPCRA are available for
responding to SQG emergencies. Local agencies, particularly fire departments and
health departments, provide a response mechanism as well as an inspection force.
Ramse County, Minnesota has groups or agencies which assist in performing both
in an "eyes and ears" function and as active assistants in gathering evidence. These
assistants are the County Sheriffs, Commercial Laboratories, the State Health
Department Laboratory, the State Bureau of Criminal Apprehension Laboratory,
County attorneys, the Attorney General, the local Sewer Authority, the city Fire
Housing and Building Departments, and the State Department of Transportation.
Training
Training is difficult to get at the local level for the SQG program. Ramse County has
sent some of their inspectors to Denver for the RCRA training course. The rules are
complex, lengthy, and technical, and proper interpretation and application is
difficult. Sources for training are few, though growing. The Regional Hazardous
Waste Projects offer hazardous waste investigative training courses. The U.S.
Department of Transportation may be an additional source of training, as well as
local academic institutions (e.g.,j courses offered through the University of
California).
Funding
Funding for the SQG program may come from county or city budgets. Ramse
County's technical licensing and inspection program is now financially self-
sufficient through funding from generator license fees and facility license fees.
Grants may also be available from EPA on a limited basis.
Compliance Efforts
Very few SQG programs exist at the local level. Those local governments that do
have programs have focused primarily on obtaining compliance through education
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and technical assistance.
i
Two of the more advanced programs are found in Ramse and Hennepin Counties
in Minnesota. Minnesota Statutes enable hazardous waste programs at the county
level. These counties are involved in all aspects of environmental enforcement for
each category of waste handlers except transporters. Though their civil authority is
limited at the county level, they do have authority to suspend or revoke licenses,
sue for reclamation of expenses, and seek injunctions. The counties assist the State
as "evidence gatherers" in civil cases through inspection reports, licensing files, and
joint inspections. Criminal enforcement has not been a focus in the past. There
have only been six criminal cases state-wide. However, these two counties are
turning their attention to criminal enforcement.
BENEFITS
Involvement of local government can provide benefits through the additional
resources available to supplement Federal and State prevention and enforcement
efforts. Federal, and in many cases, state efforts concentrate on the largest volume
generators. The amount of small and exempt quantity generators is far too
numerous to deal with at these levels. However, small generators are a significant
source of environmental pollution. For instance, in Minnesota, 60 percent of the
waste generated is from SQGs. Many county and municipal agencies have or can
develop the manpower to provide additional regulatory, educational and
enforcement support.
Another advantage is that local governments can more thoroughly identify and
educate businesses which qualify as small quantity hazardous waste generators.
Local governments are closer to the individual businesses that make up the bulk of
the regulated SQGs and they know the most productive means of reaching the
public.
Local government also has a vested interest in running an effective SQG program,
since managing the wastes from small generators leads to a "cleaner" refuse stream,
which in turn leads to a "cleaner." wastewater treatment plant and "cleaner"
landfills. A good hazardous waste management program will reduce the likelihood
of illegal dumping, thus reducing the threat to public health and safety in the local
community and helping to ensure the economic viability of local small businesses.
Operating a program at the local level also means that with the growth in the
public's awareness of hazardous wastes and efforts to manage small quantities
generators, they will be more likely to report violations. Where small spills may
have gone unreported in the past, citizens will now be more willing and able to act
as "eyes and ears" to the local government.
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Finally, local government is perceived by the regulated community as more
responsive and fair. Generally, they are able to respond more quickly and
geographical proximity to the regulated community makes them more effective.
OBSTACLES
One obstacle is local government's difficulty balancing the need to educate the
regulated community to the basic concepts of the regulations with the need to
enforce the rules. These tensions often produce conflicting goals. If the primary
emphasis of the program is enforcement and prosecution at the expense of
education and assistance, public and political opposition may occur. If, on the other
hand, education and assistance is the primary emphasis at the expense of
enforcement, then the program will be perceived as ineffective and kicking "teeth".
Compliance will be sporadic and practiced only by those who have other reasons for
doing so.
