•*EPA
United States
Environmental Protection
Agency
Office of
External Affairs
Washington DC 20460
November 1988
Office of Federal Activities
Federal Faci
Compliance
-..:?*• • ,--
130489003
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&EPA
Federal Facilities
Compliance Strategy
Office of Federal Activities
U.S. Environmental Protection Agency
U,S- tovtfouroental f election Agency
Region 5, Library (PL42J)
77 West Jackson Boulevard, 12th Ftaor
Chicago, It 60604-3590
November 1988
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'o
1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\. ,c? WASHINGTON. DC. 20460
NOV 8 1983
THE ADMINISTRATOR
The U.S. Environmental Protection Agency (EPA) believes that Federal agencies have an
inherent obligation to comply with all Federal environmental statutes in the same manner
and degree as all other regulated entities. It is imperative that every effort be made to
ensure that Federal facilities achieve and maintain high rates of compliance with all
environmental requirements. And it is important to EPA's compliance and enforcement
efforts at non-Federal entities that facilities of the Federal government demonstrate that they
have their "own house in order." In order to demonstrate EPA's commitment in this
important area, we have established a new goal for our Federal Facilities Compliance
Program which states that EPA shall help "ensure that Federal agencies achieve compliance
rates in each media program which meet or exceed those of major industrial and major
municipal facilities."
To help achieve this goal, EPA has developed a new Federal Facilities Compliance Strategy
which establishes a comprehensive and proactive approach to achieving compliance at
Federal facilities. This document, also known as the "Yellow Book", provides the basic
framework and consistent guidelines for all EPA media programs (e.g., air, water,
hazardous waste, etc.) to follow in their compliance and enforcement activities at Federal
facilities. It also attempts to reconcile EPA's dual responsibilities to provide technical
assistance and advice to Federal facilities pursuant to Executive Order No. 12088, and our
statutory authorities to take enforcement actions for violations at Federal facilities in
appropriate circumstances.
Recently-authorized environmental statutes have included special requirements and
additional provisions which are specific to Federal facilities. These provisions clarify that
Federal agencies must comply with environmental laws in the same manner and degree as
all other facilities subject to such requirements. EPA intends to utilize the full range of its
available enforcement authorities to ensure compliance by Federal facilities. However,
EPA also recognizes that there are some limitations and differences in the types of
enforcement actions which EPA can take at Federal facilities. These special circumstances
have made it clear that if EPA is to be truly effective in ensuring high compliance rates at
Federal facilities, a separate strategy such as this is needed to address this unique subset of
facilities which we regulate.
Thorough and consistent implementation of this Strategy should significantly strengthen
EPA's compliance and enforcement program for Federal facilities. We will apply the same
timeframes for taking enforcement action at Federal facilities as EPA does for other
facilities. We also have established a formal dispute resolution process with strict time
periods for escalation when Compliance Agreements or Consent Orders cannot be
expeditiously negotiated between EPA Regional offices and Federal facilities.
This Strategy also emphasizes the use of innovative compliance management techniques
(e.g., environmental auditing), selected initiatives for improved compliance tracking of
Federal facilities and more effective use of the Federal Agency A-106 Pollution Abatement
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Planning Process. In addition, since many of EPA's programs are delegated to the States,
we have devoted a separate chapter in this document to the critical role of States in
responding to compliance problems at Federal facilities.
In closing, I would like to reiterate that EPA is very serious in its efforts to ensure
compliance by Federal facilities, and we will take all necessary actions, including
enforcement in appropriate circumstances, to improve the environmental status of facilities
of the Federal government. Federal facilities have done much to increase the effectiveness
of their environmental management programs, but further progress is needed if Federal
facilities are to meet their obligations to comply to the fullest extent possible with all of the
environmental laws. We at EPA believe that this is an attainable goal and look forward to
working together with affected parties in implementing this strategy and demonstrating that
Federal facilities can truly be the model for compliance which we feel they are capable of
becoming.
•:9o «v- .
Dale Lee M.Thomas
Administrator
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FEDERAL FACILITIES COMPLIANCE STRATEGY
TABLE OF CONTENT'S" •"< ;\
Page
Number
INDEX OF EXfflBITS ; , vi
LIST OF ACRONYMS AND ABBREVIATIONS vii
LIST OF APPENDICES // ' ,'ix
EXECUTIVE SUMMARY ". , v. . ... .V x
CHAPTER!.- INTRODUCTION
A. PURPOSE OF THE STRATEGY 1-2
B. OVERVIEW OF THE STRATEGY -77; . .""1-3
CHAPTER II. - SUMMARY OF RELEVANT ENVIRONMENTAL STATUTES AND
EXECUTIVE ORDERS
A. FEDERAL FACILITY COMPLIANCE WITH STATE AND LOCAL
POLLUTION CONTROL STATUTES II-1
B. FEDERAL ENVIRONMENTAL STATUTES II-l
B.I Clean Air Act H-2
B.2 Clean Water Act H-2
B.3 Resource Conservation and Recovery Act II-4
B.4 Federal Insecticide, Fungicide, and
Rodenticide Act II-5
B.5 Toxic Substances Control Act H-6
B.6 Comprehensive Environmental Response,
Compensation, and Liability Act II-6
B.I Safe Drinking Water Act 11-7
C. EXECUTIVE ORDERS II-8
C. 1 Executive Order 12088 - Federal Compliance with
Pollution Control Standards II-8
C.2 Executive Order 12146 - Management of Federal
Legal Resources II-9
C.3 Executive Order 12580 - Superfund Implementation H-9
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Number
CHAPTER III. - IDENTIFICATION OF THE REGULATED COMMUNITY
A. DEFINITION OF A FEDERAL FACILITY HI-1
B. STRATEGY FOR IDENTIFYING AND TRACKING THE
UNIVERSE OF FEDERAL FACILITIES HI-1
B. 1 Identifying the Types of Federal Facilities
in the Regulated Community III-2
B. 2 Improved Use of Available Information and
Existing Data Systems III-2
B.3 Special Initiatives III-4
CHAPTER IV. - COMPLIANCE PROMOTION. TECHNICAL ASSISTANCE AND
TRAINING
A. COMPLIANCE PROMOTION IV-1
A.I Information Transfer IV-1
A.2 Identifying Compliance Patterns of
Federal Agencies IV-2
A.3 Environmental Auditing IV-3
,B. ' TECHNICAL ASSISTANCE AND TRAINING IV-5
B.I Technical Assistance IV-5
B.2 EPA "Hotline" Assistance IV-6
B.3 Federal Facilities Compliance Program
Assistance and Oversight IV-7
B. 4 Training Opportunities for Federal Facilities
Compliance Personnel IV-7
CHAPTER V. - COMPLIANCE MONITORING
A. OBJECTIVES OF COMPLIANCE MONITORING ACTIVITIES V-l
B. SOURCE SELF-MONITORING, REPORTING AND
RECORDKEEPING REQUIREMENTS V-2
C. INSPECTION STRATEGY FOR FEDERAL FACILITIES V-3
C. 1 Annual Inspection Planning V-4
C.2 Regional Reporting of Inspection and Enforcement
Activities at Federal Facilities V-4
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Page
Number
C. 3 Identification of Environmentally
Significant Federal Facilities for
Multi-Media Inspections V-4
C.4 Coordination with States on Federal
Facilities Inspections , V-5
C.4.a Annual Meeting with States on
Federal Facilities Compliance V-5
C.4.b State Reporting on Federal Facility
Compliance Status V-5
D. ACCESS TO FACILITIES REQUIRING SECURITY
CLEARANCES V-6
E. SUBMISSION AND REVIEW OF FEDERAL AGENCY A-106
POLLUTION ABATEMENT PLANS AND PROJECTS V-6
E. 1 Identification of Priority Projects V-7
E.I.a A-106 Compliance Classes ." V-7
E. 1 .b Targeting Resources to Address
Priority Areas V-8
E.2 A-106 Process Overview and Time Table .'.'.. "V-8
E.3 State Participation in the A-106 Process V-10
CHAPTER VI. - ENFORCEMENT RESPONSE TO COMPLIANCE PROBLEMS AND
VIOLATIONS OF ENVIRONMENTAL LAWS AT FEDERAL
FACILITIES
A. OVERALL COMPLIANCE POLICY AND PHILOSOPHY VI-2
B. EPA RESPONSE TO FEDERAL FACILITIES VIOLATIONS .......... VI-3
B.I Federal Facilities Compliance Process: Civil
Administrative Enforcement Procedures VI-4
B.I.a Notification of Violation VI-4
B. 1. b Response by Federal Facilities:
Certification of Compliance or
Remedial Action Plans VI-5
B. 1 .c Initial Negotiation of Compliance
Agreements or Consent Orders VI-6
B. 1 .d Issuance of Proposed Consent Orders
or Proposed Compliance Agreements VI-8
B.l.e Internal EPA Dispute Resolution Procedures VI-9
B. 1. f Federal Facilities Dispute
Resolution Process VI-10
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Page
Number
B. 1 .g Use of Executive Order 12088 -
Federal Compliance with Pollution
Control Standards VI-11
B. 1 .h Use of E.O. 12146-Resolution of Interagency
Use of Legal Disputes VI-12
B. 1. i Use of Other Dispute Resolution
Procedures for Violations of Signed
Agreements or Consent Orders VI-11
B. 1. j Impact of Funds Availability on
Achieving Compliance and Negotiating
Compliance Schedules VI-12
B. l.k Exemptions VI-13
B. 2 Enforcement Actions for Violations at
Federal Facilities Directed at Non-Federal
Parties VI-14
B. 2. a Limitation on Civil Judicial
Enforcement Actions Applies Only to
Executive Branch Agencies VI-14
B. 2. b Contractor and Other Private Party
Arrangements Involving Federal
Facilities VI-14
B.2.C Contractor Listing VI-16
B. 3 Criminal Enforcement Actions at
Federal Facilities VI-16
B.4 Press Releases for EPA Enforcement Actions at
Federal Facilities VI-16
B.5 Monitoring Compliance VI-17
CHAPTER VH. - ROLE OF THE STATES IN RESPONDING TO FEDERAL
FACILITIES VIOLATIONS
A. STATE RESPONSE TO FEDERAL FACILITIES VIOLATIONS VH-1
A.I Use of State Enforcement Authorities VH-1
A.2 State Enforcement Response Lead Following
EPA Inspection in Delegated States VII-2
A.3 EPA Involvement in State Enforcement Actions VII-2
A. 4 Relationship of S tate Administrative and
Judicial Citizen Suits to EPA Compliance
Agreements VH.-3
B. FEDERAL FACILITIES IN THE STATE/EPA ENFORCEMENT
AGREEMENTS PROCESS VH-3
IV
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Page
Number
B. 1 Clear Oversight Criteria and Oversight
Approach VII-4
B. 1. a Identification of and
Priorities for the Regulated
Community VII-4
B.l.b Clear and Enforceable Requirements VII-4
B. 1 .c Accurate and Reliable Compliance
Monitoring VII-4
B. 1 .d High or Improving Rates of
Continuing Compliance VII-4
B. 1 .e Timely and Appropriate Enforcement
Response VII-5
B. 1. f Accurate Recordkeeping and
Reporting VII-5
B.2 Direct EPA Enforcement VII-5
B.3 Advance Notification and Consultation VII-5
CHAPTER VHI.- EPA ROLES AND RESPONSIBILITIES FOR PROGRAM
IMPLEMENTATION
.A. REGIONAL OFFICE STAFF VIII-1
A.I Regional Administrator VIII-1
A. 2 Regional Administrator/
Deputy Regional Administrator VIII-2
A.3 Regional Counsel VEI-2
A.4 Regional Program Staff/Division Directors .VIII-3
A.5 Regional Federal Facilities Coordinator . .VIII-4
B. EPA HEADQUARTERS OFFICES VIII-6
B.I Headquarters Program Offices Vffl-7
B. 2 Office of External Affairs/Office of
Federal Activities VIII-8
B. 3 Office of Enforcement and Compliance
Monitoring VHI-10
B.4 Office of General Counsel VIII-10
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INDEX OF EXHIBITS
Page
Exhibit Number
1-1 EPA Federal Facilities Coordinators 1-5
III-l Defining the Federal Facility Coordinators HI-6
III-2 Identification of the Regulated Community of
Facilities with Federal Involvement EII-7
III-3 Federal Facilities Identification Numbers ni-9
III-4 Program Information Systems ni-11
IV-1 The EPA Journal IV-9
V-l Media Program Inspections V-l 1
V-2 Annual Timetable of Key A-106 Events V-14
V-3 Federal Agency A-106 Pollution Abatement Plan-
Project Report Form No. 3500-7 V-15
V-4 EPA Inadequate and Needed Sheets and the Federal
Agency Response Formats V-16
VI-1 Timely and Appropriate Enforcement
Response Matrix VI-18
VI-2 Federal Facility Enforcement Response Process
and Dispute Resolution Process VI-21
VI-3 EPA Initial Enforcement Response to Violations
at Facilities with Federal Involvement VI-23
Vm-1 EPA Regional Office Staff Coordination VIII-11
Vffl-2 EPA Headquarters Office Staff Coordination VHI-12
VI
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LIST OF ACRONYMS AND ABBREVIATIONS
AA Assistant Administrator
AO Administrative Order
ATS Administrator's Tracking System
CAA Clean Air Act
CERCLA Comprehensive Environmental Response, Compensation, and Liability Act
COCO Contractor Owned/Contractor Operated
COCO (E) Contractor Owned/Contractor Operated (Equipment)
CWA Clean Water Act
DOD Department of Defense
DOJ Department of Justice
DRA Deputy Regional Administrator
E.O. Executive Order
ESD Environmental Services Division
FARES Federal Activities Regional Evaluation System
FEMA Federal Emergency Management Agency
FFIS Federal Facilities Information System
FDFRA Federal Insecticide, Fungicide, and Rodenticide Act
FINDS Facility Index System
GAO General Accounting Office
GOCO Government Owned/Contractor Operated
GOGO Government Owned/Government Operated
GOPO Government Owned/Privately Operated
IRIS Integrated Risk Information System
JOCO Jointly Owned/Contractor Operated
NEIC National Enforcement Investigations Center
NRC Nuclear Regulatory Commission
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LIST OF ACRONYMS AND ABBREVIATIONS (Continued)
NOV Notice of Violation
OARM Office of Administration and Resources Management
OEA Office of External Affairs
OECM Office of Enforcement and Compliance Monitoring
OFA Office of Federal Activities
OGC Office of General Council
OIRM Office of Information and Resource Management
OMB Office of Management and Budget
OMSE Office of Management Systems Evaluation
OPPE Office of Policy and Program Evaluation
ORD Office of Research and Development
POGO Privately Owned/Government Operated
PWS S Public Water S upply System
RA Regional Administrator
RAP Remedial Action Plan
RCRA Resource Conservation and Recovery Act
SARA Superfund Amendments and Reauthorization Act
SDWA Safe Drinking Water Act
SNC Significant Noncomplier
SPMS Strategic Planning and Management System
TSCA Toxic Substances Control Act
UIC Underground Injection Control
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LIST OF APPENDICES
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
APPENDIX G
APPENDIX H
APPENDIX I
APPENDIX J
APPENDIX K
APPENDIX L
Summaries of Federal Environmental Statutes:
. Clean Air Act (CAA)
. Clean Water Act (CWA)
. Resource Conservation and Recovery Act (RCRA)
. Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
. Toxic Substances Control Act (TSCA)
. Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA)
. Safe Drinking Water Act (SDWA)
Executive Orders 12088, 12146, and 12580
EPA Program Definitions for Majors, Minors, Significant
Noncompliers and Significant Violators
EPA Environmental Auditing Policy
EPA "Hotline" Assistance
Reporting, Recordkeeping, and Self-Monitoring Requirements Under
the CAA, CWA, CERCLA and RCRA
OMB Circular No. A-106
Department of Justice Letters (10/11/83 and 12/20/85) and
Congressional Testimony on Federal Facilities Compliance (4/28/87)
Enforcement Response Authorities by Program
Sample Enforcement Response Forms and Letters
Enforcement Actions under RCRA and CERCLA at Federal Facilities and
Elevation Process for Achieving Federal Facility Compliance Under RCRA
Policy on Publicizing Enforcement Actions
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EXECUTIVE SUMMARY
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EXECUTIVE SUMMARY
The Federal Facilities Compliance Strategy establishes a comprehensive and
proactive approach to achieving and maintaining high rates of compliance at Federal
facilities. It provides the basic framework for EPA's media programs to follow in ensuring
that Federal facilities are fully integrated into Federal and State compliance monitoring and
enforcement activities. It also attempts to reconcile the Agency's dual responsibilities of
providing technical assistance and advice to Federal facilities to help ensure their
compliance, as required under Presidential Executive Order No. 12088, and of taking
enforcement actions against Federal facilities, where appropriate, as provided for in the
various environmental statutes.
This Strategy clarifies that Federal agencies must comply with environmental laws
in the same manner and degree as non-Federal entities and EPA will utilize the full range of
its available enforcement mechanisms to ensure compliance by Federal facilities. However,
EPA also recognizes that there are certain limitations and differences in the types of
enforcement actions which EPA will take at Federal facilities. In addition, EPA's mandate
to provide technical assistance as well as the restrictions inherent in the Federal budget and
appropriations process influenced EPA's decision that a separate strategy was needed to
address compliance problems at Federal facilities.
This document was written to serve several audiences: to serve as guidance for
EPA Headquarters and Regional staff; to clarify State and Federal compliance monitoring
and enforcement roles; to inform Federal agencies of EPA's strategy and identify
procedures to be followed when violations have been discovered; and finally, to
communicate EPA's approach for addressing compliance problems at Federal facilities to
Congress, the public, and concerned interest groups.
Chapter II — Summary of Environmental Statutes and Executive Orders
Federal agencies generally must comply with all provisions of Federal
environmental statutes and regulations as well as all applicable State and local requirements,
with the exception of very limited Presidential exemptions which may be issued on a site-
specific basis. Presidential Executive Orders also stress the mandate for Federal facilities to
comply fully with environmental requirements and to establish procedures for ensuring that
this is accomplished, including special procedures for resolving compliance disputes within
the Executive Branch involving EPA and other Federal agencies.
Chapter III - Identification of the Regulated Community
A more definitive inventory of Federal facilities will enable EPA to establish more
effective priorities and select targets for assistance, compliance monitoring, and
enforcement activities. The Strategy clarifies that EPA is focusing on that subset of Federal
facilities which have potential for environmental impact.
The Strategy defines the various types of Federal facilities and Federal lands, and
describes how available sources of information and program data systems will be used by
EPA to identify and track compliance at Federal facilities. It outlines new actions that EPA
will undertake to improve the quantity and quality of information on the Federal facilities
universe, including reviews of Federal facility classifications and major/minor facility
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definitions and the identification of important Federal facility minors and environmentally
significant facilities on a multi-media basis.
Chapter IV- Compliance Promotion, Technical Assistance and Training
To meet its unique responsibilities under E.0.12088 to provide technical assistance
and advice to Federal agencies, EPA is establishing a more systematic communications
system for exchange of information on new or revised regulatory or statutory
environmental requirements. The Strategy describes the functions of EPA's various
"Hotlines" and encourages Federal agency personnel to utilize these services to assist them
in maintaining compliance at their facilities. In addition to information transfer, the
Strategy introduces improved approaches for informing Federal facilities of available
training courses. EPA will attempt to target particular agencies for courses in areas where
an Agency has had a pattern of compliance problems.
EPA has a unique opportunity to work with other Federal agencies and the States to
identify broad patterns of current and potential compliance problems among facilities in a
given Agency. Based upon information from Regions and States about patterns of
noncompliance by Federal facilities, EPA will develop a comprehensive strategy to correct
these noncompliance patterns and will work with the parent Agency to ensure the strategy
is implemented. In an effort to prevent future compliance problems, the annual A-106
planning process will be used more effectively to inform Federal agencies of EPA priority
areas and request them to direct their A-106 projects to these areas where appropriate.
Federal facilities are also encouraged to adopt environmental auditing programs to
help achieve and maintain higher levels of overall compliance. EPA will provide technical
assistance to other Federal agencies in the initiation and implementation of auditing
programs.
Chapter V — Compliance Monitoring
The Strategy strengthens compliance monitoring activities at Federal facilities by
ensuring that EPA or the States' presence is being demonstrated at all Federal agencies
which have the potential for environmental impact. Federal facilities are to be inspected at
least as frequently as all other sources, consistent with the priorities, frequencies and types
of inspections established in each media program guidance. In addition, Regions are to
identify the most environmentally significant Federal facilities across several media
programs as candidates for multi-media inspections.
EPA plans to improve the efficiency and effectiveness of the Federal agency A-106
pollution abatement planning process by addressing compliance problems at Federal
facilities before they become violations, linking the process more closely to identified EPA
environmental priorities and other systematic program improvements.
Chapter VI -- EPA Enforcement Response at Federal Facilities
The most significant provisions of this Strategy deal with the basic approach and
procedures EPA will use when responding to violations at Federal facilities. The strategy
clarifies that Federal agencies are required to comply with environmental laws the same as
non-Federal regulated entities and that EPA will utilize all of its available enforcement
mechanisms at Federal facilities. The strategy also recognizes that there are certain
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limitations and differences in terms of the types of enforcement action which EPA will take
against Federal facilities.
EPA and States are to pursue "timely and appropriate" enforcement responses to
address violations at Federal facilities in a manner similar to actions taken to address
violations at non-Federal facilities. EPA's enforcement responses emphasize that if a
violation is not or will not be corrected within the timeframe for violations of that class, an
enforcement action should be taken consistent with media program guidance.
EPA's formal enforcement responses for Federal facilities emphasize the use of
mutually negotiated remedial actions and schedules in the first instance, formalized through
Compliance Agreements or Consent Orders, depending upon program authorities and
guidance. EPA will issue proposed administrative enforcement actions where mutual
agreement cannot be reached in a timely manner, and will promptly utilize all available
dispute resolution mechanisms to effectively resolve areas of disagreement. The Strategy
also clarifies that Federal agency officials are required to take all available steps to obtain
sufficient funds to achieve compliance on the most expeditious schedule possible.
EPA's enforcement process for Executive Branch Agencies is purely
administrative, and neither provides for civil judicial action nor assessment of civil
penalties.1 This limitation does not apply to enforcement actions taken by States as
authorized under various statutes nor to EPA actions directed to non-Federal operators of
Federal facilities who are not officials of Executive Branch Agencies. EPA will pursue the
full range of its enforcement authorities against private operators of Federal facilities (e.g.,
GOCOs) where appropriate and also take action against Federal agencies at GOCO facilities
in certain circumstances. EPA will develop a GOCO Enforcement Strategy as a follow-up
to this document to further clarify this issue.
Chapter VII — Role of the States in Federal Facilities Compliance
States generally may exercise a broader range of authorities and enforcement tools
than EPA to address violations at Federal facilities. Under many statutes, delegated or
authorized States can use the full range of these enforcement authorities to address Federal
facility violations to the same extent they are used for non-Federal facilities. States are also
encouraged, wherever possible, to pursue bilateral, negotiated agreements or Consent
Orders with Federal facilities. In any delegated State enforcement action involving Federal
facilities EPA will be careful not to interfere with the State's enforcement proceedings.
However, EPA will be available upon request to either party to help facilitate expeditious
compliance.
State and Federal roles in compliance and enforcement are defined through
State/EPA Enforcement Agreements negotiated by the Region and each of its States for
each media program, consistent with the Policy Framework for State/EPA Enforcement
Agreements and program-specific implementing guidance. While most aspects of these
Agreements pertain equally to Federal and non-Federal facilities, the Strategy outlines
several areas in which Federal facilities should be explicitly addressed in the Enforcement
Agreements process.
1 This limitation does not apply to penalties for violations of Interagency Agreements under Section 120
of the 1986 Superfund Amendments and Reauthorization Act (SARA).
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As part of the State/EPA Enforcement Agreements process, Regions should review
the Strategy with their States and address five areas: (1) the enforcement approach the State
plans to use for responding to Federal facility violations; (2) the types of situations where
the State would request EPA support or direct action; (3) any additional information the
State has agreed to report to EPA on Federal facilities compliance and enforcement
activities; (4) how the State will be involved in the A-106 process; and (5) plans for a joint
EPA/State annual review of compliance problems at Federal facilities in the State.
Chapter VIII -- EPA Roles and Responsibilities for Strategy Implementation
The Strategy clarifies EPA roles and responsibilities for implementing this Strategy
and the overall Federal facilities compliance program. It outlines the roles of the Regional
staff and the various Headquarters offices.
The Strategy emphasizes the need for Federal facilities to be integrated into the
ongoing compliance and enforcement activities of each EPA media program. The Federal
facilities Coordinator's role is to coordinate Regional program office implementation of
these activities. Implicit in this Strategy is the need for teamwork among the various
offices and staff involved in addressing Federal facilities compliance.
************
This Strategy replaces the previous program document, entitled "Resolution of
Compliance Problems at Federal Facilities" (known as the "Yellow Book"), dated January
1984, and will still be referred to as the "Yellow Book." Full implementation is being
phased in over the next few years, beginning in mid-FY 1988. The enforcement response
provisions are to be fully implemented immediately. EPA's Annual Operating Year
Guidance will set subsequent priorities for the implementation of the remainder of this
Strategy. Enforcement and remedial response procedures under CERCLA/SARA generally
are not addressed by this document. However, references to CERCLA/SARA have been
included in several places for informational purposes only.
In addition, the Strategy document has a number of Appendices which contain
various reference documents, model response forms, compliance agreements, definitions
of key EPA terms, etc., all of which should prove to be helpful to environmental staff in
other Federal agencies. Additional copies of the Strategy may be obtained by written
request to EPA at the following address:
U.S. Environmental Protection Agency
Office of Federal Activities (A-104)
Federal Facilities Compliance Program
401 M Street, S.W.
Washington, D.C 20460
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CHAPTER I
INTRODUCTION
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I. INTRODUCTION
The EPA Administrator has stated that Federal facility compliance with pollution control
regulations should be a model for the rest of the regulated community and that they should lead
the way in minimizing environmental contamination. In addition, during the past few years,
the issue of controlling pollution from Federal facilities has received much publicity in the news
media and increased attention from Congress. Problems such as those identified in the General
Accounting Office (GAO) final report on the "Status of Civilian Federal Agencies' Efforts to
Address Hazardous Waste Problems on Their Land" have called increased attention to Federal
facility compliance with environmental laws. Congress is continuing to include more specific
legislative provisions addressing Federal facilities in environmental laws (e.g., the Hazardous
and Solid Waste Amendments of 1984 and the Superfund Amendments and Reauthorization
Act of 1986).
EPA has an established Federal Facilities Compliance Program to ensure that
Federal facilities comply with environmental laws and regulations as required by individual
Federal environmental statutes and by Executive Order (E.G.) 12088 (Appendix A).
Nationally the program is administered by the Office of External Affairs/Office of Federal
Activities (OEA/OFA), working in close consultation with other EPA offices, including the
Office of Enforcement and Compliance Monitoring (OECM), the Office of General
Counsel, and all media program offices. The program administers the Agency's
responsibilities assigned under E.G. 12088, which include:
• Monitoring and ensuring that compliance is maintained at Federal facilities;
• Providing technical advice and assistance on compliance with environmental laws
and regulations;
• Reviewing Federal agency pollution abatement plans; and
• Resolving disputes regarding noncompliance.
The program strategy for ensuring compliance was initially outlined in a document
entitled "Resolution of Compliance Problems at Federal Facilities," dated January 1984,
and commonly known as the "Yellow Book." Because of the increased public attention to
Federal facilities and the issuance of new enforcement policies and guidance affecting
Federal facilities, EPA has developed this revised strategy.
OFA and OECM were jointly responsible for revising the strategy with the
assistance of an Agency-wide workgroup comprised of both Headquarters and Regional
representatives. Key features of this revised strategy include:
• Expanding its scope to address compliance promotion techniques, compliance
monitoring and tracking, technical assistance, State roles, EPA management
responsibilities, and clarification of compliance resolution procedures;
• Integrating the "timely and appropriate enforcement response" concept into the
compliance resolution procedures;
• Establishing a process of notification, negotiation, and formal administrative action
prior to initiating the dispute resolution process;
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• Clarifying the respective State, EPA, and Federal agency roles in the Federal
facilities compliance process; 4B
• Emphasizing the use of innovative approaches and management techniques to
address patterns of noncompliance;
• Proposing improvements for technical assistance and training for Federal agencies;
and;
• Identifying internal EPA management roles and responsibilities at Headquarters and
the Regions.
A. PURPOSE OF THE STRATEGY
This Strategy establishes the basic framework for EPA programs to follow to
ensure that Federal facilities are fully integrated into their compliance monitoring and
assurance activities. These activities include identifying the Federal facility universe,
implementing compliance promotion and technical assistance/training programs, monitoring
compliance, selecting appropriate enforcement responses, resolving identified compliance
problems, and establishing proper roles and responsibilities.
EPA's decision to develop a separate strategy for addressing compliance problems
at Federal facilities was influenced by the following needs to:
• Clarify that Federal facilities must comply with environmental laws in the same
manner and degree as non-Federal entities and that EPA will utilize its available
enforcement mechanisms, whenever necessary, to ensure their compliance;
• State that it is EPA's policy that there are certain limitations and differences in the
types of enforcement actions which EPA will take at Federal facilities (as compared
to non-Federal facilities);
• Set forth uniform enforcement response procedures which enable EPA to make the
most effective use of its available enforcement authorities at Federal facilities; and
• Develop an approach for providing appropriate levels of EPA technical assistance
and oversight at Federal facilities to help them achieve and maintain high rates of
compliance.
A comprehensive and consistent nationwide approach to addressing Federal
facilities compliance problems is necessary to assist all Federal agencies in achieving and
maintaining high levels of environmental compliance. Adherence to and consistent
application of the policies and procedures articulated in this Strategy is necessary to ensure
its effective implementation due to the widely-dispersed geographic nature of most Federal
agency installations, facilities and lands. Effective implementation of the Strategy should
assist EPA in achieving its goal of making Federal facilities a model for compliance within
the regulated community.
Full implementation of this Strategy will be phased over the next few years,
beginning in FY 1988. The enforcement response provisions, as described in Chapter VI,
are to be implemented immediately. Aspects of the Strategy which require additional
resources will be implemented as funding allows and as specified in EPA's Annual
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Operating Year Guidance which sets annual priorities for the implementation of this
Strategy. It is important to point out that EPA's various program offices also may develop
follow-up media-specific guidance to ensure effective implementation of this Strategy.
Such media specific guidance is encouraged as long as it adheres to and is consistent with
the overall policies and procedures set forth in this EPA Strategy for addressing Federal
facilities compliance problems.
B. OVERVIEW OF THE STRATEGY
This document has been written with a diverse audience in mind. First, it is
intended to serve as guidance for EPA Headquarters and Regional staff in resolving Federal
facility compliance problems and in providing assistance to help prevent such problems.
Second, it attempts to clarify for State and Federal environmental officials what their
respective roles are in the Federal facilities compliance program. Third, it informs Federal
agencies of EPA's strategy for ensuring improved compliance at Federal facilities and
identifies the procedures to be followed when violations have been discovered. In addition,
this document may also prove useful to the public, Congress, and other parties interested in
EPA's strategy for addressing compliance problems at Federal facilities.
The strategy document is divided into eight chapters covering the full range of
compliance monitoring and assurance activities related to Federal facilities as follows:
• Chapter I - Introduction describes the context, purpose, focus, and intended
audience of the document;
• Chapter II - Summary of Relevant Environmental Statutes and Executive Orders
presents Federal and State statutory authorities applicable to Federal facilities;
• Chapter HI - Identification of the Regulated Community presents the definition of a
Federal facility, distinguishes between types of facilities subject to environmental
requirements, and discusses information sources for identifying the universe of
facilities;
• Chapter IV -- Compliance Promotion, Technical Assistance and Training highlights
preventive measures to noncompliance through compliance promotion activities and
technical assistance and training;
• Chapter V — Compliance Monitoring focuses on the major compliance monitoring
requirements which Federal facilities are subject to including source self-monitoring
and reporting, inspections, and the A-106 process;
• Chapter VI — Enforcement Response to Compliance Problems and Violations at
Federal Facilities outlines the EPA process and procedures for responding to
violations identified at Federal facilities in a timely and appropriate manner,
• Chapter VII -- Role of the States in Responding to Federal Facilities Violations
clarifies State and Federal roles and responsibilities for enforcement against Federal
facilities and their coordination through the State/EPA Enforcement Agreements
Process;
• Chapter VIII -• EPA Roles and Responsibilities for Strategy Implementation
describes EPA Headquarters and Regional responsibilities for implementing the
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strategy; and several appendices to the Strategy are also provided. They are
included in addition to the text to provide pertinent EPA guidance memoranda,
sample documents, and additional background information. In addition, Exhibit 1-1
provides a listing of the EPA Federal Facilities Coordinators located in each of the
EPA's ten Regional offices. These individuals serve as the primary points-of-
contact for Federal agencies in EPA's Regional offices.
Enforcement and remedial response procedures under CERCLA/SARA generally
are not addressed by this document since the program does not involve maintaining
compliance at active facilities but is a cleanup program addressing inactive or abandoned
sites. However, references to CERCLA/SARA have been included in several places for
informational purposes only. For guidance on CERCLA, EPA's Office of Solid Waste and
Emergency Response is issuing various documents on CERCLA/SARA implementation at
Federal facilities.
It also is important to point out that the policies and procedures set forth herein, and
internal Government procedures adopted to implement these policies, are intended as
guidance to EPA and other Government employees. They do not constitute rulemaking by
the Agency, and may not be relied on to create a substantive or procedural right or benefit
enforceable by any other person.
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EXHIBIT 1-1
EPA Federal Facilities Coordinators
EPA Region I
JFK Federal Building
Boston, Massachusetts 02203
CML (617) 565-3395
FTS 835-3395
Connecticut, Massachusetts, Maine,
New Hampshire, Vermont,
Rhode Island
EPA Region V
230 South Dearborn Street
Chicago, Illinois 60604
CML (312) 353-2035
FTS 353-2035
Illinois, Indiana, Michigan,
Minnesota, Ohio, Wisconsin
EPA Region IX
215 Fremont Street
San Francisco, California 94105
CML (415) 974-7539
FTS 454-7539
Arizona, California, Hawaii,
Nevada, American Samoa, Guam,
Trust Territories of the Pacific
EPA Region II
26 Federal Plaza
New York, New York 10061
CML (212) 264-1840
FTS 264-1840
New Jersey, New York, Puerto Rico,
Virgin Islands
EPA Region VI
145 Ross Avenue
Dallas, Texas 75202-2733
CML (214) 655-2260
FTS 255-2260
Arkansas, Louisiana, New Mexico,
Texas, Oklahoma
EPA Region X
1200 Sixth Avenue, MS 443
Seattle, Washington 98101
CML (206) 442-1327
FTS 399-1327
Alaska, Idaho, Oregon, Washington
EPA Region III
841 Chestnut Building
Philadelphia. Pennsylvania 19107
CML (215) 597-1168
FTS 597-1168
Delaware, Maryland, Pennsylvania,
Virginia, West Virginia
District of Columbia
EPA Region VII
726 Minnesota Avenue
Kansas City, Kansas 66101
CML (913) 236-2823
FTS 757-2823
Iowa, Kansas, Missouri, Nebraska
EPA Headquarters
401 M Street, S.W.
Washington, D.C. 20460
CML (202) 382-5908
FTS 382-5908
EPA Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
CML (404) 347-3776
FTS 257-3776
Alabama, Florida, Georgia, North
Carolina, South Carolina, Kentucky,
Mississippi, Tennessee
EPA Region VIII
One Denver Place
999 18th Street
Denver, Colorado 80202-2413
CML (303) 293-1644
FTS 564-1644
Colorado, Montana, North Dakota
South Dakota, Utah, Wyoming
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EPA/DoD Liaison Officer
401 M Street, S.W.
Washington. D.C. 20460
CML (202) 475-8799
FTS 475-8799
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CHAPTER II
SUMMARY OF RELEVANT
ENVIRONMENTAL STATUTES
AND
EXECUTIVE ORDERS
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II. SUMMARY OF RELEVANT ENVIRONMENTAL
STATUTES AND EXECUTIVE ORDERS
This Chapter identifies the Federal environmental statutes which are applicable to
Federal facilities and focuses on those provisions which specifically address Federal
facilities, including all appropriate waivers of sovereign immunity. In addition, it outlines
the key Executive Orders (E.G.) which apportion responsibility for Federal agency
compliance with environmental statutes.
With the exception of limited Presidential exemptions, Federal agencies generally
must comply with all provisions of Federal environmental statutes and regulations as well
as all applicable State and local requirements.1 In addition, Presidential Executive Orders
stress the mandate for Federal facilities to fully comply with environmental requirements
and establish procedures for ensuring that this is accomplished. Executive Order 12088
states that all Executive Branch agencies are "responsible for compliance with applicable
pollution control standards" which are defined in the Executive Order as "the same
substantive, procedural and other requirements that would apply to a private person."
A. FEDERAL FACILITY COMPLIANCE WITH STATE AND LOCAL
POLLUTION CONTROL STATUTES
Most of the Federal environmental statutes require that, in most circumstances
facilities of the United States Government must comply not only with all Federal laws and
regulations but also with all State and local pollution control requirements which are
pursuant to Federal environmental laws.1 It is imperative that all Federal agencies
recognize their obligation to comply with State and local environmental requirements and
incorporate such requirements into their environmental compliance and auditing programs.
In many cases, State and local regulations are more stringent than EPA requirements and
Federal facilities within those jurisdictions are generally required to comply with them. The
citation for each environmental statute requiring compliance with State and local standards
is included in section B of this Chapter.
E.G. 12088, described in Section C of this Chapter, also requires that Federal
agencies cooperate and consult with with State and local agencies in the prevention,
control, and abatement of environmental pollution. This is particularly important since
EPA has delegated or approved pollution control program administration authority in
qualified States for many programs. States with delegated or authorized programs have the
primary responsibility for ensuring Federal facility compliance and enforcement of Federal
environmental requirements as well as any additional applicable State requirements.
B. FEDERAL ENVIRONMENTAL STATUTES
Summaries of each of the major Federal environmental statutes are provided in
Appendix A. This section describes any provision of these statutes which are specific to
Federal agencies, and highlights State and local requirements and any special exemption
provisions as set forth in the:
1 Under most of the Statutes, the President may exempt a Federal facility from Federal, State and local
environmental requirements if the President finds it is in the "interest of national security, or in the
paramount interest of the United States."
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• dean Air Act (CAA)
• Clean Water Act (CWA)
• Resource Conservation and Recovery Act (RCRA)
• Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
• Toxic Substances Control Act (TSCA)
• Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), as amended by the Superfund Amendments and Reauthorization Act
(SARA)
• Safe Drinking Water Act (SDWA)
The general applicability of these statutes to Federal agencies is reaffirmed by the
Executive Orders that are described in Section C. It should be pointed out that while most
of the environmental statutes contain limited exemption provisions, as described below,
such exemptions have been rarely, if ever, granted by the President. As such, their
inclusion here is not intended to imply that Federal facilities should seek these exemptions
on a routine basis.
B.1 Clean Air Act
[Now codified at 42 USC 7401-7642] (First enacted July 14, 1955 at 69 Stat. 485;
First major amendments were PL 91-604, December 31,1970; Completely revised
August 7, 1977; Amended: 1978, 1980, 1981, 1983).
Section 118 of the CAA (42 USC 7418) governs "Control of Pollution from
Federal Facilities," and contains as broad a waiver of sovereign immunity, both
substantively and procedurally, as found in any of the environmental statutes. Specifically,
"[Federal facilities] shall be subject to, and comply with, all Federal, State, interstate, and
local requirements respecting ....air pollution in the same manner, and to the same
extent as any nongovernmental entity."
Section 118(b) provides for two exemptions for Federal facilities: The president
may (i) exempt a Federal facility from compliance, and (2) issue regulations exempting
Armed Forces weaponry, equipment, etc., "uniquely military in nature." Both exemptions
are subject to the President's determination that such action is "in the paramount interest of
the United States to do so." The first exemption is for one year, renewable annually; the
second exemption is subject to Presidential reconsideration at three-year intervals.
Three other sections of the CAA are applicable to Federal facilities: (1) Section 176
(c) prohibits Federal agencies from engaging in, supporting, providing financial assistance
for, licensing, permitting, or approving any activity which does not conform to a State
Implementation Plan (SIP); (2) Section 304(a) allows for citizen suits against Federal
facilities (and others); and (3) Section 306 prohibits Federal agencies from contracting with
anyone convicted of violating the CAA in certain situations.
B.2 Clean Water Act
[Enacted October 18, 1972 as PL 92-500, a comprehensive revision of the Federal
Water Pollution Control Act; Now codified at 33 USC 1251-1376] (Amended every
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year between 1973 and 1983; most recently amended February 4, 1987 by the
Water Quality Control Act of 1987.)
With language almost identical to the Clean Air Act, Section 313(a) of the CWA
also subjects Federal agencies to Federal, State and local water pollution controls both
substantively and procedurally. Section 313(a) limits Federal facility liability to "civil
penalties arising under Federal law or imposed by a State or local court to enforce an order
or the process of such court." Like the Clean Air Act, the CWA also provides for
Presidential exemptions for executive branch agencies.
The CWA also provides for citizen suits against Federal facilities for failing to
obtain the necessary permits, violations of the terms of a permit, or violation of effluent
standards or limitations. [Sections SOS a (1) and (f)]
The CWA makes it illegal for any person (including Federal facilities) to discharge
pollutants from a point source into waters of the United States without a permit. [Section
301] Section 402 provides for the issuance of such permits [which may be issued by States
-- See, Section 402 (a) (5)] under the National Pollutant Discharge Elimination System
(NPDES), and Section 404 provides for the issuance of permits for discharges of dredged
or fill material. (Note: Certain Federal projects specifically authorized by Congress do not
require Section 404 permits.)
The 1987 amendments to the CWA ("The Water Quality Act of 1987") changed the
responsibilities for Federal agencies, by requiring consistency of State identified Federal
assistance programs and development projects with State nonpoint source (NPS) water
pollution management programs:
Subsection 319(b) (2) (F) requires that each State identify, as a part of its NPS
Management Program, those Federal financial assistance programs and
development projects for which the State will review individual assistance
applications or development projects [under E.O. 12372 procedures] for "their
effect on water quality" and consistency with the State's NPS management
program. Such State review may include any Federal assistance programs and
development projects "...which may have an effect on the purposes and objectives
of the State's nonpoint source pollution management program." (emphasis added)
For the purposes of nomination of "Federal Development Projects" for State
consistency review, the term shall include the land management activities (including the
activities of Federal agency tenants, leasees or contractors) on/at Federal installations,
facilities and lands.
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B.3 Resource Conservation and Recovery Act
[PL 94-580,42 USC 6901] (Enacted October 21,1976; Amended: 1978, 1980,
1984).
The requirements of RCRA with respect to Federal facilities subject them to
Federal, State and local requirements just as any nongovernmental entity.
• RCRA Section 6001, Application of Federal, State, and Local Law to Federal
facilities, states that all branches of the Federal government, having jurisdiction
over any solid waste management facility or disposal site, shall comply with
Federal, State and local solid waste or hazardous waste disposal requirements. The
President may exempt any solid waste management facility of any department if it
is "in the paramount interest" of the United States. An exemption may be granted
for one year.
There are several other sections of RCRA that have specific application to Federal
facilities. These include:
• Section 3004(u), Continuing Releases at Permitted Facilities, Section 3004(v),
Corrective Action beyond Facility Boundary, states that all treatment, storage and
disposal facilities must satisfy new requirements. These requirements involve:
a) identifying all solid waste management units at the facility; b) identifying releases
of hazardous wastes or constituents that have occurred from those units; and c)
performing corrective action for those releases. The provisions apply to all
regulated facilities, inactive and closed as well as operating units. All Federal
facilities are subject to corrective action requirements to the same extent as any
facility owned or operated by private parties.
The statute requires Federal agencies to operate under the same property-wide
definition of "facility": the entire site under control of the owner or operator
involved in hazardous waste management. In 1986, EPA interpreted ownership to
refer not to the United States as a whole but rather to individual Federal
departments, agencies, and instrumentalities. (51 Federal Register 7722 (1986)).
At the same time EPA issued a notice of intent to propose rules indicating its intent
to address three outstanding Federal facilities issues through rulemaking:
recognition of specific subdivisions within a Federal agency, where appropriate,
definition of "principle ownership" of property, and establishment of national
priorities for cleanup (51 Federal Register 7723-24 (1986)).
• Section 3007(c), Inspections, states that the Administrator will annually inspect all
Federal agency hazardous waste treatment, storage, and disposal facilities.
Additional State inspections of such facilities may also occur.
• Section 3016, Inventory of Federal Agency Hazardous Waste Facilities, provides
that each Federal agency must submit to EPA an inventory of the sites that it owns
or operates or previously owned or operated where hazardous waste is or was
stored, treated or disposed at any time. The inventory should include the following
information:
- Location of the site
- Amount and toxicity of the waste
- Extent of environmental contamination
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- Current status of the site
- List of disposal sites at the facility and monitoring reports
- Response actions
- Identification of waste treated, stored, or disposed
- Name and address of the responsible Federal agency for each site.
If a facility does not provide adequate information, the Administrator shall notify
the chief official of that agency. If after ninety days an inventory has not been
developed, the Administrator shall carry out the inventory. EPA guidance for
developing this inventory is issued every two years.
• Section 6002, Federal Procurement, states that each procuring agency must select
those items made of the highest percentage of recovered materials practicable unless
such items are unreasonable, fail to meet performance standards, or are only
available at an unreasonable price.
• Section 6003, Cooperation with Environmental Protection Agency, states that all
Federal agencies must make available all information required by the Administrator
concerning past or present waste management practices and past or presently
owned, leased or operated solid or hazardous waste facilities.
• Section 6004, Applicability of Solid Waste Disposal Guidances to Executive
Agencies, states that Executive Agencies must comply with Solid Waste
Management Regulations where the Agency:
- Has jurisdiction over real property or the operation and management of a
facility that is involved in solid waste management;
- Generates solid waste and which, if conducted by a person other than the
Agency, would require a permit or license to dispose of the waste.
• Section 9007, Federal Facilities, states that Federal facilities' underground storage
tanks containing regulated substances or petroleum must comply with all Federal,
State and local requirements. (Note there are also requirements for hazardous waste
storage tanks regulated under Subtitle C of RCRA.) The President may exempt a
Federal agency from compliance if it is determined to be "in the paramount
interest of the United States". The exemption is granted for one year and may only
be renewed at one-year intervals.
B.4 Federal Insecticide, Fungicide, and Rodentlcide Act
[PL 92-516,7 USC 136] (Enacted October 21,1972; Amended: 1975,1978,1980
(reauthorization only))
In reference to Federal facilities, all Federal government agencies are required to
meet the requirements specified in FEFRA. Section 18, Exemption of Federal Agencies,
states that the Administrator may exempt any Federal or State agency from any provision of
FIFRA if EPA determines that existing emergency conditions warrant such an exemption.
In addition, under Section 4, a Federal agency, with EPA approval, may establish its own
certification program for applicators or restricted use pesticides to enable Federal employees
to apply restricted use pesticides.
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B.5 Toxic Substances Control Act
[PL 94-469, 15 USC 2601] (Enacted September 28, 1976; Amended: 1981
(reauthorization only))
This statute specifies that all agencies of the Federal government must fully comply
with its requirements. Section 22, National Defense Waiver, however, states that EPA,
upon request of the President, may grant a waiver to a facility if it is in the interest of
national defense.
Title II: The Asbestos Hazard Emergency Responses Act (AHERA, PL 99-519)
was enacted into law as an amendment to TSCA on October 22, 1986. The law required
EPA to develop regulations which provide a comprehensive framework for addressing
asbestos problems in public and private elementary and secondary schools. On October
30,1987, EPA published the Asbestos-Containing Materials in Schools Rule [40 CFR Part
763 Subpart E]. This New Rule requires all public and private elementary and secondary
schools to inspect for friable and non-friable asbestos, develop asbestos management plans
that address asbestos hazards in school buildings, and implement response actions in a
timely fashion. References to the New Rule are provided throughout this Guide in brackets
(e.g., [Section 763.85] and always refer to a section of Title 40 of the Code of Federal
Regulations (40 CFR)).
AHERA also contains a separate Section 203 (e): Treatment of Department of
Defense Schools. In addition, AHERA Section 213 required activities to conduct a study
to find out the extent of danger to human health posed by asbestos in public buildings and
the means to respond to any such danger. This study was completed in a Report to
Congress in February, 1988.
B. 6 Comprehensive Environmental Response, Compensation, and
Liability Act [PL 96-510, 42 USC 9601-9657] (Enacted Dec. 11 1980;
Amended 1982, and most recently by the "Superfund Amendments and
Reauthorization Act of 1986" (SARA) [PL 99-499])2
Former Section 107 (g) [42 USC 9607(g)] of CERCLA relating to Federal agency
compliance was replaced by Section 120 of SARA ("Federal Facilities"). This section
expands upon the sovereign immunity waiver formerly contained in CERCLA Section
107(0 and provides for Federal facility compliance, both substantively and procedurally, to
the same extent as any nongovernment entity, including liability under Section 107 of
CERCLA. SARA section 120 applies to all Federal facility response actions, including
sites not listed on the National Priorities List (NPL). In addition to the Federal facility
provisions in Section 120, SARA adds a citizen suit provision to CERCLA. (Section 310)
SARA Section 120 specifically addresses Federal facility hazardous waste cleanup
actions by requiring Federal agency compliance with site assessments, hazard ranking and
evaluation procedures for listing on the NPL. Federal facilities must comply with State
cleanup standards that apply to removal and remedial actions, unless the State standards are
more stringent for a Federal installation than for a non-Federal facility. Section 120 also
requires Federal agencies to enter into Interagency Agreements (LAG) with EPA for the
prompt completion of all necessary remedial actions.
2 Enforcement and remedial response procedures under CERCLA/SARA are not addressed by this
document. References to CERCLA/SARA have been included for informational purposes only.
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In addition to the new requirements of Section 120, SARA Section 211 codified
much of the existing DOD Installation Restoration Program as the "Defense Environmental
Restoration Program" (DERP) under 10 U.S.C. 2701.
SARA Section 111 (e) (3) prohibits use of the Trust Fund at Federal facilities for
remedial (i.e., cleanup) actions except for the provision of alternative water supplies in
certain cases involving groundwater contamination. Other allowable uses of the fund at
Federal facilities include costs of assessing injury to and restoration of any natural
resources injured, certain costs associated with enforcement and abatement actions,
epidemiologic studies, providing equipment needed to supplement services available from
non-Federal entities, and costs to protect the health and safety of employees involved in
response to hazardous substance releases, among others. [Section 111 (c)] See also,
Executive Order 12580 at C3, below.
SARA Section 11 l(d) also amends Section 11 l(c) of CERCLA to use the fund for
certain costs incurred by ATSDR (Agency for Toxic Substances and Disease Registry), and
also includes evaluation costs for preliminary assessment petitions, certain costs to oversee
RI/FS conducted by PRPs, and costs of Federal and State oversight of remedial actions
resulting from consent orders or other settlement agreements, amongst others.
SARA Title III: The Emergency Planning and Community Right-to-Know Act of
1986 establishes requirements for Federal, State and local governments and industry
regarding emergency planning and reporting on hazardous and toxic chemicals. It is
intended to encourage and support emergency planning efforts at the State and local level
and provide community residents and local governments with information concerning
potential chemical hazards in their communities. Federal agencies are not legally obligated
to comply with the requirements of Title ffl, as Federal facilities are not included in the Tide
HI definition of "person" in Section 329(7). EPA is encouraging affected Federal facilities
to comply with the applicablfe provisions of Title in to the extent practicable. In addition,
contractor operators of Govemment-Owned/Contractor-Operated (GOCO) facilities are
subject to Title III to the same extent as any other operator and, therefore, are statutorily
required to comply with the full range of requirements under the Emergency Planning and
Community Right-to-Know Act
B.7 Safe Drinking Water Act
[PL 93-523,42 USC 300f, et seq.] (Enacted December 16,1974; Amended 1976,
1977,1980 and most recendy by PL 99-339, "The Safe Drinking Water Act
Amendments of 1986," enacted June 19,1986)
The SDWA contains as broad a waiver of sovereign immunity as the Clean Air Act.
Section 14479 (a) subjects all Federal agencies (1) having jurisdiction over any federally
owned or maintained public water system or (2) engaged in any activity resulting, or which
may result in, underground injection which endangers drinking water, to all Federal, State
and local requirements "in the same manner, and to the same extent, as any
nongovernmental entity." Federal facility compliance can be waived upon a request by the
Secretary of Defense and a Presidential determination that waiver is necessary in the interest
of national security. The SDWA also provides for citizen suits against Federal facilities
(and others) for noncompliance. [Section 1449]
One of the major changes brought to the SDWA by the 1986 Amendments is die
Section 1428 requirement for States to develop programs to protect wellhead areas.
Section 1428(h) requires all Federal agencies having jurisdiction over any potential source
of contaminants identified by a State wellhead protection program to be subject to and
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comply with all requirements of the State program, "as any other person, including
payment of reasonable charges and fees." Presidential waivers are again provided for in
the paramount interest of the United States.
C. EXECUTIVE ORDERS
This section discusses the Executive Orders which provide the framework for
Federal compliance with environmental statutes -- Executive Orders 12088, 12146 and
12580. Key E.G. provisions for implementing EPA's Federal facilities strategy are
highlighted below and provided in Appendix B.
C.1 Executive Order 12088 - Federal Compliance With Pollution
Control Standards
E.G. 12088 established the Executive Branch process for ensuring Federal agency
compliance with Federal, State, and local pollution control requirements on October 13,
1978. This Order clarifies that each Federal agency must ensure the compliance of all
facilities under their jurisdiction and fully cooperate with EPA, State, interstate and local
agencies to prevent, control and abate environmental pollution. The E.O. outlines an
administrative process for resolution of compliance problems requiring full coordination
between Federal agencies, EPA, and the Office of Management and Budget (OMB) when
the EPA Administrator cannot resolve a dispute. This E.O. states that these administrative
dispute resolution procedures are in addition to, and not in lieu of, other administrative and
enforcement procedures designed to achieve expeditious compliance. Key provisions of
E.O. 12088 include Federal agency responsibilities for
• Cooperating and consulting with EPA, States and local agencies in meeting its
pollution control responsibilities;
• Submitting pollution control plans to OMB via EPA;
• Requesting adequate funding for pollution controls; and
• Developing solutions to environmental problems.
In addition, the provisions of the E.O. require EPA to:
• Provide technical advice and assistance to Federal agencies to ensure cost-effective
and timely compliance with pollution control requirements;
• Monitor Federal facility compliance with applicable standards; and
• Review and approve compliance plans and schedules submitted from Federal
agencies violating environmental standards, when EPA has issued a notice of
violation or notice of noncompliance.
E.O. 12088 also establishes that the EPA Administrator may refer Federal agency
disputes that involve funding issues to OMB as described in Chapter VI.B.l.e of this
strategy. In addition, this E.O. authorizes EPA to establish guidelines for Federal agency
submission of annual Pollution Abatement Plans and review procedures to determine
adequacy of pollution abatement funding. This process is described in detail in Chapter V.E
of this strategy.
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C.2 Executive Order 12146 - Management of Federal Legal
Resources
Among other things E.O. 12146, signed on July 18, 1979, establishes the Federal
Legal Council which consists of the Attorney General and representatives of fifteen Federal
agencies. The Council is responsible for resolving problems that are beyond the capacity or
authority of individual agencies. The Council is also responsible for resolving interagency
disputes, including those concerning jurisdiction of programs and legal disputes between
head agency officials. Under this executive order, legal disputes between Federal agencies
are to be referred to the Attorney General for resolution.
C.3 Executive Order 12580 - Superfund Implementation3
E.G. 12580 (January 23, 1987 - revoking E.O. 12316 and amending E.G. 12088)
addresses delegation of duties and powers assigned to the President in CERCLA as
amended by SARA. It requires the National Contingency Plan (NCP) to provide for
National and Regional "Response Teams" (NRTs and RRTs) composed of representatives
from various Federal agencies to plan and coordinate preparedness and response actions.
Normally chaired by EPA, agencies represented on the Response Teams include virtually
all the Cabinet Offices as well as the EPA, Federal Emergency Management Agency
(FEMA), U.S. Coast Guard, and the Nuclear Regulatory Commission (NRC). The RRTs
may also include representatives from State and local governments and Indian tribal
governments.
Among other things, the Order also delegates to EPA and the agency and
department heads functions of the President as to response and certain related actions
regarding releases or threatened releases within their various jurisdictions. Similar
functions of the President related to remedial actions for releases or threatened releases
which arc not on the NPL are also delegated to agency/department heads.
Section 10 of Executive Order 12580, entitled "Federal Facilities," provides for the
use of Executive Order 12088 dispute resolution procedures or other mutually acceptable
procedures, when necessary, prior to the selection of a remedial action by the EPA
Administrator. This section also states that "the Director of the Office of Management and
Budget shall facilitate resolution of any issues."
Enforcement and remedial response procedures under CERCLA/SARA are not addressed by this
document. References to CERCLA/SARA have been included for informational purposes only.
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CHAPTER III
IDENTIFICATION
OF THE
REGULATED COMMUNITY
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III. IDENTIFICATION OF THE
REGULATED COMMUNITY
The purpose of this Chapter is to clarify the definition of a "Federal facility,"
distinguish between the different types of Federal facilities subject to environmental
requirements, and discuss the sources of information for identifying the universe of Federal
facilities that must comply with environmental laws and regulations.
Establishing a more definitive "inventory" of Federal facilities is a necessary
starting point for implementing this Strategy. It will enable EPA to effectively establish
priorities and select targets for compliance monitoring and assistance activities within the
Federal facilities universe. EPA will be better able to hold Federal agencies accountable for
environmental compliance and also more accurately portray their compliance status. By
focusing more on the subset of Federal facilities which are of environmental concern, EPA
will be able not only to better regulate Federal facilities but also to provide technical
assistance to those Federal facilities which have the greatest need.
A. DEFINITION OF A FEDERAL FACILITY
The Office of Management and Budget Circular No. A-106, dated December 31,
1974 defines a Federal facility as: "buildings, installations, structures, land, public works,
equipment, aircraft, vessels, and other vehicles and property, owned by or constructed or
manufactured and so leased to, the Federal government." This definition should be read in
conjunction with any definitions of "facility" contained in specific environmental statutes.
The Federal government owns some 387,000 buildings located within 27,000 installations
on 729 million acres of land. Of these, approximately 5,000 Federal facilities have either
requested environmental pollution abatement projects through the A-106 budget review
process or are permit holders in one or more media.
This strategy addresses the subset of Federal facilities which have potential for
environmental impact. This would include the 5,000 Federal facilities addressed through
either the A-106 or permit processes, as well as other facilities and public lands of
environmental concern. The total universe is likely to be more than 5,000 but much less
than 387,000. See Exhibit III-l for a conceptual diagram which depicts the potential
Federal facility universe. This universe includes all Government-owned/ Government-
Operated facilities (GOGO's) as well as other types of facilities which have been classified
as Federal facilities for information system tracking purposes (see Exhibit ni-1). As pan of
this strategy EPA will be undertaking further efforts to better identify and track the universe
of Federal facilities.
B. STRATEGY FOR IDENTIFYING AND TRACKING THE
UNIVERSE OF FEDERAL FACILITIES
A key activity critical to implementing this Strategy is the task of identifying and
tracking the universe of Federal facilities. EPA will attempt to make better use of existing
information and also initiate a number of projects aimed at upgrading data on Federal
facilities in order to more accurately depict their compliance status. The purpose of this
section is to discuss EPA's current approach as well as needed improvements for
accomplishing this task. More specifically, this section:
• Identifies the types of Federal facilities and Federal lands that comprise the
regulated community of Federal facilities;
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• Describes available sources of information and program data systems utilized by
EPA to identify and track compliance at Federal facilities; and
• Outlines key strategy initiatives that EPA will undertake to improve the quantity and
quality of information on the Federal facilities universe.
B.1 Identifying the Types of Federal Facilities in the Regulated
Community
Identifying the Federal facility universe for purposes of reporting on and promoting
high levels of Federal facility compliance is not necessarily a simple matter as Federal
agencies frequently have complex relationships with private parties. There are numerous
Federal facilities and public lands which have some level of private party involvement in
operating the facility, leasing a facility or lands for private uses or for other purposes.
Exhibit III-2 provides definitions of the various types of facilities and Federal leased lands
which make up the regulated community of Federal facilities and identifies whether they are
tracked as Federal facilities or private parties in Agency information systems. Note that this
exhibit does not, however, indicate the party against which EPA will direct its enforcement
response to a violation. In a number of instances non-federal parties will be the focus for
enforcement as described in Chapter VI. B.2.b.
For tracking purposes, most types of Federal facilities and lands on this list are
identified in Agency information systems as Federal facilities. The primary exception to
this are Contractor Owned/Contractor Operated (COCO's and COCO(E)) facilities which
are tracked as private parties. Additionally, certain agency information systems indicate
when a Federal facility is government-owned but contractor-operated (i.e., a "COCO"
facility). Chapter VI, Section B.I of this document explains against which party -- i.e.,
Federal or private -- EPA generally will direct its initial enforcement response when
violations are identified at Federal facilities where there is some private party involvement
In addition, all Federal facilities are assigned an identification number by the
General Services Administration. EPA uses these Federal facilities identification numbers
for tracking purposes in its various media program information systems. Exhibit III-3
contains a detailed explanation of how these identification numbers are derived for
individual Federal facilities.
It should be pointed out here that American Indian lands (i.e., reservations) do not
fall within EPA's definition of "Federal facilities" and this compliance strategy does not
apply to American Indian lands. The EPA approach to administering environmental
programs on Indian reservations is contained in the EPA Indian Policy issued by the
Administrator in November, 1984. The Indian policy outlines some basic principles for
cooperating with Tribal Governments to help achieve and maintain environmental
compliance and for taking appropriate action when noncompliance problems are identified.
In addition, EPA media program offices are developing regulations and policies to define
how EPA's authorities will be implemented on Indian lands.
B.2 Improved Use of Available Information and Existing Data
Systems
Most of EPA's media programs identify regulated facilities as either "major"
sources or "minor" sources depending on a variety of factors such as facility size, annual
emissions, toxicity of effluents, sensitivity of the receiving environment, etc. Certain
programs also have defined "significant minor" facilities. Being classified as either a major
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or minor facility can directly affect the frequency of inspections, compliance tracking,
enforcement actions and other EPA activities and policies at Federal facilities. A listing of
EPA's media program definitions for major vs. minor facilities is included in Appendix C.
EPA currently identifies and tracks compliance of all major and selected minor
Federal facilities. To date, this has been accomplished primarily by the individual media
program information systems. Information in these systems for Federal facilities is
consistent with the tracking done for other types of regulated entities. In order to determine
compliance status for Federal facilities, this information must be extracted individually from
each of the media program systems and consolidated by the Office of Federal Activities
(OFA) into a single list. The limitation of such a list is that it involves only media program
majors and possibly a few minor Federal facilities. As pan of this strategy, OFA and the
Regional Federal Facilities Coordinators will be working with the program offices to
improve the quality of information and tracking of Federal facilities' inspections,
compliance status and enforcement activity.
EPA will utilize all available sources of information to better identify and track the
compliance status of Federal facilities that are subject to environmental requirements,
including:
• Media program information systems that track compliance data, inspection
activities, and enforcement actions at sites or sources identified as the regulated
community. These systems generally track only majors, although some systems
track a limited number of minors which may include some Federal facilities. GSA
assigns identification numbers to all Federal facilities and installations except those
facilities on public lands. EPA and State media programs are required to use this
identification number for Federal facilities in their information systems. Exhibit ni-
4 describes the information systems currently operational for each program and the
data available on Federal facilities.
• A-106 submissions that are provided to EPA by all Federal agencies with funding
requests for environmental pollution control projects at individual Federal facilities.
This is a useful source for cross-checking with program source lists and other
sources of information on Federal facilities since a specific A-106 request for a
pollution abatement project is an indication that a facility has operations of potential
environmental significance and impact to suggest the need to include them in the list
of Federal facilities to be tracked. Chapter V provides detailed information on the
A-106 process.
• Strategic Planning and Management System (SPMS) which provides a framework
for EPA to set goals and priorities, plan EPA and State actions, manage and track
performance and compliance status, and identify areas for in-depth evaluation.
• Facility Index System (FINDS) which consists of an inventory of facilities,
including Federal facilities that are subject to environmental regulations, is managed
by EPA's Office of Information and Resources Management (OIRM). FINDS data
includes: the EPA identification number, name, address, type of facility and source
records that denote which EPA program system maintains information about the
facility. The Regions are responsible for maintaining and inputting the data element
for the type of facility (e.g., GOGO, GOCO, etc.). This system is a useful tool for
cross-checking information, seeing where overlap exists among programs, and
identifying Federal facilities which may have multi-media concerns.
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• Federal Facilities Information System (FFIS) which is the master inventory of all
ongoing A-106 submissions along with selective compliance data obtained from the
media program systems and the Federal Facilities Coordinators. FFIS will contain
data on Federal facility pollution abatement projects, inspection information,
enforcement actions, and yearly budget or funding totals for abatement projects.
This system's capability to track compliance information beyond A-106
submissions is limited. It is anticipated, however, that the system will be very
useful for this purpose in the future.
• Other Information Sources - Information from State program data bases and
inspection reports are useful inventory sources, especially for minor facilities.
Regional and Headquarters permit and inspection files are a source of information
on Federal facilities and should be utilized to the extent possible to identify the
universe of Federal facilities and enable better tracking of their compliance.
B.3 Special Initiatives
As part of this Strategy, EPA will be undertaking a number of selected initiatives to
improve the quality and quantity of the information it has on the Federal facility universe
and to develop a better picture of the compliance status of Federal facilities. Further
guidance on these initiatives will be issued by OFA in cooperation with affected program
offices. Examples of such initiatives include:
• Federal Agency Reclassification Review - OFA will provide other Federal agencies
with media program definitions of major and minor facilities to give them an
opportunity to identify facilities which may need to be reclassified. OFA and the
media programs will use this information to assist in verifying and updating EPA's
classification of facilities.
• Review of Major/Minor Definitions - OFA will be working with selected program
offices in reviewing certain media program definitions of majors to ensure that
unique classes or types of Federal facilities are covered by their majors definition.
• Regional Lists of Important Federal Facility Minors • Regional Federal Facilities
Coordinators, in consultation with media programs, will develop a list for each
media program of those minor Federal facilities which do not meet the media
program definition of a major source but which, due to certain complexities,
locational factors, facility types, compliance patterns or other unique features, are
considered potentially environmentally significant in a media program area. These
lists should be limited to a manageable number of the minor Federal facilities in
each media program. The Federal Facilities Coordinator will be responsible for
tracking the compliance status of the facilities on this list through all available means
including informal communications with delegated States or other arrangements
through the State/EPA enforcement agreements process or annual workplans.
Regional Lists of Environmentally Significant Federal Facilities - In FY 1987,
Regional Federal Facilities Coordinators, in consultation with media program
offices, developed name lists of those Federal facilities which are potentially the
most environmentally significant when considered on a multi-media basis.
Generally, this list will be limited to a maximum of ten Federal facilities per Region
and will be updated annually. These facilities will be considered as candidates for
multi-media inspections. Multi-media inspections are generally most appropriate
for large facilities with multiple process operations regulated under several
IH-4
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environmental statutes. This list of potential environmentally significant Federal
facilities will be developed by examining the compliance status of each Federal
facility and the extent of program priorities located at each facility. Factors to be
considered should include whether the facility is a significant noncomplier or
significant violator in one or more programs, whether the facility is a repeat
violator, the number of program major sources located at the facility or installation,
the number of "significant minors" located at the facility and other considerations.
The EPA National Enforcement Investigations Center Federal Facilities Ranking
System - This system is appropriate for identifying environmentally significant
Federal facilities. This ranking system uses available information to identify "high
priority" Federal facilities based upon their relative potential for environmental
problems. In FY 1987, Federal Facilities Coordinators began developing Federal
Facility Compliance Management Plans for the top Federal facilities identified in
each Region in cooperation with the media program offices.
Improved Use of the A-106 Process for Addressing Identified Program Priorities -
Each year, EPA will identify a limited number of media program priorities and
request Federal agencies to direct some of their A-106 projects at facilities which
will have to address existing noncompliance problems or future compliance
planning in these areas. New facilities to be tracked may be identified through this
process. This is explained in more detail in Chapter V.
ffl-5
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H U
s -
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Acronym/
Term
EXHIBIT 111-2
IDENTIFICATION OF THE REGULATED COMMUNITY
OF FACILITIES WITH FEDERAL INVOLVEMENT
Definition
Classification for Information
System Tracking Purposes:1
GOGO
GOOD
COCO
COCO(E)
POGO
GOPO
Leasee
Grantee
Government owned/government
operated facility is the traditional
Federal facility where the government
owns and operates all regulated activity.
Government owned/contractor operated
facility is owned by a Federal agency
but all or portions of it are operated by
private contractor(s).
Contractor owned/contractor operated
facility is a non-government owned,
privately operated facility that provides
goods and/or services to a Federal
agency under contract.
Same as COCO, however, contractor
may be furnished government
equipment to manufacture a product or
provide a service.
Privately owned/government operated
is a facility where the government
leases buildings or space for its
operations.
Government owned/privately operated
is a facility where the government has
leased all or part of its facility to a
private operator for their operation and
profit.
Parties granted use of government land
by a rental or real estate agreement or
title transfer with a reversionary clause
(municipal landfills, oil and gas,
mining, grazing, agricultural, industrial
operations, parks and marinas).
Parties having received a grant for
permanent authorization to use
government land or given a right of
way. Grants usually involve a single
payment for the land or transfer of land
use rights.
Federal facility.
Federal facility (or GOCO in
some program information
systems).
Private party.
Private party.
Federal facility where a single
agency occupies all or most
space in a building.
Federal facility.
Federal agency lands.
Private Party.
1 Note that for tracking purposes these classifications may differ on the treatment as described in Chapter
VI, Exhibit VI-3, on enforcement responses.
III-7
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EXHIBIT 111-2
(Continued)
IDENTIFICATION OF THE REGULATED COMMUNITY
OF FACILITIES WITH FEDERAL INVOLVEMENT
Acronym/
Term Definition
Classification for Information
System Tracking Purposes:l
Claimant Parties having properly located,
recorded and maintained mining
claims under the 1872 mining law on
Federal lands for which a patent has not
been issued.
Patent A mining claimant who has met the
Holder statutory requirements of the 1872
Mining Law and has been issued a
permit.
Permittee Parties granted a permit for short-term
use of government land.
Withdrawal Permit granted to a Federal agency or
from Public instrument of the Federal government to
Use use land of another Federal agency for
up to twenty years administratively as
long as intended use does not involve
destruction of the land (i.e., military
uses, dams). Congressionally
mandated withdrawals are generally
permanent changes of administration of
Federal lands to accommodate more
destructive uses of such lands.
Federal agency lands when
available for entry under the
1872 Mining Law.
Private Party (when permit
has been issued).
Federal agency lands.
Federal agency administering
the lands.
Note that for tracking purposes these classifications may differ on the treatment as described in Chapter
VI, Exhibit VI-3, on enforcement responses.
IH-8
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Exhibit IU-3
Federal Facilities Identification Numbers
The Federal Information Processing Standards (FIPS) #104 is the publication
which issues the guidelines to implement the structure of the American National
Standards Institute (ANSI) Codes:
• ANSI Codes - the representation of Names of Countries,
Dependencies, and Areas of Special Sovereignty
The two-character alphabetic FIPS codes are provided for general use and
recommended by the International Organization for Standardization (ISO) for
international interchange:
• ISO Codes - provides for the complete coverage of the land
areas of the world without overlaps or duplication of entity
names approved or accepted by the United States Board on
Geographic Names (US BGN).
This one-digit "variable" position expresses one of two data information sources,
Federal Facility Information System (FFIS) or the Facility Index System (FINDS).
FFIS generates a hyphen for a Federal Facility ID Number (monitors projects in
Pollution Abatement Plans) and FINDS generates a numberic check character.
Agency/Bureau (in DOD, Agency/Major Command) code is a four-digit numeric
character combination which reflects the responsible Federal agency and Bureau of
a facility. The first and second characters of this numeric combination are assigned
by the U.S. Treasury when an agency is e -.ablished. This code also assists the
Office of Management and Budget (OMB) in the identification of each individual
agency for issuance of approved appropriations. The third and fourth characters are
assigned by General Services Administration (GSA), Financial Management
Information Division, after the verification of the establishment of bureau functions.
General Services Administration (GSA) Installation code is a five-digit numeric
combination assigned by GSA, Office of Government-Wide Policy and Oversight
Division, in blocks to the requesting Federal agency. The annual Quarterly Report
of Real Property Owned by or Leased to the United States (GSA Form 1166) is
submitted by each agency (usually through Real Estate and Space Management or
the like) identifying each installation where funds are expended for land, buildings
and other structures and facilities.
ffl-9
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Exhibit 111-3
(continued)
Federal Facilities Identification Numbers'1
6 8
0 0
Hyphen*
forFFIS
Code
Assigned by
National Bureau
of Standards
Numeric**
for FINDS
Code
EPA
Information
Systems
Numeric Agency Bureau/Major
Name Code Command Code
71375
GSA Installed
Number
Assigned by
Treasury and
part of Agency's
appropriation
identification
Assigned by Assigned by GSA,
GSA, Financial Government-Wide
Policy and Oversight
Division
Management
Information
Division
Designated by
Federal Agency
Annual Quarterly
Report of Real
Property Owned
by or Leased to
the United States
(GSA Form 1166)
Prepared in
Agency's Real
Estate and Space
Management,
Facilities and
Support Office
EXAMPLES
* Figure 1 FFIS AL-213724337 = US Army Training and Doctrine
Command for McClellan, AL
** Figure 2 FINDS OR-3891406354 = DOE Bonneville Power
Administration Troutdale
Substation, Troutdale, OR
1 "Federal Facilities Identification Number" is essentially synonymous with these other frequently
used terms: GSA Number, FFIS Number and FINDS Number.
HMO
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EXHIBIT 111-4
PROGRAM INFORMATION SYSTEMS
Media Proeram
Information System
Air/CAA
Water/NPDES
Water/SDWA
Hazardous
Waste/CERCLA
Hazardous
Waste/CERCLA
Compliance Data System (CDS): CDS contains
information on the compliance status and
enforcement activities at all major and many minor
stationary sources of air pollution.
National Emission Data System (NEDS): NEDS
contains data on amounts of emissions of criteria
pollutants by major and minor stationary sources of
air pollution.
Permit Compliance System (PCS): PCS tracks
private parties or Federal facilities which either have
an NPDES permit or have applied for one. It
contains general information on all major and minor
permits and tracks compliance status for all major
and selected minor sources.
The Federal Underground Injection Control
Reporting System (FURS): FURS is an inventory
system used to identify well locations. It identifies
wells by State, type of well, operating status, and
whether they are on Federal or Indian land.
The Federal Reporting Data System (FRDS): FRDS
contains inventory, violation, and enforcement
information for the Public Water System Supervision
(PWSS) program.
Comprehensive Environmental Response,
Compensation, and Liability Information System
(CERCLIS): CERCLIS is an inventory of all
uncontrolled hazardous substance sites in the United
States and its territories which are known to EPA,
including Federal facilities. CERCLIS contains site
identification data, program descriptions, financial
obligations and expenditures, monthly task plans,
and site alias names and locations.
Case Management System (CMS): CMS files
contain general site information and data on
administrative orders, civil actions, settlements, and
planned enforcement activities for CERCLA sites.
Data on Federal facilities are obtained from the
States, Regions, and Headquarters and consolidated
into a separate file.
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PROGRAM
Media Program
Hazardous
Waste/RCRA
Pesticides & Toxic
Sustances/FEFRA &
TSCA
Toxic
Substances/TSCA
General Enforcement
Data/All Programs
State Program
Information Systems
EXHIBIT 111-4
(Continued)
INFORMATION
SYSTEMS
Information System
Hazardous Waste Data Management System System
(HWDMS): HWDMS tracks inspections, violations,
and enforcement actions at Federal facilities.
