Final FY2006 Update
National Program Managers'
Guidance
Office of Enforcement and
Compliance Assurance
June 2005
revised October 2005
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SECTION I: INTRODUCTION 2
SECTION II. D
NATIONAL PRIORITIES FOR ENFORCEMENT AND COMPLIANCE D
ASSURANCE 4
Wet Weather 5
Air Toxics - Maximum Achievable Control Technology (MACT) 5
NSR/PSD 6
Mineral Processing 7
Tribal 8
Petroleum Refineries 8
SECTION III: CORE PROGRAM ACTIVITIES 9
Compliance Assistance 9
Compliance Incentives 11 D
Monitoring and Enforcement 12 D
Technical Support and Training 14 D
Data Quality and Reporting 15 D
EPA State Relations 16 D
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)D
and RCRA Corrective Action Enforcement Program 19 D
CLEAN WATER ACT (CWA) PROGRAMS 20 D
SAFE DRINKING WATER ACT (SOWA) PROGRAM 28 D
FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT PROGRAM . . 35 D
EPCRA PROGRAMS 38 D
TSCA 40 D
CLEAN AIR ACT PROGRAM 46 D
RCRA PROGRAM 55 D
FEDERAL ACTIVITIES PROGRAM 63 D
FEDERAL FACILITIES ENFORCEMENT AND COMPLIANCE PROGRAM 65 D
MULTIMEDIA AND RAPID RESPONSE PROGRAM 70 D
ENVIRONMENTAL JUSTICE PROGRAM 73 D
TRIBAL PROGRAM 77 D
SECTION V. FY2006 OECA Workplan Submission Instructions 80 D
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Executive Summary
Office of Enforcement and Compliance Assurance (OECA) - FY 2006 Update to the
National Program Managers' Guidance.
SECTION I: INTRODUCTION
EPA's national enforcement and compliance assurance program is characterized by its
multi-media scope and breadth. The national program is responsible for maximizing compliance
with 10 distinct federal environmental statutes dealing with prevention and control of air
pollution, water pollution, hazardous waste, toxic substances, and pesticides. Most of these
statutes have multiple program elements, and OECA carries out compliance and enforcement
activities in a total of 28 separate program areas. The statutory and regulatory requirements of
these programs apply to approximately 41 million regulated entities, an enormous and diverse
universe which needs to achieve and maintain compliance.
The OECA National Program Manager's (NPM) guidance sets forth national program
priorities and activities for the enforcement and compliance regulatory programs for a three year
cycle. The performance expectations and activities outlined in the guidance are the starting point
from which headquarters and the regional offices engage to discuss the management of program
activities and the distribution of resources. These discussions result in the regions committing to
a specific number of, or a specific universe percentage of, program activities. These
commitments nationally constitute the agreed upon approach between the regions and the
national program managers for achieving performance expectations in both the core program and
the national priorities for the fiscal year.
FY 2006 Update to the FY2005 - 2007 NPM Guidance
The FY2005 - 2007 NPM guidance issued in April 2004 incorporated changes and
recommendations adopted by the Agency to improve the planning process as a whole and to
continue to integrate program planning with performance-based results. Additionally, the
development and issuance of the NPM guidance was timed to engage the states earlier and more
directly to allow them a greater role in EPA's planning and priority setting processes.
One of the most significant changes to the FY 2005 - 2007 planning process was the
introduction of the Annual Commitment System (ACS). The ACS replaced the paper
memorandum of agreement (MO As) that OECA had previously required from each of the ten
regions. Starting in FY2005, the regions entered their annual program commitments into the
ACS. Regions were required to enter commitments for both the core and national priority areas.
Headquarters and the regions negotiated and finalized acceptable commitment levels prior to the
start of FY2005.
For FY2006, OECA has eliminated a number of the commitments in the ACS. After
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completing the commitment process for 2005, OECA senior managers established a workgroup
to review the existing commitments and make recommendations for reducing the number of
commitments in the system. The purpose for this was twofold. The first was to reduce the
overall number of commitments to alleviate the reporting burden on the regions. The second
was to respond to the regions' feedback that a number of the commitments needed clarification,
better definitions, clearer delineation between federal and state responsibility, or were
duplicative of other media programs' commitments. The workgroup, composed of regional and
headquarters staff, reviewed all of OECA's ACS commitments. A set of principles was
developed to provide the group with a consistent rationale and framework for deciding which
commitments should be deleted, which commitments should be reworked or redefined, and
which commitments should remain unchanged. For those commitments recommended for
deletion, the workgroup made sure to maintain the commitment's program activities and
expectations as part of the narrative in this FY2006 Update to the NPM Guidance. Further, the
deletion of a commitment doesn't mean the corresponding data is no longer reported into
OECA's national data systems. Regions should continue to rely on OECA's Enforcement and
Compliance Reporting Plan Memorandum which defines reporting requirements for the national
program. The workgroup recommended that the number of commitments be reduced from 168 to
105. Additionally, the workgroup recommended that the commitments tracking both state and
federal activities be broken out to clarify tracking within the ACS. Therefore, in some instances
there will be two commitments for one activity. Overall, there is a decrease of 67 core and
priority commitments and the addition of four new commitments for FY2006.
It is important to note that not all core program activities have an associated commitment
in the ACS. The absence of a commitment in the ACS does not tacitly imply that a core
programs' activities are any less important. Likewise, the activities in the ACS should not be
focused on exclusively at the expense of other program activities. The commitments in the ACS
are a subset of the full array of OECA's core program. The national enforcement and
compliance assurance program is a dynamic program and regions should expect that
headquarters may need to redirect attention and resources toward program issues that arise
during any given fiscal year. It is possible that an issue may develop well after the planning for
the fiscal year has been completed. Headquarter's acknowledges that there are regional
considerations that dictate the extent to which a region can address newly identified initiatives or
program requests but there is an expectation that the regions adjust resources and participate
accordingly whenever practicable. The introduction of the ACS does not change this dynamic
and a midyear ACS adjustment period has been built into the planning cycle so that regions may
make any necessary adjustments to their commitments should their resources be directed
elsewhere during the course of the year.
Lastly, the financial assurance priority has been added to the FY2006 planning cycle and
a development and implementation strategy will be developed. Last year OECA recommended
that this issue be evaluated during FY2005 to determine whether it should be pursued as a
priority beginning in FY2006. After consulting with our program partners and others, OECA
has decided to pursue this priority for FY2006 -FY2007. A more detailed explanation on the
priority's selection rationale and OECA's approach to for addressing this priority area can be
found in Section II - National Priorities for Enforcement and Compliance Assurance below.
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SECTION II.
NATIONAL PRIORITIES FOR ENFORCEMENT AND COMPLIANCE ASSURANCE
OECA selected its national priorities for the FY2005 - FY2007 planning cycle at the
beginning of last year. Strategy implementation plans have been developed for all of the
priorities and activities are fully underway to meet the priorities' goals. Below are short
summaries of the priority topic areas. For more information on the priorities, priority-specific
goals, and the national priority selection process go to
http://epa.gov/compliance/data/planning/priorities/index.html
Financial Responsibility
Selection Rationale: Financial responsibility protects public health and the environment by
promoting the proper and safe handling of hazardous materials and protecting against a liable
party defaulting on closure or clean up obligations. These benefits are lost unless there is
compliance with the financial responsibility requirements and enforcement where there is a
failure to maintain sufficient financial responsibility. Absent financial assurance, protection of
human health and the environment would depend on available governmental financial resources.
Consistent with EPA's mandate to protect human health and the environment and ensure
compliance with the law, as well as the Agency's long standing "polluter pays" principle, an
enforcement strategy for obtaining full compliance with financial responsibility requirements
prevents improper handling of hazardous materials and the shifting of the costs from the
responsible parties to state and federal taxpayers.
Recent events have revealed that there are significant issues related to compliance with
the financial responsibility obligations under current environmental laws. OECA is concerned
that entities not providing adequate financial responsibility in accordance with their obligations
under federal laws are not providing adequate protection to human health and the environment.
OECA's concerns in this area are shared by the Association of State Territorial Solid Waste
Management Organizations (ASTSWMO) who urged OECA to adopt financial responsibility as
an FY2006-2007 enforcement priority.
EPA has decided to phase in its approach in the examination of compliance and
enforcement issues under the federal laws. OECA has initiated its review by looking at the
Resource Conservation and Recovery Act (RCRA) Subtitle C closure/post-closure and
corrective action and the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA). OECA plans to initiate its review of Section 6(e)under the Toxics Substance
and Control Act (TSCA) in FY2006. Also in FY2006, OECA plans to evaluate the Safe
Drinking Water Act (SDWA) and RCRA Subtitle I to determine if the financial responsibility
programs under these laws should be included in this priority. This phased approach will help
OECA refine its efforts to address identified non-compliance and resource issues as well as help
in the development of a strategy with measurable goals and outputs for all environmental laws
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requiring financial responsibility in this priority.
Performance-Based Strategy Goal: By FY2007, reduce harm to human health and the
environment by addressing noncompliance and optimize EPA's financial protection and
resources. EPA is currently developing procedures and measures to carry out this goal by
creating a screening process to assess risks caused by a failure to have financial responsibility so
that high-risk entities are identified on a priority basis and ensuring that all inspected entities are
in compliance or on a path to compliance.
Wet Weather
Selection Rationale - Discharges from wet weather events are the leading causes of water
quality impairment as documented in Clean Water Act (CWA) Section 305(b) reports and
represent significant threats to public health and the environment. The discharges come from
overflows from combined sewers or sanitary sewers, concentrated animal feeding operations
(CAFO) discharges and run off, and storm water run off. The main pollutants in sewer
overflows are fecal coliform (raw sewage), bacteria, pathogens, nutrients, untreated industrial
wastes, toxic pollutants such as oil and pesticides, and debris washed into the sewer system.
Discharges of nitrogen, phosphorous and fecal coliform from CAFOs to water bodies can occur
through poor maintenance of waste lagoons, improper storage of animal waste, excessive and
improper application of manure to crops, and excessive rainfall resulting in spills and leaks of
manure management areas. Storm water runoff can carry high levels of pollutants such as
sediment, oil and grease, suspended solids, nutrients, heavy metals, pathogens, toxins, and trash
into sewer systems and ultimately into our streams, rivers, lakes, estuaries, wetlands, and oceans.
Pollutants in sewer overflows, storm water discharges and CAFO's can cause a variety of
diseases in humans, ranging from dysentery to hepatitis. Wet weather compliance problems have
been prioritized by looking at regulated facilities contributing to the impairment of watersheds,
beaches and other recreational areas, shellfish beds, source water protection areas, environmental
justice areas, and other sensitive areas.
Performance-Based Strategy Wet Weather Goal: Protect public health and water quality in
our nation's watersheds where CSO's, SSO's, CAFO's, and Stormwater sources may adversely
impact sensitive areas, environmental justice communities, or have the potential to cause other
significant risks to the environment or human health.
Air Toxics - Maximum Achievable Control Technology (MACT)
Selection Rationale: MACT standards are promulgated under Section 112 of the CAA to
regulate the most hazardous air pollutants (HAPs) and those posing the highest degree of risk to
human health and the environment. By ensuring compliance with MACT standards, the Agency
reduces public exposure to toxic air emissions. By the end of 2004, EPA will have promulgated
approximately 90 MACT standards. After MACT standards are established, the regulated
community has several years before the compliance date takes effect to learn about and prepare
for the new standards. Emphasis on MACT standards over several years, both before and after
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the compliance dates, can ensure that the requirements are clearly understood and that guidance
and compliance assistance tools are developed for regulatory agencies and the regulated
community.
The Air Toxics program first became an OECA priority in FY2000. Since that time, the
objective of the priority has been to distribute the substantial MACT implementation workload
between headquarters and the regions through a regional Adopt-a-MACT program. Through the
program, the regions adopted MACT standards for which they developed compliance monitoring
and compliance assistance tools. This approach has resulted in the availability of a wide array of
MACT implementation tools such as inspector check lists, applicability flowcharts and
compliance time lines. Now that compliance dates are in place for more than 40 MACT
standards, and implementation tools are available for the majority of these standards, the focus of
the Air Toxics priority will shift from primarily a compliance assistance and tool development
effort to compliance monitoring and enforcement.
Performance-Based Strategy Goal: The general goal of this strategy will be to protect
public health and the environment from the release of harmful emissions of air toxic pollutants.
An important component of meeting this general goal will be to implement the Performance-
Based Air Toxics Enforcement Strategy; key provisions will include:
Identification and addressing of high risk pollutants of concern;
Focus on major Maximum Achievable Control Technology ("MACT") sources while
maintaining regional flexibility to target all MACT source categories for investigation,
including area sources;
Consideration of Environmental Justice (EJ) in targeting MACT source investigations;
Utilization and further development of targeting tools which identify and prioritize high
risk sources of concern and substantive areas of noncompliance with MACT standards;
Identification of data gaps and ways to gather such data;
Coordination of enforcement efforts with states and tribes as appropriate.
The primary goal of the Air Toxics Enforcement Strategy will be to:
Achieve an annual projected reduction of approximately 12,000 pounds of air emissions
regulated by the MACT standards during the priority period through the investigation and
enforcement of strategically chosen MACT standards. Such air emissions, which include
known carcinogens, mutagens, teratogens, etc., are the most toxic air pollutants regulated under
the Clean Air Act. Over the FY2005-2007 period, approximately 36,000 pounds of air emissions
regulated by the MACT standards will be reduced from these MACT sources. Sources
identified as violating the emission requirements of applicable MACT standards will be placed
on federally enforceable compliance schedules, or will have had appropriate enforcement action
taken, to reduce their excess emissions to zero, in accordance with EPA's enforcement response
policy.
NSR/PSD
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Pursuant to a memo dated Oct. 13, 2005, from EPA Deputy Administrator Marcus Peacock, the
Office of Enforcement and Compliance Assurance is revising its NSR/PSD Strategy to account
for new Agency rule-makings affecting coal-fired power plants. While OECA will continue to
pursue filed cases and cases in active negotiation against coal-fired power plants, OECA will
shift its future focus in the NSR/PSD Strategy from coal-fired power plants to other sectors
where compliance assurance activities have the potential to produce significant environmental
benefits. It is expected that strategy revisions will be completed by the end of 2005.
Selection Rationale - New Source Review (NSR) requirements in the CAA are intended to
ensure that the construction of new sources or modification of existing sources does not
jeopardize the attainment of National Ambient Air Quality Standards (NAAQS) in non-
attainment areas. Prevention of Significant Deterioration (PSD) requirements ensure that areas
with relatively clean air are not significantly degraded by the influx of new air pollution sources.
The NSR and PSD programs directly control emissions of criteria air pollutants, and the PSD
program requires sources to address a number of toxic air pollutants. Avoidance of the required
review results in inadequate control of emissions, thereby contributing thousands of unaccounted
tons of pollution each year, particularly of NOx, VOC, SO2 and PM10. These emissions worsen
problems in non-attainment areas and threaten to drive attainment areas into non-attainment.
Investigations conducted by EPA at many coal-fired utility companies, refineries, and other
industrial facilities reveal that many of them made modifications that were subject to NSR or
PSD but failed to obtain the required permits or install necessary controls.
While EPA will vigorously pursue the new rules through the courts, compliance with
current NSR provisions remains our objective and we will continue to use enforcement to meet
that objective. We will pursue all filed cases and decisions to bring new cases will be guided by
several factors including available resources and desired environmental benefits. NSR is an
important tool and one component of our comprehensive national strategy to achieve cleaner air.
Performance-Based Strategy Goal:
Through the NSR/PSD priority, EPA will protect human health and the environment by
investigating the compliance status of companies representing 75% of the nation's coal-fired
power generating capacity by 2007. The companies found to be in noncompliance will be
subject to an enforceable order by the end of FY2007. Such orders will ultimately result in the
reduction in air emissions of 700 million pounds. Further, EPA will identify additional sectors
where significant environmental benefit can be derived from the resolution of NSR/PSD
noncompliance by the end of FY2007.
Mineral Processing
Selection Rationale: The mishandling of mineral processing wastes has caused significant
environmental damage and resulted in costly cleanups. These highly acidic wastes have caused
fish kills and the arsenic and cadmium that these wastes often contain have been found in
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mineral processing facilities are failing to obtain the necessary permits and adequately manage
their wastes.
Mining produces significant amounts of waste and byproducts, ranging from 10% to
more than 99.99% of the total material mined. Wastes include overburden and waste rock,
which are primarily disposed of in piles near the mine site. Waste rock dumps are generally
constructed on unlined terrain, with underlying soils stripped, graded, or compacted depending
on engineering considerations. Tailings contain a mixture of impurities, trace metals, and
residue of chemicals used in the beneficiation process. Specific types of environmental impacts
include: acid mine drainage, acid leaching operations, fugitive dust emissions, erosion and
sedimentation, habitat modification, disruption of surface and groundwater, and mining
subsidence, the creation of sinkholes or troughs as a result of collapsing overlying strata into
mined out voids. These sinkholes interrupt surface water drainage, affecting ponds and streams.
Performance-Based Strategy Goal:
By FY2007, ensure that high-risk facilities in the mineral processing and mining sectors
are in compliance or on a path to compliance, or are otherwise working to reduce risk to human
health and the environment through measures such as the implementation of best management
practices. This goal will be achieved through the following activities:
D Prioritize mineral processing and mining facilities by evaluating risk and other factors,
such as proximity to environmental justice areas, financial viability and compliance
status. Select 25 non-phosphoric acid mineral processing facilities and five mining sites
for investigation.
D Ensure that all 18 phosphoric acid facilities are in compliance or are addressed through
settlement, civil action or referral to the Department of Justice (DOJ) and are subject to
an order to assess a substantial hazard and address any imminent and substantial
endangerment.
D Ensure that 25 of the mineral processing facilities (other than phosphoric acid ones) are
in compliance or, if not in compliance, have been addressed through settlement, civil
action or referral to DOJ for filing and are subject to an order to assess a substantial
hazard and address any imminent and substantial endangerment.
D At five mining facilities, assess compliance, evaluate whether there is a potential
imminent and substantial endangerment, and take appropriate action to protect human
health and the environment.
D Identify waste management practices that cause health and environmental problems and
work closely with local, state, tribal and federal authorities to provide that information to
other regulated entities so that they can improve their environmental management
practices.
D Aggregate information on "marquee" compliance problemsthose that occur throughout
an industryand best management practices and disseminate it to the regulated
community and all state and private providers of assistance.
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Tribal
Selection Rationale: Significant human health and environmental problems, associated with
several media programs, are present in Indian country and other tribal areas. There are currently
562 federally-recognized Indian tribes in the United States responsible for almost 77 million
acres of land in Indian country. The tribal priority will focus on a variety of environmental
issues and will also address adjacent noncomplying facilities impacting Indian country and other
tribal areas, including those in Alaska.
Performance-Based Strategy Goal: The primary goal of the tribal strategy is to significantly
improve human health and the environment in Indian country and other tribal areas through EPA
working with tribes on compliance assistance, compliance monitoring and enforcement
activities. Through building tribal capacity and direct implementation, EPA will initially focus
national attention on three areas: drinking water, schools and waste management. If at the time a
Region commits to focus on one of these areas there are no violations to address, the Regions
should commit to address targeted violations as they arise.
Petroleum Refineries
Petroleum Refining, a current national priority, will be evaluated at the end of FY2005 D
for potential return to the Core Program. D
Selection Rationale: The Petroleum Refining Sector was selected as a national priority in FY
1996. An integrated national strategy was developed that built upon individual regional
investigative efforts in this sector in the early 1990s, and sought to assemble and focus regional,
headquarters and state refinery expertise in a National effort to engage this industry, on a
company-wide basis, in resolving the most environmentally significant, crosscutting air pollution
violations at their facilities.
Through this effort, EPA initiated scores of investigations at refineries and embarked on a
series of multi-facility negotiations with major refining companies. At this time, global
settlements have been reached with refiners representing approximately 40 percent of the domestic
petroleum refining capacity. Subsequent to FY2002, the emphasis in the petroleum refining
strategy shifted to completing the investigation and settlement work that was in progress. Beyond
concluding negotiations with those facilities we have already engaged, the regions will have a
continuing resource commitment to implementing federal consent decrees. Ultimately, EPA must
assure that the states have sufficient capacity to both investigate and return to compliance, refiners
that have not been the subject of federal enforcement, and to secure the benefits of the federal
settlements through permitting, once the settlements have expired.
Performance-Based Strategy Goals:
Goal 1: D Through settlement or filed civil action, address 80 percent of the domestic refining
capacity and 90 percent of the domestic refining capacity in environmental justice
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areas.
Goal 2: D From the 1995 baseline, 50 percent improvement in compliance.
Goal 3: D Reduce SO2 and NOX emissions by 20 percent.
Goal 4: D Respond to all consent decree deliverables requiring a response, 75 percent of those
responses within 90 days of receiving the deliverable.
SECTION III: CORE PROGRAM ACTIVITIES
Core activities are conducted to implement required elements of environmental laws and to
maintain a credible presence to deter noncompliance. This section begins with a discussion of
those aspects of national guidance which apply across all core program areas, then provides a
discussion about individual program elements under various environmental statutes.