Political pressure and budget constraints are additional obstacles. Of these, political
pressures may be the most difficult: Local government is more accessible to the
regulated community than are Federal officials. Each regulated entity has more
impact on local officials than on State or Federal office holders because the entity
represents a larger percentage of the total vote pool. Likewise, local officials may
exert more influence on program policies and staff due to the smaller bureaucratic
buffer between the office holder and the program staff.
A final and significant obstacle is the lack of trained investigators and prosecutors
able to uncover violations and bring offenders to trial. Unfamiliarity with court
administration has some times led to the misdirection of prosecution documents.
UST
BACKGROUND
Local government involvement in the Underground Storage Tank program (UST)
varies dramatically from State to State. Some States are attempting to delegate the
program to local governments, such as California, while others are running the
program at the state level.
UST programs have two components: prevention and clean-up. These components
may either be located in the same S;tate agency or in different agencies. Programs
administered at the local level may l|iouse the prevention responsibilities in the Fire
Marshal's office, while the State environmental agency may continue to handle
corrective action responsibilities.
In general, statutory authorities and [regulations do not allow a formal delegation of
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the federal UST program to local governments, although States may do so.
Oversight of local programs will be approved on a State-by-State basis during the
state program approval process. A wide variety of approaches toward delegating all
or parts of the program to local authorities is expected.
STRUCTURE
Tools
Organizationally, UST programs are found in a wide variety of institutional homes,
including: public health departments, Fire Marshals' offices, State Police offices,
environmental agencies, such as departments of environmental protection,
services, or conservation. Inspectors for this program are often responsible for
conducting inspections for several other programs, which may include hospitals,
restaurants, and SARA Title III facilities.
In Suffolk County, New York, underground storage requirements are enforced
through the local sanitary code passed by the County Board of Health. Field
personnel from the Inspection Services Unit of the County Board of Health perform
multi-media inspections, which include hazardous materials storage and handling,
NPDES, sewage treatment plants, and emergency response.
Training
EPA provides Emergency Response Training and an Inspector Training manual for
UST inspectors. Additional training may be tailored to the agency where the
program is housed. For instance, in Suffolk County, UST inspectors receive
Sanitarian training (since the program is administered by the County Board of
Health), ongoing Safety training provided in-house, and on-the-job training, in
addition to emergency response training.
Funding
No funding is available directly from EPA to local governments. Funding to local
governments would require negotiating grants with 3,000 counties and many more
municipalities. EPA interests are better served by focusing resources on program
elements that cut across local boundaries, such as working with the States to
develop training programs and program implementation tools for local agencies.
New York's Suffolk County Board of Health funds its program entirely through
County or State funds. Resources to administer the program are from taxes, state
aid, Registration and Plan Review Fees, and penalties.
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Compliance Efforts
Enforcement authority is delegated to local governments by State legislation or
regulations, although authority may also come from a variety of local codes,
especially fire codes. Criminal actions have been taken at the local level in the UST
program, although this is a rare event. For the most part, the enforcement
philosophy of local agencies is to educate the regulated community. Because the
program is relatively new, the effort has been on teaching compliance. Exceptions to
the educational approach may be seen in organizations such as the Fire Marshall's
office or the State Police office which have either arrest authority or the ability to
revoke a building occupancy permit. In these cases the initial enforcement response
tends to be more assertive.
An example of a local government involved in all levels of enforcement in the UST
program is Suffolk County. The County Board of Health handles compliance
conferences and consent hearings through civil and criminal proceedings.
Inspectors use tickets for simple violations. Criminal cases are referred to District
Attorney Environmental Crimes Unit, which enforces the State conservation laws.
When cases are referred, the County Board of Health provides support through
investigative and lab services, records; and witnesses. All lab services are under the
Medical Examiner's Office and investigative services are usually done jointly with
police investigators.
BENEFITS |
One of the largest benefits Local Government involvement provides is site-specific
compliance assistance and oversight functions. With such a large number of
facilities to monitor - almost two million regulated USTs at about 750,000 facilities -
centralized state programs or the Federal Government could not provide the
necessary level of monitoring and oversight. For the UST program to be effective,
building plans should be reviewed and construction should be supervised.