HWDMS also con tain sdata on waste process design
type and capacity information, and facility level data.
FIFRA and TSCA Tracking System (FFT): FFTS is
a pc-based tracking system which enables user to do
all of the following: record inspections and impart
reviews, manage samples, establish referrals, review
cases, develop enforcement actions and generate
various reports.
The Chemicals in Commerce Information System
(CICIS): CICIS is a computerized data base of
public and confidential information on all available
chemicals in the TSCA chemical inventory. CISIS
identifies the chemical, case number, manufacturer,
volume and confidentiality.
The Docket: The Docket is a computer information
system used by OECM to track civil enforcement
litigation. The information contained in the system
includes case dates, filing dates, violations identified
for each statute, and penalties sought
Many State program data systems contain inventories
of minor facilities.
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CHAPTER IV
COMPLIANCE PROMOTION,
TECHNICAL ASSISTANCE
AND TRAINING
-------
IV. COMPLIANCE PROMOTION,
TECHNICAL ASSISTANCE AND TRAINING
Achieving a complying majority is a fundamental prerequisite for obtaining broad
scale compliance. Compliance promotion activities are designed to reach out and promote
compliance in the first instance before violations can occur. The Federal facilities program
is unique in that the Executive Order 12088 specifically requires EPA to provide "technical
assistance" and advice to other Federal agencies.
A primary purpose of EPA's Federal Facilities Compliance Program is to assist
Federal agencies in demonstrating leadership in environmental control practices through the
maintenance of high levels of compliance with environmental statutes. If adequate attention
and effort is paid to more "up-front" compliance assurance activities by Federal agencies
and preventing violations, this should help to reduce the number of enforcement actions
against Federal facilities for violations that could have been prevented in the first place.
This Chapter highlights the use of preventive approaches through increased
compliance promotion activities, improved technical assistance and training, and more
emphasis on addressing patterns of noncompliance on a Federal agency-specific basis.
A. COMPLIANCE PROMOTION
Compliance promotion entails various techniques that are available to prevent or
anticipate compliance situations, enhance public relations and perceptions of Federal
compliance, and improve working relationships among Federal agencies. The following
mechanisms are among those which can and will be used to promote and help ensure better
"up-front" environmental compliance within the Federal facility community.
A.1 Information Transfer
The first step in fostering improved compliance is assuring that Federal facilities are
aware they are subject to environmental requirements and then explaining what they mean.
Federal facilities must understand what they are expected to do and how their performance
will be evaluated. Where complex regulations are involved, "plain English" translations,
workshops or other educational efforts may be necessary to ensure adequate understanding
and effective implementation by the entire regulated community, including Federal
facilities. The Office of Federal Activities (OFA) and the Regional Federal Facilities
Coordinators will make every reasonable effort to inform affected Federal facilities of new
or revised regulatory or statutory environmental requirements.
The Office of Federal Activities at EPA Headquarters holds meetings of the EPA
Federal Agency Environmental Roundtable each month for top environmental officials of
all Federal agencies headquarters offices. At these monthly meetings, OFA disseminates
up-to-date information on new and upcoming regulations, initiatives, policies, procedures,
guidance, etc. Representatives of EPA program offices participate by briefing the Federal
agencies on key media-specific developments in their respective areas. Information on
various training opportunities and available technical assistance services also is passed on
to "Roundtable" participants. The agency representatives subsequently disseminate this
information to their respective field offices and affected facilities, as appropriate.
Regional Federal Facilities Coordinators also will begin conducting regularly-
scheduled meetings similar to the Headquarters OFA Roundtable meetings. The Federal
Facilities Coordinators will invite key environmental personnel from all Federal facilities
IV-1
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and agencies in their respective Regions to these meetings. Regional program offices
should participate in these meetings to help explain key regulatory requirements to Federal
facilities personnel. In addition, each Region will conduct an annual multi-media technical
workshop for Federal facilities aimed at providing technical assistance in key compliance
areas in each program. These workshops will be coordinated by each Regional Federal
Facilities Coordinator with appropriate participation by each of the Regional media program
offices.
OFA will continue to serve as a clearinghouse/information exchange center for
communicating with the Federal agencies about EPA's programs and should serve as the
conduit for sharing information among the Regions and States on innovative ideas,
programs and strategies that work effectively. A systematic communication system for
exchange of information will be established by OFA to enable this process to function more
efficiently. OFA will establish more formal lines of communication and have key points of
contact in each of the program offices for Federal facilities compliance.
In addition, EPA issues a monthly publication, the EPA Journal, to communicate
key environmental issues to the public. Each issue usually focuses primarily on one overall
topical area (e.g., hazardous waste management) and contains a number of articles written
by both EPA employees and other technical experts in the field. Subscriptions to the EPA
Journal are available to the general public and to Federal agency personnel currently at a
rate of $11.00 per year. Exhibit IV-1 describes the magazine and contains information on
how to obtain subscriptions.
A.2 Identifying Compliance Patterns of Federal Agencies
There are two types of compliance patterns that need to be addressed: (a) current,
and (b) potential compliance pattern problems.
Since many Federal agencies have a nationwide organizational structure and wide
geographic distribution of facilities, EPA has a unique opportunity to work with other
Federal agencies and the States to identify broad patterns of current and potential
compliance problems which are or may become typical among facilities in a given agency.
For example, it may be that due to the nature of its mission a certain agency has many'
laboratories which generate relatively small quantities of hazardous waste and the proper
temporary storage and disposal of this waste has caused some compliance problems. In
such a case, OFA could work with the parent Headquarters office of this Agency to inform
them of the identified problem and encourage them to work with their field offices to
correct these problems on a nationwide basis. Similarly, Regional Federal Facilities
Coordinators should work with each Federal Agencies' next highest level of authority
(e.g., Major Commands in DOD) to have them correct identified generic problems at their
individual facilities. The effective use of environmental auditing, as discussed above, is
one means Federal facilities may utilize to internally identify potential compliance problems
and correct them before they become violations.
(a) Current Patterns:
Current patterns of compliance problems at Federal Agencies can be identified through
several mechanisms:
(1) Available compliance information systems should be used to develop lists of
compliance problems at Federal facilities and analyze emerging patterns by
Federal Agency.
IV-2
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(2) The A-106 Pollution Abatement Plans should be analyzed to identify, through
the types of projects that are being requested, patterns of compliance problems
at a particular Federal agency.
(3) The EPA review of (l)-(2) above should be supplemented by discussions with
the States on patterns of noncompliance by Federal facilities in their States. In
order to more effectively identify these patterns of compliance problems in each
agency, the Regions should hold annual meetings with States in their
respective Regions to discuss patterns of noncompliance among Federal
facilities on an agency-by-agency basis. The meetings may most usefully be
combined with other meetings, such as State reviews of A-106 plans.
The results of these discussions will be reported to OFA by the Regional Federal
Facilities Coordinator. In this way, a comprehensive strategy for correcting these
noncompliance patterns can be developed and implemented. OFA will seek resolution of
national noncompliance patterns from the parent agency Headquarters office. OFA will
hold meetings with the top environmental officials of each Federal agencies' Headquarters
offices to identify these problems and discuss strategies for addressing them. EPA's
National Compliance Program Managers should also participate in this meeting.
(b) Future Patterns:
The A-106 Pollution Abatement Planning Process, outlined further in Chapter V, can
also be used to anticipate future potential compliance pattern problems. As part of the
annual A-106 planning process, Federal agencies will be informed of the EPA priority
areas and requested to direct some of their A-106 projects to these key areas. (See
Chapter V)
A.3 Environmental Auditing
On July 9, 1986, EPA issued a formal Agency-wide "Environmental Auditing
Policy Statement" (FR Vol. 51, No. 131, p. 25004), included here in Appendix D. This
statement specifically encourages Federal facilities to adopt sound environmental
management practices, particularly environmental auditing, to help achieve and maintain
compliance with applicable environmental requirements as well as to help identify and
correct unregulated environmental hazards.
Environmental auditing is a systematic, documented, periodic, and objective review
by regulated entities of their facility operations and practices related to meeting
environmental requirements. Environmental auditing includes a variety of compliance
assessment techniques which go beyond those legally required and are used to identify
actual and potential environmental problems. Effective environmental auditing can lead to
higher levels of overall compliance and reduced risk to human health and environment.
With respect to Federal facilities, the EPA policy states that:
• Where appropriate, EPA will enter into agreements with other Federal agencies to
clarify respective roles, responsibilities, and commitments of each agency in
conducting and responding to Federal facility environmental audits.
• When Federal agencies discover significant violations through an audit, EPA
encourages them to submit the audit findings and a remedial action plan to the EPA
IV-3
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Regional office, even when not specifically required to do so. EPA will review the
audit findings and action plan and either prepare a response approval form as
described in Section VI.B.l.b. or, should the violation require long-term corrective
action, EPA will negotiate a Compliance Agreement as discussed in section
VLB. I.e.
• To the extent feasible, EPA will provide technical assistance to help Federal
agencies design and initiate audit programs.
In 1984, EPA conducted a workshop introducing the concept of environmental
auditing for Federal agencies. In 1988, EPA sponsored a follow-up nationwide
Environmental Auditing Conference for Federal agencies to help further develop and refine
skills in this area. In addition, the Appendix to the EPA policy statement entitled "Elements
of Effective Environmental Auditing Programs" (contained in Appendix D of this Strategy),
describes the general features of effective environmental auditing programs. This
information should be useful to those Federal agencies initiating auditing programs. In FY
1988, EPA also is developing two guidance documents for Federal agencies to assist them
in establishing and implementing environmental auditing programs at their facilities:
• Environmental Auditing Program Design Guidelines for Federal Facilities - This
document presents general guidelines to Federal agencies to assist them in either
establishing a new environmental auditing program or institutionalize existing
auditing activities into a comprehensive ongoing program. It should assist agencies
in determining key program elements such as audit frequency media coverage,
program scope, protocol development and auditor selection.
• Model Environmental Audit Protocol for Federal Facilities - This protocol is a
multi-media guidance document which will provide detailed instructions for
qualified individuals to follow in conducting environmental audits at Federal
facilities. It is more than a standard checklist since the protocol consists of step-by-
step directions to auditors on what records must be reviewed, what physical
features must be inspected, who needs to be interviewed, what questions should be
asked, etc. Separate protocols will be included for each media (e.g., air, water,
hazardous waste). In addition, this model protocol is designed in a manner which
will allow Federal agencies to insert applicable state and local environmental
regulations, as well as any appropriate internal Federal agency policies, regulations
or guidelines.
In FY 1987, EPA issued a report entitled "A Review of Environmental Auditing
Activities in Federal Agencies." This report contains a review of the status of
environmental auditing programs in 36 different Federal departments or agencies. EPA
conducted this review of Federal agency environmental auditing activities in order to
determine: (1) the nature and extent of major findings of EPA's review and analysis of
Federal auditing programs.
Each of the 36 Federal agencies was reviewed for a number of features (e.g.,
scope, frequency, purpose) common to audit programs, and the report describes each
program in standard 1-2 page summaries. Based on this review, each program was placed
in one of the following four categories as defined below:
• Comprehensive program • A formal permanent auditing program has been
established within the agency, including at least an evaluation of facility compliance
with all applicable Federal, State, and local environmental regulations. A
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comprehensive program will generally have many, if not all, of the program
elements identified in EPA's environmental auditing policy statement
• Partial program - A formal permanent auditing program has been established within
the agency, but the scope is focused on one or more specific topical areas or media.
Agencies with partial programs may or may not have specific procedures or plans
for determining which facilities to audit
• Program under development - Developing programs may be characterized by one or
more activities such as: hiring a contractor to develop an auditing protocol; initiation
of the first formal comprehensive audit; audits conducted on a limited number of
topical areas with firm plans for expansion into other areas; or a written
management commitment to start a program.
• No program - A formal permanent auditing program has not presently been
established within the agency and there are not any known plans for developing
such a program. These agencies are generally undertaking other types of
environmental management and monitoring activities but are not actually auditing
their facilities.
As of FY 87 almost half (17) of the 36 agencies reviewed either have established an
auditing program or have initiated the development of a program. Nineteen agencies do not
currently have a program in place. EPA recognizes that the existence of an environmental
auditing program does not necessarily mean a facility is in compliance with all
environmental regulations and the lack of such a program does not mean a facility is out of
compliance. However, EPA believes that environmental auditing can help Federal facilities
assure their own compliance and has recommended that those Federal agencies which do
not have auditing programs consider adopting one in the future. Copies of this report can
be obtained by making a request to: U.S. EPA, Office of Federal Activities (A-104), 401 M
St., S. W., Washington, D. C. 20460.
B. TECHNICAL ASSISTANCE AND TRAINING
Executive Order 12088 requires EPA to provide "technical assistance and advice" to
other Federal agencies "in order to ensure their cost-effective and timely compliance ..."
with environmental laws. It is the primary responsibility of OFA and EPA's Regional
Federal Facility Coordinators to ensure that Federal agencies are afforded such assistance.
The Regional Coordinators themselves, provide general compliance program assistance to
Federal facilities and generally request needed technical assistance from the media program
offices. In some States, technical assistance may also be available to the Federal facility
from the state regulatory agencies.
B.1 Technical Assistance
The technical assistance provided by EPA to Federal facilities may take a variety of
forms. It is often provided through workshops or meetings with Federal Facility personnel
where the technical details of implementing the requirements of a new rule or regulation are
explained. Technical assistance also is provided through guidance documents developed
by the media programs to assist the regulated community. Federal agencies and specific
facilities also may request technical assistance from EPA on specific needs (e.g.,
installation of groundwater monitoring). EPA will provide such technical assistance where
resources allow or on a cost-reimbursement basis from Federal agencies. "Hotlines" to
respond to technical questions from the regulated community have been developed by EPA
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for a number of media programs and are available for use by Federal facilities. (See Section
B.2 below)
Through the Federal agency A-106 pollution abatement planning process, explained
in more detail in Chapter V, proposed projects are evaluated by EPA for adequacy in the
areas of engineering, timing, and cost. This should ensure that projects are technologically
appropriate and adequately funded. EPA reviews of the engineering aspects of individual
A-106 orojects are generally limited to technology assessments to determine whether they
appear o be meeting applicable EPA technical standards and guidelines. Federal Facility
Coordinators, and Regional program staff, in certain cases, also may participate in pre-
planning meetings and design review conferences for major A-106 projects. These reviews
are the primary means by which EPA provides "projects level" technical assistance to
Federal facilities.
Action plans and schedules developed in response to identified violations are also
reviewed by EPA for technical adequacy and timeliness in responding to the noted
violations. In addition to the coordination and communication role which the Federal
Facilities Coordinators play in this process, Regional program offices may also be directly
involved in such reviews due to their technical expertise and experience in media-specific
areas.
It also is important to clarify that EPA generally does not provide any specific
project level technical assistance to Federal facilities in the context of ongoing enforcement
actions. As such, if an EPA program office has determined that a Federal facility is in
violation and has issued an enforcement action to the facility, EPA will not provide direct
technical assistance on correcting the violation in question. To do so could unduly
compromise EPA enforcement prerogatives and responsibilities in its ongoing enforcement
proceedings. However, EPA may provide certain types of assistance if they are agreed to
as part of a signed Compliance Agreement, Memorandum of Understanding, or Consent
Order issued by EPA.
B.2 EPA "Hotline" Assistance
EPA is among the many government and nonprofit agencies currently using 800
numbers to offer a broad range of information and services free of charge to consumers,
including Federal agency personnel. EPA's 800 numbers, operating up to 24 hours a day,
seven days a week, are ready to respond to questions on topics ranging from pesticides use
to asbestos in homes; from hazardous waste disposal to chemical emergency preparedness;
from waste, fraud, and abuse to job vacancies.
Information on an even broader range of environmental topics may be obtained by
calling EPA's commercially accessible information numbers. For the price of a telephone
call, the interested consumer or Federal employee can get a wealth of information on toxic
substance control, air toxics, the status of regional hazardous waste cleanup efforts,
interpretation or clarification of EPA regulations and guidance, as well as many other
concerns.
Appendix E contains a compilation of information on current EPA Hotlines
available for public and Federal agency use. EPA encourages use of these information
services to assist Federal facilities in ensuring their own compliance with all environmental
requirements.
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B.3 Federal Facilities Compliance Program Assistance and
Oversight
Beyond the technical assistance provided by media program staff to Federal
facilities, the Regional Federal Facility Coordinators play a role in providing Federal
facilities with more general compliance program assistance and oversight. Such assistance
usually takes place through Coordinator visits to Federal facilities and focuses on an
evaluation of the facilities overall environmental management systems and capacities. The
Federal Facilities Coordinator, in consultation with Regional media progra.n offices,
generally identifies potential compliance problem areas and makes recommendations on
how a facility can improve its environmental management operations and practices.
Most of the compliance program assistance and oversight provided in the past by
Regional Federal Facilities Coordinators was somewhat ad hoc and informal. However,
Regional Federal Facilities Coordinators are now developing Compliance Management
Plans for the most environmentally significant Federal facilities identified in each Region
based on the factors discussed in Chapter HI of this strategy and additional OFA guidance
on preparing and implementing Compliance Management Plans.
B.4 Training Opportunities for Federal Facilities Compliance
Personnel
As part of this Strategy, EPA will be making a more systematic effort to market
existing training opportunities to Federal agencies and to target those Federal facilities with
identified compliance problems in specific areas. OFA will coordinate an Agency-wide
effort to establish a more formal technical assistance and training program for Federal
facilities compliance. This will consist primarily of formalizing and coordinating into a
complete package much of what is currently taking place on a more informal and ad hoc
basis in Headquarters and the Regions in the areas of training, information exchange and
technical assistance. Increased emphasis will be placed on Regional Federal Facilities
Coordinators and Headquarters OFA to coordinate with program offices to ensure
availability of spaces for Federal facilities environmental personnel in EPA training
courses.
Program offices should provide OFA and the Federal Facilities Coordinators with
any available information on training courses. Headquarters OFA will develop a
consolidated training manual annually for dissemination to all Federal agencies. States are
also encouraged to invite Federal agencies to attend their training courses, when
appropriate. OFA will attempt to target particular agencies for courses in areas where an
agency has had a pattern of compliance problems identified by EPA or States. Federal
Facilities Coordinators should notify Federal facilities in their Region of these courses and
target facilities which have had violations/problems for specified courses, e.g., a Federal
facility with continuing O&M problems at a wastewater treatment plant should be targeted
to attend the Publicly Owned Treatment Works operator training course.
OFA has worked with the Office of Administration and Resources Management in
the development of the EPA Training Institute and with OECM on the design and
implementation of the EPA Inspector training initiative. Federal facilities managers and
environmental personnel will be invited to attend inspector training sessions to upgrade
their compliance management capability.
OFA also will be evaluating the current on-the-job-training program in which
environmental officials rotate through some EPA Headquarters offices to learn about EPA
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programs and establish contacts. Expansion to other Federal agencies will be considered in
an effort to enhance the capability of the Federal agencies to carry out their own
environmental programs. Personnel exchange programs between EPA and other Federal
agencies are also being explored by OF A. Similar opportunities should also be made
available in the Regions.
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EXHIBIT IV-1
The Environment.
From
A to Z
EPA is charged by Congress to protect the nation's land, air and water systems.
Under a mandate of national environmental laws, the agency strives to
formulate and implement actions actions which lead to a compatible balance between
human activities and the ability of natural systems to support and nurture life.
The EPA JOURNAL is published by the U.S. EPA. The JOURNAL hones
in on emerging issues as well as perennial problems that beset the world we
live in. Biotechnology. Wastewater treatment The "greenhouse effect."
Hazardous waste cleanups. Pesticides. The protection of ground water. The EPA
JOURNAL provides an in-depth analysis of all these topics and many more.
The annual rate for subscribers in the U.S. is $11.00. Anyone wishing to
subscribe to the JOURNAL should enclose a check or money order payable to
the Superintendent of Documents. The request should be mailed to:
Superintendent of Documents, GPO, Washington, D.C 20402
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CHAPTER V
COMPLIANCE MONITORING
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V. COMPLIANCE MONITORING
This Chapter identifies the major compliance monitoring tools available for
detecting compliance problems and violations at Federal facilities and explains how they
will be utilized as part of EPA's overall inspection strategy for Federal facilities. These
compliance monitoring tools and activities include source self-monitoring, reporting, and
recordkeeping, EPA and State inspections, and the Federal Agency A-106 process for
submission of pollution abatement plans.
Through effective implementation of this Strategy, EPA plans to strengthen its
compliance monitoring activities at Federal facilities and ensure that EPA or the States'
"presence" is demonstrated at all Federal agencies which have the potential for
environmental impact. Ensuring adequate coverage will require increased and improved
coordination between EPA's Regional Federal FaciBty Coordinators and Regional program
offices and delegated or authorized States.
A. OBJECTIVES OF COMPLIANCE MONITORING ACTIVITIES
The overall goal of EPA's Federal Facilities Compliance Program is to establish a
comprehensive and proactive approach to achieving and maintaining high rates of
compliance at Federal facilities. In order to accomplish this, EPA must meet the objectives
of its compliance monitoring activities at Federal facilities which are to:
• Review the compliance status of Federal facilities to identify potential violations;
• Establish a strong enforcement presence at all Federal agencies having facilities or
lands with the potential for environmental impact;
• Collect evidence necessary to support enforcement
actions for identified violations; and
• Develop an understanding of national compliance patterns within Federal agencies
and the compliance status of the Federal facility subset of the regulated community
in order to:
- Assist in targeting inspection activities;
- Establish compliance/enforcement priorities;
- Evaluate program strategies;
- Communicate information to the public; and
- Prevent recurring violations.
EPA establishes priorities for compliance monitoring activities to achieve these
objectives. In addition to established media program priorities, other factors to be
considered in targeting such activities at Federal facilities may include:
• The significance of violations identified in the past for a particular source, category
of sources or at Federal facilities;
• The extent to which patterns of noncompliance have been identified at certain
Federal facilities or within Federal agencies; and
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• The extent of source review needed to establish a strong enforcement presence
among all Federal agencies.
B. SOURCE SELF-MONITORING, REPORTING AND
RECORDKEEPING REQUIREMENTS
Federal facilities are required to follow all of the self-monitoring and reporting
requirements contained in EPA statutory and regulatory requirements and media program
guidance. EPA and States utilize source self-monitoring and reporting data in targeting
inspections and screening for violations and other compliance monitoring activities.
Most of the major pollution control statutes provide EPA with broad authority to
obtain information from regulated entities, including Federal facilities. In some cases, the
statutes themselves require regulated entities to collect specified information and report to
EPA. These statutes also authorize EPA to require facilities to compile, store and report
data to verify compliance. These provisions call for a variety of different reporting,
recordkeeping and self-monitoring schemes. The statutes also authorize EPA and delegated
State and local authorities to enter Federal facilities to collect information and review
records.
The resulting legal requirements can be placed into seven broad categories:
(1) Periodic performance reporting (e.g., National Pollution Discharge Elimination
System Discharge Monitoring Reports, Excess Emission Reports);
(2) Recordkeeping (e.g., Clean Air Act (CAA) Sections 114(a)(l) and 31 l(a));
(3) Notification and reports of problems (upsets, bypasses, spills) (e.g.,
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) Section 103(a) and Section 8(e) of Toxic Substances Control Act);
(4) Reports of information needed for non-enforcement regulatory matters in response
to specific orders from EPA (e.g., CAA Section 114 order to obtain
information to set New Source Performance Standards);
(5) Reports of compliance or other pollution data in response to specific orders (e.g.,
Resource Conservation and Recovery Act (RCRA) Section 3013);
(6) Requirements that EPA (and State) inspectors be allowed to examine facilities,
records, etc. and to sample wastes; and
(7) Non-emergency notification requirements (e.g., RCRA Sections 3005, 3010, and
3016).
(Appendix F contains a summary of the reporting, recordkeeping and self-
monitoring requirements in each of these categories under the CAA, the Clean Water Act,
CERCLA, RCRA, and TSCA).
The above list demonstrates EPA's (and delegated or authorized States') broad
authorities to require reporting and recordkeeping. It also emphasizes the need for Federal
facilities to keep track of their own compliance status using any required methods, as well
as whatever other means they deem reasonable (such as environmental auditing), to provide
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themselves with relative information to meet such requirements. It is important to note that
because of the importance of self-reporting and recordkeeping to EPA's compliance
monitoring efforts, EPA places high priority upon enforcement actions, including criminal
prosecutions, in cases of deliberate distortion and/or falsification of self-monitoring data.
In addition to these regulatory requirements, Federal facilities may do additional
self-monitoring through internal environmental management activities including
environmental auditing. When Federal agencies discover significant violations through an
environmental audit, EPA encourages them to submit the related audit findings and
remedial action plans to the EPA Regional Office (and State agencies where appropriate),
even when not specifically required to do so.
C. INSPECTION STRATEGY FOR FEDERAL FACILITIES
Most compliance programs rely on inspections as an important component for
determining compliance. EPA's established media program priorities for conducting
inspections (e.g., major facilities annually) are generally followed for Federal facilities to
the same extent as for other types of sources. Exhibit V-l outlines the types and
frequencies of media program inspections which are conducted at regulated sources,
including Federal facilities, by EPA and delegated or authorized States.
The EPA inspection strategy for Federal facilities is for EPA and delegated States to
conduct inspections at Federal facilities consistent with the priorities and frequencies
established in each of the media programs for all other sources. These inspections,
however, will be complemented by a number of other compliance monitoring activities
aimed at ensuring that Federal facilities are receiving their required number of program
inspections and that adequate coverage or "presence" is being demonstrated for all Federal
agencies which have facilities or lands of environmental concern. Implementation of this
inspection strategy calls for increased coordination and communication between Federal
Facilities Coordinators and the media program offices in each of the Regions. In addition,
Federal agencies may supplement these compliance monitoring activities with their own
internal environmental programs. Many of the activities outlined below are directly tied to
the improvements in identifying the Federal facilities universe discussed in Chapter HI and
the compliance promotion efforts explained in Chapter IV.
C.1 Annual Inspection Planning
Regional Federal Facilities Coordinators will meet at least annually with each of the
media program offices to review proposed Regional and State inspection plans in order to
ensure that Federal facilities are being inspected as often as required by program guidance.
Exhibit V-l can serve as a general guide for required inspection frequencies in each
program, although States may inspect more frequently at their discretion. Regional Federal
Facilities Coordinators also should discuss with each of the program offices their plans for
oversight inspections of Federal facilities, where media programs are authorized or
delegated to the States. This is to ensure that Federal facilities receive the same percentage
of oversight inspections as all other sources of equal problem potential. Federal Facilities
Coordinators should participate in selected media program oversight inspections of Federal
facilities to the extent resources and travel funds permit. Certain Headquarters program
offices and NEIC also conduct inspections of Federal facilities. When possible, OFA will
attempt to notify the Regional Federal Facilities Coordinators when such inspections are
scheduled.
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Federal Facilities Coordinators will provide input into both program grant
negotiations with the States and the State/EPA enforcement agreements process. Federal
facility inspections, planned by both EPA and States, should be compiled by the Federal
Facilities Coordinator for consolidated compliance tracking of inspection results. This
compilation should be based upon information provided from program offices.
Coordinators will regularly review these schedules to ensure they are receiving information
on the results of inspections, including any enforcement actions taken.
C.2 Regional Reporting of Inspection and Enforcement Activities
at Federal Facilities
Each quarter, the Regional Federal Facilities Coordinators submit name lists to the
Office of Federal Activities through EPA's Strategic Planning and Management System
(SPMS) of those Federal facilities which have been inspected during the preceding quarter
by either EPA or the States. The FFCs also report whether the facility has been
determined to be in violation and whether or not they have received an EPA or State
enforcement action. This information is used by OFA to track compliance status on an
agency-by-agency basis. In addition, beginning in FY 89, EPA's Regional media program
offices will submit copies of NOV's and other enforcement actions issued to Federal
facilities to EPA Headquarters. This information will be submitted to the appropriate
Headquarters media enforcement office with copies sent to the Office of Federal Activities
and the Regional Federal Facilities Coordinator. EPA will formally transmit this
information to the Headquarters offices of the affected Federal agencies. Arrangements
shall be made between OFA and each EPA media program regarding how and when this
information shall be transmitted to the other Federal agencies. The transmittal shall explain
that they have a compliance problem or violation at one of their facilities and request that
they take appropriate action to help expedite resolution and correct the identified violation.
OFA will also use this information in its quality assurance checks of Federal agency A-106
submissions to ensure that problems are being adequately addressed and funded.
As a follow-up to this Strategy, Headquarters media program offices may develop
more detailed guidance on the policies and procedures to be followed for submittal of this
data (e.g. as required by the RCRA program in OSWER's 1/25/88 and 3/24/88
memoranda). At a minimum copies of all enforcement actions issued by EPA to Federal
facilities must be submitted to Headquarters. Actions issued to Federal facilities by
delegated or authorized States should also be submitted by States to the EPA Regional
offices and then to Headquarters whenever possible. EPA Regions shall make every effort
to acquire this information from the States through the annual State/EPA enforcement
agreements or other means as appropriate. This is discussed in more detail in Section
C.4.b. and in Chapter VII on State/EPA agreements.
C.3 Identification of Environmentally Significant Federal Facilities
for Multi-Media Inspections
As noted in Chapter HI, in FY 87 Regional Federal Facilities Coordinators in
consultation with media program offices, developed name lists of those Federal facilities
which are potentially the most environmentally significant when considered on a multi-
media basis. This list will be updated annually by each Region using information from
EPA's National Enforcement Investigation Center Federal Facilities Ranking System as
described in Chapter in.B.3. statutes. Federal Facilities Coordinators will provide this list
to the Regional Environmental Services Division to discuss the possibility of conducting
multi-media inspections at these facilities. As part of the annual inspection planning
process with the States, the Regions will discuss possible multi-media inspections of
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Federal facilities and will invite affected States to participate in any multi-media inspections
of Federal facilities in their State.
C.4 Coordination with States on Federal Facilities
Inspections
Since most EPA environmental programs are authorized or delegated to the States,
they generally have the primary responsibility for conducting inspections, including those
done at Federal facilities. EPA and the States agree on the numbers of sources that will be
inspected annually through State/EPA grant negotiations. These grants are based primarily
on numbers of major sources but States generally conduct many more inspections of minor
sources than is required by EPA. The number of Federal facilities that are a major source is
a relatively small percentage (approximately 10%) of the total Federal facility universe. It is
important, therefore, that States inform EPA of any State inspections of minor Federal
facility sources in order for EPA to develop a more accurate picture of Federal facilities
compliance status and to provide technical assistance, as appropriate. This can be
effectively accomplished through a combination of both formal and informal mechanisms to
be arranged by each Region with their respective States on a media program basis, as
appropriate. The State/EPA Enforcement Agreements discussed in Chapter VII are a
particularly good formal mechanism for this purpose.
C.4.a Annual Meeting with States on Federal Facilities
Compliance
EPA Regions will meet annually with all of the States in their respective Regions to
identify and discuss patterns of noncompliance at Federal facilities, including any violations
or compliance patterns identified through EPA or State inspections. Regions may hold one
meeting for all States or hold separate meeting for each State. The results of this meeting(s)
will be included in an annual status report to OFA on Federal facilities compliance, by
Federal agency, to be prepared by the Regional Federal Facilities Coordinator, in
consultation with the media program offices.
C.4.D State Reporting on Federal Facility Compliance Status
As a minimum. Regions generally will receive the same information from delegated
States on Federal facility compliance status and enforcement activities as they presently
receive for other sources. This information generally is reported to EPA by the States on a
quarterly basis, although some programs receive certain information on a monthly basis
and it is broken down separately for Federal facilities for most programs. Program offices
should ensure that Regions and States are reporting Federal facilities compliance
information separately where required. This periodic reporting can be supplemented with
specific requests for information on a case-by-case basis to follow-up on identified
violations or for special Agency-wide targeted initiatives.
In addition, Regions should request that States routinely submit additional
information on Federal facilities compliance status (e.g., inspection reports, enforcement
actions, etc.) if mutual agreement can be reached on this through the State/EPA
"enforcement agreements" (discussed in more detail in Chapter VH). As explained above
in Section C.2., EPA plans on submitting copies of all enforcement actions to affected
Federal agencies to help expedite resolution of identified violations. The States may find
such Headquarters assistance useful in resolving compliance problems at Federal facilities.
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D. ACCESS TO FACILITIES REQUIRING SECURITY
CLEARANCES
Certain facilities, including those with military, intelligence, nuclear related and law
enforcement functions, have special security or access requirements necessitated by the
facility's mission. It is the policy of EPA to meet these special requirements to the
maximum extent possible, since these requirements generally do not conflict with the goals
of EPA's environmental compliance responsibilities. Where necessary, EPA or State
inspectors must obtain the appropriate clearances for access to national security
information, facilities or restricted data at Federal facilities. Where information has been.
classified, restricted or protected for national security, law enforcement, or other similar
reasons, all such information is to be maintained in accordance with the originating
agency's requirements.
EPA has programs for personnel security, document security, and protection of
confidential business information. Protection of information from release has not adversely
affected EPA's environmental mission to date and EPA staffs with these responsibilities
can provide assistance to inspection and compliance personnel in meeting these special
access or security requirements if such access is allowed by the specific statute. EPA
personnel in need of security clearances for inspections or other compliance monitoring
activities should contact the Personnel Security Staff at EPA Headquarters to obtain
information on how to obtain necessary security clearances. State personnel should first
contact the Federal agency. If problems or inordinate delays are encountered, they should
ask the EPA Regional Federal Facility Coordinator for assistance in obtaining needed
clearances.
E. SUBMISSION AND REVIEW OF FEDERAL AGENCY A-106
POLLUTION ABATEMENT PLANS AND PROJECTS
Section 3(a)(3) of Executive Order 12088 requires that Federal agencies submit
Pollution Abatement Plans1 semi-annually to EPA for review. The process for developing
and maintaining these plans is described by the Office of Management and Budget (OMB)
Circular No. A-106 dated December 31, 1974 (See Appendix G). Through this established
process, Federal facilities plan projects in order to ensure continuing compliance to meet
new regulatory requirements, or to correct problems or violations identified by the EPA or
States. As part of this strategy, EPA will be attempting to improve the A-106 process to
address more effectively potential compliance problems at Federal facilities before they
become violations and to focus Federal agency attention on identified EPA media program
compliance priorities.
The development of Pollution Abatement Plans provides a mechanism for Federal
Agencies to analyze their current and projected funding requirements for their pollution
abatement projects. These reports also provide agencies with information to plan for future
program resource requirements. To be fully effective the A-106 five-year plan must be
coordinated and staffed internally within each individual Federal agency.
1 The terms Pollution Abatement Plan, Five-Year Plan and Pollution Status Report are essentially
synonymous and are used interchangeable. Pollution Abatement Plans are Five-Year Plans and are
prepared by Federal agencies. The Pollution Status Report is a compilation of Federal agency plans
prepared by EPA.
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Consistent with the provisions of the Anti-Deficiency Act discussed in Chapter VI
B.I.J., EPA will advise the Federal agencies and OMB on obtaining the required funding
levels for pollution abatement projects through various means, such as:
• Requesting supplemental appropriations
• Reprogramming of appropriated funds
• Utilizing the established appropriations process.
E.1 Identification of Priority Projects
The A-106 process is primarily a system of setting priorities so environmental
control projects are completed as required to meet statutory and regulatory requirements.
There are never enough funds available to complete all desired projects in one fiscal year.
The A-106 process is a five-year plan which programs projects over an extended period of
time. The primary focus of the process is to give the highest priority to those facilities that
are out of compliance or will go out of compliance if project funding schedules are not met.
A-106 is unique within the government budgeting system in that it directs EPA to review
Federal agency plans for OMB to ensure that these plans will be adequate to meet
promulgated compliance deadlines. Where they are not adequate, EPA will recommend to
OMB that Federal agency budget requests be revised to meet established priorities.
E.1 .a A-106 Compliance Classes
OMB has established a hierarchy of 9 different compliance categories divided into 3
distinct classes. EPA places its highest priority on Class I projects. These projects are
needed at Federal facilities which are in physical noncompliance and/or have received an
enforcement action from EPA or a State. The following three categories are included in
Class I:
• CMPA - Projects needed to support a signed Compliance Agreement or Consent
Order.
• INOV - Projects needed to correct deficiencies cited on an inspection or Notice of
Violation (NOV) by a regulatory authority.
• ESDP - Other projects which are required immediately because a statutory or
regulatory deadline has passes.
Class II projects are next in priority to EPA. These projects are needed at facilities
which are not yet out of compliance, but will be if not implemented prior to certain
deadlines in the future. Class II projects are the most difficult to program for because the
required compliance dates are in the future, standards may still be in the process of being
established, and no inspections will have been conducted by regulatory agencies.
Nevertheless, if Federal agencies do not initiate their remedial plans now, it is inevitable
they will be out of compliance when the deadlines arrive. The Federal Planning,
Programming, and Budgeting System (PPBS) is very complex and takes too long to arrive
at quick fixes for substantial projects. Class II projects make up a substantial part of
Federal agency unfunded requirements and are divided into two categories:
• ESDF - Projects for facilities which do not meet established standards, but the
compliance deadline is in the future.
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• PSDF - Projects for facilities where there is a pending standard that cannot be met
and the compliance deadline is in the future.
Where Federal agencies have not planned for projects in this class, there may be a
requirement for EPA to provide additional technical assistance to ensure they are aware of
the requirements.
Class HI projects include a potpourri of situations which are of less importance to
EPA at the present time but which may be important compliance issues in the future, if nc.
constructed. While of less importance to EPA, they may be a very high priority to the
Federal agency. This class includes the following:
• ESRO - Facility meets established standard but needs replacement because of
obsolescence.
• ESRE - Facility meets established standard but needs expansion or will go out of
compliance.
• ESDL - Facility meets established standards but project is needed for other than
compliance reasons. Will demonstrate leadership.
• OTHR - Other reasons not falling in categories described above.
E.1.b Targeting Resources To Address Priority Areas
In addition to compliance status priorities, EPA media programs normally establish
yearly program priorities which describe those areas where they will target inspections and
otherwise place their limited enforcement resources. Since EPA and State regulatory
authorities have decided these are their most important environmental concerns, it would be
appropriate for Federal agencies to become aware of and target their resources in a similar
direction. EPA will communicate its priorities to other Federal agencies to the extent they
are released to the general regulated community.
At the beginning of each fiscal year OFA will coordinate with the Headquarters
media program offices to identify a limited number of media program priorities. OFA will
request Federal agencies to direct their pollution abatement plans at those facilities which
have noncompliance problems in these key areas.
Federal Facility Coordinators and Regional program staff will develop lists of those
Federal facilities which fall under each of these priority areas. Federal agencies will be
informed of the EPA priority areas prior to the start of their annual A-106 planning process.
Regional Federal Facility Coordinators will review proposed and final A-106 budget
submissions to ensure that acceptable projects have been requested for facilities identified
as having noncompliance problems in these media program priority areas. This approach
to addressing program priorities is in addition to, and not in lieu of, EPA's regular use of
the A-106 process as explained below.
E.2 A-106 Process Overview and Time Table
The annual A-106 process begins each October at the start of the fiscal year as
shown in the timetable of key A-106 events in Exhibits V-2. At this time, copies of the
most recently updated list of pollution abatement projects (Pollution Status Reports) and the
latest report to OMB are provided to the Regional program staff by the Federal Facilities
V-8
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Coordinator for their continuing review and analysis of priority areas as described above.
The Regional program staff review the list of projects and recommend funding and/or
schedule changes to be incorporated into the Federal agency's next A-106 submission.
Concurrent with the Region's review of the projects in the Pollution Status Report,
Federal agencies review and update their plans. The results of this review are reflected in
revised five-year plans which Federal agencies submit to OFA by December 15. New
projects are submitted at this time using EPA Form No. 3500-7 (See Exhibit V-3).
OFA then prepares a revised Pollution Status Report which is distributed in January
to all Federal agencies and EPA Regional offices for review. The EPA Regional reviews
are coordinated and quality assured by each of the Federal Facilities Coordinators. The
media program staffs conduct the reviews and provide their comments to the Federal
Facilities Coordinator (section V.E.3 discusses state participation in the A-106 process for
delegated programs.) Each project is reviewed to determine its adequacy in three specific
areas: (1) Engineering; (2) Timing; and (3) Cost. The EPA Regions also evaluate each
project as either High, Medium or Low in terms of its impact on the environment if not
funded in the fiscal year requested. In addition, the Regions identify "additional needed"
projects which Federal agencies have not proposed or submitted for review.
The marked-up Pollution Abatement Plan worksheets and any inadequate or
additional needed project sheets are then submitted by the Regions to OFA in April. OFA
subsequently sends the Federal agencies copies of their worksheet and any inadequate or
needed project sheets. These sheets contain the Regional staffs' explanations as to why a
project has been rated either "inadequate" or "needed". The Federal agencies then respond
to EPA's review by filling out a standard response format and updating their previous plan
submissions. Copies of the EPA Inadequate and Needed Sheets and the Federal Agency
Response Formats are included as Exhibit V-4.
Federal agencies must submit their revised updates of the January report to EPA
Headquarters by May 31. OFA then prepares a revised report which is distributed to the
EPA Regions by the end of June for the last review of the fiscal year. OFA also provides
the Regions with worksheets and the Federal agencies responses to the EPA Inadequate
and Needed project sheets. During this review Regions focus on those projects in the
President's Budget Year (currently +2). Regional staff also will review the submissions to
ensure that projects have been proposed to correct violations identified in EPA and State
inspections and noncompliance problems in identified program priority areas.
OFA consolidates Regional comments and provides them to EPA Headquarters
program staff for review and concurrence. In September, the Administrator provides OMB
with a summary of the budget year projects and EPA's evaluations. OMB uses this
information in its review of Federal agency budget requests.
In October, the most recent Pollution Status Report (i.e., the report revised and
distributed in June) and the Report to OMB are distributed to EPA and Federal agencies,
initiating the process for the next fiscal year's budget.
On an ongoing basis throughout the fiscal year, the Federal Facilities Coordinators
will visit Federal facilities in their respective Regions to attend preliminary planning and
design review conferences on major A-106 projects. At a minimum, Coordinators should
assist in planning and design reviews for all A-106 projects which are over one million
dollars in total cost and for other lesser cost projects which have significant environmental
impact. Federal Facilities Coordinators should request assistance and participation from
EPA program offices on technical matters where necessary and appropriate.
V-9
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E.3 State Participation in the A-106 Process
Where programs are delegated to States, Regions will provide States with an early
opportunity to become involved in the review of Federal agency A-106 submissions on
proposed pollution abatement projects. Each Region will provide their respective State
agencies with copies of A-106 reports for their States. Each Region will then meet with
their States during the January - March review period to review and discuss proposed
projects as they relate to State enforcement actions against Federal facilities, general
compliance needs of facilities, and identified noncompliance problems. This State review
may consist of a review of abbreviated Pollution Status Report prepared by OFA, annual or
biannual A-106 submittals from the Federal agencies or some other summary report
prepared by OFA or Regional offices.
V-10
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MEDIA
PROGAM
EXHIBIT V-1
MEDIA PROGRAM INSPECTIONS
FACILITY FREQUENCY* TYPES OF INSPECTIONS
RCRA
NPDES
CAA
(Stationary
Sources)
All Federal
Facility TSD's
Annual
Generators and
Transporters
Solid/Hazardous
Waste Management
Units at TSD's
Major
Minor
Class A-1
Sources and
all NESHAPS
Class A-2
Sources
NSPS Sources
Class B VOC
Sources Other
Class B Sources
(minors, excluding
NESHAPs)
Every 3 years
4 times/year
Major = annually
Minor = as resources
allow
Annual
Biannual
Compliance evaluation
inspection:
- Ground water
- Record review
- Site inspection
Comprehensive monitoring
evaluation for ground water
• Identification SWMU's
or determination of
releases through RFA's
and RPI's
• Compliance sampling
• Compliance evaluation
• Performance audit
• Toxic
• Level n - minimum
acceptable inspection
• Level ffl - detailed
inspection of process and
operating equipment
Quarterly EER
reports
Per Statistical model
in small source Strategy (7/6/87)
At State's
discretion
'These are the Laboratories minimum inspection frequency requirements. EPA or States may and often do
inspect sources more frequently.
V-ll
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EXHIBIT V-1 (Continued)
MEDIA PROGRAM INSPECTIONS
MEDIA
PROGAM
FACILITY
FREQUENCY* TYPES OF INSPECTIONS
CAA (Mobile Vehicle
Sources) Fleets
FIFRA
TSCA
SDWA
(PWSS)
Production
sites, use
inspections,
distributor/
dealer
inspections
Laboratories
Laboratories
Facilities with
PCB'sand
asbestos (worker
protection and
schools) subject
to TSCA §4, 5,
8,13
All community
water systems
Persistent
Violators
Discretionary;
can be random
or directed
States establish
individual
priorities within
established
national criteria
also based on
individual chemical
strategies
Plus response to
complaints
Every 2-3 years
Every 2-3 years
Response to
complaint
selection under
a neutral admini-
strative inspec-
tion scheme
(NAIS)- specified
in individual
strategies
Every 3 years
Annual
Inspection of vehicles
and fueling facilities
"Establishment" inspection/
compliance inspections
• Compliance inspection
• Data audits (Federal
inspections only)
• GLP compliance inspection
• Data audits
• Compliance inspections
(§4,5,8,13 are Federal
inspections only)
Sanitary Survey
Compliance Inspection
* These are the Laboratories minimum inspection frequency requirements. EPA or States may and often do
inspect sources more frequently.
V-12
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EXHIBIT V-1 (Continued)
MEDIA PROGRAM INSPECTIONS
MEDIA
PROGAM
SDWA
(UIC)
FACILITY
Class IV wells
(Hazardous waste
wells over
water sources)
FREQUENCY*
Annual (Top
Priority)
(non banned)
TYPES OF INSPECTIONS
• Mechanical Integrity
• Tests (MTTs)
SDWA
(UIC)
(Cont'd)
Class I wells
Class in wells
Class II wells
Class IV wells
Annual
Generally
Annual
Routine inspec-
tions to follow
up on complaints
Inspected when
found or
suspected of
polluting Under-
ground sources
of drinking water
(USDW)
All MJTs, corrective
actions and pluggings
to be witnessed
Routine with 25% MTTs
Routine inspection with
25%ofMITstobe
witnessed
Routine inspections
* These are the Laboratories minimum inspection frequency requirements. EPA or States may and often do
inspect sources more frequently.
V-13
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EXHIBIT V-2
ANNUAL TIMETABLE OF KEY A-106 EVENTS
September 15
December 15
January
April 15
May
May 31
June
August
September 1
September 15
Federal Agency Pollution Abatement Plans (5 yr. plan) distributed to
EPA Regions for information and initial review and Federal agencies
for initial update.
Revised Pollution Abatement Plans (5 yr.) due from Federal
Agencies only to EPA Headquarters, OFA.
Revised Pollution Abatement Plans and Worksheets distributed to
EPA Regions for primary evaluation. Regions send copy of
Pollution Abatement Plans to States for their review. Meetings held
with States, as appropriate.
Simultaneously, Pollution Abatement Plans returned to Federal
Agencies by OFA for second update.
Evaluations of Federal Agency Pollution Abatement Plans,
including worksheets, due from EPA Regions to EPA
Headquarters, OFA.
OFA coordinates evaluation of Pollution Abatement Plans with
Headquarters media programs.
OFA concurrently provides EPA evaluation of Pollution Abatement
Plans with Federal Agencies for inclusion in their next update and
EPA identifies any potentially needed projects.
Revised Pollution Abatement Plans, from Federal Agencies due to
EPA Headquarters, OFA.
Draft Report and work sheets distributed to EPA Regions for final
update and concurrently to Federal Agencies for comment.
Final evaluation of projects in Draft Report due from EPA Regions
to Headquarters EPA, OFA. Formal comments on draft OMB report
received from Federal agencies. EPA Headquarters program
office review, comment, and concurrence on draft OMB Report.
Annual EPA report due to OMB.
Repeat annual (FY) cycle of events.
V-14
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EXHIBIT V-3
EPA FORM NO. 350O-7
41 • yet m WeenwtgMn. DC 2O440
OcrA Federal Agency Pollution Abatement Plan — Project Reoort
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V-15
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EXHIBIT V-4
FEDERAL AGENCY RESPONSE FORMAT
(INADEQUATE PROJECT)
DATE:
FFID// PROJECT//
1. Do you agree with EPA's determination that
this project is "inadequate"? YES N0_*_
2. Do you agree with EPA's recommendation
on how to correct this inadequacy? YES N0*_
3. What action do you plan /have you planned
to correct this inadequacy? (Describe)
4. Have you updated your A-106 submission to YES NO*
include this change?
5. If inadequacy was because of cost, what is
your new estimate of project cost? $ (OOP)
6. In which Fiscal Year(s) do you now expect
project will be funded?
FY87 FY88 FY89 FY90 FY91 Will not be funded
7. What type of funds will be used?
O&M MILCON DERA PEMA OTHER (specify)
8. Was this "determination of inadequacy"
discussed with the Regional EPA Point
of Contact (POC)? YES NO
Name of POC if different from opposite page
9. Comments:
10. Name/Title/Office of Staff Member preparing this form:
Telephone Number: FTS Commercial
* IF "NO" PLEASE EXPLAIN IN "COMMENTS" SECTION
V-16
Draft EPA Format 87-4
-------
EXHIBIT V-4
FEDERAL AGENCY RESPONSE FORMAT
(NEEDED PROJECT)
DATE:
1. Do you agree that there is a
problem that needs.to be addressed? YES NO*
2. Do you agree that a project 1s needed
to address the problem? YES NO*
3. Do you agree with EPA's recommendation? YES NO*
4. Do you plan to program a project to
correct this situation? YES NO*
5. Have you updated your A-106 submission
to include this project? YES NO*
6. What is your estimate of cost of project? $ (OOP)
7. In which Fiscal Year(s) do you expect project
will be funded?
FY87 FY88 FY89 FY90 FY91 W111 not be funded_
R. What type of funds will be used?
0 & M MILCON DERA PEMA OTHER (specify)
9. Was this recommended project discussed
with the Regional EPA Point of Contact YES NO
(POC)?
Name of POC if different from opposite page
10. Comments:
11. Name/Title/Office of Staff Member preparing this form:
Telephone Number:FTS Commercial
IF "NO" PLEASE EXPLAIN IN "COMMENTS" SECTION
Draft EPA Format 87-3 v"17
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CHAPTER VI
ENFORCEMENT RESPONSE TO
COMPLIANCE PROBLEMS AND
VIOLATIONS OF
ENVIRONMENTAL
LAWS AT FEDERAL FACILITIES
-------
VI. ENFORCEMENT RESPONSE TO COMPLIANCE
PROBLEMS AND VIOLATIONS OF ENVIRONMENTAL
LAWS AT FEDERAL FACILITIES
This Chapter outlines the basic approach and procedures which EPA uses when
responding to violations of environmental law at Federal facilities.1 It explains the concept
of timely and appropriate enforcement response and why it is important to gaining high
levels of compliance. It discusses unique features of Federal enforcement procedures,
State enforcement responses to Federal facility violations as well as the enforcement roles
and responsibilities of each level of government. EPA media program offices also may
develop specific enforcement guidance for Federal facilities through either their annual
Operating Guidance or in other program policy documents. However, any media-specific
enforcement guidance which is issued for Federal facilities will be consistent with the basic
framework and concepts set forth in this strategy.
In summary, EPA and States are to pursue "timely and appropriate" enforcement
responses to address violations at Federal facilities in a manner similar to actions taken to
address violations at non-Federal facilities. EPA's enforcement response guidance
emphasizes that if a violation is not or will not be corrected within the timeframe for
violations of that class, a formal enforcement action must be taken consistent with media
program guidance, including required degrees of formality and timeliness.
EPA's enforcement approach for Federal facilities emphasizes the importance of
negotiated responses for the correction of violations and schedules formalized through
Compliance Agreements or Consent Orders, depending upon program authorities and
guidance. Where agreement cannot be reached on all issues in a timely manner, EPA will
promptly utilize all available enforcement and dispute resolution mechanisms to effectively
resolve areas of disagreement
This chapter also clarifies that Federal officials are expected to take all available
steps to obtain sufficient funds to achieve compliance on the most expeditious schedule
possible. While EPA recognizes that the Anti-Deficiency Act places certain limitations on
Federal officials' abilities to commit funds which they have not been authorized to spend,
they may seek additional funds where needed to correct identified compliance problems.
EPA's enforcement response for Executive Branch agencies differs somewhat from
its enforcement against non-Federal parties in that it is purely administrative, and neither
provides for civil judicial action nor assessment of civil penalties.2 This does not apply to
enforcement actions taken by States as authorized under various statutes nor to EPA actions
directed to non-Federal operators of Federal facilities (e.g., GOCO's). EPA will pursue
the full range of its enforcement responses against private operators of Federal facilities in
appropriate circumstances. In addition, sanctions may be sought against individual
employees of Federal agencies for criminal violations of environmental statutes.
1 The provisions of this Chapter are not applicable to enforcement actions under CERCLA/SARA. Any
references to CERCLA/SARA are included for information purposes only.
2 This limitation does not apply to penalties for violations of Interagency Agreements under Section 120
of the 1986 Superfund Amendments and Reauthorization Act (SARA) pursuant to Sections
109(a)(l)(E) and 122(g) of SARA.
VI-1
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A. OVERALL COMPLIANCE POLICY AND PHILOSOPHY
Enforcement is an essential supplement to the strong public mandate for Federal
facilities to comply with Federal, State and local pollution control requirements to the same
extent as non-Federal entities. Enforcement reinforces the special sense of public duty to
comply that this mandate instills in our Federal officials. It is generally recognized by EPA
and the public that compliance promotion activities such as technical assistance and training
are not in themselves sufficient to create full compliance nor to provide the necessary
incentives for public jf private officials to affirmatively prevent and anticipate problems in
complying with environmental laws.
Federal agencies must comply with Federal environmental laws in the same manner
and degree as non-Federal entities and EPA will utilize the full range of its available
enforcement mechanisms to ensure Federal facilities compliance. Federal environmental
statutes require that, in most circumstances, facilities of the United States Government
comply with Federal, State, and local pollution control requirements to the same extent as
non-Federal entities. There are, however, certain limitations and differences in terms of the
types of enforcement actions which EPA will take against Federal facilities. Unique
considerations and procedures that are applicable when enforcement is undertaken against
Federal facilities by EPA are explained in the next section of this Chapter.
Federal and State enforcement officials must adhere to the concept of timely and
appropriate enforcement response, which EPA and the States have defined for each
program to establish a strong, stable, and predictable national enforcement presence. What
this means is that if violators are not returned to compliance within a certain timeframe,
through a variety of informal contacts and enforcement responses, timely formal
enforcement action is required. Timely and appropriate enforcement response guidance,
with its timelines, required degree of formality, sanction and escalation, is deemed essential
to achieving high levels of Federal facility compliance.
National guidance issued for each environmental program establishes timelines for
key milestones in the enforcement Framework for Implementing State/Federal Enforcement
Agreements," which sets forth the Agency's general principles on timely and appropriate
enforcement response, and program implementing guidance are summarized in Exhibit VI-
1 and Appendix C. This exhibit also includes the criteria for defining what constitutes a
formal enforcement response. The principles of timely and appropriate enforcement
response apply to the full range of sources regulated under Federal statutes; however, the
application of specific timelines and definitions in Exhibit VI-1 is generally directed to the
most significant violations in each environmental program. Appendix C contains each of
the EPA media programs' definitions for significant noncompliance. Regions and States
should also apply these timeframes to other types of violations at Federal facilities to the
extent possible with available resources and consistent with media program guidance.
The national timely and appropriate milestones are adapted to specific legal
enforcement mechanisms and procedures unique to each State. Agreements which embody
these "timely and appropriate" requirements and definitions are reached between EPA
Regions and States and committed to writing in State/EPA Enforcement Agreements,
discussed more fully in Chapter VH These agreements may also specifically address other
compliance activities and response actions of Federal facilities.
EPA emphasizes negotiation with responsible Federal officials on corrective actions
and schedules needed to expeditiously resolve noncompliance situations. EPA will
generally use either Compliance Agreements or Consent Orders (depending upon available
VI-2
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statutory authorities and media program guidance) as the primary mechanism for
formalizing agreements with Federal facilities.
B. EPA RESPONSE TO FEDERAL FACILITIES VIOLATIONS
The Federal enforcement process outlined in this Section is designed to provide a
uniform approach to responding to violations at Federal facilities, recognizing that each
environmental statute establishes somewhat different enforcement response mechanisms.
There are several fact;. 3 which distinguish EPA's enforcement response to Federal
facilities from enforcement at non-Federal facilities and by the States:
(a) EPA has a broad mandate to provide technical assistance and advice to Federal
agencies to ensure their compliance, as required under Executive Order 12088 (See
detail in Chapter n). However, implementing this mandate will not interfere with
the application by EPA (or States) of timely and appropriate enforcement
procedures to achieve the most expeditious schedule of compliance.
(b) EPA places emphasis on negotiations with responsible Federal officials in resolving
Federal facility noncompliance with enforcement documents issued on consent and
signed by both parties. This Strategy also explains how failure to reach agreement
in a timely manner will be resolved.
(c) Federal EPA enforcement actions and procedures for resolution of compliance
problems differ in certain respects for Federal versus non-Federal facilities:
i. EPA will not bring civil judicial suit against Executive Branch Agencies and will
rely upon administrative enforcement mechanisms for Federal facilities as outlined
in Appendix I. This respects the position of the Department of Justice that civil
suits within the Federal establishment lack the constitutionally required "justiciable
controversy." (See Appendix H which contains the Justice Department's testimony
on this issue at a Congresional oversight hearing in April, 1987).
ii. EPA generally will not assess civil penalties against Federal facilities under
most environmental statutes.3 This also is in response to die Justice Department
position discussed above as well as Federal District court rulings which have issued
conflicting decisions as to whether or not the United States government has clearly
and unambiquously waived its soverign immunity for penalties under various
environmental statutes.
iii. EPA will negotiate Compliance Agreements or Consent Orders with Federal
agencies to address violations at Federal facilities. The timeframes for negotiation
of Compliance Agreements and Consent Orders are defined by EPA's media
specific "timely and appropriate" criteria. Prior to issuing a final Compliance
Agreement or Consent Order to a Federal facility, the Federal Agency will be
provided an opportunity to meet with EPA to discuss key issues and to sign it on
This limitation does not apply to penalties for violations of Interagency Agreements under Section 120
of the 1986 Superfund Amendments and Reauthorization Act (SARA) pursuant to Sections
109(a)(l)(E) and 122(g) of SARA.
VI-3
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consent prior to the order or agreement becoming final and effective.4 This
approach is also based in part on DOJ's written position which states that
"Executive Branch agencies may not sue one another nor may one agency be
ordered by another to comply without the prior opportunity to contest the order
within the Executive Branch."
iv. Additional dispute resolution procedures are provided in media program
guidance to resolve compliance issues through EPA, and if necessary, involve
OMB under E.O. 12088 for funding disputes, the Attorney General under E.O.
12146 for legal interpretation and the EPA Administrator under E.O. 12580 for
CERCLA/SARA.
v. Federal facilities, like all public entities, face problems in ensuring that funds
are adequate to meet environmental requirements and remedy noncompliance. The
obligation to comply is not altered by such funding considerations; the most
expeditious means of achieving compliance and obtaining funds is expected.
However, the process for acquiring funds does pose unique considerations which
should be taken into account in negotiating compliance schedules as described in
Section B.l.f.
B.1 Federal Facilities Compliance Process: Civil Administrative
Enforcement Procedures
The Federal facilities compliance process outlines the administrative procedures
EPA will follow when responding to civil violations identified at Federal facilities. This
process is illustrated in Exhibit VI-2 and discussed below. These procedures apply when
civil enforcement responses are directed at facilities of Executive Branch Agencies.
B.1 .a Notification of Violation
EPA monitors compliance status and identifies violations at Federal facilities
through reviews of source self-monitoring and reporting documents, onsite inspections,
and the A-106 process. Once a violation is discovered, EPA makes a determination of
noncompliance and takes its initial enforcement response.
EPA's initial enforcement response to an identified violation may vary depending
on the type of violation and nature of the violator. Media-specific guidance governs the
type of initial response and timeframe for such response. See Appendix I for types of
enforcement mechanisms used under each Federal environmental program. When EPA has
made its determination that a violation has occurred at a Federal facility, Federal Facilities
Coordinators or media program staff may informally notify the facility (e.g., via telephone)
prior to issuance of formal written notification. If Federal Facilities Coordinators provide
this informal notification, they should first consult with appropriate media program staff.
This will provide the Federal facility with some additional time to remedy the identified
violation before receiving formal written notification from EPA.
Generally, EPA issues a Notice of Violation (NOV), or other program equivalent as
the initial written notice for requiring response to address significant violations. NOVs or
program equivalents issued for violations at Federal facilities are similar to those issued for
EPA may issue unilateral administrative orders to Federal facilities under Section 106 of SARA
following concurrence by the Department of Justice pursuant to Section 4(b)(l) of Executive Order
12580.
VI-4
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non-Federal violations except that they should not mention civil judicial actions by EPA.
At a minimum, NOVs or their program equivalent issued for Federal facilities should:
• Be issued to base commander or facility director level officials.
• Describe the violation and how it was identified.
• State that the consequences of not meeting the requirements stated in the NOV in a
timely manner or responding to EPA by the dates specified will result in ic
issuance of an order or formal escalation of the enforcement action. Relevant
citizen suit provisions of involved statutes may also be cited here.
• Explain that the Federal agency can either submit a written certification that it has
corrected the violation if only a short-term "fix" is required or an action plan and
schedule for a violation requiring more extensive remedial action. Selection of a
date for requiring submission of a certification of compliance or remedial action
plan and schedule is dependent on the timely and appropriate timeframes shown for
each program in Exhibit VI-1. In certain cases, EPA may also include a schedule,
proposed order, or proposed compliance agreement as part of or attached to the
NOV. The NOV should also state the number of days EPA will take to respond to
the reply.
• Refer to any available alternatives to compliance (e.g., Presidential exemptions or
specific legislative relief).
• Offer to schedule a meeting or conference with Federal agency officials who are
authorized to sign a Compliance Agreement or Consent Order. These officials must
also have the authority to make the necessary budget requests to correct the
violation according to the schedule outlined in the Agreement.
The NOV, or program equivalents, should be tailored to address the specific
noncompliance situation identified at the facility. Appendix J provides a model for
developing an NOV. Copies of all NOVs and other enforcement actions issued by EPA to
Federal facilities shall be sent to the involved Headquarters media program enforcement
office with a copy to the Office of Federal Activities.
B.1.b Response by Federal Facilities: Certification of Compliance
or Remedial Action Plans
Once a facility has received the official notice of violation or program equivalent, it
is required to submit either a certification of violation correction, or a remedial action plan
(RAP) to EPA. A facility can also dispute EPA's noncompliance finding through appeals as
provided for through the dispute resolution process outlined in Section B.l.e.
The certification of violation correction will consist of a letter from the facility
which identifies the violation and describes remedial action taken. It is accompanied by
support documentation that demonstrates achievement of compliance. When remedial
actions needed to correct the violation will exceed the timeframes for timely and appropriate
enforcement response for either achieving compliance or being subject to formal
enforcement response, the facility must submit a remedial action plan. The plan should:
• Describe the noncompliance situation;
VI-5
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• Identify the connective actions to be taken;
• Outline the schedule for implementing the remedial actions; and
• Describe the content and frequency of progress reports.
EPA will acknowledge the receipt of the proposed certifications and remedial action
plans with a written response. An example of such a Response Form is provided in
Appendix J. A response should be worded so the facility is not insulated from further EPA
or State enforcement action. The response should also specify a date by which EPA will
respond which should normally be within 30 days. In complex situations, detailed
comments may follow thereafter.
Remedial actions and schedules proposed by the Federal facility may serve as a
basis for a Compliance Agreement or Consent Order. Although a remedial action plan does
not constitute an EPA enforcement response, it may be used as a basis for monitoring
future compliance for violations that are not sufficiently significant, as defined in program
guidance, to mandate formal enforcement response.
In the event of disputes in instances where formal enforcement response is not
necessary, the Region may use the dispute resolution processes described in Section B.l.e
to further escalate and resolve compliance.
B.1.c Initial Negotiation of Compliance Agreements or Consent
Orders
Where formal enforcement response is required, following the notification of
violation, EPA generally will use Compliance Agreements or Consent Orders as the
primary formal enforcement response to formalize bilateral agreements between EPA and a
Federal agency to ensure expeditious return to compliance. Compliance Agreements will be
used as EPA's principal formal enforcement response unless media program guidance
indicates that statutory authorities are available for use of Consent Orders for Federal
facilities violations. Appendix I indicates the specific enforcement responses in each media
program and highlights those which are available for use at Federal facilities. Consent
Orders should be used when agreements are negotiated jointly with a State and the State has
administrative order authority.
It is EPA policy that Compliance Agreements or Consent Orders should be
negotiated within required media-specific, "timely and appropriate" timeframes or EPA may
take further formal administrative enforcement action to achieve compliance. EPA will
prepare Compliance Agreements or Consent Orders for joint signature by the affected
facility and EPA. At a minimum, all Compliance Agreements and Consent Orders should
state that the violating facility is accountable for meeting timefrarnes and taking required
actions as outlined in the Agreement or Order or be subject to further enforcement action.
In certain cases, it may be necessary to negotiate a two phased agreement or order for the
same violation: the first detailing a schedule for studies necessary to correct the problem
and the second establishing a plan and schedule for remedying the problems based on the
results of the studies. The time schedules included in both may overlap or be concurrent.
Environmental audit provisions will be emphasized in negotiations in instances in
which the Federal agency can constructively be directed to correct similar violations which
are likely to occur at other related facilities or there appear to be systematic compliance
VI-6
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management problems. This is consistent with the July 9, 1986 Policy Statement on
Environmental Auditing, 51 FR 25004 (See Appendix D).
Federal Facility Coordinators will assist the media program offices and the Regional
Counsel's office in preparing and negotiating Compliance Agreements or Consent Orders
with Federal agencies. Appendix J outlines a format to use when developing a Compliance
Agreement or Consent Order for a Federal facility. This sample Compliance Agreement
incorporates model language developed by the Department of Justice.
EPA media programs may consider including enforceability clauses in Compliance
Agreements with Federal facilities which reference the applicable citizen suit provisions of
the involved statute. The RCRA program has developed a model "Enforceability Clause"
to be included in all RCRA Federal Facility Compliance Agreements. These clauses
reference the use of applicable citizen suit provisions by States or citizens for failure to
comply with terms or schedules in Compliance Agreements. See Appendix J for a copy of
the RCRA Program Enforceability Clause. Certain EPA Media program offices also have
developed specific guidance concerning Compliance Agreements. For example, the RCRA
program model language for Federal facility Compliance Agreements is contained in the
January 25, 1988 memorandum "Enforcement Actions under RCRA and CERCLA at
Federal Facilities," which is contained in Appendix K.
• Timely and Appropriate Response Criteria
EPA's timely and appropriate enforcement guidance sets forth the criteria for the
commencement of an enforcement action at a facility in violation. The negotiation of
Compliance agreements and Consent Orders at Federal facilities are subject to EPA's timely
and appropriate enforcement response criteria. Based on the type of violation at the facility,
this guidance establishes the time it should take to issue the initial enforcement action, the
type of enforcement action that should be taken, and the amount of time it should take the
facility either to achieve full physical compliance or to enter into a Consent Order or
Compliance Agreement which incorporates a schedule for achieving compliance.
If compliance is not achieved or a Compliance Agreement or Consent Order can not
be negotiated within required media-specific timeframes, EPA generally will issue a
proposed order or proposed compliance agreement prior to escalating its enforcement action
using the dispute resolution procedures outlined in Section B.l.e.
Timeframes for issuance of proposed Administrative Orders or Compliance
Agreements and their program equivalents will follow media-specific timely and
appropriate guidance as shown in Exhibit VI-1.
Informal assistance from OFA and Headquarters media program offices can be used
at any point in the process. Regional program offices are encouraged to request OFA
assistance through the Federal Facilities Coordinators who will assist them in contacting
Federal agency regional operations and commands to resolve compliance problems. OFA
and the media program office will work directly with the parent agency's Headquarters
office and appropriate EPA Headquarters and Regional legal and compliance program
offices to try to resolve the problem.
EPA Regional staff also should successively escalate unresolved issues up to the
Deputy Regional Administrator (DRA), to the extent appropriate before taking formal
administrative action due to unresolved issues in remedying compliance problems. The
DRA may then contact an equivalent level official of the other Federal Agency in an effort
to achieve resolution.
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B.1.d Issuance of Proposed Consent Orders or Proposed
Compliance Agreements
EPA may issue proposed administrative orders or proposed Compliance
Agreements at a number of different points in the compliance process in order to expedite
the timely resolution of violations by Federal facilities. Proposed orders or compliance
agreements generally are issued to Federal facilities when:
• A Federal facility fails to respond by the date(s) specified in a notification of
violation or program equivalent.
• A Consent Order or Compliance Agreement cannot be or is not successfully
negotiated within the timeframes established in media-specific guidance because of
disagreement on proposed remedial actions, the schedule for correcting the
violation, or other outstanding issues.
• A Federal facility has violated the terms of a signed Compliance Agreement or
Consent Order.
• There is an imminent and substantial endangerment to human health or the
environment which necessitates immediate action.
When initial negotiations for a Compliance Agreement or Consent Order to address
the violations at a Federal facility exceed the timely and appropriate enforcement response
timeframes for resolving violations, EPA shall escalate the enforcement response action by
issuing either a proposed administrative order or a proposed Federal Facility Compliance
Agreement to the violating Federal facility. EPA's use of either a proposed order or a
compliance agreement as the formal enforcement mechanism for Federal facility violations
is dependent upon both the scope of EPA's administrative order authority under each of the
environmental statutes and media program-specific enforcement guidance on the
appropriate use of Consent Orders vs. Compliance Agreements at Federal facilities.
Appendix I contains a statute-by-statute summary of EPA's administrative enforcement
response authorities for Federal facility violations. Since there are certain procedural
differences when using orders vs. compliance agreements at Federal facilities, these two
mechanisms are discussed separately as follows:
• Compliance Agreements
Where agreement has not been reached within the media program's timeframes for
formal enforcement action, EPA generally will issue a proposed compliance agreement
to a Federal facility and allow a specified period of time, usually 30 days, for the
Federal agency to respond in writing as to whether it agrees with the terms of the
agreement or whether it will seek resolution of disputed issues through EPA dispute
resolution process procedures. Upon issuance of the proposed compliance agreement,
EPA will notify the Federal facility that failure to either agree to the conditions of the
agreement or resolve the remaining issues within 30 days of issuance will trigger the
formal dispute resolution process. If at the end of the 30-day period, the Federal
agency chooses to accept the proposed compliance agreement, the agreement will
become final and effective upon signature by both parties. If the Federal Agency
appeals the conditions of the compliance agreement in writing or fails to respond within
30 days, the formal EPA dispute resolution procedures will be initiated. See Section
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B.l.e. below which outlines the formal procedures for escalating and resolving disputes
between Executive Branch agencies.
• Consent Orders
Where EPA has statutory administrative order authority for Federal facilities, and
where it is specified in media-program guidance, EPA will issue a proposed
administrative order to a Federal facility and allow a specified period of time, generally
30 days, for the Federal agency to respond in writing stating whether it will (a) accept
the terms of the proposed order on consent or (b) seek resolution through formal
administrative appeals procedures EPA has established for the type of order which was
issued (e.g., "Final Administrative Hearing Procedures for RCRA Section 3008 (h)
Orders," issued by EPA on February 19, 1987). If the Federal facility chooses to
accept the proposed order within the 30-day time period, it will be signed by both
parties and become a final consent order.
If the Federal facility fails to take advantage of this opportunity and does not
respond to EPA within the 30-day time period specified in the proposed order, the
order will become a final administrative order, effective at the time established in the
proposed order. It is important to point out that it is incumbent upon the Federal
agency to respond to EPA in writing within the timeframe specified in the proposed
order (i.e., generally 30 days) or it will become a final administrative order which will
foreclose any further opportunity to negotiate and sign an order on consent. This
approach is consistent with the Justice Department's position that EPA may not issue
Administrative Orders to other Federal agencies "without the prior opportunity to
contest the order within the Executive Branch."
When a Federal facility has chosen to appeal a proposed order through EPA's
established administrative appeals procedures, it shall be subjected to such proceedings
in the same manner and degree as any private party. If a settlement is reached through
the use of these appeals procedures, EPA and the involved Federal facility will both
sign a final administrative order on consent. If, however, these administrative
proceedings have been fully exhausted and agreement cannot be reached on consent,
the formal dispute resolution process will be initiated and the dispute will be escalated
to EPA Headquarters following the steps outlined in Section B. I.e. The proposed order
will be stayed pending escalation and resolution of the dispute.
B.l.e Internal EPA Dispute Resolution Procedures
This strategy sets forth EPA's basic Federal Facilities Dispute Resolution Process
as described in detail in Section B.l.f below. There are however, certain existing formal
administrative procedures which are applicable to all regulated entities and these will be
utilized for Federal facilities in appropriate circumstances. Certain media programs also
have issued specific written guidance for resolving disputes at Federal facilities which may
be followed consistent with the process outlined in Section B.l.f.below. The types of
internal EPA dispute resolution procedures that may be utilized to resolve compliance
problems at Federal facilities are:
1) Administrative procedures established for certain specific statutory authorities (e.g.,
"Final Administrative Hearing Procedures for RCRA Section 3008(h)");
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2) Media-program specific written guidance for dispute resolution at Federal facilities
(e.g., "Elevation Process for Achieving Federal Facility Compliance Under
RCRA," March 24,1988 (See Appendix K)); or
3) EPA's Federal Facilities Dispute Resolution Process as described below.
If available, established administrative procedures should first be invoked to resolve
disputes between Executive Agencies. If there are no existing administrative procedures in
place to resolve a conflict at a Federal facility, the Regions should utilize media specific
guidance, when available, or die general Federal facilities EPA Dispute Resolution Process
outlined below. Media-specific dispute resolution procedures for Federal facilities still
follow the general concepts set forth in the EPA Federal Facilities Dispute Resolution
Process. However, media-specific guidance may contain certain variations to
accommodate media program procedural difference or preferences.
B.1.T Federal Facilities Dispute Resolution Process
The focus of EPA's Federal Facilities Dispute Resolution Process is on cases where
EPA and the Federal agency are unable to agree on the conditions, terms or schedules to be
contained in a Compliance Agreement or Consent Order. This process is also sometimes
utilized for resolving disputes resulting from violations of signed agreements or orders. In
addition, certain EPA media programs (e.g., RCRA) have established other dispute
resolution procedures for use when a facility has violated the terms of a signed order or
agreement as described further in section B. l.f.
EPA will make every effort to resolve noncompliance disputes at the Regional level.
However, when EPA and a Federal agency are unable to reach formal agreement in a
signed Consent Order or a signed Compliance Agreement, the dispute will be formally
referred by the Regional Administrator (RA) to the Assistant Administrator (AA) for the
affected media program, the AA for the Office of Enforcement and Compliance Monitoring
and the AA for External Affairs as shown in Exhibit VI-2. This joint referral should take
place only after the Regional Office has tried to resolve the issue within established
timeframes for guiding what constitutes "timely and appropriate" enforcement response
(See Exhibit VI-1). In the Federal facility compliance process, the use of internal EPA
dispute resolution procedures is the functional equivalent of a referral of civil judicial
enforcement actions for prosecution in the sense that it provides a final forum in which
disputes may be resolved for Executive Branch Agencies.
A formal referral shall be sent to EPA Headquarters within 60 days after the
established media timeframc for formal enforcement action has been exceeded and the
Federal facility has failed to sign a proposed order or proposed compliance agreement. If a
proposed order has been appealed, EPA's formal administrative appeals procedures should
first be exhausted prior to making a formal referral to EPA Headquarters. The referral
package should describe the identified violation, provide a historical summary of the
communications and negotiations with the facility, identify enforcement actions taken
(including any State or citizen actions), identify the unresolved issues and include
appropriate support data, with documentation similar to a litigation report. The referral
package must be signed by the EPA Regional Administrator.