The performance expectations and required regional commitments defined in this core
guidance represent national program expectations and do not cover all of the enforcement and
compliance assurance efforts conducted in the regional offices. Flexibility is a key component of
the national enforcement and compliance assurance program planning process and there is the
understanding that, while regions are expected to support national program core and priority
activities, there are very real, credible reasons for a region's nonparticipation. There are many
factors that can influence the level of a region's participation. For example, geographic or sector
initiatives, the presence/absence of a regulated sector in a region, regional resources, and high
priority regional initiatives can all directly impact the regions' contributions to national core and
priority activities. To ascertain the full array of a region's activities for a given fiscal year, the
region's response to the core program guidance must be considered along with their Regional Plan.
In particular, the regional plans provide more information on the region's use of compliance
assistance and compliance incentive tools to achieve results. A region's performance is based on
the effective use of all the enforcement and compliance assistance tools and program activities.
The core guidance activities laid out below, in conjunction with the regional plans, provide the
best context for a region's contribution to the national program and to program activities in areas
unique to the region. To access the regional plans, go to
http://www.epa.gov/ocfo/regionplans/regionalplans2.htm
GUIDANCE APPLIED TO ALL CORE PROGRAMS
Ensuring compliance involves the use of all available tools including compliance
assistance, compliance incentives, compliance monitoring, and civil and criminal enforcement that
are appropriate to address specific environmental risks and noncompliance patterns. In using these
tools in the national program there are certain fundamental activities and requirements that need to
be carried out for all core program areas.
A. Compliance Assistance (Sub-objective 5.1.1)
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Compliance Assistance includes activities, tools or technical assistance that provides clear
and consistent information for: 1) helping the regulated community understand and meet its
obligations under environmental regulations; and 2) helping other compliance assistance providers
to aid the regulated community in complying with environmental regulations. Assistance may also
help the regulated community find cost-effective ways to comply with regulations and go beyond
compliance through the use of pollution prevention techniques, improved environmental
management practices, and innovative technologies, thus improving environmental performance.
The compliance assistance core program in the regions should include the following:
1. D A strong regional compliance assistance core program infrastructure:
D A full-time regional compliance assistance coordinator to provide a focal point for
planning and coordination of compliance assistance efforts;
D Communication networks within the region, across regions, with headquarters,
states, tribes, and external environmental assistance providers;
D Mechanisms to coordinate and strategically build compliance assistance into
national, regional and state planning processes.
2. D Strategic planning for up front consideration and appropriate use of compliance assistance
in addressing environmental problems:
D Plan and coordinate compliance assistance across organizational and programmatic
boundaries (e.g., media programs, enforcement, environmental justice, small
business) and include states, tribes, and other stakeholders in this process;
D Use integrated strategic approaches to target and address environmental problems,
and consider all available tools, such as compliance assistance, compliance
incentives (self-audits, opportunities for pollution prevention and Environmental
Management Systems (EMS)), compliance monitoring, and enforcement (See
November 27, 2002, Framework for a Problem-Based Approach to Integrated
Strategies).
D Ensure appropriate use of compliance assistance in the implementation of integrated
and performance-based strategies for both national and regional priorities.
3. D Tracking and measuring results of compliance assistance activities:
D Report on planned and actual compliance assistance projects in the Integrated
Compliance Information System (ICIS)
D Report all compliance assistance project outputs, and for significant compliance
assistance projects, also measure and report outcomes. Significant compliance
assistance projects include activities that support the OECA national priorities or
regional priorities.
D Commitment ASST01: Conduct outcome measurement for 100% of all
compliance assistance workshops/training, onsite visits and revisits which support
the OECA national priorities and report the results of these outcomes into ICIS.
Report on exceptions to the 100% and provide brief explanations in the ACS.
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D Conduct follow-up measurement activities to determine improved environmental
management practices and pollution reduction outcomes achieved for the subset of
direct assistance activities identified above which are in support of the OECA
national priorities.
D Outcomes of federal compliance assistance on-site visits and revisits should be
reported in ICIS. The Compliance Assistance Conclusion Data Sheet (CACDS) can
be used to record these outcomes and facilitate data entry into ICIS.
4. D Providing compliance assistance targeted to appropriate problems, sectors, and geographic
areas directly or through other providers (states, tribes, P2 providers, etc.)
D Develop compliance assistance tools, conduct training, workshops, presentations,
onsite visits and/or distribute outreach materials;
D Share compliance assistance tools and opportunities within the regions and
externally, e.g., with states, tribes, trade associations;
D Serve as a wholesaler of compliance assistance to enable other providers to offer
assistance, including, for example, providing training and tools to providers;
D Place new tools on Compliance Assistance Clearinghouse as they are developed;
D Market and wholesale compliance assistance opportunities and tools, and share
success stories.
Detailed descriptions of the above compliance assistance activities undertaken by the
regions, as well as information on the types of sectors targeted for compliance assistance, can be
found in the regional plans at http://www.epa.gov/ocfo/regionplans/regionalplans2.htm
B. Compliance Incentives (Sub-objective 5.1.2)
EPA promotes compliance through the use of incentive policies. These policies reduce or
waive penalties under certain conditions for facilities which voluntarily discover, promptly
disclose, and correct environmental problems. EPA encourages the use of such policies, which
include the Audit Policy, various market-based incentives, compliance auditing protocols, and
environmental management systems that will result in actions that reduce, treat, or eliminate
pollution or improve facility environmental management practices (EMPs).
EPA's Audit Policy, Small Business Policy and Small Community Policy provide
incentives for the regulated community to resolve environmental problems and come into
compliance with federal laws through self-assessment, disclosure, and correction of violations.
Under various Compliance Incentive Programs (CIPs), individual entities or members of a sector
can disclose and correct violations in exchange for reduced or waived penalties, while the risk of
enforcement increases for those not taking advantage of this opportunity. EPA also promotes the
disclosure of environmental information in accordance with the SEC's mandatory corporate
disclosure requirements as a means of promoting improved environmental performance.
Increasing public access to corporate environmental information helps maintain a level playing
field for companies, and raises company awareness concerning environmental issues.
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Regions are expected to carry out at least the following activities associated with
compliance incentives:
participate in compliance incentive programs directed at a particular sector and/or
noncompliance problem, with emphasis on violations that, once corrected, are likely to
result in measurable pollution reductions.
D promote OECA's compliance incentive policies (e.g., small business policy, audit policy),
with the assistance of state, tribal, and local agencies, to encourage the regulated
community to voluntarily discover, disclose and correct violations before they are
identified by regulatory agencies for enforcement investigation or response.
D consider and follow-up on, as appropriate, self-disclosures submitted under the OECA
audit policy and small business policy.
C. Monitoring and Enforcement (Sub-objective 5.1.3)
Compliance Monitoring
All regional programs should conduct appropriate compliance monitoring activities, which
include conducting compliance inspections and investigations, record reviews, targeting, and
responding to citizen complaints. As in the past, NEIC will continue to support ongoing projects
to the extent commitments were made in previous years, including case preparation and
enforcement support.
The core compliance monitoring program is defined by a number of specific activities.
Compliance monitoring comprises all the activities conducted by a regulatory agency to determine
whether an individual facility or a group of facilities (geographical, by sector or by corporate
structure) are in compliance with environmental laws and regulations, as well as established
settlement agreements (e.g., Administrative Orders, Consent Decrees, Criminal Plea Informations).
Compliance determinations are generally documented and filed using various methods (e.g.,
database, inspection report). Compliance monitoring activities occur before and at the point when
either compliance or an actual violation is determined.
Examples of important compliance monitoring activities include:
D creating a viable field presence and deterrent by conducting compliance inspections,
surveillance, and civil investigations in all the environmental media (air, water, waste,
toxics, wetlands, etc.) in both delegated and non-delegated programs;
D performing compliance data collection, analysis, evaluation, and management;
D developing compliance monitoring strategies that include targeting and information
gathering techniques;
D collecting and analyzing environmental samples at specific facilities, sites, and ambient
locations;
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D reviewing and evaluating self-reported data and records, environmental permits, and other
technical information relating to compliance with environmental laws and regulations;
D maintaining compliance files and managing compliance records;
D responding to tips, complaints, and referrals from private citizens, other governmental
entities, and non-governmental organizations;
D providing training to fulfill the requirements of EPA Order 3 500.1, and other applicable
Orders (1440.1, 1440.2, etc.);
D preparing reports and inputting compliance findings and inspection results into national
databases;
D reporting manually, or into ICIS, the outcomes of inspections and evaluations using the
Inspection Conclusion Data Sheet (ICDS) and analyzing and evaluating the outcomes of
compliance monitoring activities;
D working with state, tribal, and local environmental regulatory agencies to monitor
environmental compliance with environmental laws by private, state, federal, and tribal
facilities;
D identifying, tracking, and coordinating with state, tribal, and local environmental agencies
those violators that are, or should be designated as, Significant Noncompliers, High
Priority Violators, or Watch List facilities;
D identifying potential environmental crimes through the civil compliance monitoring
program, and referring and/or assisting in bringing environmental criminals to justice;
D developing compliance monitoring tools such as inspection guides, checklists, or manuals;
D promoting the recommendations detailed in the Office of Compliance (OC) guidance, Final
National Policy, Role of the Inspector in Providing Compliance Assistance During
Inspections, June 25, 2003;
D developing, negotiating, or overseeing state or tribal compliance and enforcement grants;
D providing training, assistance, support and oversight of state and tribal compliance
inspectors;
D issuing and tracking federal credentials to state and tribal compliance inspectors;
D performing compliance screens for various headquarters and/or state programs such as
Performance Track;
D Conducting federal oversight inspections/evaluations to corroborate state or tribal
inspection findings. Oversight inspections/evaluations are a principal means of evaluating
both the quality of an inspection program and inspector training (Revised Policy
Framework for State/EPA Enforcement Agreements, August 25, 1986).
It is expected that the regions, for each of their programs, will conduct many of these
activities in any fiscal year. The specific combination of activities will depend upon the
availability of intra- and extramural resources, and working agreements made between state and
tribal governments.
Compliance monitoring does NOT include: 1) preparation of Notice of Violations (NOVs),
warning letters, and administrative or judicial complaints, and 2) development of evidence and
other information where a violation has already been determined to have occurred. Instead, these
activities fall under the civil and criminal enforcement programs.
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Civil and Criminal Enforcement
EPA's national enforcement and compliance assurance program utilizes several types of
enforcement actions to correct and deter noncompliance. Civil enforcement authorities include
administrative and judicial actions. In situations where violations are knowingly and willfully
committed, EPA uses criminal enforcement actions. The criminal enforcement core program seeks
to effectively integrate criminal enforcement with the regional enforcement programs. To achieve
this purpose, each region will continue to coordinate and cooperate closely with the Special Agent-
in-Charge (SAC) of the region's CID Area Offices. This includes, but is not limited to, the
identification, investigation and prosecution of criminal violations of federal environmental laws,
with a particular emphasis on identifying criminal activity which victimizes environmental justice
communities. In using its civil and criminal enforcement authorities EPA regions are responsible
for:
D adhering to the applicable program enforcement response policies (ERPs), the timely and
appropriate (T&A) guidances (where these exist), applicable penalty policies, the
Supplemental Environmental Project Policy, and implementation of the Watch List project;
D adhering to OECA Nationally Significant Issues (NSI) and delegations guidance in all
cases as applicable;
D tracking compliance with consent decrees and administrative orders, and taking all
necessary actions to ensure continued compliance;
D inputting all required data into the national databases, where applicable, and completing
and entering the case conclusion data sheets (CCDS) for all concluded actions, including
those in the CERCLA program, into ICIS;
D continuing to resolve enforcement cases initiated prior to FY2006 and ensure investigation
and issuance of appropriate action for any open tips/complaints/referrals received by EPA;
D working with the Department of Justice and EPA Headquarters as appropriate to complete
outstanding judicial and administrative actions;
D continuing and completing appropriate case development activities including issuing
information requests, conducting site visits, and developing appropriate remedies.
D identifying leads appropriate for criminal investigations based upon the criteria in the
January 12, 1994, Memorandum on the Exercise of Investigative Discretion;
D submitting appropriate leads - including cases or aspects of cases that were initially
developed for administrative or civil enforcement but later reveal potential criminal
wrongdoing - to the regional screening committee where discussions and decisions will be
made as to whether violations will be pursued administratively, civilly, or criminally;
D providing technical support to CID investigations, provide regional personnel as witnesses
when necessary, and maintain legal staff support to CID at levels sufficient to ensure the
prompt prosecution of environmental crimes; and
D ensuring that all environmental measurements or samples used to support EPA criminal
investigations will be gathered, recorded and analyzed in a manner that complies with the
EPA quality assurance system, and that all evidence collected will be handled and kept
secure in accordance with EPA policies for the custodial management of evidence.
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D. Technical Support and Training
Technical assistance and training is available to assist regions, states, tribes and local
governments in expanding and improving their capacity to conduct enforcement and compliance
assurance activities. Both the National Enforcement Investigations Center (NEIC) and the
National Environmental Training Institute (NETI) are available to provide expertise and training
in both the core and priority program areas of OECA.
NEIC - The civil and criminal enforcement programs will continue to draw upon the
scientific and technical expertise of the NEIC in conducting its compliance monitoring and
enforcement activities in both the national priority and core program areas. NEIC will continue to
direct its new activities toward national priorities and regional initiatives as described in this
guidance, and the regional plans. NEIC project selection will also be guided by the Assistant
Administrator's priorities, the Agency's Strategic Plan, Government Performance and Results Act
(GPRA), and the national goals effort. Furthermore, NEIC will be examining requests for
assistance based upon the potential for producing measurable environmental results and the degree
to which activities provide opportunity to use or enhance NEIC's unique capabilities (e.g., multi-
disciplined teams, in-depth process evaluations, complex analytical procedures, etc.).
NETI - As a result of its recent organization into the Office of Compliance, a NETI
Transition Task Force has been convened to implement a series of recommendations to assess
emerging training needs, strengthen NETI's role as a clearinghouse for training information within
the enforcement and compliance assurance program, explore cost effective means of delivering
distance training, and prepare a strategic training plan that parallels OECA's annual planning
process. NETI's primary role as developer, coordinator, publisher, and trainer for federal, state,
local and tribal attorneys, inspectors, civil and criminal investigators and technical experts in all
phases of environmental enforcement is still paramount. Closer integration of a training strategic
plan with OECA's planning process will improve the ability of NETI to plan, develop, and deliver
training that will assist EPA and its state and tribal partners in successfully achieving the
environmental goals of OECA's national priorities. NETI is also beginning the process of
developing performance measures with the goal of quantifying the performance results of
enforcement training.
E. Data Quality and Reporting
OECA continues to strive to improve the quality of the enforcement and compliance data to
assure this information can be used as a tool to manage the program and to reliably report on our
accomplishments. This effort to improve and attain a high level of confidence in our information
is focused on two areas: data quality and reporting.
Each OECA office and region should have an approved Quality Management Plan
establishing the offices' procedures for ensuring the sound collection and use of enforcement and
environmental data. In addition, the Data Quality Strategy of March 25, 2002 outlines an
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approach to systematically identify and address problems with the enforcement and compliance
data. Part of this Strategy is to conduct projects (e.g., the enforcement action audit) that will
require regional, state, and tribal involvement.
On May 6, 2003, OECA issued a memorandum addressing data integrity ("Ensuring
Integrity of Reported Enforcement and Compliance Data") and established stringent procedures
for reporting federal data including:
D quarterly data quality reviews of enforcement and compliance data,
D timely entry of data (i.e., two weeks after activity occurs),
D mid-year and end-of-year certification by Senior Managers of data completeness
and accuracy,
D distribution of monthly ICIS manager reports, and
D developing an ICIS Data Integrity Guidance.
OECA will issue an annual Enforcement and Compliance Reporting Process memo by the
end of March each fiscal year that will provide that year's reporting requirements, GPRA
measures, schedules/deadlines, contacts, etc. This memo is a comprehensive guide to the annual
enforcement and compliance reporting requirements covering the various enforcement and
compliance program tools (e.g., compliance assistance, compliance monitoring, compliance
incentives, enforcement) and all media program areas (e.g., CAA, CWA, FIFRA, TSCA,
CERCLA). The memorandum will identify all reporting requirements for national priority areas
and core program on a fiscal year basis.
All federal enforcement cases must be entered into ICIS, the database of record, and also
entered in the associated legacy system, if one exists. Applicable CCDS information on all
concluded actions must also be entered into ICIS and, beginning in FY2005, applicable CACDS
data should be entered into ICIS. The legacy systems (e.g.,AFS, PCS, RCRAInfo) are the data
base of record for inspections, violations, significant violators (SNCs)/high priority violators
(HPVs); however many regions are also entering their inspections into ICIS. A large percentage
of federal inspections are reported manually because there is no corresponding program database.
OECA is striving to have all of the manually reported federal inspections (e.g.,UST, SPCC,
wetlands), entered into ICIS during this planning cycle and will provide separate guidance on this
through the annual Enforcement and Compliance Reporting Process memorandum.
F. EPA State Relations
Consistent with the process for developing national program guidances, regional plans and
state performance agreements, it is critical to have effective ongoing consultation and
communication between EPA and states. Regions and states should ensure that established
processes and procedures for notification of inspections and enforcement actions in authorized and
non-authorized programs, pursuant to the "no surprises" policy, are in place and may be included
in work plans for Performance Partnership Agreements, Performance Partnership Grants
(PPAs/PPGs) or categorical grant agreements. The work plans may be tailored to specific state
conditions and levels of performance. In negotiating grant work plans, regions and states should
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consult the National Program Guidance and follow EPA grant regulations, i.e., 40 CFR Parts 31
and 35. OECA guidance and policy, such as the 1986 "Revised Policy Framework for State/EPA
Enforcement Agreements" and its subsequent addenda, should continue to guide regional
discussions with states.
State Review Framework (SRF)
OECA has worked closely with EPA regions, the Environmental Council of States
(ECOS), state media associations and other state representatives to jointly develop a framework
and process for conducting reviews of core enforcement programs in the CWA-NPDES, RCRA
Subtitle C and the CAA Stationary Sources programs. The goals of the Reviews are to promote
consistent levels of activity in state and regional enforcement programs, consistent oversight of
state and regional enforcement programs, and consistent levels of environmental protection across
the country, which should help ensure a level playing field for states as they try to attract business.
In FY2004, 10 pilots were conducted of the Framework. In 2005, the pilots will be evaluated to
identify opportunities to improve the Framework and streamline the review process. In July of
2005, the regions are scheduled to begin reviews in the remaining states and territories, with the
goal of completing all reviews by the end of FY2007.
The elements, criteria and protocols of the Review Framework are consistent with the 1986
"Revised Policy Framework for State/EPA Enforcement Agreements" and the media-specific
enforcement response policies, compliance monitoring strategies and penalty policies. These
reviews will be an integral part of regional oversight of state enforcement programs in the three
media programs, and are appropriate to include in negotiated authorization MO As. It is
envisioned that the three programs to be covered by the reviews will be incorporated into existing
program review activities, be the primary tool for determining adequacy in the core enforcement
program, and will not constitute new reporting. These reviews should be an integral part of the
regional/state planning process and should be captured in appropriate negotiated PPAs, PPGs or
categorical grant agreements between the region and the state. Any corrective actions or follow up
commitments on the part of the state or the region should be captured and tracked in these grant
agreements and those parties held accountable for carrying out those commitments. Regions with
multiple year PPAs, PPGs or categorical grant agreements that are already in place should plan to
include the SRF process as part of program review activities by the end of FY2007.
Regions should actively discuss these reviews and the schedules for carrying them out with
their states on an ongoing basis. Regions should ensure that their staff as well as state managers
and staff are aware of and informed about the Framework and the process for conducting the
reviews. The capability to use OTIS management reports for national data that will support the
reviews is being developed and will become available to the regions and states in phases in
FY2006. The regions should encourage states to periodically look at the data, ensure its accuracy
and use it in managing their programs.
A performance-based strategy is being developed to guide the implementation of the SRF.
The goals (as they currently exist) are stated above. Measures associated with the SRF will
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include the number of reviews completed within a Fiscal Year (compared to the number of states
and territories under the region's jurisdiction); and the number of program improvements
completed as a result of the review. In the future, OECA will look to determine the value of the
program improvements through the measurement of various outcomes.
Grants Management
OECA awards a number of assistance agreements to states, tribes, and non-profit
organizations to conduct a variety of activities, particularly in the areas of data management and
performance measurement, many of which are managed by the regions. OECA wants to
emphasize that effective grants management is a high priority for the Agency. The primary
Agency guidance for managing assistance agreements is EPA Order 5700.6, which became
effective January 1, 2005. The Order streamlines post-award management of assistance
agreements and helps ensure effective oversight of recipient performance and grant management.
The order encompasses both the administrative and programmatic aspects of the Agency's
financial assistance programs. It requires that EPA develop and carry out a post-award monitoring
plan, and conduct basic monitoring for every award. In January 2004, a new Grants Policy
Issuance, GPI 04-02, Interim Policy on Environmental Results Under EPA Assistance
Agreements, came out of the Office of Grants and Disbarment (OGD). This policy instructs EPA
to describe the goal level link to the Agency's Strategic Plan for each grant awarded after February
9, 2004. OGD developed a new EPA Order that requires EPA and grant recipients to discuss the
environmental results of grants in grant work plans. This Order became effective on November
30, 2004. Regional offices will need to consider these new and upcoming policies when preparing
assistance agreements with states.
Innovative Programs
Innovative programs continue to be important to the compliance and enforcement program.