Another benefit to local involvement is the increase in the number of "eyes and
ears" monitoring compliance with environmental regulations. A higher rate of
compliance is possible among the local population, resulting in improved
environmental quality for all.
Finally, state programs operate as an umbrella, assuring a minimum standard. Local
programs, which are often more stringent, provide additional environmental
protection. Therefore, local involvement in implementing part of an UST program
furthers EPA's goal of protecting human health and the environment.
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OBSTACLES
The most common obstacle to Local Government involvement is lack of resources
to implement the program. Some States, such as Michigan, are now beginning to
charge tank permit or license fees to fund inspectors or regulatory positions at the
local level.
Another major obstacle is that many local governments lack the authority to
enforce state regulations, or lack commensurate local codes. For example, the local
agency may not be able to issue administrative orders without going through the
DA's office, and it may not be able to assess penalties.
Often, the organizational structure of the local authority running the program may
also be an obstacle. When a program is located in an agency or organization with a
broader mission, environmental enforcement may be a relatively low priority and
may be under-funded.
Political obstacles are also present. Prosecuting violators of UST regulations may be
difficult because they are primarily small operators who are known in the
community. Aggressive prosecution by elected DAs could be politically unattractive
because of the violator's position in the community or because environmental
enforcement may have a low priority relative to fighting drugs or prosecuting
felonies.
Conflicting goals may also be present at the local level. The economic consequences
of enforcing regulations may be in direct conflict with pursuing environmental
compliance, particularly when it may mean, as in the UST program, forcing small
businesses to close.
Finally, personnel shortages at the local level present an obstacle to implementing
the UST program. Because a key element to an effective program is close
supervision of plans and construction, staffing may be too short to provide the
necessary oversight. Management should be at the lowest level able to implement
the program and have the necessary intimate contact. The most efficient way to staff
the program is to use other program inspectors, but no incentives are present to
create a willingness among inspectors to increase their load.
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PRETREATMENT
BACKGROUND
•I
The General Pretreatment Regulations require all large POTWs (publicly owned
treatment works) and smaller POTWs with significant industrial discharges to
establish local pretreatment programis. Large POTWs are those which are designed
to accommodate flows of more than 5 million gallons per day. Approximately 1,500
POTWs are participating in the National Pretreatment Program by developing local
programs. The local programs must enforce all national pretreatment standards and
may enforce more stringent discharge requirements to prevent disruption of the
sewage treatment system, adverse environmental impacts, or disruption of sludge
use or disposal. Thus, the National Pretreatment Program consists of approximately
1,500 local programs designed to meet federal requirements and to accommodate
unique local concerns.
Federal, State, and local government agencies all have a hand in establishing
pretreatment programs. The federal government requires that states develop
pretreatment programs; the States, in turn, review, approve, and oversee the
programs of local POTWs. However, the specifics of pretreatment program
development and approval vary from state to state, depending on the status of the
State's program to control direct discharges—the National Pollutant Discharge
Elimination System (NPDES).
Implementing a Pretreatment program at the local level requires legal authority, a
professional staff, funding, and an information base on the industrial dischargers.
Effluent limitations must be established for industrial users that enforce federal
standards and protect local interests. Then POTWs must implement their effluent
limits through notification, permit administration, inspection, monitoring, and
enforcement. In addition, Pretreatmlent programs must include a data management
system and must provide mechanisms to allow the public to have access to
information about the program and to comment on program elements.
STRUCTURE
i
Tools
i
A variety of tools are available for monitoring and enforcing compliance with
regulations. Local police departments provide an excellent source of expertise about
proper procedures for gathering evidence of violations, devising methods to assess
fines, and preparing cases for civil litigation and criminal prosecutions. Many
Control Authorities have police officers trained to recognize pretreatment
violations (e.g., evidence of illegal discharges to manholes) and have found their
assistance to be invaluable in conducting criminal investigations.