The Office of Federal Activities, or the lead media program office, will notify the
RA in writing when Headquarters receives the referral package and also will report to the
Region informally on a monthly basis and quarterly on a formal basis the status of those
facilities formally referred to Headquarters. The involved EPA Headquarters media
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program office, with assistance from OFA and OECM, will attempt to negotiate an
acceptable solution with the parent Federal agency Headquarters office within a maximum
of 90 days of the referral to EPA Headquarters. At the conclusion of this ninety-day
period, if these negotiations are unsuccessful, the Assistant EPA Administrator for the
affected media program will refer the dispute to the Administrator for resolution.
The EPA Administrator has primary responsibility for resolving environmental
disputes between Executive Branch agencies. The EPA Administrator will consult with the
head official of the parent Federal agency and make every effort to reach agreement on an
acceptable solution to the problem. If the EPA Administrator determines that there are
remaining issues that cannot be resolved, the Administrator may exercise his authority to
invoke the procedures afforded by Executive Order 12088 or Executive Order 12146 and
involve either OMB or DOJ, respectively, in resolution of the dispute.
B.1.g Use of Executive Order 12088 - Federal Compliance with
Pollution Control Standards
Section 1-602 of Executive Order 12088 states that "the Administrator shall make
every effort to resolve conflicts regarding such violations between Executive agenices."
The EPA Administrator may request OMB's involvement particularly in cases where
funding or schedules are the primary issues in resolving the dispute. Section 1-603 further
clarifies that OMB "shall consider unresolved conflicts at the request of the Administrator."
This means that the EPA Administrator is the only Executive Branch official who can
formally request OMB resolution of a conflict between Federal agencies under Executive
Order 12088. The section further states that in resolving such conflicts OMB "shall seek
the Administrator's technological judgment and determination with regard to the
applicability of statutes and regulations."
It also is important to point out that Section 1-604 of Executive Order 12088 states
that "these conflict resolution procedures are in addition to, not in lieu of, other procedures,
including sanctions, for the enforcement of applicable pollution control standards." This
provision recognizes that applicable EPA internal dispute resolution procedures shall be
utilized prior to Executive Order 12088 being invoked by the EPA Administrator.
B.1.h Use of Executive Order 12146 - Resolution of Interagency
Legal Disputes
Executive Order 12146 (Appendix B) provides for the submittal of legal disputes
between Federal agencies to the U.S. Attorney General whenever Executive Branch agency
heads are unable to resolve such legal disputes. The Executive Order clarifies that an
interagency "legal dispute" would include "the question of which [agency] has jurisdiction
to administer a particular program or to regulate a particular activity." In addition, Section
1-402 of Executive Order 12146 specifically states that:
"Whenever two or more Executive agencies whose heads serve at the
pleasure of the President are unable to resolve such a legal dispute, the
agencies shall submit the dispute to the Attorney General prior to proceeding
in any court, except where there is specific statutory vesting of
responsibility for a resolution elsewhere."
This means that while the EPA Administrator may invoke E.O. 12088 for Federal
facility disputes related primarily to funding and scheduling issues, he may invoke
Executive Order 12146 in cases involving legal disputes. Therefore, for Federal agency
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legal disputes the EPA will utilize its internal dispute resolution procedures prior to
invoking E.0.12146 as outlined above. When a legal dispute cannot be resolved between
the EPA Administrator and the involved Agency head, the EPA Adminstrator may request
the involvement of the Justice Department in resolving the dispute as outlined in E.O.
12146. Another significant difference between the E.O. 12088 and the E.O. 12146 dispute
resolution procedures is that, unlike E.O. 12088, referral of disputes to the Attorney
General is not limited to EPA, i.e., either Federal agency or both that are involved in a legal
dispute may submit the case to the Justice Department.
B.1.1 Use of Other Dispute Resolution Procedures for Violations of
Signed Agreements or Consent Orders
The internal dispute resolution procedures outlined above are used primarily to
resolve disputes which arise prior to the finalization of a signed Compliance Agreement or
Consent Order (e.g., the involved panics cannot agree on the terms, conditions or
schedules in the order or agreement). However, there are also situations where disputes
occur when a Federal facility violates the terms of a Compliance Agreement or Consent
Order which has already been signed by both EPA and the involved agency. In such cases,
other dispute resolution procedures may be utilized if EPA and the Federal facility had
previously agreed to use other means of resolving disputes that arise in the context of
signed agreements or consent orders. For example, the RCRA program has developed this
type of dispute resolution process as outlined in their January 25, 1988 guidance
memorandum "Enforcement Actions Under RCRA and CERCLA at Federal Facilities"
(See Appendix K). The primary differences between these procedures and what is provided
for in the Federal Facilities Dispute Resolution Process (Section B.l.f.) are different
timeframes and establishment of the EPA Administrator as the final arbiter for disputes
resulting from violations of signed agreements.
In addition, the use of alternative dispute resolution (ADR) procedures, i.e.,
employing neutrals such as mediators, fact-finders, or arbitrators, may be very helpful in
resolving compliance problems and disputes at a Federal facility (See the Administrator's
Guidance on the Use of Alternative Dispute Resolution in EPA Enforcement Cases, dated
August 14, 1987).
B.1.J Impact of Funds Availability on Achieving Compliance and
Negotiating Compliance Schedules
The Federal environmental statutes generally require that Federal facilities must
comply with pollution control requirements to the same extent as non-Federal entities. The
obligation of a Federal facility to comply is not solely contingent upon the availiability of
existing funds. In fact, Executive Order 12088 states that, "the head of each Executive
Branch agency shall ensure that sufficient funds for compliance with applicable pollution
control standards are requested in the agency budget." Specific exemptions under the
statutes discussed in Section B.l.k. do provide a highly limited exception where the
President has specifically requested an appropriation as part of the budgetary process and
the Congress failed to make available such requested appropriation (See RCRA §6001,
CAA§118,CWA§313).
Federal facilities are expected to seek all possible means of funding to achieve
environmental compliance. While the A-106 pollution abatement process is the primary
vehicle which Federal agencies use to plan for environmental projects, it is not the only
funding related mechanism available. Many compliance problems may not require large
capital expenditures, e.g., operation and maintenance (O&M) activities, and Federal
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agencies are expected to use all available existing funds to return to compliance in such
circumstances. Some Federal agencies have O&M accounts or capital accounts for building
and construction funding, which can serve as a source of funds. If a compliance problem
does require significant capital expenditures, the agency can consider reprogramming
funds, transfer authority, or requesting a supplemental appropriation, which will enable an
agency to receive funds in the year in which they are needed.
During negotiations on Compliance Agreements and Consent Orders, Federal
officials will be expected to offer the most expeditious means of funding required remedial
action(s). However, EPA recognizes that the Anti-Deficiency Act (31 U.S.C. §1341)
prohibits Federal officials from commiting funds beyond those they are authorized to
spend. Therefore, the language in the model Compliance Agreement in Appendix J simply
commits the Federal official to seek any additional necessary funding where existing funds
are unavailable to correct identified compliance problems. Additional appropriations should
be sought only where it has been determined that existing agency funds are either
unavailable or inadequate to address the violations. The Federal official signing a
Compliance Agreement or Consent Order should have the authority to obligate the funds or
make the necessary budget requests to expeditiously correct the violation according to the
schedule outlined in the Agreement or Order.
Section 1-602 of E.O. 12088 provides the opportunity for OMB to consider such
alternate sources of compliance funding as reprogramming or environmental accounts and
should be used by Federal agencies to ensure that all possible avenues of securing
necessary funds are exhausted.
B.1.k Exemptions
As directed by Section 1-703 of E.O. 12088, EPA can advise the President on
recommendations made by Federal agencies concerning exemptions of facilities from
compliance with applicable environmental regulations. Exemptions may be granted only
where such exemptions are necessary in the interest of national security or in the paramount
interest of the United States. Additional requirements are imposed in particular
environmental statutes, e.g., in some, such an exemption is authorized for one year and
may be renewed, if necessary. In addition, as noted in Section B.l.e, exemptions may
only be granted for lack of funds if the President specifically requests such funds from
Congress and they are denied. Section B of Chapter n summarizes the provisions of each
of the statutes which provide for such exemptions. It should be noted that while such
exemptions are provided for in the statutes, they have been rarely, if ever, invoked to date,
and it is not anticipated that there will be any increase in the request or granting of
exemptions in the future.
The Regional office will assist any Federal facility which believes it cannot comply
with pollution control requirements in finding ways to achieve compliance. Every effort
will be made to negotiate an alternative to an exemption which is acceptable to the parent
Federal agency, EPA, and State and local pollution control agencies.
If a Federal agency recommends that a facility receive an exemption, the EPA
Regional office will provide OFA, the Headquarters media enforcement office and OECM
with documentation of the problem so that EPA can establish a position on the exemption.
The Regional office should also submit its analysis of the pros and cons of granting such
an exemption. The analysis should include the positions of any affected States. OFA will
then submit a recommended position for the Administrator to submit to OMB with the
views of all affected offices within EPA.
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If an exemption is granted to a Federal facility, EPA will provide assistance to the
facility in order to correct the pollution problem as expeditiously as possible. The objective
is to bring the facility into compliance prior to the expiration of the exemption to preclude
the need for a renewal. A copy of the exemption will be sent to any affected States.
B.2 Enforcement Actions For Violations at Federal Facilities
Directed at Non-Federal Parties
This section outlines EPA's enforcement approach for addressing violations at
Federal facilities which are operated by private contractors or other non-Federal parties,
which generally are subject to the full range of EPA's civil judicial and administrative
enforcement authorities.
B.2.a Limitation on Civil Judicial Enforcement Actions Applies Only
to Executive Branch Agencies
Although EPA will not bring civil judicial enforcement action or assess civil
penalties under most statutes against other Executive Branch Departments and Agencies,
EPA intends to exercise its full authority to bring civil suits and assess civil penalties, as
appropriate, against parties that are not subject to this constraint
B.2.b Contractor and Other Private Party Arrangements Involving
Federal Facilities
Most environmental statutes authorize enforcement response to be pursued against
either facility owners, operators or both to correct violations of environmental law. There
are numerous Federal facilities and public lands which have some level of private party or
non-Federal government involvement in their operation or use. In its April 28, 1987
Congressional testimony the Department of Justice stated that EPA has the authority to take
enforcement action against private contractors at Federal facilities (See Appendix H). There
may be cases where it will be more appropriate to direct enforcement responses to these
other parties, or to both the non-Federal party and the Federal agency depending on the
nature of the non-Federal involvement, the language of the involved environmental statute
or other factors. This issue arises frequently at government-owned, contractor-operated
Federal facilities, commonly known as COCO facilities.
• EPA Enforcement Response Policy at COCO Facilities
EPA's initial enforcement response at GOCO facilities is influenced by a number of
factors including: the statutory language as to who can be held responsible, (i.e., providing
that enforcement can be directed at the owner, operator or both); decisions made by State
and EPA officials in deciding who the permit holder should be in the case of permit
violations; established contractual arrangements; the nature and type of violation(s); and
other factors which may determine where enforcement response will yield the most
expeditious return to compliance and deterrence for future violations. In this regard, it is
EPA policy to pursue the full range of its enforcement authorities against contractor
operators of government-owned facilities in appropriate circumstances. EPA also may take
enforcement actions against Federal agencies at GOCO facilities following the procedures
outlined earlier in this chapter. In certain situations, it may be appropriate to pursue
enforcement actions against both the private contractor and the involved Federal agency.
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As a follow-up to this strategy, EPA will be developing an Agencywide GOCO
Enforcement Strategy which will provide more detailed criteria and factors to be considered
in determining which party or parties to pursue enforcement action against. This strategy
shall also address the extent to which there are certain Federal agency-specific
circumstances which could affect to whom EPA's initial enforcement response should be
directed.
Exhibit VI-3 provides definitions of the various types of facilities and lands with
Federal involvement. This exhibit designates which party EPA generally will direct its
initial enforcement response against when violations are identified (i.e., either the Federal
agency or the involved private party). Given the complex mix of public and private
ownership, operation, and use of the term "Federal facilities," the guidelines in Exhibit VI-
3 should help EPA to eliminate delays in taking initial action to return violators to
compliance.
It is important to note that this approach focuses only on the party at which EPA's
"initial enforcement response" will be directed. Following this initial response, EPA's
review of additional information and possible discussions with each party may affect
against which party any further enforcement action should be taken, if such further action is
necessary. In addition, EPA's enforcement response against either or both parties does not
limit or otherwise restrict any future determination of their possible joint or several liability
in cases involving CERCLA or RCRA cleanup actions. Simultaneous enforcement actions
against both the Federal agency and the contractor should be considered if this would
facilitate resolution of the compliance problem.
• Notification Procedures for GOCO Enforcement Actions
When EPA has determined which party it will pursue enforcement action against,
EPA will make every effort to notify (through, at a minimum, a formal copy (cc) of the
enforcement action) other involved parties of the action being taken against either the
Federal facility or the contractor. This is important not only to enhance effective
communication but also to assist in bringing about expeditious compliance and remedying
the violation as soon as possible.
When EPA determines that its initial enforcement response will be directed at the
contractor, EPA will take enforcement action appropriate for private parties. This will
usually be an NOV, administrative complaint or the program equivalent (depending on the
nature of the violation and the media program guidance) to the contractor explicitly stating
that they are primarily or individually responsible for correcting the violation in a timely
manner and for responding directly to EPA by the date specified. The limitations on civil
judicial enforcement and on the imposition of penalties that is applicable to enforcement
actions against Federal Executive Branch Agencies, are not applicable to enforcement
actions taken against non-Federal parties. Where the notice or complaint is sent to the
contractor, it also will state that the involved Federal agency has been simultaneously
notified of the action being taken against the contractor. A copy (cc) of the action taken
against the contractor should not only inform the Agency of the enforcement action being
taken against the contractor but also include a notice which emphasizes the importance of
their responsibility to effectively oversee their contractor to ensure compliance (See
Appendix J). It should also request the Agency's complete cooperation in working with the
contractor to correct the violation and return the facility to compliance as quickly as
possible. In circumstances where Federal funding is required to correct the violation, the
approach and considerations described in Section B.l.j. are applicable and will be
considered in any agreements reached on expeditious compliance schedules.
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When EPA determines that its initial response should be directed at the involved
Federal facility, EPA will send, where appropriate, an NOV or the program equivalent to
the Federal facility stating that they are responsible for correcting the violation in a timely
manner and for responding to EPA by the date specified. A copy of the notice will be sent
simultaneously to the involved contractor.
B.2.C Contractor Listing
The regulations at 40 CFR Part 15 establish the contractor listing program in which
facilities that violate Clean Air or Clean Water Act standards may be put on a List of
Violating Facilities. Any facility on the List is ineligible to receive any non-exempt Federal
government contract, grant, or loan, or other assistance. Contractors operating Federal
facilities are not exempt from being placed on the List
Such listing is mandatory where a violation at a facility gives rise to a criminal
conviction under § 113(c) of the CAA or § 309(c) of the CWA. It is EPA policy to initiate
discretionary listing actions against recalcitrant contractors who are operating Federal
facilities in a manner which causes continuing or recurring violations of the CAA or the
CWA. Under the regulations, EPA may initiate a discretionary listing action against a
facility only if the facility is already the subject of requisite EPA or State enforcement action
against the contractor. The policies and procedures for the contractor listing program are
described in guidance issued by OECM "Implementation of Mandatory Contractor Listing,"
August 8,1984; "Implementation of Discretionary Listing Authority," July 18,1984; and
"Contractor Listing Protocols," October 1987.
B.3 Criminal Enforcement Actions at Federal Facilities
In situations where employees of Federal agencies have committed criminal
violations of environmental statutes applicable criminal sanctions may be sought against
such individuals, in the same manner as is done with respect to employees of other types of
regulated entities. Such criminal violations will be addressed in accordance with the
investigative policies and procedures of the EPA/NEIC Office of Criminal Investigations
and the Agency's criminal enforcement priorities set by the Office of Enforcement and
Compliance Monitoring.
B.4 Press Releases for EPA Enforcement Actions at Federal
Facilities
It is the policy of EPA to use the publicity of enforcement activities as a key element
of the Agency's program to promote compliance and to deter noncompliance with
environmental laws and regulations. Publicizing EPA enforcement actions on an active and
timely basis informs both the public and the regulated community of EPA's efforts to
ensure compliance and take enforcement actions at Federal facilities. The issuance of press
releases in appropriate circumstances can be a particularly effective tool for expediting
timely compliance at violating Federal facilities.
Consistent with EPA November 21, 1985, "Policy on Publicizing Enforcement
Actions," (Appendix L) the strategy for EPA press releases on enforcement actions at
Federal facilities is as follows:
• Press releases generally will be issued for major enforcement actions such as:
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- Significant Compliance Agreements or Consent Orders signed by both parties
(and approvals of major RAPs where Compliance Agreements are
unnecessary).
- Referral of disputes to EPA Headquarters when agreement cannot be reached at
the Regional level.
- Proposed contractor listings and the administrative decision to list.
All press releases should be done as a part of communications strategy which will
be developed for all EPA enforcement actions involving Federal facilities consistent with
EPA Order No. 1510.1 "Communication Strategy Document Development" issued April 7,
1987 and transmitted by memorandum from the Administrator to all EPA Senior Managers
on June 24, 1987. This order states that "Communication Strategy Documents will be
developed for all major actions by the appropriate AA or RA." "Enforcement Actions" are
included in the definition of Agency actions covered by the Order (See section 5 of EPA
Order 1510.1). At a minimum, these communication strategies should include provisions
for notifications to OEA and affected Headquarters program offices as well as a senior
ranking official at the affected Federal facility or agency.
EPA's decision to issue a press release and the contents of press releases are not
negotiable with Federal agencies or other regulated entities. The publicity of enforcement
actions against Federal facilities must be consistent with EPA's "Policy On Publicizing
Enforcement Actions" (GM-46) jointly issued on November 21, 1985 by the Office of
Enforcement and Compliance Monitoring and the Office of External Affairs; in addition, in
the case of criminal enforcement actions such publicity must be in accordance with the EPA
guidance memorandum (GM-55) "Media Relations on Matters Pertaining to EPA's
Criminal Enforcement Program" jointly issued by the Office of Enforcement and
Compliance Monitoring and the Office of External Affairs on December 12,1986.
B.5 Monitoring Compliance
The EPA Regional office is responsible for monitoring a Federal facility's
compliance with any remedial actions and associated schedules which have been agreed to
in formal EPA enforcement actions. Such Compliance Agreements or Consent Orders
between EPA and Federal facilities are tracked in the EPA Consent Decree Tracking System
maintained by the Office of Enforcement and Compliance Monitoring. Regional Federal
Facilities Coordinators in cooperation with the regional program offices, must closely
review A-106 submissions against all Compliance Agreements, Consent Orders, approved
remedial action plans or consent decrees to ensure that projects and corrective actions
agreed to are being requested as scheduled. Compliance monitoring and the A-106 process
are further addressed in Chapter V.
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EXHIBIT Vl-l
TIMELY AND APPROPRIATE ENFORCEMENT RESPONSE MATRIX
Policy Framework 1
National programs must
establish benchmark or
milestones for what
constitutes timely and
appropriate enforcement
cases toward ultimate
resolution and full
physical compliance.
In designing over-
sight criteria for
timely enforcement
response, each prog-
ram will attempt to
capture the following
concepts:
1. A set number of
days from detection
of violation to
NPOES2
Yes
Drinking
Water3
Yes
UlC4
AIRS
RCRA*
Yes
Yes
Yes
Date of viola-
tion is when
agency learns
about violation
Required to
screen all DMRs
within 30 days
of receipt.
By the time a
permittee ap-
pears on the
QNCR, Informal
or formal en-
forcement ac-
tions should
have been Initi-
ated.
Clock starts
after State
Is consider-
ed to have
"discovered"
an SNC
(within 2
months after
the end of
each report-
ing period).
Clock
starts
30 days
after
date of
insp. or
receipt
of self-
monitor-
ing re-
port.
The SNC
should
be re-
solved
by the
end of
the
quarter
in which
the SNC
first
Appears.
Clock starts
30 days af-
ter date of
inspection
or receipt
of a source
sel f-moni-
toring re-
port which
first iden-
ti fies the
violation.
By day 45
source should
be not) f ied
by State of
the violation
Clock starts when
case development
staff determines
a violation has
occurred through
review of inspec-
tion report and/
or other data
(for tracking pur-
poses, fixed at
45 days after in-
spection.
Initial enforce-
ment response for
Class I violators
is an NOV within
30 days of dis-
covery. For High
Priority Violators
thor^ is no initi-
tial informal ac-
tion—the initial
action is formal.
FIFRA6
Yes--l/5/83
Interpretative
Rule re State
Primacy for
use violations
which deal on-
ly with in-
stances where
EPA refers
violations to
State,'not
with viola-
tions dis-
covered by
States.
Clock starts
when EPA re-
fers signifi-
cant violators
to State.
State has 30
days to ini-
tiate an in-
vestigation
(can obtain
extensions
based on
cumstances)]
1. "Policy Framework for State/EPA Enforcement Agreements" August 25, 1986.
2. "FY 1987 National Guidance for Oversight of NPOES Program" April 18, 1986.
3. "Guidance for FY 1987 PWSS Enforcement Agreements," August 1986, "PUSS Compliance Strategy," April 1, 1987,
and "Definitions of Timely and Appropriate Action and Significant Non-Compl lance." August 27, 1987.
4. "UlC-Program Guidance 153," December 1986 and 1IIC Compliance Strategy." March 31, 1987.
5. "Timely and Appropriate Enforcement Response Guidance" April 11, 1986.
6. "Enforcement Response Policy" December 21, 1984.
7. Interpretive Rule - FIFRA State Primacy Enforcement Responsibilities, 40 CFR Part 173, Jan. 15. 1983.
VI-18
-------
Framework
Over a specific
period of time, a
ful 1 range of en-
forcement tools
may be used to try
to achieve com-
pl iance.
UHlBir Vl-i (continued)
TIMELY AND APPROPRIATE ENFORCEMENT RESPONSE MATRIX
NPOES
Discussed full
range of infor-
mal , formal,
administrative.
and judicial
enforcement
tools.9
Drinking Water
Discusses full
range of infor-
mal , formal,
administrative
and judicial
enforcement
tools.10
UIC
AIR
Di scusses
ful1 range
of informal,
formal, ad-
mini strative,
and judicial
enforce-
ment tools.
RCRA
Focuses on Allows for full
formal enforce- range of en-
ment but imp) ies forcement res-
use of informal ponses for
tools. EPA may Class I & II
develop case at violations.
day 90 and will
normally issue
NOV at day 120
if violation is
still un-
resolved.
FIFRA
Interpretive
rule focuses
on formal
enforcement
action.
3. A prescribed num-
ber of days from ini-
tial action within
which a determination
should generally be
made that either com-
pl iance has been
achieved or an admini-
strative enforcement
action has been taken
which meets minimun
formal requirements,
or judicial referral
is initiated a's
appropriate.8-
Prior to
appearing on a
2d QNCR for the
same violation
(generally w/i
60 days of the
1st QNCR identi-
fying the SNC)
permittee must
be in compl iance
or formal en-
forcement action
must be taken.
(p. 30) Per-
mittees that are
still in viola-
tion on the 2d
QNCR, go on
Exceptions List
which is part of
SPMS system.
Prior to
appearing on
a 2d quarterly
report for the
same violation,
source must be
in compl iance,
on an enforce-
able compl i-
ance schedule,
or formal en-
forcement ac-
tion must be
taken.
Prior to
appearing on
a 2d quarter-
ly report for
the same vio-
lation,
source must
be in com-
pl iance, on
an enforce-
able schedule
or formal
enforcement
action must
be taken.
By day 120,
source must be
either in corn-
pi iance or on an
administrative
or judicial or-
der, subject to
referral , or
subject to pro-
posed SIP revi-
sion that is
likely to be
approved and is
scheduled for
State hearing.
High Priority
Violators must
commence with
formal enforce-
ment within
90 days of
discovery. For
medium priority
violator, if com-
pl iance 1s not
achieved w/i 90
days after the
violation discovery,
a decision to
escalate is made.
After the in-
vestigation
is completed.
States have
30 days to
commence the
enforcement
action.
8. Formal enforcement action defined in Policy Framework as having, at a minimum, the following elements:
- explicitly recjuires recipient to take some corrective/remedial action, or refrain from certain behavior, to
achieve or maintain compliance;
- Explicitly is baed on the issuing agency's determination that a violation has occurred;
- Requires specific corrective action, or specifies a desired result that may be accomplished as the recipient
chooses, »"<< specifies a timetable for completion;
- May Impose requirements in addition to ones relating directly to correction, e.g., specific monitoring,
planning, or reporting requirements; and
- Contains requirements that are independently enforceable without having to prove original violation and
subjects the person to adverse legal consequences for noncompliance.
9. See "Enforcement Management System Guide" issued 2/27/86 by AA for Water for Enforcement Response Guide.
10. See "Safe Drinking Water Act Public Water System Settlements" - Interim Guidance" issued 11/17/83 by AA for OECM.
VI-19
-------
EXHIBIT VI-1 (continued)
TIMELY AND APPROPRIATE ENFORCEMENT RESPONSE MATRIX
Policy Framework
4. Follow-Up and
Escalation: ATpec i -
fie point at which a
determination Is made
either that final
physical compliance
has been achieved or
that escalation to
a judicial enforce-
ment action should be
taken if such actions
have not already
been initiated.
5. Final physical
compl iance date is
f irmly establ ished
and required of
the facility.
6. Expeditious
physical compli-
ance is required.
7. Scope of Coverage:
At d minimum, signi-
ficant noncompliers
are to be addressed.
Expansions to larger
universe to be con-
sidered at later
date.
HPOES
Drinking Water
UIC
AIR
RCRA
FIF
Guidance estab-
lishes goat that
cases should
proceed from re-
ferral to filing
in 60-90 days.
SNC lists track
until compliance
is achieved.
PCS tracks com-
pl iance w/ AOs.
Consent Decree
tracking follows
milestones until
compliance 1s
achieved.
Enforcement
case-specific
Violator Is re-
turned to com-
pl lance as ex-
peditiously as
possible
SNC who are
major per-
mittees
SNC lists
track until
appropriate
action is
taken or
system returns
to compliance
without an
enforcement
action.
Consent dec-
ree tracking
follows mile-
stones until
compliance is
achieved.
SNC lists
track until
compliance
is achieved.
Consent Dec-
ree tracking
follows mile-
stones until
compl lance
is achieved.
COS tracks
status of com-
pl iance with
schedule until
physical com-
pl iance is
achieved.
Consent Decree
tracking
follows mile-
stones until
compl iance is
achieved.
PWSS AO tracking
SNC lists track
until compliance
is achieved.
Consent Decree
tracking
follows mile-
stones until
compl iance is
achieved.
See 3/24/88
OSWER memo on
Elevation
Process for
Achieving
Compliance at
Fed. Facilities.
— ^^K.
Interpretive
rule has cri
teria for re
ferring sign
ficant cases
Consent Dec-
ree tracking
follows mil e
stones until
compl iance
is achieved
for all
cases.
system will track
milestones in
federal AOs.
Enforcement
case-specific
No specific
language.
SNCs as de-
fined for
MCL, M/R and
chem/rad
violations.
Enforcement
case-specific
No specific
language
SKCS as
defined ana
appl led to
all well
classes.
Enforcement
case-speci fie
Expeditious
compl iance
inpl ic it in
guidance.
The fol (owing
classes of SNC:
Class A SIP vi-
olators in non-
attainment areas
Enforcement
case-specific
Expeditious
compl iance
required.
Applies to
High Priority
Violators and
medium priority
violators
Enforcement
case-speci fii
Intepreti^^
rule cov^^H
significa^P
violations
that EPA re-
fers to State
Not appropri-
ate
in violation
for pollutant for
which area is in
nonattainment,
NSPS violators and
sources operating in
violation of Part CS
D permit requirements;
and NESHAP violators.
VI-20
-------
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VI-21
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VI-23
-------
CHAPTER VII
HOLE OF THE STATES IN
RESPONDING TO FEDERAL
FACILITIES VIOLATIONS
-------
VII. ROLE OF THE STATES IN RESPONDING
TO FEDERAL FACILITIES VIOLATIONS
The purpose of this Chapter is to clarify the role of the States in responding to
Federal facilities violations and to highlight several aspects of the State/EPA relationship
that will be spelled out in the State/EPA Enforcement Agreements. This Chapter should be
read in conjunction with Chapter VI, which sets forth the basic approach and procedures
EPA and delegated or approved States will use when responding to violations of Federal
law at Federal facilities.
A. STATE RESPONSE TO FEDERAL FACILITIES VIOLATIONS
States with delegated or authorized Federal programs have primary responsibility
for responding to violations at Federal facilities under most of the environmental statutes
with a few exceptions such as toxic chemical controls under TSCA, and enforcement of
certain motor vehicle requirements under the Clean Air Act. In addition, as discussed in
Chapter H.A of this Strategy most Federal environmental statutes require that Federal
facilities must comply with Federal laws and regulations, but also with all applicable State
and local environmental requirements to the same extent as non-Federal entities.
EPA retains parallel legal authority and responsibility to enforce Federal law even in
delegated or approved States. As a matter of policy, in order to avoid duplication of effort
where both EPA and States have parallel enforcement authority, EPA enforcement action in
States where programs are delegated or approved only take place when a State: (1) fails to
take timely and appropriate action, (2) requests EPA to take the lead or decide that joint
enforcement action is appropriate, or (3) in other limited circumstances as outlined in the
"Policy Framework for Implementing State/EPA Enforcement Agreements." The remainder
of this section highlights the following areas concerning State responses to Federal facility
violations:
• The use of State enforcement authorities;
• State enforcement response following EPA inspections in delegated States; and
• The relationship between EPA and State enforcement actions against Federal
facilities.
A.1 Use of State Enforcement Authorities
As noted above, most EPA statutes envision that States with adequate authority and
capability will assume operating responsibility for environmental programs, including
Federal facilities. While the extent of delegation varies from program to program and State
to State, the majority of EPA's responsibility for direct program administration on a day-to-
day basis including initial obligation for enforcement, has been assigned to the States
through delegation or authorization.
States are not subject to the same constraints as EPA regarding enforcement actions
against Federal facilities. As a result, States generally may exercise a broader range of
authorities and enforcement tools than EPA to address violations at Federal facilities.
States should use the full range of their enforcement authorities to address Federal facility
violations to the same extent they are used for non-Federal facilities while meeting the
requirements of timely and appropriate enforcement response. States are also encouraged,
vn-i
-------
wherever possible, to pursue bilateral, negotiated agreements, or consent orders or decrees
as appropriate with Federal facilities or three party (EPA/State/Federal agency) agreements
as outlined in Section B.l.c where this would facilitate compliance. EPA will, however,
deem acceptable any State enforcement approaches which are at least comparable to EPA's
in meeting goals for timely and appropriate enforcement response.
A.2 State Enforcement Response Lead Following EPA Inspection
in Delegated States
Even where program authorities are authorized or delegated to States, EPA may
conduct inspections of regulated entities, including Federal facilities, for a variety of
purposes including State oversight, response to citizen complaints, as part of special
enforcement initiatives, or where required by statute (e.g., RCRA Section 3007(c) and
(d)). EPA generally provides States with advance notification prior to such inspections and
generally invites them to participate.
When violations are identified through such EPA inspections of Federal facilities in
delegated States, EPA will immediately contact the State and offer them the first
opportunity to pursue timely and appropriate response with the involved Federal facility,
consistent with the State's delegated authority. EPA will send the inspection report
identifying any violations to the Federal facility simultaneously with EPA's sharing of this
information with the State. An up-front mutual decision will then be made between EPA
and the responsible State agency as to which of them will take any follow-up action. If a
State is unwilling or unable to take action, or fails to take action in a timely manner after
initially agreeing to pursue the case, EPA will take direct Federal action after advance
consultation and notification of the State pursuant to the State/EPA enforcement agreement
To the extent possible, arrangements should be made in advance in individual
State/EPA Enforcement Agreements on the types of situations involving Federal facilities in
which the State would request EPA suppon or direct action, paying particular attention to
these situations in which follow-up is required to EPA inspections. In particular, in the
case of a State's use of an EPA inspection as the basis for its own action, EPA and the
State should agree on how EPA evidence and expertise will be utilized in taking State
enforcement action. How the State uses EPA's inspection report will be up to the State so
long as the state's response to any violations identified by EPA's inspection report are
addressed in a timely and appropriate manner.
A.3 EPA Involvement in State Enforcement Actions
Because of EPA's ongoing responsibility to provide technical assistance and
support to Federal Agencies in achieving compliance, as required under E.O. 12088, EPA
may need to be involved in assisting to resolve noncompliance problems even when a State
takes the lead in an enforcement action. If either the State or the Federal facility in violation
requests EPA's involvement, EPA will participate to the extent determined appropriate by
affected Regional program division directors in consultation with the Federal Facility
Coordinator. EPA's involvement should focus more on resolving disputes rather than on
providing project-level technical assistance to the Federal facility which could conflict with
the State's ongoing enforcement proceedings.
As directed in E.O. 12088, EPA has a duty to "make every effort to resolve
conflicts regarding such violations between Executive agencies and, on request of any
party, such conflicts between an Executive agency and a State, interstate or a local agency."
However, in each such case, EPA's involvement will respect the perogatives of the State to
VH-2
-------
pursue independent enforcement action and EPA will be careful not to interfere with State
enforcement proceedings. EPA will offer both parties its assistance to promote a speedy
resolution of identified problems, and communicate fully with both the State agency and
affected Federal agency officials of its responses and suggested role consistent with EPA's
conflict of interest rules and judicial ethics.
A.4 Relationship of State Administrative and Judicial Citizen Suits
to EPA Compliance Agreements
Usually, when EPA pursues a judicial enforcement action against a violator, it
serves as a bar to further enforcement action by States or citizen (under citizen suit
provisions provided in most of the statutes) for similar action for the same violation. The
Federal EPA enforcement process described for Executive Branch Agencies relies heavily
on Compliance Agreements, which do not bar State administrative or judicial actions or
citizen suits to compel compliance by Federal Agencies. Therefore, when EPA has
negotiated a Compliance Agreement, as opposed to issuing an Order on consent, it would
not legally affect the rights of non-parties to the Agreement. Despite EPA's belief that in
the vast majority of cases Compliance Agreements should be a very effective means of
ensuring a prompt return to compliance, there may be circumstances in which States or
private citizens choose to exercise their rights to take further enforcement action. EPA
encourages such non-parties to the EPA/Federal agency Compliance Agreement to fully
consider and use it as a basis for relief sought in their own actions to seek expeditious
compliance. It is also for the above reasons that it is desirable for States to sign Compliance
Agreements and Consent Orders along with EPA and involved Federal facilities. In
addition, EPA compliance agreements may contain enforceability clauses which recognize
the rights of states and citizens to enforce these agreements through the citizen suit
provisions of the relevant statutes.
B. FEDERAL FACILITIES IN THE STATE/EPA ENFORCEMENT
AGREEMENTS PROCESS
State and Federal roles are defined through negotiated multi-year State/EPA
Enforcement Agreements, which are reviewed annually on a State-by-state basis for each
environmental program. Implementation of these agreements is guided by the EPA "Policy
Framework for State/EPA Enforcement Agreements" (issued June 26, 1984, revised and
reissued June, 1986), associated national program implementing guidance, and an annual
guidance memo on the enforcement agreements process from the Deputy Administrator to
the Regions. The purposes of these Agreements are: to establish clear expectations for
what constitutes a good State or EPA enforcement program through oversight criteria
specified in advance, to establish clear roles and responsibilities for State and Federal
enforcement to avoid duplication of effort and use limited resources effectively and
efficiently, and to ensure effective national reporting of accomplishments.
The Regions have a great deal of flexibility in determining the form of the
agreements and the internal process for handling the agreements. Some Regions have
umbrella agreements that include all programs in one comprehensive agreement negotiated
between the RA and the State Environmental Commissioner. Other Regions have program-
specific agreements with the respective State Agency. To the extent possible, Regions are
encouraged to incorporate the enforcement agreement provisions into existing documents,
e.g., grants, Memorandum of Understanding's, State/EPA Agreements.
The timing of negotiations/reviews of the agreements depends on the vehicle chosen
and the Region or State planning cycle. Regional program staff should consult with the
VH-3
-------
Federal Facilities Coordinator in the development and negotiation of the Enforcement
Agreements.
While most aspects of the Agreements pertain equally to Federal and non-Federal
facilities, this Chapter focuses on how Federal facilities should be explicitly addressed in
the State/EPA Enforcement Agreements in three of the areas covered in the Policy
Framework: clear oversight criteria, criteria for direct Federal action, and advance
notification and consultation.
B.1 CLEAR OVERSIGHT CRITERIA AND OVERSIGHT APPROACH
There are seven general criteria mentioned in the Policy Framework and covered in
various forms in program guidance:
B.1.a Identification of and Priorities for the Regulated Community
States will be expected to have included Federal facilities in their inventories and
program information systems, appropriately identified as such through the use of assigned
Federal facility ID numbers. The Federal Facility Coordinator will make the information
available to the State on the different types of Federal facilities using the FINDS
information system. As part of the enforcement agreements process, EPA Regions and the
State will review any special needs for identifying and tracking Federal facilities.
B.1.b Clear and Enforceable Requirements
Requirements established through permits, compliance agreements, administrative
orders, and consent decrees should define in enforceable terms a timetable for Federal
facility remedial actions. In particular, EPA and the States need to assure that Federal
facilities have permits that are current. If there are permitting problems at Federal facilities,
Regions and States should develop a strategy for addressing them as part of the annual
work plan negotiations process, consistent with national program permitting strategies,
where applicable.
B.1.C Accurate and Reliable Compliance Monitoring
EPA and the State will review the planned inspection schedules for the corning year
for each program to ensure that Federal facilities are inspected at required frequencies.
EPA will assist in resolving any particular problems of access to facilities that the
States may be encountering, including instructions on how to obtain security clearances,
where necessary.
B.1.d High or Improving Rates of Continuing Compliance
As part of each media program tracking system, administering agencies should
track the progress of returning Federal facility significant violators to compliance. To
ensure broad Federal facility compliance, the States may be asked to participate in targeted
initiatives in compliance monitoring and enforcement for Federal facilities of specific
agencies or by facility type.
vn-4
-------
B.1.6 Timely and Appropriate Enforcement Response
States are responsible for taking timely and appropriate enforcement action, as
described in Chapter VI. EPA Regions and States are to reach agreement on adapting
national definitions of appropriate enforcement response and timeframes to state-specific
authorities and procedures. Regions and States should discuss the enforcement approach
the State generally plans to use for responding to Federal facility violations. They should
also reach agreement on any differences in procedure that the State plans to use, if any, that
are different from those used for non-Federal facilities. For example, the Region and State
should discuss any upfront agreements the State wants to make about taking enforcement
action based on an EPA inspection (e.g., for statutorily-required EPA inspections of
Federal TSD's in RCRA), and agree on how Federal or State evidence and expertise will be
used in taking such action.
B.1.f Accurate Recordkeeping and Reporting
In order to support an effective program, administering agencies must have timely,
complete, and accurate information on Federal facility compliance status and enforcement
actions. States should report Federal facility compliance data as part of each program's
reporting measures and commitments (e.g., SPMS and program-specific system). The
Regions should also request States to provide different information on Federal facilities
compliance status if mutual agreement can be reached as pan of the State/EPA enforcement
agreements process. EPA is especially interested in receiving copies of State enforcement
actions at Federal facilities.
B.2 DIRECT EPA ENFORCEMENT
EPA will take direct Federal action principally where a State is unwilling or unable
to take "timely and appropriate" enforcement action, or where the State asks EPA to join in
or take enforcement action. To the extent possible, arrangements should be made in
advance, as part of the enforcement agreement, concerning the types of situations in which
the State would request EPA to take direct enforcement action to address Federal facility
violations.
B.3 ADVANCE NOTIFICATION AND CONSULTATION
As part of the agreements process, Regions and States are to agree in writing as to
who, how, and when EPA will notify and consult with the State agency in advance of
Federal inspections and enforcement actions. Federal facilities may involve a greater or
different need for coordination between States and Regions than non-Federal facilities,
particularly where the Federal facilities request EPA technical assistance or where EPA is
required to conduct an inspection (e.g., under RCRA). Because Federal facilities
compliance problems are often of a multi-media nature, it may be appropriate to arrange a
single point of contact in a State, statewide or in a particular program, for Federal facility
issues.
The advance notification and consultation protocols in the State/EPA Enforcement
Agreements should incorporate any of the above-mentioned types of special arrangements
necessary for Federal facilities.
The protocols should also address how the State will be involved in the review of
Federal agency A-106 submissions, and include plans for an annual review of patterns of
compliance problems at Federal facilities in the State.
VH-5
-------
CHAPTER VIM
EPA ROLES AND
RESPONSIBILITIES
FOR
PROGRAM IMPLEMENTATION
-------
VIII. EPA ROLES AND RESPONSIBILITIES
FOR PROGRAM IMPLEMENTATION
The Federal Facilities Compliance Program is a multi-media program requiring
close coordination and cooperation among all involved parties. The purpose of this
Chapter is to clarify the roles and responsibilities of EPA Headquarters staff and the
Regional offices for implementing the Federal facilities program and this Strategy. This
Chapter is necessary in order to ensure implementation and integration of all elements of
this strategy into the various media programs and EPA's overall internal management
systems.
The EPA tasks for ensuring Federal facilities compliance are divided between the
Regional offices and Headquarters staff. Coordination among both staffs is necessary to
ensure that this Strategy is executed consistent with national and program policies,
procedures, and guidance. Therefore, this Chapter has been divided into the following
sections:
(1) Regional office staff - This section addresses the roles and responsibilities of the
Regional Administrator, Deputy Regional Administrator, Regional Counsel
Regional Program Staff/Division Directors, and Regional Federal Facilities
Coordinators for implementing various aspects of the Strategy.
(2) Headquarters offices - This section describes the roles and responsibilities of those
Headquarters offices that have certain responsibilities for coordinating and working
with the Regions on Federal facility activities.
Responsibilities for implementing key strategy features such as identification of the
regulated community, technical assistance/ training, compliance monitoring, involvement in
the A-106 review process, and participation in the dispute resolution process are described
for Headquarters and Regional program offices and staff.
A. REGIONAL OFFICE STAFF
The following section describes the roles and responsibilities of the Regional office
staff with regard to the Federal facilities program. See Exhibit Vni-1 at the end of this
Chapter for a diagram which depicts these Regional relationships.
A.1 Regional Administrator
The Regional Administrator (RA) ensures that Agency policies and guidance on
implementing Executive Orders 12088 and 12146 and the environmental statutes are
effectively carried out. The RA is responsible for the level of Federal facility compliance in
the Region through encouragement of and support for the Regional staff in their efforts to
resolve compliance problems at Federal facilities. The RA will formally refer disputes with
other Federal agencies that cannot be resolved at the Regional office level within established
media timeframes to the Assistant Administrator (AA) for the affected media program, the
AA for External Affairs and the AA for OECM. These referrals will be signed by the
Regional Administrator.
vm-i
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A.2 Regional Administrator/Deputy Regional Administrator
The RA or Deputy Regional Administrator (DRA) defines the following based on
internal Regional operating procedures consistent with the guidelines in this strategy:
(a) Involvement of Regional Counsels and the role of Program Divisions in the
issuance of enforcement actions and negotiations of compliance agreements for
Federal facilities;
(b) The process for evaluating inspection schedules for Federal facilities and
opportunities for multi-media inspections and the respective roles of the Program
Divisions, Environmental Services Divisions (ESD's) and Federal Facilities
Coordinators in this process;
(c) Designation of Regional staff responsible for signing Compliance Agreements,
NOV's, Consent Orders, etc., for Federal facilities violations;
(d) Assurance that Regional program reviews/audits of delegated State programs
include a review of the State's progress in addressing Federal facilities
compliance problems and ensuring that Federal Facilities Coordinators are informed
and involved in these reviews;
(e) Responsibilities for Regional review of Federal agency A-106 submissions and
coordination with States on the A-106 process; and
(f) Assurance mat Federal facilities compliance is specifically addressed in State/EPA
enforcement agreements.
In appropriate cases where agreement cannot be reached in the negotiation of
Compliance Agreements or Consent Orders with Federal facilities, Regional staff should
escalate unresolved issues to the RA/DRA for resolution within media specific timely and
appropriate timeframes prior to issuance of a proposed Order. The RA/DRA may then
choose to contact an equivalent level official at the involved Federal agency to attempt to
resolve remaining issues.
A.3 Regional Counsel
Upon request, the Regional Counsel provides legal advice to the RA, the Federal
Facilities Coordinator, and the Regional media program staff on:
• Determining the compliance status of Federal facilities;
• Evaluating the sufficiency of data supporting compliance determinations;
• Negotiating agreements on solutions to compliance problems;
• Resolving compliance disputes with Federal facilities; and
• Reviewing draft Compliance Agreements and Consent Orders for their legal
sufficiency and consistency with Agency policy.
Each Region should clearly identify the role of the Regional Counsel in the Federal
facilities compliance process. It is imperative, however, that the Regional Counsel consult
with OECM and Headquarters Office of General Counsel on questions of national
significance concerning Federal facilities.
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A.4 Regional Program Staff/Division Directors
Each Region is responsible for designating a staff person to serve as the primary
point of contact for the Federal Facilities Coordinators to deal with on media-specific
Federal facilities compliance issues. This designee also is responsible for the following
activities.
Identifying the Regulated Community - Ensure that Federal facilities data in program
information systems is maintained through the use of a support identification code for
Federal facilities.
Technical Assistance/Training • Assist Federal Facilities Coordinators with their Regional
multi-media technical program workshops for Federal facilities in their Region. In addition,
provide the Federal Facilities Coordinator and OFA, at the beginning of the fiscal year,
with the program's annual training plan and notify the Federal Facilities Coordinator of all
program training courses and workshops which will be open to Federal facilities in the
Region. On a quarterly basis, notify the Federal Facilities Coordinator of availability of
spaces for Federal facilities participants.
On-the-job training opportunities should be considered for officials of other Federal
agencies where feasible, in cooperation with Regional Federal Facilities Coordinator.
Compliance Monitoring • Ensure that Federal facilities are receiving the required number of
inspections for programs where EPA has the lead. This includes conducting at least the
same percentage of program oversight inspections for Federal facilities as is done for other
facilities in delegated or approved states. The Regional media-program contact should
provide the Regional Federal Facilities Coordinator with copies of all EPA inspection
reports of Federal facilities.
State Oversight - Develop and negotiate the State/EPA Enforcement Agreements in
consultation with the Federal Facilities Coordinator and ensure that at least the required
number of inspections of Federal facilities are being conducted in delegated or authorized
States.
The Regional media-contact should ensure that a separate component in the
Regional reviews/audits of delegated programs is included on State handling of Federal
facilities compliance problems. This insert should be developed in consultation with the
Federal Facilities Coordinator.
Responding to Violations - At the beginning of the fiscal year and periodically as required
by the program, the Regional media-contact in coordination with the Regional Federal
Facilities Coordinator, identifies those Federal facilities in significant noncompliance and
following media-program Strategic Planning and Management System (SPMS)
requirements, reports program actions against the identified Federal facilities Significant
Noncompliers (SNCs) to Headquarters. Also, works with the Federal Facilities Coordi-
nator to establish quarterly targets for Federal facilities inspections.
Following consultation with the Regional Federal Facilities Coordinator, the
program offices are responsible for issuing NOV's, Compliance Agreements, and/or
Consent Orders, where appropriate, for Federal facilities violations within the time frames
established in program-specific timely and appropriate guidance. Program Division
Directors have the responsibility for sign-off on Federal facilities NOV's, Compliance
Agreements and Consent Orders in most Regions consistent with the delegations of
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authorities for their respective media. Federal Facilities Coordinators should be notified by
Division Directors prior to issuance of any enforcement action to a Federal facility. For any
disputes formally referred to Headquarters under the RA's signature, the program offices
are responsible for formulating referral packages, in consultation with the Federal Facilities
Coordinator.
Where there is contractor or other private party involvement at a Federal facility
(e.g., GOCO's), the program office must ensure that other panics receive a copy of any
enforcement action sent to any of the involved parties.
Involvement in A-106 Review Process - Another responsibility of the Regional media-
program contact is to review all Federal agency A-106 submissions and provide comments
to the Federal Facilities Coordinator on media-related pollution ab >ment projects in the
areas of engineering, timeliness, and cost to ensure that proposes projects have been
appropriately designed and adequately funded to meet compliance requirements. In
addition, Regional media-program contacts must work with the Federal Facilities
Coordinator on identified media program priority areas that should be targeted for A-106
projects by Federal agencies.
As requested, media-program contacts should participate in on-site preliminary
planning and design review conferences for significant projects with the Federal Facilities
Coordinator.
Consent Decree Tracking System - In consultation with the Regional Federal Facilities
Coordinator, media-program contacts will report to HQ/OECM on the status of compliance
with the schedule and actions agreed to in an EPA Compliance Agreement or Consent
Order with Federal facilities, following guidance on the Agency's Consent Decree Tracking
System. Items reported should be consistent with SPMS requirements for consent decrees.
(This is consistent with the guidance on "Consent Decree Tracking," Memorandum from
Alvin L. Aim, Deputy Administrator, dated August 15,1984.)
A.5 Regional Federal Facilities Coordinator
The Federal Facilities Coordinator is responsible for coordination with Regional
program offices on implementation of Federal facilities compliance activities in the Regional
office. The Coordinator also is the Regional liaison with the Office of External Affairs
(OEA) and serves as the primary point-of-contact for EPA with all Federal agencies in the
Region on environmental compliance matters. Duties of the Coordinator typically include:
• Ensuring that the Regional staff are knowledgeable on guidance issued by OEA;
• Coordinating and quality assurance of Regional A-106 reviews;
• Monitoring actions being taken by the Regional staff to resolve compliance
problems at Federal facilities;
• Coordinating negotiations of Compliance Agreements; and
• Providing data to OEA on the compliance status of Federal facilities located in the
Region.
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Besides those duties mentioned above, the Federal Facilities Coordinator has specific
responsibilities for implementing various aspects of this Strategy and the Federal facilities
program as highlighted below.
Identifying the Regulated Community - Regional Federal Facilities Coordinators regularly
identify Federal facilities information, by type of facility, (i.e., GOGO, GOCO, POGO,
etc.) in the Facility Index System (FINDS) information system. Data for this system is
provided by Regional program offices and States in order to track the compliance status of
Federal facilities. In addition to identifying the regulated community via FINDS data, all
Coordinators should develop a name list for applicable media programs of those Federal
facilities minor sources considered to be environmentally significant (limited to no more
than to 10% of all minor sources per program) and monitor the compliance status of these
sources. Besides maintaining the list of minor sources, they also track those facilities
which are the most environmentally significant in each Region. This list is updated
annually in consultation with media program staff.
Technical Assistance/Training - The Federal Facilities Coordinators are tasked to conduct at
least one Regional multi-media technical program workshop annually for Federal facilities
in their Region with assistance from program offices. In addition, they invite Federal
agency environmental personnel in each Region to bimonthly meetings to discuss new and
upcoming program, generic compliance problems, etc.
The Coordinator serves as the Regional clearinghouse for information exchange
with Federal agencies on new regulations, policies, etc. They also identify appropriate
EPA training courses and workshops for the Federal agencies and in coordination with
media program offices and conduct compliance program assistance visits to facilities to help
them with overall environmental program practices and management
As part of their technical assistance role, Federal Facilities Coordinators provide
Federal agencies assistance with designing environmental auditing programs through
training, workshops, guidance manuals, etc.
Compliance Monitoring • Federal Facilities Coordinators work with Regional program
offices and Environmental Services Division (ESD) to establish quarterly targets for
Federal facilities inspections and schedule multi-media inspections, as appropriate. As part
of this effort, the Coordinators provide ESD annually with a name list of Federal facilities
that are appropriate candidates to receive multi-media inspections based upon their
environmental significance in a number of media program areas.
Part of their compliance monitoring tasks involve coordination with program offices
prior to negotiations with States on the State/ EPA enforcement agreements to decide on a
mutually acceptable approach to receive compliance and inspection data on Federal facilities
from delegated or approved States.
Involvement in A-106 Review Process - Coordination of the Regional office review of
Federal agency A-106 submissions is overseen by the Federal Facilities Coordinators in
accordance with national guidance provided by OFA and OMB. The Coordinators work
with the program offices in evaluating the adequacy of proposed projects in the areas of
engineering, timeliness and cost to ensure that the projects have been appropriately
designed and adequately funded to meet all compliance requirements. The Coordinators are
responsible for final quality assurance of Regional reviews and for the timely submission
of materials to OFA.
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Copies of the A-106 submissions are provided by the Coordinators to the States in
January of each year for their review. Once the States receive their copies, the
Coordinators conduct an annual meeting with appropriate State representatives to discuss
their comments on A-106 projects as well as any identified Federal agency patterns of
noncompliance.
Federal agencies are informed of selected annual program priority areas toward
which A-106 projects should be targeted. Federal Facilities Coordinators work with the
agencies to ensure that A-106 projects are proposed for facilities with compliance
problems.
Federal Facilities Coordinators are available to participate in preliminary planning
and design review conferences on significant projects at Federal facilities, as appropriate.
They may also request media program technical assistance when necessary.
Responding to Violations - At the beginning of the fiscal year, in coordination with the
Regional program offices, the Regional Federal Facilities Coordinators identify the names
of those Federal facilities in significant noncompliance. They assist with negotiations of
Compliance Agreements between EPA media programs and involved Federal agencies to
resolve identified compliance problems and violations. As part of this process, the
Coordinator may informally notify the Federal facility of identified violations following an
EPA inspection and prior to issuance of written notification of violation. The FFC should
initiate informal notification process after first consulting with the affected media program
offices.
Dispute Resolution Process - As described in Chapter VI, Federal Facilities Coordinators
may informally request Headquarter's OFA assistance in resolving disputes at any point in
the Federal facilities compliance resolution process. They also will assist the program
office in developing referral packages for disputes formally referred to Headquarters under
the Regional Administrator's signature.
Consent Decree Tracking - Each Coordinator provides the program offices assistance with
tracking the status of EPA Compliance Agreements and Consent Orders with Federal
facilities for reporting to Headquarters and input into the Agency's Consent Decree
Tracking System.
B. HEADQUARTERS OFFICES
The following Headquarters staff have certain responsibilities for working with the
Regions on Federal facilities activities, resolving compliance problems, and developing
policy and guidance:
Program Offices;
OEA/OFA;
OECM;
OGQand
Office of the Administrator.
See Exhibit Vni-2 at the end of this chapter for a diagram depicting these Headquarters
relationships.
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B.1 Headquarters Program Offices
In order to fully implement this Strategy it is critical that the program offices work
with OFA to ensure that media-specific regulations, policies and guidance, and Federal
facilities compliance guidance are mutually consistent and address Federal facilities
compliance issues where appropriate. Also, it is important that the program offices:
• Meet with OFA periodically to identify and discuss generic compliance problems at
Federal facilities.
• Continue to provide OFA with speakers, documents and other assistance for the
monthly meetings of the EPA/Federal Agency Environmental Roundtable.
• Ensure that Headquarters evaluations of Regional programs address Federal
facilities compliance and that program offices report the results of these evaluations
to OFA.
In addition to these general responsibilities, Headquarters program offices are tasked to
ensure that specific initiatives of this Strategy are integrated program-wide as discussed
below.
Identifying the Regulated Community • Program office staff will maintain current Federal
facilities data on program information systems and data bases for tracking purposes based
upon input from Regions and States and ensure that proper Federal facilities identification
numbers are included for all appropriate sources.
Compliance Monitoring - Headquarters program office staff will ensure that the required
number of Federal facilities inspections (of majors, etc.) are being conducted annually by
Regions and the States, as appropriate. Headquarters will verify that the Regions are
conducting at least the same number of oversight inspections for Federal facilities as for
other facilities in delegated States.
Dispute Resolution Process - The involved media program office shall have the lead in
resolving disputes referred to Headquarters, in cooperation with OFA and OECM. Each of
the Headquarters program offices shall provide technical advice and assistance in the
resolution of disputes upon referral from the Region. Headquarters media program offices
shall notify OFA and provide copies of any Federal facility disputes which have been
referred to their office, either formally or informally.
Compliance Statistics - Headquarters program offices will work with OMSE, OECM and
OFA to improve the quality of Federal facilities data currently in EPA's various
Headquarter and Regional media tracking and information systems. Program offices will
periodically review their definitions of "majors" to ensure that Federal facilities are
adequately addressed. In addition, appropriate offices will issue guidance requiring
Regions and States to code input data into existing tracking and information systems with
Federal facilities indicators and identification numbers as appropriate. Periodic
management reports for the Federal facility subset of regulated sources for submittal to
OFA will be prepared by program office staff, as requested.
Involvement in A-106 Review Process - Review of Regional program staff A-106
submissions by the program offices is necessary to ensure that media program priority
areas are reflected in proposed projects and to identify compliance problems. All program
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offices should meet annually with OFA to update media program priority areas that are to
be addressed by Federal agencies through the A-106 process.
Development of Policy and Guidance - Media-specific policies and guidance will be
developed by appropriate program offices. These policies and guidances should, where
appropriate, address implementation of program requirements by Federal agencies. Upon
request by the media program office, OFA can coordinate Federal agency review and
comment on media program documents.
B.2 Office of External Affairs/Office of Federal Activities
OEA/OFA is responsible for ensuring effective implementation of Section 1-6 of
Executive Order 12088 which specifies the administrative procedures to be used in
resolving compliance problems at Federal facilities. OEA/OFA also chairs the EPA
Standing Committee on E.O. 12088.
OEA establishes applicable Agency policy and guidelines on Federal facilities
compliance in consultation with OECM, OGC and the Headquarters program offices.
Implementing operating guidance for the Regional Federal Facilities Coordinators is
developed and issued by OEA/OFA.
OFA conducts annual audits (i.e., the FARES review) of Regional Federal facilities
programs to ensure proper adherence to national guidance, thorough coordination with
Regional program offices, adequate and ongoing assistance to Federal agencies, and overall
consistency of the program with this Strategy.
OEA is the principal point-of-contact with the national offices of other Federal
agencies through the EPA/Federal Agency Environmental Roundtable.
OEA assists affected Headquarters program offices in resolving Federal facilities
compliance problems which the Regional offices escalate for dispute resolution. In
addition, OEA actively participates in Agency strategic planning and management systems
to ensure Federal facilities compliance concerns are being integrated into program priorities
and plans and provides analysis of patterns of Federal facilities noncompliance to program
offices on an annual basis.
Periodic reports on the compliance status of Federal facilities are prepared by
OEA/OFA for administrative purposes. A quarterly report identifying major Federal
facilities which are not meeting substantive pollution control requirements is produced for
the Administrator. The Federal agencies are provided, semi-annually, with a listing of all
non-complying facilities under their jurisdiction. A similar report is submitted annually to
the OMB. This OMB report will be expanded to include information on the compliance
status of all Federal facilities. In addition, OEA/OFA conducts annual meetings with
Headquarters offices of other Federal agencies to discuss identified patterns of
noncompliance. Other OEA/OFA Federal facilities responsibilities are addressed below.
Identifying the Regulated Community • Coordination with Headquarter program offices
and the FINDS office is done by OEA/OFA staff to ensure that program information
systems have adequate and current information for tracking Federal facilities compliance
status.
Technical Assistance/Training - OEA/OFA conduct monthly meetings of the EPA Federal
Agency Environmental Roundtable for top Federal agency officials to exchange information
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on new regulations, policies, etc. Participation of program office staff is solicited regularly
for these meetings.
Currently, OEA/OFA is implementing a comprehensive system for technical
assistance, training and information transfer in cooperation with program offices and
Regional Federal Facilities Coordinators.
OEA/OFA serves as a national clearinghouse for opportunities for other Federal
agency participation in EPA training courses and workshops, and technical assistance
services available from the National Enforcement Investigations Center (NEIC) and the
Office of Research and Development (ORD) labs. Also, ensures that all of the EPA
Hotlines are accessible to Federal agency personnel.
OEA/OFA coordinates extensively with the Office of Administration and Resources
Management (OARM) in the planning and development of the EPA Training Institute to
ensure opportunities are available for Federal facilities participants. Also, coordination
with OECM on the development of the basic inspector training course occurs for the same
purpose.
Federal agencies are encouraged to implement environmental auditing programs and
OEA/OFA provides assistance in designing and establishing such programs through
workshops, manuals, guidance, etc.
Dispute Resolution Process - When requested by Regional program staff, in consultation
with the Federal Facilities Coordinator, OFA will provide informal assistance by working
with involved agencies' parent offices to attempt to resolve disputes. Such assistance
includes working with the parent agency of the noncomplying facility, where appropriate,
to ensure that funds are made available to correct identified violations as expeditiously as
possible or to secure the cooperation of a recalcitrant facility manager.
After the RA has tried but been unable to resolve disputes within established media
timeframes, the cases are formally referred jointly to Headquarters media program office,
OECM and OFA for resolution. Upon receipt of the referral package, OFA or the media
program office will notify the RA in writing of their receipt of the package.
OEA/OFA may assist in negotiations of a mutually acceptable solution between
EPA media programs and the official responsible for environmental compliance matters at
the Headquarters of the parent agency. If this effort fails, within a maximum of 90 days
the AA for the affected media program office escalates the problem to the EPA
Administrator for resolution.
OFA will develop and maintain a system for notifying the Regional Administrator
informally on a monthly basis and formally on a quarterly basis on the status of those
Federal facilities actions formally referred to Headquarters.
Involvement in A-106 Review Process - OEA/OFA is tasked to coordinate the Agency-
wide review of Federal agency A-106 submissions via the Pollution Status Report and
produce the annual report to OMB evaluating proposed projects for use by OMB in budget
review process.
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B.3 Office of Enforcement and Compliance Monitoring
OECM advises the Administrator, and OEA, and provides guidance to the Regional
Offices on general enforcement and compliance policy issues relating to Federal facilities
including:
• Determining the compliance status of Federal facilities;
• Assessing the sufficiency data supporting compliance determinations;
• Conducting negotiations of agreements on solutions to compliance problems;
• Resolving compliance disputes with Federal facilities;
• Assuring that Federal facilities compliance efforts support national
compliance and enforcement objectives;
• Developing (with OFA and media programs) compliance and enforcement
strategy guidance for Federal facilities;
• Coordinating and overseeing the State/EPA enforcement agreements process;
• Maintaining the Agency consent decree tracking system, including tracking of
Federal facilities compliance agreements; and
• Conducting follow up on possible criminal violations.
OECM also provides assistance and expertise in the use of alternative dispute resolution
procedures for resolving compliance problems at Federal facilities.
B.4 Office of General Counsel
OGC provides legal advice and assistance to the Administrator, OEA, media
program offices and the Regional counsels on legal matters and interpretations related to
Federal facility compliance with the environmental statutes. OGC also plays a major role in
resolving interagency legal disputes and in making referrals to the Department of Justice
under Executive Order 12146 when necessary.
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APPENDICES TO THE
FEDERAL FACILITIES
COMPLIANCE STRATEGY
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APPENDIX A
SUMMARIES OF FEDERAL
ENVIRONMENTAL STATUTES
- CLEAN AIR ACT
- CLEAN WATER ACT
- RESOURCE CONSERVATION AND
RECOVERY ACT
- FEDERAL INSECTICIDE, FUNGICIDE
AND RODENTICIDE ACT
- TOXIC SUBSTANCE CONTROL ACT
- COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION, AND
LIABILITY ACT
- SAFE DRINKING WATER ACT
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APPENDIX A
SUMMARY OF POLLUTION CONTROL LEGISLATION
This appendix is a synopsis of the Federal approach to
environmental regulation, EPA enforcement remedies and a summary
of each of the major pollution control acts: the Clean Air Act ICAA),
the Clean Water Act (CWA), the Resource Conservation and Recovery Act
(RCRA), the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA/Superfund), the Toxic Substances Control Act
(TSCA), the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA),
and the Safe Drinking Water Act (SUWA). Because these laws and the
regulations promulgated thereunder typically are very complex and
continually are being modified, the investigator should carefully
review the specific provisions which apply to the operations of the
facility before conducting an inspection.
GENERAL FEDERAL APPROACH TO ENVIRONMENTAL REGULATION
National standards are established to control the handling,
emission, discharge and disposal of harmful substances. Waste sources
must comply with these national standards whether the programs are
implemented directly by the EPA or delegated to the States. In many
cases, the national standards are applied to sources through permit
programs which control the release of pollutants into the environment.
The EPA establishes the Federal standards and requirements and approves
State programs for permit issuance.
The States can set stricter standards than those required by
Federal law. Some of the larger programs which have been delegated by
the EPA to qualifying States are the National Emissions Standards for
Hazardous Air Pollutants (NESHAP), the Prevention of Significant
Deterioration (PSD) permits under the CAA, the Water Quality Standards
and the National Pollution Discharge Elimination System (NPDES)
programs under the CWA, the Hazardous Waste Program under RCRA, and the
Drinking Water and Underground Injection Control (UIC) programs under
the SDWA. Conversely, TSCA is administered entirely by the Federal
government.
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EPA ENFORCEMENT OPTIONS
1. Issuance of an Administrative Compliance Order, sometimes
preceded by a Notice of Violations A Compliance Order will
specify the nature of the violation and give a reasonable time for
compliance. The order, if violated, can lead to enforcement
action pursuant to the civil and/or criminal process of
environmental laws.
2. Issuance of an administrative, complaint for civil penalties.
Parties named in such complaints must be given notice and an
opportunity for a hearing on the alleged violations before a
penalty can be assessed by EPA.
3. Under certain statutes (e.g., SUWA) EPA may take whatever
action is necessary to protect the public health, in
emergency situations, without first obtaining a judicial
order.
4. EPA generally may go directly to Federal court seeking
injunctive relief or a civil penalty without using
administrative procedures. EPA also may obtain an emergency
restraining order halting activity alleged to cause "an
imminent and substantial endangerment" or "imminent hazard"
to the health of persons.
5. EPA may go directly to Federal court seeking criminal
sanctions without using administrative procedures. Criminal
penalties are available for "knowing" or for "willful"
violati ons.
In addition, EPA can also "blacklist" a company or party that fails to
comply with the CAA or CWA by preventing it from entering into Federal
contracts, loans and grants. In cases where the party had been
convicted of certain criminal offenses under the CAA or CWA, Federal
agencies are expressly prohibited from entering into contracts, etc.,
with that entity.
CLEAN AIR ACT
The Clean Air Act (CAA) calls for the EPA to establish national
ambient air standards. These standards are expressed as concentrations
of designated pollutants and are called National Ambient Air Quality
Standards (NAAQS). These standards are to be achieved by the States
through State Implementation Plans (SIPs). The SIP provides emission
* A concise written statement with factual basis for alleging a
violation and a specific reference to each regulation, act, provision
or permit term allegedly violated.
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limitations, schedules and timetables for compliance by stationary
sources, as well as transportation control plans tor mobile sources
EPA also sets the following national air emission standards: New
Source. Performance Standards (NSPS), National Emissions Standards for
Hazardous Air Pollutants (NESHAP) and standards governing mobile
sources of air pollution (including motor vehicle fuels). Moreover,
special programs have been developed for prevention of significant
deterioration (PSD) in clean air areas and for stringent controls in
non-attainment areas (NAAs).
The act focuses upon "major" stationary sources or major
modification of existing sources. Major sources are defined as
sources which generally emit more than 100 tons/year of a designated
pollutant.
National Ambient Air Quality Standards/State Implementation Plans
EPA designates pollutants and publishes criteria documents
which discuss potential harmful effects of those pollutants. The
Agency then sets primary and secondary ambient air standards for
criteria pollutants (CAA, Section 109). Primary standards are intended
to protect the health of the population, whereas, secondary standards
are meant to protect against welfare effects, including effects on the
environment.
Standards have been established for six pollutants: sulfur
dioxides particulates carbon monoxide, ozone, nitrogen oxides and lead.
These standards are implemented through SIPs (CAA, Section 110).
EPA has designated 247 Air Quality Control Regions (AQCRs). These
have been rated as either "clean" or "non-attainment" for each of the
criteria pollutants. SIPs are to provide for attainment of NAAQS by
prescribed dates. SIPs must meet Federal requirements, but each State
may generally choose its own mix of emissions for stationary and mobile
sources to meet the NAAQS. Control procedures may include stationary
source emission limits, transportation plans, preconstruction review
of new sources, monitoring and inspection and testing of vehicles.
The CAA prescribes that no SIP will be adopted without a public
hearing, and sources affected by the SIP may participate.
New Source Performance Standards
NSPS are established for specific pollutants in industrial
categories, based upon adequately demonstrated control technology.
Many States have been delegated the authority to enforce NSPS. When a
State does not have the authority, EPA enforces NSPS in that state.
Waivers from NSPS for up to 7 years may be obtained, the purpose of
which is to encourage use of innovative technological systems (CAA,
Section 111).
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National Emissions Standards for hazardous Air Pollutants
Section 112 of the CAA defines hazardous air pollutants as those
for which no ambient air quality standard is applicable but which are
judged to increase mortality or serious irreversible or incapacitating
illness. NESHAP standards are based on health effects with strong
reliance on technological capabilities. They apply to both existing
and new stationary sources. NESHAPs have been established for seven
pollutants: benzene, beryllium, asbestos, mercury, vinyl chloride,
radionuclides and arsenic. The NESHAP program can be delegated to
any qualifying State (CAA, Section 112).
Prevention of Significant Deterioration
The purpose of PSD is to avoid significant future degradation or
the nation's clean air areas. A clean air area is one where the air
quality is better than the ambient primary or secondary standard.
Designation is pollutant-specific so that an area can be non-attainment
for one pollutant but clean for another. PSD applies only to new and
modified sources in clean air areas. Clean air areas are divided into
three categories: Class I - only minor air quality degradation
allowed, Class II - moderate degradation; and Class III - substantial
degradation. In no case would PSD allow air quality to deteriorate
below secondary air quality standards.
"Baseline" is the existing air quality for the area at the time
the first PSD permit is applied for. "Increments" are the maximum
amount of deterioration that can occur in a clean air area over
baseline. Increments in Class I areas are smaller than for Class II
and Class II increments are smaller than Class III areas. For
purposes of PSD, a major emitting source is one of 26 designated
categories which emits or has the potential to emit 100 tons/year of
the designated air pollutant. A source that is not within the 26
designated categories is a major source if it emits more than 250
tons/year.
New sources are required to obtain permits before construction.
The permit describes the level of control to be applied and what
portion of the increment may be made available to that source by the
State (CAA, Part C).
Non-Attainment Areas (NAA)
Non-attainment areas are those which are not in compliance with
national air quality standards. New construction in an NAA is
prohibited unless the SIP has been amended and approved by EPA to
reflect the following conditions:
1. Total allowable emissions for the source will be offset by
reductions in emissions from existing sources.
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2. The new source must comply with the lowest achievaole
emission rate (LAER).
3. All other sources within the State owned by the suoject
Company are in compliance.
4. The SIP is being carried out for the area.
Emission offsets from existing sources have to be obtained through
enforceable agreements from other sources in the NAA.
Emission reductions can also be "banked" by an existing source to
permit future new source growth. Banked offsets may be sold or tradea
to other sources.
Emission Standards for Mobile Sources/Fuel Standards
Section 202 of the CAA directs EPA to regulate air pollutants
emitted by motor vehicles which "cause, or contribute to, aire
pollution which may reasonably be anticipated to endanger public health
or welfare." In response, the Agency has set standards governing motor
vehicle emissions of carbon monxide, hydrocorbons, oxides of nitorgen
and particulates. These standards have given rise to the emission
control systems that first appeared in automoblies in the early 1970s.
The CAA generally prohibits the removal (or rendering inoperative) by
any person in the motor vehicle business, or any fleet operator, of
any emission control device that was installed by the vehicle
manufacturer in order to meet the applicable emission standards. Many
states have enacted similar laws enforcing this prohibition and/or have
incorporated such prohibitions as part of their SIPs.
The CAA also provides EPA with the authority to control or
prohibit the use of fuels which pose a public health risk or_ which
impair to a significant degree the performance of any emission control
device or system." The Agency's regulations governing the lead content
of gasoline are based upon both of these rationales. Certain other
fuel standards have been adopted by some states through SIP provisions
and/or State laws.
CLEAN WATER ACT (FEDERAL WATER POLLUTION CONTROL ACT)
Through the 1950s and 1960s, emphasis was on the States setting
ambient water quality standards and developing plans to achieve these
standards. In 1972, the Federal Water Pollution Control Act was
significantly amended. These changes emphasized a new approach,
combining water quality standards and effluent limitations (i.e.,
technology.-based standards). The amendments called for compliance by
all point-source discharges with the technology-based standards. A
strong Federal enforcement program was created and substantial monies
were made available for construction of sewage treatment plants. The
Federal Water Pollution Control Act was amended in 1977 to address
toxic water pollutants and in 1987 to refine and strengthen priorities
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under the Act as well as enhance EPA's enforcement authority. Since
the 1977 amendments, the Federal '^ater Pollution Control Act has oeen
commonly referred to as the Clean Water Act (CWA).
State Water Quality Standards and Water Quality Management Plans
Section 303 of the CWA authorizes the States to establish amoient
water quality standards and water quality management plans. If
national technology standards are not sufficient to attain desired
stream water quality, the State shall set maximum daily allowaole
pollutant loads (including toxic pollutants) for these waters and,
accordinly, determine effluent limits and compliance schedules tor
point sources to meet the maximum daily allowable loads.
The National Pollutant Discharge Elimination (NPDESJ Program
This program was established by Section 402 of the CWA and, under
it, EPA and approved States have issued more than 50,000 NPUES permits.
Permits are require for all point sources from which pollutants are
discharged to navigable waters of the United States. An NPDES permit
is required for any direct discharge from new or existing sources.
Indirect discharges through POTWs are regulated under a separate
program (see discussion of pretreatment standard below). In 1979 and
1980, the permit program was revised to authorize the permitting
authority to require the use of Best Management Practices (BHPs)
to control the discharge of toxic and hazardous pollutants into waters
of the United States through plant site run-off, spillage, or leaks;
sludge or waste disposal; or drainage from raw material storage.
Unlike effluent limitations, BMPs do not have numberical limits, but
rather describe in narrative form the management practices that must
be undertaken, e.g., raw material storage piles shall be covered and
protected against rain and runoff.
Section 301 of the CWA requires permits to contain effluent limits
reflecting that level of pollutant reduction attainable by installation
of specified levels of technology. These limits are set forth in
nationally applicable effluent guideline regulations for industrial
categories and incorporated into permits. Where a regulation for a
particular industrial category has not been issued, limits are
developed on a case-by-case basis. Limits are usually expressed as
weight per unit of product (i.e., 0.5 lb/1,000 Ib product
manufactured). The standards are different for each industry.
Effluent guidelines are applied to individual plants through the NPUES
permit program.
There are three levels of technology for existing industrial
sources: Best Practicable Control Technology (BPT), Best Conventional
Technology (BCT) and Best Available Technology Economically Achieveable
(BAT). Timetables for compliance with limits reflecting these tech-
nology levels have been modified — most recently by Section 301 of the
1987 Amendments. These compliance dates are found at 40 CFR Section
125.3.
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New Source Performance Standards (NSPS) impose on new sources
technology-based requirements that are basea on the best available
demonstrated technology. The new source provisions recognize that,
unlike existing sources which often must retrofit to meet water
pollution control measures, new sources are better able to afford
advanced pollution control technology. NSPS are different for each
industrial category. These standards must be achieved when tne new
industrial source begins to discharge. New sources are provided a
ten-year protection period during which qualifying sources may not be
subject to certain more stringent requirements. Ihis iO-year
protection insulates against change in BC1 or BAT requirements but
does not hold against Section 307(a) toxic pollutant standards or
against non-toxic pollutants if such limitations are identified to
control indirectly hazardous or toxic pollutants.
To obtain an NPDES permit, an application must be made. Adequate
information must be submitted as set forth in 40 CFR 122.21 using
application forms provided for this purpose. The information requested
includes basic facility descriptions, SIC codes, regulated activities,
lists of current environmental permits, descriptions of all outfalls,
drawings, flows, treatment, production, compliance schedules, effluent
characteristics, use of toxics, potential discharge and bio-assay
toxicity tests performed.