Regions and states are encouraged to consider implementation of innovative projects for the 2005-
2006 planning cycle. EPA's Innovation Action Council (IAC) has endorsed three priority
innovations for "scale-up," (i.e., full scale implementation) and recommended their integration into
OECA's NPM Guidance. These priority innovations are: the National Performance Track
Program, Environmental Management Systems (EMS), and the Environmental Results Program
(ERP). Details on these innovations are available at http://www.epa.gov/innovations. Regions,
states, and tribes are encouraged to use these innovative approaches in the achievement of their
program goals. One of the Agency-wide programs which OECA is working closely with the Office
of Policy, Economics, and Innovations is the National Environmental Performance Track Program
(Performance Track). When participating in Performance Track, regions should be aware of two
relevant guidance memos: "Enforcement and Compliance Operating Principles for the National
Performance Track Program," January 19, 2001, and "National Environmental Performance Track
Program," April 23, 2003. In support of Performance Track, the regions and states (in concert
with headquarters offices and DOJ) are expected to conduct comprehensive compliance screens of
all applicant facilities. The regional effort includes searches of Agency databases, follow-up on
information found, program by program inquiries about new information not yet accessible in
databases, and coordination with state partners to the extent possible. The region will assess the
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findings against the Performance Track entry criteria, and make recommendations as to the
appropriateness of each facility's participation. One of the incentives offered through Performance
Track is the Agency's commitment to consider all participating facilities as "low priority for
routine inspections." Regions should incorporate these commitments in inspection targeting
efforts, both in the context of regional targeting and planning agreements with OECA and to the
extent possible in negotiating with state partners in their performance agreements and work plans.
On March 22, 2005, EPA published a proposal to exempt five categories of area sources
from the Title V operating permit program. Although these sources would be exempt from the
Title V program requirements, they would continue to be responsible for complying with the
underlying regulatory requirements established in the applicable National Emission Standards for
Hazardous Air Pollutants. If the exemption is adopted, state/local agencies may want to
supplement their traditional compliance monitoring activities for these source categories with an
oversight program such as the ERP to improve compliance with the underlying regulatory
requirements. It combines the following three elements to improve compliance: (1) an annual
facility-specific, self-certification questionnaire; (2) compliance assistance to educate and train
affected facilities; and (3) a performance measurement method to track and validate facility
performance. To learn more about the ERP approach, visit the EPA website at
www.epa.gov/permits/.
G. Planning for Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) and RCRA Corrective Action Enforcement Program Commitments
Regions are reminded that Superfund enforcement and RCRA Corrective Action are
covered under the new Strategic Plan's Goal 3. It is important to make sure that the Superfund and
RCRA Corrective Action program commitments for Goal 3 are addressed. National program
direction for Superfund activities are developed and conveyed through the Superfund
Comprehensive Accomplishment Planning (SCAP) process. RCRA Corrective Action is
addressed through the Office of Solid Waste's (OSW) NPM Guidance.
The commitments for Superfund are to maximize Potentially Responsible Party (PRP)
participation at Superfund sites by leveraging PRP resources and recovering costs. These
commitments are included in OECA's portion of the on-line commitment system. The regions
report the data in CERCLIS and certify it through OECA's annual certification process. The
commitments for RCRA Corrective Action are to address the two RCRA environmental indicators
(Els), which measure human exposures under control and migration of contaminated groundwater
under control. Regions are encouraged to use enforcement authorities and tools where appropriate
to address El's and final clean-up. In addition, the Superfund and RCRA Corrective Action
program commitments for the new financial assurance priority are included in OECA's portion of
the on-line commitment system and accomplishments are reported manually.
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NATIONAL PROGRAM CORE REQUIREMENTS
2. CLEAN WATER ACT (CWA) PROGRAMS
The Water Program encompasses five (5) separate programs under the Clean Water Act
(CWA). These programs are:
D National Pollutant Discharge Elimination System (NPDES) Program
D Pretreatment Program
D Biosolids/Sludge Program
D CWA Section 404 (Wetlands) Program
D CWA Section 311 (Spill Prevention Control and Countermeasures (SPCC) Program
Each program has different characteristics (e.g., some programs have national data bases
and some do not), and, as a result, the "core program" varies somewhat from program to program.
Therefore, in order to provide clarity, shared core program elements are listed in the following
section, followed by a description of compliance and enforcement activities unique to each water
program. Regions should also refer to information contained in Section IV: Core Program
Activities, for further details on shared core program elements. Regional NPDES programs are
responsible for referencing the 1989 Enforcement Management System (EMS) guidance in PPAs
and PPGs, and thereby ensuring that states are implementing adequate core program requirements.
The following core program elements are shared by all of the CWA programs and
should be implemented by regions and states:
D Follow guidance provided in existing national compliance and enforcement policy and
guidance, e.g., the 1989 National Enforcement Management System (EMS)',
D Consider all available data in implementing the compliance and enforcement activities
described below;
D Maintain an effective inspection program in each of the five water program areas;
D Focus assistance, incentives, monitoring and enforcement actions in the national priority
areas described in Section II while maintaining a viable presence in all water programs;
priority water areas include watersheds, public drinking water intakes or designated
protection areas, waters that could impact shellfish beds, waters with threatened or
endangered species, waters designated as primary contact recreation, and waters located in
environmental justice areas;
D Evaluate all violations, determine an appropriate response, and take timely and appropriate
actions against facilities in significant noncompliance (SNC), especially those causing
facilities to be on the Watch List according to the EMS;
COMPLIANCE ASSISTANCE (Sub-Objective 5.1.1)
Compliance assistance is an appropriate tool, in particular, when there are new rules, sector
specific compliance problems, and sectors with a preponderance of small business. Regions
should refer to the Compliance Assistance activities description in Section III. A - Core Program
Activities.
Final D 21 June 2005
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violations identified in their periodic reports (e.g., effluent 20% over the pretreatment limit), or
where the region has information suggesting the SIU discharge may adversely impact POTW
operation, effluent quality, or receiving body water quality.
Investigations were defined by the EPA/State Enforcement and Compliance Data Standards
workgroup as: "an extraordinary, detailed assessment of a regulated entity's compliance status
which requires significantly more time to complete than a typical compliance inspection (i.e.,
several weeks, as compared to one or a few days)". Here is the link to the enforcement and
compliance data standard workgroup: http://www.epa.gov/edr/fenfcompbr.pdf
D Commitment CWA05: Project by state the number of federal and state inspections of POTWs
with an approved pretreatment program in both approved and unapproved states.
D Commitment CWA06: Regions will conduct field investigations at 100% of the SIUs with
violations identified in their periodic reports.
There is some concern there is no consistent method to define the universe of SIUs that require
investigations. OECA will work with the regions and the Office of Water (OW) to define the
universe since it has been flagged as a program deficiency by OW.
Note: Policy options are under development for other approaches to guide the use of NPDES
inspection resources. The regions and states will be requested to fully participate in these
discussions.
Section 404 (Wetlands)
Regions should have a process for identifying, targeting, inspecting, and otherwise responding
to illegal activities. Regions are expected to implement the timely and appropriate (T&A) policy.
Since only two states have been delegated parts of the Section 404 program, this is primarily a
federal effort. The regions must also coordinate, as appropriate, with other federal agencies which
have significant roles in wetlands protection through the use of memoranda of understanding and
memoranda of agreement (e.g., Corps of Engineers, Natural Resources Conservation Service
(NRCS), Fish and Wildlife Service, etc.).
CWA Section 311 (Spill Prevention Control and Countermeasures (SPCC) Program
Section 311 is a CWA authority but responsibility for compliance monitoring, enforcement and
implementation resides in a number of different regional divisions including: Emergency and
Remedial Response; Superfund; Hazardous Waste Cleanup; Environmental Cleanup; Ecosystems
Protection and Remediation; and Waste Management.
Compliance and enforcement efforts in CWA 311 should focus on ensuring that regulated
sources have maintained the required Spill Prevention Countermeasures and Control (SPCC)
plans. Regions should check compliance monitoring at facilities subject to SPCC requirements to
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ensure that the plans are adequate and meet the regulatory requirements, particularly with regard to
physical security requirements. In light of continuing concerns regarding chemical safety, regions
should also consider the following factors in focusing their targeting and inspections efforts:
- significant quantities of oil
- proximity to population centers
- proximity to critical infrastructure
Enforcement
NPDES Program
The underlying tenet of the enforcement program is that each violation deserves a response.
The appropriate response to different types of violations is contained in the EMS. Regions are
expected to evaluate all violations, determine an appropriate response per the EMS, and take that
action. Region should focus actions in the national priority areas while maintaining a presence in
all water programs.
In addition to initiating new enforcement actions, regions are expected to negotiate settlements
and track compliance with consent decrees and administrative orders and to take all necessary
actions to ensure compliance with the terms of federal enforcement actions.
Pretreatment
Regions should refer to the Enforcement activities description in Section III. C - Core Program
Activities.
Section 404 (Wetlands)
Regions should refer to the Enforcement activities description in Section III. C - Core Program
Activities.
CWA Section 31 l(SPCC)
Regions should refer to the Enforcement activities description in Section III. C - Core Program
Activities.
DATA QUALITY AND REPORTING
NPDES Program
In FY2006, ICIS-NPDES - the modernized Permit Compliance System (PCS) - will be
launched. Additional guidance and policies will be provided under separate cover to the regions
and states on the implementation and data entry procedures for the new system.
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There are two components to CWA NPDES data management - (1) the state and federal
programmatic data in PCS or ICIS-NPDES and (2) the federal enforcement case data required to
be reported to ICIS including the CCDS and ICDS. All mandatory required data elements are
expected to be entered into PCS or ICIS-NPDES. Where activities at majors have been traded for
activities at national priority minor facilities (e.g., inspections), regions and states are expected to
enter the minor data into PCS or ICIS-NPDES.
D All CWA NPDES federal enforcement cases are required to be entered into both PCS and ICIS
until PCS is modernized is completed and further guidance is given. Annual reporting
guidance will be provided in the Enforcement and Compliance Reporting Plan memorandum.
(Refer to Section III. E)
As detailed in the September 10, 2004 ICDS Expansion, Implementation and Reporting memo,
(http://intranet.epa.gov/oeca/oc/campd/inspector/referenc/icds2005memo.pdf) regions must report
all ICDS data collected from on-site CWA inspection (NPDES, biosolids/sludge, pretreatment,
wetlands and SPCC) by either of the following methods:
D Manual reporting: Submit summary ICDS information at mid-year and end-of-year
using the form in Attachment A of the memo. First-line supervisors need to review the
ICDS forms prior to compiling the ICDS data for mid-year and end-of-year reporting to
verify its completeness and accuracy.
D Integrated Compliance Information System (ICIS): Use ICIS to enter the ICDS
data. See Attachment B of the memo. HQ will then pull the ICDS information from
ICIS for mid-year and end-of-year reporting.
ICDS data, both manually reported and directly entered into ICIS, are compiled in regional
workbooks which are sent to the regions for certification. Regions should have in place a
quality assurance process to verify that the ICDS data is correct and accurate.
D Regions should enter the number and type of planned compliance assistance activities and
outcome measurement projects into the compliance assistance module in ICIS and report all
on-site assistance visits using the CACDS.
Pretreatment:
D OECA strongly encourages regions to enter these inspections into ICIS in lieu of reporting
them manually. Separate guidance will be sent to the regions on how to enter pretreatment
inspections into ICIS.
D Regions should enter the number and type of planned compliance assistance activities and
outcome measurement projects into the compliance assistance module in ICIS and report all
on-site assistance visits using the CACDS.
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Section 404 ( e.g. Wetlands)
D OECA strongly encourages regions to enter these inspections into ICIS in lieu of reporting
them manually. Separate guidance will be sent to the regions on how to enter wetlands
inspections into ICIS.
D Regions should enter the number and type of planned compliance assistance activities and
outcome measurement projects into the compliance assistance module in ICIS and report all
on-site assistance visits using the CACDS.
CWA Section 311 (SPCO
D OECA strongly encourages regions to enter these inspections into ICIS in lieu of reporting
them manually. Separate guidance will be sent to the regions on how to enter SPCC
inspections into ICIS.
D Regions should enter the number and type of planned compliance assistance activities and
outcome measurement projects into the compliance assistance module in ICIS and report all
on-site assistance visits using the CACDS.
PROGRAM OVERSIGHT
NPDES Program
Regions should routinely review all DMR reports received for compliance with permit limits.
(Note that regions may accomplish this review through a routine screen of the PCS data and
reviewing the DMRs themselves as necessary.)
Regions also should routinely review data submitted by states to PCS and review other
information available to them on a facility's compliance with its permit and other CWA
requirements.
In reviewing regional performance, OECA will consider the following information that is
currently based on data reported into PCS:
D number of SNCs identified (and percent of universe);
D number (and percent) addressed in a timely and appropriate manner;
D number of Watchlist facilities per region.
Pretreatment Program
The regions should review the state program for evaluating local control authority operation
during the 2005-2007 period of this Guidance. If problems are discovered the regions should take
appropriate action.
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Wetlands
Since only two states have been delegated parts of the Section 404 program, this is primarily a
federal effort. The regions must coordinate, as appropriate, with other federal agencies which have
significant roles in wetlands protection through the use of memoranda of understanding and
memoranda of agreement (e.g., Corps of Engineers, NRCS, Fish and Wildlife Service).
CWA Section 31 l(SPCC)
Regions should routinely review the program to determine if spills are adequately being
addressed by reviewing the Emergency Response Notification System database and reviewing
SPCC inspection reports and results of Expedited Settlement Agreements to determine if routine
non-compliance is being addressed.
3. SAFE DRINKING WATER ACT (SDWA) PROGRAM
This section provides guidance for regions as they develop core drinking water compliance
assistance and enforcement commitments for their annual workplan. Regions are to follow this
guidance both with respect to their oversight of primacy states and tribes and with respect to their
own actions in areas or particular rules where EPA directly implements the drinking water
program. Where there are differences between this guidance and annual workplan guidance for
the Tribal priority, regions should follow the Tribal priority guidance when addressing tribal water
systems.
The following clarifications are provided to ensure that Headquarters and the regions have a
common understanding of the program implementation requirements when negotiating the
commitments:
D The Safe Drinking Water Information System Federal Version (SDWIS/FED) is the main
database system used by EPA and the states to track public drinking water systems.
SDWIS/FED is currently undergoing modernization with an expected completion date of
October 1, 2005. The existing SDWIS/FED system will be used until the official switch to the
modernized SDWIS/FED. If that doesn't occur on October 1, 2005, we will still use the
existing capabilities to generate and track SNCs and exceptions.
D The Consumer Confidence Report Rule (CCR) will be added to the list of rules the regions are
committed to address (it will be grouped with chronic contaminants for purposes of the
commitment system).
D The regions are not asked to commit to addressing SNCs where SNC is not defined or where
the SNC Exceptions Tracking System (SETS) does not have the capability to calculate
exceptions or allow the SNCs to be addressed. It is anticipated that the modernized
SDWIS/FED will have the capability to handle the new SNC definitions for the Filter
Backwash, Interim Enhanced SWTR and Stage 1 Disinfection Byproduct Rules. If
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modernized SDWIS/FED is fully operation on October 1, 2005, the regions will be expected to
address the additional SNCs for Filter Backwash, Interim Enhanced SWTR and Stage 1
Disinfection Byproduct Rule for the full year. If modernized SDWIS/FED is not fully
operational then the regions will be expected to start addressing these SNCs the quarter after
full implementation of modernized SDWIS/FED.
D It is expected that the modernized SDWIS/FED will address the issue of "automatic"
exceptions, which are those exceptions that the existing SETS automatically, but incorrectly,
generates when a SNC is calculated. If we are still using the existing SDWIS/SETS system,
automatic exceptions will still exist however, these "automatic" exception will not count
against a regions' commitment to address the SNC before it becomes an exception.
D SNCs should be addressed before they become exceptions. Headquarters views this as a
manageable workload based on SNC data in recent years. Moreover, the expectation is that the
regions will work primarily with the states to ensure that they are addressing SNCs. The
regions should not have to address all the SNC themselves.
D Headquarters will provide quarterly data for SNCs, about to become exceptions, new
exceptions, and old exceptions.
D Regions will report to headquarters on a quarterly basis within 60 days of receiving data from
headquarters.
D In all cases, non-transient and transient non-community systems serving 500 users or less are
excluded from the Regions' commitments. Other exceptions may apply for each category of
rules.
D On a quarterly basis, regions are to provide an explanation for each SNC at a large or medium
system (serving more than 10,000 users and serving between 3,301 and 10,000 users,
respectively) that became an exception in the preceding quarter.
The effort to address new SNCs before they become exceptions does not diminish the
importance of addressing the backlog of systems in exception (all system sizes). As resources
allow, the regions and states are encouraged to address backlog of systems in exception.
COMPLIANCE ASSISTANCE (Sub-Objective 5.1.1)
Public Water System Supervision (PWSS) Program
Regions should target compliance assistance toward small drinking water systems (serving
3,300 or fewer users). Using the data contained in SDWIS/FED to identify patterns of
noncompliance, regions can both target the small systems most likely to benefit from compliance
assistance and assemble compliance assistance materials suited to their particular needs. Regions
should coordinate with the drinking water program office and work with the states and tribes to
Final D 29 June 2005
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increase small system operators' awareness of their monitoring and reporting requirements, and to
build small systems' technical and financial capacity to perform required activities. Regions
should focus compliance assistance resources on helping small systems and tribal systems comply
with microbial rules. The Long Term 1 Enhanced SWTR (LT1) should be of particular focus for
compliance assistance, if not previously provided, as the compliance date for requirements began
in January 2005 for small systems impacted by this rule. For the Stage 1 Disinfectants and
Disinfection Byproducts Rule and the Interim Enhanced SWTR, (promulgated in 1998) the need
for compliance assistance may be less at this time because of the initial efforts to provide
compliance assistance and the requirements for small system began in 2004 or earlier.
Compliance assistance efforts will include outreach and education programs to ensure that sources
understand both the requirements and the assistance available to help them comply. While the
optimal time for compliance assistance is before a system violates a standard, compliance
assistance is useful when a system fails to comply also. Where compliance assistance is likely to
return a small system to compliance, the regions should incorporate compliance assistance in their
tools for addressing SNCs at small systems, and encourage their states to do likewise.
We encourage the regions to use the Local Government Environmental Assistance Network
(LGEAN) (www.lgean.org), the National Drinking Water Clearinghouse
(www.nesc.wvu.edu/ndwc) and the National Environmental Compliance Assistance Clearinghouse
(www.epa.gov/clearinghouse) as sources of compliance assistance information and recommend
marketing these resources to drinking water system operators as compliance assistance tools. We
also encourage the regions to make available compliance information packages that can be
distributed by sanitary survey inspectors.
Regions should enter the number and type of planned compliance assistance activities and
outcome measurement projects into the compliance assistance module in the ICIS and report all
on-site assistance visits and outcomes using the CACDS. Please note that the core compliance
assistance program sets out other general guidance and expectations the regions should follow
when providing compliance assistance to public water systems.
The "measures" area of the National Environmental Compliance Assistance Clearinghouse
(http://cfpub.epa.gov/clearinghouse/) provides guidance documents, tools, and success stories
regions can use to assess the effectiveness of their compliance assistance efforts. Regions should
also encourage states to measure state compliance assistance performance and should facilitate
states' efforts to report outcomes and outputs.
Regions should report the percentage of small systems that have received compliance
assistance. Regions should have a goal of reporting 100% of the four specific compliance
assistance performance measures identified in the Data Quality and Reporting section below.
COMPLIANCE INCENTIVES (Sub-Objective 5.1.2)
Regions should refer to the Compliance Incentives activities description in Section III. B -
Core Program Activities.
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MONITORING AND ENFORCEMENT (Sub-Objective 5.1.3)
Monitoring
Public Water System Supervision (PWSS) Program
The primary enforcement authority (i.e., a state with primacy, a tribe approved for
treatment as a state, or EPA implementing the drinking water program) is required to ensure an
effective sanitary survey program. When appropriate, regions should also incorporate a SDWA
component in all multimedia inspections of federal facilities as outlined in the federal facilities
core program section of this guidance (Section 10). Significant deficiencies are to be corrected
and regions are to ensure discovered regulatory violations are addressed in a manner consistent
with timely and appropriate guidelines with annual workplan commitments.
Performance Expectations for Sanitary Surveys
In each fiscal year, regions should ensure sanitary surveys are performed at one third of the
public water systems that are on a three-year sanitary survey cycle and at one fifth of the
public water systems that are on a five-year sanitary survey cycle. This should be done by
ensuring that the annual workplans contain commitments to perform sanitary surveys at an
appropriate number of systems.
Commitment SDWA01: Number of surveys to be conducted, with a breakout for number
on tribal lands.
Actions Taken in Response to Lead Action Level Exceedances
Each quarter Headquarters will provide a list of systems whose tap monitoring has
exceeded the 90% percentile for 3 consecutive monitoring periods (we will provide the
lead data at the same time we provide the SNC and Exceptions data). In turn, the regions
are encouraged to follow up with the primacy agencies to monitor the progress community
water systems and non-transient non-community water systems have made toward reducing
lead in drinking water that exceeds the action level for lead. For direct implementation
programs the regions should ensure that appropriate lead response actions are taken by the
systems. The regions should report the results of any necessary follow-up at the same time
they report on addressing their SNCs.