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Sometimes area hospitals are requested to report injuries caused by industrial
accidents to the Control Authority (prompting investigations to determine whether
spills or illegal discharges may have also occurred). Similarly, area fire departments,
labor boards, fish and wildlife agencies, and building inspectors may also be
consulted for any information related to possible discharge violations.
Local programs sometimes rely on sewer line crews or other field personnel to
conduct compliance sampling and inspections. In other cases, Control Authorities
have trained their own personnel to conduct the sampling and inspections.
Sources who play an "eyes and ears" role include local and state police departments,
fire departments, environmental control departments, industry employees,
laboratories conducting discharge analysis, and industrial competitors. Final
decisions to bring enforcement actions against industries most frequently rests with
elected officials, such as mayors or city managers.
Training
Most training has been conducted by EPA Regional offices and State agencies. These
include technical and legal courses. Municipal Pretreatment coordinators at the
regional offices arrange the courses and are beginning to expand course offerings to
enforcement investigation training.
Funding
The primary way of funding the Pretreatment program is through charging the costs
of the program to the industrial users themselves. It is also possible that POTWs
would absorb the costs, but no instances of this have been found.
Compliance Efforts
Enforcement efforts have been minimal. Municipalities have had more of a
"service" mindset toward the industrial users, rather than a view of themselves as a
regulatory agency. Thus EPA has been forced into the position of taking
enforcement actions against municipalities because of their inaction toward
violators.
BENEFITS
Having enforcement authority for the pretreatment program at the local level is
useful for three reasons. First, POTW officials are familiar with their industrial
users. They usually know the location, wastewater flow, and pollutant loadings of
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the industries they serve. They may already have mechanisms to regulate their
industrial clients, such as permits pr contracts. These documents may contain
agreements concerning both the nature and volume of industrial discharges and
fees for the service. Thus, POTWs already have administrative mechanisms and
client relationships in place on which to base enforcement of the pretreatment
program.
Second, POTWs are better able to understand and to correct problems within their
own treatment systems. Therefore, they can tailor discharge requirements in
pretreatment permits to preclude interference with their particular treatment
system. The POTW is also in the beSt position to understand other problems that
must be considered in formulating pretreatment permits/such as the hazard of
explosions or corrosion in the sewage system and the treatment plant.
Finally, the POTW is the level of government best able to respond to emergencies in
the treatment system. The unexpected discharge of pollutants by an industrial user
could result in the discharge of untreated wastes by the POTW itself, violating
federal standards and presenting ah environmental hazard. In many cases, the
POTW can quickly pinpoint the cause of the problem and take corrective action.
OBSTACLES
The obstacles toward having effective local programs are many. First, the resources
required to implement a program can be enormous. A sophisticated, expensive
information system is required to track and store all of the data. Professional, highly
trained staff are needed to monitor a pretreatment program. Many municipalities
do not have the funds to train or even employ such personnel.
Second, the technical and scientific requirements of the Pretreatment program are
substantial. Extensive knowledge and a great deal of time is often necessary to
identify the problem areas or violators. Sophisticated laboratory techniques and
technical expertise are required to identify the substance and the industrial source of
that substance violating the law.
A third obstacle is the mindset among most municipalities of service to the
industrial users, rather than regulators of the users. The prevailing attitude has
been one of providing the service of waste treatment to customers rather than
viewing POTWs as "investments" which need to be protected. This may be due to
the fact that many treatment plants were constructed with primarily State and
Federal monies, and relatively little local contributions. Because of this mindset,
many localities have avoided focusing on becoming enforcement agencies.
Fourth, political obstacles also stand in the way. Pretreatment monitoring and
enforcement can be costly to a community's economic base. Often, political leaders
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do not want to invest large dollars to enforce against local businesses who make up
the economic foundation of the community.
Finally, the Pretreatment program generally holds a low priority in a municipality's
budget. Water supply and pollution control are often the largest dollar amounts in
the budget. When placed against other pressing social problems requiring lower
commitments of funds, Pretreatment tends to be the lowest priority line item in the
budget.
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•f U.S. Government Printing Office : 1991 - 312-014/40016
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