Applicants must conduct analytical testing for BOD, COU, TuC, TSS,
ammonia, temperature and pH. The applicant, if included within any of
the 34 "primary industry" categories, must sample for all toxic metals,
cyanide and phenols given the EPA Application Form 2C and for specified
organic toxic pollutant fractions.
The applicant must list substances believed to be present at the
industrial plant. Testing is not required but analytical results must
be provided, if available.
NPDES Permit
The NPDES permit, issued by EPA or the State, enforces Federal
effluent limitations promulgated for individual industrial categories;
NSPS; toxic effluent standards; State water quality standards, if any
are applicable and hazardous substances otherwise regulated under
Section 311 of the CWA that may be incorporated into the NPUES permit
instead. Permit elements include the amount of pollutants to be
discharged expressed in terms of average monthly and maximum daily
loads; compliance schedules, i_f applicable standards cannot be met now;
and monitoring, testing and reporting requirements.
Routine Non-compliance Reports - The Discharge Monitoring Form
The Discharge Monitoring Report (DMRT gives a summary of the dis
charger's records on a monthly or quarterly basis for flow measurement,
sample collection and laboratory analyses. Noncompllance reports must
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be submitted quarterly on the cause of noncomplying discharges, period
of non-compliance, expected return to compliance and plans to minimize
or eliminate recurrence of the incident.
Emergency Reporting
o Health: The EPA shall be notified within 24 hours of noncompli-
ance involving discharge of toxic pollutants, threat to
drinking water or injury to human health.
o Bypass: Noncompliance due to intentional diversion of waste snail
be reported promptly to the permitting agency and may be
permissable if essential to prevent loss of life or
serious property damage.
o Upset: Temporary noncompliance due to factors beyond the reason
able control of the permittee shall be promptly reported
to the agency.
The 1987 CWA Amendments establish a schedule for the regulation of
municipal and industrial stormwater discharges under NPDES permits.
Initially (before October 1, 1992), only major dischargers and those
who are significant contributors of pollutants will be required to
obtain permits.
Pretreatment Standards for Indirect Discharges to Publicly-Owned
Treatment Works
Coverage
New and existing industrial users who discharge to POTWs are
subject to general and categorical pretreatment standards. The
categorical standards are primarily directed to control of toxic
pollutants in specific industries.
Requirements
o General Pretreatment Standards (40 CFR Section 403.5(a) and (b)
Prohibition against discharges that pass through or interfere with
POTW. Prohibit fire or explosion hazards, corrosivity, solid or
viscous obstructions, "slug" discharges, and heat sufficient to inhibit
biological activity at POTWs
o Categorical Standards (40 CFR Parts 405-471)
Standards to be expressed as concentration limits or mass
weight per unit of production.
Source must be in compliance no later than 3 years after
promulgation of standards.
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Variances can be obtained for fundamentally different factors.
o Reports (40 CFR Section 403.12)
Users must provide the appropriate agency (EPA, State or POTWs
having approved pretreatment programs) with basic
information, SIC code, average and maximum daily discharge,
characteristics or pollutants, applicaole standards and
certification whether standards are being met and, if not,
what pretreatment is necessary and a compliance schedule.
o Monitoring. Sampling and Analysis (40 CFR Section 403.12)
Users shall submit sampling data for each regulated pollutant in
discharge.
o Progress Reports
Reports and information shall be submitted at 6-month intervals.
Non-point Source Pollution Control
Section 208 of the CWA directs States to estalish planning bodies
to formulate area-wide pollution control plans, which are to include
controls for non-point source pollution. NPDES permits cannot be
issued where the permit may conflict with an approved Section 208 plan.
The 1987 CWA Amendments require States to develop nonpoint
source management programs under Section 319.
Dredge or Fill Discharge Permit Program
Section 404 of the CWA regulates the discharge of dredged or fill
material into waters of the United States. Dredged material is
excavated or dredged from a water body. Fill material is that material
used to replace water with dry land. The Section 404 permit program is
administered by the U.S. Army Corps of Engineers. EPA provides
guidelines for the issuance of permits by the Corps of Engineers.
States may assume responsibility for portions of the program.
Discharge of Oil and Hazardous Substances
Section 311 of the CWA prohibits discharges to waters of the
United States of oil or hazardous substances in quantities that may be
harmful The appropriate Federal agency must be immediately notified of
any spill of a "reportable quantity." Section 311 provides for cleanup
of spills and requires the preparation and implementation of Spill
Prevention, Control, and Counter-measures (SPCC) plans.
297 substances have been defined as hazardous under Section 311
and each of these substances has a "reportable quantity" (40 CFR
Parts 116 and 117).
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A person or corporation who properly notifies the Agency of the
discharge of a reportable quantity of oil or hazardous substance is
immune from criminal prosecution but is liable for civil penalties.
Additionally, those who cause the spill are liable for the costs of
cleanup and removal. If the Federal government must clean up the
spill, the discharger of the spill is liable for cleanup costs, '(here
are maximum liability limits, depending upon the type of facility and
spill. These limits do not apply if the discharge resulted from
willful negligence or willful misconduct of the owner.
Certain discharges of oil and hazardous material that flow from a
point source may be excluded from Section 311 liability if, during
preparation of the NPDES permit covering that facility, conditions are
added to the permit to avoid the occurrence of a spill.
RESOURCE CONSERVATION AND RECOVERY ACT OF 197b (RCRAJ*
RCRA was signed on October 21, 1976 and subsequently amended in
1978, 1980, 1984 and 1986. The 1984 amendments to RCRA brought about
dramatic changes in the coverage required by the Act. The first in a
series of regulations restricting the land disposal of hazardous
wastes have been promulgated. Regulations also have been proposed
which will include expanded coverage in such areas as waste oil,
underground tanks, etc. The Act primarily deals with current ana
future waste handling activities: however, one section of the act
(Section 7003), addresses problems which may have arisen prior to 1976.
The 7003 provision allows EPA to take action against persons
conducting past and current activities that may present "an imminent or
substantial endangerment to health or to the environment." The 1984
amendments also provide for corrective actions against contamination
resulting from past releases of hazardous waste even without an
imminent hazard. A review of the Act and the implementing regulations
by th inspector is imperative before conducting an inspection, due to
these changes.
Non-hazardous solid wastes, if land disposed, are regulated
through State programs Subtitle 0 of RCRA. Hazardous solid wastes are
subject to regulation in their generation, transport, treatment,
storage and disposal under Subtitle C of RCRA. Subtitle C of the
statute authorizes a comprehensive Federal program to regulate
hazardous wastes from generation to ultimate disposal. A waste is
hazardous under Subtitle C if it is listed by EPA as hazardous or if
it exhibits hazardous characteristics (corrosivity, reactivity,
ignitability and extraction procedure toxicityT and if not delisted
or excluded from regulation. There are special management provisions
for hazardous wastes created by small quantity generators and
hazardous wastes that are intended to be reused or recycled.
*43 U.S.C. Section 6901 et. seq. and Solid Waste Disposal Act
amendents of 1980, P.L. 96-482, 94 State. 2334.
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Solid waste includes garbage, refuse and sludge, other solid,
liquid, semi-solid or contained gaseous material which is discarded,
has served its intended purpose or is a mining or manufacturing
byproduct. Most industrial and commercial byproducts can qualify as a
solid waste. Exclusions from solid waste include domestic sewage,
irrigation return flows, materials defined by the Atomic Energy Act, in
situ mining waste and NPDES point sources.
Solid wastes excluded from regulation as hazardous solid wastes
are household waste., crop or animal waste., mining overburden and
wastes from processing and benefication of ores and minerals: flyasn,
bottom ash waste, slag waste and flue gas emission control waste and
drilling fluids from energy development. A waste can be "delisted"
from the hazardous waste listing or excluded for other reasons. Some
materials intended to be reused or recycled are not fully regulated as
solid/hazardous wastes, while others, depending upon the type of waste
generated and the recycling process used, are fully regulated.
Statutory Restrictions/Prohibitions
o November 8, 1984 - The placement of any bulk liquid hazardous
waste in salt domes, salt bed formations, underground mines or
caves is prohibited until the facility receives a permit.
o May 8, 1985 - The landfilling of bulk or noncontainerized liquid
hazardous waste or free liquids contained in hazardous waste is
Prohibited.
o November 8, 1985 - The placement of any nonhazardous waste
liquid in a landfill operating under interim status or a permit,
is prohibited unless the only reasonable alternative is a
hazardous waste landfill or unlined surface impoundment and
the landfill will not present a risk of contamination to
groundwater drinking sources. See Section 3004(c)(3) for
full graphics.
o November 8, 1986 - The disposal of hazardous waste solvents (codes
F001 through F005) and dioxins containing hazardous waste (codes
F020 through F023) is prohibited unless waste is pretreated to EPA
standards or disposal is protective of human health and the
environment. (Wastes — only contaminated soils and debris)
generated by Superfund and RCRA corrective actions are not
affected until November 8, 1988.) See final rule, 51 Federal
Register 40572 (November 7, 1986), to be codified at 40 CFR
Part 268, with conforming amendments at 40 CFR Parts 260,
261, 262, 264, 265, 270 and 271.
8» 198? - Land disposal of wastes listed in Section
3004(d)(2) (the "California list") is prohibited unless human
health or the environment is not endangered (Wastes generated by
Superfund and RCRA enforcement actions not affected until
November 8, 1988.) See Final Rule, 1987.
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o May 8, 1985 - New wastepile units, lateral expansions and
replacement of existing wastepile units at interim status
waste piles are to have single liners and leachate collection
systems.
New landfill/Si units, lateral expansions and replacement ot
existing landfill/Si units at interim status landfills are to
have double liners and leachate collection systems.
(2 for landfill.)
o August 8, 1988 - Deep well injection of certain wastes is
prohibited unless deemed safe by EPA. See Section 3004(dH2)
and (e)(2) for list of wastes.
List of Hazardous Wastes
Hazardous waste streams from specific major industry groups and
some generic sources (40 CFR, Part 261, Subpart D, 261.31 and 261.32)
and well over 200 toxic commercial chemical wastes (i.e., discarded
commercial chemical products are included on the list of hazard ous
wastes (40 CFR 261.33). If a commercial chemical substance is on the
list, its off-spec species is also considered hazardous when
discarded, as are spill residues. Some of the listed wastes are
acutely toxic and are regulated at lower generation levels than
other hazardous wastes. See e.g., 40 CFR 261.33(e), 261.5(e)
261.7(b)(3).
Special Management Provisions
o Small Quantity Generators
Small quantity generators are those that generate less than
1,000 kg per month of hazardous waste. There are two classes of
small quantity generators:
1. Generators of between 100 and 1,000 kg per month that are
subject to most of the requirements of 40 CFR Part 262 which
apply to fully regulated generators, except that they are
allowed to accumulate up to 6,000 kg of hazardous waste and
to store waste for up to 180 to 270 days.
2. Generators of less than 100 kg per month that are exempt
from regulation under 40 CFR Part 262 so long as they do not
accumulate greater than 1,000 kg of hazarous waste, properly
identify their wastes and comply with the less stringent
waste treatment, storage and/or disposal requirements of 40
CFR 261.5.
Note that the classification of the generator is a function
of the total wastes generated, not each waste stream. In
addition, for acutely toxic wastes, if more than 1 kg per
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month of waste or 100 kg per month of spill residues are
generated, all quantities of that waste are fully regulated.
Recycling or Reuse
The type of waste generated and/or the recycling process
employed will determine whether recycled/reused materials
are a solid/hazardous waste. Some of these materials are
not considered solid wastes, some are solid wastes but
not hazardous wastes, while others are hazardous but
are not subject to full regulation, and still other of
these materials are botholid and hazardous waste that are
fully regulated. The circumstances surrounding the
apparent recycling/reuse of waste materials should be
thoroughly-documented during and inspection.
Requirements for Generators*
Identification - Hazardous wastes must be identified by
list, testing or experience and assignee waste identification
numbers.
Notification - No later than 90 days after a hazardous waste
is identified or listed in 40 CFR, Part 261, a notification
is to be filed with EPA or an authorized State. An EPA
identification number must be received.
Manifest System - Implement the manifest system and follow
procedures for tracking and reporting shipments. Beginning
September 1, 1985, a waste minimization statement is to oe
signed the generator [see RCRA Section 3002(b)j.
Packing - Implement packaging, labeling, marking and
placarding requirements prescribed by DOT regulations (40
CFR, Parts 172, 173, 178 and 179).
Biannual Report - Submittal required March 1 of even years
using EPA Form 8700-13.
Exception Reports - When generat.r does not receive signed
copy of manifest from designated TSUF within 45 days, the
generator sends Exception Report to EPA including c,py of
manifest and letter describing efforts made to locate waste
and findings.
Permit for Storage More Than 90 Days - If hazardous wastes
are retained onsite more than 90 days (and no extension under
262.34(b)), generator is subject to all requirements
applicable to TSDFs and must obtain a RCRA permit.
* 40 CFR Part 262
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o Accumulation - Generator is not required to obtain a permit
for on-site accumulation of waste for less than 90 days, if
generator complies with special requirements including
contingency plan, prevention plan and staff training (40 CFR,
Part 265, Subparts C, D, J and 265.16).
Requirements for Transporters*
o Notification - No later than 90 days after a hazardous waste
is identified or listed in 40 CFR, Part 2bi, a notification
is to be filed with EPA or an authorized State. Receive tPA
identification number.
o Manifest System - The transporter must fully implement the
manifest system. The transporter signs and dates manifest,
returns one copy to generator, assures that manifest
accompanies waste, obtains date and signature of TSDF' or
next receiver and retains one copy of the manifest for
himself.
o Delivery to TSDF - The waste is delivered only to designated
TSDF or alternate.
o Record Retention - Transporter retains copies of manifest
signed by generator, himself and accepting TSDF or receiver
and keeps these records for a minimum of 3 years.
o Discharges by transporters other than bulk water
transporters. If discharges occur, notice shall be given to
National Response Center. Appropriate immediate action
shall be taken to protect health and the environment and a
written report shall be made to the DOT.
Requirements for Treatment, Storage or Disposal Facilities (TSDFs)**
o Notification - No later than 90 days after a hazardous waste
is identified or listed in 40 CFR, Part 261, a notification
is to be filed with EPA or an authorized State.
o Interim Status - These facilities include TSDFs; onsite
hazardous waste disposal; onsite storage for more than 90
days; in transit storage for greater than 10 days and the
40 CFR Part 263
Parts Zb4 and
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storage of hazardous sludges, listed wastes, or mixtures
containing listed wastes intended for reuse. Interim status
is achieved by:
- Notification (see above)
- Being in existence on November 19, 1980 or on the date or
statutory or regulatory changes which require the facility
to have a permit.
- Filing a Part A
Interim Status Facility Standards - The following standards
and requirements shall be met.
- General information (Subpart B)
- Waste analysis plan
- Security
- Inspection plan
- Personnel training
- Handling requirements
- Preparedness and prevention
- Contingency planning and emergency procedures (Subparts C
and D)
- Records and reports
- Manifest system
- Operating logs
- Annual and other reports (Subpart E.)
- Groundwater Monitoring (Subpart F)
- Closure and post-closure plans (Subpart G) Financial
requirements (Subpart H)
- Containers, tanks, surface impoundments, piles (Subparts
I, J, K, L)
- Land treatment, landfills, incinerators, thermal
treatment, chemical, physical and biological treatment
(Subparts M, N,0, P, Q)
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- Underground injection (Subpart R)
o Permit - In order to obtain a permit:
- Facilities with interim status must file a part B RCRA
permit application when directed to do so by LPA statute
or an authorized State and final facility standards must be
met or the facility must be on an approved schedule to
meet those standards.
The EPA-authorized States are to issue permits or deny the
application by November 8, 1988 for land disposal facilities; by
November 8, 1989 for incinerators; and by November 8, 1992 for other
facilities. The following is a statutory schedule for termination of
interim status.
Facility
Interim Status
Terminates
Unless Part B
Submitted
Land Disposal
Incinerators
Other facilities
November 1985
November 1989
November 1992
November 1985
November 1986
November 1988
-New facilities and facilities which do not qualify for
interim status are to receive a RCRA permit before
construction can begin or a hazardous waste can be
handled.
Used/Recycled Oil - Used oil burned for energy recovery is
regulated under - 40 CFR Part 266. Although a number of
parallel off-spec due to flashpoint, metal or halogen
content. Additional regulations governing used/recycled oil
are being developed.
Underground Storage Tanks - The 1984 amendments also will
cause certain underground storage tanks to be regulated. By
May 8, 1986, all owners of underground tanks are to notify
the designated State or local agency of the existence of the
tank and specify the following:
Age
Size
Type
Location
Uses
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For tanks taken out of operation after January 1, 1974, the
owner is to also notify the designated State or local agency
of the existence of the tank and specifY the following:
Date the tank was taken out of operation
Age at that time
Size
Type
Location
Type and quantity of substance left in the tank
Rules comprehensively regulating these tanks were proposed
April 17, 1987, 52 Federal Register 12662.
COMPREHENSIVE ENVIRONMENTAL RESPONSE. COMPENSATION AND LIABILITY ACT
(SUPERFUND)
The Superfund Act was enacted December 11, 1980. The Federal
government is authorized to clean up toxic or hazardous contaminants at
closed and abandoned hazardous waste dumps and the government is
permitted to recover cost of this cleanup and associated damages by
suing the responsible parties involved. Cleanup monies will come out
of a "superfund" created by taxes on chemicals and hazardous wastes.
The act provides that, when there is a release of hazardous
substance, either real or threatened, the parties who operated the
vessel or facility which created the release are liable for the
containment, removal, remedial action, response and injury damages to
natural resources under Section 107(aj. The act also establishes
limitations on liability.
If claims are presented to the liable parties but are not
satisfied, the act then allows claims to be reimbursed from the
Superfund.
Regulatory provisions under Sections 102 and 103 of the act
require that release of hazardous substances into the environment be
reported unless the release is in accordance with an established
permit. Spills of any "reportable quantity", established pursuant to
regulations promulgated under the Act, must be reported.
All owners or operators of any facility handling and disposing of
hazardous substances or that has handled hazardous substances in the
past (including previous owners and operators) were required to inform
the EPA Administrator by June 1981 of their facility activities unless
they have a permit or have been accorded "interim status". Failure of
notification is a crime and, if the party knowingly fails to provide
these data, they are not entitled to the prescribed limits and defenses
of liability.
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On October 17, 1986, the Supertund Act was amended under the
Superfund Amendments and Reauthorization Act (SARA). Those amendments
provide mandatory schedules for the completion of various phases of
remedial response activities, establish detailed cleanup standards and
generally strengthen existing authority to effect the cleanup of
superfund sites.
(An integral part of SARA, but not an amendment to the Supertund
Act is the Emergency Planning and Community Right-to-Know Act of 1986.
It addresses the handling of extremely hazardous chemicals and
requires: (1) Emergency planning, (2) emergency notification, U)
community right-to-know reporting and (4) an emissions inventory.)
TOXIC SUBSTANCES CONTROL ACT (TSCA)
Under TSCA EPA can regulate existing and new chemical
substances and mixtures. Persons who manufacture (the term
manufacture includes import), process, distribute in commerce,
use, or dispose of chemical substances or mixtures (chemicalsj
can be required to submit information and to conduct tests, and
their activities can be limited as follows:
Inventory and Premanufacture Notification
Under section 8(b) of TSCA, EPA puolishes and maintains an
inventory of chemical substances in commerce. A substance not
on that inventory is a "new chemical substance," and no person
may manufacture that substance for nonexempt commercial purposes
unless the person has submitted a notice to EPA at least 90 days
before the person intends to begin manufacture (section 5(a)).
If EPA does not take action during its 90-day review of the
premanufacture notice (PMN) to prohibit manufacture, the person
is free to begin. Once the substance is actually manufactured,
it is placed on the inventory and is no longer subject to PMN
requirements. If EPA determines during the 90-day review that
there is insufficient information to permit a reasoned evaluation
of the effects of the new substance, and either that activities
involving the substance may present an unreasonable risk of
injury or that the substance will be produced in substantial
quantities and enters or is reasonably anticipated to enter the
environment in substantial quantities or there may be significant
or substantial human exposure to it, the Agency may issue an
administrative order prohibiting or limiting manufacture,
processing, distribution, use, or disposal of the substance
pending development of sufficient data (section 5(e)). Where
there is sufficient data to determine that activities involving
the new substance will present an unreasonable risk of injury,
EPA can ban manufacture through an administrative order or can
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otherwise limit manufacture, processing, distribution, use, or
disposal through an immediately effective section 6 rule (section
5(f)). Most regulation of new substances takes place through
consent orders under section 5(e).
Testi ng
Under section 4 of TSCA, EPA can issue rules requiring
manufacturers and processors of chemicals to test those chemicals
for health and environmental effects. To require testing, EPA
must find that there is insufficient information to determine or
predict the effects of the chemical and either that activities
involving the chemical may present an unreasonable risk of injury
to health or the environment or that the chemical is or will be
produced in substantial quantities and enters or may be reasonaoly
anticipated to enter the environment in substantial quantities
or there is or may be significant or substantial human exposure
to it. The test rule prescribes the test standards for performing
the required testing.
Reporting and Recordkeeping
Under section 8(a) of TSCA, E.PA can issue rules requiring
persons who manufaccure or process chemicals to make reports
or keep records concerning those chemicals and the persons'
activities. In some cases small businesses are exempt from
these requirements. EPA has issued several rules under section
8(a) including the Preliminary Assessment Information Rule (40
CFR Part 712) and the Inventory Update Rule (40 CFR Part 710).
EPA has proposed a Comprehensive Assessment Information Rule
(CAIR) which will require addi ional information.
Section 8(c) authorizes EPA by rule to require persons who
manufacture, process, or distribute in commerce chemicals to
maintain records of significant adverse reactions to health or
the environment alleged to have been caused by the chemicals and
to submit copies of those records to EPA upon request EPA has
issued a general section 8(c) rule (40 CFR Part 717). Section 8(d)
authorizes EPA by rule to require person who manufacture, process, or
distribute in commerce chemicals to submit lists of health and safety
studies for such chemicals conducted by the them, known to them, or
reasonably ascertainable by them and to submit copies of any such
studies. EPA has issued rules requiring submission of such lists and
studies for some chemicals (40 CFR Part 716).
Section 8(e) requires persons who manufacture, process, or
distribute in commerce chemicals who obtain information supportin
the conclusions that those chemicals present a substantial risk
of injury to health or the environment to immediately inform EPA.
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EPA issued an interpretive policy statement for section 8(e) in
the Federal Register March 16, 1978 (43 FR 11110).
Regulation Under Section 6
Under section 6 of TSCA EPA can issue rules prohibiting
or limiting manufacture, processing, distribution in commerce,
use or disposal of chemical. To do so, EPA must find that the
activities involving the chemical will present an unreasonaole
risk of injury to health or the environment. Regulatory action
can range from labelling to bans on manufacture or use. EPA has
issued such rules for CFCs, asbestos, and certain chemicals used
in metal working fluids (40 CFR Parts 747, 762, and 763). Section
6(e) specifically addresses PCBs and bans further manufacture.
processing, distribution in commerce, and use of PCBs other than
in a totally enclosed manner unless EPA grants an exemption.
EPA is also required to regulate disposal of PCBs. EPA has
issued comprehensive PCB rules (40 CFR Part 761).
Imminent Hazards
Under section 7 of TSCA, EPA is authorized to bring an
action in a U.S. district court for seizure of an imminently
hazardous chemical or an article containing it, for relief
against a person who manufactures, processes, distributes in
commerce, uses, or disposes of an imminently hazardous chemical
or an article containing it, or for both. An imminently hazardous
chemical is one which presents an imminent and unreasonable risk of
serious or widespread injury to health or the environment which is
likely to result before EPA could act to issue a final rule under
section 6 of TSCA. Relief can include notification to purchasers,
public notice, recall, replacement or repurchase, or any combination of
these.
SAFE DRINKING WATER ACT
The SDWA of 1974 was established to provide safe drinking water
to the public. Both primary and secondary drinking water standards
have been set by EPA regulations which apply to water provided by
public water systems. National Interim Primary Drinking Water
REgulations were adopted in 1975 to protect public health (40 CFR Part
141). Regulations covering radionuclides were added in 1976.
Regulations for trihalomethanes were promulgated in 1979. Secondary
regulations were established in 1979 as guidelines to STates to protect
the non-health-related qualities of drinking water. The 1986
amendments to the SDWA: (1) establish a mandatory schedule, requiring
the promulgation of primary drinking water regulations for 83
contaminants, (2) prohibit the use of lead in public water systems,
20
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(3r provide civil and criminal penalties for persons who tamper witn
public water systems and (4T allow closer scrutiny ot State programs,
including the direct enforcement of drinking water standards, if
necessary.
The SuWA also provides for protection of underground sources of
drinking water. Final regulations have been issued whereby States are
to establish Underground Injection Control (UIC) to prevent
endangernient of any underground source of drinking water from injection
activity. Injection wells are divided by regulation into five classes.
Construction and operation standards are established for Class I, II
and III wells. Class I and Class IV hazardous waste wells are also
subject to RCRA requirements. Class IV wells are those used by
generators of hazardous or radioactive wastes to dispose of hazardous
wastes into formations within one quarter mile of an underground source
of drinking water. Injection into such wells is prohibited by section
7010 of RCRA. There are numerous State regulatory requirements
affecting groundwater which should be consulted by multi-media
compliance inspectors. In addition, the 1986 amendments to SDWA to
strengthen EPA's enforcement authority for UIC programs.
FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE CT (FIFRA)
FIFRA establishes EPA's authority over the sale, distribution,
and use of pesticide products, and has as a primary objective the
protection of human health and the environment. A pesticide is
any substance or mixture of substances intended to prevent, destroy,
repel, or mitigate any pest, or which is intended for use as a
plant regulator, defoliant, or desiccant. Pesticide registration
and the requirements associated with it are at the core of virtually
all actions taken under FIFRA.
As a general matter FIFRA requires all pesticides sola or
distributed in commerce to be regulated by EPA. The statutory
standard for registration requires, among other things, that a
pesticide perform the intended function without causing "un-
reasonable adverse effects on the environment." The term
"unreasonable adverse effects on the environment" is defined as
"any unreasonable risk to man or the environment, taking into
account the economic, social, and environmental costs and benefits
of use" of the pesticide.
In order to ensure compliance with the statutory standard,
FIFRA authorizes, among other things, production of health and
safety data, EPA oversight of pesticide experiments, restrictions
on pesticide use and composition, applicator certification,
mandatory reporting requirements, and periodic inspection of
establishments. Pesticide products must be labeled to specify
ingredients, permitted uses, warnings, registration number,
and any special use restrictions. Regulations promulgated
21
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under FIFRA further detail the requirements imposed by the
statute and the necessary procedures for compliance. Where
appropriate, pesticide registration may also require the setting
of residue tolerances under the Federal Food, Drug, and Cosmetic
Act, which are enforced by the Food and Drug Administration.
As described in sections 3 and 6 of FIFRA, failure to comply
with the statutory standard for registration can result in the
suspension and/or cancellation of a pesticide's registration.
Section 14 of FIFRA sets out the penalties for failure to comply
with other requirements of the statute and its regulations;
section 12 lists the unlawful acts under FIFRA. Both civil and
criminal penalties may be imposed for these violations. In some
instances, penalties may vary depending upon whether the violator
is a private or commercial entity. Judicial review of EPA actions
u,.der FIFRA is addressed in section 16, and includes review in both
the district court and the court of appeals {following a public
hearing).
A few pesticides are also regulated as toxic pollutants under
section 307(a) of the CWA and by Primary Drinking Water Standards
under the SDWA.
22
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APPENDIX B
EXECUTIVE ORDERS 12088,
12146, AND 12580
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presidential documents
[319S-01-M]
Title 3—The President
Executive Order 12088 October 13, 1978
Compftonct With Pollution Control Standards
By the authority vested in me as President by (he Constitution and
statutes of the United States of America, including Section 22 of (he-Toxic
Substances Control Act (15 U.S.C. 2621). Section SIS of (he Federal Water
Pollution Control Act. u amended (33 U-S.C. 1323). Section 1447 of the
Public Health Service Act. u amended by (he Safe Dnnkuig Water Act (42
U.S.C SOOj-6). Section 118 of the Clean Air Act. as amended (42 U.S.C
7418(b)), Section 4 of the Noise Control Act of 1972 (42 U.S.C 4903).
Section 6001 of the Solid Waste Disposal Act. as amended (42 U.S.C. C961).
and Section 301 of Tide 3 of the United States Code, and to ensure Federal
compliance with applicable pollution control standards, it is hereby ordered as
follows:
l-t. Appiicaklifi of Pollution Cantnl Standard*.
1-101. The head of each Executive agency is responsible for ensuring that
all necessary actions are taken for (he prevention, control, and abatement of
environmental pollution with respect to Federal facilities and activities under
the control of the agency.
1-102. The head of each Executive agency Is responsible for compliance
with applicable pollution, control standards, including those established pursu-
ant to. but not limited to. the following;
(a) Toxic Substances Control Act (15 U.S.C 2601 tt uq.).
(b) Federal Water Pollution Control Act. as amended (33 U.S.C 1251 tt
*?.).
(c) Public Health Service Act. as amended by the Safe Dnnking Water Act
(42 U.S.C300f *«?.).
(d) Clean Air Act, as amended (42 U.S.C. 7401 tt te^.).
(e) Noise Control Act of 1972 (42 U.S.C. 4901 et «f).
(f) Solid Waste Disposal Act. as amended (42 U.S.C 6901 tt «?.).
(g) Radiation guidance pursuant to Section 274(h) of the Atomic Energy
Act of 1954. as amended (42 U.S.C 202 l(h); see also, the Radiation Protec-
tion Guidance to Federal Agencies for Diagnostic X Rays approved by the
President on January 26. 1973 and published at page 4377 of the Ftouui.
RxGirrcx on February 1. 197*).
(h) Marine Protection, Ri search, and Sanctuaries Act of 1972. as amended
(33 U.S.C. 1401, 1402. 1411-1421. 1441-1444 and 16 U.S.C. 1431-1434).
(i) federal Insecticide. Fungicide, and Rodenticide Act. as amended (7
U.S.C 136
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47708 THE MES106WT
traior. and State, mtcnute. and fool jjmacs in the prrvenuon. conirol. and
abatement of environmental pollution.
1-202. Each Exccuuve age-no- jiul! consult unh the Administrator and
with Suie. interstate, and local agencies concerning the best lerliniqucs and
mcihodi available for the prevention, control, and abatement of environmen-
tal pollution.
1-3. Ttehmnl .•irftirr and Oversight.
1-301. The Administrator shall provide technical advice and auisunce to
Exeeuuve arenas in order a ensure itaexr cose effective and timely compli-
ance with applicable pollution control standards.
1-302. The administrator shall conduct such reviews and inspections as
may be necessary to. monitor compliance mth applicable poliutton control
standards by Federal faciluurt and acthnuex.
1-4. Pollution Control Plan.
1-401. Each Executive agency shall fubmit io> the Oirmor of the Office of
Management and Budget, dirough the- Administrator, an annual plan for the
control of environmental pollution. The plan shall provide for any necessary
improvement in the design, construction, management, operation, and mainte-
nance- of Federal Cadlities and activities, and shall include annual cost esti-
mate*. The Administrator shall establish guidelines for developing ruch plans.
1-402. In preparing its plan, each Executive agency shall ensure that the
plan provides for compliance *'iih all applicable, pollution control standard*.
1-403. The plan shall be submitted in accordance with anv other instruc-
tions that the Director of ihe Office of Management and Budget may issue.
1-5. ftaidotf,
1-501. The head of each Executive agency shall ensure that sufficient
funds for compliance with applicable pollution control standards are requested
in the agency budget.
1-502. The head of each Executive agency shall ensure dial funds appro-
priated and apportioned for the prevention, control and abatement of environ-
mental pollution are not used for anv other purpose unless permitted by law
and specifically approved by the Office of Management and Budget.
1-6. Camplianft tilth Pollution Controls.
1-601. \\"henevcr the Administrator or die appropriate State, interstate.
or local agency notifies an Executive agency that it is in violation of an
applicable pollution controf standard (see Section 1-102 of this Order), the
Executive agency shall promptly consult with the notifving agency and provide
for its approval a plan to achieve and maintain compliance with the applicable
pollution control standard. Tins plan shall include an implementation sched-
ule for coming ir.to compliance as soon » practicable.
. 1-002. The. Administrator shall mate every efibn to resolve conflicts
regarding such violation between Executive agencies and. on request of any
party, such conflicts between an Executive agency and a State, interstate, or a
local ngcncy. If the Administrator cannot resolve a conflict, the Administrator
shall request the Director of die Office of Management and Budget to resolve
die conflict.
1-603. The Director of uSc Office of Management and Budget shall
consider unresolved conflicts at the request of die Administrator. The Director
shall sect die Administrator's technological judgment and determination with
regard to the applicability of statutes and rc-juhtions.
ttcirm. VOL. o. NO. wi— TUUSAY. ocrotci 17,
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TWf Pt£SID6HT 47709
1-00-1. Tlicsc conflict resolution procedure? arc in addition iu. not in lieu
of. other procedures, including sanctions. for ihe enforcement of applicable
pollution control standards.
1-oQS Except as exprcsslv provided bv a Presidential exemption under
this Order, nothing m this Order, nor anv action or inaction under this Order,
shall be construed to revise or modify any applicable pollution control
standard.
1-7. Limiianon »« Eximpn&u.
1-701. Exemptions from applicable pollution control standards may only
be grimed under statute* cited in Section l-102(a) through 1-102(0 if the
President makes the required appropriate statutory determination: that such
exemption u necessary (a) in the interest of national security, or (b) in the
paramount interest of ihe United States.
1-702. The head of an Executive agency may. from time to lime, recom-
mend to ihe President through the Director of the Office of Management and
Budget, that an activity or facility, or uses thereof, be exempt from an applica-
ble pollution control standard.
1-703. The Administrator shall advise the President, through the Director
of the Office of Management and Budget, whether he agrees or disagrees with
a recommendation for exemption and his reasons therefor.
1-704. The Director of the Office of Management and Budget must
advise the President within sixty days of receipt of the Administrator's
I -£. Gtnml
1-301. The head of each Executive agency^ that is responsible for the
construction or operation of Federal facilities outside the United States shall
ensure that such construction or operation complies with the environmental
pollution control standards of general applicability m the host country or
jurisdiction.
1-802. Executive Order No. 11752 of December 17, 1973, is revoked.
THE WHITE House.
October 13, 1971
CFR-Ooe 78-29406 Filed 10-13-78: 3:40 praJ
EMTMIM, Sort The rrwioVnt't lutrmeni of Oct. 13. 1978. an tifrunc Lxrruurc Order
120M an4 Ku mcntonndum for the hndi of drpaamcnu and icrnocv daird On. 13 1978. on
Federal compliance »iih pollution control suitdarUi trt pnmrd in ihe WrcUv Compilation of
(*oL U. no. 41).
tfcnnt. voc o. NO. 201—TUCSOAT, ocrout 17, im
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Federal Register / Vol. 44. No. 141 / Friday. July 2,0. 1979 / Presidential Documents 42657
Presidential Documents
Executive Order 12146 of July 18, 1979
Management of Federal Legal Resources
By the authority vested in me as President by the Constitution and statutes of
the United States of America, it is hereby ordered as follows:
1.1. Establishment of the Federal Legal Council.
1-101. There is hereby established the Federal Legal Council, which shall be
composed of the Attorney General and the representatives of not more than
15 other agencies. The agency representative shall be designated by the head
of the agency.
1-102. The initial membership of the Council, in addition to the Attorney
General, shall consist of representatives designated by the heads of the
following agencies:
(a) The Department of Commerce.
(b) The Department of Defense.
(c) The Department of Energy.
(d) The Environmental Protection Agency.
(e) The Equal Employment Opportunity Commission.
(f) The Federal Trade Commission.
(g) The Department of Health. Education, and Welfare.
(h) The Interstate Commerce Commission.
(i) The Department of Labor.
(j) The National Labor Relations Board.
(k) The Securities and Exchange Commission.
(1) The Department of State.
(m) The Department of the Treasury.
(n) The United States Postal Service and
(o) the Veterans Administration.
1-103. The Initial members of the Council shall serve for a term of two years.
Thereafter, the agencies which compose the membership shall be designated
annually by the Council and at least five positions on the Council, other than
that held by the Attorney General, shall rotate annually.
1-104. In addition to the above members, the Directors of the Office of
Management and Budget and the Office of Personnel Management, or their
designees, shall be advisory members of the Council.
1-105. The Attorney General shall chair the Council and provide staff for its
operation. Representatives of agencies that are not metr>ers of the Council
may serve on or chair subcommittees of the Council.
1-2. Functions of the Council.
1-201. The Council shall promote:
(a) coordination and communication among Federal legal offices;
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42658 F«d««l Register / Vol. 44. No. 141 / Friday, [uly 20.1979 / Presidential Documents
(b) improved management of Federal lawyers, associated support personnel.
and information systems:
(c) improvements in the training provided to Federal lawyers;
(d) the facilitation of the persona! donation of ptu bono legal services by
Federal attorneys;
(e) the use of joint or shared legal facilities in field offices; and
(f) the delegation of legal work to field offices.
1-202. The Council shall study and seek j£ resolve problems in the efficient
~ and~effective management of "Federal" legaf resources that are beyond tfi¥
capacity or authority of Individual agencies to resolve.
1-203. The Council shall develop recommendations for legislation and other
actions: (a) to increase the efficient and effective operation and management
of Federal legal resources, including those matters specified in Section 1-201.
and (b) to avoid inconsistent or unnecessary litigation by agencies.
1-3. Litigation Notice System.
1-301. The Attorney General shall establish and maintain a litigation notice
system that provides timely information about all civil litigation pending in the
courts in which the Federal Government is a party or has a significant interest
1-302. The Attorney General shall issue rules to govern operation of the notice
system. The rules shall Include the following requirement:
(a) All agencies "with authority to litigate cases in court shall promptly notify
the Attorney General about those cases that fall in classes or categories
designated from time to time by the Attorney General.
(b) The Attorney General shall provide all agencies reasonable access to the
information collected in the litigation notice system.
1-4. Resolution of Interagency Legal Disputes.
1-401. Whenever two or more Executive agencies are unable to resolve a legal
dispute between them, including the question of which has jurisdiction to
administer a particular program or to regulate a particular activity, each
agency is encouraged to submit the dispute to the Attorney General.
1-402. Whenever two or more Executive agencies whose heads serve at the
pleasure of-the President are unable to resolve such a legal dispute, the
agencies shall submit the* dispute to the Attorney General prior to proceeding
in any court, except where there is specific statutory vesting of responsibility
for a resolution elsewhere.
1-5. Access to Legal Opinions.
1-501. In addition, to the disclosure now required by law. all agencies are
encouraged to make available for public inspection and copying other opin-
ions of their legal officers that are statements of policy or interpretation that
have been adopted by the agency, unless the agency determines that disclo-
sure would result in demonstrable harm.
1-502. All agencies are encouraged 19 make available on request other legal
opinions, when the agency determines that disclosure would not be harmful.
1-0. Automated Legal Research and Information Systems.
1-601. The Attorney General, in coordination with the Secretary of Defense
and -other agency heads, shall provide for a computerized legal research
system that will be .available to all Federal law offices on n'reimbursable
basis. The system may include In its data base such Federal regulations, case
briefs, and legal opinions, as the Attorney General deems appropriate.
1-602. The Federal Legal Council shall provide leadership for all Federal legal
offices in establishing appropriate word processing and management.Informa-
tion systems.
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Federal Register / Vol. 44. No. 141 / Friday. July 20. 1979 / Presidential Documents 42659
1-7. Responsibilities of the Agencies.
1-701. Each agency shall (a) review the management and operation of its legal
activities and report in one year to the Federal Legal Council all steps being
taken to improve those operations, and (b) cooperate with the Federal Legal
Council and the Attorney General in the performance of the functions pro-
vided by this Order.
1-702. To the extent permitted by law. each agency shall furnish the Federal
Legal Council and the Attorney General with reports, information and assist-
ance as requested to carry out the provisions of this Order.
THE WHITE HOUSE.
July 18. 1979.
|FR Doe. r»-=7Z7
Filed 7-19-79: 10:40 «m|
Billing cod« 3196-01-M
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Federal Register / Vol. 52. No. 19 / Thursdayr January 29.1967 / Presidential Documents 2823
Presidential Documents
Superfund Implementation
By the authority vetted in m« as President of the United States of America by
Section 115 of the Comprehensive Environmental Response. Compensation.
and Liability Act of 1980. at amended (42 U.S.C 9615 et aeq.} ("the Act"), and
by Section 301 of Title 3 of the United States Code, it is hereby ordered as
follows:
Section L National Contingency Plan. (•)(!) The National Contingency Plan
("the NCF'J. shall provide for a National Response Team ("the NRT) com-
posed of representatives of appropriate Federal departments and agencies for
national planning and coordination of preparedness and response actions, and
regional response teams as the regional counterpart to the NRT for planning
and coordination of regional preparednet* and response actions.
(2) The following agencies (in addition to other appropriate agencies) shall
provide representatives to the National and Regional Response Teams to
carry out their responsibilities under the NCP: Department of State. Depart-
ment of Defense. Department of Justice. Department of the Interior. Depart-
ment of Agriculture. Department of Commerce, Department of Labor. Depart-
ment of Health and Human Services. Department of Transportation. Depart-
ment of Energy. Environmental Protection Agency. Federal Emergency Man-
agement Agency. United States Coast Guard, and the Nuclear Regulatory
Commission.
(3) Except for periods of activation because of a response action, the repre-
sentative of the Environmental Protection Agency ("EPA") shall be the chair-
man and the representative of the United States Coast Guard shall be the vice
chairman of the NRT and these agencies' representatives shall be cd~-chtirs of
the Regional Response Teams ("the RRTs"). When the NRT or an RRT is
activated for • response action, the chairman shall be the EPA or United
States Coast Guard representative, baaed on whether the release or threat-
ened release occurs in the inland or coastal zone, unless otherwise agreed
upon-by the EPA and United States Coast Guard representatives.
(4) The RRTs may include representatives from State governments, local
governments (as agreed upon by the States), and Indian tribal governments.
Subject to the functions and authorities delegated to Executive departments
and agenda* in other sections of this Order, the NRT shall provide policy and
program direction to the RRTs.
(b)(l) The responsibility for the revision of the NCP and ail of the other
functions vested m the President by Sections I05(a). (b). (c)» and (g). 125. and
301(f) of the Act is delegated to the Administrator of the Environmental
Protection Agency ("the Administrator").
(2) The function vested in the President by Section I18(p) of the Superfund
Amendments and Reauthorixation Act of 1966 (Public Law 99-499) ("SARA")
is delegated to the Administrator.
(c) In accord with Section 107(f)f2)(A) of the Act and Section 311(0(5) of the
Federal Water Pollution Control Act as amended (33 U.S.C. 1321(0(5}). the
following shall be among thoee designated in the NCP as Federal trustees for
natural resources:
(1) Secretary of Defense:
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2924 Federal Register / Vol. 52. No. 19 / Thursday, January 29. 1987 / Presidential Documents
(2) Secretary of the interior
(3) Secretary of Agriculture:
(4) Secretary of Commerce;
(5) Secretary of Energy.
(d) Revisions to the NCP shall be made in consultation with members of the
NRT prior to publication for notice and comment. Revisions shall also be
made in consultation with the Director of the Federal Emergency Management
Agency and the Nuclear Regulatory Commission in order to avoid inconsistent
or duplicative requirements in the emergency planning responsibilities of
those agencies.
(e) All revisions to the NCP. whether in proposed or final form, shall be
subject to review and approval by the Director of the Office of Management
and Budget ("OMB").
Sec. 2. Response and Related Authorities (a) The functions vested in the
President by the first sentence of Section 104{b)(l) of the Act relating to
"illness, disease, or complaints thereof are delegated to the Secretary of
Health and Human Services who shall, in accord with Section 104(i) of the
Act. perform those functions through the Public Health Service.
(b) The functions vested in the President by Sections l04(e)(7)[C). Il3(k)(2),
119(c)(7), and 121(f)(l) of the Act relating to promulgation of regulations and
guidelines, are delegated to the Administrator, to be exercised in consultation
with the NRT.
(c)(l) The functions vested in the President by Sections I04(a) and the second
sentence of 128(b) of the Act to the extent they require permanent relocation
of residents, businesses, and community facilities or temporary evacuation
and housing of threatened individuals not otherwise provided for, are delegat- {
ed to the Director of the Federal Emergency Management Agency.
(2) Subject to subsection (b) of this Section, the functions vested in the
President by Sections 117(a) and (c). and 119 of the Act. to the extent such
authority is needed to carry out the functions delegated under paragraph (1) of
this subsection, are delegated to the Director of the Federal Emergency
Management Agency.
(d) Subject to subsections (a), (b) and (c) of this Section, the functions vested
in the President by Sections 104(a), (b) and (c)(4), H3(k), H7(a) and (c), 119.
and 121 of the Act are delegated to the Secretaries of Defense and Energy.
with respect to releases or threatened releases where either the release is on
or the sole source of the release is from any facility or vessel under the
jurisdiction, custody or control of their departments, respectively, including
vaasela bare-boat chartered and operated. These functions must be exercised
consistent with the requirements of Section 120 of the Act.
(e)(l) Subject to subsections (a), (bfc (c), and (d) of this Section, the functions
vetted in the President by Section* 104(a), (b). and (c)(4), and 121 of the Act
are delegated to the heads of Executive departments and agencies, with
respect to remedial actions for releases or threatened releases which are not
on the National Priorities List ("the NPL") and removal actions other than
emergencies, where either the release is on or the sole source of the release is
from any facility or vessel under the jurisdiction, custody or control of those
departments and agencies, including vessels bare-boat chartered and operat-
ed. The Administrator shall define the term "emergency", solely for the
purposes of this subsection, either by regulation or by a memorandum of
understanding with the head of an Executive department or agency.
(2) Subject to subsections (b). (c), and (d) of this Section, the functions vested
in the President by Sections 104(b)(2). 113(k). H7(a) «nd (c). and 119 of the Ar
are delegated to the heads of Executive departments and agencies, v
respect to releases or threatened releases where either the release is on o
sole source of the release is from any facility or vessel under the jurisd
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Federal Register / Vol. 52. No. 19 / Thursday. January 2S. 1987 / Presidential Documents M25
autody or control of those departments and agencies, including vessels bare-
boat chartered and operated.
(f) Subject to subsections (a), (b). (c). (d). and (e) of this Section, the functions
vested in the President by Sections 104(a), (b) and (c)(4), 113(k), 117(a) and (c).
119. and 121 of the Act are delegated to the Secretary of the Department in
which the Coast Guard is operating ("the Coast Guard"), with respect to any
release or threatened release involving the coastal zone. Great Lakes waters.
ports, and harbors.
(g) Subject to subsections (a), (b}. (c), (d). (e). and (f) of this Section, the
functions vested in the President by Sections 101(24). 104(a), (b). (c)(4) and
(cX9). 113(k). 117(a) and (c). 119, 121. and 128{b) of the Act are delegated to the
Administrator. The Administrator's authority under Section 119 of the Act w
retroactive to the date of enactment of SARA,
(h) The functions vetted In the Resident by Section 104(c)(3) of the Act are
delegated to Ike Administrator, with respect to providing assurances for
Indian tribes, to be exercised in consultation with the Secretary of the Interior.
(i) Subject to subsections (d). (e), (f), fa) and (h) of this Section, the functions
vested in the President by Section 104(c) and (d) of the Act are delegated to
the Coasl Guard, the Secretary of Health and Human Services, the Director of
the Federal Emergency Management Agency, and the Administrator in order
to carry out the functions delegated to them by this Section.
OX*) The functions vested in tbe President by Section 104(e)(5)(A) are delegat-
ed to the heads of Executive departments and agencies, with respect to
releases or threatened releases where either the release is on or the sole
source of the release is from any facility or vessel under the jurisdiction.
custody or control of those departments and agencies, to be exercised with the
concurrence of the Attorney General.
(2) Subject to subsection (b) of this Section and paragraph (1) of this subsec-
tion, the functions vested in the President by Section 104(e) are delegated to
the heads of Executive departments and agencies in order to carry out their
functions under this Order or the Act
(k) The functions vested in the President by Section 104(f). (g). (h). (i)(ll). and
(j) of the Act are delegated to the heads of Executive departments and
agenda* in order to carry oat the functions delegated to them by this Section.
Tbe exercise of authority under Section 104(h) of the Act shall be subject to
the approval of the Administrator of the Office of Federal Procurement Policy.
Sec. a. Cleanup Schedule*, (a) The functions vested in the President by
Sections 116(a) and the first two sentence* of 10S(d) of the Act are delegated
to the heads of Executive departments and agencies with respect to facilities
under the jurisdiction, custody or control of those departments and agencies.
(b) Subject to subsection (a) of this Section, the function* vested in the
President by Sections 116 and 10S(d) are delegated to the Administrator.
Sec. 4. Enforcement (a) The functions vested in the President by Sections
109(d) and 122(eX3)(A) of the Act relating to development of regulations and
guidelines, are delegated to the Administrator, to be exercised in consultation
with the Attorney General.
Svbject to subsection (a) of this Section, the functions vested in the
President by Section 122 (except subsection (b)(l)) are delegated to the heads
of Executive departments and agencies, with respect to releases or threatened
releases not on the NPL where either the release is on or the sole tource of the
release is from any facility under the jurisdiction, custody or control of those
Executive departments and agencies. These functions may be exercised only
with the concurrence of the Attorney General.
(2) Subject to subsection (a) of this Section, the functions vested in the
President by Section 108 of the Act relating to violations of Section 122 of the
Act are delegated to the heads of Executive departments and agencies, with
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2328 Federal Register / Vol. 52. No. 19 / Thursday. January 29. 1967 / Presidential Documents
respect to releases or threatened releases not on the NPL where either the
release is on or the sole source of the release is from any facility under the
jurisdiction, custody or control of those Executive departments and agencies.
These functions may be exercised only with the concurrence of the Attorney
General.
(c)(l) Subject to subsection (a) and (b)(l) of this Section, the functions vested
in the President by Sections 10<5(a) and 122 of the Act are delegated to the
Coast Guard with respect to any release or threatened release involving the
coastal zone. Great Lakes waters, ports, and harbors.
(2) Subject to subsection (a) and (b)(2) of this Section, the functions vested in
the President by Section 109 of the Act relating to violations of Sections 103
(a) and (b). and 122 of the Act. are delegated to the Coast Guard with respect
to any release or threatened release involving the coastal zone, Great Lakes
waters*, pert*. and harbors'.
(d)(l) Subject to subsections (MrfbM*}. and (c)(l) of this Section, the functions
vested in the President by Sections 106 and 122 of the Act are delegated to the
Administrator.
(2) Subject to subsections (a). (b)(2), and (c)(2) of this Section, the functions
vested in the President by Section. 109 of the Act, relating to violations of
Sections 103 and 122 of the Act are delegated to the Administrator.
(e) Notwithstanding any other provision of this Order, the authority under
Sections 104(e)(5)(A) and 106(a) of At Act to seek information, entry, inspec-
tion, samples, or response action* from Executive departments and agencies
may be exercised only with the concurrence of the Attorney General.
Sec 5. Liability, (a] The function vested in the President by Section
107(c)(l)(C] of the Act is delegated to tha Secretary of Transportation.
(b) The functions vested in the President by Section 107(c)(3) of the Act are
delegated to the Coast Guard with respect to any release or threatened release
involving the coastal zone. Great Lake* waters, ports, and harbors.
(c) Subject to subsection (b) of this Section, the functions vested in the
President by Section 107(c)(3) of the Act are delegated to the Administrator.
(d) The functions vested in the President by Section 107(f)(l) of the Act are
delegated to each of the Federal trustees for natural resources designated in
the NCP for resources under their trusteeship.
(e) The functions vested in the President by Section l07(f)(2)(B) of the Act. to
receive notification of the state natural resource trustee designations, are
delegated to the Administrator.
Sec. 6. Litigation, (a) Notwithstanding any other provision of this Order, any
representation pursuant to or under this Order in any judicial proceedings
shall be by or through the Attorney General. The conduct and control of all
litigation arising under the Act (hall be the responsibility of the Attorney
General.
(b) Notwithstanding any other provision of this Order, the authority under the
Act to require the Attorney General to commence litigation is retained by the
President.
(c) The functions vested in the President by Section 113(g) of the Act to
receive notification of a natural resource trustee's intent to tile suit are
delegated to the heads of Executive departments and agencies with respect to
response actions for which they have been delegated authority under Section
2 of this Order. The Administrator shall promulgate procedural regulations for
providing such notification.
(d) The functions vested in the President by Sections 310 (d) and (e) of the Act,
relating to promulgation of regulations, are delegated to the Administrator.
Sec. 7. Financial Responsibility, (a) The functions vested in the President by
Section 107(k)(4)(B] of the Act are delegated to the Secretary of the Treasury.
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Federal Register / Vol. 52. No. 19 / Thursday. January 29. 1967 / Presidential Documentg 2927
The Administrator will provide the Secretary with such technical information
and assistance as the Administrator may have available.
(b)(l] The functions vested in the President by Section 106(a)(l) of the Act are
delegated to the Coast Guard.
(2) Subject to Section 4{a) of this Order, the functions vested in the President
by Section 109 of the Act. relating to violations of Section 108(a)(l) of the Act.
are delegated to the Coast Guard.
(c)(l) The functions vested in the President by Section 108(b) of the Act are
delegated to the Secretary of Transportation with respect to all transportation
related facilities, including any pipeline, motor vehicle, rolling stock, or air-
craft.
(2) Subject to Section 4(a) of this Order, the functions vested in the President
by Section 109 of the Act relating to violations of Section 106(a)(3) of the Act.
are delegated to the Secretary of Transportation.
(3) Subject to Section 4(a) of this Order, the functions vested in the President
by Section 109 of the Act relating to violations of Section I06(b) of the Act.
are delegated to the Secretary of Transportation with respect to all transporta-
tion related facilities, including any pipeline, motor vehicle, rolling stock, or
aircraft
(d)(l} Subject to subsection (c)(l) of this Section, the functions vested in the
President by Section 106 (a)(4) and (b) of the Act are delegated to the
Administrator.
(2) Subject to Section 4(a) of this Order and subsection (c)(3) of this Section.
the function* vested in the President by Section 109 of the Act relating to
violations of Section 106 (a)(4) and (b) of the Act are delegated to the
Administrator.
Sac S. Employee Protection and Notice to Injured (a) The functions vested in
the President by Section 110(e) of the Act are delegated to the Adminstrator.
(b) The functions vested in the President by Section lll(g) of the Act are
delegated to the Secretaries of Defense and Energy with respect to releases
from facilities or vessels under the jurisdiction, custody or control of their
departments, respectively, including vessels bare-boat chartered and
operated.
(c) Subject to subsection (b) of this Section, the functions vested in the
President by Section lll(g) of the Act are delegated to the Administrator.
Sec. 9. Management of the Hazardous Substance Superfund and Claims, (a)
The functions vested in the President by Section lll(a) of the Act are
delegated to the Administrator, subject to the provisions of this Section and
other applicable provisions of this Order.
(b) The Administrator shall transfer to other agencies, from the Hazardous
Substance Superfund out of sums appropriated, such amounts as the Adminis-
trator may determine necessary to carry out the purposes of the Act These
amounts shall be consistent with the President's Budget, within the total
approved by the Congress, unless a revised amount is approved by OMB.
Funds appropriated specifically for the Agency for Toxic Substances and
Disease Registry ("ATSDR"), shall be directly transferred to ATSDR, consist-
ent with fiscally responsible investment of trust fund money.
(c) The Administrator shall chair a budget task force composed of representa-
tives of Executive departments and agencies having responsibilities under this
Order or the Act The Administrator shall also, as part of the budget request
for the Environmental Protection Agency, submit to OMB a budget for the
Hazardous Substance Superfund which is based on recommended levels
developed by the budget task force. The Administrator may prescribe report-
ing and other forms, procedures, and guidelines to be used by the agencies of
the Task Force In preparing the budget request consistent with budgetary
reporting requirements Issued by OMB. The Administrator shall prescribe
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fosksal Register / Vol. 52. No. 19 / Thwday. famiary 29. M87 / Presidential Documents
forma to Agency task force meuibets for reporting the expenditure of funds on
a rite specific basis.
(d) The Adirrinfstrator and each department and agency head to whom funds
are provided purraant to this Section, with respect to funds provided to them.
are authorized in accordance with Section lll(f) of the Act to designate
Federal official who may obligate such funds.
(e) The functions vested in the President by Section 112 of the Act are
delegated to the Administrator for all elehns presented pursuant to Section ill
of the Act
(0 The functions vested in the President by Section lll(o) of the Act are
delegated to the Administrator.
(g) The functions vested is tha President by Section 117(e) of the Act are
delegated to the Adouaiatrator. to b* exercised in consultation with the
Attorney General.
(k) The function vetted to the President by Section 123 of the Act are
delected to tkr AdadnHtntor.
(ij Funds from the Hazardous Substance Superfund may be used, at the
discretion of the Administrator or the Coast Guard, to pay for removal actions
for relnses or threatened release* froa facilities or vessels under the jurisdic-
tion, costody or central at Exeortrve devilments and agencies but must be
reimbursed to the Hazardous1 fribstance Superfund by such Executive depart-
ment of agency.
Sec. Ift Federal Facilftfei. (af When necessary, prior to selection of a remedial
action by the Administrator anoVr Section 120(e)(4)(A) of the Act Executive
agencies shall have the opportunity to present their views to the Administra-
tor after using the proosdun* under Section 1-6 of Executive Order No. 12068
of October 13,1978. or any other actually acceptable process. Notwithstand-
ing subsection 1-602 of Executive Order No. 12068, the Director of the Office of
Management and Bridget shall facilitate resolution of any issues.
(b) Executive Order N«w U06ft of October 13.1978, is amended by renumbering
the current Section V-802 as Oaction 1-403 and inserting the following new
Section 1-602:
"1-802. Nothing ia thai Order shaft create any right or benefit substantive or
procedural, enforceable ct law by • party against the United States, its
agencies, its officers, or any persoa."
Sec. 11. Gene/at Pmvifiera. (a) Tie function vested in the President by
Section WH&J of *e Art i» delegated to the Administrator.
(b*)(i) The function vested in the President by Section 105(0 of the Act relating
to re putting OR minority participation in contracts, is delegated to the Admin-
istrator.
(2) Subject to paragraph 1 of this subsection, the functions vested in the
President by Sectkm IflS(f) of the Act an delegated to the heads of Executive
daoartaenis and asjencks !• order to carry out the functions delegated to
then by this Older. Each Bxocativ* department and agency shall provide to
the AdmuMtrsktor any n aassUit fnforaation on minority contracting for
inclusion in the Sectioa 105(0 Annual report
(c) The fancttooB vostodt tv to Prashteirt by Section I26(c) of the Act are
dckgatni to tfaa AdainMntor, to be exercised in consultation with the
Secretary of the Interior.
(d) The fun**"v*T vesiad fa the Prasidteai by Section 301 (c) of the Act are
delegated to tha Secretary of &• Interior.
(e) Each agviKy rihrfl fcave tutborfty to issue such regulations as may be
necessary to carry oat tfre functions delegated to them by this Order.
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Federal Register / Vol. 52. No. 19 / Thursday, January 29. 1967 / Presidential Documents 2929
(f) The performance of any function under this Order shall be done in
consultation with interested Federal departments and agencies represented on
the NRT. as well as with any other interested Federal agency.
(g) The following functions vested in the President by the Act which have
been delegated or assigned by this Order may be redelegated to the head of
any Executive department or agency with his consent: functions set forth in
Sections 2 (except subsection (b)). 3, 4(b), 4(c), 4(d). 5(b). 5(c). and 8(c) of this
Order.
(h) Executive Order No. 12316 of August 14.1981. is revoked.
(FR Doe «7-l»42
Filed 1-27-07. 231 pm|
Billin| code 318S-01-M
THE WHITE HOUSE,
January 23. 1987.
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APPENDIX C
EPA PROGRAM DEFINITIONS
FOR MAJORS, MINORS,
SIGNIFICANT NONCOMPLIERS AND
SIGNIFICANT VIOLATORS
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PROGRAM DEFINITIONS FOR SIGNIFICANT NONCOMPLIFRS
AND SIGNIFICANT VIOLATORS
Media Program Term/Definition
Water/NPDES ° Significant noncompliance under
NPOES means the following instances
of noncompliance by major dischargers:
- Violations of conditions in enforcement
orders except compliance schedules
and reports.
- Violations of compliance schedule
milestones for starting construction,
completing construction, and attaining
final compliance hy 90 days or more
from the date of the milestone
specified in an enforcement order or
a permit.
- Violations of permit effluent limits
that exceed the Appendix A "Criteria
for Noncompliance Reporting in the
NPDFS Program."
- Failure to provide a compliance
schedule report for final compliance
or a monitoring report.
- Violation of a permit limit;
- An unauthorized bypass;
- An unpermitted discharge; or
- A pass-through of pollutants which
causes or has the potential to cause
a water quality problem or health
problems.
PUSS ° A significant noncomplier (SNC) is a
community water system which meets any
of the following criteria:
- violates the microbiological Mf.L for
4 or more months during any 12 conse-
cutive month period, or
- violates the turbidity MCI. for 4 or
,nore months during any 12 consecu-
tive month period, or
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PROGRAM DEFINITIONS FOR SIGNIFICANT NONCOMPLIERS
AND SIGNIFICANT VIOLATORS
Media Program Term/Definition
PWSS (cont'd) - is a "major" violator of the micro-
biological monitoring or reporting
requirements for I?, consecutive
months, or
- is a "major" violator of the turbidity
monitoring or reporting requirements
for 12 consecutive months, or
- is a "major" violator of the TTHM
monitoring or reporting requirpments
for 12 consecutive months, or
- violates the microbiological MCL and
is a "major" violator of the micro-
biological monitoring requirements for
a combined total of 12 consecutive
months, or
- violates the turbidity MCL and is a
"najor" violator of the turbidity
monitoring requirements for a combined
total of 12 consecutive months, or
- exceeds the "unreasonable risk to
health level" established for any of
the regulated inorganic, organic
(excluding TTHM), or radiological
contaminants, or
- exceeds the "unreasonable risk to health
level" established for TTHM for 2 or
more quarters during any 4 consecutive
quarters, or
- fails to monitor for, or report the
results of, any inorganic, organic
(other than TTHM), or radiological
contaminant within one year after the
»nd of the applicable compliance period
during which the system was to have
conducted the monitoring, or
- violates a requirement of a "formal"
compliance schedule prescribed by
the State or
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PROGRAM DEFINITIONS FOR SIGNIFICANT NONCOMPLIERS
AND SIGNIFICANT VIOLATORS
Media Program Term/Definition
UIC ° The term "significant noncompl iance "
for the UIC program means:
- Violations as described in Section
144. 8(a) and on EPA Form 7520-4
(6-83) by the owner/operator of a
Class I or a Class IV well.
- The following violations by the
owner/operator of a Class IT, HI
or V wel 1 :
1. Any unauthorized emplacement
of fluids (where formal
authorization is required);
2. Well operation without mechanical
integrity which causes the
movement of fluid outside the
authorized zone of injection
if such movement may have the
potential for endangering an
USDW judged according to the
fol 1 owing criteria :
a. The characteristics of the
fluid released;
h. The quantity of fluid
released; and
c. The relationship of the
point of release to any
USOW. Potential endangermpnt
exists in cases where:
(i) The reloasp occurs
above or into an USDW; or
(ii) The release occurs below
an USOW but the
hydrogeology is such
that fl ui ds may be
forced upward into the
USDW.
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PROGRAM DEFINITIONS FOR SIGNIFICANT NONCOMPLIF.RS
AND SIGNIFICANT VIOLATORS
Media Program Term/Definition
UIC (cont'd) 3. Well operation at an injection
pressure that exceeds the
permitted or authorized injection
pressure and causes the movement
of fluid outside the authorized
zone of injection if such movement
may have the potential for
endangering an USDW. Potential
endangerment exists.
a. If the pressure in a tuhingless
well exceeds the MIT test
pressure of the casing; or
h. If the pressure exceeds the
fracture pressure of the
confining zone and the
zone immediately above the
confining zone is an USnw.
4. Failure to properly plug and
abandon an injection well in any
manner other than authorized;
5. Any violation of a formal
enforcement action, including an
administrative or judicial order,
consent agreement, judgment or
equivalent State action;
6. The knowing submission or use of
any false information in a permit
application, periodic report or
special request for information
about a we!1; and
7. Any other violation which the
Director considers to be
significant.
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PROGRAM DEFINITIONS FOR SIGNIFICANT NONCOMPLIFRS
ANH SIGNIFICANT VIOLATORS
Media Program
Hazardous Waste/
RCRA
Hazardous Waste/
CERCLA
Toxic Substances/
TSCA
Term/Definition
Significant noncompliers are land
disposal facilities with Class I
violations of ground water monitoring,
closure, post-closure or financial
responsibility requirements. A
Class I violation is defined as a
violation that results in a release
or serious threat of release of
hazardous waste to the environment,
or involves the failure to assure
that ground water will be protected,
that proper closure and post-closure
activities will be undertaken, or
that hazardous wastes will be destined
for and delivered to permitted or
interim status facilities.
The Superfund equivalent of a
significant noncomplier is those
facilities on the National
Priorities List (NP|_) that will
require remedial and/or removal
actions.
Significant noncompliance is a violation
for which the enforcement action, is at
minimum, an administrative complaint,*
and includes but is not limited to the
following:
Any PCB violation involving
improper disposal, manufacturing,
processing, distribution, improper
use, storage, recordkeeping and/or
marking violations.
Any PCB disposal resulting in
contamination of surface or ground
water, food or feeds.
For Federal facilities, SNC is a violation, as defined here,
that would normally result in an administrative complaint.
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PROGRAM DEFINITIONS FOR SIGNIFICANT NONCOMPLIERS
ANR SIGNIFICANT VIOLATORS
Media Program
TSCA, (cont'd)
Term/Definition
Any asbestos-in-school s violation
involving failure to inspect,
sample, analyze, post warnings,
notify, and/or keep records where
asbestos is present.
Any violation of testing requirements
under TSCA Section 4.
Any violation of a premanufacturing
notification under TSCA Section 5.
Any violation of TSCA Section 13
including: failure to either certify
that all imported chemical substances
are in compliance with TSCA or are
not subject to TSCA, and falsification
of a certification report.
Any violation of TSCA Section 8
including: failure to submit
required records, falsification
of records, and incomplete
reporting and/or recordkeeping.
Pesticides/FIFRA
Significant violator is any
violator which meets the criteria
for significant cases set forth in
40 CFR 173. In general, priority
areas will consist of those State
pesticide activities which present
the greatest potential for harm to
health or the environment. EPA
will determine on a case-by-case
basis which allegations in the
priority areas agreed to by EPA
and the State in the Cooperative
Agreement involve "significant"
violations to be formally referred
to the State and traced.
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PROGRAM DEFINITIONS FOR SIGNIFICANT NONCOMPLIERS
ANO SIGNIFICANT VIOLATORS
Media Program Term/Definition
Air/CAA ° Significant violator meets any one
of the following requirements:
A source in violation of a
hazardous air pollutant
standard, other than a source
violating asbestos demolition
and renovation requirements.
A source in violation of
new source requirements,
including NSPS, PSD, and
Part D nonattainment
permitting requirements.
A Class A source in violation
of a SIP if the source is
located so as to impact a
nonattainment area and is in
violation for the pollutant
for which the area is
nonattainable.
A source in violation of a
Federal consent decree or
Administrative Order.
A Class A Federal facility
violator.
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MEDIA PROGRAM DEFINITIONS FOR MAJOR vs MINOR FACILITIES
OR EQUIVALENT TERMS
1. NPDES
A. Industrial (See Attachment for Classification scheme)
The Environmental Protection Agency designates an
industrial discharger a major NPDES permit by
applying a numerical permit rating system to each
industrial permit. This rating system assigns
points to individual permittee based on an assessment
of five characteristics of the permittee's discharge.
The five characteristics or "rating criteria" are:
1) Toxic pollutant potential
2) Flow/streamflow volume
3) Traditional pollutants
4) Potential public health impacts
5) Water quality factors
For detailed defintions see attachment
B. Municipal
1. Major: Treatment process or facility that services
10,000 or more population, discharges in
excess of 1 mgd, or discharges into an
environmentally fragile, "pristine" body
of water.
Minor: Treatment process or facility not covered
in the above criteria.
2. Drinking Water
A. UIC:
Major and minors as identified in attached 40 CFR
Part 144.3. Minors are those not identified as majors.
Major "Facility or activity" is classified as such
by the regional administrator or, in the case of
approved state programs, the regional administrator
in conjunction with the state director.
-1-
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3. TSCA
B. Public Water System
1. Community public water system is any public water
system that has 15 or more service connections year
round or serves 25 or more residents year round.
2. Noncoummuinty public water system is any system
that does not meet the above criteria.
A. Minors and majors not applicable terms for this
program
4. AIR
A. Class Al any major stationary source whose actual
emissions, or potential controlled emissions opera-
ting at design capacity, are equal to or exceed
100 tons per year of any regulated criteria pollutant.
Class A2 any stationary source whose uncontrolled
emissions operating at the design capacity are equal
to or exceed 100 tons per year for any regulated
criteria pollutant, but whose actual or potential
or controlled emissions (which ever is greater)
is less than 100 tons per year.
Class B any stationary source that has actual or the
potential for uncontrolled emissions of less than 100
tons per year.
5. RCRA (See attachment 2 for definitions)
A. High Priority Violators
B. Low Priority Violators
See attached
-2-
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Classification of Major and Minor
NPDES Industrial Permit?
The Office of Water Enforcement and Permits designates an industrial
discharger a major NPDES permit by applying a numerical permit rating
system to each industiral permit. This rating system assigns points
to an individual permittee based on an assessment of five characteristics
of the permittee's discharge. The five characteristics or "rating criteria"
are:
1) Toxic Pollutant Potential
2) Flow/Streamflow Volume
3) Traditional Pollutants
4) Potential Public Health Impacts
5) Water Quality Factors
The rate an industrial permit, an NPDES Industrial Permit Rating
Worksheet must be filled out. Attached is an example of a worksheet
completed by a state permitting authority. A worksheet is filled out by
evaluating the current permit application, the permit itself, and other
monitoring forms kept in the individual permit file;, The sum of these
weighted point values is the permit's ranking. The point totals range from
zero to a maximum of 265.
To generate the major industrial permit lists for each NPDES State
and EPA Region, the data for each permittee is loaded into the NEIC
computer system in Denver. The numbered boxes on the worksheet correlate
to specific point values programmed into the computer. The computer
addes the points for each criteria for each permit and arranges each permit
by State in descending numerical order.
Currently, a permit assigned a point total of 80 points or higher is
designated a major permit. All permits below 80 points are designated minor
permits. This is an artificial cutoff point but one which maintains the
total number of major permits originally designated major during the first
round of permitting. It also includes most permits which the NPDES permitting
authorities collectively believe should be considered major dischargers.
In addition, each Region, in consultation with their NPDES States,
is allowed to designate a certain percentage of their total permits
"discretionary addition" major permits. These are statuts but for one
reason or another did not achieve sufficient points to be rated a major
permit. A "discretionary addition" is assigned an arbitrary 500 points
to give it major status and to flag it as a discretionary major permit.
There are 400 discretionary addition major at this time.
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RCRA PROGRAM DEFINITIONS
RCRA Violation Definitions
The RCRA Enforcement Response Policy classifies individual facility
violations into one of two categories.
1. Class I Violation
Deviations from regulations, or provisions of compliance orders,
consent agreements, consent decrees, or permit conditions which could
result in a failure to:
a) Assure that hazardous waste is destined for and delivered
to authorized treatment, storage, or disposal facilities
(TSOFs); or
b) Prevent releases of hazardous waste or constituents,
both during the active and any applicable post-closure
periods of the facility operation where appropriate;
or
c) Assure early detection of such release; or
d) Perform emergency clean-up operation or other
corrective action for releases.
2. Class II Violation
Any violation of a RCRA requirement that does not meet the
criteria listed above for Class I violations.
Class II violations are defined in the negative, i.e., they
include all violations that are not considered Class I, and therefore are
those violations which do not involve deviations from requirements which
could result in failure to: 1) assure that wastes are destined for only
authorized TSDFs, 2) prevent releases, 3) assure detection or 4) perform
corrective action for such releases.
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RCRA Violator Definitions and Enforcement Responses
A RCRA handler is classified as a violator based upon the nature of
his or her violation (s) along with a number of other factors (e.g.,
compliance history, previous recalcitrant behavior, etc.). The
Enforcement Response Policy establishes three categories of violators -
High Priority, Medium Priority, and Low Priority - and define timely
and appropriate enforcement response.
1. High Priority Violator
Definition: A High Priority Violator is a handler who:
0 Has cause actual exposure or a substantial likelihood of
exposure to hazardous waste or hazardous constitutents; or
0 Is a chronic or recalcitrant violator (This may include
some handlers who are regularly found to have many Class I
or Class II violations.); or
0 Deviates from terms of a permit, order or decree by not
meeting the requirements in a timely manner and/or by failing
to perform work as required by terms of permits, orders, or
decrees; or
0 Substantially deviates from RCRA statutory requirements.
High Priority Violators (HPV) represent the category of
violators that merit the most stringent and immediate enforcement
response. These violators should be the highest priorities for
enforcement action in cnjunction with those program priorities
set out annually in the RIP.
The response timeframes allow 45 days from the day an
inspection is completed to identify or "discover" the violations.
Once violation discovery is made, it is expected that, for HPVs,
within 90 days a formal administrative enforcement action will
be taken, or a referral will be made for judicial or EPA action. If
a judicial referral is made, it is expected that the case will be
filed within 60 days of referral. These timeframes are discussed
in greater detail on page 12.
The goal of any enforcement action against a High Priority violator
is a to impose sanctions which will:
0 Compel a rapid return to compliance;
o
Penalize the violator and recover economic savings the
violator may have accrued ; and
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0 Deter members of the regulated community from violating
the law.
2. Medium Priority Violators
Definition: A Medium Priority Violator is a handler with one or more
Class I violations who does not meet the criteria for a High Priority Violator.
Handlers with only Class II may also be Medium Priority Violators when the
compliance official believes an administrative order is the appropriate
response to a facility with only Class II violations.
The appropriate response to the Medium Priority Violator is either the
issuance of an administrative order or a less formal response which results
in compliance within 90 days of violation discovery. The issuance of an
administrative order with penalties is the preferred response to a Medium
Priority Violator. If the decision is made to issue an order, the order
should be issued within 120 days of violation discovery. A penalty is not
required.
Where there is reason to believe a Notice of Violation (NOV) or
Warning Letter (WL) will bring about a timely return-to-compliance,
this less formal action may be used in response to Medium Priority
Violators. If the initial NOV or WL does not result in final compliance
or a compliance schedule incorporated in an enforceable order within
90 days of violation discovery, a decision must be made to escalate.
Escalation entails either development of a judicial referral or
development and issuance of an administrative order. For generators
with no violations of land disposal restriction requirements, up to
120 days may be allowed to return the facility to compliance before
escalation is required.
If an administrative order is chosen as the escalated response,
the State/Region has 60 days to develop and issue the order. If a
judical referral is selected, the State official. The case should then
be filed within 60 days of referral.
While it is acceptable for a State/Region to initially
address a Medium Priority Violator with an NOV or Warning Letter,
no more than one WL or NOV should be issued. If compliance does
not result, escalation should immediately follow.
3. Low Priority Violators
Definition: A handler who has only Class II violations who is
not a Medium or High Priority Violator.
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While EPA and most authorized States have the authority to respond
to any Subtitle C violation with an order or referral, a Low Priority
Violator will normally receive an NOV or Warning Letter as the initial
response within 60 days of violation discovery. If this response does
not result in expeditious compliance, normally within 30-60 days of
issuance, the Regional Office or authorized State should consider whether
the violation warrants issuing an order. In cases involving large numbers
of Class II violations, repeated Class II violations, or any other
case the enforcement authority considers serious, the handler should be
carefully evaluated to determine whether the handler meets any of the
High Priority Violator criteria, or may be better addressed as a Medium
Priority Violator therefore requiring an enforcement action as described
under the appropriate section.