Underground Injection Control (UIC) Program
Regions should ensure an effective field presence through routine inspections of all classes
of wells. The actual number of inspections and the distribution by well class will depend on the
region and whether or not all or part of the program has been delegated to the states.
Enforcement
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Public Water System Supervision (PWSS) Program
Regions are to take timely and appropriate action to address all circumstances that present
or have the potential to present, imminent and substantial endangerment to public health,
regardless of whether the contaminant is an acute or chronic contaminant. To ensure national
consistency and promote establishment of strong precedent, the region is strongly encouraged to
consult with the Water Enforcement Division prior to issuance of an order to address any
imminent and substantial endangerment to public health that may exist.
Regions, states, and tribes with primacy should have a goal of addressing 100% of all
drinking water SNCs before they become exceptions. To help prioritize efforts toward reaching
this goal, OECA provides the following performance benchmarks. The region is to provide an
explanation in its annual workplan commitments if it does not anticipate meeting a benchmark.
On a quarterly basis, regions are to provide an explanation for each SNC at a large or medium
system (serving more than 10,000 users and serving between 3,301 and 10,000 users, respectively)
that became an exception in the preceding quarter. The regions are not asked to commit to
addressing SNCs where SNC is not defined or where the SETS does not have the capability to
calculate exceptions or allow the SNCs to be addressed.
D Commitment SDWAOS.a and SDWAOS.b Microbial SNCs: Ensuring compliance with
the microbial rules (SWTR, TCR, IESWTR, FBR, LT1 and Stage 1 DBPR) is the first
priority for regions, states, and tribes with primacy. Regions, states, and tribes with
primacy are to address 100% of microbial SNCs at large and medium public water systems
(CWS, NTNCWS, and TCNCWS), and at least 90% of microbial SNCs at small (serving
up to 3,300 users) public water systems, before they become exceptions.
D Commitment SDWA04.a and SDWA04.b Nitrates SNCs: Regions, states, and tribes
with primacy are to address 100% of nitrates SNCs at large and medium public water
systems (CWS, NTNCWS, and TCNCWS), and at least 85% of nitrates SNCs at small
public water systems, before they become exceptions.
D Commitment SDWAOS.a and SDWAOS.b Lead SNCs: Regions, states, and tribes with
primacy are to address 100% of lead SNCs (initial tap monitoring, optimization of
corrosion control, and public education) at large and medium community and non-transient
non-community water systems, and 85% of lead SNCs at small community and non-
transient non-community water systems, before they become exceptions.
D Commitment SDWA06.a and SDWA06.b Chronic Contaminant and CCR SNCs:
Region, states, and tribes with primacy are to address 100% of all other chronic
contaminant SNCs at large and medium community and non-transient non-community
systems, and at least 85% of all other chronic contaminant SNCs at small community and
non-transient non-community systems, before they become exceptions. Regions, states,
and tribes with primacy are to address 100% of all CCR SNCs at large and medium
community systems, and at least 85% of all CCR SNCs at small community systems,
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before they become exceptions.
DATA QUALITY AND REPORTING
Efforts to assess the quality of the data in the SDWIS/FED have shown that the data in the
system are highly accurate, but many violations are not in the system. As a recent Inspector
General Report2 notes, data verifications conducted on violations information for the period
between 1999 and 2001 found that SDWIS/FED contained only 65% of all health-based violations
and 23% of all monitoring and reporting violations that should have been reported. While the
largest burden for improving the quality of data in SDWIS/FED falls on the states, it is important
that EPA also do its best to ensure data are reported accurately and completely.
Compliance Assistance
Regions should enter the number and type of planned compliance assistance activities and
outcome measurement projects into the compliance assistance module in ICIS and report all on-
site assistance visits using the CACDS. The regions should have a goal of reporting 100% of the
following information into either SDWIS, ICIS or on a CACDS, in accordance with this guidance.
D Number of public water system SNCs that returned to compliance as a result of an on-site
compliance assistance visit and which were not the subject of a reported enforcement
followup activity.
D Number of small and tribal public water systems in violation that received direct
compliance assistance, subsequently returned to compliance, and were not the subject of a
reported enforcement followup activity.
D Number of public water systems that received compliance assistance.
D Number of public water systems that received compliance assistance during a sanitary
survey.
Public Water System Supervision (PWSS) Program
Regions, states and tribes with primacy are expected to ensure that all required data is input
into SDWIS, including federal facilities as applicable. Regions with direct implementation
programs, including those with authority for implementing the drinking water program on tribal
lands, are expected to input the data themselves. If regions are directly implementing any of the
new drinking water regulations, they must ensure that the required data is in SDWIS. Regions are
expected to continue to support the legacy system SDWIS/FED until the modernized system is in
production. Regions should review reports as appropriate to ensure changes to data are
2 EPA Claims to Meet Drinking Water Goals Despite Persistent Data Quality
Shortcomings; Report No. 2004-P-0008; March 5, 2004.
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successfully accepted in SDWIS/FED. All PWSS federal enforcement cases should be entered
into both ICIS and SDWIS.
OECA is striving to have all federal inspections that are currently reported manually (e.g.,
sanitary surveys), entered into ICIS during this planning cycle and will provide separate guidance
on sanitary survey reporting through the annual Enforcement and Compliance Reporting Plan
Memorandum (see Section III. E).
Beginning in FY2006, all relevant ICDS information should be completed and reported for
on-site PWSS inspections/evaluations and entered into ICIS. As detailed in the September 10,
2004 ICDS Expansion, Implementation and Reporting memo
(http://intranet.epa.gov/oeca/oc/campd/inspector/referenc/icds2005memo.pdf). regions must report
all ICDS data collected from on-site PWSS inspections/evaluations by either of the following
methods:
D Manual reporting: Submit summary ICDS information at mid-year and end-of-year using
the form in Attachment A of the memo. First-line supervisors need to review the ICDS
forms prior to compiling the ICDS data for mid-year and end-of-year reporting to verify its
completeness and accuracy.
D Integrated Compliance Information System (ICIS): Use ICIS to enter the ICDS data.
See Attachment B of the memo. HQ will then pull the ICDS information from ICIS for
mid-year and end-of-year reporting.
D ICDS data, both manually reported and directly entered into ICIS, are compiled in regional
workbooks which are sent to the regions for certification. Regions should have in place a
quality assurance process to verify that the ICDS data is correct and accurate.
Underground Injection Control (UIC) Program
D OECA is striving to have all federal inspections that are currently reported manually
entered into ICIS during this planning cycle however, OECA will provide separate
guidance on UIC inspection and evaluation reporting through the annual Enforcement and
Compliance Reporting Plan Memorandum. (Refer to Section III. E).
D Beginning in FY2006, all relevant ICDS information should be completed and reported for
on-site UIC inspections/evaluations and entered into ICIS. As detailed in the September
10, 2004 ICDS Expansion, Implementation and Reporting memo
(http://intranet.epa.gov/oeca/oc/campd/inspector/referenc/icds2005memo.pdf). regions
must report all ICDS data collected from on-site UIC inspections/evaluations by either of
the following methods:
D Manual reporting: Submit summary ICDS information at mid-year and end-of-year using
the form in Attachment A of the memo. First-line supervisors need to review the ICDS
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forms prior to compiling the ICDS data for mid-year and end-of-year reporting to verify its
completeness and accuracy.
D Integrated Compliance Information System (ICIS): Use ICIS to enter the ICDS data
See Attachment B of the memo. HQ will then pull the ICDS information from ICIS for
mid-year and end-of-year reporting.
D ICDS data, both manually reported and directly entered into ICIS, are compiled in regional
workbooks which are sent to the regions for certification. Regions should have in place a
quality assurance process to verify that the ICDS data is correct and accurate.
PROGRAM OVERSIGHT
Public Water System Supervision (PWSS) Program
To ensure adequate program oversight, regions should review data in the SDWIS and
review other information on compliance available to the region.
In evaluating regional performance, OECA will look at:
D the number of SNCs identified (and percent of universe);
D number (and percent) addressed in a timely and appropriate manner;
D number (and percent) exceptions;
D number (and percent) exceptions addressed; and number remaining.
If a drinking water Watch List is developed, the Watch List will replace the evaluation of
exceptions.
Underground Injection Control (UIC) Program
Regions should routinely review inspection reports, mechanical integrity test results and
other information available on the compliance status of injection wells. Regions should also
review other information available to them which suggests the existence of Class V well or wells.
Based on review of this information, appropriate inspections or enforcement actions should be
targeted.
4. FEDERAL INSECTICIDE. FUNGICIDE AND RODENTICIDE ACT PROGRAM
EPA and states have complementary roles in pesticide enforcement. In general, EPA is
responsible for pesticide products and states are responsible for pesticide use. EPA is responsible
for investigating and enforcing pesticide registration and labeling, data quality requirements
(FIFRA Good Laboratory Practice Standards), the effectiveness of hospital disinfectant products,
pesticide producing establishment registrations and the annual submission of production data,
import and export requirements, and registrant reporting of unreasonable adverse effects
Final D 35 June 2005
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information. States conduct most field inspections, including product issues, and may take
enforcement actions or in some cases, refer the case to EPA. The statute gives primary use
enforcement responsibility to the states. However, regions are expected to follow up on all
referrals received from headquarters and states.
A major focus of FIFRA is providing assistance, training, and oversight to states and tribes
carrying out FIFRA related enforcement under cooperative enforcement agreements. This
includes issuing credentials as appropriate and providing training and grants oversight. Regions
should refer to the Federal Facilities section (Section 10) for guidance on including federal
facilities in core program activities where applicable.
EPA and the public rely on pesticide manufacturers and formulators to provide accurate
information about pesticides and their associated risks. Unregistered and ineffective
antimicrobials, as well as products making false or misleading public health protection claims,
pose a potential public health threat when the public makes inappropriate choices based on
inaccurate or misleading information. Products used in agricultural or structural pest control
settings may pose health risks to those working with or exposed to the chemicals. In particular,
users must be informed about exposure to pesticides that are mixed, used, and stored or disposed
of and must be informed how to properly handle and apply pesticides.
In FY2003 and 2004, regions and headquarters agreed through a consensus process that the
following five FIFRA program areas within the core should receive special focus: worker safety,
e-commerce, antimicrobial testing, label enforceability, and unregistered sources and product
integrity. For each area, regions and headquarters jointly developed work plans of activities to be
undertaken and expected outcomes. Similarly, regions and headquarters agreed through a
consensus process to the following three focus areas for 2005: measures, imports (including
product integrity), and enforcement infrastructure, with completion of remaining 2005 focus area
work plan activities. Thereafter, the regions and headquarter will evaluate the progress in terms of
planning for 2006-2007.
COMPLIANCE ASSISTANCE (Sub-Objective 5.1.1)
Although there is no target for assistance activities, assistance is an appropriate tool, in
particular, to inform farm owners and workers about exposure to pesticides and how to properly
handle and apply pesticides when there are new rules, sector specific compliance problems, or
sectors with a preponderance of small businesses. Regions should refer to the Compliance
Assistance activities description in Section III. A - Core Program Activities.
COMPLIANCE INCENTIVES (Sub-Objective 5.1.2)
Regions should refer to the Compliance Incentives activities description in Section III. B -
Core Program Activities.
MONITORING AND ENFORCEMENT (Sub-Objective 5.1.3)
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Regions should work with pesticide state lead agencies and tribal pesticide agencies to
target and conduct inspections and investigations to support the pesticide focus areas identified
above. Regions should ensure inspection coverage in states without EPA enforcement cooperative
agreements.
Regions are expected to track and prioritize tips and complaints, and follow-up, as needed.
Follow-up means that the region needs to evaluate the tip or complaint to determine the
appropriate next step, and either: 1) refer the tip or complaint to a state as appropriate, and track it
through resolution consistent with national guidance; or 2) obtain additional information through
federal investigation or a show cause letter if necessary, and take federal action as appropriate; or
3) determine that follow-up is not necessary.
Performance Expectations
D Commitment FIFRA12: Project regional federal FIFRA inspections.
DATA QUALITY AND REPORTING
It is critical that regions enter all federal, state, and tribal data into the FIFRA/TSCA
Tracking System (FTTS), which is merged into the National Compliance Data Base (NCDB). All
federal enforcement cases should be entered into both ICIS and FTTS. Annual reporting guidance
will be provided in the Enforcement and Compliance Reporting Plan Memorandum. (Refer to
Section III. E).
Beginning in FY2005, all relevant ICDS information should be completed and reported for
on-site FIFRA inspections/evaluations and entered into ICIS. As detailed in the September 10,
2004 ICDS Expansion, Implementation and Reporting memo
(http://intranet.epa.gov/oeca/oc/campd/inspector/index.html), regions must report all ICDS data
collected from on-site FIFRA inspections/evaluations by either of the following methods:
D Manual reporting: Submit summary ICDS information at mid-year and end-of-year using
the form in Attachment A of the memo. First-line supervisors need to review the ICDS
forms prior to compiling the ICDS data for mid-year and end-of-year reporting to verify its
completeness and accuracy.
D Integrated Compliance Information System (ICIS): Use ICIS to enter the ICDS data
See Attachment B of the memo. HQ will then pull the ICDS information from ICIS for
mid-year and end-of-year reporting.
ICDS data, both manually reported and directly entered into ICIS, are compiled in regional
workbooks which are sent to the regions for certification. Regions should have in place a quality
assurance process to verify that the ICDS data is correct and accurate.
Regions should enter the number and type of planned compliance assistance activities and
Final D 37 June 2005
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outcome measurement projects into the compliance assistance module in ICIS and report all on-
site visits using the CACDS.
PROGRAM OVERSIGHT
Each region should conduct state enforcement program oversight. This can include joint
end-of-year reviews with the pesticides program, joint inspections to monitor quality of field work
and training opportunities to standardize the knowledge-base of state inspectors.
5. EPCRA PROGRAMS
EPCRA includes two distinct programs, Community Right-to-Know under EPCRA 313
and release notification and emergency preparedness under CERCLA 103 and EPCRA 304, 311
and 312. EPA and the public rely on EPCRA for information on chemicals entering the
environment, and on the storage of chemicals at facilities. EPA, state, tribes, local entities, and
communities rely on the combined EPCRA/CERCLA authorities to prepare local chemical
emergency response plans, and to more safely and adequately respond to chemical emergencies.
EPA must ensure that companies report accurately and within required time frames.
COMPLIANCE ASSISTANCE (Sub-Objective 5.1.1)
Although there is no target for assistance activities, assistance is an appropriate tool, in
particular, for smaller entities who meet the reporting criteria. Regions should refer to the
Compliance Assistance activities description in Section III. A - Core Program Activities.
COMPLIANCE INCENTIVES (Sub-objective 5.1.2)
Regions should refer to the Compliance Incentives activities description in Section III. B -
Core Program Activities.
MONITORING AND ENFORCEMENT (Sub-Objective 5.1.3)
Monitoring
EPCRA 313
Regions are encouraged to use screening and targeting tools to focus limited federal
resources on national and regional priority areas. A general area of emphasis is to target facilities
that meet reporting criteria but have not reported. In the EPCRA 313 program, regions are
expected to conduct at least 4 on-site Data Quality inspections each fiscal year as part of their
overall inspection commitment. In the EPCRA 313 program, regions are expected to conduct at
least 20 inspections each fiscal year as part of their overall inspection commitment.
Performance Expectations
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Commitment EPCRA01: Number of federal EPCRA data quality inspections.
Commitment EPCRA02: Number of federal EPCRA 313 inspections.
EPCRA 304/311/312 CERCLA 103
Regions are encouraged to use screening and targeting tools to focus limited federal
resources on national and regional priority areas. A general area of emphasis is to target facilities
that meet reporting criteria but have not reported. In light of continuing concerns regarding
chemical safety, regions should also consider the presence of significant quantities of chemicals of
concern and proximity to population centers in focusing their targeting and inspections efforts.
Enforcement
EPCRA 313: EPCRA 304/311/312 CERCLA 103
Regions may be asked to participate in enforcement case initiatives or cluster filings.
These tools are used to further focus effort and resources. In all circumstances, cases filed as part
of an initiative or cluster filing count as part of the annual workplan commitment, not as an add-
on. OECA will remain sensitive to regional priorities when identifying initiatives or cluster
filings. Regions will work with OECA to identify candidate issues, industries or sectors for
enforcement case initiatives. OECA will use national meetings and conference calls as the means
for selecting issues, industries or sectors for federal enforcement initiatives.
DATA QUALITY AND REPORTING
EPCRA 313: EPCRA 304/311/312 CERCLA 103
Each region is responsible for timely entry of inspection and case information into
FIFRA/TSCA Tracking System (FTTS). All EPCRA 313; EPRCRA 304/311/312; and CERCLA
103 federal enforcement cases should be entered into both ICIS and FTTS. Annual reporting
guidance will be provided in the Enforcement and Compliance Reporting Plan Memorandum.
(Refer to Section III. E).
For FY2005-2007, OECA is considering making ICIS the official database or record for
the manually- reported EPCRA non-313 inspections/evaluations. If OECA decides this is an
appropriate reporting scheme, a separate memo will be transmitted to the regions informing them
to enter the EPCRA non-313 inspections/evaluations into ICIS.
For 2005-2007, all relevant ICDS information should be completed and reported for all
EPCRA 313 and non-313 on-site inspections/evaluations and entered into ICIS. As detailed in the
September 10, 2004 ICDS Expansion, Implementation and Reporting memo
(http://intranet.epa.gov/oeca/oc/campd/inspector/index.htmL) regions must report all ICDS data
Final 39 June 2005
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collected from on-site EPCRA 313 and non-313 inspections/evaluations by either of the following
methods:
D Manual reporting: Submit summary ICDS information at mid-year and end-of-year using
the form in Attachment A of the memo. First-line supervisors need to review the ICDS
forms prior to compiling the ICDS data for mid-year and end-of-year reporting to verify its
completeness and accuracy.
D Integrated Compliance Information System (ICIS): Use ICIS to enter the ICDS data
See Attachment B of the memo. HQ will then pull the ICDS information from ICIS for
mid-year and end-of-year reporting.
ICDS data, both manually reported and directly entered into ICIS, are compiled in regional
workbooks which are sent to the regions for certification. Regions should have in place a quality
assurance process to verify that the ICDS data is correct and accurate.
Regions should enter the number and type of planned compliance assistance activities and
outcome measurement projects into the compliance assistance module in ICIS and report all on-
site visits using the CACDS.
6. TSCA
The Agency's TSCA program consists of four major elements: "core TSCA"; PCBs;
AHERA, which covers asbestos in schools; and lead-based paint. Title III Radon activities will
not be covered in this section
COMPLIANCE ASSISTANCE (Sub-Objective 5.1.1)
Compliance assistance will be an important focus of OECA activity for the TSCA AHERA
program in FY2005-2007. The EPA-supported Schools Compliance Assistance Center will be the
primary vehicle for providing compliance assistance, with regions participating where resources
permit. For lead-based paint, as part of the integrated strategy efforts, regions will continue to
work with the regulated community to provide compliance assistance at appropriate opportunities
such as home shows, meetings, and discussions with landlord associations. Inspectors will provide
compliance assistance materials at inspections which will cover all aspects of the lead paint
program.
COMPLIANCE INCENTIVES (Sub-Objective 5.1.2)
Lead-based Paint: As part of the integrated strategy, the lead paint program will continue
to focus its work with the regulated community to look for ways to achieve a lead-safe
environment. Efforts for achieving a lead-safe environmental include voluntary actions on the part
of the regulated community, compliance assistance to the regulated community, or when necessary
negotiated settlements and enforcement actions.
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PCBs: As part of the Agency's Persistent Bio-accumulative Toxics (PBTs) program,
OECA will continue to work with regions to further decommission PCB-laden equipment. Federal
compliance incentives programs will be initiated, as appropriate. Regions are encouraged to work
with OECA when developing their own compliance incentive programs based on regional needs
and priorities.
Core TSCA: Regions should review and follow-up on, as appropriate, disclosures
submitted under the OECA Audit Policy and Small Business Policy. Under Core TSCA, self
disclosures received by minimally-invested regions may be forwarded to OECA for appropriate
action.
MONITORING AND ENFORCEMENT (Sub-Objective 5.1.3)
Core TSCA
Regions must stay current and informed of the Office of Prevention, Pesticides and Toxic
Substances (OPPTS) and OECA's TSCA program priorities. Regions must track and prioritize
tips and complaints, and follow-up, as needed. Regions 2, 4 and 5 are also expected to follow-up
on all referrals received from headquarters, states, tribes and the public. Follow-up includes
evaluating the tip or complaint to determine the appropriate next step. Minimally-invested regions
(all regions other than 2, 4, and 5) are to refer tips and complaints to the Core TSCA Enforcement
Center for follow-up, and to respond to questions from the regulated community. Under special
circumstances all regions may need to conduct limited inspections as resources allow, and to work
with the Bureau of Customs and Border Protection on the import/export program.
For those regions (other than 2 and 5) who chose to continue to invest additional resources
in Core TSCA compliance and enforcement, the Core TSCA Enforcement Center will assist in
targeting inspections, but the region is expected to provide legal and technical enforcement case
support, and either obtain additional information through federal investigation, show cause letter,
subpoena if necessary and issue appropriate federal action as appropriate; or determine that follow-
up is not necessary.
Performance Expectations
Commitment TSC01: Project the number of federal Core TSCA inspections.