Characteristic of High Priority Violators
The following criteria are set out to assist the agencies in determining
the category of violators that must consistently receive the highest priority
for enforcement.
a) A handler who has caused actual exposure, or substantial
likelihood of exposure to hazardous waste or hazardous
constituents.
Handlers that have caused actual exposure or a threat of
exposure are always considered High Priority Violators.
Evaluating when a handler "...caused a substantial
likelihood of exposure to hazardous waste..." should be done
on the basis of the case-specific information. All violations
at a site should be considered in making this determination.
Addititional factors such as the quantity of waste involved,
toxicity, environmental persistence, or other hazard posed
by the waste, waste management practices, proximity of human
and environmental receptors (including employees), exposure
pathways, etc. should be considered.
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APPENDIX D
EPA ENVIRONMENTAL
AUDITING POLICY STATEMENT
( JULY 9, 1986)
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25004
Federal Register / Vol. 51. No. 131 / Wednesday, July 9. 1986 / Notices
ENVIRONMENTAL PROTECTION
AGENCY
[OPPE-FRL-3046-6]
Environmental Auditing Policy
Statement
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final policy statement.
SUMMARY: It is EPA policy to encourage
the use of environmental auditing by
regulated.entities to help achieve and
maintain compliance with
environmental laws and regulations, as
well as to help identify and correct
unregulated environmental hazards.
EPA first published this policy as
interim guidance on November 8,1985
(50 FR 46504). Based on comments
received regarding the interim guidance,
the Agency is issuing today's final
policy statement with only minor
changes.
This final policy statement
specifically:
• Encourages regulated entities to
develop, implement and upgrade
environmental auditing programs:
• Discusses when the Agency may or
may not request audit reports;
• Explains how EPA's inspection and
enforcement activities may respond to
regulated entities' efforts to assure
compliance through auditing;
• Endorses environmental auditing at
federal facilities;
• Encourages state and local
environmental auditing initiatives: and
• Outlines elements of effective audit
programs.
Environmental auditing includes a
variety of compliance assessment
techniques which go beyond those
legally required and are used to identify
actual and potential environmental
problems. Effective environmental
auditing can lead to higher levels of
overall compliance and reduced risk to
human health and the environment. EPA
endorses the practice of environmental
auditing and supports its accelerated
use by regulated entities to help meet
the goals of federal, state and local
environmental requirements. However,
the existence of an auditing program
does not create any defense to, or
otherwise limit, the responsibility of any
regulated entity to comply with
applicable regulatory requirements.
States are encouraged to adopt these
or similar and equally effective policies
in order to advance the use of
environmental auditing on a consistent,
nationwide basis.
DATES: This final policy statement is
effective July 9,1986.
FOR FURTHER INFORMATION CONTACT:
Leonard Fleckenstein, Office of Policy,
Planning and Evaluation, (202) 382-
2726:
or
Cheryl Wasserman. Office of
Enforcement and Compliance
Monitoring, (202) 382-7550.
SUPPLEMENTARY INFORMATION:
ENVIRONMENTAL AUDITING
POLICY STATEMENT
I. Preamble
On November 8,1985 EPA published
an Environmental Auditing Policy
Statement, effective as interim guidance,
and solicited written comments until
January 7,1986.
Thirteen commenters submitted
written comments. Eight were from
private industry. Two commenters
represented industry trade associations.
One federal agency, one consulting firm
and one law firm also submitted
comments.
Twelve commenters addressed EPA
requests for audit reports. Three
comments per subject were received
regarding inspections, enforcement
response and elements of effective
environmental auditing. One commenter
addressed audit provisions as remedies
in enforcement actions, one addressed
environmental auditing at federal
facilities, and one addressed the
relationship of the policy statement to
state or local regulatory agencies.
Comments generally supported both the
concept of a policy statement and the
interim guidance, but raised specific
concerns with respect to particular
language and policy issues in sections of
the guidance.
General Comments
Three commenters found the interim
guidance to be constructive, balanced
and effective at encouraging more and
better environmental auditing.
Another commenter, while
considering the policy on the whole to
be constructive, felt that new and
identifiable auditing "incentives" should
be offered by EPA. Based on earlier
comments received from industry, EPA
believes most companies would not
support or participate in an "incentives-
based" environmental auditing program
with EPA. Moreover, general promises
to forgo inspections or reduce
enforcement responses in exchange lor
companies' adoption of environmental
auditing programs—the "incentives"
most frequently mentioned in thia
context—are fraught with legal and
policy obstacles.
Several commenters expressed
concern that states or localities might
use the interim guidance to require
auditing. The Agency disagrees that the
policy statement opens the way for
states and localities to require auditing.
No EPA policy can grant states or
localities any more (or less) authority
than they already possess. EPA believes
that the interim guidance effectively
encourages voluntary auditing. In fact
Section II.B. of the policy states:
"because audit quality depends to a
large degree on genuine management
commitment to the program and its
objectives, auditing should remain a
voluntary program."
Another commenter suggested that
EPA should not expect an audit to
identify all potential problem areas or
conclude that a problem identified in an
audit reflects normal operations and
procedures. EPA agrees that an audit
report should clearly reflect these
realities and should be written to point
out the audit's limitations. However,
since EPA will not routinely request
audit reports, the Agency does not
believe these concerns raise issues
which need to be addressed in the
policy statement.
A second concern expressed by the
same commenter was that EPA should
acknowledge that environmental audits
are only part of a successful
environmental management program
and thus should not be expected to
cover every environmental issue or
solve all problems. EPA agrees and
accordingly has amended the statement
of purpose which appears at the end of
this preamble.
Yet another commenter thought EPA
should focus on environmental
performance results (compliance or non-
compliance), not on the processes or
vehicles used to achieve those results. In
general. EPA agrees with this statement
and will continue to focus on
environmental results. However, EPA
also believes that such results can be
improved through Agency efforts to
identify and encourage effective
environmental management practices.
and will continue to encourage such
practices in non-regulatory ways.
A final general comment
recommended that EPA should sponsor
seminars for small businesses on how to
start auditing programs. EPA agrees that
such seminars would be useful.
However, since audit seminars already
are available from several private sector
organizations, EPA does not believe it
should intervene in that market with the
possible exception of seminars for
government agencies, especially federal
agencies, for which EPA has a broad
mandate under Executive Order 12088 to
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23303
provide technical assistance for
environmental compliance.
Requests for Reports
EPA received 12 comments regarding
Agency requests for environmental audit
reports, far more than on any other topic
in the policy statement. One comrr.enter
felt that EPA struck an appropriate
balance between respecting the need for
self-evaluation with some measure of
privacy, and allowing the Agency
enough flexibility of inquiry to
accomplish future statutory missions.
However, most commenters expressed
concern that the interim guidance did
not go far enough to assuage corporate
fears that EPA will use audit reports for
environmental compliance "witch
hunts." Several comrr.enters suggested
additional specific assurances regarding
the circumstances under which EPA will
request such reports.
One commenter recommended that
EPA request audit reports only "when
the Agency can show the information it
needs to perform its statutory mission
cannot be obtained from the monitoring,
compliance or other data that is
otherwise reportable and/or accessible
to EPA. or where the Government deems
an audit report material to a criminal
investigation." EPA accepts this
recommendation in part. The Agency
believes it would not be in the best
interest of human health and the
environment to commit to making a
"showing" of a compelling information
need before ever requesting an audit
report. While EPA may normally be
willing to do so, the Agency cannot rule
out in advance all circumstances in
which such a showing may not be
possible. However, it would be helpful
to further clarify that a request for an
audit report or a portion of a report
normally will be made when needed
information is not available by
alternative means. Therefore, EPA has
revised Section III.A., paragraph two
and added the phrase: "and usually
made where the information needed
cannot be obtained from monitoring,
reporting or other data otherwise
available to the Agency."
Another commenter suggested that
(except in the case of criminal
investigations) EPA should limit
requests for audit documents to specific
questions. By including the phrase "or
relevant portions of a~report" in Section
III.A., EPA meant to emphasize it would
not request an entire audit document
when only a relevant portion would
suffice. Likewise, EPA fully intends not
to request even a portion of a report if
needed information or data can be
otherwise obtained. To further clarify
this point EPA has added the phrase.
"most likely focused on particular
information needs rather than the entire
report,'1 to the second sentence of
paragraph two. Section III.A.
Incorporating the two comments above,
the first two sentences in paragraph two
of final Section III.A. now read: "EPA's
authority to request an audit report, or
relevant portions thereof, will be
exercised on a case-by-case basis where
the Agency determines it is needed to
accomplish a statutory mission or the
Government deems it to be material to a
criminal investigation. EPA expects such
requests to be limited, most likeiy
focused on particular information needs
rather than the entire report, and usually
made where the information needed
cannot be obtained from monitoring.
reporting or other data otherwise
available to the Agency."
Other commenters recommended that
EPA not request audit reports under any
circumstances, that requests be
"restricted to only those legally
required," that requests be limited to
criminal investigations, or thafrequests
be made only when EPA has reason to
believe "that the audit programs or
reports are being used to conceal
evidence of environmental non-
cornpiiance or otherwise being used in
bad faith." EPA appreciates concerns
underlying all of these comments and
has considered each carefully. However,
the Agency believes that these
recommendations do not strike the
appropriate balance between retaining
the flexibility to accomplish EPA's
statutory missions in future, unforeseen
circumstances, and acknowledging
regulated entities' need to self-evaluate
environmental performance with some
measure of privacy. Indeed, based on
prime informal comments, the small
number of formal comments received.
and the even smaller number of adverse
comments. EPA believes the final policy
statement should remain largely
unchanged from the interim version.
Elements of Effective Environmental
Auditing
Three commenters expressed
concerns regarding the seven general
elements EPA outlined in the Appendix
to the interim guidance.
One commenter noted that were EPA
to further expand or more fully detail
such elements, programs not specifically
fulfilling each element would then be
judged inadequate. EPA agrees that
presenting highly specific and
prescriptive auditing elements could be
counter-productive by not taking into
account numerous factors which vary
extensively from one organization to
another, but which may still result in
effective auditing programs.
Accordingly, EPA does not plan to
expand or more fully detail these
auditing elements.
Another commenter asserted that
states and localities should be cautioned
not to consider EPA's auditing elements
as mandatory steps. The Agency is fully
aware of this concern and in the interim
guidance noted its strong opinion that
"regulatory- agencies should net attempt
to prescribe the precise form and
structure of regulated entities'
environmental management or auditing
programs." While EPA cannot require
state or local regulators to adopt this or
similar policies, the Agency does
strongly encourage them to do so. both
in the interim and final policies.
A final commenter thought the
Appendix too specifically prescribed
what should and what should not be
included in an auditing program. Other
commenters, on the other hand, viewed
the elements described as very general
in nature. EPA agrees with these other
commenters. The elements are in no
way binding. Moreover, EPA believes
that most mature, effective
environmental auditing programs a'c
incorporate each of these general
elements in some form, ana considers
them useful yardsticks for those
considering adopting or upgrading audit
programs. For these reasons EPA has
not revised the Appendix in today's
final policy statement
Other Comments
Other significant comments addressed
EPA inspection priorities for. and
enforcement responses to. organizations
with environmental auditing programs.
One commenter, stressing that audit
programs are internal management
tools, took exception to the phrase in the
second paragraph of section III.B.l. of
the interim guidance which states that
environmental audits can 'complement'
regulatory oversight. By using the word
'complement' in this context. EPA does
not intend to imply that audit reports
must be obtained by the Agency in order
to supplement regulatory inspections.
'Complement' is used in a broad sense
of being in addition to inspections and
providing something (i.e., self-
assessment) which otherwise would be
lacking. To clarify this point EPA has
added the phrase "by providing self-
assessment to assure compliance" after
"environmental audits may complement
inspections" in this paragraph.
The same commenter also expressed
concern that, as EPA sets inspection
priorities, a company having an audit
program could appear to be a 'poor
performer' due to complete and accurate
reporting when measured against a
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company which reports something less
than required by law. EPA agrees that it
is important to communicate this fact to
Agency and state personnel, and will do
so. However, the Agency does not
believe a change in the policy statement
is necessary.
A further comment suggested EPA
should commit to take auditing
programs into account when assessing
all enforcement actions. However, in
order to maintain enforcement flexibility
under varied circumstances, the Agency
cannot promise reduced enforcement
responses to violations at all audited
facilities when other factors may be
overriding. Therefore the policy
siatement continues to state that EPA
may exercise its decretion to consider
auditing programs as evidence of honest
and genuine efforts to assure
compliance, which would then be taken
into account in fashioning enforcement
responses to violations.
A final commenter suggested the
phrase "expeditiously correct
environmental problems" not be used in
the enforcement context since it implied
EPA would use an entity's record of
correcting nonregulated matters when
evaluating regulatory violations. EPA
did not intend for such an inference to
be made. EPA intended the term
"environmental problems" to refer to the
underlying Circumstances which
eventually lead up to the violations. To
clarify this point, EPA is revising the
first t-.vo sentences of the paragraph to
which this comment refers by changing
"environmental problems" to "violations
and underlying environmental
problems" in the first sentence and to
"underlying environmental problems" in
the second sentence.
In a separate development EPA is
preparing an update of its January 1984
Federal Facilities Compliance Strategy.
which is referenced in section HI. C. of
the auditing policy. The Strategy should
be completed and available on request
from EPA's Office of Federal Activities
later this year.
EPA thanks all commenters for
responding to the November 8.1985
publication. Today's notice is being
issued to inform regulated entities and
the public of EPA's final policy toward
environmental auditing. This policy was
developed to help (a) encourage
regulated entities to institutionalize
effective audit practices as«ne means of
improving compliance and sound
environmental management, and (b)
guide internal EPA actions directly
related to regulated entities'
environmental auditing programs.
EPA will evaluate implementation of
this final policy to ensure it meets the
above goals and continues to encourage
better environmental management,
while strengthening the Agency's own
efforts to monitor and enforce
compliance with environmental
requirements.
II. General EPA Policy on
Environmental Auditing
A. Introduction
Environmental auditing is a
systematic, documented, periodic and
objective review by regulated entities '
of facility operations and practices
related to meeting environmental
requirements. Audits can be designed to
accomplish any or all of the following:
verify compliance with environmental
requirements; evaluate the effectiveness
of environmental management systems
already in place: or assess risks from
regulated and unregulated materials and
practices.
Auditing serves as a quality assurance
check to help improve the effectiveness
of basic environmental management by
verifying that management practices are
in place, functioning and adequate.
Environmental audits evaluate, and are
not a substitute for. direct compliance
activities such as obtaining permits.
installing controls, monitoring
compliance, reporting violations, and
keeping records. Environmental auditing
may verify but does not include
activities required by law. regulation or
permit (e.g., continuous emissions
monitoring, composite correction plans
at wastewater treatment plants, etc.).
Audits do not in any way replace
regulatory agency inspections. However,
environmental audits can improve
compliance by complementing
conventional federal, state and local
oversight.
The appendix to this policy statement
outlines some basic elements of
environmental auditing (e.g., auditor
independence and top management
support) for use by those considering
implementation of effective auditing
programs to help achieve and maintain
compliance. Additional information on
environmental auditing practices can be
found in various published materials.2
1 "Regulated entities" include private firms and
public agenciei with facilities subiect to
environmental regulation. Public agencies can
include federal state or local agencies as well as
special-purpose organization! such as regional
sewage commissions.
• See. e.g.. "Current Practices in Environmental
Auditing," EPA Report No. EPA-230-09-83-006.
February 1984: "Annotated Bibliography on
Environmental Auditing." Fifth Edition. September
1985 bolh available from: Regulatory Reform Staff.
PM-223. EPA. 401 M Street SW. Washington. DC
20460.
Environmental auditing has developed
for sound business reasons, particularly
as a means of helping regulated entities
manage pollution control affirmatively
over time instead of reacting to crises.
Auditing can result in improved facility
environmental performance, help
communicate effective solutions to
common environmental problems, focus
facility managers' attention on current
and upcoming regulatory requirements.
and generate protocols and checklists
which heip facilities better manage
themselves. Auditing also can result in
better-integrated management of
environmental hazards, since auditors
frequently identify environmental
liabilities which go beyond regulatory
compliance. Companies, public entities
and federal facilities have employed a
variety of environmental auditing
practices in recent years. Several
hundred major firms in diverse
industries now have environmental
auditing programs, although they often
are known by other names such as
assessment, survey, surveillance, review
or appraisal.
While auditing has demonstrated its
usefulness to those with audit programs.
many others still do not audit.
Clarification of EPA s position regarding
auditing may help encourage regulated
entities to establish audit programs or
upgrade systems already in place.
B. EPA Encourages the Use of
Environmental Auditing
EPA encourages regulated entities to
adopt sound environmental
management practices to improve
environmental performance. In
particular, EPA encourages regulated
entities subject to environmental
regulations to institute environmental
auditing programs to help ensure the
adequacy of internal systems to achieve.
maintain and monitor compliance.
Implementation of environmental
auditing programs can result in better
identification, resolution and avoidance
of environmental problems, as well as
improvements to management practices.
Audits can be conducted effectively by
independent internal or third party
auditors. Larger organizations generally
have greater resources to devote to an
internal audit team, while smaller
entities might be more likely to use
outside auditors.
Regulated entities are responsible for
taking all necessary steps to ensure
compliance with environmental
requirements, whether or not they adopt
audit programs. Although environmental
laws do not require a regulated facility
to have an auditing program, ultimate
responsibility for the environmental
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2500
performance of the facility lies with top
management, which therefore has a.
strong incentive to use reasonable
means, such as environmental auditing,
to secure reliable information of facility
compliance status.
EPA does not intend to dictate or
interfere with the environmental
management practices of private or
public organizations. Nor does EPA
intend to mandate auditing (though in
certain instances EPA may seek to
include provisions for environmental
auditing as part of settlement
agreements, as noted below). Because
environmental auditing systems have
been widely adopted on a voluntary
basis in the past, and because audit
quality depends to a large degree upon
genuine management commitment to the
program and its objectives, auditing
should remain a voluntary activity.
III. EPA Policy on Specific
Environmental Auditing Issues
A. Agency Requests for Audit Reports
EPA has broad statutory authority to
request relevant information on the
environmental compliance status of
regulated entiUes. However. EPA
believes routine Agency requests for
audit reports 3 could inhibit auditing in
the long run. decreasing both the
quantity and quality of audits
conducted. Therefore, as a matter of
policy, EPA will not routinely request
environmental audit reports.
EPA's authority to request an audit
report, or relevant portions thereof, will
be exercised on a case-by-case basis
where the Agency determines it is
needed to accomplish a statutory
mission, or where the Government
deems it to be material to a criminal
investigation. EPA expects such
requests to be limited, most likely
focused on particular information needs
rather than the entire report, and usually
made where the information needed
cannot be obtained from monitoring,
reporting or other data otherwise
available to the Agency. Examples
would likely include situations where:
audits are conducted under consent
decrees or other settlement agreements;
a company has placed its management
practices at issue by raising them as a
defense; or state of mind or intent are a
relevant element of inquiry, such as
during a criminal investigation. This list
1 An "environmental audit report" i* a wnlten
report which candidly and thoroughly present*
findings from a review, conducted a* part of an
environmental audit as described in section U.A_ of
facility environmental perfonnaocc and pracrtcea.
An audit report is not a substitute for compliance
monitoring reports or other reports or recorda which
may be required by EPA or other regulatory
is illustrative rather than exhaustive,
since there doubtless will be other
situations, not subject to prediction, in
which audit reports rather than
information may be required.
EPA acknowledges regulated entities'
need to self-evaluate environmental
performance with some measure of
privacy and encourages such activity.
However, audit reports may not shield
monitoring, compliance, or other
information that would otherwise be
reportable and/or accessible to EPA.
even if there is no explicit 'requirement'
to generate that data.4 Thus, this policy
does not alter regulated entities' existing
or future obligations to monitor, record
or report information required under
environmental statutes, regulations or
permits, or to allow EPA access to that
information. Nor does this policy alter
EPA's authority to request and receive
any relevant information—including that
contained in audit reports—under
various environmental statutes (e.g..
Clean Water Act section 308, Clean Air
Act sections 114 and 208) or in other
administrative or judicial proceedings.
Regulated entities also should be
aware that certain audit findings may by
law have to be reported to government
agencies. However, in addition to any
such requirements. EPA encourages
regulated entities to notify appropriate
State or Federal officials of findings
which suggest significant environmental
or public health risks, even when not
specifically required to do so.
B. EPA Response to-Environmental
Auditing
1. General Policy
EPA will not promise to forgo
inspections, reduce enforcement
responses, or offer other such incentives
in exchange for implementation of
environmental auditing or other sound
environmental management practices.
Indeed, a credible enforcement program
provides a strong incentive for regulated
entities to audit.
Regulatory agencies have an
obligation to assess source compliance
status independently and cannot
eliminate inspections for particular firms
or classes of firms. Although
environmental audits may complement
inspections by providing self-
assessment to assure compliance, they
are in no way a substitute for regulatory
oversight. Moreover, certain statutes
(e.g. RCRA) and Agency policies
establish minimum facility inspection
frequencies to which EPA will adhere.
However, EPA will continue to
address environmental problems on a
priority basis and will consequently
inspect facilities with poor
environmental records and practices
more frequently. Since effective
environmental auditing helps
management identify and promptly
correct actual or potential problems,
audited facilities' environmental
performance should improve. Thus,
while EPA inspections of self-audited
facilities will continue, to the extent that
compliance performance is considered
in setting inspection priorities, facilities
with a good compliance history may be
subject to fewer inspections.
In fashioning enforcement responses
to violations, EPA policy is to take into
account, on a case-by-case basis, the
honest and genuine efforts of regulated
entities to avoid and promptly correct
violations and'underlying environmental
problems. When regulated entities take
reasonable precautions to avoid
noncompliance. expeditiously correct
underlying environmental problems
discovered through audits or other
means, and implement measures to
prevent their recurrence, EPA may
exercise its discretion to consider such
actions as honest and genuine efforts to
assure compliance. Such consideration
applies particularly when a regulated
entity promptly reports violations or
compliance data which otherwise were
not required to be recorded or reported
to EPA.
2. Audit Provisions as Remedies in
Enforcement Actions
EPA may propose environmental
auditing provisions in consent decrees
and in other settlement negotiations
where auditing could provide a remedy
for identified problems and reduce the
likelihood of similar problems recurring
in the future.* Environmental auditing
provisions are most likely to be
proposed in settlement negotiations
where:
• A pattern of violations can be
attributed, at least in part, to the
absence or poor functioning of an
environmental management system; or
• The type or nature of violations
indicates a likelihood that similar
noncompliance problems may exist or
occur elsewhere in the facility or at
other facilities operated by the regulate
entity.
• See. for example. "Duties to Report or Disclose
Information on the Environmental Aspects of
Business Activities." Environmental Law Institute
report to EPA. final report. September 1965.
* EPA is developing guidance for use by Agency
negotiators in structuring appropriate environmental
audit provisions for consent decrees and other
settlement negotiations.
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Through this consent decree approach
and other means. EPA may consider
how to encourage effective auditing by
publicly owned sewage treatment works
(POTWs). POTWs often have
compliance problems related to
operation and maintenance procedures
which can be addressed effectively
through the use of environmental
auditing. Under its National Municipal
Policy EPA already is requiring many
POTWs to develop composite correction
plans to identify and correct compliance
problems.
C. Environmental Auditing at Federal
Facilities
EPA encourages all federal agencies
subject to environmental laws and
regulations to institute environmental
auditing systems to help ensure the
adequacy of internal systems to achieve.
maintain and monitor compliance.
Environmental auditing at federal
facilities can be an effective supplement
to EPA and state inspections. Such
federal facility environmental audit
programs should be structured to
promptly identify environmental
problems and expenditiously develop
schedules for remedial action.
To the extent feasible, EPA will
provide technical assistance to help
federal agencies design and initiate
audit programs. Where appropriate. EPA
will enter into agreements with other
agencies to clarify the respective roles,
responsibilities and commitments of
each agency in conducting and
responding to federal facility
environmental audits.
With respect to inspections of self-
audited facilities (see section III.B.l
above) and requests for audit reports
(see section III.A above), EPA generally
will respond to environmental audits by
federal facilities in the same manner as
it does for other regulated entities, in
keeping with the spirit and intent of
Executive Order 12088 and the EPA
Federal Facilities Compliance Strategy
(January 1984, update forthcoming in
late 1986). Federal agencies should.
however, be aware that the Freedom of
Information Act will govern any
disclosure of audit reports or audit-
generated information requested from
federal agencies by the public.
When federal agencies discover
significant violations through an
environmental audit. EPA encourages
them to submit the related audit findings
and remedial action plans expeditiously
to the applicable EPA regional office
(and responsible state agencies, where
appropriate) even when not specifically
required to do so. EPA will review the
audit findings and action plans and
either provide written approval or
negotiate a Federal Facilities
Compliance Agreement. EPA will utilize
the escalation procedures provided in
Executive Order 12088 and the EPA
Federal Facilities Compliance Strategy
only when agreement between agencies
cannot be reached. In any event federal
agencies are expected to report pollution
abatement projects involving costs
(necessary to correct problems
discovered through the audit) to EPA in
accordance with OMB Circular A-106.
Upon request, and in appropriate
circumstances, EPA will assist affected
federal agencies through coordination of
any public release of audit findings with
approved action plans once agreement
has been reached.
IV. Relationship to State or Local
Regulatory Agencies
State and local regulatory agencies
have independent jurisdiction over
regulated entities. EPA encourages them
to adopt these or similar policies, in
order to advance the use of effective
environmental auditing in a consistent
manner.
EPA recognizes that some states have
already undertaken environmental
auditing initiatives which differ
somewhat from this policy. Other states
also may want to develop auditing
policies which accommodate their
particular needs or circumstances.
Nothing in this policy statement is
intended to preempt or preclude states
from developing other approaches to
environmental auditing. EPA encourages
state and local authorities to consider
the basic principles which guided the
Agency in developing this policy:
• Regulated entities must continue to
report or record compliance information
required under existing statutes or
regulations, regardless of whether such
information is generated by an
environmental audit or contained in an
audit report. Required information
cannot be withheld merely because it is
generated by an audit rather than by
some other means.
• Regulatory agencies cannot make
promises to forgo or limit enforcement
action against a particular facility or
class of facilities in exchange for the use
of environmental auditing systems.
However, such agencies may use their
discretion to adjust enforcement actions
on a case-by-case basis in response to
honest and genuine efforts by regulated
entities to assure environmental
compliance.
• When setting inspection priorities
regulatory agencies should focus to the
extent possible on compliance
performance and environmental results.
• Regulatory agencies must continue
to meet minimum program requirements
(e.g.. minimum inspection requirements.
etc.).
• Regulatory agencies should not
attempt to prescribe the precise form
and structure of regulated entities'
environmental management or auditing
programs.
An effective state/federal partnership
is needed to accomplish the mutual goal
of achieving and maintaining high levels
of compliance with environmental laws
and regulations. The greater the
consistency between state or local
policies and this federal response to
environmental auditing, the greater the
degree to which sound auditing
practices might be adopted and
compliance levels improve.
Dated: June 28.1936.
Lee M. Thomas,
Administrator.
Appendix—Elements of Effective
Environmental Auditing Programs
Introduction: Environmental auditing
is a systematic, documented, periodic
and objective review by a regulated
entity of facility operations and
practices related to meeting
environmental requirements.
Private sector environmental audits of
facilities have been conducted for
several years and have taken a variety
of forms, in part to accommodate unique
organizational structures and
circumstances. Nevertheless, effective
environmental audits appear to have
certain discernible elements in common
with other kinds of audits. Standards for
internal audits have been documented
extensively. The elements outlined
below draw heavily on two of these
documents: "Compendium of Audit
Standards" («1983, Walter Willbom.
American Society for Quality Control)
and "Standards for the Professional
Practice of Internal Auditing" (e1981.
The Institute of Internal Auditors, Inc.).
They also reflect Agency analyses
conducted over the last several years.
Performance-oriented auditing
elements are outlined here to help
accomplish several objectives. A general
description of features of effective,
mature audit programs can help those
starting audit programs, especially
federal agencies and smaller businesses.
These elements also indicate the
attributes of auditing EPA generally
considers important to ensure program
effectiveness. Regulatory agencies may
use these elements in negotiating
environmental auditing provisions for
consent decrees. Finally, these elements
can help guide states and localities
considering auditing initiatives.
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Federal Register / Vol. 51, No. 131 / Wednesday, July 9. 1965 / Notices
25009
An effective environmental auditing
system will likely include the following
general elements:
I. Explicit top management support for
environmental auditing and
commitment to follow-up on audit
findings. Management support may be
demonstrated by a written policy
articulating upper management support
for the auditing program, and for
compliance with all pertinent
reo.uirements. including corporate
policies and permit requirements as well
as federal, state and local statutes and
regulations.
Management support for the auditing
program also should be demonstrated
by an explicit written commitment to
follow-up on audit findings to correct
identified problems and prevent their
recurrence.
II. An environmental auditing function
independent of audited activities. The
status or organizational locus of
environmental auditors should be
sufficient to ensure objective and
unobstructed inquiry, observation and
testing. Auditor objectivity should not
be impaired by personal relationships.
financial or other conflicts of interest.
interference with free inquiry or
judgment, or fear of potential
retribution.
III. Adequate team staffing and
auditor training. Environmental auditors
should possess or have ready access to
the knowledge, skills, and disciplines
needed to accomplish audit objectives.
Each individual auditor should comply
with the company's professional
standards of conduct. Auditors, whether
full-time or part-time, should maintain
their technical and analytical
competence through continuing
education and training.
IV. Explicit audit program objectives.
scope, resources and frequency. At a
minimum, audit objectives should
include assessing compliance with
applicable environmental laws and
evaluating the adequacy of internal
compliance policies, procedures and
personnel training programs to ensure
continued compliance.
Audits should be based on a process
which provides auditors: all corporate
policies, permits, and federal, state, and
local regulations pertinent to the facility;
and checklists or protocols addressing
specific features that should be
evaluated by auditors.
Explicit written audit procedures
generally should be used for planning
audits, establishing audit scope,
examining and evaluating audit findings,
communicating audit results, and
following-up.
V. A process which collects, analyzes.
interprets and documents information
sufficient to achieve audit objectives.
Information should be collected before
and during an onsite visit regarding
environmental compliancef;),
environmental management
effectiveness^), and other matters (3)
related to audit objectives and scope.
This information should be sufficient,
reliable, relevant and useful to provide a
sound basis for audit findings and
recommendations.
a. Sufficient information is factual,
adequate and convincing so that a
prudent, informed person would be
likely to reach the same conclusions as
the auditor.
b. Reliable information is the best
attainable through use of appropriate
audit techniques.
c. Relevant information supports audit
findings and recommendations and is
consistent with the objectives for the
audit.
d. Useful information helps the
organization meet its goals.
The audit process should include a
periodic review of the reliability and
integrity of this information and the
means used to identify, measure,
classify and report it. Audit procedures,
including the testing and sampling
techniques employed, should be selected
in advance, to the extent practical, and
expanded or altered if circumstances
warrant. The process of collecting,
analyzing, interpreting, and
documenting information should provide
reasonable assurance that audit
objectivity is maintained and audit goals
are met.
VI. A process which includes specific
procedures to promptly prepare candid,
clear and appropriate written reports on
audit findings, corrective actions, and
schedules for implementation.
Procedures should be in place to ensure
that such information is communicated
to managers, including facility and
corporate management, who can
evaluate the information and ensure
correction of identified problems.
Procedures also should be in place for
determining what internal findings are
reportable to state or federal agencies.
VII. A process which includes quail
assurance procedures to assure the
accuracy and thoroughness of
environmental audits. Quality assurance
may be accomplished through
supervision, independent internal
reviews, external reviews, or a
combination of these approaches.
Footnotes to Appendix
(1) A comprehensive assessment of
compliance wtth federal environmental
regulations requires an analysis of facility
performance against numerous
environmental statutes and implementing
regulations. These statutes include:
Resource Conservation and Recovery Act
Federal Water Pollution Control Act
Clean Air Act
Hazardous Materials Transportation Act
Toxic Substances Control Act
Comprehensive Environmental Response.
Compensation and Liability Act
Safe Drinking Water Act
Federal Insecticide, Fungicide and
Rodenticide Act
Marine Protection. Research and Sanctuaries
Act
Uranium Mill Tailings Radiation Control Act
In addition, state and local government are
likely to have their own environmental laws.
Many states have been delegated authority uj
administer federal programs. Many local "°*
governments' building, fire, safely and heJ
codes also have environmental requiremer.
relevant to an audit evaluation.
(2) An environmental audit could go well
beyond the type of compliance assessment
normally conducted during regulatory
inspections, for example, by evaluating
policies and practices, regardless of whether
they are part of the environmental system or
the operating and maintenance procedures.
Specifically, audits can evaluate the extent to
which systems or procedures:
1. Develop organizational environmental
policies which: a. implement regulatory
requirements: b. provide management
guidance for environmental hazards not
specifically addressed in regulations:
2. Train and motivate facility personnel to
work in an environmentally-acceptable
manner and to understand and comply with
government regulations and the entity's
environmental policy:
3. Communicate relevant environmental
developments expeditiously to facility and
other personnel:
4. Communicate effectively with
government and the public regarding serious
environmental incidents:
5. Require third parties working for. with or
on behalf of the organization to follow its
environmental procedures;
v to
9
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25(310 Federal Register / Vol. 51. No. 131 / Wednesday. |uly 9. 1986 / Notices
6. Make proficient personnel available at
all times to carry out environmental
(especially emergency) procedures:
7. Incorporate environmental protection
into written operating procedures;
8. Apply best management practices and
operating procedures, including "good
housekeeping" techniques;
9. Institute preventive and corrective
maintenance systems to minimize actual and
potf .«il environmental harm;
10. Utilize best available process and
control technologies:
11. Use most-effective sampling and
monitoring techniques, test methods,
recordkueping systems or reporting protocols
(beyond minimum legal requirements);
12. Evaluate causes behind any serious
environmental incidents and establish
procedures to avoid recurrence:
13. Exploit source reduction, recycle and
reuse potential wherever practical: and
14. Substitute materials or processes to
allow use of Ihe least-hazardous substances
feasible.
(J) Auditors could also assess
environmental risks and uncertajnties.
|FR Doc. 86-15423 Filed 7-8-B6 8:45 am]
BILLING COOE 6560-50-M
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APPENDIX E
EPA "HOTLINE" ASSISTANCE
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APPENDIX E
EPA "HOTLINE" ASSISTANCE
Toll-Free Numbers Offered by EPA Headquarters
° RCRA/Superfund Hotline -
National Toll-Free 800-424-9346
Washington, D.C., Metro 202-382-3000
EPA's largest and busiest toll-free number, the RCRA/Super-
fund Hotline answers nearly 100,000 questions and document
requests each year. Hotline specialists answer regulatory
and technical questions and provide documents on virtually
all aspects of the RCRA and Superfund programs. Because of
the complexity and changing nature of these programs, the
hotline is used widely by the regulated community, people
involved in managing and cleaning up hazardous waste,
federal, state, and local governments, and the general
public. The RCRA/Superfund Hotline can be reached Monday
through Friday from 8:30 a.m.-4:30 p.m. Eastern Standard
Time (EST).
0 National Response Center Hotline -
National Toll-Free 800-424-8802
Washington, D.C. Metro 202-426-2675
Operated by the U.S. Coast Guard, the National Response
Center Hotline responds to all kinds of accidental
releases of oil and hazardous substances. Callers should
contact this hotline to report chemical spills. The
National Response Center Hotline is available 24 hours
a day, seven days a week, every day of the year.
0 The Emergency Planning and Community Right-to-Know
(Title III) Hotline -
National Toll-Free 800-535-0202
Washington, D.C., Metro and Alaska 202-479-2449
The Title III Hotline has been in operation since late 1985,
responding to questions concerning community prepared-
ness for chemical accidents. The Superfund Amendments
and Reauthoriaztion Act (SARA) has increased the CEPP
Hotline's responsibilities, which now also include
Emergency Planning and Community Right-to-Know, SARA
Title III, questions and requests. The CEPP Hotline,
which complements the RCRA/Superfund Hotline is main-
tained as an information resource rather than an
emergency number. Calls are answered Monday through
Friday from 8:30 a.m.-4:30 p.m. EST.
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° National Pesticides Telecommunications
Network (NPTN) -
National Toll-Free 800-858-7378
(858-P-E-S-T) Texas 806-743-3091
Operating 24 hours a day, seven days a week, every day
of the year, the NPTN provides information about pesti-
cides to the medical, veterinary, and professional
communities as well as to Fedal agencies and the general
public. Originally a service for physicians wanting
information on pesticide toxicology and on recognition
and management of pesticide poisonings, the NPTN has
expanded to serve the public and Federal agencies by
providing impartial information on pesticide products,
basic safety practices, health and environmental effects,
and cleanup and disposal procedures. Staffed by pesticide
specialists at Texas Tech University's Health Sciences
Center School of Medicine, this hotline handles about
18,000 calls each year.
0 Small Business Hotline -
National Toll-Free 800-368-5888
Washington, D.C., Metro 703-557-1938
Sponsored by the EPA Small Business Ombudsman's Program,
this hotline assists small businesses in complying with
environmental laws and EPA regulations. The Small
Business Hotline gives companies easy access to the
Agency, and investigates and resolves problems and
disputes with EPA. Acting as a liasion with Agency
program offices, the hotline ensures that EPA considers
small business issues during its normal regulatory
activities. Federal agencies with only limited environ-
mental activities or just a few, minor facilities may
want to consider utilizing this service. The Small
Business Hotline operates Monday through Friday from
8:30 a.m.-5:00 p.m. EST, handling over 7,000 inquiries
each year.
0 Safe Drinking Water Hotline -
National Toll-Free 800-426-4791
Washington, D.C., Metro 202-382-5533
The Environmental Protection Agency's Safe Drinking
Water Hotline started operating in July, 1987. Its
primary function is to assist the public and the
regulated community, including Federal facilities, in
understanding EPA's regulations and programs developed
in response to the Safe Drinking Water Act Amendments
of 1986. The Hotline service provides information on
EPA's drinking water programs, including the Public
Water Supply (PWS) and Underground Injection Control
(UIC) Programs. The Hotline operates Monday through
Friday (except Federal Holidays) from 8:30 a.m.-4:30
p.m., East Coast Time.
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° Inspector General's Uhlstle Blower Hotline -
National Toll-Free 800-424-4000
Washington, D.C., Metro 202-382-4977
The EPA Inspector General's Office maintains the
Whistle-Blower Hotline to receive reports of Agency-
related waste, fraud, abuse, or mismanagement from
the public and from EPA and other government employees.
EPA employees may make complaints or give information
to the Inspector General's office confidentially and
without fear of reprisal. The Whistle-Blower Hotline
is staffed to answer calls in person from 10:00 a.m. -
3:00 p.m. EST, Monday through Friday at other times,
callers may leave a message to be answered during the
next work day. This hotline handles about 1,500 calls
each year.
Commercial Numbers Offered by EPA Headquarters
° TSCA Assistance Office -
202-554-1404
The TSCA Assistance Office provides infor-
mation on TSCA regulations to the chemical industry,
labor and trade organizations, environmental groups,
Federal facilities, and the general public. Technical
as well as general information is available. To help
facilities comply with TSCA, a variety of services are
offered, including TSCA regulation and support documents,
a bi-monthly newsletter, publications, and audiovisual
material. In addition, the TSCA Assistance Office will
arrange meeting between EPA and industry to discuss and
clarify TSCA regulations and arrange for Agency speakers,
upon request. The TSCA Assistance Office now handles
about 2,500 calls a month, and can be reached from 8:30
a.m. - 5:00 p.m. EST, Monday through Friday.
0 Control Technology Center Hotline -
919-541-0800
A component of EPA's Air Toxics Strategy, the Control
Technology Center Hotline provides information to state
and local pollution control agencies on sources of
emissions of air toxics. Sponsored by EPA's Office of
Air Quality Planning and Standards in Research Triangle
Park, NC, this hotline takes about 100 calls a month, and
can be reached from 8:00 a.m. - 4:30 p.m. EST, Monday
through Friday.
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° Public Information Center (PIC) -
202-829-3535
EPA's Public Information Center (PIC) answers inquiries
from the public and Federal agencies about EPA, its pro-
grams, and activities, and offers a variety of general,
nontechnical information materials. The public is
encouraged to reach the PIC through its commercial tele-
phone line or by writing to PIC (PM-211B), U.S. EPA,
401 M Street, SW, Washington, D.C. 20460.
Toll-Free Numbers Offered by EPA's Regional Offices
0 General Information Numbers
Five of EPA's 10 Regional Offices offer toll-free
numbers providing the public general information on
Agency programs, and making referrals as needed. These
general information numbers are:
0 EPA Region 3, Philadelphia, PA
800-438-2474 for all Region 3 states (DC, DE,
MD, PA, VA, WV)
0 EPA Region 4, Atlanta, GA
800-282-0239 in GA
800-241-1754 in other Region 4 states
(AL, FL, KY, MS, NC, SC, TN)
0 EPA Region 5, Chicago, II
800-572-2515 in IL
800-621-8431 in other Region 5 states
(IN, MI, MN, OH, WI)
0 EPA Region 7, Kansas City, KS
(Will offer an 800 number by early June
1987, serving the states of IA, KS, MO,
and NE)
0 EPA Region 8, Denver, CO
800-332-3321 in CO
800-525-3022 in other Region 8 states
(MT, ND, SD, UT, WY)
0 Specialized Information Numbers -
Several EPA Regional Offices sponsor specialized
issue-specific toll-free numbers to meet the demands
of frequent regional inquiries.
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Hotline
Toll-Free & Commercial #s Description
Region 1
Unleaded
Fuel Hotline
Northeast
Industrial
Waste
Exchange
Region 2
Superfund
Hotline
Region 3
Waste
Minimization
Hotline
Region 7
Iowa
RCRA
Hotline
Region 7
Missouri
Superfund/
Dioxin
Hotline
800-631-2700 (MA)
800-821-1237 (other
Region 1 states - CT,
ME, NH, RI, VT)
800-237-2481
(ME, VT, NH, MA, RI,
CT, PA, NJ, DE, VA,
WV, OH, MD, MI,
Washington, D.C.)
315-422-6572
(other states)
800-346-5009 (NJ)
800-722-1223 (NY)
800-334-2467 (PA)
800-826-5320 (other
Region 3 states)
800-223-0425
(Iowa only)
800-892-5009
(Missouri only)
Enforcement-related
1ine takes calls about
tampering with vehicles,
pumps, and other prob-
lems related to un-
leaded fuels.
Information on waste ex-
change in the Northeast
but with access to other
areas. Joins those who
generate waste with
those who desire waste.
Answers local hazard-
ous waste questions.
Technical assistance
and education on waste
minimization.
Information on imple-
mentation of RCRA in
Iowa
Information on dioxin
and related concerns
for contaminated areas
in Missouri
Commercial Numbers Offered by EPA's Regional Offices
0 A number of EPA Regional offices offer commercial
numbers for specific issues or sites.
Hotline
Region 1
(Maine)
McKin Site
Hotline
Commercial #
207-657-2087
Description
Information on clean
up efforts at Super-
fund site in Grey,
ME.
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Region 6 214-767-2666 Responds 24 hrs. a
RCRA On-Scene (AK, LA, NM, day to questions and to
Coordinators' OK, TX) reports of chemical
Hotline spills, other emer-
gencies.
Region 9 415-974-7473 Information to Region 9
RCRA (AZ, CA, HI, NV, states on RCRA issues.
Hotline Guam, American
Samoa, Pacific
Trust Territories)
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APPENDIX F
REPORTING, RECORDKEEPING,
AND SELF-MONITORING REQUIREMENTS
UNDER THE CAA, CWA, CERCLA AND RCRA
-------
INFORMATION DISCLOSURE REQUIREMENTS UNDER MAJOR FLDEiiAi,
ENVIRONMENTAL POLLUTION CONTROL LAWS
The Federal Water Pollution Control Act
Periodic
Performance
Reporting
33 U.S.C. 1251 - 1376
SECTIONS
33 U.S.C. 1342, 1318
(FWPCA SS 402, 308)
REGULATIONS
(40 CFR...)
NPDES
POTW
122.4
403.12(b-3)
122.41(4)
SUMMAKY
Periodic reports
are requirea by
permits, and also tor any
monitoring of discharges
to PuTWs.
Record Keeping
33 U.S.C. 1342, 1318, POTW 403.12(a)
1361 POTW 403.4
(FWPCA SS 402, 308, SPCC 112.3
501) SPCC 112.7(c)(8)
All information or data
used to prepare any
report must be kept for
at least three years.
Notification and
Reports of
Problems and
Emergencies
33 U.S.C. 132
(FWPCA S 311(b))
NPDES 122.41(l)lo) In case of emer6enc, ,
NPDES 122.41(n) verbal notification to tne
NPDES 122.41(2) permitting agency or
POTW 403.12(0 National Response
Spills 117.21 Center is requireu
witnin Z4 hours. Tins
applies to bypasses uauer
NPiJEi Permits, siu&
loaos into PoT»>s «nu
SPCC exception reports.
Reports
Required by
Specific
Orders -
Non-enforcement
33 U.S.C. 1318
(FWPCA S308)
The permitting abency
may request supple-
mental information to
determine whether a
permit is requirea.
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INFORMATION DISCLOSURE REQUIREMENTS UNDER MAJOR
ENVIRONMENTAL POLLUTION CONTROL LAWS
The Federal Water Pollution Control Act
33 U.S.C. 1251 - 1376
Reports
Required by
Specific Orders
Compliance
SECTIONS
33 U.S.C. 1318, 1320,
1342
(FWPCA SS 308, 310,
402(k))
REGULATIONS
(40 CFR.~)
POTW 403.12(b)(d)
SUMMARY
The permitting agency
may request, at its
discretion, reports on
continued compliance
which are in addition
to the periodic reports.
Inspection
Authority
33 U.S.C. 1318, 1321,
1341
(FWPCA SS 308 (2),
311(m>, 401(a)(4)and
(b))
Haz.
Spills
112.3(c)
tPA or designated state
agency may inspect
records, or the faculty
itself, at any
time.
Notification
Requirements
403.12(b)(d)and(f)
Notice is require^ tor an
nonemergency abnormdj
discharge or occurrence
not specifically per-
mitted.
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INFORMATION DISCLOSURE REQUIREMENTS UNDER MAJOR
ENVIRONMENTAL POLLUTION CONTROL LAWS
The Comprehensive Environmental Response, Compensation and Liability Act
42 U.S.C. 9601 -9657
SECTIONS
REGULATIONS
(40 CFR...)
Periodic
Performance
Reporting
SUMMARY
CERCLA does not require
any type of periodic re,;ortin6.
Record Keeping
42 U.S.C. 9603
(CERCLA S 103ld))
Records must be kept oy eve:
facility that nas treateu or
storea hazaraous substances
for 50 years.
Notification and
Reports of
Problems and
Emergencies
42 U.S.C. 96C3
(CERCLA § 103)
117.21
300.36
300.64
302.6
Vshen a responsioie party
of any release of a nazaruous
substance, includn^ toxic air
emissions, the National
Response Center must oe
notified immediately.
Reports
Required by
SpeciHe
Orders
Non-enforcement
42 U.S.C. 9603
(CERCLA S 103(c))
EPA may ask for information
about what and how much
hazardous waste is storea
from any TSD, or from
generators who have snipped
their waste to a particular
TSD facility.
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INFORMATION DISCLOSURE REQUIREMENTS UNDER MAJOR
ENVIRONMENTAL POLLUTION CONTROL LAWS
The Comprehensive Environmental Response, Compensation and Liability Act
42 U.S.C. 9601 -9657
Reports
Required by
Specific Orders
Compliance
SECTIONS
42 U.S.C. 9604
(CERCLA S 104(b)
and(e)U))
REGULATIONS
(40 CFR...)
SUMMARY
The Administrator may orcer
whatever reports ne fmos
necessary to protect tne ^UDU
health or welfare of tne
environment from any KIIOV,,,
or suspecteo release or iro.i,
release that may occur.
Inspection
Authority
42 U.S.C. 9604
(CERCLA S 104(e)(l)
and 104(b))
The Administrator ma/
whatever investigations
wishes to ensure ueait.i auu
safety. In auaition, state
officials may also reques;
access to records ano to an
establishment where nazaruo.
substances are or nave ueen
generatea, storeo, treatea, or
transported from.
Notification
Requirements
42 U.S.C. 9603
{CERCLA S 103(c))
Any present or former
generator or transporter
of hazardous waste hau to
notify EPA of ali facilities
which accepted
waste for disposal or
treatment.
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INFORMATION DISCLOSURE REQUIREMENTS UNDER MAJOR FtOEilAi,
ENVIRONMENTAL POLLUTION CONTROL LAWS
The Clean Air Act
42 U.S.C. 7401 -7642
Reports
Required by
Specific Orders
Compliance
SECTIONS
42 U.S.C. 7414,
7542
(CAA SS 114(a)(l),
208(a))
REGULATIONS
(40 CFR.~)
61.54
52.21(n)
SUMMARY
Upon request by tne
Administrator tne owner
or operator oi a propoaeu
source or modification must
provide any data or inlor-
mation necessary to p«norm
an analysis ot tne impact oi
the proposed chan6e.
Inspection
Authority
42 U.S.C. 7414,
7418, 7426,
7542, 7603
(CAA SS 114(a)(2),
118, 126, 208(a),
303)
51.11(a)(5) Provides brodo authority to tue
51.19(b), (c) Administrator or a state
61.33(e) official to inspect a facility
or its records.
Notification
Requirements
42 U.S.C. 7426,
7414
(CAA SS 126(a),
114)
61.09
52.21(m)
61.10
61.33
Owners or operators ol
proposed facibtes must notily
EPA or the designated state
official prior to: U any major
construction; 2) any cnan0e
made in the operation 01
an air emission source,
and 3) any testing (to aiiow a,-,
observer to oe present;.
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INFORMATION DISCLOSURE REQUIREMENTS UNDER MAJOR
ENVIRONMENTAL POLLUTION CONTROL LAWS
The Clean Air Act
42 U.S.C. 7401 -7642
Periodic
Performance
Reporting
SECTIONS
42 U.S.C. 7414,
7410, 7542
(CAA SS 114(a)(l),
208U))
REGULATIONS
(40 CFR...)
51.19 Appendix P
61.70
60.08(a)
60.7(c)
SUMMARY
Stationary sources are require^
to provide periooic reports to
tne E?A region or uesi^nateu
state agency on the nature anu
amount ol emissions irom
stationary sources.
Record Keeping
42 U.S.C. 74U,
7542,7611
(CAA SS 114(a)(l)
208(a), 3
51.11UX5)
51.19
52.21(m)
61.33
61.71
60.07
Stationary sources ol air ^^
pollution must Keep monuonr,5
recoras including iniormatu;.
on start-ups, snut-oowns,
malfunctions ana perioos 01 r.c
monitoring.
Notification and
Reports of
Problems and
Emergencies
(see above)
Reports
Required by
Specific
Orders -
Non-enforcement
42 U.S.C. 7414
(CAA § I14(a)(D)
60.7UX4)
A report from an existing
tacility may be requesteu jy
the Administrator to supple-
ment notification ot a
physical or operational cuanae
to an existing facility *nic:i
may increase tne emission
of an air pollutant.
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INFORMATION DISCLOSURE REQUIREMENTS UNDER MAJOR FEDERAi,
ENVIRONMENTAL POLLUTION CONTROL LAWS
The Resource Conservation and Recovery Act
42 U.S.C. 6901 -6987
Reports
Required by
Specific
Orders -
Non-enforcement
SECTIONS
42 U.S.C. 6927,
6934, 6991(d)
(RCRA SS 3007(a),
3013, 9005)
REGULATIONS
(40 CFR...)
TSD - 262.43
TSD - 264.77
TSD - 265.77
SUMMARY
A detailed plan of procedures
used to analyze waste to
determine its nature must be
submitted upon request. Tms
is also true of a TSu facility
operating log. Also, reports
on underground storage tanks.
Reports
Required by
Specific Orders
Compliance
42 U.S.C. 6927,
6991(b), 6991 (d)
(RCRA SS 3007,
9003, 9005)
TSD - 264.73
TSD -265.73
Reports arising trom site
monitoring for grounuwater
contamination may oe
ordered by the Administrator,
as well as reports on leaks
from TSDs or underground
tanks.
Inspection
Authority
42 U.S.C. 6927,
6934, 6991(d)
(RCRA SS 3007,
3013, 9005)
TSD - 264.74
265.74
Any information relatm6 to
hazardous waste must be
available for inspection
at all reasonable times. Tms
includes access to any
facilities or sites for
inspection purposes. Beginning,
November 1985, every
permitted TSuF must be
inspected every two years.
Notification
Requirements
42 U.S.C. 6921,
6930, 6937,6991(a)
(RCRA SS3001, 3010,
3017, and 9002)
T- 263.11
TSD -264.11
TSD - 264.12
Generators, transporters
ana TSus must notily tne
region or designated state
official prior to operation.
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INFORMATION DISCLOSURE REQUIREMENTS UNDER MAJOR FEDERAn
ENVIRONMENTAL POLLUTION CONTROL LAWS
The Resource Conservation and Recovery Act
42 U.S.C. 6901 -6987
Periodic
Performance
Reporting
SECTIONS
42 U.S.C. 6927,
6932, 6922,
6923, 6924,
6925, 6939
(RCRA SS 3007,
3012, 3002(1X5),
3003(4), 3004,
3005, 3019,9003)
REGULATIONS
(40 CFR...)
G- 262.41
G - 262.42
G- 262.43
TSD - 264.75,
265.75, 264.77
265.77
SUMMARY
Necessary reports include
biannual reports by generators
of all hazardous waste snip-
ments sent including amount,
type ana destination. Tiu
facilities must periodically
report amount ot nazaraous
waste receivea ana may
include methoa ot treatment,
storage or disposal, rtiso, rise
assessment reports by
permitted facilities on
estimated human exposures.
Record
Keeping
42 U.S.C. 6927,
6934, 6924,6991d
(RCRA SS 3007,
3004, 3013, 9005)
G - 262.40
TSD - 264.73,
265.73
264.15(d)
Records for any testing 01
waste, and of manifests must
be kept for 3 years. In
addition, operating Io6s anu
records must be kept by eacr,
TSD facility, and grounawater
must be momtorea.
Notification
and Reports
of Problems
and
Emergencies
42 U.S.C. 6921,
6922,6924,
6925, 6991D)
(RCRASS 3001(b)(3)
(B), 3002(1), 3004,
3005, 9003)
G - 262.42
T - 263.30
TSD - 264.77,
265.77
Exception reports must oe
submitted if a ir.aniiest i* not
returneu witain 4o days to
the generator. A transporter
must also report any release
to the National nespoase
Center. In an emergency at
a iacility, notitication must
be given to local olticidib
followed by the National
Response Center. «.eportine
procedures will oe oevelopel
for leaks irom underground
tanks.
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APPENDIX G
OMB CIRCULAR NO. A-106
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON. DC. 10303
December 31, 1974 CIRCULAR NO. A-106
TO THE HEADS OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS
SUBJECT: Reporting Requirements in Connection With the
Prevention, Control, and Abatement of
Environmental Pollution at Existing Federal
Facilities
1. Purpose. This Circular provides procedures to be
followedE"y Federal agencies in carrying out the provision
of Section 3(a)(3) of Executive Order No. 11752 of December
17, 1973, pertaining to the control of environmental
pollution from existing Federal facilities.
2. Rescission. This Circular, supercedes and rescinds
Office of Management and Budget (OMB) Circulars No. A-78 and
A-81 dated May 18, 1970.
3. Definitions.
a. The term "Federal agencies" means the departments,
agencies, establishments, and instrumentalities of the
executive branch.
b. The term "facilities" means the buildings,
installations, structures, land, public works, equipment,
aircraft, vessels, and other vehicles and property, owned
by, or constructed or manufactured for the purpose of
leasing to, the Federal Government.
c. The tent, "project" means an action to achieve needed
corrective measures relative to identified environmental
pollution sources within a Federal facility.
d. The tern "cost" means the amount of funds required
for putting in place the necessary environmental protection
measures. These costs include the capital costs of
structure and equipment, irrespective of the appropriation
chargeable, but not the annual maintenance and operating
costs.
(No. A-106)
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e. The term "lease-construction" means construction of
a facility by a private entrepreneur to meet requirements of
a Federal agency in consideration of a commitment by the
agency to lease the facility at a specified price for a
specified time period.
f. The term "Director" means the Director of the Office
of Management and Budget.
g. The term "Administrator" means the Administrator of
the Environmental Protection Agency.
U. Standards. All facilities are to conform to the
requirements specified in Section 4 of the Order. Those
requirements are as follows:
a. Federal, State, interstate, and local air quality
standards and emission limitations adopted in accordance
with or effective under the provisions of the Clean Air Act,
as amended.
b. Federal, State, interstate, and local water quality
standards and effluent limitations respecting the discharge
or runoff of pollutants adopted in accordance with or
effective under the provisions of the Federal Water
Pollution Control Act, as amended.
c. Federal regulations and guidelines respecting
dumping of material into ocean waters adopted in accordance
with the Marine Protection, Research, and Sanctuaries Act of
1972, and the Federal Water Pollution Control Act, as
amended.
d. Guidelines for solid waste recovery, collection,
storage, separation, and disposal systems issued by the
Administrator pursuant to the Solid Waste Disposal Act, as
amended.
e. Federal noise emission standards for products
adopted in accordance with provisions of the Noise Control
Act of 1972 and State, interstate, and local standards for
control and abatement of environmental noise.
f. Federal guidance on radiation and generally
applicable environmental radiation standards promulgated or
recommended by the Administrator and adopted in accordance
with the Atomic Energy Act, as amended («2 U.S.C. 2011), and
(No. A-106)
-------
rules, regulations, requirements, and guidelines or.
discharges of radioactivity as prescribed by the Atonic
Energy Commission.
g. Federal regulations and guidelines respecting
manufacture, transportation, purchase, use, storage, and
disposal of pesticides promulgated pursuant to the
provisions of the Federal Insecticide, Fungicide, and
P.odenticide Act, as amended by the Federal Environmental
Pesticide Control Act of 1972.
5. - Agency^ Responsibilities. Pursuant to their
responsibilities under the Order, Federal agencies:
a. Should cooperate with State, interstate, and local
pollution control agencies and with other Federal agencies
in the evaluation of their pollution control needs.
b. May seek the assistance of the Administrator to
determine the standards and the appropriate implementation
schedules applicable to particular facilities.
6. Pollution Control Plans.
a. Federal agencies must develop plans to assure that
their facilities meet the standards listed in paragraph u of
this Circular.
b. Such plans are to cover existing facilities as
defined in paragraph 3b of this Circular. "Lease-
construction" is an example of a type of facility covered
under this provision, but facilities used under ordinary
leases are not covered. Remedial measures required for
buildings and equipment owned by non-Federal lessees on
Fedeifal land are not to be reported under this Circular
unless the responsible Federal agency attests that they are
constructed and operated for a Federal purpose. In cases
where lease agreements with non-Federal lessees obligate the
Federal Government to provide pollution control measures,
remedial measures are to be reported under this Circular.
c. The agency plan should include all projects
involving "costs," as defined in paragraph 3d of this
Circular, which are necessary to bring existing facilities
into compliance with applicable standards. Funds required
for studies, management and monitoring associated with the
definition and development of corrective measures and
(No. A-106)
-------
necessary equipment to assure conpiiance with standards
should also be included in the plan.
d. In determining the most cost-effectiva remedial
measures necessary for a particular facility to meet the
standards, agencies should take into account such factors
as: the future use of the facility; the best practicable
technology available; the need for control system reserve
capacity; the various alternative methods of control
including process change; and the use of joint or regional
pollution control facilities.
e. Agency plans should include the milestones for the
design, construction, and completion of projects which, when
submitted to the Director, will represent an agency
commitment to comply with applicable standards considering
the Federal budgetary process and assuming that the
requested funds will be appropriated by the Congress and
allocated to the agency as planned.
f. Facilities may be exempted from applicable standards
in the interest of national security or in extraordinary
cases in which it is in the paramount interest of the United
States. Such exemptions must be made in accordance with the
provisions of Section 5 of the Order.
7. Reports.
a. Agency plans are to be reported in accordance with
procedures prescribed by the Administrator. Such procedures
will provide for submission of pertinent details of each
individual project and a summary status report of the
overall plan.
b. The reports will be submitted semiannually on
December 31 and June 30 to the Director thru the
Administrator. After review of the reports, the
Administrator will forward the agency's reports to the
Director.
c. By September 30 of each year the Administrator will
also forward to the Director an evaluation of each agency's
report.
8. Comraun i c a t i o n s with the Administrator. Communications
withtheAdministrator shouldb~edirected to the
Environmental Protection Agency, attention: Office of
(No. A-106)
-------
Federal Activities, U01 M Street, S.W., Washington, D.C.
20U60, phone 755-0790 (code 138).
9. Communications with the Director. Questions regarding
the implementationoT this Circular should be addressed to
the Office of Management and Budget, Washington, D.C.
20503, phone 395-6827 (code 103).
ROY L. ASH
DIRECTOR
(No. A-106)
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APPENDIX H
DEPARTMENT OF JUSTICE LETTER
(10/11/83) AND CONGRESSIONAL
TESTIMONY ON FEDERAL FACILITIES
COMPLIANCE (DOJ STATEMENT 4/28/87)
-------
©nitcb States? Bcpartnunt of Justice
ASSISTANT ATTORNEY GENERAL
LEGISLATIVE AFFAIRS
WASHINGTON. D.C. 20530
OCT 111983
Honorable John D. DIngell
Chairman
Subcommittee on Oversight
and Investigations
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This is in response to your letter of August 17, 1983,
to Acting Assistant Attorney General Habicht, requesting clarifi-
cation of the Justice Department's position regarding enforcement
actions and the cleanup of federal facilities under RCRA and
CERCLA. We will respond separately below to each of the questions
posed in your letter. However, I would like to state at the out-
set that it is this Administration's firm policy that federal
facilities have a strong obligation to set an example in
meeting the standards which both RCRA and,CERCLA impose upon
private facilities and that the Administration will continue to
make every effort to see that federal facilities set such an
example. In fact this Department and EPA have been quite success-
ful in receiving contributions from federal agencies toward the
clean up of several hazardous waste sites where multiple generators
were involved. In general, federal agencies have demonstrated a
positive, cooperative attitude toward the problems presented
by their generation and disposal of hazardous wastes. An example
here is the Memorandum of Understanding between EPA and the
Department of Defense which has recently been finalized. Some
agencies have begun clean up of sites owned by them where hazardous
wastes have been deposited but for which the agencies were not the
responsible generators of the wastes. The Department of Justice
may be asked to recover those funds from responsible parties in
the future. In short, Executive Branch clean-up efforts are
showing concrete results.
Questions 1 and 2. What is the Department of
Justice s policy on suing or bringing enforce-
ment actions under CERCLA and RCRA against
federal facilities?
It is generally the policy of the Department of Justice,
under this Administration as well as prior administrations, that
-------
serve at the pleasure of the President should be resolved
internally. If the dispute is legal in nature, it is the policy
to proceed as required by Executive Order No. 12146. If the
dispute is a matter of conflicting policies or priorities, the
practice is to resolve the dispute through existing mechanisms,
including the cabinet councils, if necessary. The Department
believes that to involve the Judicial Branch in disputes between
components of the Executive Branch would constitute a waste of
judicial resources and taxpayers' money, as well as result in
substantial delays in reaching appropriate and workable resolu-
tions to such disputes. In addition, it is within the authority
of the Executive to resolve such disputes internally as a part
of its Article II duty to "take care that the laws [are] faith-
fully executed." Finally, there is a serious question whether
such disputes would, in any event, satisfy Article Ill's justi-
ciebility requirements.
This policy applies to disputes under CERCLA and RCRA,
as well as to those raised under other statutes.
Question 3. Please provide a detailed explana-
tion of the legal or other basis behind the
policy described in (1) and (2) above.
In addition to the considerations outlined in the
response to Questions (1) and (2), there are several sound consti-
tutional and other legal and practical bases for this policy, all
of which generally relate to the Executive's constitutional
authority and responsibility to see that the lavs are faithfully
executed. That responsibility is not furthered by the needless
resort to the Judicial Branch for resolution of disputes between
his subordinates.
As the Supreme Court noted in Myers v. United States»
272 U.S. 52, 161-64 (1926), the whole of the Executive power,
created by Article II, is vested exclusively in the President.
Included within the Executive power, indeed at its very center,
is the obligation to "take care that the laws be faithfully exe-
cuted," Art. II, §3, which necessarily recognizes the President's
authority to exert "general administrative control of those
executing the law," i.e., subordinate Executive officers.
Differences concerning whether a federal agency is in
compliance with RCRA or CERCLA are appropriately resolved within
the Executive Branch, by the President or his delegee, consistent
with the Framers' intention that the Executive power of the
United States be exercised in a "unitary and uniform" way.
Myers v. United States, supra, 272 U.S. at 135. To implement
the President's task of coordinating the affairs of the Executive
Branch and resolving disputes within it, President Carter issued
an Executive Order in 1979 requiring all disputes of a legal
-------
nature to be submitted to the Attorney General, to whom he has
delegated the responsibility of resolving such disputes, "prior
to proceeding in any court. Executive Order No. 12146 provides
that:
1-401. Whenever two or more Executive agencies
are unable to resolve a legal dispute between
them, including the question of which has
jurisdiction to administer a particular pro-
gram or to regulate a particular activity,
each agency is encouraged to submit the dis-
pute to the Attorney General.
1-402. Whenever two or more Executive agencies
whose heads serve at the pleasure of the
President are unable to resolve such a legal
dispute, the agencies shall submit the dispute
to the Attorney General prior to proceeding in
any court, except where there is specific
statutory vesting of responsibility for a
resolution elsewhere.
44 Fed. Reg. 42652 (1979), reprinted in 28 U.S.C. § 509 note
(Supp. V 1981) (emphasis added).Sectioq 1-402 mandates that
all unresolved legal disputes between agencies "whose heads
serve at the pleasure of the President" shall be submitted to
the Attorney General for resolution prior to proceeding in court.
This delegation is consistent with 28 U.S.C. !§• 511 and 512,
pursuant to which Congress vested responsibility in the Attorney
General to render legal advice to the President and to the heads
of Executive Departments.
Although the Constitution does not expressly declare
that the President must use his supervisory powers to resolve
all disputes among his subordinates prior to their resort to
litigation, such a resolution by the Executive follows from the
Framers1 intent that the Executive power of the United States
be exercised in a "unitary and uniform" way. See Myers v.
United States, supra, 272 U.S. at 135. In considering the
question of EPA enforcement of environmental legislation against
federal facilities, former Assistant Attorney General Harmon of
the Office of Legal Counsel of the Department of Justice opined:
The executive power of the United States,
which is created by Article II, finds one
of its most important applications in the
prosecution and defense of court cases on
behalf of the United States and the agencies
thereof. The question is this: Is it
permissible, under Article II, for executive
power to be used both to prosecute and to
-------
defend the same case? Whatever the power
of the courts may be, is It within the power
of the Executive Branch to sue itself?
* * *
If a decision or action by one of the
[President's] subordinates is presented to
him for review, it seems to -us that if Article
II means anything at all, it means that the
President has a duty to consider the legality
of the decision or action and to request the
subordinate to revise the decision or action if
it does not accord with law.
Memorandum for the Associate Attorney General, "EPA Litigation
Against Government Agencies" at 2-4 (June 23, 1978).
There is, in addition, a very real question whether the
Judicial Branch has the power, under Article III, to hear cases
brought by one agency subordinate to the President against another
subordinate agency. The question is one of Justiciability. Such
cases, having only one "real party in interest," i.e. , the
Executive, lack "concrete adverseness" and thereby fail to meet
the controversy requirement under Art. Ill, § 2. See "EPA
Litigation Against Government Agencies," supra at 5-8. Moreover,
the Judicial Branch may not be granted Jurisdiction to decide
matters that remain open to revision by the Executive, or are
otherwise subject to the President's administrative control.
Hayburn's case. 2 U.S. 409 (1792).
Many federal agencies which may need to comply with
RCRA or CERCLA are already coordinating their compliance with the
EPA. To this end, EPA has been negotiating Memoranda of
Understanding with other federal agencies covering response
actions at federal facilities. The MOU with the Department of
Defense has recently been finalized. The National Response
Team, which meets at least monthly to coordinate response programs,
provides another forum within which hazardous waste management
issues are being addressed. The EPA has announced that it intendi
to begin integrating any appropriate federal facilities into the
National Priority List, promulgated pursuant to Section 105 of
CERCLA. We would anticipate that federal agencies involved
with sites appearing on the list will continue to cooperate with
the EPA to ensure that they comply with their legal responsibili'
ties.
-------
Question A. Does the Department of Justice
concur that Sections 107 and 111 of CERCLA
provide statutory authority for EPA to take
enforcement and abatement actions against
federal facilities?
While it is not clear precisely what is aeant by the
Question, the Justice Department does believe that Sections 107
and HI °£ CERCLA provide statutory authority for EPA to take
steps tc enforce CERCLA and to cause the abatement of practices
chat are inconsistent with the law. Lee Thomas, EPA's Assistant
Adainistrator for Solid Waste, stated in his August 10, 1983
cestimony before the Congress that EPA ha(si enforcement
authority over Federal facilities and we concur with that state-
sent. We do not, however, believe that this statement included
filing actions against other Executive Branch agencies in court.
The issue, it seems, is what enforcement tools are necessary or
appropriate for one unit of government to use against another.
It is the Department of Justice's position that those tools,
which include the resolution of interagency disputes according
to Executive Order No. 12088 and Executive Order No. 12146, do
not include suing an agency of the United States.
Question 5. What is the Department of Justice's
position on the applicability of Executive Order
12083, Federal Compliance With Pollution Control
Standards, to CERCLA and RCRA?
Executive Order No. 12088 is applicable by definition
to RCRA. §1-102 (f). While_ the order was promulgated' prior tc the
enactment of CERCLA, we believe it does apply to that statute c.s
veil. The order was intended to be inclusive and not limited to
the statutes individually named; such intent is specifically
stated in the order. See §1-102 of Executive Order No. 1208S.
The fact that CERCLA was not passed when the order was issued does
not exclude it from coverage since the President has authority
under the Constitution to see that the laws are faithfully exe-
cuted and may delegate that authority. However, EPA's responsi-
bility under Executive Order No. 12088 must be read in conjunction
vith CERCLA and Executive Order No. 12316.
-------
Question 6. What is the Department of Justice's
policy on suing or bringing enforcement actions
against government-owned, contractor-operated
facilities, such as the Hughes Aircraft Company
facility in Tucson, Arizona, and the General
Dynamics Company facility in Ft. Worth, Texas?
The Department is prepared to sue government-owned,
contractor-operated facilities when the contractor is the respon-
sible party and it is otherwise appropriate to do so. The
Department of Justice received a referral from the EPA regarding
enforcement of an information request against one company and
was prepared to file suit; however, the request was complied
with before this became necessary.
Question 7. Does the Department of Justice
believe that Executive Order 12146, Management
of Federal Legal Resources, is applicable to
CERCLA? If so, please describe the circum-
stances under which it would be applied and
describe every instance since January 1981
where it has been applied regarding enforce-
ment, abatement or other response actions
against releases of hazardous waste at federal
facilities.
As stated in the answer to Questions (1), (2), (3) and
(4) above, the Department of Justice believes that both Executive
Order Nos. 12088 and 12146 are applicable to CERCLA. Executive
Order No. 12146 would be applied whenever a legal dispute existed
between agencies, e.g., disputes regarding the*neaning and/or
applicability of the statute to the agency's program, a disagree-
ment on whether removal was necessary, or whether a certain
response action was necessary. To our knowledge, EPA has not
requested that the mechanism established under•Executive Order
No. 12146 be used.
Question 8. In multi-generator cases involving
CERCLA or RCRA when a federal agency is one of
the largest waste generators at a private dis-
posal site, is there any legal or policy reason
for not naming the federal agency as a party
defendant along with the non-federal waste
generators? If so, please explain the legal or
policy reasons.
-------
The legal and policy reasons for not naming a federal
agency subordinate to the President as a party defendant in a
suit brought by the Department of Justice are the same as those
described in the answers to Questions (1), (2) and (3). Even if
a federal agency were to be brought into the s'uit as a
co-defendant, the constitutional and other legal issues implicated
in such a suit would nevertheless be similar to those raised by a
direct suit by a component of one Branch of government suing
another component of the saie Branch. Recourse to the courts in
such circumstances would present the additional disadvantage of
v;asting taxpayers' resources. Funds appropriated by Congress
would be used by the Executive to finance both the effort to con-
vince a court to compel an agency to comply with a disputed legal
requirement as well as the effort to defend against such a suit.
Citizens would legitimately question such a diversion of resources,
when such a dispute could be resolved by the Executive. . Finally,
it makes little sense to name a Federal agency as a party defendant
if the agency is prepared to pay its share of the costs attribut-
able to the cleanup of the site. Voluntary action of this sort
is perhaps the most compelling common sense reason for not
involving the judiciary in disputes within the Executive Branch.
We hope these answers are responsive to your concerns.
Sincerely,
(Slgr.ed) P-c'-rt i. llcCor-sll
Robert A. McConnell
Assistant Attorney General
Office of Legislative Affairs
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STATEMENT
OF
F. HENRY HABICHT II
ASSISTANT ATTORNEY GENERAL
LAND AND NATURAL RESOURCES DIVISION
BEFORE
THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
CONCERNING
FEDERAL FACILITY COMPLIANCE WITH ENVIRONMENTAL LAWS
ON
APRIL 28, 1987
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Mr. Chairman and Members of the Subcommittee:
On behalf of the Department of Justice, I am pleased to have
this opportunity to present our views on issues related to
federal facility compliance with the environmental laws and
regulations. I am committed to helping the Congress work through
these most important issues and to achieving the desired
compliance in the most effective possible way.
In today's testimony, I will discuss the Justice
Department's views on environmental compliance and enforcement,
both generally and as they address federal facilities. In order
to be most helpful to the Subcommittee, I will attempt to lay a
foundation for the Subcommittee's questions by addressing special
institutional characteristics of federal agencies — their
political accountability and the unique role of Congress in
setting, with the Executive, their missions and budget. To
complete this foundation, my testimony will then turn to the
commitment and work of the Lands Division to ensure environmental
compliance by the entire regulated community, with particular
attention on our efforts to promote compliance by federal
agencies. In this regard, I will outline the numerous ways in
which federal agencies are accountable to the public and the
Congress, including what enforcement tools are available to the
States, citizens and EPA to secure compliance by federal
facilities. I will then proceed to respond to the Subcommittee's
-------
2
specific factual and legal questions. It is my earnest hope that
through this testimony^and in response to your questions today,
we can develop a common understanding of the significant issues
in this area, so we can work together — as we must — to achieve
the best possible compliance results in the.most efficient and
effective manner. I hope that you find this testimony helpful.
Because this hearing concerns environmental compliance and
enforcement generally, I think it is important to share with the
Subcommittee my perspective on environmental compliance and
enforcement across the board, with particular emphasis on our
commitment to ensure that federal facilities set an example of
compliance. As a matter of first principles, this Administra-
tion, and the Lands Division in particular, is strongly committed
to full compliance with the environmental laws by both private
parties and government entities. In the last six years we have
successfully prosecuted more people and corporations for criminal
violations of the environmental laws than ever before, obtaining
over 257 guilty pleas and convictions since 1981 that resulted in
over $3 million in fines and almost 150 years in jail sentences.
We have also filed more civil environmental enforcement suits
than ever before — over 1000 since 1981. Through the Chairman's
lead role in the Superfund reauthorization process you are aware
of our strong stance on Superfund enforcement issues, and in our
hazardous waste cases alone, we have obtained court-ordered
cleanups valued at over $400 million. Federal entities must
abide by the same laws. Not only do the statutes require it, but
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3
good public policy dictates that the federal government set an
example for the private sector in proper hazardous waste manage-
ment .