PCBs
In FY2005-2007, the regions should use their enforcement resources to focus on the
continued phase out of PCBs as well as monitoring PCB storage and disposal facilities. As
appropriate, regional PCB personnel should coordinate with waste program personnel to ensure
that the transfer of Brownfield properties are in compliance with PCB rules, guidance and policies.
Using the Transformer Registration information, regions should target inspections toward users of
high concentration PCBs and non-reporters. Enforcement follow-up to violations detected as a part
Final 41 June 2005
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of these inspections should promote, where possible, the retirement of PCB transformers through
Supplemental Environmental Projects (SEPs). Tips and complaints should be followed-up as
appropriate.
Starting in FY2006, OECA will coordinate with the regions, Office of Pollution Prevention
and Toxics (OPPT), and states to identify issues which would benefit from a coordinated
compliance and enforcement effort and to identify criteria for targeting inspections based on an
evaluation of the regulated community, potential risks, and enforcement data. During FY2006,
pending new criteria for targeting inspections based on discussions between OECA, OPPT,
regions, and states, regions would be expected to continue: targeting disposal facilities every three
years (i.e., inspect one third of the facilities in their region); respond to tips/complaints and
environmental incidents involving PCBs; follow-up on food/feed contamination referrals; and
address regional PCB priorities. Regions should work with states operating under TSCA
compliance monitoring grants to address these priorities as well as state priorities. Regions that
award TSCA compliance monitoring grants to states need to submit mid-year and end-of-year
reports to OC. In order to improve the efficiency of PCB inspections, OECA will continue to
pilot the field use of the tablet computer to conduct inspections and write inspection reports.
Performance Expectations
During FY2005-2007, regions should inspect each PCB commercial storage and disposal
facility in their region at least once so that a baseline of enforcement activity at these sites
can be established. Regions may count state inspections at PCB commercial storage and
disposal facilities conducted under the TSCA cooperative enforcement agreements towards
meeting the regional commitments
Commitment TSC03: Inspect 33% of the PCB commercial storage and disposal facility
universe.
AHERA (asbestos)
Compliance assistance will be the an important focus of OECA activity for the TSCA
AHERA federal program in FY2005-2007 with a secondary focus on traditional enforcement as
appropriate. Regions are expected to track and prioritize tips and complaints. If the regions
receive a complaint containing allegations which provide a reasonable basis to believe that a
violation has occurred, the region shall investigate and respond (including taking enforcement
action where appropriate) to the complaint within a reasonable period of time. Regions are also
expected to follow-up on all referrals received from headquarters, states, and tribes. Follow-up
includes evaluating the tip or complaint to determine the appropriate next step, and either: 1) refer
the tip or complaint to a state as appropriate and track it through resolution consistent with national
guidance; or 2) obtain additional information through phone calls, inspections, federal
investigation, show cause letter, subpoena if necessary and issue appropriate federal action as
appropriate; or 3) determine that follow-up is not necessary. Special attention should be given to
tips alleging asbestos contamination at schools. Where EPA is the lead for inspections and
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enforcement, resources should be targeted based on regional experience at:
D Charter schools
D Large Local Education Authorities (LEA) School districts, and
D LEAs that had settlement agreements or were asked to certify "compliance"
D School districts targeted for EJ or children's health concerns
D Other LEAs as resources allow for this category. No targets or commitments are specified.
In non-waiver states with grants, the regions will follow-up on violations referred by the
states, and develop appropriate enforcement responses. Where applicable, the regions should
encourage states to apply for the "waiver" program.
Performance Expectations
During the FY2005-2007 national program guidance period, HQ is asking the regions and
applicable states to focus their compliance monitoring efforts on Charter Schools, the largest 100
LEAs and to review past settlement agreements.
Based on data and information collected from these inspections, and an evaluation of the
compliance status in each inspection category, EPA will be able to improve its targeting of limited
compliance assistance and compliance monitoring resources. OECA will make information
available to the asbestos workgroup developing a draft National Strategy for Asbestos and to the
workgroup that develops the Asbestos Action Plan information on the inspection data and the
results of compliance status evaluations. Note: Inspections targeted for environmental justice or
children's health concerns as part of a regional initiative may be substituted for charter school
inspections.
D Charter Schools - There is anecdotal evidence that Charter Schools are not in compliance
with the AHERA program. HQ is requesting compliance monitoring be conducted on this
specific sector to provide a more accurate assessment of the overall compliance status of
the Charter School sector.
D Largest 100 LEAs - A compliance review of the largest 100 largest public school districts
will allow HQ to determine if these LEAs are maintaining their compliance responsibilities
under AHERA. By inspecting the largest LEAs, EPA can insure that the largest school
districts with the largest children populations are being protected.
D Past settlement agreements - This review will allow HQ to determine the effectiveness of
the past settlement agreements where the LEA certified to remain compliant. If the
settlement agreements had a positive impact, the program can focus its compliance
monitoring resources on other types of LEAs, i.e., religious and private, not-for-profit
schools, etc.
Regions may count state inspections by non-waiver and waiver states toward the following
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three commitments.
Commitment TSC04: Conduct inspections at 5% of the charter school universe or 20
inspections, whichever is less and identify the number of Charter schools in each region.
To determine the number of charter schools in a state, review the Department of
Education's Charter School website at:
http://www.uscharterschools.org/pub/uscs_docs/index.htm.
Commitment TSC06: Conduct inspections at 5 large LEAs (randomly select 5 individual
schools from each LEA for evaluation) each year and identify large LEAs located in the
region using a national list of the 100 largest LEAs. The following web sites can assist the
regions in identifying the 100 largest LEAs (school year 2000-2001) by the number of
students and faculty, and the number of buildings assigned for instruction to primary,
middle and high school students. http://nces.ed.gov/pubs2002/100_largest/table_01_l.asp
(student/faculty population) http://nces.ed.gov/pubs2002/100 largest/table 06 1.asp
(number of buildings).
Commitment TSC07: Review past settlement agreements from 1991-1998, and conduct
follow-up inspections at 5 LEAs each year.
If the regions cannot meet the above commitments they must provide an explanation based
on facts and provide a rationale for:
D How the compliance monitoring TSCA resources will be redirected (e.g., regional or state
priority facilities);
D Why it is not necessary to evaluate specific facilities or source categories subject to the
minimum frequencies.
This explanation will be discussed during mid-year and end-of-year discussions between
OECA and the regional toxics managers at national meetings, scheduled conference calls, and one-
on-one conversations with individual regions.
Lead-Based Paint Program
The lead-based paint program will focus on meeting the 2010 goals established in the
President's Task Force report by fully developing and implementing an integrated strategy which
will include the 1018 Disclosure Rule program in partnership with HUD, and working with the
regions, states, and tribes to implement the 402 and 406 rules. The integrated strategy will employ
a broad range of compliance and enforcement approaches to reduce lead-poisoning in children.
The strategy will also explore ways to incorporate other lead related programs and partnerships
and leverage resources to bring about reductions in elevated blood levels. The current
enforcement scheme (and resources) should focus primarily on Disclosure Rule (1018) violations,
and secondarily on Section 402 and/or 406 violations in non-authorized states. Enforcement of
Sections 402 and 406 should be coordinated with appropriate oversight of authorized state 402 and
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406 programs. Likewise, the lead program will work to broaden the State Tribal Assistance Grant
(STAG) program to fund a full range of compliance and enforcement activities.
Regions should screen tips and complaints for potential violations of the Lead Disclosure
Rule, as well as the Section 402 Abatement, Training and Certification Rule and Section 406
Renovator and Remodeler Rule in states and Indian country without authorized programs. Each
tip or complaint should be reviewed carefully to determine whether follow-up is necessary and, if
so, the level of follow-up. In many cases, a follow-up letter to the violator will be the appropriate
response to a tip or complaint. After screening the response for indicators of actual or potential
non-compliance, the region should determine whether an on-site investigation or more resource-
intensive level of compliance monitoring is appropriate.
Regions should continue to explore innovative ways to implement an integrated lead paint
strategy. This will include methods to better target compliance activities, partner with state, tribal
and local health care providers, as well as methods to identify "hot spots." In addition, identifying
and establishing a baseline for the universe of lead poisonings, and other similar activities to
reduce the number of lead poisoned children, will be carried out.
Performance Expectation
In states without authorized Section 402 programs, regions should conduct targeted Section
402 inspections of training providers and inspect work sites; this activity should be briefly
described in the work plan submission as rationale for any trade-offs with Disclosure Rule or
Section 406 inspection commitments.
D Commitment TSC10: Number of 1018/402/406 federal inspections; provide an
explanation if no activity projected in this area.
DATA QUALITY AND REPORTING
It is critical that regions enter all federal and state data into the FIFRA/TSCA Tracking
System (FTTS), which is then merged into the TSCA, FIFRA, & EPCRA 313 National
Compliance Data Base (NCDB). All TSCA federal enforcement cases should be entered into both
ICIS and FTTS. Annual reporting guidance will be provided in the Enforcement and Compliance
Reporting Plan Memorandum.
For 2005-2007, all relevant ICDS information should be completed and reported for all
TSCA on-site inspections or evaluations and entered into ICIS. As detailed in the September 10,
2004 ICDS Expansion, Implementation and Reporting memo
(http://intranet.epa.gov/oeca/oc/campd/inspector/index.htmn. regions must report all ICDS data
collected from on-site TSCA inspections/evaluations, including on-site TSCA inspections ICDS
data collected by CAA inspectors, by either of the following methods:
D Manual reporting: Submit summary ICDS information at mid-year and end-of-year using
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the form in Attachment A of the memo. First-line supervisors need to review the ICDS
forms prior to compiling the ICDS data for mid-year and end-of-year reporting to verify its
completeness and accuracy.
D Integrated Compliance Information System (ICIS): Use ICIS to enter the ICDS data
See Attachment B of the memo. HQ will then pull the ICDS information from ICIS for
mid-year and end-of-year reporting.
ICDS data, both manually reported and directly entered into ICIS, are compiled in regional
workbooks which are sent to the regions for certification. Regions should have in place a quality
assurance process to verify that the ICDS data is correct and accurate.
Regions should enter the number and type of planned compliance assistance activities and
outcome measurement projects into the compliance assistance module in ICIS and report all on-
site visits using the CACDS.
PROGRAM OVERSIGHT
OECA and the regions should evaluate the overall effectiveness of the federal TSCA
compliance and enforcement program to ensure that resources are being utilized as efficiently and
effectively as possible. These analyses should address whether TSCA compliance and
enforcement activities are addressing program priorities; effective targeting strategies are being
utilized; violations are being identified and appropriate enforcement action is being taken; tips and
complaints are priority and are being tracked and responded to; appropriate penalties are being
assessed; written procedures/guidelines are consistent with Agency policy and are available to
guide activities; adequate QA/QC programs are in place; adequate inspector training is available;
and inspectors are in compliance with the EO 3500.1 training requirements; and data are
accurately reported to the appropriate data systems in a timely manner.
7. CLEAN AIR ACT PROGRAM
The regional Clean Air Act (CAA) stationary source compliance and enforcement program
focuses primarily on the following areas: New Source Performance Standards (NSPS), National
Emission Standards for Hazardous Air Pollutants (NESHAP), Maximum Achievable Control
Technology (MACT), New Source Review/Prevention of Significant Deterioration (NSR/PSD),
Title V Operating Permits, Stratospheric Ozone Protection, and Section 112(r) Risk Management
Plans (RMPs).
For the FY2005/2007 planning cycle, the MACT and NSR/PSD programs have been
identified as priorities, and the discussion of, and performance expectations for, those programs
can be found in Section II - National Priority Activities.
For the remaining programs, the regions should continue to maintain a minimum level of
activity consistent with the resources available for implementing the program and Agency policies,
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monitoring the level and quality of effort by the delegated agencies, and participating in region-
specific initiatives that may require greater EPA involvement. In designing these programs, the
regions should take into consideration all aspects of the program (e.g., compliance evaluations,
applicability determinations, assistance, incentives, enforcement), and focus on those activities that
will yield the greatest benefit and are not duplicative of efforts by delegated agencies. Regardless,
the regions, should provide sufficient oversight to ensure that delegated programs are being
implemented consistent with the delegation agreements. The SRF does not replace the
Compliance Monitoring Strategy (CMS) requirements to:
D annually evaluate whether states/locals have met the compliance monitoring
commitments, and
D annually conduct an in-depth analysis of state/local compliance monitoring
programs.
COMPLIANCE ASSISTANCE (Sub- Objective 5.1.1)
Compliance assistance is an appropriate tool, in particular, when there are new rules,
sector-specific compliance problems, and sectors with a preponderance of small businesses.
COMPLIANCE INCENTIVES (Sub-Objective 5.1.2)
Regions should refer to the Compliance Incentives activities description in Section III. B -
Core Program Activities.
COMPLIANCE MONITORING AND ENFORCEMENT (Sub-Objective 5.1.3)
NSPS/NESHAP/MACT PROGRAMS
Compliance evaluations should be conducted at Title V major sources and synthetic minor
sources that emit or have the potential to emit emissions at or above 80% of the Title V major
source threshold (80% synthetic minors) consistent with the CMS, and the biennial plans
developed by the delegated agencies. Emphasis should be placed on ensuring that delegated
agencies provide and maintain an accurate universe of sources subject to the policy; develop
facility-specific CMS plans; maintain records of compliance monitoring activities; and report all
Minimum Data Requirements (MDRs) in a timely manner consistent with Agency policies, and the
business rules and Information Collection Request (ICR) of AFS. Once an evaluation is
completed and a compliance determination is made, all evaluations should be reported into the
national database of record, AFS, as soon as practicable, and if feasible, in the next regularly
scheduled update of AFS. The results of evaluations conducted by either the regions or delegated
agencies should not be held until the end of the fiscal year and input into the data system all at
once.
Separate from investigations associated with the PSD/NSR Priority and discussed in the
section on National Priority Activities, regions should continue any on-going investigations, and
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initiate new ones as appropriate. These activities should be reported in AFS. This is a minimum
data requirement in the AFS ICR.
During the FY2006 time frame, special emphasis should be placed on implementing the
National Stack Testing Guidance. The guidance was developed in response to a report by the OIG
which criticized the Agency for not issuing national guidance on stack testing, or providing
sufficient oversight of state and local stack testing programs. The OIG concluded that this lack of
guidance and oversight had an adverse effect on the use of stack testing as a tool in determining
compliance.
In partial response to the concerns raised in the OIG report, the CMS addressed the issues
of testing frequencies and the reporting of test results. Consistent with this policy, regions and
delegated agencies should report all stack tests and the results in AFS. The Stack Testing
Guidance addresses the remaining issues raised by the OIG, and thus focuses on those issues
associated with the conduct of stack tests and the interpretation of the test results. For example, it
addresses issues such as the time frames for conducting stack tests, the issuance of waivers,
notification requirements, observation of tests, representative performance, and stoppages and
postponements of tests.
During the first year of implementation, this guidance was treated as interim guidance to
provide OC and the regions with an opportunity to evaluate its usage and monitor any potential
problems that may arise as individual states/locals or tribes applied the provisions. The guidance
will become final in Spring 2005, and reflect any necessary changes stemming from the one-year
evaluation. Regions should ensure that delegated agencies are familiar with the Stack Testing
Guidance, and implement their programs consistent with the guidance.
Performance Expectations:
Consistent with the CMS, the regions should provide projections for: (1) the number of
Full Compliance Evaluations (FCEs) at Title V majors, 80% synthetic minors, and other sources
(as appropriate) by region and state; (2) the number of Partial Compliance Evaluations (PCEs) to
be conducted by the regions (this is a minimum data requirement); and (3) the number of state
PCEs to be conducted that were negotiated between the region and the state in the biennial plan
(i.e., where states negotiated PCEs in lieu of conducting a certain number of FCEs at Title V
majors or 80% synthetic minors). The state numbers should include delegated local agencies as
appropriate. The default in CMS is 50% of the universe for majors, and 20% of the universe for
80% synthetic minors per year. This default applies only to the state projections. However, this
default may vary from state-to-state depending on what is negotiated between regions and states
under the CMS.
Commitment CAA 01: Number of Full Compliance Evaluations (FCEs) to be conducted
at Title V majors by region per year;
Commitment CAA Ol.s: Number of Full Compliance Evaluations (FCEs) to be
conducted at Title V majors by state per year;
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Commitment CAA 02: Number of Full Compliance Evaluations to be conducted at the
80% synthetic minors, and other sources (as appropriate) by region per year;
Commitment CAA O2.s: Number of Full Compliance Evaluations to be conducted at the
80% synthetic minors, and other sources (as appropriate) by state per year;
Commitment CAA 03: Number of Partial Compliance Evaluations (PCEs) to be
conducted by the regions. This is a minimum data requirement;
Commitment CAA O3.s: Number of PCEs to be conducted by the states that were the
result of the negotiation process for the year (could be the result of redirecting resources
from FCEs to PCEs).
If the states/locals cannot meet the above commitments, the regions must provide a written
explanation that should include the following:
D Information on how the compliance monitoring air resources will be redirected
(e.g., national priority facilities, state air priorities);
D How majors and/or 80% synthetic minors will otherwise be monitored; and
D Why it is not necessary to evaluate specific facilities or source categories subject to
the recommended minimum frequencies.
This explanation will be discussed with regional air compliance/enforcement managers
during national meetings, scheduled conference calls, and one-on-one conversations with
individual regions.
Commitment CAA05: Regions should project the number of investigations to be
initiated in FY2006. Investigation projections should be provided by air program (e.g.,
MACT, NSPS).
The regions should enter both initiated and completed investigations into AFS, and identify
the targeted air program(s). This is a minimum data requirement. OECA uses this information to
evaluate the overall health of the stationary source compliance monitoring program by comparing
the number of FCEs, PCEs, and investigations. The region must provide an explanation if no
activity is projected in this area. This explanation will be discussed with regional air
compliance/enforcement managers during national meetings, scheduled conference calls, and one-
on-one conversations with individual regions.
The following activities are critical components of the core program. OECA will continue
to collect and analyze information on these activities from either AFS, ICIS, or through CMS
evaluations. The regions should be prepared to discuss any concerns or questions arising from the
collection and analysis of the data.
D Regions should report 100% of the compliance results of all FCEs and PCEs as
soon as practicable, and if feasible, in the next regularly scheduled update of AFS
after an evaluation is completed and a compliance determination is made.
D Regions should ensure that 100% of the delegated agencies report the compliance
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results of all FCEs and negotiated PCEs into AFS as soon as practicable after a
compliance determination is made.
D Regions should negotiate facility-specific CMS plans with 100% of delegated
agencies, periodically evaluate progress, and work with delegated agencies to revise
the plans as necessary.
D Regions should utilize and encourage delegated agencies to use stack tests as a
means of determining compliance. Regions and delegated states/locals should
report 100% of the stack tests and the results (pass/fail) in AFS when a compliance
determination has been made.
TITLE V OPERATING PERMITS PROGRAM
Regions should continue to review Title V permits, both new ones as well as renewals, to
ensure that they have adequate monitoring provisions consistent with the statute, underlying
regulations, agency policies and judicial decisions. Although regions are no longer required to
review all Title V certifications, they are still responsible for reviewing a subset of certifications,
and ensuring that states/locals review them pursuant to the CAA CMS. In addition, they are
responsible for ensuring that all permit program MDRs are entered into AFS in a timely manner.
Performance Expectations:
Regions should review and comment as appropriate to the permitting authority on the
compliance and enforcement provisions of a subset of the initial Title V permit applications they
receive each year, as well as all renewals. Regions should ensure sources subject to a pending or
current CAA enforcement action or investigation are not shielded by the Title V permit, and that
draft Title V permits include appropriate placeholder language for the applicable requirements at
any affected units. Further, regions should ensure that draft Title V permits include compliance
schedules addressing consent decree requirements. OECA will collect information and discuss
these activities with regional air managers during national meetings, scheduled conference calls,
and one-on-one conversations with individual regions.
Regions and states should report results of 100% of certification reviews consistent with
CMS and the MDRs identified for the program.
STRATOSPHERIC OZONE PROTECTION
Consistent with CMS, all regional FCE's at major sources and 80% synthetic minors
should include an evaluation of compliance with regulations promulgated to protect the
stratospheric ozone layer if such regulations apply. When CFCs or other ozone depleting
substances (ODS) are known or suspected to be present at a facility of concern, available regional
resources also may be used to conduct PCEs at these facilities. The regions are reminded that this
program is not delegable to states/locals or tribes. Nevertheless, some states/locals or tribes may
have promulgated similar requirements, and thus should be evaluating compliance with their own
requirements.
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Performance Expectations:
Regions should include evaluations of CFCs and other ODS as part of routine FCEs to the
extent the regulations apply. This does not apply to states since this program is not delegable. The
regions must provide an explanation if no CFC or other ODS evaluations will be conducted.
OECA will collect information and discuss these activities with regional air
compliance/enforcement managers during national meetings, scheduled conference calls, and one-
on-one conversations with individual regions.
SECTION 112(r) RISK MANAGEMENT PLANS (RMPs and General Duty Clause)
Although section CAA 112(r) is a Clean Air Act authority, responsibility for compliance
and enforcement varies from region to region, and may not reside with the regional division
responsible for the air compliance and enforcement program. Past compliance and enforcement
efforts in section 112(r) have focused on ensuring that regulated sources have submitted the
required Risk Management Plans. Regions are currently shifting efforts toward ensuring that
submitted plans are adequate and meet the regulatory requirements. Headquarters will continue to
provide support in this area. In light of continuing concerns regarding public safety, regions
should consider the following factors in focusing their compliance monitoring efforts:
- D significant quantities of chemicals of concern in a process;
-D proximity to population centers of facilities that have significant quantities of
chemicals of concern.
Performance Expectation:
Regions should include CAA 112 (r) RMP inspections and Section 68.220 audits as part of
an overall program to determine compliance. This program does not apply to the states since this
program is not delegable. If the program is delegated to a state or local agency, the regions should
work closely with the delegated agency to avoid duplication of effort. The regions must provide
an explanation if no CAA 112(r) audits or inspections will be conducted. OECA will collect
information and discuss these activities with regional managers during national meetings,
scheduled conference calls, and one-on-one conversations with individual regions.
ENFORCEMENT
Federal enforcement will be considered where delegated agencies fail to take appropriate
action. In addition, regions should take appropriate federal enforcement actions in situations
where federal involvement could be particularly helpful in bringing the matter to a successful and
environmentally beneficial resolution (e.g., a company with violations in more than one state,
transboundary issues, recalcitrant violators, etc.), or is essential to ensure fair and equal
environmental protection mandated by law.
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For all cases newly listed in accordance with the "Policy on Timely and Appropriate
Enforcement Response to High Priority Violations (HPVs)", regions should adhere to the
requirements of the Policy, and ensure that all MDRs are reported in AFS in a timely manner.
Regions should work with delegated agencies to ensure that they are familiar with the HPV Policy,
and implement their programs consistent with the guidance. OECA will collect information and
discuss these activities with regional air compliance/enforcement managers during national
meetings, scheduled conference calls, and one-on-one conversations with individual regions.
Performance Expectations:
The following activities are critical components of the core program. OECA will continue
to collect and analyze information on these activities from either AFS or ICIS. The regions should
be prepared to discuss any concerns or questions arising from the collection and analysis of the
data. The regions must provide an explanation if the region will not be undertaking any of these
activities. This explanation will be discussed with regional managers during national meetings,
scheduled conference calls, and one-on-one conversations with individual regions.
D Evaluate and bring to closure 100% of any self-disclosures received by the region;
D Settle or litigate cases issued in years prior to FY2006 and ensure investigation and
issuance of appropriate action for any open tips, complaints, or referrals received by
EPA;
D Exercise 1997 clarified penalty authority against federal agencies for CAA
violations in appropriate circumstances;
D Report 100% of MDRs accurately and in a timely manner in AFS consistent with
the FIPV policy and ensure that delegated agencies do the same.
DATA QUALITY AND REPORTING
Data is an integral part of the CAA compliance and enforcement program; therefore, it is
essential that regions and delegated agencies enter complete and accurate information into the
national database in a timely manner. Complete, accurate and timely data is necessary for EPA,
delegated agencies and the public to evaluate programs and institute corrections. For a complete
list of MDRs for the program, please consult CMS, the HPV Policy, and the ICR for the program.
A summary of the requirements can be found at the following website:
http://www.epa.gov/compliance/planning/data/air/mdrshort.pdf
The region must provide an explanation if no activity is projected in this area.
As stated previously, once an evaluation is completed and a compliance determination is
made, all evaluations should be reported as soon as practicable, and if feasible, in the next
regularly scheduled update of AFS. The results of evaluations conducted by either the regions or
delegated agencies should not be held until the end of the fiscal year and input into the data system
all at once. Regions should work with delegated agencies to ensure that they are familiar with the
data aspects of CMS, the HPV Policy, and the ICR, and implement their programs consistent with
them. This is critical since the air program is structured differently than other media programs in
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that the type and timing of compliance data that must be reported into the national database are not
specified by statute or regulations, but through Agency policy and an ICR for the program.
Agreements with delegated agencies to provide complete, accurate and timely data should be
incorporated in documents such as SEAs, PPAs or Section 105 grant agreements.
As detailed in the September 10, 2004 ICDS Expansion, Implementation and Reporting
memo (http://intranet.epa.gov/oeca/oc/campd/inspector/index.htmn. regions must report all ICDS
data collected from on-site CAA evaluations (FCEs, PCEs, stack testing, RMP audits and
inspections, and CFC evaluations) by either of the following methods:
D Manual reporting: Submit summary ICDS information at mid-year and end-of-
year using the form in Attachment A of the memo. First-line supervisors need to
review the ICDS forms prior to compiling the ICDS data for mid-year and end-of-
year reporting to verify its completeness and accuracy.
D Integrated Compliance Information System (ICIS): Use ICIS to enter the ICDS
data. See Attachment B of the memo. HQ will then pull the ICDS information
from ICIS for mid-year and end-of-year reporting.
ICDS data, both manually reported and directly entered into ICIS, are compiled in regional
workbooks which are sent to the regions for certification. Regions should have in place a
quality assurance process to verify that the ICDS data is correct and accurate.
OECA is striving to have all federal inspections that are currently reported manually
entered into ICIS during this planning cycle and will provide separate guidance on CAA NESHAP
inspection reporting through the annual Enforcement and Compliance Reporting Plan
Memorandum. (Refer to Section III. E) federal 112(r) inspections are required to be entered into
ICIS.
Regions should enter the number and type of planned compliance assistance activities and
outcome measurement projects into the compliance assistance module in ICIS and report all on-
site visits using the CACDS.
Performance expectations:
The following commitments need to be undertaken by the regions during the period
covered by this guidance.
Commitment CAA 16: Regions should ensure that delegated agencies have written
agreements to provide complete, accurate, and timely data consistent with the CMS, HPV
Policy and the AFS ICR; identify the agreement; and provide copies of the relevant
language.
Commitment CAA 17: Regions and delegated agencies should enter all MDRs in AFS
consistent with the Agency policies and the ICR. If for some reason a delegated agency
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does not agree to enter the MDRs, the region is responsible for ensuring that the data is
entered into AFS in a timely manner. If the region is responsible for entering
state/local/tribal data, identify the agency.
The regions must provide an explanation if the region will not be undertaking these
activities. This explanation will be discussed with regional air compliance/enforcement managers
during national meetings, scheduled conference calls, and one-on-one conversations with
individual regions.
PROGRAM OVERSIGHT
Consistent with the CMS and HPV Policy, regions should assess annually the performance
of compliance monitoring programs and enforcement activities against the negotiated and agreed
upon work plans to ensure that commitments are met. In addition, regions should conduct more
in-depth analyses of the overall programs periodically to ensure that resources are being utilized as
efficiently and effectively as possible. These analyses should address issues such as whether
adequate inspector training is available; targeting strategies are being utilized to focus on
environmentally significant sources; written procedures/guidelines are consistent with Agency
policy and are available to guide activities; adequate QA/QC programs are in place; quality
evaluations that meet the definition of an FCE are being conducted; stack tests are being
conducted according to Agency guidance; investigations are conducted as appropriate; violations
are being identified and appropriate enforcement action is being taken; HPVs are being identified
and tracked; appropriate penalties are being assessed; and data are accurately reported to AFS in a
timely manner. These evaluations should assess trends; recognize successes as well as document
areas for improvement; and provide concrete recommendations for improvement. Evaluations
should be based on activities such as monthly conference calls; quarterly/annual reviews; file
audits; oversight inspections; and management and staff interviews. Results should be
documented in a written report and provided to Headquarters. For further guidance in this area,
see the CMS and the HPV Policy. Also, see the sections on EPA/State relations and core program
activities.
Performance Expectations:
The following commitments need to be undertaken by the regions during the period
covered by this guidance. These commitments are critical in light of the Inspector General's
findings and recommendations for the air compliance and enforcement program and the need to
periodically evaluate implementation of the CMS.
Commitment CAA 18: Consistent with the CMS and HPV Policy, regions should evaluate
annually whether compliance monitoring and enforcement commitments were met, and if
not, why not. Regions also should evaluate how these commitments compare to previous
years. The results should be documented in writing and shared with Headquarters.
Commitment CAA 19: Consistent with the CMS, regions should conduct at least one in-
depth evaluation of a delegated program per year and provide the written results to
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Headquarters. The delegated agency should be identified.
The regions must provide an explanation if the region will not be undertaking any of these
activities. This explanation will be discussed with regional air compliance/enforcement managers
during national meetings, scheduled conference calls, and one-on-one conversations with
individual regions.
8. RCRA PROGRAM
RCRA Hazardous Waste Subtitle C Program
EPA is committed to ensuring that hazardous waste is managed in a manner that is
protective of human health and the environment. Agency compliance assurance and enforcement
activities will focus on those facilities posing the greatest risk to human health and the environment.
However, all identified non-compliance with RCRA Subtitle C should be addressed by the Agency
in accordance with its policies governing enforcement and compliance monitoring.
The goal of state and federal compliance assurance and enforcement activities is to attain
and maintain a high level of compliance within the regulated community. Generally, federal
compliance assurance and enforcement activities will complement state activities, where and as
appropriate. Regions should refer to the federal facilities section of this attachment (Section 10) for
guidance on including federal facilities in core program activities where applicable.
Core Program Elements
D Inspections of treatment, storage and disposal facilities, as required under RCRA §3007(e),
and state and local government operated treatment, storage, and disposal facilities, as
required under RCRA §3007(d), to verify compliance with the following requirements
established as standards per RCRA §3004(a):
-D maintaining records of all hazardous waste which is treated, stored, or disposed of,
and the manner in which such wastes were treated, stored, or disposed of;
- satisfactory reporting and compliance of the manifest system;
- treatment, storage, or disposal of all waste received by the facility in accordance
with the law;
- establishing contingency plans for effective action to minimize unanticipated
damage from any treatment, storage, or disposal of any such hazardous waste;
- Training for personnel;
- Financial responsibility.
D Inspections of generators to verify compliance with the following requirements established
as standards per RCRA § 3002(a):
-D proper characterization of the hazardous waste;
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-D furnishes information on the general chemical composition of hazardous waste to
persons transporting, treating, storing and disposing of such wastes;
- record keeping on the management and disposition of waste;
- proper labeling and identification of waste for storage, transport and disposal;
- use of proper containers, tanks and drip pads for the hazardous waste;
- use of the manifest system and all other means necessary to assure that hazardous
waste is sent to the appropriate treatment, storage and disposal facility; and
- submission of reports to the Administrator reporting the waste generated.
D Inspections of transporters to verify compliance with the following requirements established
as standards per RCRA § 3003(a):
- record keeping; D
- properly labeled waste; D
- use of the manifest system; D
- proper management of hazardous waste during transportation; D
- hazardous waste is delivered to treatment, storage and disposal facility that isD
permitted by law to take such waste.
RCRA Underground Storage Tank Subtitle I Program
EPA is committed to ensuring that underground storage tanks (USTs) are operated in a
manner that is protective of human health and the environment. Agency compliance assurance and
enforcement activities will focus on those facilities posing the greatest risk to human health and the
environment. However, all identified non-compliance with RCRA Subtitle I should be addressed
by the Agency in accordance with its policies governing enforcement and compliance monitoring.
Regions should maintain an enforcement presence concerning leak prevention, leak
detection, corrective action and closure, and financial responsibility violations3. Owners and
operators that do not meet UST requirements are not only in violation of federal and state laws but
also have USTs that present a threat of release (or have had a release requiring corrective action).
These non-compliant USTs are gaining an economic advantage over competitors that are in
compliance with environmental laws. These efforts will ensure that owner/operators of RCRA
Subtitle I regulated facilities properly prevent and detect releases and take appropriate corrective
action when releases occur.
The goal of state and federal compliance assurance and enforcement activities is to attain
and maintain a high level of compliance within the regulated community. Generally, federal
compliance assurance and enforcement activities will complement state activities, where and as
appropriate. Regions should refer to the federal facilities section of this guidance (Section 10) for
guidance on including federal facilities in core program activities where applicable.
Regions should focus financial responsibility compliance monitoring activities in states that do not have a state fund.
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COMPLIANCE ASSISTANCE (Sub-objective 5.1.1)
RCRA Hazardous Waste Subtitle C Core Program
Compliance assistance activities should focus on newly regulated persons, persons subject
to new regulations, and persons owning small businesses with compliance problems.
RCRA Underground Storage Tank Subtitle I Program
Investments in outreach and assistance should be strategically focused (e.g., persons
operating facilities on tribal lands where the tribes have a proprietary interest, persons owning small
businesses with compliance problems).
COMPLIANCE INCENTIVES (Sub-objective 5.1.2)
Regions should refer to the Compliance Incentives activities description in Section III. B -
Core Program Activities.
MONITORING AND ENFORCEMENT (Sub-objective 5.1.3)
Monitoring
RCRA Hazardous Waste Subtitle C Core Program
The RCRA hazardous waste core program includes the compliance monitoring activities set
forth in Part I and II below. Both state and federal compliance monitoring activities will be
required in implementing the activities in Part I (i.e., maintaining the annual level of inspections of
treatment, storage, and disposal facilities). To ensure a level playing field and oversight of state
compliance assurance and monitoring activities, regions should maintain a federal presence in the
hazardous waste core program, conducting the compliance monitoring activities set forth in Part II.
In light of continuing concerns regarding threats to human health and the environment
posed by improper management of hazardous waste, regions should focus their compliance
monitoring efforts on the following:
never inspected generators;
facilities that are significant non-compliers;
facilities that are the subject of citizen complaints;
non-notifier facilities that are believed to be generating hazardous waste;
persons that generate, transport, treat, store, or dispose of significant quantities of hazardous
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wastes, in particular those in proximity to population centers or environmentally sensitive
areas; and
D recalcitrant or repeat violators.
In each fiscal year, the regions (in consultation with OECA) may conduct fewer or
additional compliance monitoring activities if it is determined that such a deviation is warranted.
All efforts should be made to adhere to the guidelines that are detailed below.
Performance Expectations
The states and EPA regions should work together to determine the appropriate mix of
federal and state compliance monitoring activities to meet hazardous waste core program activities.
In making its determinations, each region should examine the compliance status of facilities within
its region.
Part I. [Combined State and Federal Core Activities
A.D Statutory mandated inspections -
D Treatment, storage and disposal facilities: Inspect at least once every two years each
operating treatment, storage and disposal facility, as required under SWDA
§3007(e), i.e., 50% of TSDF universe annually.
Commitment RCRA01: Project by state the number of federal TSDF inspections
conducted once every two years.
Commitment RCRAOl.s: Project by state the number of state TSDF inspections conducted
once every two years.
Note: Ground water monitoring inspections (CMEs) should be conducted at any new or
newly regulated land disposal facility, defined under §3004(k). Once it is determined that a
ground water monitoring system is adequately designed and installed, an operation and
maintenance (O&M) inspection may become the appropriate ground water monitoring
inspection. More frequent CMEs should be conducted in situations involving complex
compliance or corrective action requirements; inadequate ground water monitoring systems,
significant changes to ground water monitoring systems, and actual or suspected changes in
local ground water regimes. When hazardous waste is no longer being received, and the
regulated unit has a ground water monitoring program in place, physical inspections can be
replaced by record reviews of the sampling/analysis data and the quarterly/annual ground
water monitoring reports generated from the detection monitoring activities. Where
information from the reports indicates a potential problem, or there are changed
circumstances, a physical inspection would generally be warranted.
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B.D Generators (LQGs): Annually inspect at least 20% of the large quantity generator universe,
so that the entire universe is inspected in five years. The large quantity generator universe
is the total number of generators that reported in the most recent biennial report.
Commitment RCRA02: Project by state the number of federal LQG inspections.
Commitment RCRA02.s: Project by state the number of state LQG inspections.
If inspection coverage is not expected to be provided for 20% of LQGs on an annual basis,
the regions must provide an explanation that should include the following:
D Information on how the RCRA compliance monitoring resources will be redirected
(e.g., national priority facilities, state priority facilities, never-inspected SQGs); and
D How LQGs will otherwise be monitored (e.g., file reviews, watch list); and
D For states proposing to redirect resources to never-inspected SQGs, information that
shows no uninspected LQGs in RCRAInfo (not including facilities that notified in
the last five years).
Because inspections at LQGs generally require more resources than an inspection at an
SQG, inspection tradeoffs - the number of SQGs substituted for LQGs - should be at a 2:1
or greater ratio.
Part II. Federal Core Only
A. D Statutory mandated inspections -
1. D State or Local Government Operated Facilities
Commitment RCRA03: Annually inspect each treatment, storage or disposal facility
operated by states or local governments as required under SWDA §3007(d).
2. Treatment, Storage and Disposal Facilities: D
Commitment RCRA04: Annually inspect at least 2 TSDs per state. D
3. Federal Facilities
Commitment FED.FAC04 and FED.FAC04.s- Statutorily-mandated inspections of
federal facilities are discussed in Section 10
B.D Generators (LQGs):
Commitment RCRA05: Annually inspect at least 6 generators per state.
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The regions are encouraged to perform these inspections for the following: national priority
sectors, to support state referrals, to address illegal recycling, entities with violations in
more than one state, environmentally sensitive environments, areas subject to environmental
justice concerns, and particularly recalcitrant violators.
RCRA Underground Storage Tank Subtitle I Program
Regions should work with states to assure compliance with UST requirements. EPA should
continue to focus its federal inspection resources in areas that could produce the greatest
environmental and human health benefits. Generally, EPA should focus its inspection resources on
leak prevention, leak detection, corrective action and closure, and financial responsibility
requirements.
Recommended factors to consider in identifying facilities to be inspected under the UST
program include:
owners and operators of multiple UST facilities;
owners and operators of USTs located in Indian Country;
owners and operators of large facilities with multiple USTs;
owners and operators of facilities with USTs that are endangering sensitive
ecosystems or sources of drinking water; and
federal facilities.
Enforcement
RCRA Subtitle C Hazardous Waste Program
Regions should refer to the Core Activities section of the Introduction to the Core Program
for general information regarding these activities. Regions should also follow the January 2004
RCRA Enforcement Response Policy (and subsequent revisions) which provides information
regarding the classification of a facility's non-compliance and in the taking of timely and
appropriate enforcement actions.
RCRA Underground Storage Tank Program
Regions should take prompt and effective action on all UST violations discovered. Regions
should utilize the appropriate enforcement tools, taking into account the seriousness of the
violations, to address any detected non-compliance with the UST requirements. Regions should
also refer to Agency policies regarding the appropriate enforcement response.
Imminent and Substantial Endangerment
Though not a specific element of the RCRA core programs, regions should utilize RCRA
§7003 when appropriate for endangerments posed by solid wastes, hazardous waste and
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underground storage tanks. Regions should refer to the appropriate EPA policies and guidances
regarding the use of this authority.
DATA QUALITY AND REPORTING
RCRA Hazardous Waste Subtitle C Core Program
Federal and state enforcement personnel are required to report into RCRAInfo and ICIS the
essential data elements to accurately reflect program activities and measure RCRA program
performance. All RCRA federal enforcement cases must be entered into ICIS and should be
entered into RCRAInfo to allow states to access the data. Reporting guidance will be provided in
the annual Enforcement and Compliance Reporting Memorandum. (Refer to Section HID).
Regions should enter their compliance assistance activities in ICIS. The regions should also
enter their facility specific on-site compliance assistance activities in RCRAInfo. States are not
able at this time to enter their compliance assistance into ICIS so they should continue to use
RCRAInfo. Headquarters will generate RCRA compliance assistance numbers for federal activities
out of ICIS.
All EPA-led inspections conducted under the 3007 authority should be reported on the
Inspection Conclusion Data Sheet (ICDS) even if the inspection discloses that the facility is not a
Subtitle C facility. As detailed in the September 10, 2004 ICDS Expansion, Implementation and
Reporting memo (http://intranet.epa.gov/oeca/oc/campd/inspector/index.html), regions must report
all ICDS data collected from on-site RCRA Hazardous Waste Subtitle C inspections/evaluations by
either of the following methods:
D Manual reporting: Submit summary ICDS information at mid-year and end-of-year using
the form in Attachment A of the memo. First-line supervisors need to review the ICDS
forms prior to compiling the ICDS data for mid-year and end-of-year reporting to verify its
completeness and accuracy.
D Integrated Compliance Information System (ICIS): Use ICIS to enter the ICDS data.
See Attachment B of the memo. HQ will then pull the ICDS information from ICIS for
mid-year and end-of-year reporting.
ICDS data, both manually reported and directly entered into ICIS, are compiled in regional
workbooks which are sent to the regions for certification. Regions should have in place a quality
assurance process to verify that the ICDS data is correct and accurate.
RCRA Underground Storage Tank Subtitle I Program
For 2005-2007, all federal enforcement activity should be entered into ICIS. Inspection
Conclusion Data Sheet (ICDS) forms should be completed for all federal inspections, including
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UST Expedited Settlements4 and Case Conclusion Data Sheets (CCDS) should be completed for all
federal UST cases. OECA is striving to have all federal inspections that are currently reported
manually entered into ICIS during this planning cycle and will provide separate guidance on UST
inspection reporting. Reporting guidance on other UST activities will be provided in the annual
Enforcement and Compliance Reporting Plan memorandum. (Refer to Section III. E)
As detailed in the September 10, 2004 ICDS Expansion, Implementation and Reporting memo
(http://intranet.epa.gov/oeca/oc/campd/inspector/index.html). regions must report all ICDS data
collected from on-site RCRA Underground Storage Tank Subtitle I inspections/evaluations by
either of the following methods:
D Manual reporting: Submit summary ICDS information at mid-year and end-of-year using
the form in Attachment A of the memo. First-line supervisors need to review the ICDS
forms prior to compiling the ICDS data for mid-year and end-of-year reporting to verify its
completeness and accuracy.