For federal facilities, strict compliance with all substan-
tive requirements is our goal, just as it is for private facil-
ities. However, important constitutional, statutory, and public
policy considerations all dictate that the means employed to
achieve this goal will in certain respects be different from the
procedures used in securing private compliance — although they
are clearly comparable. This is because federal facilities are »
not the same as private facilities; they are distinct for several
reasons which I will outline briefly. Nonetheless, the end
result, and the commitment to reach that result, must be -- and
is — the same.
When Congress creates a federal agency, it takes a very
significant step reflecting the judgment that the underlying
mission is a special one which cannot be entrusted to the private
sector. Typically, federal agencies have been established by
Congress to fulfill a certain mission: the Defense Department to
protect the national security, the Environmental Protection
Agency to protect against environmental degradation, the Depart-
ment of Energy to promote the production of and the regulation of
energy sources and supply. In contrast, the mission of General
Motors, for instance, is to make cars. But GM is not the only
automaker and if it stopped production tomorrow, Americans would
not stop driving. If the Defense Department stopped defending
-------
4
the United States tomorrow, we would all agree, I believe, that
the nation would be notably less secure. No substitute enter-
prise ccruld rise to fulfill the mission.
There are other differences. Federal agencies are created
by Congress and are supported solely by Congressional appropria-
tions. They cannot, when faced with a demand for millions or
even billions of dollars for hazardous waste cleanup simply raise
the prices on their products, dip into last year's profits or
stockholders equity to cover the tab, or ultimately declare
bankruptcy. The only funds they have available for environmental
compliance are those appropriated by Congress. Thus, Congress
plays an important role in assuring that environmental compliance
occurs by working with the Executive Branch to appropriate
sufficient funds to assure these desired results. For example,
the Department of Defense has received in FY87 $377 million for
the DOD installation environmental restoration program. This
money helps ensure that DOD facilities achieve compliance with
the relevant statutory requirements of RCRA and CERCLA. In
addition, the recently enacted Superfund amendments created a
"Defense Environmental Restoration Program" which requires DOD,
in consultation with EPA, to undertake an environmental restor-
ation program at all DOD facilities and to perform appropriate
response actions to releases of hazardous substances. The law
also established a DOD research, development, and demonstration
program for hazardous substances. Finally, it created a special
account within DOD to finance the environmental restoration
-------
5
effort. Similarly, the DOE has presented testimony here today on
its environmental compliance programs.
Thus, Congress, by outlining the specific public interest
mission of the federal agency and by appropriating the requisite
funds, is an integral partner in bringing about compliance at
federal facilities. While in some ways it is more cumbersome for
a federal agency to find the money necessary to comply with
environmental laws than it is for a private company, federal
agencies have an added incentive to comply: they must be
accountable to Congress, to the President, and above all to the %
American people for any failure to comply. While litigation, or
the threat of some coercive enforcement action, may be the best
means to pressure private companies to comply, we should recog-
nize the unique political accountability of federal facilities.
This ability of Congress and the people to call government
agencies to account for their actions or neglects provides a
compelling enforcement tool. At the same time, this unique
accountability reaffirms the importance of Congress acting as a
partner with the agencies in seeing that established
environmental priorities are being met.
Most importantly, federal agencies report to the President,
who is accountable under the Constitution for their missions and
actions. At times, agency missions, which Congress set forth by
statute, can conflict and the resolution of those conflicts by
the President is one way in which these agencies differ from
private facilities. In light of this, as demonstrated further
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6
below, appeal to higher Executive authority, and ultimately to
the President, is an additional mechanism to ensure federal
facility compliance — an enforcement tool not reasonably avail-
able against private parties. Often, this intra-Executive Branch
approach will be the most effective and efficient means of ensur-
ing federal facility compliance. Moreover, as I will discuss
later in this testimony, this process obviates the necessity to
delay compliance in order to resolve complex legal issues or
interagency differences in a costly adversarial process.
Another difference between public agencies and private*
parties is that the sovereign is immune from suit. This legal
doctrine, going back to the foundation of the Republic, applies
to all public agencies, except to the extent that sovereign
immunity has been specifically waived by Congress. Thus, in each
statute we must carefully analyze the degree to which Congress
exposed federal agencies to liability. Congress has made clear
that agencies must comply with the laws, but what differentiates
federal agencies from private parties is the very long-standing
and established rule of statutory construction that courts must
interpret any waivers of sovereign immunity strictly and
narrowly. See, e.g.. Hancock v. Train. 426 U.S. 167 (1976).
This rule reflects the proper role of the judiciary in our
federal government and a reluctance on the part of the courts to
infringe on Congress' constitutional authority to decide, for
example, how government funds may be spent. Unless Congress has
made a cj.ear decision that it intends funds to be spent in a
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7
specific manner, the courts are loathe to make that decision for
Congress. This protects congressional prerogatives by retaining
for Congress, and only for Congress, the ability to control the
federal treasury. U.'S. Const., Art. I, Sect. 9.1
Although practical realities require that we recognize these
inherent distinctions between private entities and federal
agencies, they do not interfere with the Justice Department's
strong commitment to fostering environmental compliance. The
Attorney General is the chief legal officer of the United States,
and, as such we in the Justice Department have a paramount
responsibility to see that the laws of the United States are
faithfully executed. It is the law enforcement elements of this
responsibility that I view as the Lands Division's largest single
1 Some have criticized the Department for utilizing the
well-settled law of sovereign immunity to protect the public fisc
against civil penalties. To prevent this purely legal issue from
interfering with expeditious compliance, we have proceeded
directly to take steps to conform with the substantive require-
ments of the lav, while at the same time testing in litigation
the narrow issue of whether certain of the federal environmental
statutes have waived sovereign immunity for the payment of civil
penalties. I note that courts have consistently shared our view
of the law and concluded that such immunity has not been waived
under the Clean Water Act or RCRA. See. M.E.S.S. v. Navy. 25
E.R.C. 1480 (E.D. Cal. 1986); Mevers v. Coast Guard. 644 F. Supp.
221 (E.D.N.C. 1986).
I must emphasize, as I have in my communications to
State Attorneys General and others, that our position regarding
civil penalties is not intended to shield federal agencies from
effective compliance with environmental laws. By severing this
issue, through pretrial motions, I am committed to meeting all of
my obligations faithfully to uphold the law. We can litigate the
narrow penalty issue without delaying the development of a
necessary environmental remedial plan to ensure compliance with
the law.
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task. Indeed, this can be seen in the resource allocation within
the Division: civil and criminal enforcement activities have the
lion's share of the Division's resources.
Although the Land and Natural Resources Division represents
many agencies in a broad spectrum of cases ranging from public
lands and natural resource questions to Indian claims issues, the
client to which we devote most litigation and management atten-
tion is the Environmental Protection Agency (EPA). We not only
represent EPA in enforcement litigation under the environmental
laws, -but also defend the regulations, programs, policies, and
decisions of the EPA.
Commensurate with its enforcement duty, the Lands Division
— in close and effective partnership with EPA — has regularly
argued in the Federal courts for the broadest interpretation of
the environmental statutes consistent with the apparent intent of
Congress. In this respect, the Division has been singularly
successful in its litigation. I point with pride to very favor-
able decisions regarding the liability standard under Superfund,
and a consistent string of victories in Clean Air Act, Clean
Water Act and RCRA cases.
My staff vigorously defends EPA's substantive standards,
embodied in rulemakings. We have successfully defended chal-
lenges to the National Contingency Plan, the National Priorities
List, regulations under RCRA, the Clean Air Act, the Clean Water
Act, all of which establish the substantive standards to be
followed by all parties — federal and private. In prosecuting
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9
cases, or defending EPA's authority to impose requirements on
private parties under RCRA, CERCLA, and other laws, we have
firmly established the substantive standards of environmental
law. I look with pride to the cases, culminating in the Supreme
Court's denying certiorari, which protected'EPA's authority under
Section 106 of CERCLA from preemptive challenges by responsible
parties. See, e.g.. Lone Pine Steering Committee v. EPA. 600 F.
Supp. 1487 (D.N.J.), aff'd. 777 F.2d 882 (3rd Cir. 1985), cert.
denied. 106 S.Ct. 1970 (1986). Through these victories, the
Division has sent a signal to the regulated community — both
private and federal — that the Department takes environmental
enforcement very seriously. It has also ended uncertainty over
the contours of liability under the environmental laws, thus
promoting swift compliance as all parties understand what the law
demands of them.
At this juncture it bears emphasis that these same laws, and
the court rulings secured under them, apply to federal agencies.
Our responsibility to defend Federal facilities has not led the
Division to temper its enthusiasm for a legal regime that demands
strict environmental compliance. To the contrary, and allow me
to be very clear on this point, the Justice Department does not
support one meaning of a statute in one action and another in
different lawsuit. The United States government has an obliga-
tion to the public it serves to decide on a view of the law and
adhere to that view in all its dealings with the courts and the
public.
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Indeed, avoiding harmful inconsistency in this area is a
crucial reason for centralizing litigation authority in one
Department. The benefits that this provides the federal govern-
ment are legion. The United States enjoys an enhanced credibil-
ity in litigation because it speaks with a single voice in the
courts. This promotes a uniform understanding of the law, devel-
oped with a government-wide perspective by experienced, full-time
trial attorneys. There can be little question that the impres-
sive string of victories that have established the enforcement
rules under Superfund and other environmental laws were secured »
by exploiting these advantages, in critical partnership with the
expert professionals at EPA.
The Lands Division is also responsible for providing legal
advice to our clients, representing the federal agencies in
environmental matters, and advising them on compliance with the
law. The defense of federal agencies consumes considerably less
of the Division's resources and time than does environmental
enforcement efforts.
Cases involving the government's compliance with environ-
mental laws may arise in a number of ways. In each instance,
however, it is my objective to assure that the same exacting
substantive requirements which are met by private parties apply
to the federal government. We do not argue conflicting positions
on the appropriate standards to be met for federal agencies as
compared to private parties. That being said, let me describe
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the kinds of cases which are handled in my office and give some
illustrations of how they are handled.
Currently pending are approximately 80 cases or matters
involving federal facility environmental compliance. I note that
this is but a small percentage of the total workload of the
Environmental Defense Section, which has approximately 1300 cases
pending annually. Approximately 20 of those matters involve
situations either where a federal agency has received a notice of
intent to sue pursuant to a citizen suit provision, or where a
federal agency has simply requested our advice independent of any
filed litigation. In those latter instances, my offices may
provide advice to the agency regarding the law relevant to the
particular problem. Yet, because there is no lawsuit pending,
our role is purely advisory and is not central to resolution of
the issue. We commonly employ this opportunity to ensure that
the agency takes the notice letter seriously and commences the
steps necessary to achieve compliance with the law or otherwise
resolve the dispute. Because we are closest to the rapidly
developing substantive law under these statutes, we can alert the
agencies to the most recent cases, regulations, or EPA policy
documents addressing their problem. Additionally, we can advance
compliance by placing federal agencies in contact with the appro-
priate staff at EPA. The Division uniformly advises agencies
that they cannot avoid compliance with the law and should be
aware that, in the event a lawsuit is filed, the Department will
refuse to assert frivolous defenses or make legal arguments that
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12
conflict with positions that we take in EPA enforcement cases.
This generally has the salutary effect of helping the agency to
make a realistic assessment of the problem and often results in
discussions between the parties which avoids litigation and
concludes in a more effective, more expeditious resolution of- the
problem. In part as a result of our efforts, I note that most
notices of intent to sue do not ripen into lawsuits.
There are also approximately 30 cases in which the United
States has filed an action against private parties responsible
for a hazardous waste problem, and these parties, in turn, have
brought federal agencies into the suit as either third party
defendants or by way of counterclaims against the United States.
In these cases there is rarely an issue of liability — if the
federal agency is a generator, it will pay its appropriate
share. As a result, federal generators have contributed to
settlements at major sites like the Conservation Chemical Corpor-
ation site in Kansas City, the Chem Dyne site in Ohio, and many
others. Federal generators have for the most part been relative-
ly small contributors to a number of our enforcement sites.
Occasionally, however, the federal activity generated a larger
amount-of the waste. It appears that the Hardage si-te is such a
situation, where the federal contribution may be approximately
3%. At a site like Stringfellow, for example, Air Force
generated wastes represent approximately 3.9%. The Air Force
already committed over $4 million toward its contribution for
clean up. Even without litigation, at a site like the Bio-
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13
Ecology site in Texas, Air Force, which may have contributed as
much as 38% of the waste by volume, has agreed with EPA to pay
its share of the RI/FS costs. In these instances, the federal
agencies will try to meet their obligations through appropriate
funding of remedial activity.
As these examples illustrate, neither I, nor any of my
colleagues here today, will tell you that in the past federal
agencies have always attained the standards of environmental
protection to which they must be held. But as problems and
issues have become apparent we have sought and found ways to get%
results. Over the last five years, using non-litigative strate-
gies, federal agencies have made great strides in developing
responsible compliance programs. For example, the Department of
Defense under Superfund has initiated 3,500 preliminary investi-
gations, 3,100 remedial investigations and feasibility studies,
407 remedial actions, and completed 99% of those remedial
actions. The Department of Energy has also taken impressive
steps toward hazardous waste compliance and they are here today
to explain those efforts to you.
In addition to the governmental PRP's, the cases described
above often involve private parties with government contracts,
who perform substantial amounts of work at federal facilities.
Let me assure the Congress that while we have identified inescap-
able legal and institutional distinctions between federal
agencies and private parties, those distinctions do not apply to
government contractors, and the Justice Department does not treat
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14
the government contractor fundamentally different than any other
private party for purp9ses of law enforcement. In connection
with federal contractors, the Subcommittee has requested that an
outline of the general procedures for enforcement litigation
referrals from EPA, which we have set forth .in detail in Appendix
"A* to this testimony. As you will note, the very same proced-
ures apply to all actions against private parties, including
government contractors (GOCOs).
Of the 80 matters mentioned previously involving federal
facility compliance, we have approximately 20 active cases
pending which deal with problems arising on federally owned
and/or operated facilities. These include sites like Rocky
Mountain Arsenal, Twin Cities Army Ammunition Depot, the
Department of Energy facilities at Fernald, Ohio and Savannah
River Plant in South Carolina, as well as other government
property held and managed by various federal agencies. Once
again, in these cases our objective is to obtain effective
compliance with the law in an orderly way, consistent with the
substantive requirements of the relevant statutes. We do this
through fully assessing the cases, encouraging the agencies to
work with their experts and with EPA to determine how a problem
can best be addressed, and by discussing and negotiating with
opposing parties on what steps to take toward compliance. At the
same time, we seek to carve out those extraneous issues that do
not address questions of substantive compliance and on which we
do not agree — such as liability for civil penalties — through
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15
early, focused motions to dismiss or for partial summary
judgment. This approach enables us to separate the areas of
disagreement from those areas where we can agree. In most cases
this approach has led rapidly to either consent decrees or
ongoing negotiations in which the parties reach agreement on the
technical requirements necessary to resolve a problem.
Let me give but a few examples.
We take very seriously the lawsuits brought and the concerns
expressed by the Congress and the public regarding the Energy
Department's facilities at Fernald, Ohio and at the Savannah
River Plant in South Carolina. We have worked closely with the
Energy Department at each facility to assure that they have
embarked on schedules for investigating and remedying any
environmental problems or non-compliance identified in those
suits. For example, the state of Ohio filed its lawsuit in March
1986. By June 1986, the Energy Department and EPA Region 5 had
entered into a federal facilities compliance agreement to govern
problems under RCRA, CERCLA and the Clean Air Act. We offered
Ohio the opportunity to enter into this agreement, and since June
1986, we have also offered to the State at least three draft
consent judgments in this matter. For the most part, the parties
ha^e agreed on the technical steps necessary to achieve
compliance, the remaining stumbling blocks are primarily specific
legal questions — such as penalties — which I firmly believe
should not impede swift compliance with the law. Accordingly, in
the meantime, while there are pending motions on the penalties
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and other issues, the Energy Department, with our encouragement,
is complying with the technical aspects of the agreement that it
has negotiated with EPA and with the promises that it has made to
the State.
Similarly, with regard to the Savannah. River Plant, we have
been negotiating with the plaintiffs, Natural Resources Defense
Council and the State of South Carolina, to achieve a consensual
resolution. Without disclosing settlement discussions, I can.
express that there appears to be technical agreement in that case
as well and I am hopeful that resolution will be achieved.
In fact, we either have entered into consent decrees or are
in the process of both negotiating such decrees and embarking on
steps toward compliance in each of our federally owned facility
lawsuits. You may ask why there are not resolutions in every
instance. Candidly, at large facilities, particularly those
which have been in operation for many years, all environmental
problems are not solved instantaneously. We face exactly this
difficulty in our private litigation, as well as with federal
facilities. While we surely desire immediate compliance, to do
the job right everyone needs to know the full extent of a problem
before commencing a remedy. Thus in lawsuits, as is true in the
absence of litigation, the government first fully assesses the
extent of any environmental problem, and then expeditiously moves
to remedy it.
Moreover, as a litigator, I fully recognize that parties to
a lawsuit will not enter into consent decrees if they are
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uninformed or less than fully informed. My point in emphasizing
negotiated resolution of federal facility compliance suits is not
to bulldoze parties precipitously into agreements. Rather I want
to be clear that we are ready to enter into consent decrees that
apply the same substantive standards to government compliance as
exist for private parties.
Trial of any environmental compliance lawsuit is time-
consuming and costly to all parties, including the courts. Our
objective where federal agencies are sued because of alleged non-
compliance with environmental laws is to utilize all available %
tools — including agreements with EPA, consent decrees, negoti-
ations among interested parties, pre-trial motions — to avoid
protracted litigation that might delay effective compliance, or
waste precious resources. We are interested in seeing the agency
quickly address the problem so that neither the parties, the
community nor the courts need to expend resources on such cases.
You have asked what role the Lands Division played in the
agreement reached between the Department of Energy, the EPA and
the State of Colorado concerning the Rocky Flats facility. Where
there is no pending litigation, my staff is not generally
involve'd in either administrative or intergovernmental
discussions between federal agencies and either EPA or state
agencies. From time to time, however, we receive requests for
informal advice from agencies regarding environmental issues. We
A
routinely advise such agencies that they must meet the
substantive requirements of applicable environmental laws.
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In the Rocky Flats circumstance, it is my understanding that
all parties had reached agreement regarding the technical steps
that were necessary, but consummation of that agreement was being
delayed, in part, because of the label to be placed on the
instrument. There were questions raised near the end of negotia-
tions as to whether there was authority under RCRA for EPA to
issue "orders" to another federal agency, and what the precise
legal consequences would be of issuance of orders to federal
agencies. Rather than have such a dispute delay prompt consum-
mation of an agreement which all parties seemed to desire, we
recommended that it be signed as an "agreement", rather than an
"order*.
We were also consulted with regard to provisions in the
Rocky Flats agreement concerning citizen enforceability. There
we recommended that the agreement include language parallel to
that found in the citizen suit provision of RCRA, providing that
requirements of RCRA embodied in such agreements are subject to
citizen enforcement. We fully support the concept that federal
agencies must be accountable to the public for their compliance
with the law, and recognize that citizen enforcement is an
important tool to achieve this accountability.
It is my understanding that the parties to the Rocky Flats
agreement are pleased with its terras and its implementation. The
agreement enabled the federal government to avoid unnecessary
litigation with the State of Colorado, and established an
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enforceable instrument to govern Energy's compliance. These are
the objectives we seek.to achieve in all such cases.
Moving from specific matters to our broad approach'to
achieving federal facility compliance, I firmly believe — and
this is also reflected in the Division's successful strategy in
obtaining environmental compliance for private facilities -- that
litigation, or other types of coercive enforcement, should always
be the last resort, rather than the first resort. For federal
facilities, this is especially apparent — a process involving
consensual agreements, subject to public accountability and the
discipline of citizen enforcement, is far more likely to produce
quick and efficient compliance than a contested proceeding.
I believe that agreements reached through the process
provided for in the proposed memorandum of understanding (MOU)
worked out among interested Agencies will assist in bringing
federal facilities into environmental compliance in the most
expeditious and efficient manner. To be sure, this process
evolved in part from legal concerns (both constitutional and
statutory) about the use within the Executive Branch of certain
enforcement tools in a manner oblivious to the differences
between federal agencies and private parties outlined above.
However, it became clear that an MOU process was — independent
of the legal concerns — a better and quicker way to secure
compliance than an administrative hearing and judicial review
process which would unnecessarily drain resources. To ensure
that the President has the opportunity to resolve disputes within
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20
the Executive Branch, it is important to establish a process
which can both track the steps applied to private parties, yet
account for this significant constitutional dimension. Thus,
under the MOU which we have been developing with EPA and other
federal agencies, EPA would be able to send notices to agencies
identifying possible violations or deficiencies. If the response
was not sufficient to satisfy EPA, that agency could propose
findings of violation and propose remedies, just as it can for
private parties. At each stage, a set amount of time would be
permitted for negotiation of compliance agreements. If signifi-
cant policy issues were involved, there would be an opportunity
for elevation of the dispute as provided in Executive Order
12088. I am confident that very few issues of environmental
compliance would require this level of review, but prudent,
constitutionally valid management of the government requires that
such an opportunity be provided. I note that under this process
the resolution of environmental matters would be subject to
public review and the terms of the resulting compliance documents
can be invoked in citizen suits to enforce the statutory require-
ments of RCPA.
The MOU process outlined above, however, has more to
recommend it than the practical realities of more timely
compliance. It also avoids substantial statutory and
constitutional problems associated with intra-Executive Branch
orders. Indeed, an answer to your first question — requesting
the Department's legal opinion as to the authority of the
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21
Environmental Protection Agency ("EPA") to issue administrative
orders to other federal agencies under section 3008 of the
Resource Conservation and Recovery Act ("RCRA") and section 106
of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 ("CERCLA") « highlights some of these
difficult legal problems. The answer to this question is
complex, requiring interpretation of often ambiguous provisions
of complicated statutes in light of certain well-established and
important constitutional principles. Allow me to begin, however,
by outlining some relevant authorities that the EPA clearly can %
exercise consistent with the statutes and the Constitution.
First, EPA's authority to issue administrative orders to
other federal agencies under CERCLA section 106 is straight-
forward. Section 106 of CERCLA provides, in pertinent part, as
follows:
[W]hen the President determines that
there may be an imminent and substantial
endangerment to the public health or welfare
or the environment because of an actual or
threatened release of a hazardous substance
from a facility he may [take] action under
this section including, but not limited to,
issuing such orders as may be necessary to
protect the public health and welfare and the
environment.
.42 U.S.C. 9609(a). The statutory term "facility" is very broadly
defined and encompasses federal facilities. 42 U.S.C. 9601. All
section 106 authority is, of course, vested in the President. In
Executive Order 12580, however, the President has delegated his
power under CERCLA section 106(a) to "the Coast Guard with
respect to any release or threatened release involving the
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22
coastal zone, Great Lakes waters, ports, and harbors," and to the
Administrator of the EP.A otherwise. Consistent with EO 12146,
the President's delegation recognizes a role for the Attorney
General when orders are to be issued to other executive agencies.
Second, there can be no doubt that RCRA 6001 has waived the
United States' sovereign immunity as to the statutory requirement
of EPA-issued permits. Insofar as EPA, or the States, in their
permitting process establish or modify permit conditions, or
provide for variances from permit standards, those documents can
be statutorily issued to federal agencies without running afoul
of the government's sovereign immunity. For example, federal
facilities can be subject to "corrective action orders* under
§3004 (u) and (v), as part of the permit process.
EPA can also enter into compliance agreements with other
federal agencies under the MOU process outlined above. RCRA
section 6003, entitled "Cooperation with Environmental Protection
Agency," contemplated federal agency cooperation with EPA in
ensuring RCRA compliance. 42 U.S.C. 6963(a). Certainly, the MOU
and the resulting agreements concerning compliance with RCRA
constitute the kind of cooperation between EPA and federal
agencies envisioned by section 6003. Indeed, even absent
statutory authorization, this process would be constitutionally
appropriate. Where EPA and the other federal agency have reached
a determination as to the steps that a federal facility must take
to achieve compliance, they can agree — where appropriate —
that those steps are "requirements" under the statute. Moreover,
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the compliance document can reflect an Executive determination of
the "requirements* of the statute and, as such can be invoked by
private citizens in lawsuits brought under section 7002 to vindi-
cate their statutory rights. Under their statutory and constitu-
tional authority, Executive Branch agencies .are free to denomin-
ate the document that results from the MOU process as an
"Executive Compliance Order" or "Executive Compliance Agreement."
Having outlined important elements of the "order* authority
that EPA does have under these statutes, I must also emphasize
that Justice Department analysis of RCRA, in response to your
request, indicates that §6001 has not effectuated a complete
waiver of sovereign immunity that extends to all manner of
"compliance" orders. For example, as noted earlier, documents
under various labels set forth the requirements that all must
meet under RCRA. These documents include regulations, permits
and related elements of the permit process that establish
requirements for a particular facility. A very important type of
RCRA orders — corrective action orders — delineate requirements
to which facilities are subject and as such clearly seem to be
within the waiver of sovereign immunity. The "orders" described
in §3008(a), in contrast, primarily concern the imposition of
enforcement sanctions — usually penalties — for "persons* who
are "in violation of a requirement." Indeed, this is clear from
the language of §3008(a), "the Administrator may issue an order
assessing a civil penalty for any past or current violation."
(emphasis added). As we have noted, however, several courts have
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24
found that penalties are not within the scope of RCRA's waiver of
sovereign immunity, reasoning in part that sanctions to enforce
requirements are distinct from the "requirements* themselves.
See, e.g.. California v. Walters. 751 F.2d 977 (9th Cir. 1984)
("Criminal sanctions * * * are not a "requirement* * * * within
the meaning of [section 6001], but rather the means by which the
standards, permits, and reporting duties are enforced"); Meyer v.
Coast Guard. 24 E.R.C. 2013, 2014 (E.D. N.C. 1986); Florida
Department of Environmental Regulation v. Silvex Corp.. 606 F.
Supp. 159 (M.D. Fla. 1985). See generally Appendix B.
While a formal legal opinion on such a complex question of
statutory interpretation would require additional time, I believe
it important to set forth for the Subcommittee our analysis,
undertaken consistent with the settled rules of construction for
any statutory waiver of sovereign immunity. I have done so in
Appendix "B" of this testimony. I believe, however, that whether
EPA can issue all types of compliance orders to federal agencies
under §3008 is not the real issue. Instead, the true concern is
ensuring that there is an adequate mechanism to get results: to
guarantee that federal facilities meet the underlying statutory
requirements. Unquestionably, the federal agencies must comply
with the statute, EPA regulatory requirements, conditions
contained in permits, and corrective action requirements. Thus,
even absent application of every type of §3008 compliance order
to federal facilities, the above discussion of EPA's authorities
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25
demonstrates that ample tools and means exist to secure swift
compliance and accountability.
I hasten to add that the Constitution requires a process
that protects the President's ability to take care that all laws
are faithfully executed, and hence, to manage the Executive
Branch. The Justice Department has examined this matter, in
response to your request for a legal opinion, and it is our
conclusion that even where statutory order authority exists, the
exercise by EPA of unilateral order authority would be clearly
inconsistent with existing Executive Branch dispute resolution
mechanisms, and would raise substantial constitutional questions.
This Department has consistently taken the position that under
our constitutional scheme, disputes of a legal nature between two
or more Executive Branch agencies whose heads serve at the
pleasure of the President are properly resolved by the President
or by someone with authority delegated from the President. 2
2 Executive Orders 12146 and 12088 provide a mechanism
whereby agencies may submit their disputes concerning compliance
with the environmental laws to the Attorney General or the
Director of the Office of Management and Budget, respectively.
Executive Order No. 12146 provides that:
1-401. Whenever two or more Executive
agencies are unable to resolve a legal
dispute between them, including the question
of which has jurisdiction to administer a
particular program or to regulate a
particular activity, each agency is
encouraged to submit the dispute to the
Attorney General.
1-402. Whenever two or more Executive
agencies whose heads serve at the pleasure of
(continued...)
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26
The President's authority to require Executive Branch agen-
cies to submit their legal disputes to him or his delegate for
resolution derives from his Article II duty to "take Care that
the Laws [are] faithfully executed," as does his responsibility
to supervise the affairs of the Executive Branch. This obliga-
tion necessarily recognizes the President's authority to exert
"general administrative control over those executing the law."
Mvers v. United States. 272 U.S. 52, 161-164 (1926). The
President, as head of the Executive Branch, must "supervise and
2 (. . .continued)
the President are unable to resolve such a
legal dispute, the agencies shall submit the
dispute to the Attorney General prior to
proceeding in any court, except where there
is specific statutory vesting of responsi-
bility for a resolution elsewhere.
44 Fed. Reg. 42652, reprinted in 28 U.S.C. 509 note.
Executive Order No. 12088 provides that
1-502. The Administrator [of EPA] shall make
every effort to resolve conflicts regarding
such violation [of an applicable pollution
control standard] between Executive agencies
... If the Administrator cannot resolve a
conflict the Administrator shall request the
Director of the Office of Management and
Budget to resolve the conflict.
1-603. The Director of the Office of
Management and Budget shall consider
unresolved conflicts at the request of the
Administrator. The Director shall seek the
Administrator's technological judgment and
determination with regard to the applicabil-
ity of statutes and regulations.
43 Fed. Reg. 47707. We acknowledge that the conflict resolution
procedures set forth in Exec. Order No. 12088 "are in addition
to, not in lieu of other procedures, including sanctions, for the
enforcement of applicable pollution control standards."
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guide* executive officers in "their construction of the statutes
under which they act in order to secure that unitary and uniform
execution of the laws which Article II of the Constitution evi-
dently contemplated in vesting general executive power in the
President alone." Id. at 135. 3
The President's use of his Article II supervisory powers to
resolve disputes among his subordinates also follows from the
Framers' intent that the executive power of the United States.be
exercised in a "unitary and uniform* way. Mvers. 272 U.S. at
135. The basic principle underlying Article II of the Constitu-*
tion, is that the Executive power is vested in a single person,
the President, or as James Madison stated during the Great Debate
of 1798, "the great principle of unity and responsibility in the
Executive department." 1 Ann. Cong. 499 (1798). Simply put, the
executive power under our Constitution is based on this principle
of the unitary executive. The Framers deliberately chose this
principle and deliberately rejected the cabinet (or privy
council) alternative, with which they were quite familiar from
British practice and from the constitutions of most of the
original states.
3 The supervisory authority recognized in Myers is based on
the distinctive constitutional role of the President. The "take
Care* clause charges the President with the function of coordi-
nating the execution of many statutes simultaneously: "Unlike an
administrative commission confined to the enforcement of the
statute under which it was created . . . the President is a
constitutional officer charged with taking care that a 'mass of
legislation' be executed," Younastown Sheet & Tube Co. v. Sawyer.
343 U.S. 579, 702 (1952) (Vinson, C.J., dissenting).
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One of the main reasons the Framers chose to create a uni-
tary executive was that they believed that unity in the executive
would promote what today we call "accountability." As Alexander
Hamilton pointed out, the more that the executive power is
watered down and distributed among various persons, the easier it
is for everyone concerned to avoid blame for failure to comply
with the rule of law. The Federalist No. 70, at 427-428 (A.
Hamilton) (C. Rossiter ed. 1961). Hamilton stated that "one of
the weightiest objections to a plurality in the executive . . .
is that it tends to conceal faults and destroy responsibility."
Id., at 427. To ensure accountability to the President, the
Constitution, as interpreted by the courts, vests him with the
powers of appointment and removal, the power to demand written
opinions from executive officers, and the right to invoke execu-
tive privilege to protect consultative privacy.
In our view, if the intentions of the Framers are to be
fulfilled, the President must have an unfettered opportunity to
take action in the event of disagreements or disputes within the
Executive Branch. The President has the responsibility of making
certain that that Branch speaks with one voice. He can do that
by settling the controversy himself, or by establishing proced-
ures, as he has done by Executive Order, for the resolution of
controversies by one of his principal officers. In this way,
conflicts within the Executive Branch are resolved internally,
under the supervision of the President or his delegate, and not
in the courts.
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The President is accountable to the American people for the
activities of all Executive agencies. Thus, the President has
the ultimate duty to ensure that federal facilities comply with
the environmental laws as part of his constitutional responsi-
bility under Article II, even though Executive Branch agencies
are subject to EPA's regulatory oversight. Accordingly, Execu-
tive Branch agencies may not sue one another, nor may one agency
be ordered by another to comply with an administrative order
without the prior opportunity to contest the order within the
Executive Branch. Thus, coercive unilateral order authority is
inconsistent with the constitutional principles of unity and
unitary responsibility within the Executive Branch.
Indeed, the question of the constitutionality of adminis-
trative order authority is a variation on the question of the
constitutionality of EPA's authority to bring an enforcement
action against a federal agency in court. Unilateral administra-
tive orders, like lawsuits, are enforcement tools that interfere
with the management of the Executive Branch by the President. We
have previously advised you, in the context of EPA judicial
enforcement of environmental legislation against federal
facilities, that
If a decision or action by one of [the President's]
subordinates is presented to him for review, it seems
to us that if Article II means anything at all, it
means that the President has a duty to consider the
legality of the decision or action and to request the
subordinate to revise the decision or action if it does
not accord with law.
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Memorandum for the Associate Attorney General, "EPA Litigation
Against Government Agencies" at 2-3 (June 23, 1978). We think
that this analysis applies with equal force to coercive EPA
administrative orders.
This is not to suggest that the Constitution shields federal
facilities from compliance with the environmental laws. The
constitutional infirmity in unilateral orders is their inter-
ference with the President's power to manage the Executive
Branch. Insofar as RCRA allows citizens to sue to enforce
unilaterally-issued, contested administrative orders as soon as %
they are violated, such a regime would lead to the judiciary
resolving an intra-Executive Branch dispute before the President
had a full opportunity to exercise his constitutional authority.
In light of this, the challenge to those of us in the Executive
Branch charged with the responsibility of ensuring federal
facility compliance with the environmental laws became to fashion
a system that could pass constitutional muster and still provide
an effective enforcement sanction against federal agency non-
compliance. For the reasons explained above, I believe that the
proposed MOU process that the EPA, Department of Justice and
other federal agencies have developed meets this difficult
challenge. Under this procedure, the Executive Branch speaks
with a single voice. At the time of the consummation of the
agreement, the Executive has one view of the requirements of the
law. During the negotiation process, if the agencies disagree,
they are free to appeal to the President to settle the dispute.
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In this manner, the President's constitutional prerogatives are
protected, but at the game time, there exists an adequate
enforcement mechanism, In a practical sense, these agreements
constitute determinations by the executive branch as to the
precise meaning of the statutory requirements, within the
Executive Branch, the President would have ultimate enforcement
responsibility. At the same time, the agreements may be viewed
as tantamount to an admission or a determination by the Executive
as to the requirements of the statute and as such will often be
virtually dispositive of a claim in a citizen judicial enforce- »
ment action that deviation from the statement constitutes a
statutory violation. So long as the statutory requirements have
been properly articulated within the Executive Branch process and
remain effective, the citizen may sue and may invoke the "Execu-
tive Compliance Agreement" or "Executive Compliance Order" to
enforce compliance with the statute. While it is well estab-
lished in constitutional jurisprudence that executive agreements
are not in and of themselves enforceable,4 this is not a
4 See In re Surface Mining Regulation Litigation. 627 F.2d
1346, 1357 (D.C. Cir. 1980) ; Independent Meat Packers Ass'n v.
Butz. 526 F.2d 228, 236 n.21 (8th Cir. 1975), cert, denied. 424
U.S. 966 (1976); Weise v. Syracuse University. 522 F.2d 397, 411
n.23 (2d Cir. 1975); Acevedo v. Nassau County. 500 F.2d 1078,
1084 & n.7 (2d Cir. 1974); Stevens v. Carev. 483 F.2d 188, 190
(7th Cir. 1983); Kuhl v. Hampton. 451 F.2d 340, 342 (8th Cir.
1971); Place v. Weinberger. 497 F.2d 412, 415 (6th Cir. 1974);
Gnotta v. United States. 415 F.2d 1271, 1275 (8th Cir. 1969),
cert, denied. 397 U.S. 934 (1970); Manhattan-Bronx Postal Union
v. Gronowski. 350 F.2d 451, 456 (D.C. Cir. 1965), cert, denied.
382 U.S. 978 (1966); Farkas v. Texas Instrument. Inc.. 375 F.2d
629, 632-33 (5th Cir.), cert, denied. 389 U.S. 977 (1967); Farmer
v. Philadelphia Electric Co.. 329 F.2d 3, 8-10 (3rd Cir. 1964).
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practical problem here, however, as the citizen is suing to
enforce the requirements of the statute and not the executive
agreement per se — the ultimate enforcement of which constitu-
tionally resides with the President. For these reasons, the
Department of Justice believes that the process established by
this Memorandum of Understanding is fully consistent with both
RCRA and the constitutional principles just discussed, yet
produces a document that demonstrates Executive accountability.
Let me assure you that this resolution of the constitutional
difficulties presented by unilateral order authority in no way
limits the effect of the statute's requirements on federal
agencies. Those agencies are required by the statute to comply
with stringent requirements and standards. The heads of the
agencies, as well as the President, are obligated to see. that
such agencies faithfully comply with the requirements. But when
there is legitimate dispute as to the meaning or application of
such requirements, the ultimate responsibility for resolution
lies with the President.
You have also asked specifically about tue role of the
Justice Department in the development of Executive Order 12580,
implementing the Superfund Amendments and Reauthorization Act.
In particular, you asked about section 4(e) of that Executive
Order. The Executive Order was developed through the efforts of
all interested units in the Executive Branch, under the coordin-
ation of the President's OMB. Accordingly, the Justice Depart-
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ment participated in that effort, including commenting on various
drafts of, and attending meetings about, the Executive Order.
SARA creates new remedies, including citizen suits. In
order to assure that the President can manage the government and
resolve disputes within the Executive Branch' before such
conflicts might be presented to the judiciary for resolution,
Section 4(e) of the Executive Order provides for consultation
with the Justice Department in the event EPA believes an "order"
should be issued to a federal facility. This provision _of the
Executive Order is certainly not designed to obstruct federal
facility compliance with CERCLA, but rather to assist it. It has
been our experience that in most instances, differences between
federal agencies regarding environmental compliance have not been
over the technical steps necessary to remedy a problem. Rather,
disagreements usually involve legal or policy matters, which are
appropriately resolved at a policy level within the government.
By providing for consultation with the Justice Department, the
President's Executive Order is intended to facilitate rapid
isolation and resolution of such issues, so that they do not
result in delayed compliance by the federal government. Let me
emphasize this point again: The Justice Department will not
delay the necessary clean up action because of some policy or
legal disagreement that is not central to the action — whether
it is §3008(a) order authority or the availability of civil
penalties under §6001.
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Your letter expressed concern that this was an unwarranted
change from Executive Qrder 12316, implementing CERCLA. It is
our understanding that in the past EPA has routinely sent PRP
letters and other notices to federal agencies, but has never sent
orders under Section 106 of CERCLA. Where federal agencies have
received notices from EPA, they have often, on an ad hoc basis,
consulted with this Department or other units of the Executive
Branch to ascertain how certain legal or policy matters are
handled. Section 4(e) of Executive Order 12580 simply makes
clear that such consultation should be a normal part of this
process, rather than haphazard.
Finally, you also asked specifically about the Department of
Energy and Department of Defense contractual provisions concern-
ing indemnity of contractors at government owned facilities. Let
me say frankly that these aspects of government practice are not
of direct concern to my priorities in enforcing the environmental
laws. As I stated, we have filed several actions against govern-
ment contractors. When a federal agency is sued, or the con-
tractor of any agency is sued, the contractual and/or indemnity
relationship is not a major factor in assessing the environmental
case. The prime concern is whether there is a violation and how
it can be remedied. For this reason, I have not had the occasion
to consider in detail government contracting practices, including
how such practices generally might be related to indemnity for
noncompliance with environmental laws.
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In conclusion, federal agencies have gone a long way toward
achieving compliance with environmental requirements -- we still
have a distance to go to achieve full compliance and there exist
many vehicles for ensuring results. We are now in a position to
move forward with EPA regulations, permits and compliance agree-
ments. Moreover, as we informed the Subcommittee in our October
11, 1983 letter, the Justice Department stands ready to utilize
the full panoply of its judicial enforcement tools against GOCO-
violators that are operating on federal facilities. At the same
time, I fully expect that State and citizen enforcement will
continue to be active in this area. Finally, the proposed MOU
will provide an open process that enhances agency accountability
to the public and to the Congress. As I noted earlier, Congress
has also set in motion, through the amendments to CERCLA, and
through the appropriation of funds, a process to ensure that
cleanup activities continue. A continued working relationship
with members of Congress and a common understanding of mission
and budget issues is essential, for without it, the agencies will
be unable to achieve results.
We all share the same goals — quick and effective federal
facility compliance — the only question is the best means to
reach them. Many federal agencies that are subject to RCRA or
CERCLA are already coordinating their compliance with EPA to
avoid the need for administrative orders. To this end, EPA has
been negotiating compliance agreements with other federal
agencies covering response actions at federal facilities. I
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firmly believe the new MOU that this Department has developed, in
coordination with EPA,%will further facilitate the process of
dispute resolution between EPA and other executive agencies under
RCRA, without doing violence to our constitutional structure.
The proposed MOU would establish procedures -quickly to resolve
disputes at the agency level and that would include a generous
opportunity for public comment. The key goal is to achieve
results, and if these negotiated compliance commitments can go
forward at each major facility, those results will surely come.
The Department of Justice looks forward to working closely
with Members of this Subcommittee and the various federal
agencies in this most important area. I would be pleased to
answer any questions you might have.
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APPENDIX *\* — Afisvar to Question 4.
Civil judicial EPA enforcement cases are referred to the
Lands Division with litigation reports prepared by the EPA
Regional Office. Incoming referrals are received in the
Environmental Enforcement Section (EES) and routed to an
Assistant Section Chief who, in turn, assigns the matter to a.
trial attorney to handle.
The trial attorney performs the basic case evaluation to „
analyze factual and legal issues. (In some cases, an Assistant
U.S. Attorney may be the lead DOT lawyer, so the Lands trial
attorney will work jointly with the Assistant U.S. Attorney to
conduct the case evaluation.) If additional information is
needed to determine whether to file the case, the trial attorney,
with the approval of an Assistant Chief or Senior Lawyer, makes a
supplementary request to the EPA attorney assigned to the case.
If supplemental information is not timely provided by EPA to the
Division, then the case may be returned to EPA until further
necessary information is available. Referrals returned for this
reason must be approved in writing, by the Chief of the Section.
When sufficient information has been obtained to evaluate
the EPA referral on the merits, a decision is made whether or not
to file the case, unless EPA has decided to withdraw the matter.
If EES staff recommend filing the case, then the EES trial
attorney prepares a draft complaint which is reviewed by EPA
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staff. The draft complaint is directed to me, as the Assistant
Attorney General, under cover of a memorandum analyzing the case.
This package is reviewed by the trial attorney's Assistant Chief,
the EES Section Chief or Deputy Chief, and the Deputy Assistant
Attorney General before it reaches my desk. The Assistant
Attorney General signs both the cover memorandum and the
complaint. The complaint is then forwarded to the U.S.
Attorney's Office, where it is signed by an Assistant United
States Attorney prior to filing.
If EES staff believes the case should not be brought, the
Chief of the Enforcement Section, writes to the Senior
Enforcement Counsel, OECM, (EPA) and the relevant EPA Regional
Counsel explaining, in detail, the reasons supporting this
decision. This letter is reviewed by the Deputy Assistant
Attorney General before it is sent." If EPA staff disagree with
the EES declination, they may request that the matter be reviewed
by me or the Deputy Assistant Attorney General, Lands Division.
Over the last 5 years the Division has declined to file fewer
than 3% of the cases referred by EPA, in part because of
effective communication throughout the process.
Where the EPA litigation report or the evaluation by the
Division suggests that a potential counterclaim may be filed by
the proposed defendant(s) against the United States, including
those by a government contractor against the United States, the
EES may request assistance in analyzing the risks posed by such
potential counterclaims from the Environmental Defense Section
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3
(EDS). Requests for such assistance by EES to EDS are made
through a supervisor, in EES (Chief/Deputy Chief or Assistant
Chief) to the Chief or Assistant Chief, EDS. Environmental
Defense Section lawyers are responsible for defending the United
States on counterclaims brought by defendants in civil enforce-
ment cases and report to a different Deputy Assistant Attorney
General from the one who supervises enforcement. Accordingly,
these assistance requests allow EDS staff to obtain factual
information from non-EPA client agencies regarding the potential
counterclaim, to advise EES staff on the merits of the potential^
counterclaim, and to prepare responses to counterclaims where
necessary. EDS staff ordinarily will obtain necessary factual
information from the relevant client agency and communicate that
to the EES staff, who in turn, arranges for review of this
information by EPA staff working on the case. Assessing
counterclaims is an essential part of evaluating the overall
merits and exposure of the United States' affirmative claims.
However, let me emphasize that the risk, or presence, of a
counterclaim generally does not affect filing of an enforcement
case.
If there are concerns between EES and EDS staff involving a
case where there is a counterclaim risk, the Chiefs of the
respective sections attempt to resolve the matter informally.
Continued concerns are elevated to the Deputy Assistant Attorneys
General who supervise the two sections, and then to me, if
necessary.
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The EES trial attorney (or an Assistant United States
Attorney under EES supervision in some cases) prosecutes the
complaint after filing to final resolution by settlement or final
judgment. If the defendant files a claim back against the United
States, by way of answer or other responsive pleading, the EES
will forward those matters to the EDS for primary handling. If
the claims are based on matters within the jurisdiction of other
sections in the Lands Division or other Divisions of DOJ, EDS
will refer the matters to the relevant offices for assistance.
EPA is advised by the EES or EDS staff of any such referral.
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APPENDIX B, in partial .answer to Question 1.
The Department has approached the Subcommittee's quesiton
conerning RCRA compliance order authority against federal
facilities by utilizing the same analysis applied to any question
concerning the scope of a statutory waiver of sovereign immunity.
This analysis must begin with Section 3008(a). That section
provides, in pertinent part, as follows:
[W]henever on the basis of any information the
Administrator determines that any person has violated
or is in violation of any requirement of this
subchapter, the Administrator may issue an order
assessing a civil penalty for any past or current
violation, requiring compliance immediately or within a
specified time period, or both, ....
42 U.S.C. 6928(a)(l) (emphasis added). By its terms, section
3008(a) applies only to "persons" found to have violated a
requirement. In turn, section 1004 of RCRA contains definitions
applicable throughout the chapter, and provides that
The term "person" means any individual, trust, firm,
joint stock company, corporation (including a government
corporation), a partnership, association, State, munici-
pality, commission, political subdivision of a State, or any
interstate body.
42 U.S.C. 6903(15). Federal agencies are not included in this
definition. This very strongly suggests that federal agencies
are not "persons* under RCRA. Further support for this
interpretation is found in the fact that not only does the
definition of "person" make no mention of federal agencies, but
also section 1004(4) contains a distinct definition of "federal
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agency,* as that term is used in the chapter. That section 1004
contains independent definitions of both "person" and "federal
agency" indicates clearly that the omission of the latter from
the former was not inadvertent.
Given that federal agencies and departments are not
defined as "persons" for purposes of RCRA, it would be reasonable
to inquire as to the source of the obligation of federal
facilities to comply with RCRA's requirements, including the
requirement to obtain permits. That obligation is derived
exclusively from RCRA section 6001. That section, entitled
"Application of Federal, State, and local law to Federal
Facilities," provides as follows:
Each department, agency, and instrumentality of the
executive, legislative, and judicial branches of the Federal
Government (1) having jurisdiction over any solid waste
management facility or disposal site, or (2) engaged in any
activity resulting, or which may result, in the disposal or
management of solid waste or hazardous waste shall be
subject to, and comply with, all Federal, State, interstate,
and local requirements, both substantive and procedural
(including any requirement for permits or reporting or any
provisions for injunctive relief and such sanctions as may
be imposed by a court to enforce such relief), respecting
control and abatement of solid wastes or hazardous waste
disposal in the same manner, and to the same extent, as any
person is subject to such requirements, including the
payment of reasonable service charges. Neither the United
States, nor any agent, employee, or officer thereof, shall
be immune or exempt from any process or sanction of any
Stat« or Federal Court with respect to the enforcement of
any such injunctive relief.
42 U.S.C. 6961. It is noteworthy that section 6001, on its face,
draws a very explicit distinction between "federal agencies" and
"persons," stating that federal agencies "shall be subject to,
and comply with, all Federal, State, interstate, and local
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3
requirements, both substantive and procedural . . . in the same
manner, and to the same extent, as any person." id. (emphasis
added).
In light of the language of section 6001, the question
of EPA's statutory authority to issue a specific compliance order
to other federal agencies, then, turns not on whether a federal
agency is a person under section 3008 -- because clearly, it is
not — but rather on whether section 6001 subjects federal
agencies to the compliance order authority of the EPA in, the
particular circumstance in question. The answer to this
question, in turn, depends on whether the compliance order under
consideration constitutes a substantive or procedural requirement
within the meaning of section 6001. There is much in the legis-
lative history and the relevant case law that suggests that
3008(a) compliance orders themselves are not "requirements" of
RCRA.
In June 1976, the Supreme Court held that section 313 of the
Federal Water Pollution Control Act Amendments of 1972 ("Water
Pollution Amendments") did not obligate federal agencies to
obtain state permits, but required only that "federal installat-
ions . . . comply with applicable state requirements." EPA v.
California ex rel. State Water Resources Control Board. 426 U.S.
200, 212 (1976). Section 313 then provided as follows:
Each department, agency, or instrumentality of the
executive, legislative, and judicial branches of the Federal
Government (1) having jurisdiction over any property or
facility, or (2) engaged in any activity resulting, or which
may result, in the discharge or runoff of pollutants shall
comply with Federal, State, interstate, and local
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requirements respecting control and abatement of pollution
to the same extent that any person is subject to such
requirements, including the payment of reasonable service
charges.
86 Stat. 875, 33 U.S.C. 1323 (1970 ed. Supp. IV). You will note
that, with the omission of one clause, this, language is identical
to that found in RCRA section 6001. Thus, in the context of the
waiver of sovereign immunity found in an environmental statute,
the Supreme Court drew a distinction between permits and the
underlying statutory "requirements." The Court ended its opinion
by stating that if Congress desires federal installations to be
subject to state permit requirements, "it may legislate to make
that intention manifest." 42 U.S. at 227-28.
Within a month of this decision, the Senate Committee
on Public Works reported its version of the bill that was enacted
ultimately as RCRA. S. 3622, 94th Cong., 2d Sess. (1976). The
section of the bill that became section 6001 of RCRA was pattern-
ed after section 313 of the Water Pollution Amendments, with one
significant addition. Whereas section 313 merely obligated
federal installations to comply with "Federal, State, interstate,
and local requirements," the bill then under consideration would
have subjected such installations to "all Federal, State, inter-
state, and local requirements, both substantive and procedural
(including any requirements for permits and reporting or any
provisions for injunctive relief and such sanctions as may be
imposed by a court to enforce such relief)." While the committee
report did not reference the Supreme Court's recent decision
pertaining to the Water Pollution Amendments, it seems plain that
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5
the change was an attempt by Congress to make "manifest* its
intent to subject federal agencies to requirements, such as those
for permits, that the Supreme Court had so recently held
inapplicable under the parallel provision of the Water Pollution
Amendments. The Senate bill, however, was silent as to the
availability of enforcement measures such as compliance orders
and civil penalties.
Meanwhile, in the House, the Committee on Interstate
and Foreign Commerce drafted a bill that would have expressly
subjected federal agencies to administrative enforcement mechan-*
isms and civil penalties. H.R. 14496, 94th Cong., 2d Sess.
(1976). Section 601(b) of the House bill provided that federal
agencies were subject to "all Federal Requirements under title
III and for purposes of such title (including actions taken by
the Administrator under sections 307 and 308) the term 'person'
includes any department, agency, or instrumentality of the United
States." Section 308 of the House bill — authorizing EPA to
issue compliance orders to any "person* in violation of hazardous
waste requirements, to impose civil penalties, and to commence
civil actions in court against such persons — was virtually
identical to the provision enacted as RCRA section 3008(a).
Desiring to avoid the necessity of a conference to
resolve differences between the House and Senate bills, the
House, by a voice vote, agreed to strike the entire text of its
bill and substitute a compromise closer to the bill passed by the
Senate. 122 Cong. Rec. 32832 (1976). The House substitute, it
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6
should be noted, now contained RCRA section 6001 as finally en-
acted, thus including no provision purporting to subject federal
agencies to EPA compliance order authority or civil penalties.
Three days later, the Senate, by a voice vote, passed the House
substitute without amendment. 122 Cong. Rec. 33818 (1976). That
Congress considered, but failed to enact, a bill that expressly
would have granted EPA the precise authority now contended for
under RCRA supports the conclusion that EPA lacks statutory
authority to issue compliance orders generally to other-federal
agencies.
Judicial decisions under RCRA section 6001 provide
additional support for this construction of the statute. In
California v. Walters. 751 F.2d 977 (9th Cir. 1984), California
sought to recover criminal penalties against the Veterans
Administration for disposing of hazardous waste in violation of
state requirements. The only question presented was whether the
VA was subject to such penalties under RCRA section 6001.
California contended that its criminal penalties for violation of
state disposal requirements constitute a substantive or
procedural requirement with which the VA must comply under
section 6001. The United States Court of Appeals for the Ninth
Circuit, the only Circuit which has considered the meaning of
RCRA section 6001, squarely rejected this claim. According to
the court:
State waste disposal standards, permits, and
reporting duties clearly are "requirements*
for the purpose of [section 6001]. Criminal
sanctions, however, are not a "requirement"
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ot the state law within the meaning of
[section 6001], but rather the means by which
the standards., permits, and reporting duties
are eaforced. Section [6001] plainly waives
immunity to sanctions imposed to enforce
injunctive relief, but this only makes more
conspicuous its failure to waive immunity to
criminal sanctions.
Id. at 978; accord Meyer v. Coast Guard. 24 E.R.C. 2013, 2014
(E.D. N.C. 1986) (RCRA section 6001 does not subject Coast Guard
to civil penalties recoverable by the state for violations of
state requirements because such penalties "appear to be a means
by which requirements are enforced and not requirements them-
selves") ; Florida Department of Environmental Regulation v.
Silvex Corp.. 606 F. Supp. 159 (M.D. Fla. 1985) (state statute
imposing strict liability for negligent release of hazardous
waste material does not constitute a "requirement* under RCRA
section 6001). The reasoning of the Walters opinion is instruct-
ive. Like state criminal penalties, a compliance order can be
more readily viewed as a "means by which . . . standards,
permits, and reporting duties are enforced," rather than an
independent, substantive requirement.
One additional district court decision under RCRA
section 6001 is directly relevant to the discussion. In
McClellan Ecological Seepage Situation v. Weinberger. 25 E.R.C.
1480 (E.D. Calif. 1986), a citizens group brought suit against
the Defense Department for alleged violations of RCRA, seeking
injunctive and declaratory relief as well as civil penalties
under RCRA section 7002, the citizen suit provision. We moved to
dismiss the claim for civil penalties on the ground that the
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3
statute did not subject the United States to such penalties.
Section 7002 permits citizens to commence civil actions against
"any person (including . . . the United States . . .)" and
authorizes the district court to order appropriate injunctive
relief "and to apply any appropriate civil penalties under [RCRA
section 3008(a) and (g)]." The court first concluded that
section 3008 applies only to "persons," and that "person," as
defined by RCRA section 1004(15), does not include the United.
States. The Court thus looked to RCRA section 6001 to determine
whether the United States had been subjected to section 3008's .
civil penalty provisions. As stated by the court:
The plain face, common-sense reading of
[section 6001] convinces this Court that
there has not been a waiver of sovereign
immunity regarding the imposition of civil
penalties against federal facilities under
RCRA. The plain face reading of this
legislation demonstrates that Congress
intended to waive sovereign immunity on
behalf of the United States, insofar as
process or sanctions is concerned, only as
required for enforcement of injunctive
relief.
Id., at 1481. Accordingly, the court granted the motion to
dismiss.
Taken together, these decisions illustrate the courts'
continued application of the time-honored rule that waivers of
sovereign immunity must be narrowly construed. See, e.g..
California v. Walters. 751 F.2d 977, 978 (1984) (citing United
States v. Mitchell. 445 U.S. 535, 538 (1980)); Hancock v. Train.
426 U.S. 167, 179 (1976). In the specific context of section
6001, this rule of construction suggests that the obligation of
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9
all federal agencies is to comply with all federal, state, and
local hazardous and solid waste disposal requirements, including
permit and reporting.requirements, but that the means of enforc-
ing compliance with such requirements is through state, local, or
citizen-initiated actions for injunctive relief. Under this
interpretation, administrative compliance orders — like criminal
and civil penalties — are not "requirements* and hence, are not
within the waiver of sovereign immunity. This argument draws its
strength from the self-evident proposition that compliance orders
issued by the EPA under Section 3008(a) are most appropriately %
considered a means of enforcing RCRA requirements, rather than as
"requirements" themselves under section 6001. This is especially
clear when it is recalled that section 3008(a) not only
authorizes compliance orders to assess civil penalties, but also
subjects the person to whom they are issued to independent civil
penalties upon failure to comply with such orders. As discussed,
several courts have determined that Congress did not intend the
United States to be liable for civil penalties under the statute.
Moreover, while section 3008 provides that compliance orders may
include a "revocation of any permit," such revocation is inde-
pendently authorized by RCRA section 3005(d), and certainly falls
within section 6001's command that federal agencies comply with
"requirements for permits."
Although we realize that RCRA section 6001 is not without
ambiguity, the Department believes that the construction of the
statute outlined above is compelled from the statutory language,
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10
legislative history, and relevant judicial decisions, of course,
in the event that RCRA.were amended to remove any ambiguity
concerning EPA order authority generally vis-a-vis other federal
agencies, the Constitution would continue to restrain EPA's
unilateral use of "orders* that might trigg'er citizen suit
enforcement. Accordingly, these "orders" would still have to be
the result of an Executive Branch process that preserved the
President's constitutional prerogatives.
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APPENDIX I
ENFORCEMENT RESPONSE
AUTHORITIES BY PROGRAM
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APPENDIX I
ENFORCEMENT RESPONSE AUTHORITIES
UNDER MAJOR ENVIRONMENTAL STATUTES
This exhibit defines terms commonly used for EPA enforcement
actions under each of the major environmental statutes. However, not
all of these authorities and actions can be utilized for Federal
facilities. It is important to clarify that: (1) administrative
enforcement authorities apply to Federal facilities except as noted;
(2) administrative penalty order authorities and civil judicial
authorities will not apply to enforcement against Executive Branch
agencies but are included only for information purposes as they may
apply to some Federal facilities, e.g., to non-Executive Branch
agencies or to contractors at GOCOs; and (3) criminal authorities are
included because these can be used against individual employees of any
Federal facility or private parties.
ADMINISTRATIVE ENFORCEMENT AUTHORITIES
Administrative enforcement authorities (those taken by an agency
without court action) include notices of violation; notices of
noncompliance; administrative orders; bilateral compliance agreements;
and contractor listing proceedings. Noted with (*) are administrative
penalty order authorities which are subject to EPA's Consolidated
Rules of Practices. For these authorities, a formal administrative
procedure is used beginning with either an initial proposed order
or an administrative complaint which is the initial notice received by a
source. Following receipt of the initial order or complaint, the
violator formally answers, and a final order may be issued with the
consent of the Agency or become final and effective if no response is
forthcoming. There is usually an opportunity for a formal hearing before
an Administrative Law Judge or presiding officer and subsequent appeal
before the Administrator. Administrative penalty authorities are not
used for enforcement actions against Executive Branch agencies but may
be used against contractors at Government Owned Contractor Operated (GOCO)
facilities.
CIVIL JUDICIAL ENFORCEMENT AUTHORITIES
As noted above, these authorities are only employed in enforcement
actions which are not directed against Federal Executive Agencies.
They are "judicial" in that they are brought in and enforced by the
courts, as opposed to administrative action brought by the agency by
statutory or regulatory authority without judicial enforcement. Civil
judicial actions should be distinguished from criminal judicial actions.
While both civil and criminal judicial actions may involve the imposition
of monetary penalties, no imprisonment or criminal record results from
the imposition of a civil judgment.
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CRIMINAL JUDICIAL AUTHORITIES
Like civil actions, criminal judicial actions are formal legal actions
brought in a court of law. The principle differences, as noted above,
are: civil court actions may result in the losing party being ordered to
pay monetary damages to the prevailing party, being ordered to pay a
monetary ("punitive") penalty, or being subject to injunction (a court
order to do or stop doing something), while criminal actions may result
in a conviction (i.e., a criminal record) in addition to a fine and/or
time spent in prison.
I. HAZARDOUS WASTE
*** RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)
***
A. ADMINISTRATIVE NOTIFICATION ACTIONS (These are formal notifications
advising recipients of violations detected and/or actions required
to be taken. These notifications generally may be issued to all
Federal facilities.)
Warning Letters may be issued to advise a recipient of noncompliance.
Although the letters are not specifically authorized by the statute, EPA
has the option of issuing warning letters when it deems appropriate.
Warning letters contain a deadline for achieving compliance with the
relevant portion of the Act. These are used only for minor
violations.
Notice of Violation (NOV) is a formal notification of a violation
discovery which explains the violation and the necessary action
required by the facility. Note that NOV's are not appropriate for
high priority Class I violations.
Administrative Complaint is the initial order and notice of violation.
It is issued prior to a final administrative order for authorities
subject to the EPA Consolidated Rules of Practice. It pertains to
all RCRA authorities identified with an * below and is the only
acceptable first notice for high priority Class I violations. The
purpose of the administrative complaint is to provide the respondent
the opportunity to confer with EPA before a final order is issued.
Notice of Noncompliance(NON) is used for Federal facilities
in lieu of Adminstrative Complaints but essentially serve the same
purposes.
B. ADMINISTRATIVE ENFORCEMENT ACTIONS (Administrative Orders are generally
issued by EPA to Federal facilities on consent only. However, if a
Federal facility fails to respond to a proposed order within a
specified time period (usually 30 days), the order becomes final and
effective. Where EPA does not have statutory administrative order
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authority for Federal facilities, Compliance Agreements are used.)
* Section 3008 (a): For any violation of Subtitle C (Hazardous
Waste) of RCRA. They will not be used for enforcement against
Executive Branch agencies; instead, NOV's and compliance agreements
will be used.
Federal Facility Compliance Agreements are generally used in the
RCRA program for § 3008 (a) enforcement actions.
* Section 3008 (g): For penalties of up to $25,000/day for violation of
Subtitle C. They will not be used for enforcement against Executive
Branch agencies.
Section 3008 (h): For undertaking corrective action at a facility.
Administrative Orders will only be issued for § 3008 (h) on consent.
Section 3013: For requiring monitoring, testing, analysis or reporting
relating to the presence of hazardous waste at a facility.
Section 7003: For eliminating an "imminent and substantial endangerment.
Section 9006: For violations of underground storage tank requirements.
C. CIVIL JUDICIAL ACTIONS: (EPA may not use these authorities for
Federal facilities, although they can be exercised against contractors
at GOCO facilities.)
Section 3008 (a): Injunctive relief for violation of a provision
of Subtitle C.
Section 3008 (g): Authority for civil judicial penalties for
violations.
Section 3008 (h): Authority to seek injunctive relief to undertake
corrective actions.
Section 3013 (e): For noncompliance with the §3013 administrative
order and the judicial assessment of a maximum fine of $5,000/day for
noncompliance with the order.
Section 7002: Allows for citizen suits against Federal facilities
(including GOCO's) for violations of permits, standard, regulations,
conditions requirements, prohibitions, orders or compliance agreements
under RCRA.
Section 7003: For injunctive relief to eliminate an "imminent
and substantial endangerment" and the judicial assessment of a
maximum fine of $5,000/day for noncompliance with or violation of
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a § 7003 administrative order.
Section 9006 (a), (d): Injunctive relief and civil penalties for
violations of underground storage tank requirements.
D. CRIMINAL JUDICIAL ACTIONS: (These may be exercised against individual
employees of Federal agencies as well as private parties.)
Section 3008 (d) and (e): Impose criminal penalties for the knowing
transportation of any hazardous waste to an unpermitted facility,
the knowing violation of permit provisions, and the knowing treatment,
storage or disposal of a hazardous waste without a permit. Separate
criminal penalties are provided for "knowingly endangering" another
person as a result of the foregoing violations. The criminal penalties
are up to $50,000/day and two years in prison.
*** COMPREHENSIVE ENVIRONMENTAL RESPONSE, ***
COMPENSATION AND LIABILITY ACT
(Although this strategy does not apply to CERCLA/SARA
enforcement the following was been included for information purposes
only.)
A. ADMINISTRATIVE NOTIFICATION ACTIONS (These are formal notifications
advising recipients of violations detected and/or actions required
to be taken. These notifications generally may be issued to all
Federal facilities.)
Notice Letters are issued to potentially responsible parties informing
them of the releases of hazardous substances at a site and their
potential liability for undertaking remedial action or payment for the
costs of remedial action. Notice letters, which are not specifically
authorized by CERCLA, encourage potentially responsible parties to
meet with EPA personnel to discuss actions needed to respond to the
site.
B. ADMINISTRATIVE ENFORCEMENT ACTIONS (Administrative orders are generally
issued by EPA to Federal facilities on consent only. However, if a
Federal facility fails to respond to a proposed order within a
specified time period (usually 30 days), the order becomes final and
effective. Where EPA does not have statutory administrative authority
for Federal facilities, Compliance Agreements are used.)
Section 106 (a): Authorizes issuance of an administrative order
requiring the recipient to take response action when a release
represents an "imminent and substantial endangerment." A maximum
fine of $25,000/day (increased from $5,000/day by SARA) may be
assessed pursuant to a U.S. district court order for noncompliance
with the administrative order. Executive Order (E.G.) 12580 requires
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that EPA obtain concurrence from the Department of Justice prior
to issuance of § 106 orders.
Interagency Agreement (IAG) : An IAG is the method required by
§ 120(e)(2) for the expeditious completion of remedial actions
at Federal facilities. Section 120(f) allows State and local
officials to participate in the planning and selection of the
remedial actions. The IAG itself is only required to be signed by
the EPA Administrator and the head of the Federal agency or
department involved. States, however, may also be signatories
to IAG, where mutual agreement can be reached between the parties
in a timely manner.
C. CIVIL JUDICIAL ACTIONS (EPA may not use these authorities for Federal
facilites, although they can be exercised against contractors at
GOCO facilities.)
Section 106(a): Injunctive relief to secure abatement of a hazard
that represents an "imminent and substantial endangerment."
Section 106(b)(1): In addition to the injunctive relief afforded
by § 106(a), this section authorizes the appropriate U.S.
district court to impose fines of up to $25,000/day for non-
compliance with its injunctive order.
Section 310 (added by SARA) also allows for citizens suits against
Federal facilities for alleged violations of any standards,
regulations, conditions, requirements or orders effective pursuant
to CERCLA/SARA. This section also allows for citizen suits for
alleged violations of any lAG's entered into under § 120. Under
this section, Federal district courts have injunctive and fine
authority as authorized in § 109 of SARA.
Section 107 (c)(3): Authorizes civil action (for noncompl iance
with removal or remedial action orders issued pursuant to § 104 or
106) and punitive damages up to three times the amount of any
costs of response incurred by the fund.
D. CRIMINAL JUDICIAL ACTIONS (These may be exercised against
individual employees of Federal agencies as well as private parties.)
Section 103 (b): SARA technically amended this Section to include
fines "in accordance with the applicable provisions of Title 18 of
the United States Code" or 3 years imprisonment, or both (5 years
for second or subsequent convictions).
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II. AIR
*** CLEAN AIR ACT ***
A. ADMINISTRATIVE NOTIFICATION ACTIONS (These are formal notifications
advising recipients of violations detected and/or actions required
to be taken. These notifications generally may be issued to all
Federal facilities.)
Stationary Sources
Section 114: Authorizes agency to seek information from a source
regarding its compliance status, e.g., records and results of
emission testing. This information can then be used to decide
whether formal administrative or judicial enforcement action is
warranted.
Section 113 (a): Notice of Violation calls for compliance with
the State Implementation Plan (SIP) within 30 days. (NOV is not
required for NESHAPS/NSPS violations.) The NOV serves an important
purpose in the enforcement process in that it is a procedural
requirement for issuing a §113(a) compliance order for SIP violations
(see below). The issuance of the NOV serves as the starting point
for determining when a SIP violation "has continued beyond the 30th
day." Section 113(a)(1) requires that a State be notified. In some
cases, a State/EPA Memorandum of Agreement may require State
notification prior to issuing the NOV.
ADMINISTRATIVE ENFORCEMENT ACTIONS (Administrative orders are
generally issued by EPA to Federal facilities on consent only.
However, if a Federal facility fails to respond to a proposed order
within a specified time period (usually 30 days), the order becomes
final and effective. Where EPA does not have statutory administrative
order authority for Federal facilities, Compliance Agreements are used.)
Section 113 (a): Immediate Compliance Orders can be issued for
SIP violations which continue beyond 30 days, as well as for NSPS
and NESHAPS violations. They can also be issued for an immediate
ban on construction or modification of a major stationary source in
a nonattainment area, and for inspections, monitoring, and entry
requirement violations. Administrative Compliance Orders can also be
issued for New Sources, Municipalities violating secondary treatment
requirements, and for administratively extended permits. A unilateral
order that is not complied with is enforced via a civil action.
Section 113(d): Delayed Compliance Orders may be used to provide
limited extensions from air pollution control deadlines. However,
only an extension of the legally applicable compliance date is
permitted by the order.
Section 303 "Emergency Power" Orders: May be used in situations
representing an "imminent and substantial danger." Failure to
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comply with this order carries a maximum penalty of $5,000/day.
Section 120: Authorizes assessment of noncompliance penalties for
violation of emission requirements which may be sought in addition
to any injunctive relief sought under § 113. These penalties
recapture the economic benefit of noncompliance and they will not be
used for enforcement against Executive Branch Agencies.
Compliance Agreements: Used for enforcement against Executive
Branch Agencies which, when signed by both parties, indicate agreement
on actions and schedules that are needed to reach compliance.
C. CIVIL JUDICIAL ACTIONS (EPA may not use these authorities for Federal
facilities, although they can be exercised against contractors at
GOCO facilities.)
Stationary Sources
Section 113 (b): Authorizes civil judicial action for violation of
NSPS or NESHAPS requirements and for SIP violations which continue
beyond 30 days as well as a cause of action for civil penalties of
up to $25,000/day for violations of the Act.
Section 113 (b): Authorizes civil action for the recovery of a
noncompliance penalty assessed under § 120.
Mobile Sources
Section 204(a): Gives U.S. district courts jurisdiction to restrain
violations of § 203(a) through injunction.
Section 205: Provides penalties for violating § 203(a) up to
$10,000.
D. CRIMINAL JUDICIAL ACTIONS (These may be exercised against
individual employees of Federal agencies as well as private parties.)
Stationary Sources
Section 113 (c): Provides penalties for knowing violations of SIP,
NSPS and NESHAPS and for knowing violation of a compliance order.
Criminal penalties can also be assessed for knowingly making false
statements or representations in required documents and for tampering
with required monitoring equipment. Violations of SIP and NESHAP
requirements provide a penalty of up to $25,000 and one year in prison.
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III. WATER
*** CLEAN WATER ACT ***
(As Amended by the "Water Quality Act of 1987")
A. ADMINISTRATIVE NOTIFICATION ACTIONS (These are formal notifications
advising recipients of violations detected and/or actions required to
be taken. These notifications generally may be issued to all Federal
facilities.)
Section 308: To compliment formal enforcement actions (e.g., to
develop limitations/ standards or to determine whether there is a
violation of CWA standards), this Section requires the EPA Administrator
to require owners or operators of any point source to establish and
maintain records and/or reports, to install and use sampling/monitoring
equipment, and to provide other information. This Section does not
require a formal order, but merely the Administrator's directed
requirement (such as in a letter). This Section also authorizes the
Administrator to enter premises where effluent sources or records
are located.
Section 309 (a): Authorizes the use of a Notice of Violation sent by
EPA to both the authorized States and the violator stating that a
violation has been detected; the State may then take the enforcement
action. NOV's usually encourage the violator to rectify the problem
or clarify the legal obligations under the Act.
B. ADMINISTRATIVE ENFORCEMENT ACTIONS (Administrative orders are generally
issued by EPA to Federal facilities on consent only. However, if a
Federal facility fails to respond to a proposed order within a
specified time period (usually 30 days), the order becomes final and
effective. Where EPA does not have statutory administrative order
authority for Federal facilities, Compliance Agreements are used.)
Section 309 (a) (1) and (a) (3): Issued for violations of numerous
CWA provisions including:
— effluent limitations and unauthorized discharges (§301)
-- water quality-related effluent limitations (§302)
-- new source performance standards (§ 306)
-- toxic and pretreatment effluent standards (§307)
-- information requests and inspections (§308)
-- aquaculture (§318)
-- sewage and sludge disposal (§405)
-- permit violations (pursuant to §402 and §404)
Notice of Deficiency can be issued to owners or operators who
have failed to submit complete NPDES applications or to address
sampling and laboratory analysis deficiencies and can be followed
by an administrative order for serious violations.
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Section 309 (a) (5) (A): Under certain circumstances, an Order may
be issued by EPA which specifies a time for compliance beyond the
initial 30-day limit. This administrative order is applicable to
permittees who have violated final deadlines, but not interim dead-
lines. An administrative order may not be used to extend final
deadlines beyond the statutory requirements but may be used to set
interim deadlines. It is not applicable to permittees who have
violated Operations and Maintenance (O&M) requirements.
Section 309(g): (Added by § 314 of the 1987 Amendments) Authorizes
administrative civil penalties for violations of selected sections
of the Act, for violations of NPDES permit conditions, and for
unpermitted § 404 violations (including State-issued § 404 permits).
The penalties are divided into 2 classes depending upon several
factors detailed in § 309 (g)(3): Class I - not to exceed $10,000
per violations; $25,000 maximum. Class II - not to exceed $10,000
per day; $125,000 maximum. They will not be used for enforcement
against Executive Branch agencies.
Section 508 and EPA's implementing regulations authorize EPA to
establish a suspension and debarment program -- the Contractor
Listing Program. Section 508(a) prohibits any Executive Branch
Agency from entering into a contract with any person who is
convicted of a criminal violation under 309(c) of the CWA for the
procurement of goods, materials, or services, if such a contract
would be performed at any facility at which the criminal violation
occurred. If a contractor who operates a government facility is
convicted under § 309(c) for violations of CWA standards at the
government facility, the facility will be placed on the List of
Violating Facilities and the contract with the operator may not be
renewed until the Administrator certifies that the condition which
gave rise to the conviction has been corrected.
Compliance Agreements: Are the primary enforcement mechanisms
for enforcement against Executive Branch Agencies which are signed
by both parties to indicate agreement on actions and schedules
that are needed to reach compliance.
C. CIVIL JUDICIAL ACTIONS (EPA may not use these authorities for Federal
facilities although they can be exercised against contractors at
GOCO facilities.)
Section 309 (b): Authorizes civil judicial actions for appropriate
relief, including temporary or permanent injunctions, for any violation
for which an administrative compliance order may be assessed i.e.,
§§ 301, 302, 307, 308, 318, 405 or for violations of conditions or
limitations in a § 402 or 405 permit.
Section 309 (d): Authorizes a civil penalty of up to $25,000/ day
for each violation of the Act.
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D. CRIMINAL JUDICIAL ACTIONS (These may be exercised against
individual employees of Federal facilities as well as private parties.)
Section 309 (c): The Act now provides specific penalties for certain
negligent or knowing violations, for knowing endangerment of death
or serious injury and for false statements. Minimum penalties range
from a low of $2500/ day for negligent violations to a maximum of
$100,000/ day for knowing violations and from a minimum of not
more than one year in prison for negligent violations and 6 year
for knowing violations. A conviction for one who knowingly endangers
life by violating the Act can result in as much as a $250,000 fine and
15 years imprisonment, or both for a first conviction. The penalties
and jail sentences will be double for any subsequent conviction; a
corporation found guilty of knowing endangerment is subject to a
$1,000,000 fine.