D Integrated Compliance Information System (ICIS): Use ICIS to enter the ICDS data
See Attachment B of the memo. HQ will then pull the ICDS information from ICIS for
mid-year and end-of-year reporting.
ICDS data, both manually reported and directly entered into ICIS, are compiled in regional
workbooks which are sent to the regions for certification. Regions should have in place a quality
assurance process to verify that the ICDS data is correct and accurate.
Regions should report 100% of all EPA-led UST results on the ICDS.
UST Expedited Settlements and CCDS should be completed and entered into ICIS for
federal UST cases.
Regions should enter the number and type of planned compliance assistance activities and
outcome measurement projects into the compliance assistance module in ICIS and report all
on-site visits using the CACDS.
PROGRAM OVERSIGHT
RCRA Hazardous Waste Subtitle C Core Program
In reviewing the program performance, EPA will consider the activities undertaken by the
regions and states and the results reported back into RCRAInfo on those activities. EPA will
review whether the regions and states are meeting the compliance monitoring commitments and
whether the enforcement response, with regard to the type of enforcement tool utilized (e.g.,
administrative complaint, expedited settlement, NOV) and the response time taken to address the
identified non-compliance, is appropriate. In particular, as the EPA is looking to quickly address
Expedited Settlements include UST field citations.
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those violations that pose the greatest risk to human health and the environment, the Agency will
also be looking at:
D number of inspections, investigations, and citizen complaints;
D number of SNC' s identified (and percent of universe);
D number (and percent of universe) addressed and resolved in a timely and appropriate
manner; and
D EPA's Watch Li st.
RCRA Underground Storage Tank Subtitle I Program
In reviewing the program performance, EPA will consider the activities undertaken by the
regions and states and the results reported into ICIS or by other means to EPA regarding those
activities. EPA will be looking at the enforcement response with regard to the type of enforcement
tool utilized (e.g., administrative complaint, expedited settlement, NOV, etc) and the response time
to address the identified non-compliance. EPA will also be taking into consideration programs
under Subtitle I that have been developed to ensure compliance (e.g., significant operational
compliance (SOC).
9. FEDERAL ACTIVITIES PROGRAM
The Federal Activities core program for FY2005-2007 is built around the following major
areas:
NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) IMPLEMENTATION (Sub-
objective 5.2.1)
D Fulfill the Agency obligations under NEPA, Section 309 of the Clean Air Act, and related
laws, directives and Executive Orders (all regions).
D Target high impact federal program areas (e.g., transportation and energy projects) toD
promote cooperation and innovation toward a more streamlined environmental reviewD
process (all regions). D
NEPA / CAA §309 Review: Carry out EPA's responsibilities to review and comment on all
major proposed federal actions to ensure that significant adverse effects are identified and are either
eliminated or mitigated.
NEPA Compliance and "Cross-cutters": Carry out EPA's responsibilities to comply with
NEPA and "cross-cutters" (e.g., Endangered Species Act, National Historic Preservation Act,
Executive Orders on wetlands, flood plains, and farmland).
Prepare environmental assessments (EISs or EAs) for new source National Pollutant
Discharge Elimination System (NPDES) permits, where a state/tribe has not assumed the NPDES
program; off-shore oil and gas sources, including permits for deepwater ports EPA laboratories and
facilities; and Clean Water Act wastewater treatment plant grants.
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Prepare environmental assessments (EISs or EAs) for Special Appropriation grants
(including the Colonias Wastewater Construction and Project Development Assistance programs)
for wastewater, water supply and solid waste collection facilities; Border Environment
Infrastructure Fund for the US/Mexico Border Environment Cooperation Commission projects; and
reviews conducted under the "voluntary NEPA policy."
NEPA CAA 309 Review and NEPA Compliance: Regions shall input the results of their
§309 EIS reviews and NEPA compliance actions into the Lotus Notes EIS Tracking Database
maintained by HQ OF A, and the SAAP system maintained by HQ OW, respectively. Additionally,
regions will report to the Office of Federal Activities quarterly on the status of their 309 reviews
and NEPA actions pursuant to OFA's GPRA reporting process.
Performance Expectations
D GPRA Performance Measure: 70 percent of the significant impacts identified by EPA
during the NEPA review of all proposed major federal actions will be mitigated in order to
preserve air and water quality, wetlands, aquatic and terrestrial habitats, and endangered
species; to protect Environmental Justice communities; and to prevent degradation of valued
environmental resources.
Exception: Provide an explanation if the region will not meet the benchmark.
D GPRA Performance Measure: 90 percent of EPA projects subject to NEPA
Environmental Assessment or Environmental Impact Statement requirements (water
treatment facility project and other grants, new source NPDES permits and EPA facilities)
result in no significant environmental impact.
Exception: Provide an explanation if the region will not meet the benchmark.
MONITORING AND ENFORCEMENT (Sub-objective 5.1.3)
D Improve environmental performance and cooperation with Goal 6 of the U.S./Mexico D
Border 2012 plan (Regions VI and IX). D
D Enhance enforcement, compliance and capacity building efforts with Mexico and Canada
relating to trans-boundary compliance monitoring on the U.S. borders for hazardous waste,
CFCs, selected chemicals (e.g., PCBs, mercury), and other regulated substances (Border
Regions).
D Improve performance of joint responsibilities along the border and points of entry into the
United States by working with the Bureau of Customs and Border Protection (all regions).
D Fulfill International agreements and the Agency's RCRA obligations regarding notification
of trans-boundary movement of hazardous waste (all regions).
International Enforcement Capacity Building: The majority of requested commitments
fall to Regions VI and IX for U.S. Mexico border work in connection with the La Paz Agreement.
Regions VI and IX will continue the implementation of U.S.-Mexico work plans for enforcement
and compliance cooperation in the border region and work with the Bureau of Customs and Border
Protection to improve performance of joint responsibilities along the border.
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Import/Export Program: All regions will review the permit and compliance status of U.S.
receiving facilities in connection with 100% of the notifications for the import of hazardous waste
they receive from HQ EPA and, based on their review, recommend consent or objection to
notifications within the time periods allowed under applicable international agreements.
Headquarters will process notifications for import and export of hazardous waste to ensure
compliance with domestic regulations and international agreements; consent or object to import
notifications and acknowledge consent/objection to export notifications; track the flow of
hazardous waste both in and out of the United States based on manifests received from the Bureau
of Customs and Border Protection; and conduct compliance monitoring and prepare memoranda of
referral for appropriate enforcement action. Upon receipt of the referrals, each region is responsible
for determining whether or not to pursue an enforcement action against apparent violations of the
law relating to transboundary movements of hazardous waste and must inform Headquarters of its
decision and the ultimate outcome of each case.
In order to ensure a coordinated approach between EPA and the Bureau of Customs and
Border Protection, regions must also alert headquarters regarding interactions they may have with
the Bureau.
10. FEDERAL FACILITIES ENFORCEMENT AND COMPLIANCE PROGRAM
Background
As an integral process of EPA's on-going efforts to improve environmental compliance at
the 8,000 plus federal facilities nation-wide, FFEO and the regional federal facilities program
managers/staff have developed this core program guidance for FY2006. The FY2006 activities
outlined below were developed to advance the goals outlined in the National Federal Facilities 2006
Program Agenda.
This program guidance identifies the nationally-coordinated activities under OECA's
purview. This guidance reflects that environmental stewardship and pollution prevention activities
should largely be staffed by others (including OPPTS) with more responsibility for these particular
areas. Compliance assistance activities should be carefully targeted on a priority basis, and
leveraged as much as possible, including through more partnerships with FedCenter and other
arrangements. It is imperative to maintain an appropriate enforcement presence through a targeted
inspection program, with swift and meaningful follow-up.
These activities are anticipated to serve as a baseline of priority activity from a national
program perspective, in addition to which the regions may pursue their own regionally-identified
priorities (including regional activity in support of the national priorities, regional integrated
strategies, and geographically-based inspection "sweeps"). All federal facility activities will be
measured using the relevant CCDS and counted in achieving OECA's overall goal of a 5%
increase in the pounds of pollution reduced, treated, or eliminated, and achieving a 5% increase in
the number of regulated entities making improvements in environmental management practices.
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COMPLIANCE ASSISTANCE (Sub-objective 5.1.1)
Compliance assistance remains a vital tool in abetting improved environmental compliance
at federal facilities. With continuing budgetary constraints, it is imperative that compliance
assistance efforts be targeted to support priority areas, which include the Federal Facility Integrated
Strategy areas (listed below) as well as implementation of Environmental Management Systems
(EMS). With respect to EMS, we support continual improvements in federal EMSs, in particular
by including Environmental Management Reviews (EMRs) in integrated strategies, including EMS
improvements in enforcement action settlements and including EMS questions in multimedia and
single media inspection checklists. FFEO will also work to develop, in conjunction with the EO
13148 Interagency Work group, metrics to measure environmental progress at facilities with EMSs.
The recent creation of an independent federal facility environmental compliance assistance
and stewardship center - FedCenter (http://www.fedcenter.gov) will be pivotal to future
collaborative compliance assistance efforts. FedCenter will serve as the catalyst for increased
cooperative compliance assistance efforts both within EPA and other federal partners. FedCenter
will increasingly become the federal portal for dissemination of environmental compliance
information and tools.
Performance Expectations
Compliance Assistance Activities
Each region will develop at least three compliance assistance activities (such as a seminar,
training, workshop, education/outreach activity, etc.). One activity should address EMS
implementation and two activities should support the integrated strategy areas. These
compliance assistance activities can be developed for delivery through the region or through
FedCenter.
Commitment FED-FAC01: Each region will conduct at least three compliance assistance
activities for federal facilities.
A. One activity to address EMS implementation; and
B. Two activities to address Integrated Strategy areas.
COMPLIANCE INCENTIVES (Sub-objective 5.1.2)
Regions should refer to the Compliance Incentives' activities description in Section III. B -
Core Program Activities.
MONITORING AND ENFORCEMENT (Sub-objective 5.1.3)
Compliance Monitoring
Performance Expectations
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D Multi-media inspections
Each region will conduct two multi-media inspections to support the Integrated Strategy
areas. Regions may substitute four single media inspections in lieu of one multi-media
inspection. FFEO encourages including EMS questions in multi-media and single media
inspection checklists.
A multimedia inspection consists of (1) a CAA, CWA, or RCRA program inspection plus at
least one additional program under a different statute for the same facility; or (2) some
combination of two or more CAA, CWA, or RCRA program inspections at the same
facility. To count as a multi-media inspection, no more than three months may have elapsed
between an inspection by one program and subsequent inspection by another program.
FFEO encourages including EMS questions in multi-media and single media inspection
checklists.
Commitment FED-FAC03: Number of multi-media inspections, or single media
inspections to be conducted; provide an explanation if below the target level.
D Annual inspections of Federal RCRA treatment, storage or disposal facilities as required by
RCRA Sec. 3007(c)
Commitment FED-FAC04 and FED-FAC04.s: Each region will conduct inspections at
100% of the region's universe of federal facility RCRA treatment, storage or disposal
facilities, or arrange with an authorized state program that has been approved to carry out
RCRA 3007(c) inspections to conduct such inspections.
NOTE: These RCRA TSDF inspections, if done by the region, can qualify as part of a
multi-media inspection. EPA RCRA inspectors shall complete Sec. 6002 survey forms for
100% of EPA RCRA inspections at federal facilities, and return the form to FFEO within
two weeks of completing the inspection. EPA RCRA inspectors shall give the Sec. 6002
facility survey to a representative at the inspected facility and request their completion of the
survey and mailing to FFEO.
D Single media inspections
In addition to the RCRA TSDF inspections, each region will perform six single media
inspections of federal facilities (in addition to any single media inspections conducted under
multi-media inspections above and in addition to the RCRA TSDF inspections). Of these
six inspections, at least three should support the Integrated Strategy areas. FFEO encourages
including EMS questions in multi-media and single media inspection checklists.
Commitment FED-FAC05: Number of federal facility inspections to be conducted (in
addition to any single media inspections conducted under multimedia inspections above);
provide an explanation if below the target level.
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D The inspections identified here are those that are unique to the federal facilities core
program and are in addition to those outlined in other OECA core program guidances.
These inspections may, however, simultaneously satisfy inspection commitments required
in other OECA core program guidances (e.g., the requirement for inspection of 100% of all
NPDES major facilities).
Enforcement
FFEO strongly encourages the regions to take swift and meaningful enforcement actions to
improve compliance at federal facilities. For FY2006, federal facility resources should be focused
on taking appropriate and timely enforcement actions, as defined within relevant media-specific
statues for each federal facility: 1) on the Watch List; 2) inspected as a result of FFEO's Multi-
media Inspection Initiative; or 3) inspected as a consequence of FFEO's Integrated Strategies
efforts. Where appropriate, FFEO advocates including EMS improvements as part of enforcement
action settlements.
INTEGRATED STRATEGIES
Integrated strategies, which align enforcement, compliance, and stewardship activities
toward maximum effect, can help the federal facilities program guide its actions toward greater
environmental and health benefits. Integrated strategies include activities focused on: (i) assisting
facilities to achieve and maintain compliance; (ii) inspecting and monitoring compliance; and (iii)
prosecuting enforcement actions to correct and deter non-compliance.
VHA Integrated Strategy
In FY2004, FFEO and the regions developed an EPA-Veteran's Health Administration
(VHA) integrated strategy. FY2004 activity consisted primarily of compliance assistance activity.
In FY2005, the strategy shifted from compliance assistance to focus on monitoring and
enforcement. FFEO requested at least one inspection to be done per region at a VHA facility in
FY2005. InFY2006, we are requesting that each region determine: 1) whether additional
inspection activity is appropriate for their region; and 2) whether appropriate follow-up
enforcement activity has been pursued in follow-up to each VHA inspection, and if not, ensure such
follow-up is pursued. FFEO will be focusing on collecting data on VHA environmental
compliance.
NPDES Wastewater Integrated Strategy
In FY2005, FFEO initiated the development of this strategy. Activities consisted primarily
of an effort to compile available current and historic data followed by a collaborative review of the
data findings with federal agencies. FFEO will identify preliminary root causes of non-compliance.
Regions were encouraged to utilize multi-media inspections to deal with lack of CWA penalty
authority. Sample documents (NOV and FFCA) were developed by FFEO. In FY2006, regions are
Final D 68 June 2005
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asked to develop compliance assistance tools, conduct multi-media inspections and/or single media
inspections to address NPDES wastewater requirements, and focus on follow-up enforcement
activity for prior inspections.
NPDES Stormwater Integrated Strategy
In FY2005, FFEO reviewed the Wet Weather National Priority to determine the potential
for a federal facility focus. Regions indicated that some compliance assistance has already been
done in this area. Regions have also identified federal construction projects as a strong area of
potential for focusing our stormwater efforts. FFEO is coordinating with the Stormwater National
Priority Team to determine the next steps.
NOTE: Where a region demonstrates that their federal facilities universe is not applicable for the
Integrated Strategies, the region should work with FFEO through the ACS process to determine
appropriate substitutes.
DATA QUALITY AND REPORTING
OECA will provide reporting guidance in the annual Enforcement and Compliance
Reporting Process Memorandum. (Refer to Section HID above.)
In accordance with this guidance, all federal enforcement cases, including those for federal
facilities, must be entered into ICIS, the database of record, and also entered in the associated
legacy systems (e.g., AFS, PCS, RCRAInfo). OECA also requires all applicable CCDS
information on all concluded actions to be entered into ICIS and applicable CACDS information be
entered into ICIS.
Although the legacy systems are the database of record for many federal inspections, a large
percentage of these are reported manually because there is no corresponding program database
(e.g., RCRA USTs, CWA SPCC and Wetlands). Manually reported inspections are entered into the
OC Workbooks at the middle and end of each fiscal year. OECA is striving to have all manually
reported federal inspections entered into ICIS during the current planning cycle and will provide
separate guidance on reporting these inspections through the annual Enforcement and Compliance
Reporting Process memorandum referenced above. The legacy data systems also serve as the
database of record for violations, significant violators (SNCs) and high priority violators (HPVs).
For 2005-2007, regions must manually report all federal facility multimedia inspections through the
OC Workbooks. Workbooks will be available to the regions for data entry at the midyear and end-
of-year cycles.
At mid-year, FFEO will communicate the available data on federal facility core program
accomplishments to each respective region. To accomplish this review, FFEO will pull regional
performance data (e.g., enforcement actions, multi-media and single media inspections, and
compliance assistance activities) from the available database of record or from the OC Workbooks
to serve as a basis of discussion with the region. As mentioned above some data (e.g., certain
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inspections that don't have a database of record, or have not yet been reported into the OC
workbooks) must be reported manually by the region in order for FFEO to acknowledge progress
on certain commitments. The core program commitments that will be communicated to the region
will include: compliance assistance activities, multi-media inspections, single-media inspections,
status of Watch List sites, RCRA TSDF inspections, and formal enforcement actions. At the end of
the fiscal year, FFEO will compile an end-of-the year report to help evaluate the federal facility
program performance and document regional accomplishments. This data will periodically be
published in FFEO-issued reports and reported to OECA senior management.
11. MULTIMEDIA AND RAPID RESPONSE PROGRAM
The multimedia compliance and enforcement programs are designed to foster a
comprehensive approach to the resolution of environmental problems. "Comprehensive" means
that applicable provisions of all environmental laws are used to achieve broad-based environmental
benefits. This approach recognizes that many facilities and companies are operating in violation of
more than one environmental statute. A multimedia strategy to target and address compliance
problems and environmental harm results in a more effective overall management of a facility's or a
company's environmental liabilities and is ultimately more cost-effective than bringing two or more
independent media-specific enforcement actions. Multimedia-focused activities, including
enforcement actions, reflect the goals of federal innovation and underlie much of the Agency's
enforcement reorganization.
The Agency has been, and continues to be, successful in developing cases and initiatives
that have brought significant environmental results in all media. While it remains critical to be able
to develop large scale, nationwide actions, we also need the capability to have a more rapid
enforcement response in order to have a truly effective program. The objective of the Rapid
Response Program will be to "work backwards" from finding an environmental problem to reacting
with the appropriate mix of authorities, in a more direct fashion than previously. The Office of
Civil Enforcement's (OCE) Special Litigation and Projects Division (SLPD) will work with other
Divisions and with the regions to identify cases where streamlined case development and a rapid
response can produce more effective results. We anticipate that these actions will be brought in
both administrative and judicial forums, and that we will partner with states in appropriate cases.
In some instances, the SLPD will work with the regions to develop the Agency's first
enforcement response, with more traditional enforcement actions to follow. The cases may be
streamlined, so that there will be fewer counts brought against violators in order to obtain speedy
resolution, reserving our rights to bring additional actions or additional counts.
Compliance Assistance (Sub-objective 5.1.1)
The areas that Headquarters believes warrant compliance assistance have been identified
within specific program discussions. The primary focus of the federal multimedia program should
be on compliance monitoring and enforcement. However, the results of a multimedia analysis of
specific facilities or entire companies might prove useful in planning future compliance assistance
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activities.
Compliance Incentives (Sub-objective 5.1.2)
Regions should refer to the Compliance Incentives' activities description in Section III. B -
Core Program Activities.
Performance Expectations
With regard to compliance incentives, regions will be expected to report on the number of
voluntary disclosures received and resolved pursuant to incentive policies. To ensure that the
Agency will achieve its goals, the regions are expected to perform activities that will increase the
use of EPA incentive policies to conduct environmental audits or other actions that reduce, treat, or
eliminate pollution or improve facility environmental management practices.
Each region will lead a regional Compliance Incentive Program or participate in a national
Compliance Incentive Program directed at a particular sector and/or noncompliance problem, with
emphasis on violations that, once corrected, are likely to result in measurable pollution reductions.
Compliance Monitoring
The multimedia program will rely on the compliance monitoring efforts in existence for
each media program. However, each region's multimedia targeting strategy and operational plan
should establish protocols for coordinating multimedia investigations and actions among the
individual media programs. Headquarters will continue to assist the regions in promoting a
process-based approach as well as a more targeted and efficient approach to multimedia inspections
in general. The goal is to achieve the best environmental result while using resources efficiently.
Participation in Rapid Response Program Activities could entail the dedication and possible
reprogramming of compliance monitoring resources.
Performance Expectations
Regions will be expected to continue to develop and refine their multimedia targeting
strategy and operational plan for initiation of multimedia enforcement activities. Elements of this
plan should include projected multimedia inspections, case development training, and projected
numbers of multimedia cases. Use of a multimedia checklist is not considered to be a multimedia
inspection, but a tool for identification of potential multimedia targets.
Regions will be expected to participate in at least one rapid response activity per year, if
requested. These activities will take one of three forms: a specific rapid response initiative to
address a specific environmental or human health risk (e.g., worker protection), participation in a
single multi-media, multi-regional nationally significant case, (e.g., a case against a national "bad
actor"), or a multi-media, multi-regional case that directly supports a national priority (e.g., a case
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that is nationally significant in support of NSR-PSD).
Enforcement
(a) General Approach
The multimedia or cross-statutory approach to case development can be employed in the
context of three basic types of enforcement actions:
D against single facilities, where entire industrial processes at a facility are examined as a
whole;
D against entire companies, where violations of different statutes that occur at various
facilities indicate ineffective corporate-wide management of environmental compliance; and
D geographically based enforcement efforts arising from a comprehensive multimedia analysis
of the environmental problem(s) in a given area (enforcement activities resulting from this
analysis may be single or cross-media).
(b) Rapid Response Program
Each region should support the Rapid Response Program which will place emphasis on
more targeted and quicker responses - in any geographic region. The enforcement model will be
collaborative: the SLPD intends to work closely with and augment regional, state, and headquarters
media teams. The focus will be on cooperation between SLPD, the regions, the media enforcement
program and, where appropriate, the states working together to find and implement the most
expeditious and effective response to a given situation.
While the SLPD has substantial expertise in identifying sectors for enforcement actions, it is
anticipated that most new matters will derive from those closest to the sources of the problem.
SLPD will rely upon contacts within the regions and the states to identify potential areas for
enforcement. In all instances, the goal will be the identification of potential harmful effects, and the
coordinated, rapid resolution of problems.
Participation in Rapid Response Program Activities could entail the dedication and possible
reprogramming of compliance monitoring resources.
Performance Expectations
Regions will be expected to participate in at least one rapid response activity per year, if
requested. These activities will take one of three forms: a specific rapid response initiative to
address a specific environmental or human health risk (e.g., worker protection), participation in a
single multi-media, multi-regional nationally significant case, (e.g., a case against a national "bad
actor"), or a multi-media, multi-regional case that directly supports a national priority (e.g., a case
that is nationally significant in support of NSR-PSD).
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DATA QUALITY AND REPORTING
No new reporting is required. Current multimedia reporting requirements are outlined in
RECAP. The Multimedia RECAP measure is the number of multimedia inspections reported by a
region. The number of multi-program and multi-facility referrals and penalty order complaints must
be reported pursuant to the "Revised Approach for Counting EPA Enforcement Case Initiations and
Conclusions, September 2003". Reporting guidance will be provided annually in the Enforcement
and Compliance Reporting Process memorandum. (Refer to Section III.E) Regions are similarly
reminded to notify the SLPD at Headquarters of all multimedia referrals.
All disclosures made through incentive policies and their resolutions must be entered into
ICIS. Applicable CCDS information on concluded actions must also be entered into ICIS.
PROGRAM OVERSIGHT
State involvement in national multimedia and Rapid Response casework is strongly
encouraged. Regions should assess the level of state-initiated compliance assistance and
enforcement activity once case management teams are developed and, where practicable, encourage
state participation in the National actions. Generally, although there is no oversight of state
multimedia program development, the regions may encourage the development of such programs as
they see fit, requesting Headquarters assistance and resources as appropriate.
12. ENVIRONMENTAL JUSTICE PROGRAM
Executive Order 12898s directs the Environmental Protection Agency (EPA) and other
federal agencies to make environmental justice part of their mission, to the greatest extent
practicable and permitted by law, by identifying and addressing, as appropriate, disproportionately
high and adverse human health and environmental effects on minority and low-income populations.
Consistent with that mandate, the environmental laws that EPA implements and enforces
direct it to protect all people from significant environmental hazards and risks. The Agency is
keenly aware that minority and/or low-income and other sensitive populations frequently confront
special environmental burdens caused by a host of factors including, but not limited to, those
relating to: health, environmental conditions, and compliance assurance activities. Helping to
satisfy its environmental justice mission to protect all people, including minority and/or low-
income populations, the EPA accounts for these and other issues under the environmental statutes
that it implements and enforces. For example, OECA has already explicitly established
environmental justice as a targeting factor under the Clean Water Act and the Resource
5"Federal Actions to Address Environmental Justice in Minority Populations and Low-
Income Populations" Executive Order, February 11, 1994
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Conservation and Recovery Act.6 Further, OECA has established environmental justice as a
penalty consideration7 and as a factor in approving Supplemental Environmental Projects in
settlements.8
On April 15, 2003, former OECA Assistant Administrator, JP Suarez outlined the Smart
Enforcement approach to compliance assurance, requiring OECA to target compliance and
enforcement efforts strategically, to ensure that the most significant impacts to human health and
the environment are addressed first. The directive identifies environmental justice as a cornerstone
of the Smart Enforcement program. Notably, OECA's application of Smart Enforcement concepts
provides for the use of existing environmental, compliance, and health data to target and prioritize
compliance assurance activities to address significant environmental problems and to identify
problems in communities with environmental and public health concerns.
Subsequently, OECA's Principal Deputy Assistant Administrator, Phyllis Harris, issued
OECA's Environmental Justice Policy.9 This policy further underscores the importance of
environmental justice in program implementation.
In 2001 the EPA Environmental Justice Executive Steering Committee (a group composed
of EPA Headquarters and regional leadership, including OECA's Deputy Assistant Administrator)
directed that each program office and region should develop an Environmental Justice Action Plan.
These strategic planning documents help coordinate the environmental justice activities of the
Agency and establish a basis for accountability and monitoring progress. The Action Plan
framework elements, which each region and program office has developed into specific
programmatic activities, include the following:
1. Risk Reduction /Protect Environmental and/or Public Health - To ensure equal
6 Memorandum, FR: Assistant Administrator, "Compliance and Enforcement Strategy
Addressing Combined Sewer Overflows and Sanitary Sewer Overflows," Section IV, B.2.
"Priorities for SSO Enforcement Response" (April 27, 2000) (directing OECA to target
compliance assurance/enforcement activities in areas raising environmental justice concerns).
:
Guidance on the Use of Section 7003 of RCRA, § II, Bullet 1 (October 1997) (directing OECA
to target compliance assurance/enforcement activities in areas raising environmental justice
concerns),
7 See Memorandum from Steven Herman, Assistant Administrator, Office of D
Enforcement and Compliance Assurance (September 30, 1997). D
8 See, e.g., Environmental Protection Agency, Supplemental Environmental ProjectsD
Policy 13-14 (May 1, 1998). D
9 "OECA Environmental Justice Policy" Memorandum, January 12, 2004.
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implementation of environmental laws to achieve significant risk reduction which will improve the
environment and/or public health of affected communities.
2. Outreach and Communication - To provide opportunities for meaningful involvement and
ensure effective communication between the Agency decision makers and stakeholders, including
all affected communities.
3. Training - To provide training for EPA managers and staff to enable them to incorporate
environmental justice considerations into their decision making process.
4. Federal, State, Tribal, and Local Government Coordination - To ensure effective
coordination across all levels of government to address the environmental and public health
concerns of affected communities.
5. Grants and Contracts Administration - To promote effective and efficient management of
all grants and contracts to ensure that the environmental and public health concerns of affected
communities are addressed.
6. EnvironmentalJustice Assessment - To conduct an assessment of the environmental justice
indicators within affected communities as part of the decision making process.
Annual commitments, regional workplan commitments, and state performance partnership
agreements (or similar EPA-State/Tribe Agency agreement) and grants for FY2005/2007 should be
consistent with OECA's and each region's respective Environmental Justice Action Plan.
COMPLIANCE ASSISTANCE (Sub-objective 5.1.1)
Regions should appropriately target compliance assistance activities to address issues of
environmental justice, consistent with smart enforcement principles. Prior to planning and
targeting compliance assistance activities, among other things, regions should consider the
following: (1) does the activity impact compliance with all health and environmental statutes; (2)
has there been sufficient public input regarding the compliance assistance activity; (3) should other
levels of government, including Tribal Government, be involved with the activity or consulted; (4)
how have health, environmental, and compliance data sources been evaluated to determine
priorities; (5) have priorities been established to ensure that disproportionately impacted areas are
being targeted; and (6) have issues of Limited English Proficiency among minority populations and
low-income populations or the regulated community been considered and addressed. Compliance
assistance activities should be targeted to diminish risk relative to the conditions and health of the
resident population.
In 2004, OECA and the regions created an environmental justice targeting approach based
on health, compliance, environmental and demographic data. The approach, Environmental Justice
Smart Enforcement Targeting Strategy (EJSETS) builds upon the original guidelines of Smart
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Enforcement and the policy set-out in the "Toolkit for Assessing Allegations of Environmental
Injustice." EJSETS provides the regions with consistent information and may be used in the
context of targeting and planning; crafting specific remedies based on local conditions; helping to
apply penalty considerations; developing supplemental environmental projects (SEPs); and
measuring outcomes. The regions are encouraged to utilize EJSETS and its draft screening tool as
another discretionary targeting approach as they consider how best to identify, address
environmental justice concerns and measure results.
COMPLIANCE INCENTIVES (Sub-objective 5.1.2)
Regions should refer to the Compliance Incentives activities description in Section III.B -
Core Program Activities.
COMPLIANCE MONITORING (Sub-objective 5.1.3)
Regions should appropriately target compliance monitoring activities to address issues of
environmental justice, consistent with smart enforcement principles. Prior to planning and
targeting inspections, among other things, regions should consider the following: (1) does the
monitoring activity impact enforcement of all health and environmental statutes; (2) has there been
sufficient public input regarding compliance assurance activities; (3) should other levels of
government, including Tribal Government, be involved with the activity or consulted; (4) how have
health, environmental, and compliance assurance activity data sources been evaluated to determine
priorities; (5) have priorities been established to ensure that disproportionately impacted areas are
being targeted; and (6) have differential patterns of consumption of natural resources among
minority populations and low-income populations been identified. Inspections should be targeted
to diminish risk relative to the conditions and health of the resident population.
Performance Expectations
To ensure that the goals of environmental justice are accomplished, enforcement and compliance
personnel should incorporate environmental justice concerns into ongoing enforcement/compliance
activities. Moreover, enforcement/compliance activities addressing issues of environmental justice
should be included in the region's Environmental Justice Action Plans and identified in annual
commitments as having measurable environmental justice components. To address environmental
justice concerns, regions should ensure that:
1) The public has access to compliance and enforcement documents and data, particularly in
high risk communities, through multimedia data integration projects, other studies, and
communication/outreach activities;
2) Public input is solicited, as appropriate, in the identification of facilities or areas of
concern (i.e., through periodic listening sessions, hotlines, outreach efforts, etc...) and
during other appropriate phases of the compliance assurance process;
3) EPA's policies, programs and activities, including public meetings, address the concerns
of the potentially affected populations, including those living in minority and/or low-income
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areas;
4) Noncompliance is deterred and environmental and human health improvements are
achieved by: (a) maintaining a strong, timely and active enforcement presence across all
areas, including those with minority and/or low-income populations, and (b) targeting
compliance activities in areas with high levels of noncompliance;
5) Enforcement and other compliance assurance actions are prioritized using environmental,
compliance, and health data so as to minimize risk to human health and-the environment and
to maximize compliance, consistent with the goals of smart enforcement;
6) When possible, enforcement actions result in environmental or human health
improvements, through pollution reductions and/or physical or management process
changes;
7) When practical, participate in collaborative problem solving with other federal, state,
tribal, and/or local agencies to address environmental justice concerns; participate in the
environmental justice training efforts; and continue to participate in national, state, Tribal,
or local dialogue around the issue of environmental justice (i.e.., NEJAC, listening sessions,
etc...); and
8) Consider issues such as cumulative risk, health disparities, and appropriate demographic
issues in the context of gravity based penalties, case development, referrals to the
Department of Justice, and Supplemental Environmental Projects.
Enforcement Actions
If an inspection identifies violations consult the EPA Supplemental Environmental Projects
Policy and other enforcement memoranda (addressing penalty determinations) regarding the
appropriate consideration of environmental justice issues. Issues pertaining to environmental
justice, identified in cases of potential civil or criminal violation, should be documented and
transmitted to the Department of Justice for use in case development, establishment of penalties,
and remedy selection.
Program Leadership and Evaluation
Training and Technical Assistance: regional Environmental Justice Coordinators, the Office
of Policy, Analysis, and Communication, and the Office of Environmental Justice can be valuable
sources of information to assist in integrating environmental justice issues into any regional
enforcement program.
13. TRIBAL PROGRAM
EPA's enforcement and compliance assurance program works with federally-recognized
Indian tribes (tribes) to employ the Smart Enforcement approach to promote compliance through
the use of appropriate compliance and enforcement stewardship in Indian country and in areas
outside of Indian country where tribes and tribal members have recognized rights and interests
protected by treaty, statute, judicial decisions or other authorities, including Alaska, (hereinafter
Indian country). Whether implemented directly by EPA or an approved tribe, selecting the
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appropriate tools - compliance assistance, incentives, monitoring, and enforcement - can provide
important gains in environmental and human health protection. During FY2005-2007, OECA and
the regions intend to continue to increase their presence in Indian country.
In spring 2004, OECA finalized the enforcement and compliance assurance program's
Protecting Public Health and the Environment Through Enforcement and Compliance Assurance in
Indian Country: A Strategy for Results (Strategy), based upon comments received from tribes,
states, and EPA regions and program offices. The Strategy, which will be issued under separate
cover, is designed to help develop a common understanding among environmental managers and
staff at the federal and tribal level about the nature of enforcement and compliance assurance
programs. In addition, the Strategy outlines how EPA works with tribes to maximize compliance
and reduce threats to public health and the environment in Indian country and other areas where
Indian tribes and their members have rights and resources. This work is undertaken consistent with
the federal government's trust and consultation responsibilities to tribes, government-to-
government relationship with such tribes, EPA's authorizing statutes and implementing regulations,
the EPA Policy for the Administration of Environmental Programs on Indian Reservations, and
EPA's Strategic Goal 5: Compliance and Environmental Stewardship.
Following are the activities that OECA and the regions anticipate undertaking in FY2005-
2007 to implement the Strategy.
COMPLIANCE ASSISTANCE (Sub-objective 5.1.1)
OECA's compliance assistance and capacity building efforts in Indian country are designed
to provide federal facilities, non-tribally-owned or operated facilities, and tribal governments that
own or manage regulated facilities with the information and support necessary to maintain
compliance. Consistent with the EPA Policy for the Administration of Environmental Programs on
Indian Reservations, and the Guidance on the Enforcement Principles Outlined in the 1984 Indian
Policy, issued in January 2001, OECA and the regions utilize compliance assistance as the initial
means of resolving non-compliance and maintaining compliance on the part of tribally-owned or
managed facilities. To help implement this approach, during FY2005/2007, the regions plan to
work with tribes to increase the compliance of tribal and non-tribal facilities in Indian country with
environmental statutes through the use of compliance and technical assistance and to continue to
tailor compliance assistance tools for use by tribes and facilities in Indian country. During FY
2005-2007, OECA's National Enforcement Training Institute (NETI) will continue to provide
classroom training and self-instruction training materials to tribal environmental professionals.
COMPLIANCE INCENTIVES (Sub-Objective 5.1.2)
Regions should refer to the Compliance Incentives activities description in Section III.B -
Core Program Activities.
MONITORING AND ENFORCEMENT (Sub-objective 5.1.3)
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EPA conducts almost all compliance monitoring activities in Indian country because the
Agency currently retains direct compliance and enforcement authority for most federal
environmental programs in Indian country until such time as an EPA-approved program is in
place for such areas. OECA will continue to work with the regions to address compliance
monitoring issues in Indian country, including the potential authorization of tribal inspectors to
conduct inspections on behalf of EPA. Regions should direct questions about authorization and the
Guidance to OECA's Compliance Assessment and Media Programs Division. EPA works closely
with tribes in carrying out compliance monitoring activities by consulting with tribes on inspection
priorities and schedules and sharing information where appropriate.
Until tribal governments are delegated the authority to implement enforcement programs,
EPA will inspect and, where appropriate, take enforcement actions in Indian country under its
direct implementation authority against federal facilities, privately-owned and tribally-owned
facilities. Consistent with the EPA Policy for the Administration of Environmental Programs on
Indian Reservations., and the Guidance on the Enforcement Principles Outlined in the 1984 Indian
Policy, headquarters and regions will take enforcement actions when necessary if compliance
assistance fails to correct violations at tribally-owned facilities in a timely fashion.
Performance Expectations
The regions will be asked to report on FY2005-2007 Tribal Performance Measures.
Specific reporting requirements will be issued at a later date.
A. D Regional Enforcement Coordinators should be directly involved in discussing the types of
projects to fund with EPA's enforcement and compliance assurance tribal resources; these
resources are distributed by OECA's Compliance Assistance and Sectors Programs Division
(CASPD) each fiscal year. EPA's enforcement and compliance assurance tribal resources
are available to directly or indirectly support the compliance assurance and enforcement
program in Indian country related to: (1) solid waste landfills consistent with section
8001 (a) of the Resource Conservation and Recovery Act (RCRA); and (2) activities
consistent with a particular (or multiple) federal environmental statutory or regulatory
provision(s). Regions use a variety of mechanisms - grants, contracts, cooperative
agreements, and interagency agreements - to support these activities.
B. D Regional enforcement programs should report project summary and measurement
information about the enforcement and compliance assurance tribal resources in work
planning documents or similar reports back to CASPD.
C. D OECA is currently developing/adapting additional, appropriate performances measures.
These measures will be consistent with the Strategy and the FY2005-2007 national and
regional priorities.
DATA QUALITY AND REPORTING
Complete and reliable information about the compliance status of facilities in Indian country
Final D 79 June 2005
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is important to the success of enforcement and compliance assurance activities. Accurate
information enables EPA and tribes to understand and determine their enforcement and compliance
priorities. In addition to encouraging tribes to input and maintain data, EPA intends to work with
tribes to help ensure that national enforcement and compliance data systems provide the accurate,
timely and relevant information needed for effective prioritization. In FY2005-2007 the regions
should use data developed through regional inspections and existing EPA databases to help identify
and address potential areas of noncompliance.
Regions should enter the number and type of planned compliance assistance activities and
outcome measurement projects into the compliance assistance module in ICIS and report all on-site
assistance visits using the CACDS.
SECTION V. FY2006 OECA Workplan Submission Instructions
A. Annual Commitment System
Following release of the final OECANPM Guidance, regions should continue discussions
with their states and tribes to determine draft numbers for the commitments contained in the
guidance. Attachment A is a complete listing of all FY2006 OECA commitments. Current
schedules call for regions to enter their draft targets into the annual commitment system by July 1,
2005. NPMs can then review draft regional targets to ensure that all regional targets together "roll
up" to result cumulatively in appropriate annual national targets. Headquarters and the regions will
have approximately 2 months (July 1 through September 1) to resolve any issues and finalize
annual regional targets. During this same time, regions will be engaging in negotiations with states
and tribes to complete the grant process (PPAs, PPGs, and Categorical Grants), including
translating regional targets into formal commitments supported by state-by-state agreements. All
commitments should be final by September 30, 2005; all grants should be final by October 1, 2005.
The lead time before annual targets and commitments are finalized helps to provide regions,
states, and tribes maximum flexibility in determining their commitments. Ultimately, headquarters
and regions will share responsibility for identifying and resolving any conflicts over program
priorities that present implications for the annual regional commitments. Issues that have not been
resolved will be elevated to OECA's Acting Assistant Administrator for decision.
B. Support and Training Requests
NEIC
The regions should continue to send their annual requests for specific civil inspection,
investigative, and technical support to NEIC's Civil Program Coordinator. NEIC will evaluate the
requests in order to develop the final list and schedule of support activities. To initiate discussions
necessary to plan and schedule appropriate enforcement support for FY2005-2007, NEIC would
like to receive requests from the regions by August 1, 2005. It is important that NEIC receive all
regional submissions by August 1, 2005 to allow for an examination of all projects in line with
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resources. These requests should be as specific as possible, and include information to help NEIC
determine whether they can provide the requested support. As completely as possible, this
information should include:
facility/project name and location; D
desired enforcement support (type of investigation, technical assistance, informationD
request, etc.); D
- desired time frame (if critical); D
- desired outcome of project (enforcement, measurable environmental impact, correctiveD
action, settlement, compliance, etc.);D
Regional/Headquarters priority(ies)/initiative(s) involved; D
a brief description regarding how and why this particular facility/project was selected forD
NEIC support; andD
a name and phone number of a contact for additional information. D
During the review of the requests, NEIC will have discussions with the various regional
contacts regarding aspects of each request. The combination of information sent with the original
request and that obtained during these discussions will enable NEIC to determine whether the
requested support can be provided. The final decisions and commitments will be included in the
negotiated workplans.
If you have any questions regarding this process please contact either Gene Lubieniecki,
(303) 236-6112, or Robert Tolpa (202) 564-2337. Please send NEIC support requests to both Gene
and Robert.
Gene Lubieniecki D Robert Tolpa, Chief
Civil Program Coordinator D National Performance Measurement
US EPA-NEIC D and Analysis Staff
Denver Federal CenterD US EPA - OECA
Building 53, PO Box 25227D Ariel Rios Building - South
Denver, CO 80225 D 1200 Pennsylvania Ave., NW
Washington, DC 20460
C. FTE Resource Charts
Attachment B contains the FTE resource charts similar to the charts completed in previous
planning cycles. The charts are organized by goal, objective and sub-objective and then cross-
walked to the media program elements. The importance of the FTE Resource Charts has been
growing significantly because of increasing interest from the Office of Management and Budget,
the Inspector General and Congress. It is imperative that these charts be completed and submitted
to Robert Tolpa and Lisa Raymer on September 30, 2005.
2005 Enacted - This column should contain the region's final FY2005 FTE allocation derived from
the Agency's FY2005 Enacted Operating Plan.
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2006 Proposed - This column should contain the region's proposed FTE allocation for FY2006.
Headquarters recognizes that FTE levels may change after the Agency receives the FY2006 enacted
budget after October 1, 2005. Therefore this number is a "best guess" estimate.
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