***
THE SAFE DRINKING WATER ACT (SDWA) ***
SDWA establishes two major programs: Public Water Supply Systems (PWSS)
and Underground Injection Control Programs (UIC). Since many provisions
are program specific it is useful to distinguish the authorities.
A. ADMINISTRATIVE NOTIFICATION ACTIONS (These are formal notifications
advising recipients of violations detected and/or actions required
to be taken. These notifications generally may be issued to all
Federal facilities.)
Public Water Supply Systems (PWSS)
Notification of Violation: (EPA's final Public Notice Rules
were published on October 28, 1987 and become effective on
April 26, 1989 (52 FR. 41534).
Section 1414 (a)(l)(A); During periods when a State has primary
enforcement responsibility ("primacy") for PWSS, this Section
requires the Administrator to notify the primacy State and the
violating public water supplier of the supplier's noncompliance,
and further requires providing appropriate advice and technical
assistance to the primacy state and supplier to eliminate the
noncompliance.
Section 1414 (c): Requires the Administrator to amend by
September 19, 1987, present regulations governing the manner, form
and content by which a public water supplier shall give the public
notification of its violations of the Act.
Section 1417: Requires public water systems to notify its customers
of lead contamination from materials used in the water system.
Requires the Administrator by September 17, 1986, to notify states
of their obligations to prohibit by June 19, 1988, the use of lead
pipe, solder or flue in the installation or repair of public water
systems.
Section 1445 (a)(5): Requires public water suppliers supplying at
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least 150 service connections which have monitored unregulated
contaminants pursuant to regulations to be developed by the
Administrator to notify both the Administrator and its customers of
the availability of the monitoring results.
Underground Injection Control Programs (UIC)
Section 1423 (a): Requires the Administrator to notify the primacy
State and the violating underground injector of the injector's
noncompliance. Also requires the Administrator to issue orders
(pursuant to § 1423 (c), below) requiring compliance or to bring
civil judicial action.
ADMINISTRATIVE ENFORCEMENT ACTIONS (Administrative orders are
generally issued by EPA to Federal facilities on consent only.
However, if a Federal facility fails to respond to a proposed order
within a specified time period (usually 30 days), the order becomes
final and effective. Where EPA does not have statutory administrative
order authority for Federal facilities, Compliance Agreements are used.)
PWSS
Section 1414(a)(l)(B): If a primary State does not start enforcement
action within 30 days after the Administrator's notice (§ 1414(a) (1)(A),
above) the Administrator must either issue an order requiring the
PWSS to comply, or must start civil judicial action.
Section 1414 (a) (2): Gives the Administrator the same authority as in
§ 1414(a) (1)(A) and (B), except this section applies to periods when
a State does not have primary enforcement responsibility for PWSS.
Section 1414 (g): Gives authority for the orders noted above (i.e.,
for violations of Part B of the Act as well as for § 1445
violations). The order authority cannot be exercised until the
water supplier has had the notice and opportunity for a public
hearing and, in the case of the primacy states, until the State has
had the opportunity to confer with the Administrator. Violating or
failing to comply with an order is liable for a maximum civil penalty
of $25,000/day. If the fine does not exceed $5,000, it may be assessed
administratively by the Administrator after conformance with APA
procedures.
Section 1417(c): If the Administrator determines that § 1417 is not
being enforced by a State as required by § 1417 (b), he may withhold
up to 5 percent of Federal funds available to the State for State
program grants under § 1443(a).
Section 1431(a): Provides authority for the Administrator to issue
an administrative order in circumstances of "imminent and substantial
endangerment to persons" resulting from actual or likely contamination
of a public water system or drinking water aquifer.
Compliance Agreements: Are the primary enforcement mechanisms for
enforcement against Executive Branch Agencies which are signed by
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both parties to indicate agreement on actions and schedules that
are needed to reach compliance.
UIC
Section 1423 (c): Provides authority for the Administrator
to issue to persons violating Part C (or § 1445 of the Act) which
governs injection practices. The orders may require compliance or
assess penalties, or both, after following statutory requirements
that provide for less than APA procedures. Administrative penalties
assessed under this provision may not exceed $125,000.
Section 1431(a): Provides authority for the Administrator to issue
an administrative order in circumstances of "imminent and substantial
endangerment to persons" resulting from actual or likely contamination
of a public water system or drinking water aquifer.
Compliance Agreements: Used by the program which are signed by
both parties to specify compliance actions and schedules and outlines
additional actions to be taken if the agreement is not complied with.
CIVIL JUDICIAL ACTIONS (EPA may not use these authorities for Federal
facilities, although they can be exercised against contractors at
GOCO facilities.)
PUSS
Section 1414 (b): Provides authority for the Administrator to initiate
a civil action to require the public water systan to comply with the
regulations or requirements of the Act under § 1414(g)(3)(c).
Violation of or noncompliance with an Administrative Order for which
a civil penalty of over $5,000 is being sought (subject to a
$25,000/day maximum) shall be obtained through a civil action.
Section 1431 (a): Provides authority for the Administrator to take
a civil action for appropriate relief (including restraining orders
and temporary or permanent injunctions) against persons whose
activities affecting a drinking water system or underground drinking
water source represent an "imminent and substantial endangerment" to
human health.
Section 1432(c): Provides authority for a judicially-imposed civil
penalty of up to $50,000 for tampering with a public water system and
up to $20,000 for threatening or attempting to tamper with such a
system.
UIC
Section 1423 (b): Provides authority for the Administrator to
commence a civil action to require compliance with any requirement
of an UIC program or order. This section also provides authority
for the imposition of a civil penalty of up to $25,000/day. This
authority will not be used to enforce against Executive Branch Agencies,
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CRIMINAL JUDICIAL ACTIONS (These may be exercised against
individual employees of Federal agencies as well as private parties.)
PWSS
Section 1432:
maximum of
of the U.S.
may result in
with Title 18
UIC
_ Tampering with a Public Water System may result in a
five years in prison or fined in accordance with Title 18
Code. Attempting or threatening to tamper with a system
a maximum of three years in prison or fined in accordance
of the U.S. Code.
Section 1423 (b): Willful violations of any requirement of an
applicable Underground Injection Control programs or order carries
a maximum penalty of up to three years imprisonment and/or fines in
accordance with Title 18 of the U.S. Code.
IV. TOXICS AND PESTICIDES
***
FEDERAL INSECTICIDE. FUNGICIDE AND RODENTICIDE ACT (FIFRA)
***
ADMINISTRATIVE NOTIFICATION ACTIONS (These are formal notifications
advising recipients of violations detected and/or actions required
to be taken. These notifications generally may be issued to all
Federal facilities.)
Section 14 (a)(2): Authorizes issuance of a Notice of Warning
letter which is required for first offenses committed by a private
appl icator.
Section 9 (c)(3): Authorizes issuance of a Notice of Warning Letter
which may be issued for first offenses committed by commercial
applicators, registrants, distributors and "for hire" applicators.
Notice of Termination of Registration may be sent to a Federal
facility which fails to submit required pesticide reports to the
EPA.
EPA may also request that a company voluntarily recall a product.
These requests are not explicitly authorized by FIFRA.
Section 13 (a) - Can be used for Federal Facility.
Section 3 (c)(2)(B) Suspension.
produce data as required by FIFRA
for which the data was requested.
If a registrant fails to agree to
§ (c)(2)(B), EPA may suspend the product
Applies to Federal entities.
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Section 6 Emergency Suspension/Suspensions/Cancellations. Agency
may cancel/suspend the registration of products for unreasonable
adverse effects. Can be issued to Federal Facility.
B. ADMINISTRATIVE ENFORCEMENT ACTIONS (Administrative orders are generally
issued by EPA to Federal facilities on consent only. However, if a
Federal facility fails to respond to a proposed order within a
specified time period (usually 30 days), the order becomes final and
effective. Where EPA does not have statutory administrative order
authority for Federal facilities, Compliance Agreements are used.)
EPA may deny, suspend, modify or revoke an applicator's certifi-
cation for any violation of FIFRA or its regulations.
Section 13(a): Authorizes issuance of Stop Sale, Use or Removal
Orders (SSURO's) to prohibit the sale or use of a violative pesticide.
Violation of a SSURO is grounds for a civil or criminal penalty.
SSURO's are directly challengeable in Federal District Court.
These can be issued to Federal facilities.
Section 14: Authorizes the use of administrative civil penalties for
violations of FIFRA. Commercial applicators, registrants and other
categories of violators are liable for a maximum penalty of $5,000 per
offense; private applicators are liable for a maximum penalty of $1,000
per offense. This authority is not used for enforcement actions against
Executive Branch Agencies.
Compliance Agreements: Used as the primary enforcement mechanism for
enforcement against Executive Branch Agencies which are signed by both
parties to indicate agreement on actions and schedules that are needed
to reach compliance.
C. CIVIL JUDICIAL ACTIONS (EPA may not use these authorities for Federal
facilities, although they can be exercised against contractors at
GOCO facilities.)
Section 16 (c): Authorizes injunctive relief for violations of
SSURO's or suspension orders.
Section 13 (b): Authorizes civil actions to seize violative products.
D. CRIMINAL JUDICIAL ACTIONS (These may be exercised against
individual employees of Federal agencies as well as private parties.)
Section 14 (b): Criminal penalties are provided for "knowing violations"
of any provision of the Act. Penalties range up to a $25,000 fine and
one year in prison, or both.
*** TOXIC SUBSTANCES CONTROL ACT (TSCA) ***
A. ADMINISTRATIVE NOTIFICATION ACTIONS (These are formal notifications
advising recipients of violations detected and/or actions required
to be taken. These notifications generally may be issued to all
14
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Federal facilities.)
Notice of Noncompliance: This is a letter from EPA advising the
recipient that a TSCA violation has been detected. It is not
authorized by the statute and is used primarily for minor technical
or substantive violations which do not have significant impact
upon health or environment.
B. ADMINISTRATIVE ENFORCEMENT ACTIONS (Administrative Orders are
generally issued by EPA to Federal facilities on consent only. However,
if a Federal facility fails to respond to a proposed order within a
specified time period (usually 30 days), the order becomes final and
effective. Where EPA does not have statutory administrative order
authority for Federal facilities, Compliance Agreements are used.)
* Section 16 (a): Authorizes EPA to impose civil administrative
penalties for noncompliance with TSCA statutory, order, and
rule requirements including; §4 test rule, §5 premanufacture
notification and significant new use notification requirements,
§5 and §6 orders, §6 chemical control rules, §8 reporting and
recordkeeping requirements and rules, §12 labelling and notifi-
cation requirements, and §13 import certification requirements.
Section 16(a)(2)(C) allows all or part of the penalty to be
compromised, modified, or remitted, with or without conditions.
(This authority is not used to enforce against Executive Branch
agencies.)
Compliance Agreements: Used as the primary enforcement mechanism
for enforcement against Executive Branch Agencies which are signed
by both parties to indicate agreement on actions and schedules
to reach compl iance.
C. CIVIL JUDICIAL ACTIONS (EPA may not use these authorities for Federal
facilities, although they can be exercised against contractors at
GOCO facilities.)
Section 5 (e): Authorizes injunctive action to prohibit or
1imit manufacture, processing, distribution in commerce, use,
or disposal of a new chemical substance or a substance for a
significant new use for which there is insufficient information
to permit a reasoned evaluation of the effects. The court may issue
an injunction if it finds that activities involving the substances
may present an unreasonable risk of injury or that the substance is
or will be produced in substantial quantities and enters or may
reasonably be anticipated to enter the environment in substantial
quantities or there is or will be significant or substantial human
exposure to it.
Section 5 (f): Authorizes injunctive action to prohibit manufacture,
processing, or distribution in commerce of a new chemical substances
or a substance for a significant new use, if the court finds that
activities involving the substance will present an unreasonable risk
of injury before a rule promulgated under TSCA § 6 can protect
against such risk.
15
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Section 7: Authorizes civil actions for seizure of imminently hazardous
chemical substances or mixtures (chemicals) or articles containing them,
for injunctive relief against persons who manufacture, process,
distribute in commerce, use, or dispose of imminently hazardous chemicals
or articles containing them, or for recall of the chemical substance.
Section 11: Subpoena and Inspection Authority. This can be used
for Federal facilities.
Section 17: Authorizes civil actions for seizure of chemicals or
articles containing them which were manufactured, processed, or
distributed in commerce in violation of TSCA or a TSCA rule or order
or for injunctive relief to restrain violations of TSCA or rules or
orders under TSCA, to require persons who manufactured or processed
chemicals in violation of §§ 5 and 6 orders and rules to notify
customers of the violations, to notify the public of any risk of
injury, and to replace or repurchase such chemicals.
D. CRIMINAL JUDICIAL ACTIONS (These may be exercised against individual
employees of Federal agencies as well as private parties.)
Section 16 (b): Authorizes criminal actions for knowing or willful
noncompliance with TSCA statutory, rule, and order requirements such
as those subject to § 16(a) civil administrative penalties above.
Penalties include a maximum of $25,000 for each day of violations, one
year in prison, or both.
Section 16 (b): Provides criminal penalties for anyone who knowingly
or willfully violates requirements relating to §§ 4,5,6,8, and 11 of
the Act. Penalties include a maximum fine of up to $25,000/day
and one year in prison, or both.
*** TSCA Title II - Asbestos Hazard Emergeny Response Act of 1986 ***
Section 208. Emergency Action: Authorizes administration to act to
protect health and the environment when local educational agency
fails to take sufficient action and the situation poses imminent
substantial endangerment.
Section 208. Injunctive Relief: Administration may ask for injunctive
relief if asbestos in a school building poses an imminent and
substantial endangerment to human health or the environment.
16
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APPENDIX J
SAMPLE ENFORCEMENT RESPONSE
FORMS AND LETTERS
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NOTIFICATION OF VIOLATION (NOV)'
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Facility Contact
Facility Address
Re: Notification of Violation - [Name of Facility and I.D.#]
Dear [Name of Contact]:
0 The opening statement should include the
following information concerning the inspection:
Date
Type and purpose
Names and affiliation of inspectors
° Following the opening statement, the NOV should
discuss the results of the inspection, including:
A description of each violation.
A citation of the appropriate regulation or
the statute.
A description of necessary corrective
actions, if appropriate.
0 The closing statement should:
State that the facility must submit either a
remedial action plan and schedule or written
certification that the violation has been
corrected by a specified date consistent with
applicable media timefnames.
Any remdial action plan should contain the
following elements:
0 description of noncompliance situation
0 identification of corrective actions to be
taken
0 outline of schedule for obtaining required
funds implementing corrective actions
0 description of content and frequency of
progress reports
State the number of days EPA will take to
review and comment on the remedial action plan.
* When using an enforcement action under RCRA refer to the January 25, 1988
memorandum contained in Appendix K.
1
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NOTIFICATION OF VIOLATION
(continued)
Provide the name and address of where the
response is to be sent.
Explain the adverse consequences of not submitting
a remedial action plan or written certification
in a timely manner. The following sentence may
be used in a NOV, "Failure either to respond
to this request by (date), or to achieve compliance
or mutual agreement on an acceptable response
to the above cited violations by (date) will
result in further escalation of this enforcement
action." Relevant citizen suit provisions of involved
statutes may also be cited here.
Offer to meet with the Federal agency official
authorized to sign a Compliance Agreement and
commit the agency to actions described in the
remedial action plan.
Sincerely yours,
[Name and Title]
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RESPONSE FORM FOR CERTIFICATION
OF VIOLATION CORRECTION
[Date]
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[Facility Contact!
[Facility Address!
Re: Certification of Violation Correction
Dear [Facility Contact!:
EPA acknowledges receipt of the facility name certification
of violation correction. The certification addresses the
violations identified in the name enforcement response, dated
. The facility should continue to take the necessary
steps to maintain and ensure compliance with all applicable
Federal, State, and local environmental requirements.
If you have any questions, please call Federal Facilities
Coordinator or Program Staff name and number of my staff.
Sincerely,
Delegated Regional Enforcement Official
EPA Division
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RESPONSE FORM FOR REMEDIAL
ACTION PLAN
[Date]
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[Facility Contact]
[Facility Address]
Re: Remedial Action Plan
Dear [Facility Contact]:
EPA acknowledges receipt of the f ac i 1 Uy name remedial
action plan, dated . EPA will complete its "review by
date. At that time we will notify you of our comments.
However, EPA's receipt of the plan does not alter the facility
name liability for correcting the stated violation in a timely
manner and for taking all necessary steps to maintain compliance
with all applicable Federal, State, and local environmental
requirements. While a remedial action plan may be used as the
basis for substantive agreement on steps necessary to achieve
compliance, it is not an enforceable agreement or order and may
only provide the basis for such enforcement agreements or
orders in those cases where these enforcement responses are
deernod necessary.
If you have any questions, please call Federal Facilities
Coordinator or Program staff name and number of my staff.
Sincerely,
Delegated Regional Enforcement Official
EPA Division
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COMPLIANCE AGREEMENT
U.S. ENVIRONMENTAL PROTECTION AGENCY
Name of Federal Facility Federal Facility
and Compliance
EPA Region Agreement
I
INTRODUCTION
The introductory paragraph should state the
following:
The U.S. Environmental Protection Agency, Region
(hereinafter Region ), and the (Facility name and
location) (hereinafter abbreviated facility name) are
the parties to this agreement which is entered into
pursuant to Executive Order 12088, October 13, 1978
[43 FR 47707]. The Office of Management and Budget and
the Department of Justice will take cognizance of this
agreement pursuant to their respective duties to assure
compliance with the environmental laws under Executive
Order 12088 and the particular statutes herein addressed.
A statement of agreement between the Federal facility
and EPA should include the following;
Executive Order 12088 was promulgated to insure
Federal compliance with applicable pollution control
standards. This agreement contains a "plan", as
described in Section 1-601 of Executive Order 12088,
to achieve and maintain compliance with applicable
name of relevant statute(s) standards for the name of
facility^
II
STATEMENT OF FACTS
This paragraph should provide a description of the
site in question and the violations identified. The
paragraph should detail the objectives and scope of
the agreement between the facility and EPA.
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COMPLIANCE AGREEMENT
(continued)
III
COMPLIANCE SCHEDULE
This paragraph should state the following:
The compliance schedule for the facility named is
intended to achieve compliance as expeditiously as
practicable, pursuant to Section 1-601 of Executive
Order 12088, and is set forth as Appendix _____ to this
agreement. The attachment is incorporated into and
made a part of this agreement. The schedule was
determined after consultation between Facility name
and Region . The schedule contains interim
requirements reflecting design and construction
milestone dates. Wherever reasonably possible, name
of Facility will expedite the schedule.
IV
FUNDING
If existing Agency funds are available to correct the
violations, the following paragraph should be stated:
Facility name has determined that the funds necessary to
correct the violations identified above are available for
this purpose and Agency name shall obligate such funds as
necessary to meet the timeframes for achieving compliance
as outlined in the attached schedule. If facility name
subsequently determines that additional funds are needed
to achieve compliance, it shall seek all existing funds
for this purpose by the most expeditious means possible
or, if necessary, shall request new authorizations
in the Agency's budget in order to ensure the most
expeditious schedule of compliance in accordance with
sections 1-4 and 1-5 of Executive Order 12088 as implemented
by the Office of Management and Budget Circular A-106 (As
Amended). Section 1-5 of E.O. 12088 states that "The
head of each executive agency shall ensure that sufficient
funds for compliance with applicable pollution control
standards are requested in the Agency budget." Failure
to obtain adequate funds or appropriations from Congress
does not, in any way, release Facility name from its
ultimate obligation to comply with name of relevant
statute(s) as expeditiously as possible.
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COMPLIANCE AGREEMENT
(continued)
If Federal agency funds are either unavailable or inadequate
to correct the violations, then the following paragraph
should be stated:
All existing funds shall be sought for this purpose by
the most expeditious means possible, and/or new authorizations
sought from Congress, if necessary, to achieve the attached
schedule of compliance in accordance with Sections 1-4
and 1-5 of Executive Order 12088 as implemented by the
Office of Management and Budget Circular A-106 (As
Amended). Section 1-5 of E.O. 12088 states "The head of
each executive agency shall ensure that sufficient funds
for compliance with applicable pollution control standards
are requested in the Agency budget." Failure to obtain
adequate funds or appropriations from Congress does not,
in any way, release Facility name from its obligation to
comply with name of relevant statute(s).
V
REPORT REQUIREMENTS
The following should be included as Report
Requirements:
0 Name of Facility shall submit quarterly
progress reports by a set date and upon the
final compliance date as set forth in the
attachment. The progress reports will be
submitted to Region and the appropriate
local, State or regional environmental
agency. The status reports shall indicate
compliance or noncompliance with the
schedule. In the event of noncompliance,
the report shall include the cause of
noncompliance and any remedial actions
taken. If delay is anticipated in meeting
any schedule date, name of facility shall
immediately notify Region in writing of
the anticipated delay, describing in detail
the anticipated length of delay, the precise
cause of the delay, the measures taken and
to be taken by name of facility to prevent
or minimize the delay and the timetable by
which the measures shall be implemented.
Name of facility will take reasonable action
to minimize any delay.
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COMPLIANCE AGREEMENT
(continued)
0 In the event there is an amendment of the Act,
or changes to the regulations promulgated under
those statutes, the compliance schedule may be
renegotiated to reflect these changes. Such
renegotiation shall be governed by Executive
Order 12088. During the pendency of any renego-
tiation, the attached compliance schedule, to
the extent it does not conflict with statutory
or regulatory changes, shall remain in effect
unless specifically waived by Region .
0 On the date for final compliance, as shown on
the Attachment, compliance with applicable
permit requirements must be demonstrable by
testing and positive reporting of the achievement
of compliance, rather than by the mere completion
of construction of pollution abatement facilities.
0 Upon the demonstration of compliance by name
of facility, there will be a continuing
obligation to comply with applicable permit
requirements under the Act.
0 If funds are not appropriated from Congress as
requested and existing funds are not available
to achieve compliance in accordance with the
attached schedule, the Facility name shall
notify the EPA immediately in writing.
VI
CONFLICT RESOLUTION
This paragraph should read as follows:
In the event of any conflict involving violations of this
agreement, Region and name of facility shall meet promptly
and work in good faith for a period of not less than thirty
(30) days in an effort to reach a mutually agreeable resolution
of the dispute. (If Region and name of facility are unable
to reach agreement, then they may select an alternative dispute
resolution procedure to aid in the resolution of the dispute.
This procedure shall be for a period not to exceed calendar
days.)* If the differences cannot be resolved by the two parties
in a timely manner, a proposed Order may be issued by EPA as
appropriate, and the escalation procedures in Sections 1-602,
1-603, and 1-604 of Executive Order 12088 shall apply. Additional
dispute resolution procedures may also be utilized if mutually
agreed to by both parties as part of this agreement.
"* Regions may add this sentence on ADR as appropriate."
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COMPLIANCE AGREEMENT
(continued)
VII
SANCTIONS
This section should state that enforcement measures
specified under the specific act violated will be used
should the facility not comply with this agreement.
Enforceability clauses should be included in this section
where appropriate.
VIII
CLOSING STATEMENT
This paragraph should read as follows:
This agreement in no way modifies Section (number) of
the name of Act. Nothing in the Agreement is intended
to nor should be construed to affect the rights of
nonparties to the Agreement.
Date: Signed:
Date: Signed:
(Facility Contact Name
Title)
(EPA Name and Title)
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FEDERAL FACILITY ENFORCEABILITY CLAUSES
Enforceability clauses can be included in new Federal Facility
Compliance Agreements or Consent Orders or be added to existing Federal
Facility Compliance Agreements, where feasible. The following is an
example of acceptable language from the RCRA program:
The (Department/Agency) recognizes its obligations to comply with
RCRA as set forth in Section 6001 of RCRA.
The provisions of this Agreement including those related to
statutory requirements, regulations, permits, closure plans, or
corrective action, including recordkeeping, reporting and schedules
of compliance, shall be enforceable under citizen suits pursuant
to 42 U.S.C. 9672(a)(l)(A), including actions or suits by the State
and its agencies. The (Department/Agency) agrees that the State
and its agencies are a "person" within the meaning of Section 7002(a)
of RCRA.
In the event of any action filed under Seciton 7002(a) of
RCRA alleging any violation of any such requirement of this Agreement,
it shall be presumed that the provisions of this Agreement including
those provisions which address recordkeeping, reporting, and schedules
of compliance are related to statutory requirements, regulations,
permits, closure plans, or corrective action, and are thus
enforceable under Section 7002(a) of RCRA.
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NOTIFICATION FORM TO FEDERAL FACILITY
OF ENFORCEMENT ACTION AGAINST CONTRACTOR
[DATE!
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[Facility Contact]
[Facility Address!
Re: Enforcement Action Against [Facility Contractor]
Hear [Facility Contact]:
Attached is a copy of the Environmental Protection Agency's
(NOV, Administrative Complaint or other) against contractor
name for violations of the name of statute at the name of
Fede'ral facility.
We request your cooperation in working with the contractor
so that the violation will be corrected and the facility
returned to compliance as quickly as possible. We want to
emphasize the importance of your responsibility to effectively
oversee contractor operations to ensure compliance.
EPA may also decide whether subsequent enforcement actions
may he necessary against other parties in order to correct
the violation.
If you have any questions about the enforcement action,
please call Federal Facilities Coordinator or program staff
name and number of my staff.
Delegated Regional Enforcement Official
EPA Division
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APPENDIX K
ENFORCEMENT ACTIONS UNDER
RCRA AND CERCLA
AT FEDERAL FACILITIES
AND
ELEVATION PROCESS
FOR ACHIEVING
FEDERAL FACILITY COMPLIANCE
UNDER RCRA
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
JAN 2 5 1988
MEMORANDUM
SUBJECT: Enforcement Actions Under RCRA and CERCLA at
Federal Facil>jties^
__
FROM: J. Winston Porter, Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Regional Administrators
Regions I-X
BACKGROUND
Statutory language makes it clear that Federal facilities
must comply both procedurally and substantively with RCRA and
CERCLA in the same manner as any non-Federal entity. The purpose
of this memo is to lay out the statutory authorities under RCRA
and CERCLA that EPA may use at Federal facilities to achieve
compliance and expeditious cleanup.
Over the past year, a great deal of effort has been spent
identifying those enforcement tools that are available to EPA in
the hazardous waste programs to achieve a higher level of
compliance at Federal facilities. Specifically, the successful
negotiation of individual agreements such as the corrective
action order with the Department of Energy (DOE) at the—Idaho
National Engineering Lab and the Interagency agreement with the
Department of Army (DOA) at the Twin Cities Army Ammunition Plant
demonstrated significant progress in efforts to achieve
compliance and cleanup at Federal facilities. Further
clarification of EPA's enforcement capabilities at Federal
facilities has come from the Department of Justice in
Congressional testimony.
To continue the above progress in resolving compliance and
cleanup issues at Federal facilities, I am outlining the
enforcement and permitting response actions that EPA can
currently implement to formalize compliance and cleanup actions
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at Federal facilities. A description of the available
enforcement and permitting response actions is given for each of
the following scenarios.
1) A Federal facility with RCRA compliance issues.
2) A Federal facility with RCRA corrective action issues.
3) A Federal facility with CERCLA issues.
4) A Federal facility with RCRA and CERCLA "issues.
I. A FEDERAL FACILITY WITH RCRA COMPLIANCE ISSUES
At a Congressional hearing on April 28, 1987 before the
House Oversight and Investigation Sub-Committee, of the Committee
on Energy and Commerce, the U.S. Department of Justice testified
that EPA may not issue Administrative Orders at Federal
facilities under Section 3008(a) of RCRA to address compliance
violations of regulatory requirements. (See Attachment 1 for a
copy of DOJ's Congressional testimony). When addressing RCRA
compliance violations, EPA will issue the Federal facility a
Notice of Noncompliance (NON). EPA will then negotiate a Federal
Facility Compliance Agreement (FFCA) to resolve the compliance
issues outlined in the NON. Detailed below is a description of
the components of a NON and a FFCA.
A. Federal Facility Notice of Noncompliance
EPA will issue a Notice of Noncompliance (NON) as the
initial enforcement action at a Federal facility with RCRA
compliance violations. The notice should be sent to the
responsible Federal official at the facility, or their delegate.
The issuance of a NON at a Federal facility is parallel to the
issuance of a RCRA Section 3008(a) administrative complaint to a
private facility and, therefore, must conform with a RCRA section
3008(a) complaint in content and format. As outlined in the
model language (Attachment 2), the NON should contain the
following components:
1) A general reference to the Resource Conservation
and Recovery Act as amended.
2) The factual basis for the issuance of the NON
(e.g., acts, omissions and conditions identified during
an inspection).
3) A reference to the waiver of sovereign immunity under
Section 6001 of RCRA.
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4) A reference to the citizen suit provisions of Section
7002 Of RCRA.
5) A reference to administrative, civil, and/or criminal
sanctions under Section 3008 of RCRA that may be
app.lied to an individual who is in charge of hazardous
waste management activities at a facility.
6) A detailed allegation of all RCRA violations with
citations to authorized state or EPA regulations.
7) A detailed compliance schedule (both actions and
timeframes) for the correction of violations.
8) The alternatives to the actions provided for in the NON
(e.g. , Presidential exemption or specific legislative
relief from Congress).
9) A specific date or timeframe by which the Federal
facility must provide a written response to EPA
regarding their plans for addressing the violations
outlined in the document and/or a specific date for a
conference.
It is essential that the NON specify the violations, remedy,
and timeframes for implementing the remedy in the same manner
that a strong administrative or civil complaint would be drafted.
B. Federal Facility Compliance Agreement
After the NON has been issued, the final negotiated document
resolving compliance violations between the Federal facility and
EPA will continue to be called a Federal Facility Compliance
Agreement (FFCA). A very important section in any new FFCA is
the enforceability clause. Model enforceability language is
attached (Attachment 3) for your inclusion in any new FFCA.
Where appropriate, and when you can obtain expeditious agreement
from the affected Federal facility, you should add the
enforeability clause to existing Federal Facility Compliance
Agreements as well. This language reflects EPA's view that a
"requirement11 in Section 7002 includes statutory and regulatory
requirements and other items which are mandated by these
requirements (e.g., schedules of compliance, various plans,
recordkeeping and reporting) and that this final negotiated
document is enforceable under Section 7002. This language also
recognizes that under RCRA Section 6001, Federal agencies are
required to comply with the agreement, subject to available
appropriations.
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All FFCAs should contain the model dispute resolution
clause found at Attachment 4. This dispute resolution language
emphasizes resolution of disputes at a lower level. In cases
where disputes are escalated to higher levels, the EPA
Administrator is the final decision maker.
C. Issuance'crf RCRA Section 3008(a) Order to a Government-Owned
Contractor Operated Facility (GOCO)
When addressing RCRA compliance issues at a Federal
facility, EPA also has the option of issuing an -enforcement
action against the non-Federal operator of a facility. In many
cases, contractors have the operational responsibility for waste
generation and management operations at a Federal facility.
At the aforementioned Congressional hearing on this topic,
DOJ stated that they saw no constitutional or statutory problems
to asserting Section 3008 authority (or any other authority)
against contract operators of government-owned facilities
(GOCOsMsee Attachment I, DOJ Testimony). This means that EPA
and the states have the full range of enforcement authorities
under RCRA and CERCLA at GOCOs that are available for private
facilities.
Actions against GOCOs can be valuable enforcement tools,
especially at facilities where the contractor does the majority
of the waste management work (i.e., DOE facilities). On a
factual basis EPA has not experienced trouble establishing the
contractor as the operator. The Mixed Energy Waste (MEWS) task
force found that at most of the major DOE facilities the
contractor(s) were responsible for the day-to-day operations and
long term management, or oversight of hazardous waste at the
facility. In some instances, both the Federal agency and the
contractor(s) are the operators. A memo labeled Attachment 5 in
this package gives some criteria for determining the operator at
a Federal facility.
GOCOs are not shielded from enforcement actions for
non-compliance with environmental laws. Therefore, I strongly
encourage you to determine who is the operator of hazardous waste
management activities at a Federal facility when developing an
enforcement strategy at the facility. You should then examine
the factual association of the contractor at the facility. When
the primary operator at a Federal facility is clearly the
contractor(s), and the factual basis for the enforcement action
is clearly defined, you should consider the use of all RCRA and
CERCLA authorities available for non-Federal facility actions.
The Federal Facilities Compliance Task Force in the Office of
Waste Programs Enforcement and the Office of Enforcement and
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Compliance Monitoring will be working with your staff to identify
those cases which may be good candidates for a GOCO enforcement
action.
II. A FEDERAL FACILITY WITH RCRA CORRECTIVE ACTION ISSUES
A. Corrective Action Orders (3008(h)) at Federal Facilities
With regard to corrective action and the applicability of
administrative orders under RCRA Section 3008(h) at Federal
facilities, DOJ has taken the view that corrective action orders
are integral to the permitting process. Since Section 6001 of
RCRA expressly requires Federal facilities to comply with
hazardous waste permits, DOJ has concluded that administrative
orders under Section 3008(h) can be issued to Federal facilities.
Based on this DOJ determination, Section 3008(h)
administrative orders should be issued whenever possible and
appropriate (e.g. , an interim status facility which is not
seeking a RCRA permit or the issuance of the permit is not
expected in the near future). The existing administrative
procedures for issuing RCRA 3008(h) orders, as set forth in the
February 19, 1987 memorandum to the regional offices, will be
applied to Federal agencies. However, Federal agencies will have
the opportunity to elevate disputes to the Administrator for a
final decision in the event a dispute cannot be resolved at the
Regional Administrator level. Consistent with these procedures,
EPA will issue orders as necessary, and provide a reasonable
opportunity for Federal agencies to discuss the order with EPA.
If the Federal agency chooses not to invoke these procedures, the
order becomes final and effective.
As in the NON and FFCA, a Section 3008(h) order being issued
to a Federal facility should state the waiver of sovereign
immunity found in Section 6001 of RCRA. It should also contain
the model dispute resolution language found in Attachment 4. The
the model enforceability language found in Attachment 3 is not
necessary since the order will explicitly cite the statutory
authority in Section 3008(h), and is, therefore, enforceable
under Section 7002 of RCRA. There should be no difference in
the factual basis for the issuance of a corrective action order
between a private facility and a Federal facility. The initial
order should be sent to the responsible Federal official at the
facility, or their delegate.
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B. Issuance of a 3008(h) Order to a Government-Owned
Contractor-Operated Facility (GOCO)
As described in Part III, RCRA Compliance, Section C, DOJ
has determined that EPA has the authority to exercise all of its
Section 3008 enforcement options at GOCOs. This authority is not
limited to RCRA compliance issues under Section 3008(a). It
includes corrective action authorities under Section 3008(h) and
Section 3013 of RCRA. All CERCLA enforcement authorities apply
to GOCOs as well.
III. A FEDERAL FACILITY WITH CERCLA COMPLIANCE ISSUES
A. Section 120 Interaaency Agreements
Under Section 120 of the Comprehensive Environmental
Response Compensation and Liability Act as amended by the
Superfund Amendments and Reauthorization Act (hereinafter
referred to as CERCLA), Federal agencies must enter into an
"interagency" agreement (IAG) for all necessary remedial actions
at Federal facilities on the NPL.
The Agency is viewing the Section 120 Interagency agreement
as a comprehensive document to address hazardous substance
response activities at a Federal facility from the remedial
investigation/ feasibility study (RI/FS) through the
implementation of the remedial action. All such interagency
agreements must comply with the public participation requirements
of Section 117. The timetables and deadlines associated with the
RI/FS and all terms and conditions associated with the remedial
actions (including operable units or interim actions) are
enforceable by citizens and the States through the citizen suit
provisions of Section 310 of CERCLA. In addition, Section 122(1)
of CERCLA authorizes the imposition of civil penalties against
Federal agencies for failure to comply with interagency
agreements under Section 120. Procedures for imposing these
penalties are provided for in Section 109 of CERCLA.
B. Other CERCLA Authorities Available at Federal Facilities
EPA has the authority to issue administrative orders to
Federal agencies under Section 104 and Section 106 of CERCLA.
Section 106 orders should be used where needed to assure
compliance with Federal facility requirements for response
action. Orders under Section 104(e)(5)(A) of CERCLA can be used
to collect information and obtain access to Federal agency sites
where needed.
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Executive Order 12580 clarifies that EPA is authorized to
issue Section 104 and Section 106 administrative orders to other
Federal agencies, with the concurrence of the Department of
Justice. Section 4(e) of the Executive Order provides that:
Notwithstanding any other provision of this Order, the
authority under Section 104(e)(5)(A) and Section 106(a) of
the Act to seek information, entry, inspection, samples
or response action from Executive Departments and
agencies may be exercised only with the concurrence of the
Attorney General.
CERCLA enforcement authorities under Section 106, both
administrative and judicial, can be used against government
contractors at Federal facilities. Administrative orders against
contractors do not require concurrence of the Department of
Justice. In addition, Section I20(e)(6) provides that, if the
Administrator determines that the response actions can be done
properly at the Federal facility by another responsible party,
then the Administrator may enter into an agreement with such
party under the settlement provisions of Section 122 of the
statute. Following the approval by the Attorney General of any
such agreement relating to a remedial action, the agreement will
be entered in the appropriate United States district court as a
consent decree under Section 106 of CERCLA.
States also have a variety of enforcement authorities under
CERCLA, so the exercise of EPA's enforcement authorities should
be closely coordinated with the States. First, Section I21(e)(2)
of CERCLA authorizes States to enforce any Federal or state
standard, requirement, criteria or limitation to which the
remedial action must conform under CERCLA. Second, Section 310
authorizes citizen suits to require Federal agencies to comply
with the standards, regulations, conditions, requirements, or
orders which have become effective pursuant to CERCLA including
IAGs under Section 120 of the Act. Third, Section 120(a)(4)
clarifies that State laws concerning removal and remedial action,
including state laws regarding enforcement, are applicable at
Federal facilities not included on the NPL. In addition, Section
120(i) states that nothing in CERCLA Section 120 shall affect or
impair the obligation of the Federal agency to comply with the
requirements of RCRA, including corrective action requirements
(see section IV.C., "Importance of the States as a Party to the
IAG"). EPA enforcement actions against Federal agencies should
therefore be carefully coordinated with States, to avoid
potentially duplicative or conflicting exercises of authority.
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IV. A FEDERAL FACILITY WITH CERCLA AND RCRA ISSUES
In many cases, facilities subject to an IAG will also have
RCRA liabilities. The most common example of the RCRA/CERCLA
overlap is where a unit(s) at the facility has interim status or
a permit und&r RCRA and a portion of the facility is undergoing a
CERCLA remedial investigation.
A. Enforcement Options
When developing a comprehensive strategy for addressing both
RCRA and CERCLA issues at a Federal facility, EPA and the states
should consider the following options, alone or in combination,
as possible mechanisms for getting enforceable requirements in
place:
1. A RCRA permit
All RCRA Subtitle C permits issued after November 8, 1984,
will contain provisions for implementing the corrective
action requirements of 40 CFR Part 264 Subpart F (or
authorized state requirements), and Section 3004(u) and (v) of
RCRA. For facilities that have or are seeking a RCRA permit, the
requirements for a "CERCLA" remedial investigation and cleanup
could be met by implementing these requirements through RCRA
corrective action. It is important to keep in mind, however,
that the extent of coverage of the RCRA permit is generally
limited to hazardous wastes/constituents (e.g., some CERCLA
hazardous substances such as radionuclides are not RCRA hazardous
constituents and, therefore, the permit may not be able to
address all of the releases at a facility).
2. A RCRA Corrective Action Order
The corrective action authority under Section 3008(h) of RCRA
can be used at RCRA interim status facilities to address releases
from RCRA regulated units and other solid waste management units.
At a Federal facility that has interim status, a RCRA corrective
action order could address the investigation and clean-up of
releases in lieu of a "CERCLA" response action or as an interim
measure. .(Again, the extent of coverage in the RCRA corrective
action order is limited to RCRA hazardous wastes/constituents.)
3. Imminent and Substantial Endangerment Orders
CERCLA Section 106 can be used to address releases from RCRA
units or CERCLA sites when an "imminent and substantial
endangerment" is shown.
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4. An Interagency Agreement under Section 120 of CERCLA
A Section 120 IAG could be drafted to incorporate all RCRA
corrective action requirements and CERCLA statutory requirements.
Where some or all of a Federal installation has been listed on
the NPL, the CERCLA Section 120 IAG is required for remedial
action by statute.
The first agreement under Section 120 of CERCLA (IAG) was
finalized on August 12, 1987. The IAG at Twin Cities Army
Ammunition Plant (TCAAP) is a three party agreement between EPA,
the State of Minnesota, and the U.S. Department of the Army.
Several notable provisions that should be incorporated in every
CERCLA Section 120 IAG include a dispute resolution process that
denotes the EPA Administrator as the final decision maker, an
enforceability clause which states that provisions of the
agreement are enforceable by citizens and the State through the
citizen suit provision of Section 310 of CERCLA, and a means for
resolving both the RCRA and CERCLA requirements when both
statutes apply. Further guidance on CERCLA Section 120
agreements is being developed and will be made available to the
Regions as soon as possible. In the interim, the Regions should
consult with Headquarters on any IAG issues they encounter.
B. Strategy for Action at RCRA/CERCLA Sites
The decision on which of the above mechanisms to employ at a
Federal facility will be made on a facility specific basis.
However, if the Federal facility is on the NPL or is likely to be
placed on the NPL, I encourage the use of a Section 120 IAG to
incorporate both RCRA and CERCLA activities under one enforceable
agreement and to serve as a comprehensive plan for investigatory
and remedial activities at the facility, whether RCRA or CERCLA.
EPA, the State, and the Federal facility would agree on a
facility wide strategy, setting priorities and schedules for
action. If properly framed, the agreement would satisfy the
facility's RCRA corrective action requirements,as well as the
public participation requirements of section 117 of CERCLA and
Part 124 of RCRA. At a later date, if appropriate, corrective/
remedial action requirements found in the IAG could be incor-
porated into the RCRA permit for those facilities seeking an
operating or post-closure permit, in satisfaction of RCHA
Section 3004(u) and (v) requirements. An Interagency agreement
under Section 120 of CERCLA does not serve as the replacement for
a RCRA permit at a unit seeking an operating permit.
C. Importance of the State as a Party to the IAG
CERCLA Section 120(i) states that nothing in CERCLA Section
120 shall affect or impair the obligation of the Federal agency
to comply with the requirements of RCRA, "including the
corrective action requirements." One interpretation of CERCLA
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Section 120(i) is that the provision allows "re-cleanup" of a
release using RCRA corrective action authorities during or after
a cleanup of that release under CERCLA; this could be a problem
if a State, authorized to implement the RCRA program, contested
the technical standards of an IAG. In order to avoid arguments
over the interpretation of Section 120(i), as well as to avoid
potentially duplicative exercises of authority, I encourage the
inclusion of the State as a full signatory party for lAG's at
RCRA facilities.
A three party agreement will ensure the fol-lowing state
roles in the agreement:
0 appropriate application of state clean-up standards
0 public participation requirements
0 enforceability
0 involvement in setting priorities
0 dispute resolution
0 review and comment on technical documents
This type of agreement would resolve differences between
EPA and state requirements up front.
CONCLUSION
This memo is the first step in developing an integrated
RCRA/CERCLA Federal facility compliance and cleanup strategy.
The fundamental principle of the strategy is that there is no
difference between environmental standards for Federal facilities
and private facilities. EPA holds Federal facilities accountable
for environmental cleanup and will proceed with enforcement
actions at Federal facilities in the same way that we would
proceed at private facilities. Although the limitations of
enforcement authorities at Federal facilities have frustrated
EPA's enforcement capabilities in the past, the RCRA corrective
action requirements in combination with CERCLA authorities under
Section 106 and Section 120 provide many options for achieving
cleanup at Federal facilities.
I have recently established a Federal Facilities Compliance
Task Force within OWPE which is dedicated to achieving compliance
and cleanup at Federal facilities. The Task Force will be
working closely with the CERCLA Enforcement Division and RCRA
Enforcement Division of OWPE, other offices within Headquarters,
and the Regions to develop guidance and policy regarding Federal
facilities, to resolve difficult issues that arise from EPA's
negotiations with Federal facilities, to track ongoing
negotiations between EPA and Federal agencies, to pinpoint areas
10
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for potential enforcement response, and to relay the Agency's
efforts at resolving compliance, corrective action and permitting
issues at Federal facilities.
I am requesting that you forward any Federal Facility
Compliance Agreements, Interagency Agreements, etc., that you are
negotiating With Federal facilities in your Region to Gene A.
Lucero, Director of the Office of Waste Programs Enforcement
(Mail Code: WH-527).
As I mentioned earlier, the Task Force will'be working with
the Regions to pinpoint areas for possible enforcement action.
As DOJ has encouraged EPA to take appropriate enforcement actions
at GOCOs, the Task Force is interested in GOCO candidates for an
enforcement action under RCRA or CERCLA. I am polling the
Regions for suggestions of Federal facilities where the need for
an enforcement action is imminent and there is a clear means of
establishing the contractor as the operator. We will provide
Headquarter's support for the development of the order and
throughout the negotiation process.
If you have any questions regarding this memorandum or
recommendations of candidates for potential enforcement actions,
please contact Christopher Grundler, Director of the Federal
Facilities Compliance Task Force at FTS 475-9801. Questions can
also be directed to Jacqueline Thiell of the the Task Force at
FTS 475-8727.
Attachments
cc:
Gene Lucero, OWPE
Roger Marzulla, DOJ
Henry Longest, OERR
Tom Adams, OECM
Marcia Williams, OSW
Frank Blake, OGC
Richard Sanderson, OFA
Hazardous Waste Management Division Directors, Regions I-X
Regional Counsels, Regions I-X
CERCLA Branch Chiefs, Regions I-X
RCRA Branch Chiefs, Regions I-X
Federal Facility Coordinators
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ATTACHMENT I
Summary of the Department of Justice Testimony
on Federal Facilities
Before the House Oversight Committee, April 28, 1987
On April 23, 1987 the Subcommitte on Oversight and
Investigations of the Committee on Energy and Commerce held a
hearing on the implementation of the RCRA and CERCLA programs
at Federal facilities. The primary issue that was discussed
during the Congressional hearing was whether EPA could issue
administrative orders to Federal facilities under FCRA
(particularly §3008). DOJ has determined that EPA does not
have the authority to issue an order under RCRA §3008(a)
to a Federal facility. DOJ's argument, which is based on
statutory and constitutional concerns, is as follows:
Within RCRA, compliance orders may be issued to persons
under §3009(a). Congress did not define "person" to include
the 'J. 3. government or any instrumentality. Rather, it directed
that Federal facilities:
"Shall be subject to, and comply with,
all Federal, State, interstate and local
requirements, both substantive and procedural;
(including any requirement for permits
or reporting or any provisions for
injunctive relief and such sanctions as
may be imposed by a court to enforce
such relief) respecting control and
abatement of solid waste and hazardous
waste disposal in the same manner, and
to the same extent, as any person is
subject to such requirements, ..." [§6001
Resource Conservation and Recovery Act]
Section 6001 is in effect the RCRA waiver of sovereign immunity.
As prior case law establishes, such waivers are construed
narrowly.
As to the use of §3008, DOJ reasoned that the
issue hinged on whether §3008 orders are "requirements" of
PCRA. DOJ concluded that §3008(a) orders are not requirements,
rather they are a "means of enforcing requirements." Therefore,
Z?\ cannot issue an order under the authority of §3008(a)
a:ainst a Federal facility. Moreover, even if Congress were to
correct this limitation by amending §6001 or the definition of
"person", DOJ maintains that EPA cannot issue an order against
another arm of the Executive Branch without the opportunity for
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Presidential review before the order is final and effective.
These "unilateral" orders violate the constitutional principle
of unitary responsibility within the Executive Branch. Loosely
translated, DOJ argued that the President must have the unfettered
right to settle disputes within the Executive Branch. The problem
with a §3008(a) order, DOJ says, is that since it is immediately
enforceable in court under §7002, the citizen suit provision of
RCRA, the President loses control of the Executive Branch.
DOJ does view §3008(h) orders for corrective action as
involving permit requirements and therefore statutorily
permissible. DOJ bases this determination on the specific
parenthetical reference to permits in RCRA S6001 and concludes
that corrective action in any form (e.g., §3004(u) and (v),
§3003(h), §3013) is integral to the permitting process.
DOJ stated that EPA had the authority to issue administra-
tive orders to other Federal agencies under CERCLA section 106
since the statutory term "facility" found in 42 U.S.C. 9609(a)
is very broadly defined and encompasses Federal facilities.
However, since all section 106 authority is vested in the
President, the President's delegation as found in Executive
Order 12530 requires the concurrence of the Attorney General
when orders are being issued to other executive agencies.
This same process applies to orders issued to Federal facilities
under section 104(e)(5)(A) for the collection of information
and to obtain access to Federal agency sites where needed.
On the topic of government-owned contractor-operated
facilities, DOJ stated that they saw no constitutional or
statutory problem to asserting §3008 authority (or any other
authority) against the operator of these facilities. This means
that EPA and the states have the ability to issue the full range
of enforcement actions under RCPA and CERCLA at GOCOS.
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ATTACHMENT 2
NOTICE OF NCNCCMPLIANCE
FOR FEDERAL FACILITIES
This NOTICE OF NONCCMPLIANCE, COMPLIANCE SCHEDULE and NOTICE OF
NECESSITY FOR CONFERENCE (Notice), is issued under the Resource Conservation
and Recovery Act, (RCRA) and further amended by the Hazardous and Solid
Waste Amendments. This Notice is issued consistent with Executive Order
12088, Federal Compliance With Pollution Control Standards. The authority
to issue this Notice has been delegated by the Administrator of the U.S.
Environmental Protection Agency to the Regional Administrator of EPA
Region ^.and further delegated to the Director, Waste Management Division,
EPA Region (Complainant).
Complainant is issuing this Notice to the U.S.
(Respondent) as a result of (an inspection on (date)/the
review of relevant documents or other information/a referral for action
from the State of ) which provides evidence that Respondent
has violated or is in violation of one or more requirements of Subtitle C
of RCRA and the regulations promulgated thereunder concerning the management
of hazardous waste.
Pursuant to Section 6001 of RCRA, the Respondent as a (department/agency)
of the executive branch of the Federal government and (generator of
hazardous waste/owner or operator of a hazardous waste management facility)
is subject to and must comply with both Federal and the State of
's requirements, including regulations and permit conditions
pertaining to the management of hazardous waste in the same manner and to
the same extent as any person (as defined in Section 1004(15) of RCRA) is
subject to such requirements.
Section 7002 of RCRA provides for citizens suits against any person
(including the United States) who is alleged to be in violation of any
permit, standard, regulations, condition, requirements, prohibition or
final order of RCRA. In addition, any person as defined in Section
§1004(15) of RCRA, including any individual that may be responsible for
the hazardous waste management activities at the facility, who has violated
or is violating any requirement of Subtitle C of RCRA or who knowingly
violates any material condition or requirement of a RCRA permit or interim
status regulations or standards maybe subject to administrative, civil
and/or criminal sanctions under Section 3008.
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- 2 -
In ordemto return to compliance, Respondent must implement the
actions prescribed in Section _i (Title of Section) of this
Notice within the timeframes stipulated (subject of negotiation). Two
possible alternatives to implementing the prescribed actions are (1) the
seeking of a Presidental exemption pursuant to Section 6001 of RCKA or
(2) the petitioning of Congress for specific legislative relief. [Note:
Noncompliance with certain statutory or regulatory requirements of
RCRA (e.g., Section 3005(e)(2)/40 C.F.R. 270.73(c) may require that the
Respondent immediately cease the addition of hazardous waste to or the
management of hazardous waste in the affected unit(s) or at the entire
facility and that there is no action which the facility can take to
return to compliance].
Within 15 days of the receipt of this Notice of Noncompliance/
Violation, the Respondent must submit to EPA a written response describing
the Respondent's efforts to comply with the violations outlined in this
Notice. The Respondent must also identify a date for a settlement con-
ference between the Respondent and the U.S. EPA. This response should
be sent to (identify person to receive response).
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ATTACHMENT 3
MODEL ENFORCEABILITY CLAUSE
FOR FEDERAL FACILITY COMPLIANCE AGREEMENTS
The [Department/Agency] recognizes its obligations to comply
with RCRA as set forth in Section 6001 of RCRA.. •
The provisions of this Agreement including those related to
statutory requirements, regulations, permits, closure plans, or
corrective action, including recordkeeping, reporting and
schedules of compliance, shall be enforceable under citizen suits
pursuant to 42 U.S.C. 6972(a)(1)(A), including actions or suits
by the State and its agencies. The [Department/Agency] agrees
that the State and its agencies are a "person" within the meaning
of Section 7002(a) of RCRA.
In the event of any action filed under Section 7002(a) of
RCRA alleging any violation of any such requirement of this
Agreement, it shall be presumed that the provisions of this
Agreement including those provisions which address recordkeeping,
reporting, and schedules of compliance are related to statutory
requirements, regulations, permits, closure plans, or corrective
action, and are thus enforceable under Section 7002(a) of RCRA.
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ATTACHMENT 4
MODEL LANGUAGE FOR
DISPUTE RESOLUTION
Except as specifically set fortn elsewhere in this
Agreement, if a dispute arises under this Agreement the
procedures of this Part shall apply. In addition, during the
pendency of any dispute, the [Department/Agency] agrees that it
shall continue to implement those portions of this Agreement
which are not in dispute and which U.S. EPA and [State] determine
caa b* reasonably implemented: pending final caaolut-.ion of th*
issue(s) in dispute. If U.S. EPA and [State] determine that aii
or part of those portions of worJc which are affected by the
dispute should stop during the pendency of the dispute, the
[Department/Agency] shall discontinue implementing those portions
of the worJc.
All Parties to this Agreement shall maJce reasonable efforts
to informally resolve disputes at the Project Manager or
immediate supervisor level. If resolution cannot be achieved
informally, tfte procedures of this- Part shall be implemented to
resolve a dispute.
A. Within thirty (30) days of the date of any action by
U.S. EPA or [State] which leads to or generates a dispute, the
[Department/Agency] shall submit to U.S. EPA and [State] a
written statement of dispute setting- forth the nature of the
dispute, the [Department/Agency's] position with respect to tne
dispute and the information the [Department/Agency] is relying
upon to support its position. If the [Department/Agency] does
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not provide such written statement to U.S. EPA and [State] within
this thirty (30) day period, the [Department/Agency] shall be
deemed to have agreed with the action taJcen by U.S. EPA or
[StatAj which Led. to or generated the dispute.
8. Where U.S. EPA or [State] issue a Written Notice of
Position, any other Party which disagrees with the- written Notice
of Position may provide the issuing Party with a written
statement of dispute setting forth the nature of the dispute,
its position with respect to the dispute and the information it
is relying upon to support its position. If no other Party
provides such a written statement of dispute within thirty (30)
days of receipt of the Written Notice of Position, the Parties
shall be deemed to have agreed with the Written Notice of
Position.
C. Upon receipt of the written statement of dispute, the
Parties shall engage in dispute resolution among the Project
Managers and/or their immediate supervisors. The Parties shall
have fourteen (14) days from the receipt by the U.S. EPA and
[State! of the written statement of dispute to resolve the
dispute. During this period the Project Managers shall meet as
many tints as are necessary to discuss and attempt resolution of
the dispute. If agreement cannot be reached on any issue within
this fourteen (14) day period any Party may, within ten (10) days
of the conclusion of the fourteen tl*) day dispute resolution
period, submit * written notice to the Parties escalating the
dispute to the Dispute Resolution committee (DRC) for resolution.
If no Party elevates the dispute to the DRC within this ten (10)
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F. The U.S. EPA representative on the DRC is the Waste
entDivision Director of U.S. EPA's Region . [state's]
designate* M)frer is the [State's equivalent position]. The
[Department/Agency'5] designated, member is the.
[Department/Agency's equivalent position]. Notice of any
delegation, of authority from a Party's designated representative
on the DRC shall be provided to all other Parties pursuant to the
procedures of Part XX.
G. The pendency of any dispute under this Part shall not
affect the [Department/Agency's] responsibility for timely
yer for nuuic'01 of trite? wcrtc required 6y dtts Agreement?, except tltac
the time period for completion of worfc affected by such dispute
shall be extended for a period of time not to exceed the actual
time taJcen to resolve any good faith dispute in accordance with
the procedures specified herein. All elements of the worx
required by this Agreement which are not affected by the dispute
shall continue and be completed in accordance with the applicable
schedule. The determination of elements of work, Submittals or
actions affected by the dispute shall be determined by U.S. EPA
and shall not sufcjece to dispute under this Part.
H. Within fourteen (14) days of resolution of a dispute
pursuant to the procedures specified in this Part, the^
[Department/Agency] shall incorporate the resolution and final
determination into the appropriate plan, schedule or procedures
and proceed to implement this Agreement according to the amended
plan, schedule or procedures.
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I. Resolution of a dispute pursuant to tnis Part of the
atnir constitutes a final resolution of any dispute arising
und*r tal* **x«.«»«nt. The [Department/Agency] snail aside by all
terms and conditions of any final resolution of dispute obtained
pursuant to tnis Part of tnis Agreement.
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ATTACHMENT 5
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 204«0
JJN24I9ST
SOLi
SUBJECT: Oetermirrat iorr of Operator at Government-Owned
Contjrtcj:or-epj»c«t«d (GOCO) Facilities
FROM: Gerte A. Lucero//Director
Office of Wastef Programs Enforcement
Marcia E. v"' ' ''
Office of S
TO: Waste Management Division Directors
Regions I - X
The purpose of this memorandum is to clarify who should
si^n as the operator on permit applications for Government-
Owned Contractor-Operated (GOCO) facilities. Earlier guidance
(see attached memo) had recommended that the Regional office
consider the role of the contractor in the operation of the
facility before determining who should sign the permit appli-
cation. We also noted that in some cases where the contractor's
role is less precisely defined the Region should exercise
ju^-jnent given the factual situation.
It appears that there is still some confusion regarding
signatories for permit applications. Whenever a contractor or
contractors at a government-owned facility/ are responsible or
Dart tally responsible foe the operation, management or oversight
of hazardous waste activities at the facility; they should sign
t.h.e permit as the op«rator( s). In some instances both the
Federal agency and the contractor( s) are the operators and
multiple signatures to that effect would be appropriate. A
review of the* facility's operating records/ contingency plans/
oersonnel training records, and other documents relating to waste
management should indicate who the operator(s) are. As a general
rule/ contractors will meet this test and therefore in most
situations should be ceqxiiced to sign the permit application.
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If you hav« any questions please contact Jim Michael, Office of
Solid Wait* at PTS- 382-2231 or Anna Duncan, Office of Waste Programs
Enforcement at FTS 332-4829.
Bruc* Reddle, OSW
Elaine Stanley, OWPE
Chris Grundler, OSWER
Matt Hale, PSPO
Federal Taciliey Coordinators, Re-giorr I-X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 24 1988
MEMORANDUM
SUBJECT: Elevation Process for Achieving Federal Facility
Compliance U*ider_RCRA
FROM: J. Winston Porter, Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Regional Administrators
Regions I-X
In my memorandum of January 25, 1988 I outlined the various
enforcement mechanisms tnat EPA is able to use at Federal
facilities under RCRA and CERCLA. the purpose of this memorandum
is to set forth an elevation process x'or settling disputes
between EPA and a Federal agency to assure that compliance
agreements are settled in a timely fashion.
BACKGROUND
The Federal Facilities Compliance Task Force recently
collected RCRA compliance information from the Regional offices
in preparation for a Congressional Hearing before the
Subcommittee on Transportation, Tourism, and Hazardous Materials.
This information consistently showed that in cases where EPA had
the enforcement lead at a Federal facility, negotiations between
EPA and the Federal facility on the terms of a FFCA had been
ongoing for extended periods of time. In some cases,
negotiations between EPA and the Federal facility had exceeded
the two year mark. Many Regions have expressed frustration in
their apparent inability to compel the conclusion of these
negotiations.
At the Hearing I expressed concern over the length jf time
it was taking to conclude settlement negotiations for compliance
agreements at Federal facilities. I also described a process
that the agency was developing for .?vating disputes between EPA
and Federal facilities to Headquarters for resolution. This
elevation process for resolving disputes between EPA and a
Federal facility when negotiations for a Federal Facility
Compliance Agreement are not concluded'in a timely fashion is
described below. This process clearly would not apply if the
initial enforcement action was taken against the contract-
operator of a government-owned facility (GOCO).
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NEGOTIATION AND ELEVATION PROCESS
As described in the January 25, 1988 memorandum, EPA win
issue a Notice of Noncompliance (NOW) to a Federal facility as
the initial notification of RCRA class 1 violation(s) that are
classified as high priority. The NOW should be consistent with a
RCRA 3008(a) complaint in format and content. The timeframes for
the issuance of the NOW should be in accordance with the RCRA
Enforcement Response Policy for timely and appropriate
enforcement actions.
The followup to a Notice of Noncompliance is the development
of a Federal Facility Compliance Agreement (FFCA). The FFCA at a
Federal facility is parallel to a final order at a private
facility. It should contain a schedule of discrete actions for
returning the facility to compliance. In addition to the
provisions usually found in a final order under RCRA Section
3008(a), the r~ ' trust include an enforceability clause that is
identical to the model language found in the January 25, J38G
memorandum and the model dispute resolution language for
settling disputes within the context of implementing the
compliance agreement.
After the issuance of a Notice of Noncomplianee, the period
for negotiating a Federal Facility Compliance Agreement should
not exceed one hundred twenty (120) days. At day ninety (90),
the Region should evaluate whether negotiations will be concluded
within the next thirty days. If it appears that negotiations are
close to settlement, the Region should aggressively pursue the
finalization of the agreement within that thirty day period.
If it does not appear at day ninety (90) that negotiations
for the FFCA will be completed within the following thirty days,
the Region should refer the dispute to Headquarters for final
resolution. The dispute should be formally referred to the
Assistant Administrator for the Office of Solid Waste and
Emergency Responte within thirty (30) days of the expiration of
the ninety day negotiation period. A notification of the
elevation to Headquarters should also be sent to the Assistant
Administrator for the Office of External Affairs and the
Assistant Administrator for the Office of Enforcement and
Compliance Monitoring. At the time of referral, the Region
should consider issuing a press release on the compliance status
of the facility.
WTien a dispute is elevated to Headquarters for resolution,
the referral package should consist of a chronology which details
the correspondence between the regional office and the Federal
facility regarding the compliance status of the facility. The
chronology should highlight the Region's efforts at reaching
agreement with the facility. The referral package must also
include a description of the specific issues in the FFCA that
remain unresolved and the position of both the regional office
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and the Federal facility on these issues. Any background
documents that substantiate the dispute(s) should also be
included in the package.
My discussions and/or meetings with the equivalent
representative from the Headquarter's office of the affected
Federal agency to resolve the dispute shall take place for a
period not to exceed thirty (30) days. Regional representatives
may be asked to participate in these discussions. In any case,
Headquarters will keep the Region apprised of the status of
discussions. If the dispute is not resolved within the thirty
(30) day period, the dispute will be elevated to the EPA
Administrator and his Federal agency counterpart for resolution.
CONCLUSIONS
I would like to reiterate my request in the January 25, 198&-
enforcement guidance to send copies of all Federal Facility
Notices of Noncompliance and draft and final Federal Facility
Compliance Agreements co \_he Federal Facility Compliance Task
Force. The Task Force is reviewing the draft FFCAs to ensure
that EPA's enforcement approach at Federal facilities is
nationally consistent. Collection and review of this information
will keep the Task Force up-to-date on Federal facility
compliance issues. Copies of correspondence that indicate the
lack of progress in negotiations between EPA and the Federal
facility for an FFCA should also be forwarded to Headquarters.
This information will allow the Task Force to anticipate the
elevation of a case to Headquarters for resolution.
Let me close by noting that timely escalation of disputes is
import a.;-, to ensure compliance at Federal facilities. I urge you
to apply these timeframes seriously and to communicate them to
the Federal agency during the early stages of the negotiation of
an FFCA. Federal facility compliance with the hazardous waste
laws and regulations is one of my highest priorities. I would
appreciate your full support in implementing this elevation
process. If you or your staff have any questions, please contact
Christopher Grundler, Director, Federal Facilities Compliance
Task Force, Office of Waste Procrams Enforcement, or Jacqueline
Thiell of his staff.
cc: Hazardous Waste Management Division Directors, Regions I -X
Regional Counsels, regions I-x-
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APPENDIX L
POLICY ON PUBLICIZING
ENFORCEMENT ACTIONS
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
AUG -A 1987
MEMORANDUM
SUBJECT:
FROM:
TO:
Addendum to GM-46: Policy on Publicizing
Enforcement Activities
Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
Jennifer Joy Wil
Assistant Admi
or External Affairs
tors
Assistant Admi
General Counse.
Inspector General
Regional Administrators
Office of Public Affairs
(Headquarters and Regions I-X)
Regional Counsel (I-X)
I.
ISSUE
Significant differences can exist between civil penalties
proposed at the initiation of enforcement cases and the final
penalties to be paid at the conclusion of such matters. This
memorandum provides guidance on addressing the issue of the
"penalty gap" where the difference between the proposed and
final penalty is appreciable. EPA must avoid any public misper-
ception that EPA is not serious about enforcement when such
differences occur.
II. DISCUSSION
Attached is an "Addendum to the EPA Policy on Publicizing
Enforcement Activities", GM-46, issued November 21, 1985. The
Addendum provides standard text to be included in any press
release announcing the settlement of an enforcement case in
which the penalty amount finally assessed differs appreciably
from the amount proposed.
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-2-
Press releases issued at the filing of cases normally
state the amount of the civil penalty being sought by the
Agency. The proposed penalty may be the maximum statutory
amount allowable under applicable law, or a penalty amount
as calculated by application of an Agency penalty policy which
assigns specific penalties to various violations of law.
When a case is settled, however, the penalty to be paid
by the violator is oftentimes appreciably less than the
penalty sought by the Agency at the initiation of the action.
Members of the public may question any difference between
these two amounts, especially persons who are not familiar with
the laws, regulations, and published policies of the Agency.
The Addendum points out that a number of mitigating factors
can result in a penalty adjustment, and that Congress on occasion
has dictated that EPA take into account such factors in determin-
ing the amount of a civil penalty (e_.g_. , TSCA §16, 15 U.S.C.
2615).
Attachment
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EPA POLICY ON PUBLICIZING ENFORCEMENT ACTIVITIES
I. PURPOSE
This memorandum establishes EPA policy on informing the
public about Agency enforcement activities. This policy is
intended to improve EPA communication with the public and the
regulated community regarding the goals and activities of the
Agency's enforcement program. Appropriate publication of EPA
enforcement efforts will both encourage compliance and serve as
a deterrent to noncompliance. The policy provides for consistent
public outreach among headquarters and regional offices.
II. STATEMENT OF POLICY
It is the policy of EPA to use the publicity of enforcement
activities as a key element of the Agency's program to deter
noncompliance with environmental laws and regulations. Publicizing
Agency enforcement activities on an active and timely basis informs
both the public and the regulated community about EPA's efforts
to promote compliance.
Press releases should be issued for judicial and administrative
enforcement actions, including settlements and successful rulings,
and other significant enforcement program activities. Further,
the Agency should consider employing a range of methods of
publicity such as press conferences and informal press briefings,
articles, prepared statements, interviews and appearances at
seminars by knowledgeable and authorized representatives of the
Agency to inform the public of these activities. EPA will work
closely with the states in developing publicity on joint enforcement
activities and dn supporting state enforcement efforts.
III. IMPLEMENTATION OF POLICY
A. When to Use Press Releases I/
1 . Individual Cases
It is EPA policy to issue press releases when the Agency:
(1) files a judicial action or issues a major administrative
order or complaint (including a notice of proposed contractor
listing and the administrative decision to list); (2) enters
into a major judicial or administrative consent decree or files
a motion to enforce such a decree; or (3) receives a successful
court ruling. In determining whether to issue a press release,
iy The term "press release" includes the traditional Agency press
r"elease, press advisories, notes to correspondents and press
statements. The decision on what method should be used in a given
situation must be coordinated with the appropriate public affairs
^ffice(s ) .
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-2-
EPA personnel will consider: (1) the amount of the proposed
or assessed penalty (e.g., greater than $25,000); (2) the significance
of the relief sought or required in the case, and its public
health or environmental impact; (3) whether the case would
create national or program precedence; and (4) whether unique
relief is sought. However, even enforcement actions that do not
meet these criteria may be appropriate for local publicity in
the area where the violative conduct occurred. Where appropriate,
a single press release may be issued which covers a group or
category of similar violations.
Where possible, press releases should mention the environmental
result desired or achieved by EPA's action. For example, where
EPA determines that a particular enforcement action resulted (or
will result) in an improvement in a stream's water quality, the
press release should note such results. In addition, press
releases must include the penalty agreed to in settlement or
ordered by a court.
Press releases can also be used to build better relationships
with the states, the regulated community, and environmental groups.
To this end, EPA should acknowledge efforts by outside groups to
foster compliance. For example, where a group supports EPA
enforcement efforts by helping to expedite the cleanup of a
Superfund site, EPA may express its support for such initiatives
by issuing a press release, issuing a statement jointly with the
group, or conducting a joint press conference.
2. Major Policies
In addition to publicizing individual enforcement cases, EPA
should publicize major enforcement policy statements and other
enforcement program activities since knowledge of Agency policies
by the regulated community can deter future violations. Such
publicity may include the use of articles and other prepared
statements on enforcement subjects of current interest.
3. Program Performance
Headquarters and regional offices should consider issuing
quarterly and annual reports on Agency enforcement efforts.
Such summaries present an overview of the Agency's and Regions'
enforcement activities; they will allow the public to view
EPA's enforcement program over time, and thus give perspective
to our overall enforcement efforts. The summaries should cover
trends and developments in Agency enforcement activities, and
may include lists of enforcement actions filed under each statute.
The Office of Enforcement and Compliance Monitoring1s (OECM)
Office of Compliance Analysis and Program Operations, and the
Offices of Regional Counsel will assist the Public Affairs Offices
in this data gathering. Public Affairs Offices can also rely on
the figures contained in the Strategic Planning Management System.
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\
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOV 2 | 1985
MEMORANDUM
SUBJECT:
FROM:
TO:
Policy on Publicizing Enforcement Activities
i Publicizing Enror
M. Price V^ji/uwU-^
Courtney
Assistant Administrator for Enforcement
and Compliance Monitoring
Jennifer Joy Manso
Assistant Adminis
Assistant Admi
General Counse
Inspector General
Regional Administrators
Office of Public Affairs
(Headquarters and Regions I-X)
Regional Counsel (l-X)
Attached is the EPA Policy on Publicizing Enforcement
Activities, a joint project of the Office of Enforcement and
Compliance Monitoring and the Office of Public Affairs. The
document establishes EPA policy on informing the public about
Agency enforcement activities. The goal of the policy is to
improve communication with the public and the regulated community
regarding the Agency's enforcement program, and to encourage
compliance with environmental laws through consistent public
outreach among headquarters and regional offices.
To implement this policy, national program managers and
public affairs directors should review the policy for the purpose
of preparing program-specific p_r.oc_edures_where appropriate.
Further, program managers should consider reviewing the implemen-
tation of this policy in EPA Regional Offices during their regional
program reviews. These follow-up measures should ensure that
publicity of enforcement activities will constitute a key element
of the Agency's program to deter environmental noncompliance.
Attachment
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ADDENDUM TO EPA POLICY ON PUBLICIZING ENFORCEMENT ACTIVITIES,
GM-46, ISSUED NOVEMBER 21, 1985
I. PURPOSE
This addendum to the EPA Policy on Publicizing Enforcement
Activities, GM-46, issued November 21, 1985, provides standard
text which should be included in EPA press releases which
announce the settlement of an enforcement case in which the
final penalty is appreciably less than the proposed penalty.
The purpose of the text is to preclude any public misper-
ception that EPA is not serious about enforcement when these
appreciable differences occur.
II. BACKGROUND
Congress has directed the Agency in certain instances to
consider specific mitigation factors in assessing a final penalty
Accordingly, the Agency regularly takes into account such factors
as the gravity of the violation(s), the violator's compliance
history, and its degree of culpability—in addition to weighing
such litigation concerns as the clarity of the regulatory
requirements and the strength of the government's evidentiary
case—when negotiating a civil penalty amount as part of a
settlement agreement. Guidance for applying mitigating adjust-
ment factors is^ included in the Agency's published penalty
policies.
III. POLICY
Since it is the policy of EPA to use publicity of enforcement
activities as a key element in the Agency's program to promote
compliance and deter violations, public awareness and accurate
perceptions of the Agency's enforcement activities are extremely
important.
Appreciable differences between civil penalty amounts
proposed at the commencement of enforcement cases and the final
penalty sums to be paid at the conclusion of such matters may be
erroneously perceived as evidence that EPA is not serious about
enforcing the Nation's environmental laws. Consequently, such
differences should be explained and accounted for in the Agency's
communications to the public.
It is the policy of EPA that when press releases are issued
to announce the settlement of enforcement cases in which the
settlement penalty figure is appreciably less than the initially
proposed penalty amount, such releases should include standard
text (see Section IV, p.2) to ensure that the general public is
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-2-
adequately informed of the analysis behind the final
penalty amount, and the reasons justifying the penalty
reduction. The release should also describe any environ-
mentally beneficial performance required under the
terms of the settlement which goes beyond actions being
taken simply to come into compliance.
IV. IMPLEMENTATION OF POLICY
When a press release is issued at the settlement of an
enforcement action, any such press release that includes the
announcement of a final penalty assessment which is appreciably
different from the penalty proposed at the outset of the case
should include the following standard text:
"The civil penalty in this action was the
product of negotiation after careful consideration
by the government of the facts constituting the
violation, the gravity of the misconduct, the
strength of the government's case, and established
EPA penalty policies.
[NOTE: Include the following paragraph only in cases
involving environmentally beneficial
performance.]
"In agreeing to this $ penalty, the
government recognizes the contribution to long-term
environmental protection of [briefly summarize here
the environmentally beneficial performance explained
in detail in the body of the release]."
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4. Press Releases and Settlement Agreements
.EPA has, on occasion, agreed not to issue a press release
as part of a settlement agreement. EPA should no longer agree
to a settlement which bars a press release or which restricts
the content of a press release. On January 30, 1985, the Deputy
Administrator issued an abbreviated press release policy, which
stated in pertinent part that: "It is against EPA policy to
negotiate the agency's option to issue press releases, or the
substance of press releases, with parties outside of EPA,
particularly those parties involved in settlements, consent
decrees or the regulatory process." This policy will help to
ensure consistency in the preparation of press releases and
equitable treatment of alleged violators.
B. Approval of Press Releases
EPA must ensure that press releases and other publicity
receive high priority in all reviewing offices. By memorandum
dated August 23, 1984, the Office of External Affairs directed
program offices to review and comment on all press releases
within two days after the Office of Public Affairs submits its
draft to the program office; otherwise concurrence is assumed.
This review policy extends to OECM and the Offices of Regional
Counsel for enforcement-related press releases.
C. Coordination
1. Enforcement, Program, and Public Affairs Offices
More active use of publicity requires improved coordination
among regional .and headquarters enforcement attorneys, program
offices and public affairs offices. The lead office in an
enforcement case, generally the regional program office in an
administrative action and the Office of Regional Counsel or OECM
in a judicial action, should notify the appropriate Public Affairs
Office at the earliest possible time to discuss overall strategy
for communicating the Agency's action (e.g., prior notice to
state or local officials) and the the timing of a press release.
The lead office should stay in close contact with Public Affairs
as the matter approaches fruition.
2. Regional and Headquarters Offices of Public Affairs
Regional and headquarters Public Affairs Offices should
coordinate in developing press releases both for regionally-based
actions that have national implications and for nationally managed
or coordinated enforcement actions. Whenever possible, both
regional and headquarters offices should send copies of draft
press releases to their counterparts for review and comment.
Both such offices should also send copies of final releases to
their counterparts.
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-4-
3. EPA and DOJ
EPA can further improve the timeliness and effectiveness
of its press releases regarding judicial actions by coordinating
with DOJ's Office of Public Affairs. When an EPA Office of
Public Affairs decides that a press release in a judicial enforce-
ment case is appropriate, it should notify DOJ or the appropriate
U.S. Attorney's Office to ensure timeliness and consistency in
preparation of press releases. DOJ has been requested to notify
OECM when DOJ intends to issue a release on an EPA-related case.
EPA's Office of Public Affairs will immediately review such
draft releases, and, if necessary to present the Agency's position
or additional information, will prepare an Agency release.
4. EPA and the States
Another important goal of this policy is to encourage
cooperative enforcement publicity initiatives with the states.
The June 26, 1984, "EPA Policy on Implementing the State/Federal
Partnership in Enforcement: State/Federal Enforcement 'Agree-
ments,'" describes Xey subjects that EPA should discuss with
the states in forming state-EPA Enforcement Agreements. The
section on "Press Releases and Public Information," states that
the "Region and State should discuss opportunities for joint
press releases on enforcement actions and public accounting of
both State and Federal accomplishments in compliance and enforce-
ment." Further, as discussed in the subsequent January 4, 1985,
Agency guidance on "Implementing Nationally Managed or Coordinated
Enforcement Actions," the timing of state and EPA releases
"should be coordinated so that they are released simultaneously."
Accordingly, EPA Public Affairs Offices should consult
with the relevant state agency on an EPA press release or
other media event which affects the State. EPA could offer
the State the option of joining in a press release or a press
conference where the State has been involved in the underlying
enforcement action. Further, EPA-generated press releases and
public information reports should acknowledge and give credit
to relevant state actions and accomplishments when appropriate.
Finally, it is requested that EPA Public Affairs Offices
send the State a copy of the EPA press release on any enforcement
activity arising in that state.
D. Distribution of Press Releases
The distribution of EPA press releases is as important as
their timeliness. Press releases may be distributed to the local,
national, and trade press, and local and network television
stations. ^^
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-5-
1. Local and National Media
EPA must "direct" its press releases to ensure that the
appropriate geographical areas learn about EPA enforcement
activities. To accomplish this goal, the appropriate Public
Affairs Office should send a press release to the media and
interest groups in the affected area, i.e., the local newspaper
and other local publications, television and radio stations, and
citizen groups. The headquarters Public Affairs Office, in con-
junction with the appropriate regional office, will issue press
releases to the national press and major television networks
where an EPA enforcement activity has national implications.
2. Targeted Trade Press and Mailing Lists
The Agency must also disseminate information about enforce-
ment activities to affected industries. Sending a press release
to relevant trade publications and newsletters, particularly for
a significant case, will put other potential violators on
notice that EPA is enforcing against specific conduct in the
industry. It is also useful to follow up such press releases
with speeches to industry groups and articles in relevant trade
publications, reinforcing the Agency's commitment to compliance.
To ensure the appropriate distribution of publicity, we are
requesting each of the regional Public Affairs Offices, in coopera-
tion, with the Regional Counsels and regional program offices, to
establish or review and update their mailing lists of print media,
radio and television stations, state and local officials, trade
publications, and business and industry groups for each of the
enforcement pro-grams conducted in the Regions.
E. Use of Publicity Other Than Press Releases
EPA headquarters and regional offices have generally relied
on press releases to disseminate information on enforcement
activities. Other types of enforcement publicity are also
appropriate in certain instances.
1. Press Conferences and Informal Press Briefings
Press conferences can be a useful device for highlighting
an enforcement activity and responding to public concerns in a
specific area. Regional Administrators should consider using
press conferences to announce major enforcement actions and to
elaborate on important simultaneously issued press releases.
Press conferences should also be considered where an existing or
potential public hazard is involved. The regional Public Affairs
Office should always inform the headquarters Public Affairs
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-6-
Office when it decides to hold a press conference to provide an
opportunity for the Administrator's advance knowledge and involve-
ment if necessary.
2. Informal Meetings with Constituent Groups
To further supplement EPA efforts to inform the public and
regulated community, regional offices should meet often with
constituent groups (states, environmental groups, industry, and
the press) to brief these groups on recent enforcement developments.
These meetings can be organized by the Public Affairs Offices.
By informing the public, EPA increases public interest in its
enforcement program and thereby encourages compliance.
3. Responding to Inaccurate Statements
EPA should selectively respond to incorrect statements made
about EPA enforcement activities. For example, EPA may want to
respond to an editorial or other article which inaccurately
characterizes EPA enforcement at a Superfund site with a "letter
to the editor." Where an agency response is deemed to be
appropriate, it should promptly follow the inaccurate statement.
4. Articles and Prepared Statements
EPA's Public Affairs Offices and the Office of Enforcement
and Compliance Monitoring occasionally prepare articles on various
aspects of the Agency's enforcement program. For example, Region I
issues a biweekly column to several newspapers in the Region
covering timely enforcement issues such as asbestos in schools.
We encourage all regional and headquarters offices to prepare
feature articles on enforcement issues. When the regional office
is developing an article on a subject with national implications,
it should contact the headquarters Office of Public Affairs to
obtain a possible quote from the Administrator and to discuss
whether the article should be expanded to a national perspective.
Likewise, appropriate regions should be consulted in the preparation
of headquarters articles or statements which refer to actions of or
facilities in particular regions.
5. Interv Jews
In some cases, headquarters and regional Public Affairs
Offices should consider arranging media interviews with the
Regional Administrator, Deputy Administrator, the Administrator,
or other EPA officials. Such an interview will reflect the
Agency's position on a particular enforcement activity or
explain EPA's response to an enforcement problem.
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SEPA
United States
Environmental Protection
Agency
Office of
Federal Activities
Washington, D.C.
April 1989
Generic Protocol for
Environmental Audits
at Federal Facilities
-------
OFFICE OF FEDERAL ACTIVITIES
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
Generic Protocol for
Environmental Audits
at Federal Facilities
FINAL
APRIL 1989
-------
GENERIC PROTOCOL FOR ENVIRONMENTAL AUDITS AT
FEDERAL FACILITIES
TABLE OF CONTENTS
Page
Number
CHAPTER 1.
INTRODUCTION
Auditing Assistance to Federal Agencies 1-1
Objective of Environmental Auditing Protocols 1-2
Scope 1-2
Contents 1-3
Instructions 1-4
CHAPTER 2. AUDIT PROCEDURES
Preliminary Overview 2-1
Gathering Audit Information 2-3
Evaluating and Reporting 2-3
CHAPTER 3. AIR
Federal Statutes 3-1
Applicability 3-2
Regulatory Scope Regulatory 3-2
State and Local Regulatory Authority 3-3
Selected Management Considerations 3-3
Agency Policy 3-4
Source List 3-5
Checklist 3-6
CHAPTER 4. ASBESTOS
Federal Statutes 4-1
Applicability 4-1
Regulatory Scope 4-1
State and Local Regulatory Authority 4-2
Selected Management Considerations 4-2
Agency Policy 4-3
Source List 4-4
Checklist 4-5
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CHAPTER 5.
DRINKING WATER
Federal Statutes 5-1
Applicability 5-1
Regulatory Scope 5-2
State and Local Regulatory Authority 5-3
Selected Management Considerations 5-3
Agency Policy 5-4
Source List 5-5
Checklist 5-6
CHAPTER 6. WATER POLLUTION
Federal Statutes 6-1
Applicability 6-1
Regulatory Scope 6-1
State and Local Authority 6-3
Selected Management Considerations 6-3
Agency Policy 6-4
Source List 6-5
Checklist 6-6
CHAPTER 7. NONHAZARDOUS SOLID WASTE
Federal Statutes 7-1
Applicability 7-1
Regulatory Scope 7-1
State and Local Regulatory Authority 7-2
Selected Management Considerations 7-2
Agency Policy 7-3
Source List 7-4
Checklist 7-5
CHAPTER 8. HAZARDOUS WASTE
Federal Statutes 8-1
Applicability 8-1
Regulatory Scope 8-2
State and Local Authority 8-3
Selected Management Considerations 8-4
Agency Policy 8-4
Source List 8-5
Checklist 8-6
CHAPTER 9. UNDERGROUND STORAGE TANKS
Federal Statutes 9-1
Applicability 9-2
Regulatory Scope 9-2
State and Local Authority 9-2
Selected Management Considerations 9-3
Agency Policy 9-3
Source List 9-4
Checklist 9-5
I I
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CHAPTER 10.
PAST DISPOSAL OF HAZARDOUS MATERIALS
Federal Statutes 10-1
Applicability 10-2
Regulatory Scope 10-2
State and Local Authority 10-3
Selected Management Considerations 10-3
Agency Policy 10-3
Source List 10-4
Checklist 10-5
CHAPTER 11. EMERGENCY PLANNING AND COMMUNITY
RIGHT-TO-KNOW
Federal Statutes 11-1
Applicability 11-1
Regulatory Scope 11-1
State and Local Authority 11-2
Selected Management Considerations 11-2
Agency Policy 11-2
Source List 11-3
CHAPTER 12. PCB MANAGEMENT
Federal Statutes 12-1
Applicability 12-1
Regulatory Scope 12-1
State and Local Authority 12-2
Selected Management Considerations 12-3
Agency Policy 12-3
Source List 12-4
Checklist 12-5
CHAPTER 13. PESTICIDES
Federal Statutes 13-1
Applicability 13-1
Regulatory Scope 13-1
State and Local Authority 13-2
Selected Management Considerations 13-3
Agency Policy 13-3
Source List 13-4
Checklist 13-5
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CHAPTER 14.
RADIOAC
: MATERIALS
Federal Statutes 14-1
Applicability 14-1
Regulatory Scope 14-2
State and Local Authority 14-3
Selected Management Considerations 14-3
Agency Policy 14-3
Source List 14-4
Checklist 14-5
CHAPTER 15. ENVIRONMENTAL NOISE
Federal Statutes 15-1
Applicability 15-2
Regulatory Scope 15-2
State and Local Authority 15-2
Selected Management Considerations 15-3
Agency Policy 15-4
Source List 15-5
Checklist 15-6
CHAPTER 16. NATURAL RESOURCES
Federal Statutes 16-1
Applicability 16-2
Regulatory Scope 16-2
State and Local Authority 16-3
Selected Management Considerations 16-3
Agency Policy 16-3
Source List 16-4
Checklist 16-5
CHAPTER 17. CULTURAL RESOURCES
Federal Statutes 17-1
Applicability 17-2
Regulatory Scope 17-2
State and Local Authority 17-3
Selected Management Considerations.. 17-3
Agency Policy 17-3
Source List 17-4
Checklist 17-5
CHAPTER 18. ENVIRONMENTAL IMPACT DOCUMENTATION
Federal Statutes 18-1
Applicability 18-2
Regulatory Scope 18-2
State and Local Authority 18-4
Selected Management Considerations 18-4
Agency Policy 18-4
Source List 18-5
Checklist 18-6
IV
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CHAPTER 19.
ENVIRONMENTAL MANAGEMENT SYSTEMS
Purpose 19-1
Environmental Compliance Program Questionaire 19-2
APPENDIX A
APPENDIX B
APPENDIX C
EPA's ENVIRONMENTAL AUDITING POLICY STATEMENT
LIST OF STATE AGENCIES AND ADDRESSES
PRE-AUDIT QUESTIONNAIRE USED BY U.S. EPA,
ENVIRONMENTAL HEALTH AND SAFETY DIVISION
APPENDIX D
CLEAN AIR ACT: NEW STATIONARY SOURCES FOR
POLLUTION
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ACRONYMS AND ABBREVIATIONS
ACM Asbestos-containing Materials
AEA Atomic Energy Act
AHERA Asbestos Hazardous Emergency Response Act of 1986 (Title II of TSCA)
CAA Clean Air Act
CEQ Council on Environmental Quality
CERCLA Comprehensive Environmental Response, Compensation and Liability Act
CFR Code of Federal Regulations
DOT Department of Transportation
CWA Clean Water Act
ECC Environmental Compliance Coordinator
ECP Environmental Compliance Program
EIS Environmental Impact Statement
EO Executive Order
EP Extraction Procedure
EPA Environmental Protection Agency
EPCRA Emergency Planning and Community Right-to-Know Act
EUP Experimental Use Permit
FNSI Finding of No Significant Impact
FIFRA Federal Insecticide, Fungicide, and Rodenticide Act
FR Federal Register
FWS Fish and Wildlife Service
GSA General Services Administration
HSWA Hazardous and Solid Waste Amendments (1984 RCRA Amendments)
kg/mo Kilogram per Month
LEA Local Education Agencies
LLW Low-level waste
LLWPA Low-level Waste Policy Act
MCL Maximum Concentration Level
MSDS Material Safety Data Sheet
NAAQS National Ambient Air Quality Standards
NEPA National Environmental Policy Act of 1969
NESHAP National Emissions Standards for Hazardous Air Pollutants
NHPA National Historic Preservation Act of 1966
NPDES National Pollutant Discharge Elimination System
NPL National Priorities List
NRC Nuclear Regulatory Commission
NSPS New Source Performance Standards
NVLAP National Voluntary Laboratory Accreditation Program
NWPA Nuclear Waste Policy Act
OFA Office of Federal Activities
OMB Office of Management and Budget
OPPE Office of Policy and Program Evaluation
PCBs Polychloronated biphenyls
POTW Publicly Owned Treatment Works
PPM Parts per million
PSD Prevention of Significant Deterioration
RCRA Resource Conservation and Recovery Act
ROD Record of Decision
SARA Superfund Amendments and Reauthorization Act of 1987
VI
-------
SDWA Safe Drinking Water Act
SHPO State Historic Preservation Officer
SIP State Implementation Plan
SPCC plan Spill Prevention Control and Counter Measure Plan
TPQ Threshold Planning Quantity
TSCA Toxic Substances Control Act
TSDFs Treatment, Storage, and Disposal Facilities
UIC Underground Injection Control
UMTRCA Uranium Mill Tailings Radiation Control Act
UST Underground Storage Tank
VII
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INTRODUCTION
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CHAPTER 1. INTRODUCTION
Auditing Assistance to Federal Agencies
This Generic Protocol for Environmental Audits at Federal Facilities is a supplement to earlier
efforts by EPA to provide technical assistance to Federal agencies on environmental auditing. EPA's
Office of Federal Activities (OFA) issued the Federal Facility Compliance Strategy (referred to as the
"Yellow Book"), prepared in 1984 and revised in 1988, as a framework for EPA's media programs
to follow to ensure that Federal facilities are fully integrated into Federal and State compliance
monitoring and enforcement activities. In the executive summary of the Yellow Book, Lee Thomas,
former EPA Administrator, states the goal of EPA as helping to "...ensure that Federal agencies
achieve compliance rates in each media program which meet or exceed those of major industrial and
major municipal facilities."
In 1986, EPA issued the Environmental Auditing Policy Statement (see Appendix A). The
policy encourages Federal agencies to voluntarily develop comprehensive auditing programs to
ensure environmental compliance. A comprehensive auditing program may have many, if not all, of
the seven elements identified in the policy statement. In addition to this effort, EPA hosted an
environmental auditing conference for Federal agencies in March 1988 and issued bibliographies on
environmental auditing and management (Annotated Bibliography on Environmental Auditing, March
1988; Annotated Bibliography on Environmental Management, March 1988).
EPA's Environmental Auditing Policy Statement
On July 9,1986, EPA issued a formal Environmental Auditing Policy Statement in-the Federal
Register which encouraged all regulated entities -- private, municipal and Federal -- to adopt
environmental auditing programs. The policy statement stresses that although Federal law does not
require regulated entities to implement an auditing program, the ultimate responsibility for
environmental performance of the entity lies with top management. This gives managers a strong
incentive to use means such as auditing to secure reliable information on the environmental
compliance of facilities which they own or operate.
In the policy statement EPA defines environmental auditing as "... a systematic, documented,
periodic and objective review by regulated entities of facility operations and practices related to
meeting environmental requirements." Such a review can lead to higher levels of environmental
compliance and reduced risk to human health and the environment. The EPA policy specifically
endorses environmental auditing at Federal facilities and recommends auditing programs which
promptly identify problems and implement corrective actions. In addition, EPA promises to provide
technical assistance to Federal agencies concerning the design and initiation of such a program to the
extent feasible.
Executive Order 12088
Signed by President Carter on October 13, 1978, the purpose of Executive Order 12088 is
to ensure Federal government compliance with applicable pollution control standards. The order
conveys the responsibility for compliance to the head of each executive agency. Agencies must
comply with all substantive and procedural requirements of Federal, State and local environmental
regulations. Agencies are encouraged to consult EPA, State, interstate and local agencies in the
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prevention, control, and abatement of environmental pollution. EPA, in turn, is required by this
Executive Order to provide technical advice and assistance to ensure compliance by Federal agencies.
Executive Order 12088 also requires executive agencies to submit to the Office of Management
and Budget (OMB), through EPA, an annual plan for the prevention control, and abatement of
pollution. This plan is part of the process required by OMB Circular A- 106, "Reporting
Requirements in Connection with the Prevention, Control and Abatement of Environmental Pollution
of Existing Federal Facilities," dated December 31, 1974. The form must include annual cost
estimates for any environmental projects planned at Federal facilities. The head of each agency must
ensure that sufficient funds for compliance with pollution control standards are requested; and
subsequently, funds appropriate for the prevention, control and abatement of environmental pollution
are used for the intended purpose. Environmental auditing can be an effective tool for identifying
needed projects to be included in Federal agencies' A-106 plans.
Objective of Environmental Auditing Protocols
OFA has developed the Generic Protocol for Environmental Audits at Federal Facilities
(Generic Protocol) to assist Federal agencies in designing environmental audit protocols for use in
conducting internal audits at their facilities. The Generic Protocol may serve as a guide for audits
conducted by teams drawn from environmental compliance staff and other appropriate personnel
within each agency. They provide detailed step-by-step instructions which agencies may modify to
meet the individual needs and operations at their facilities.
Federal agencies in varying stages of audit program development can use this document. The
protocol is a valuable starting point to those agencies with no audit protocol. Additionally, for those
agencies with only a partial protocol covering only select media, this document will ease the
development of a comprehensive audit protocol. Finally, for those agencies with a comprehensive
working auditing program, this document will provide a means to verify or improve the quality of the
existing protocol. Because this protocol is written with the entire universe of Federal agencies in
mind, it is generic and may need to be supplemented in light of the relative complexity of operations
within different Federal agencies.
OFA has concurrently developed a companion document entitled Environmental Audit
Program Design Guidelines for Federal Agencies. It is intended to assist an agency's headquarters
personnel in assembling a workable environmental auditing program, while the Generic Protocol
provides tools to collect compliance data at the field level once a program is in place. The Design
Guidelines, although prepared for use by all Federal agencies, will be especially useful to those
designing a new auditing program. Both the Design Guidelines and the Generic Protocol are
intended to assist Federal agencies in their pursuit of compliance with environmental regulations.
Such assistance is required by EPA's Environmental Auditing Policy Statement (51 FR 25004) and
Executive Order 12088 as discussed above.
Scope
The auditing protocols in this document are multipurpose: they are intended to address all
environmentally significant operations at Federal facilities. The media and issues covered in the
protocol include:
Air
Asbestos
Drinking water
Nonhazardous waste
Hazardous waste
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Underground storage tanks
Past disposal of hazardous materials
Emergency planning and community right-to-know
PCBs
Pesticides
Radioactive materials
Environmental noise
Natural resources
Cultural resources
Environmental impact documentation
Environmental management systems.
It is important to note that this document covers primarily Federal regulations developed
pursuant to applicable Federal environmental statutes. Federal citations provided in the auditors'
checklists may have exceptions which are too lengthy and site-specific to list in full. Auditors must
review these regulations in the Code of Federal Regulations in order to verify the full extent of
compliance. The checklist also must be revised periodically to reflect changes in environmental laws
and regulations.
The document, in addition, address the applicability of State and local regulations only to the
extent that significant differences frequently observed between the Federal and corresponding State
regulations are highlighted. A successful environmental audit can not be conducted without
considering State and local regulations. Since this document only addresses Federal regulations,
auditors are instructed to insert relevant State and local regulations at the appropriate locations in this
document. In order to assist auditors in obtaining copies of their States' regulations, Appendix B
contains a list of State environmental agencies, addresses and phone numbers. If there is a particular
program of concern, it is best to get copies of the State law and regulations.
Contents
This documents includes 19 chapters, each focusing on a critical area of the environmental
audit. The first chapter highlights the purpose, scope and organization of the protocol. Chapter 2
gives a brief outline of audit activities, including pre-audit preparation, conduct of the audit and
reporting procedures. The environmental issues to be addressed during an audit are discussed in the
following chapters:
Chapter 3 Air
Chapter 4 Asbestos
Chapter 5 Drinking Water
Chapter 6 Water Pollution
Chapter 7 Nonhazardous Waste
Chapter 8 Hazardous Waste
Chapter 9 Underground Storage Tanks
Chapter 10 Past Disposal of Hazardous Materials
Chapter 11 Emergency Planning and Community Right-to-Know
Chapter 12 PCBs
Chapter 13 Pesticides
Chapter 14 Radioactive Materials
Chapter 15 Environmental Noise
Chapter 16 Natural Resources
Chapter 17 Cultural Resources
Chapter 18 Environmental Impact Documentation
Chapter 19 Environmental Management Systems
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Instructions
Each chapter, with the exception of Chapter 19, Environmental Management Systems, is
organized into the following eight subparts:
• Federal Statutes - Reviews the applicable Federal environmental laws for the issue
involved.
• Applicability ~ Describes operations and activities at Federal facilities which potentially
may be regulated.
Regulatory Scope - Addresses specific Federal regulations as of March 1989, with
which subject facilities must comply. Pending regulations (those proposed in the
Federal Register) are also addressed.
• State and Local Regulatory Authority - Gives specific examples for those areas where
more stringent State regulations are common.
• Selected Management Considerations - Provides recommended practices that
management personnel may adopt to increase environmental compliance. The activities
addressed are not required by Federal statutes or regulations.
• Agency Policy — Instructs auditors to identify and in sen applicable policies from their
respective agencies.
• Audit Information Source List - Provides a quick reference list for audit team members
of records to review, physical features to inspect, and people to interview.
• Auditors' Checklist - Provides a step-by-step worksheet to be used by audit team
members in conducting the audit. Each worksheet is divided into four columns. The
first column is the citation of a Federal regulatory requirement. The second column
provides instructions to the auditor. The third column is for the auditors' comments.
In the forth column, the auditor gives each finding a unique notation that is to be
determined by the agency. This is designed to encourage early classification of
findings, a topic discussed in more detail in the Design Guidelines.
These subparts provide generic information that will be useful to all Federal agencies. Chapter 19 is
provided to evaluate the environmental management systems in place at Federal facilities. Although
this chapter goes well beyond the typical compliance assessment, it is an integral part of internal
environmental audits. Information considered important but beyond the scope of the chapters is
provided in several appendices listed in the Table of Contents.
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AUDIT PROCEDURES
-------
CHAPTER 2. AUDIT PROCEDURES
This chapter outlines audit procedures, including audit preparation, data gathering and
reporting. Exhibit 2-1 outlines the three phases of a typical audit at a Federal facility with special
emphasis on the auditor's use of protocols provided in the following chapters. A description of each
phase is provided below.
Preliminary Overview
The preliminary overview is the first phase of the audit. The audit team will be sufficiently
prepared at the conclusion of the preliminary overview to evaluate environmental compliance and
management systems at the facility. It includes the following activities:
Pre-audit Questionnaire -- Before the audit team arrives at the facility, a pre-audit
questionnaire is sent to the environmental compliance coordinator. An example of a
questionnaire used by U.S. EPA's Environmental Health and Safely Division is
provided in Appendix C. The facility environmental compliance coordinator usually
completes the questionnaire and returns it to the audit team two to four weeks prior to
an audit.
* Pre-audit Review -- Based on the questionnaire, the audit team determines the
activities that are subject to regulations. The corresponding chapters in this protocol
are identified and the auditors' checklists reviewed. Applicable State regulations and
agency policies are obtained and reviewed. Compliance manuals, standard operating
procedures, past audit or inspection reports and facility layout maps returned with the
questionnaire are also important to review.
* Entrance Briefing -- The purpose of the entrance briefing is to inform facility
personnel of the audit program's objectives, scope, approach and the expected
schedule of activities. The audit team members can also become familiar with
individuals responsible for environmental compliance at this time and answer their
questions.
* Facility Tour - The facility tour will vary with the size, number and diversity of
operations. The main objective of the tour is for auditors to become familiar with the
physical plant and potential sources of pollution. It is most efficient to examine each
area of the facility in an integrated fashion rather than as separate categories or media,
such as air, water or hazardous waste. The source lists in Chapters 3 through 18 are
used to focus attention to areas to be visited during the tour. Auditors should note
those areas which will require a return visit for a more detailed inspection.
• Create Team Audit Plan -- After completing the previous four steps, the audit team
will have a basic understanding of the processes and areas of concern. With this
information, the team divides the work load and plans the remainder of the audit.
Each member of the team may take charge of a category or medium, such as
hazardous waste or air, or the work can be divided by building.
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EXHIBIT 2
SCHEMATIC OVERVIEW OF THE AUDIT PROCESS
PRELIMINARY
OVERVIEW
GATHERING AUDIT
INFORMATION
EVALUATING AND
REPORTING
FACILITY
RETURNS
PRE-AUDIT
QUESTIONNAIRE
PRE-AUDIT
REVIEW
ENTRANCE
BRIEFING
FACILITY TOUR
• Photos
• Notes
CREATE TEAM
AUDIT PLAN
DETAILED REVIEW OF
FACILITY PRACTICES
• In-depth Interviews
• Additional Tours
• Examine Records
^
EVALUATE INTERNAL
MANAGEMENT
CONTROLS
• Review SOPs
• Interview Facility
Management
\
/
DEVELOP
PRELIMINARY LIST
OF AUDIT FINDINGS
vlx
FURTHER
DISCUSSIONS AND
EXAMINATION TO
VERIFY FINDINGS
^
COMPLETE LIST OF
AUDIT FINDINGS
EXIT BRIEFING
WITH FACILITY
MANAGEMENT
PREPARATION OF
DRAFT AUDIT
REPORT
REVIEW OF
DRAFT REPORT
BY FACILITY
FINAL AUDIT
REPORT
W/CORRECTIVE
ACTION PLAN
2-2
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Gathering Audit Information
The next phase of the audit requires extensive review of facility documents and return visits to
specific areas of the facility. It includes the following activities:
• Detailed Review of Facility Practices — The audit team conducts detailed interviews
with on- and off-site personnel, make additional tours, and examine records. The
team should review the auditors' checklist provided in Chapters 3 through 18.
• Evaluate Internal Management Controls ~ The team gains an understanding of how
environmental pollution is controlled. This includes understanding the facility's
programs, procedures and staff responsibilities for each category or medium
covered.
Evaluating and Reporting
After orienting themselves and gathering data from records and interviews, the audit team
compiles their results by comparing the data to the regulatory requirements. This phase includes the
following activities:
• Develop Preliminary List of Audit Findings - For each category or medium
investigated, a list of findings is compiled which includes a description of the
condition and the regulation violated. If the audit includes management assessment,
these recommendations also are listed.
• Further Discussions and Examinations to Verify Findings - The findings are
discussed among the audit team members and with the environmental compliance
coordinator to verify the conditions noted.
• List of Audit Findings - Once the findings are verified, a final list of preliminary
findings is prepared for presentation at the exit briefing.
• Exit Briefing with Facility Management ~ The audit team enumerates preliminary
findings at the exit briefing. The facility management raises any conflicts they have
with the audit team findings. Any differences are discussed and ,if possible resolved,
Outstanding issues are documented and may need follow-up action after the exit
briefing.
• Preparation of Draft Audit Report ~ Written results of the audit are drafted by the
audit team after leaving the facility. Findings and recommendations may be sorted by
major categories or media to help structure the audit report and set priorities for
resolving problems.
• Review of Draft Report By Facility ~ The draft report may be reviewed and edited by
the audited facility before it is in final form.
• Final Audit Report with Corrective Action Plan - The final report is distributed to a
predetermined audience. The report includes a plan for correcting the deficiencies and
the length of time necessary to correct the problem.
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AIR
-------
CHAPTER 3. AIR
Federal Statutes
The Clean Air Act, enacted in 1970 and amended in 1977, is the Federal statute
mandating the prevention and control of air pollution from both stationary and mobile
sources. The Clean Air Act (CAA) requires EPA to establish three types of national
standards: National Ambient Air Quality Standards; New Source Performance Standards;
and National Emission Standards for Hazardous Air Pollutants.
National Ambient Air Quality Standards (NAAQS) establish the allowable ambient
concentrations for six priority pollutants:
• Total suspended particulates
• Sulfur dioxide
• Nitrogen oxide
• Carbon monoxide
• Ozone
• Lead
NAAQS apply to pollutant concentrations in ambient air, and are not applicable to individual
emission sources. For this reason, compliance with these standards is not an issue directly
addressed during an environmental audit The CAA, however, mandates that States must
develop State Implementation Plans (SIPs) which regulate emissions from stationary and
mobile sources to ensure attainment and maintenance of the NAAQS.
There are statutory provisions concerning the construction and modification of
stationary sources in areas where air quality is better than that required by NAAQS. These
provisions are intended to prevent significant air quality degradation in these areas. The
"prevention of significant deterioration" (PSD) regulations establish strict preconstruction
guidelines and monitoring requirements. For construction or modification of sources in non-
attainment areas (NAA), where one or more NAAQS are not met, there are similar strict
regulations for preconstruction review, emission control systems and monitoring.
New Source Performance Standards (NSPS) were developed for specific industrial
categories to provide a ceiling for emissions from new sources (Appendix D). They are based
on application of the best technology available to reduce emissions. These standards include
requirements for notification, recordkeeping, performance tests, maintenance and monitoring.
National Emission Standards for Hazardous Air Pollutants (NESHAPs) were
established to control air pollutants for which no ambient air quality standards are applicable
and which may result in an increase in mortality or serious irreversible illness. These
standards define emission limits, monitoring requirements, restrictions on material use,
worker practice standards and reporting requirements for hazardous air pollutants. Facilities
emitting the following pollutants must comply:
« Asbestos
• Benzene
• Beryllium
• Coke oven emissions
• Inorganic arsenic
3-1
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• Mercury
• Radionuclides
• Vinyl chloride
Many additional pollutants are likely to be added to this list of hazardous air pollutants.
Applicability
Section 118 of the CAA requires Federal facilities to comply with all Federal, State,
interstate and local requirements pertaining to air pollution. Federal facilities must comply
with all of the standards and regulations described above.
Federal facilities with one or more of the industrial sources listed in 40 CFR Part 60
must comply with the NSPS only if the operations were constructed after the date the
applicable standards were proposed. A full list of these industrial operations and the dates the
standards were proposed is included in Appendix D. A total of 53 industrial operations are
now affected by New Source Performance Standards.
Federal facilities that handle, process, dispose or emit the hazardous air pollutants
regulated by NESHAPs must be aware of the regulations set forth in 40 CFR Part 61. Many
other substances are currently being considered for inclusion in the list of hazardous air
pollutants; many of these substances are suspected carcinogens.
A Federal facility must comply with PSD regulations if it is located in an area of
designated attainment for at least one criteria pollutant (i.e., sulfur dioxide, paniculate matter,
carbon monoxide, ozone, nitrogen oxide, lead) and fulfills one of these conditions below:
• A stationary source specifically listed in 40 CFR Part 52.21 (a) which emits, or
has the potential to emit, 100 tons per year or more of any pollutant subject to
regulation under the CAA
• A stationary source which emits, or has the potential to emit, 250 tons per year
or more of any air pollutant subject to regulation under the CAA.
The NAA regulations apply to major sources constructed in areas of non-attainment for one
or more criteria air pollutants that emit, or have the potential to emit, 100 tons per year of a
pollutant subject to regulation under the CAA.
Regulatory Scope
Federal regulations pursuant to the CAA are codified in 40 CFR Parts 50 through 80.
The regulatory requirements applicable to operations at Federal facilities are outlined below:
National Ambient Air Quality Standards (40 CFR 50) -- NAAQS set national
permissible ambient levels for sulfur oxides, paniculate matter, carbon
monoxide, ozone, nitrogen oxide and lead. State and local agencies may adopt
more stringent levels than those set forth here.
• State Implementation Plan (40 CFR Pans 51-52) -- SIP regulations describe the
methods EPA uses to approve State air pollution control programs. The State
programs implement the air pollution regulations.
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• Ambient Monitoring Methods (40 CFR Part 53) ~ details reference and
equivalent methods approved by EPA for monitoring ambient air pollutants.
• Nonferrous Smelters (40 CFR Part 57) - sets forth standards applicable to the
operators of nonferrous smelters.
• New Stationary Source (40 CFR Part 60) -- sets standards applicable to over 50
types of industrial operations. The operations covered are listed in Appendix D.
States may set more stringent standards for these industrial operations.
• Emission Standards for Hazardous Air Pollutants (40 CFR Part 61) -- sets
national emission standards for asbestos, beryllium, mercury, vinyl chloride,
benzene, radionuclides and arsenic. State and local agencies may promulgate
more stringent emission standards for these pollutants.
Because States enforce regulations pursuant to the CAA, it is imperative that all Federal
facilities are aware of the State and local air pollution control regulations in their areas, in
addition to the Federal requirements listed above.
State and Local Regulatory Authority
The CAA specifies that the States must enforce the pollution abatement requirements for
existing and new sources. This includes the NSPS, NESHAP, PSD and NAA regulations
described above. States are free to develop more stringent regulations than those proposed
by EPA, but cannot lower Federal Standards. Any facility emitting air pollutants must be
familiar with the applicable State regulations.
Many States regulate operations not addressed in the Federal regulations. For example,
some States require that fume hoods have permits, while others do not. Additionally, at least
one State requires that every air pollution control device (e.g., HEPA or carbon filters) be
permitted by the State. Several States require that facilities submit or "register" a list of every
air pollutant they emit with the appropriate State agency. These examples illustrate that it is
imperative that facilities review their State regulations for applicability to individual
operations.
Several States also have local air pollution regulations. Facilities should consult local
authorities (e.g., County Board of Health, County Environmental Agency) to find out if there
are local regulations in their area. Regional regulations are occasionally found, especially if
the region is a non-attainment area. Facilities should check for regional regulations as well.
Selected Management Considerations
Agency management is responsible for ensuring conformance with Federal, State, local
and regional air emission standards and for initiating timely requests for permit amendments
and renewals. The following actions can improve compliance:
• Establish and implement procedures for obtaining, evaluating and maintaining a
current file on relevant air emission standards.
• Establish and maintain a tickler file of permit-related milestones.
3-3
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• Develop standard operating procedures requiring modifications to existing
equipment and proposals for new air emission sources to be reviewed for
permit compliance/conformance with air emission standards that can minimize
instances of non-compliance.
Agency management should be aware that operation of an air emissions source may
involve compliance issues with other environmental regulations besides air emission
standards. The following actions can improve compliance with these regulations:
• The use of a materials balance approach for air emission sources can provide
documentation necessary to determine applicability of other environmental
regulations. Boiler blow-down, for example, will probably be regulated under
the National Pollutant Discharge Elimination System provision of the Clean
Water Act, while disposal of collected fly ash is frequently regulated by the
Resource Conservation and Recovery Act (RCRA).
• Disposal of filters used to remove, clean contaminants from air emission source
exhausts may be regulated by RCRA because of the nature of the contaminants
collected by the filter.
Air emission sources should be included in Federal agency management's waste
minimization practices. For example, increasingly costly disposal of contaminants from air
exhaust streams may justify modification to or replacement of existing air emission source
equipment
Agency Policy
Insert applicable agency policies here.
3-4
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AUDIT INFORMATION SOURCE LIST
Activity: Air
Records to Review:
State and local air pollution control regulations
Agency air pollution control regulations
Emissions inventory
All air pollution source permits
Plans and procedures applicable to air pollution control
Emission monitoring records
Opacity records
Notifications of violations to regulatory authorities
Instrument calibration and maintenance records
Reports/complaints concerning air quality
Air Emergency Episode Plan
State and/or Federal regulatory inspections.
Physical Features to Inspect:
• All air pollution sources
• Air pollution monitoring and control devices
• Air emission stacks
• Air intake vents.
People to Interview:
• Operators of sources
• Stack testers
• Maintenance personnel
• Records clerks.
3-5
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ASBESTOS
-------
CHAPTER 4. ASBESTOS
Federal Statutes
Requirements pertaining to asbestos are included in regulations promulgated pursuant
to the Clean Air and Toxic Substances Control Acts.
The Clean Air Act (CAA) Amendments of 1970 required EPA to establish National
Emissions Standards for Hazardous Air Pollutants (NESHAPs). In 1971 EPA listed
asbestos as a hazardous air pollutant and subsequently established emission standards for the
manufacturing, fabrication, spray application, waste packaging, labeling and disposal of
asbestos. The Act also establishes standards for asbestos emissions during renovation and
demolition projects.
The Toxic Substances Control Act (TSCA) of 1976 was amended in 1986 by the
Asbestos Hazard Emergency Response Act (AHERA). AHERA regulations require local
education agencies to inspect their school buildings for asbestos containing materials and take
appropriate actions to control release of asbestos fibers. This includes schools on Federal
facilities.
Applicability
The CAA regulations apply where emissions of asbestos fibers occur. Federal facilities
must comply with CAA requirements specified in CAA Section 118. Facilities that mill,
manufacture, fabricate, land dispose or spray apply asbestos are subject to emission control
regulations. Buildings constructed with asbestos-containing materials (ACM) could trigger
coverage under NESHAPs in the event of any renovation or demolition involving these
building materials. NESHAPS require that the EPA Administrator be notified when removal
or demolition projects will involve significant amounts of asbestos. The standards also
include procedures for asbestos emission control during these projects.
Agencies operating educational facilities are subject to TSCA asbestos-in-schools
regulations. TSCA mandates that Federal facilities must comply with its requirements.
Classrooms, dormitories and all education-related office buildings (excluding childcare
facilities) require asbestos inspection, containment or removal actions, and management
plans.
Regulatory Scope
Federal regulations covering asbestos are modified under TSCA and CAA regulations.
The regulatory requirements applicable to asbestos at Federal facilities are outlined below:
• Emission Standards for Asbestos (40 CFR Part 61 Subpart M) -- establish
standards for:
Asbestos mills
Roadways
Manufacturing
Demolition and renovation (applicability, notification, asbestos emission
and control)
4-1
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Spraying
Fabricating
Insulating materials
Waste disposal.
• Reporting Commercial and Industrial Uses of Asbestos (40 CFR Part 763,
Subpart D) -- requires reporting by persons who manufacture, import or
process asbestos.
• Asbestos-Containing Materials in Schools (40 CFR Part 763, Subpart E) --
requires local education agencies (LEAs) to identify friable and nonfriable
asbestos-containing materials in primary and secondary schools. The subpart
also requires LEAs to submit a management plan to their state and begin
implementation of the plan by July 9, 1989.
• Asbestos Abatement Project (40 CFR Part 763 Subpart G) -- establishes
requirements to be followed during asbestos abatement projects. The rule
covers employees who take part in asbestos abatement work.
State and Local Regulatory Authority
Many State and local governments have additional, more stringent asbestos standards
regarding asbestos use, removal or application. These State agencies must be contacted prior
to any asbestos removal or disposal operation.
Selected Management Considerations
Agency management, responsible for implementing both TSCA and occupational safety
and health provisions for the protection of personnel and the environment, has several
options to choose from in addressing asbestos in Federal facilities. These options are
affected to varying degrees by local factors such as funding availability, integrity of the
asbestos materials, and future plans for the facility. Consideration of these options presumes
management's knowledge of the presence and status of asbestos in its facilities. Management
that is implementing TSCA should formally consider the following options:
• Inspection of all buildings for the presence of asbestos-containing building
materials
• Maintenance of facility floor plans or blueprints showing location(s) of friable
and nonfriable ACM for use during potential future renovations, repairs or
demolition
• Removal or containment of asbestos in cases where severe deterioration may be
dangerous to building occupants
• Preemptive removal of asbestos adjacent to valves, flanges and equipment so
that emergency repairs do not become emergency asbestos removal operations
• Monitoring identified asbestos material for deterioration
• Training maintenance personnel to handle asbestos during building
repair/maintenance procedures rather than relying on contractor support
4-2
-------
• Obtaining EPA asbestos guidance documents, "Guidance Controlling Asbestos-
Containing Materials in Buildings" (560/5-85-024) June 1985, also known as
the Purple Book, "Asbestos Waste Management Guidance" (530 SW-85-007)
and "Asbestos in Buildings - Guidance for Service and Maintenance Personnel"
(560/5-85-018).
The above recommendations may assist agency management in identifying and controlling
any asbestos problems. The EPA publications mentioned give guidelines on identification,
handling, worker protection, and disposal.
Agency Policy
Insert applicable agency policy here.
4-3
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AUDIT INFORMATION SOURCE LIST
Activity: Asbestos
Records to Review:
• Asbestos management plan
• Notifications to Regulators concerning asbestos disposal
• Records of onsite disposal and transportation and offsite disposal of
asbestos
• Regulatory inspection reports
• Documentation of asbestos sampling and analytical results
• Documentation of preventive measure or action
• Results of air sampling at the conclusion of response action
• Records of asbestos training program
• List of buildings insulated with asbestos or housing asbestos-containing
materials
• Record of demolition or renovation projects completed in the past 5 years
that involve friable asbestos
• Facility operation and maintenance plan
• Proof of asbestos inspector's State accreditation
Physical Features to Inspect:
• Pipe, spray-on, duct, and troweled cementitious insulation and boiler
lagging
• Ceiling and floor tiles.
People to Interview:
• Facility manager
• Personnel involved in asbestos removal or operations and maintenance.
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following operations: asbestos mills (61.142),
roadways (61.143), manufacturing commercial
asbestos (61.144), demolition and renovation involv-
ing friable asbestos (61.145, 61.146, 61.147), spray-
ing of asbestos (61.148), fabricating commercial
asbestos (61.149), installation of asbestos insulating
materials (61.150), asbestos mill waste disposal
(61.151), waste disposal from manufacturing, demoli-
tion, renovation, spraying and fabricating operations
(61.152), inactive asbestos waste disposal sites
(61.153), air cleaning for above operations (61.154),
active waste disposal sites (61.156).
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properly trained.
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informed about asbestos activities at least once each
year.
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DRINKING WATER
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CHAPTERS. DRINKING WATER
Federal Statutes
The Safe Drinking Water Act (SDWA) of 1974, as amended, establishes primary
drinking water regulations applicable to public water systems. These regulations specify
contaminants that may have an adverse effect on health and set maximum contaminant levels
(MCLs) for water delivered to any user of a public water system. The Act also establishes
secondary drinking water regulations. Secondary regulations apply to contaminants that may
adversely affect the odor or appearance of the water delivered to the users of a public water
system.
The Act specifies requirements for drinking water monitoring and analytical
procedures, as well as enforcement procedures. Section 1428(a) of the SDWA addresses
ground water protection through requirements for individual State Wellhead Protection
Programs, including determination of wellhead protection areas, identification of potential
sources of contamination, specification of management approaches and contingency plans,
and consideration of new (future) wells.
In addition, the SDWA creates and regulates the Underground Injection Control (UIC)
program, which covers the reinjection of fluids into the subsurface through a well. The
program's purpose is to protect groundwater, which is a present or potential source of
drinking water.
Applicability
Section 1447 of the SDWA requires all Federal agencies with jurisdiction over a public
water system or with activities resulting in underground injection to comply with all Federal,
State, and local MCL requirements. Under Section 1447(b) of the SDWA, EPA has the
authority to exempt public water systems owned or maintained by a Federal agency from
compliance with primary drinking water regulations. This authority may only be exercised
upon a request by the Secretary of Defense and after finding by the President that such a
waiver is necessary in the interest of national security.
A Federal facility operating a public water supply system that meets all of the following
criteria must comply with the SDWA:
• The water is intended for human consumption.
• The water supply system is a community system (i.e., has at least 15 service
connections or regularly serves an average of 25 individuals daily at least 60
days out of the year).
• The system has drinking water collection and treatment facilities (i.e., it does
not consist solely of distribution and storage facilities).
• The facility produces some or all of its own drinking water by modifying water
procured, (e.g, chlorinization of water) or sells water from its system).
5-1
-------
All Federal agencies that own or operate underground injection wells must obtain a
permit or meet requirements for operators permitted by language in the regulation (permit-by-
rule). The disposal of waste from any of the following activities to a well would require
authorization by EPA, or the State if the State has primary enforcement responsibilities for the
UIC program:
• Mining and milling underground waste discharge
• Underground waste discharge from oil and gas production
• Public domestic sewage disposal
• Industrial underground discharge
• Agricultural and dairy waste disposal
• Power plants (e.g., underground discharge of spent cooling water).
Regulatory requirements for each of these activities are specified in 40 CFR Parts 144 and
146.
Regulatory Scope
SDWA regulations are set forth in 40 CFR Parts 141-149. The regulations applicable
to Federal facilities are summarized below:
• National Primary Drinking Water Regulations (40 CFR Part 141) - specify
MCLs for six categories of contaminants:
Inorganic chemicals
Organic chemicals
Turbidity
Microbiological contaminants
Natural radioactivity
Man-made radionuclides.
Requirements for analytical methods, monitoring frequency, sampling location,
reporting, public notification, record-keeping, and use of non-centralized
treatment devices are also included. Monitoring for organic chemicals, sodium
and corrosivity characteristics, as well as prohibitions on the use of lead pipes,
solder, and flux for new or repaired drinking water systems are contained in
this part.
National Secondary Drinking Water Regulations (40 CFR Part 143) ~ establish
secondary MCLs for 13 contaminants that may affect the odor or appearance of
drinking water delivered to the users of a public water system, as well as
specific requirements for monitoring.
5-2
-------
• UIC Program (40 CFR Part 144) -- prohibits any underground injection of
fluids, except as authorized by permit or rule. Divides injection wells into five
classes:
Class I wells are used by cities and industry to dispose of hazardous
wastes beneath the lower-most aquifer containing an underground
source of drinking water.
Class II wells are used for residual fluids from oil and gas production,
as well as injection of brine or fresh water to enhance recovery of oil or
natural gas.
Class HI wells are used for extracting minerals.
Class IV wells are used to dispose of hazardous and radioactive wastes;
new Class IV wells are prohibited and existing wells must be phased
out.
Class V includes all other injection wells not included in Classes I-IV,
including heat pump wells (used to circulate ground water for heating
office buildings) and coal processing wastewater wells.
Each of these classes of wells has rules, including:
• UIC criteria and standards (40 CFR Part 146) ~ specify rules that apply to each
class of wells, including requirements for construction, operating, monitoring,
and reporting.
• Individual State Underground Injection Control Programs (40 CFR Part 147) --
describe the regulations of each individual State's UIC program.
• Sole Source Aquifers (40 CFR Part 149) ~ provide criteria for identifying
critical aquifer protection areas.
State and Local Regulatory Authority
Most States have achieved EPA approval to administer their own drinking water
compliance and UIC programs. States with approved programs may establish drinking water
and UIC regulations, monitoring schedules, and reporting requirements more stringent than,
or in addition to, those in the Federal regulations. All Federal facilities are required to comply
with these additional requirements. UIC programs run by the EPA are found at 40 CFR Part
147. Federal facilities should consult Pan 147 for the appropriate regulations corresponding
to their State.
Selected Management Considerations
Agency management is responsible for ensuring conformance with Federal, State, local
and regional drinking water standards, initiating timely requests for permit amendments and
renewals, and ensuring compliance with other environmental regulations related to the
5-3
-------
production of drinking water. Management has an obligation to consider the following
actions for enhancing regulatory compliance:
« Establish and implement procedures for obtaining, evaluating and maintaining a
current file on relevant drinking water standards.
• Establish and maintain a file to remind personnel of drinking water monitoring
and notification requirements.
« Develop standard operating procedures for modifying existing treatment, i.e.,
equipment/chemical additions.
Agency management should be aware that operation of equipment providing a supply
of drinking water to employees and others may involve compliance issues with other
environmental regulations such as the disposal of treatment waste products. For example:
• A materials balance approach for drinking water treatment facilities, especially
where surface water is treated for consumption, can provide documentation
necessary to determine applicability of other environmental regulations. Filter
backwash, for example, will probably be regulated by the NPDES provisions
of the CWA, while disposal of filter solids may be regulated by RCRA.
Disposal of containers for treatment chemicals may well be regulated by RCRA.
When providing a product for human consumption, agency management should use an
elevated level of care and pay special attention to the risk and consequences of what would
otherwise appear to be rather inconsequential accidents. In Maryland, for example, several
deaths of patients receiving dialysis treatment were related to excess fluoride as a result of the
spill of a fluoridation chemical in a manner which caused it to be injected into the water
supply system.
Agency management has a duty to protect consumers from contaminants the agency
knows, or should know, are in the water supply even though the contaminants are not
specifically regulated by the SDWA. A military installation, for example, notified its State
agency when analysis showed contamination with unique military explosives for which
national standards had not been developed. In this instance, the military provided the state
with toxicplogical information upon which to base a recommended standard for human
consumption.
Agency Policy
Insert applicable agency policies here.
5-4
-------
AUDIT INFORMATION SOURCE LIST
Activity: Drinking Water
Records to Review:
• Bacterial and chemical analyses of drinking water, including sampling dates
and locations, dates of analyses, analytical methods used, and results of
analyses
• Monthly operating reports (flow, chlorine residual, etc.)
• State and public notification of non-compliance with primary drinking water
regulations
• Action taken by the facility to correct violations of primary drinking water
regulations
• Sanitary surveys of the water system conducted by the facility itself, a private
consultant, or any local, State, or Federal agency
• Public notification of non-compliance with the secondary MCL for fluoride
• Variance or exemption granted to the facility for its water supply system
• Permit authorizing the operation of an underground injection well
• Records of planning and construction of injection wells
• Results of injection well monitoring
• Records, including any petition for review, of facility projects that may
potentially cause contamination of a sole source aquifer through its
recharge zone.
Physical Features to Inspect:
• Drinking water collection and treatment facilities
Underground injection wells
• Any sources of discharge that are directed to wells, i.e., floor drains, and
dry wells.
People to Interview:
• Administrator(s) of facility water supply and underground injection well
operations
• Personnel involved with drinking water and injection well sampling and analysis.
5-5
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ted in the applicability section of this
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with the following primary maximum
contaminant levels (MCLs):
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Organic chemicals (141.12; revised MCLs,
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Microbiological contaminants (141.14)
Natural radioactivity (141.15)
Man-made radionuclides (141.16).
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WATER POLLUTION
-------
CHAPTER 6. WATER POLLUTION
Federal Statutes
The Federal Water Pollution Control Act was enacted in 1956 and amended in its
entirety in 1972. The Act was extensively amended by the Clean Water Act of 1977 and its
reauthorization in 1987. The intent of the legislation, now commonly referred to as the Clean
Water Act (CWA), was to restore and protect the integrity of the nation's waters by
controlling discharges of pollutants to those waters. The CWA regulates wastewater
discharge directly to navigable or surface waters and those indirect discharges to publicly
owned treatment works (POTWs). The CWA established die National Pollutant Discharge
Elimination System (NPDES), which prohibits the direct discharge of a pollutant from a point
source into United States waters except by special permit Regulations on oil spill prevention
and runoff control from oil and hazardous substance storage areas also were developed
through the requirement for Spill Prevention Control and Countermeasure (SPCC) plans.
Applicability
Section 313 (a) of the CWA requires Federal agencies to comply with all applicable
Federal, State, interstate and local requirements on the control and abatement of water
pollution. Facilities should investigate their operations for regulated activities or aspects.
Areas of facility operation which may be regulated include the following:
• Operations involving point source discharge (e.g., pipe, ditch) to navigable
waters
• Onsite water treatment works which discharge to public sewer or into navigable
waters
• Untreated discharges to public sewer
• Underground or above ground oil storage tanks
• Oil and hazardous substance storage areas where runoff is likely
• Operations involving marine equipment (e.g., boats, research vessels).
Regulatory Scope
The following regulatory requirements are applicable to Federal facilities:
• Discharge of Oil (40 CFR Pan 110) -- applies to the discharge of oil into
navigable water.
• Oil Pollution Prevention (40 CFR Part 112)-- establishes requirements for
equipment and methods to prevent discharge of oil into United States waters not
related to transportation from on- and off-shore facilities. Part 112.3 requires
facilities that could reasonably be expected to discharge oil to prepare a SPCC
Plan.
6-1
-------
Designation of Hazardous Substances (40 CFR Part 116)-- contains a list of
those substances designated as hazardous under Section 113 (b)(2)(A) of the
CWA.
Determination of Reportable Quantities for Hazardous Substances (40 CFR Part
117)-- includes reportable quantities for hazardous substances.
EPA-Administered NPDES Permit Programs (40 CFR Part 122) ~ establishes
basic NPDES permitting requirements for point source discharges.
Procedures for Decisionmaking (40 CFR Part 124) — provides procedures for
NPDES permit application.
Criteria and Standards for the NPDES (40 CFR Part 125) -- establishes
standards for the technology-based treatment requirements in NPDES permits.
Test Procedures for the Analysis of Pollutants (40 CFR Part 136) ~ specific
test methods used when monitoring NPDES discharges.
National Pretreatment Standards (40 CFR Part 403 -- requires industrial users
to pretreat pollutants discharged into POTWs. Two sets of national
pretreatment standards are outlined: prohibited discharge standards which apply
to all facilities, and categorical pretreatment standards which are requirements
mandated for over 50 specific industry types.
Oil and Noxious Liquid Substance Regulations (33 CFR Part 151) -
establishes regulations to prevent discharge of oil and oil mixtures from vessels.
Control of Pollution by Oil and Hazardous Substances, Discharge Removal (33
CFR Part 153) -- prescribes notification to the Coast Guard of the discharge of
oil or hazardous substances as required by the CWA.
Oil Pollution Prevention Regulations for Marine Oil Transfer Facilities (33 CFR
Part 154) — applicable to large oil transfer facilities capable of transferring oil to
a vessel with a capacity of 250 or more barrels of oil.
Oil Pollution Prevention Regulations for Vessels (33 CFR Pan 155) -
Oil and Hazardous Material Transfer Operations (33 CFR Part 156) ~
Rules for the Protection of the Marine Environmental Relating to Tank Vessels
Carrying Oil in Bulk (33 CFR Part 157) -
Marine Sanitation Devices (33 CFR Part 159) -- establishes the design and
construction requirements of marine sanitation devices on vessels.
EPA Standards (40 CFR Part 140) -- prohibits the overboard discharge of
sewage into certain fresh water lakes and reservoirs and rivers.
Proposed Rules (53 FR Part 47632) - on November 23,1988, EPA proposed
new POTW regulations. The proposal includes requirements which would
affect most Federal facilities.
6-2
-------
State and Local Regulatory Authority
Section 402 (b) of the CWA authorizes States to administer their own NPDES permit
programs. Currently 38 States have authority to issue NPDES permits. EPA often issues
NPDES permits at Federal facilities regardless of the State's authority.
POTWs have the authority to establish their own pretreatment standards that can be
found in local sewer system ordinances or permits. These local authorities may set more
stringent standards than the national standards. All POTWs have the authority to assess
penalties in at least the amount of $1,000 per day for each violation of pretreatment standards.
Selected Management Considerations
Agency management is responsible for ensuring conformance with Federal, State, local
and regional CWA standards, for initiating timely requests for permit amendments and
renewals, and for ensuring compliance with other environmental regulations which are related
to the treatment of municipal and industrial wastewater. Management should consider the
following actions for enhancing regulatory compliance:
• Establish and implement procedures for obtaining, evaluating and maintaining a
current file on relevant wastewater treatment standards.
• Establish and maintain a tickler file on wastewater treatment permit-related
milestones.
• Develop standard operating procedures requiring plant operation and
maintenance changes, new source influents, and pretreatment agreements to be
reviewed and approved prior to implementation.
Agency management should be aware that operation of a wastewater treatment plant
may involve compliance with environmental regulations besides the CWA, such as:
• The use of a materials balance approach for wastewater treatment plants can
provide documentation necessary to determine applicability of other
environmental regulations. Disposal of sludge, for example, will probably be
regulated by RCRA, while digester gas emissions may come under the control
of the CAA.
• Disposal of containers for treatment chemicals may need to comply with RCRA
because of the nature of the chemicals.
Agency management should ensure that their focus is not solely upon wastewater
treatment plants but also on the latent effects of operations conducted in accordance with other
environmental regulations, such as:
• The application of pesticides, insecticides, rodenticides and herbicides can
violate the CWA when surface water runoff contaminated with these chemicals
enters a waterway (i.e., non-point source runoff).
• The backwash from a drinking water treatment plant will require a CWA
NPDES permit for discharge to a receiving stream.
6-3
-------
Boiler blow-down from an air emissions source may be regulated under the
NPDES provisions of the CWA or the pretreatment provisions depending on its
discharge point.
Agency Policy
Insert applicable agency policy here.
6-4
-------
AUDIT INFORMATION SOURCE LIST
Activity: Water Pollution
Records to Review:
NPDES permit
NPDES permit renewal applications (if expiring within 180 days)
Discharge monitoring reports for the past year
Laboratory records and procedures and EPA QA results
Monthly operating reports for wastewater treatment facilities
Flow monitoring calibration certification and supporting records
Ash pond volume certification and supporting records
Red water inspection records
Special reports, certifications, etc., required by NPDES permit
SPCC Plan
All records required by SPCC Plan
Oil transfer manual (33 CFR Pans 154 and 156)
Best management practices plan
Notices of noncompliance
Notices of violations
NPDES State or Federal inspection reports
Sewage treatment plant operator certification
Administrative Orders
Sewer line and storm drain layout
Local sewer ordinance
Local sewer use permit
Notification to local POTW
Old spill reports
O & M manuals
Training manuals
Repair/maintenance records for the wastewater treatment system.
Physical Features to Inspect:
Discharge outfall pipes
Wastewater treatment facilities
Floor drains
Sink drains
Above ground and underground oil storage tanks
Neutralization pits
Glass washing facilities.
People to Interview:
• Facility Manager
• Author of NPDES Monthly Operating Reports
• Enviromental Compliance Coordinator
• Treatment plant operator or wastewater engineer.
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• Facility does not discharge oil in quantities that
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• Facility is operating in compliance with require-
ments for equipment and methods to prevent oil
discharge from non-transponation-related on- and
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Control and Countermeasure (SPCC) Plan, if their
capacity to store oil exceeds the following:
- 42,000 gallons underground
- 1,320 gallons above ground
- 660 gallons in any single above ground
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- An amendment describing any spill event if
two or more have occurred in the past 12
months, including the corrective action taken
and plans for preventing a recurrence.
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NONHAZARDOUS SOLID WASTE
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CHAPTER 7. NONHAZARDOUS SOLID WASTE
Federal Statutes
Subtitle D of the Resource Conservation and Recovery Act (RCRA) established Federal
standards for management of nonhazardous solid wastes. The primary goals of the Subtitle
are to encourage environmentally sound solid waste management practices, recycling waste
material, and resource conservation. Subtitle D has two main parts:
• Mandatory technical standards for nonhazardous solid waste disposal facilities
Voluntary solid waste management grant programs for States.
Solid waste is defined as garbage, refuse, sludge, and other solid, liquid, semi-solid or
contained gaseous material which is discarded, has served its intended purpose, or is a
mining or manufacturing by-product.
Applicability
Section 6001 of RCRA requires Federal agencies to comply with the guidelines set
forth in the Act. The guidelines apply to all nonhazardous solid waste generated by Federal
agencies even if it is not processed or disposed of on Federal property.
The following types of facility operations may be subject to nonhazardous solid waste
rules:
• Thermal processing of more than 50 tons per day of municipal-type solid waste
• Collecting and storing residential, commercial and industrial solid waste
• Operating land disposal sites or using independent landfills for solid waste
disposal
• Selling beverage containers (e.g., soda vending machines on the property)
• Employing more than 100 employees and using high grade paper
• Purchasing products that contain recycled materials
• Purchasing cement and concrete that contain fly ash.
Regulatory Scope
Nonhazardous solid waste regulations applicable to Federal facilities are set out in 40
CFR Parts 240-249. The following areas require attention by facility personnel:
• Thermal Processing (40 CFR Part 240) - establishes guidelines for thermal
processing facilities designed to process or are processing 50 tons or more per
day of municipal-type solid wastes. The requirements delineate minimum levels
of performance in areas such as air quality, water quality, vectors and general
operations.
7-1
-------
• Land Disposal (40 CFR Part 241) ~ establishes minimum levels of performance
required of any solid waste land disposal facility. Facilities that use offsite land
disposal operations must ensure that these operations comply with the
guidelines.
• Storage and Collection of Residential Commercial and Institutional Solid Waste
(40 CFR Part 243) — establishes minimum levels of performance required of
solid waste collection operations. The requirements and recommended
procedures cover storage, safety, collection equipment, collection frequency
and management
• Beverage Containers Management (40 CFR Part 244) -- establish beverage
container recycling and return policies for all facilities that sell them.
• Promulgation of Resource Recovery Guidelines (40 CFR Part 245) --
establishes minimum actions for Federal agencies for planning and establishing
resource recovery facilities.
• Source Separation for Materials Recovery (40 CFR Part 246) -- establishes
guidelines for source separation of residential, commercial, and institutional
solid wastes. The key requirement of this part is that office facilities with more
than 100 workers separate high grade paper for recycling.
• Federal Procurement of Cement and Concrete Containing Fly Ash (40 CFR Part
249) — designates cement and concrete containing fly ash as a product area for
which affirmative procurement actions are required.
Sections 40 CFR Pans 254,255,256 and 257 deal with citizens suits for RCRA
noncompliance, the development of regional and State solid waste management plans, as well
as the classification of solid waste facilities and practices. Federal facilities would be subject
to these requirements as they are established in each State or region.
State and Local Regulatory Authority
Most States, counties and municipalities have received at least partial authority to
implement nonhazardous solid waste disposal programs. For example, New Jersey's
Recycling Act of 1987 mandates the segregation and recycling of at least three components of
household waste. The Act specifies that counties must institute mandatory recycling, but the
recycling may be implemented and enforced on a municipal basis. Many States add more
stringent requirements to operating land disposal facilities.
Selected Management Considerations
Agency management is responsible for ensuring conformance with Federal, State and
local nonhazardous solid waste regulations, associated facility standards, and ensuring
compliance with other environmental regulations related to the management of this waste.
Management has an inherent obligation to consider the following actions for enhancing
regulatory compliance:
• Establish and implement procedures for obtaining, evaluating and maintaining a
current file on relevant non-hazardous solid waste regulations, standards and
mandated operating procedures.
7-2
-------
• Develop standard operating procedures requiring modifications to existing
waste management practices equipment/supply procurement to be reviewed for
waste generating impact prior to implementation.
Compliance with non-hazardous solid waste requirements does not relieve agency
management of conformance with other regulations associated with the waste(s) being
managed, for example:
• High grade paper containing classified information, procurement sensitive data
or information pertaining to the privacy of individuals may need to be shredded
or otherwise treated prior to being released for waste recovery operations.
• Collections and sale of dinning facility garbage for use as animal food may
require agency management to ensure that the buyer will comply with public
health rules and regulations in the transportation, storage, treatment and use of
the garbage.
• Facilities converted for use as waste storage, processing and shipping areas
may need renovation for the new use to comply with fire and public health
regulations.
Agency management may well need to implement new and innovative practices and
procedures for a waste management program to be cost effective. Options that management
has an obligation to consider include:
• Coordinating with other nearby Federal agencies to consolidate similar type
wastes such that the resulting volume available for recycle/recovery becomes
cost effective to manage.
• Determining if the-supplier of the material that becomes a waste can also be
used, through contract provisions, as a recovered waste purchaser. Aluminum
beverage container recycling by the beverage supplier is a typical example of
such an option.
Agency Policy
Insert applicable agency policies here.
7-3
-------
AUDIT INFORMATION SOURCE LIST
Activity: Nonhazardous Solid Waste
Records to Review:
• Record of current nonhazardous solid waste management practices
• Documentation of locations (map) and descriptions of all nonhazardous
storageand transfer areas
• Records of operational history of all active and inactive TSDFs
• State and Federal inspection reports
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• Environmental monitoring procedures or plans
• Records of resource recovery practices, including the sale of materials for
the purpose of recycling
• Feasibility study of recycling high-grade paper
Physical Features to Inspect:
• Resource recovery facilities
• Incineration and land disposal facilities.
People to Interview:
• Thermal processing, land disposal, collection, storage, and resource
recovery facility operators
• Site manager.
7-4
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7-6
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HAZARDOUS WASTE
-------
CHAPTERS. HAZARDOUS WASTE
Federal Statutes
Many environmental and health problems associated with hazardous waste management
are controlled by the Resource Conservation and Recovery Act of 1976 (RCRA). The Act
regulates the generation, treatment and disposal of hazardous waste from "cradle to grave."
The Act also seeks to encourage alternatives to land disposal of hazardous waste through
recovery of useful material in order to reduce the waste volume. RCRA is also designed to
protect air, surface and groundwater from contamination due to improper handling of
hazardous waste.
RCRA was amended in 1984, with the passage of the Hazardous and Solid Waste
Amendments (HSWA). These changes brought thousands of small quantity generators,
previously exempted from reporting requirements, under the law. A very active RCRA
regulatory program has established reporting, record keeping, performance and operating
standards and requirements for all applicable facilities.
Applicability
Section 6001 of RCRA mandates that Federal facilities comply with all applicable
Federal, state and local requirements dealing with hazardous waste. A facility should review
RCRA and the implementing regulations if its waste exhibits hazardous characteristics, i.e.,
corrosivity, reactivity, ignitability or extraction procedure (EP) toxicity, or the facility
generates a specifically listed waste. Wastes excluded from regulation as hazardous are
household waste, crop or animal waste, mining overburden, and wastes from the extraction,
processing and liquification of ores and minerals, fly ash, bottom ash, slag, flue gas emission
control waste and drilling fluids and associated wastes from the production of oil and gas.
The regulatory classification of a facility is a function of the total amount of waste
generated and the length of time the waste is stored onsite.
The three classes of generators are:
• Conditionally exempt small quantity generators -- those generating hazardous
waste in amounts no more than 100 kilograms per month (kg/mo) and less than
1 kg of acutely hazardous waste -- including small laboratories, or even
building cleaning and maintenance that generates 220 pounds or half of a 55-
gallon drum.
• One hundred to 1,000 kg/month generators -- those generating hazardous
wastes in amounts greater than 100 and less than 1,000 kg/mo and less than 1
kg of acutely hazardous waste ~ including small industries such as vehicle
maintenance (waste oil and auto fluids), metal shops, printing, photography,
wood preserving and dry cleaning. The majority of laboratory operations are
small quantity generators.
• Full quantity generators — those generating hazardous wastes in an amount of
1,000 kg/mo or greater, and more than 1 kg of acutely hazardous waste -
including industrial operations and treatment facilities.
8-1
-------
All small quantity and full quantity generators of hazardous waste are required to have an
EPA identification number.
RCRA permits are required for Federal facilities where hazardous waste is treated,
stored or disposed. Although the program began in 1980, EPA and States have only recently
begun addressing Part B permit applications. Existing facilities have been given interim
status until a final RCRA facility permit is issued. Until that time, interim status facilities
must be in compliance with interim status regulations.
Regulatory Scope
Hazardous waste regulations are found at 40 CFR Pans 260-272. This regulatory
program establishes the following requirements:
• Hazardous Waste Management System (40 CFR Pan 260) -- contains criteria
for variances from the definition of solid waste, waste stream listings as well as
definitions pertinent to understanding RCRA.
• Hazardous Waste Identifications (40 CFR Pan 261) -- establishes criteria for
identifying a solid waste as a listed or characteristic hazardous waste. The listed
wastes are specific industrial processes or commercial chemical products. A
small percentage of the wastes are acutely hazardous and thus subject to more
restrictive generator requirements. The four hazardous characteristics are
ignitability, reactivity, corrosivity and EP toxicity.
• Requirements for Generators of Hazardous Waste (40 CFR Pan 262) -- cover
obtaining an EPA identification number; hazardous waste manifest system for
tracking waste from "cradle to grave"; pre-transpon packaging, labeling,
marking, placarding and accumulation time onsite; record keeping and reponing
requirements; and exponing and importing hazardous wastes.
• Requirements for Transporters of Hazardous Waste (40 CFR Pan 263) -- detail
requirements pertaining to receiving an EPA identification number,
implementing the manifest system; delivery to designated treatment, storage and
disposal facilities (TSDFs); record retention; and emergency discharge
procedure.
RCRA Pan B Permitted Facility Standards for TSDFs (40 CFR Pan 264) --
deal with material similar to interim status requirements with additional
provisions for individual waste units, and groundwater monitoring.
• Interim Status Standards for hazardous waste treatment, storage and disposal
facilities (40 CFR Part 265) -- cover preparing for and preventing hazards,
contingency planning and emergency procedures, a manifest system, record
keeping and reporting, ground water monitoring, facility closure requirements,
use and management of containers, and design and operating specifics on tanks,
surface impoundments, waste piles, land treatment units, landfills, and
incinerators. In addition, give general requirements for waste analysis, security
at facilities, inspection of facilities, and personnel training.
• Standards for the management of hazardous waste resource recovery and
recycling facilities (40 CFR Pan 266) -- detail special management provisions
for wastes created by small quantity generators and wastes such as oil that are
8-2
-------
intended to be reused or recycled. Obtain EPA waste minimization document
"Waste Minimization Opportunity Assessment Manual" (EPA/625/7-88/003)
July 1988.
• Land Disposal Restrictions (LDR) (40 CFR 268) — bans land disposal of
certain wastes. Congress, in HSWA, established specific deadlines for the land
disposal restriction of all hazardous waste. These restrictions are formulated
into regulation over the next few years and codified in this part. To date,
solvents and dioxin wastes as well as all "California list" and the "first third"
wastes have been restricted. All wastes will be land disposal banned effective
May 8, 1990. Under these bans, most wastes must meet stringent treatment
standards before they can be disposed of in a hazardous waste landfill. The
waste-specific treatment standards are contained in 40 CFR Parts 268.41,42
and 43. A "soft hammer" provision in the statute provides that if EPA has not
established treatment standards by deadlines, then LDR waste is prohibited
from disposal, with some exceptions listed in 40 CFR Part 268.8.
• Hazardous waste permit program (40 CFR Pan 270) ~ addresses permit
requirements for containers, tanks, surface impoundments, waste piles,
incinerators, landfills and underground injection control wells. Every
application must include provisions for "corrective action for all releases of
hazardous wastes or constituents" from any solid waste management unit at the
facility, regardless of when the waste was placed there.
• State authorization requirements (40 CFR Pans 271, 272) -- outline the
procedures by which a State obtains authorization to implement the RCRA
program in lieu of the Federal government.
• Hazardous materials transportation regulations which .are applicable to waste
handling (49 CFR Parts 171-177) - set forth proper shipping standards.
In addition to these regulations, many publications explaining the RCRA program are
produced by the Office of Solid Waste, established within EPA under RCRA. Questions can
also be answered by calling the EPA RCRA/Superfund Hotline (1-800-424-9346).
State and Local Regulatory Authority
Although most States now have received authorization to run their own RCRA
program, EPA still supervises State regulatory operations. The most significant differences
between State and Federal law generally address the following:
• The definition of hazardous waste; e.g., the State of New Jersey considers
waste oil as hazardous waste and the Federal law does not
• The definition of small quantity generator and length of time a waste can be
stored onsite
• State storage criteria; e.g., the State of New Jersey does not allow storage of
hazardous waste in "waste piles" under any circumstances. Such storage is
allowed under Federal regulations.
8-3
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Forty-two states have RCRA-implementing authority within their environmental program.
The states without RCRA authority are Alaska, California, Connecticut, Hawaii, Idaho,
Iowa, Ohio and Wyoming.
Selected Management Considerations
Agency management is responsible for ensuring conformance with Federal, State, local
and regional hazardous waste standards, for initiating timely requests for permit amendments
and renewals, and for timely notification of enforcement agencies of the existence of certain
non-conformance situations. The following actions can improve compliance:
• Establish and implement procedures for obtaining, evaluating and maintaining a
current file on relevant hazardous waste standards.
• Establish and maintain a file for permit-related milestones.
• Establish and maintain a quick-reference file of site-specific operating condition
excursions (i.e. spills and similar releases of hazardous substances to the
environment), time limits for reporting and an enforcement agency point-of-
control listing for such episodes.
• Develop standard operating procedures for TSDF equipment modifications and
for new hazardous materials procurement to ensure review for permit
compliance prior to implementation or use.
Agency management has an inherent responsibility to train management staff as well as
line staff in their responsibilities and vulnerabilities under the provisions of RCRA and
associated regulations. The frequency as well as the scope of training are dependent on the
extent and nature of use of hazardous materials at the facility.
Operations involving hazardous materials and wastes may require compliance with
other regulations besides those pertaining to hazardous waste. A material balance approach to
hazardous material/waste operations can provide documentation necessary to determine
applicability of other environmental and occupational safety and health regulations. The
balance can show material loses through ventilation/hood exhausts (normally governed by
CAA), dawn floor/sink drains (normally governed by CWA), or via mixing with non-
hazardous solid waste (normally governed by other RCRA provisions). The balance can also
show where employees may be exposed to the hazardous material wastes (normally governed
by OSHA).
RCRA listed and characteristic wastes should be considered as a top priority item for an
agency's waste minimization program. Costly and restrictive hazardous waste disposal
requirements may justify modifying equipment producing the waste, or substituting less
hazardous materials for the problem hazardous materials. Such considerations should be
made/revisited at least yearly or more frequently if the technology is making rapid
advancements.
Agency Policy
Insert applicable agency policies here.
8-4
-------
AUDIT INFORMATION SOURCE LIST
Activity: Hazardous Waste
Records to Review:
Generator (including TSDFs if they are also generators):
Notification (EPA ID#)
Hazardous waste manifests
Manifest exception reports
Biennial reports (large quantity generators only)
Delistings
Speculative accumulation records
Land disposal restriction certifications
Employee training documentation
Hazardous waste tank integrity assessments
Contingency plan Garge quantity generators only)
Notifications of hazardous waste oil fuel marketing or blending activity.
In addition to the above, TSDFs would require:
Unmanifested waste reports
Facility audit reports (Inspection log)
Waste Analysis Plan(s)
Operating record
Ground water monitoring records and annual reports
Facility Biennial reports
Closure/Post Closure Plans
Closure/Post Closure Notices (where applicable)
Other documents as required by the Permit.
Physical Features to Inspect:
Hazardous waste storage building
Landfills
Surface impoundments
Incinerators
Waste piles
People to Interview:
• Environmental Compliance Coordinator
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obtains a full RCRA Pan B operating permit. The
Part 264 technical provisions, Subpans I-X are, in
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ments without manifests or shipments with
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requirements, and is recorded in the facility's
biennial report with all other required informa-
tion as specified.
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Units TSDF is complying with the operating re-
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UNDERGROUND STORAGE TANKS
-------
CHAPTER 9. UNDERGROUND STORAGE TANKS
Federal Statutes
The 1984 amendments to the Resource Conservation and Recovery Act (RCRA) included
provisions to prevent leaks from underground storage tanks (UST), mandating a
comprehensive regulatory program for USTs that store petroleum, petroleum by-products (i.e.,
gasoline and crude oil) or substances defined as hazardous under CERCLA Section 101(14).
An underground storage tank is defined as any combination of tank and underground pipes
where the volume of the tank is 10 percent or more beneath the ground surface (including
underground piping).
Section 9002 of RCRA barred the installation of unprotected tanks after May 7,1985.
All new USTs must meet corrosion protection requirements. In addition, the EPA or
designated State agencies must be notified of the presence of existing regulated USTs.
Provisions in the new UST program required EPA to develop regulations for new tanks
including design, construction, installation release detection and compatability standards. This
rule was promulgated September 23,1988, and became effective December 22, 1988.
Applicability
Any Federal facility that owns an UST containing a regulated substance is subject to the
provisions of RCRA, as specified in Section 6001. Federal facilities are not subject to the
financial responsibilities of the UST regulations. In addition, the regulations do not apply to
the following:
• Tanks holding a RCRA Subtitle C hazardous waste
• Farm or residential tanks storing fuel for consumptive use with a capacity of less
than 1,100 gallons
• Tanks storing heating oil used exclusively for heating on the premises
• Septic tanks
• Pipelines regulated under other laws
• Surface impoundments, pits, ponds or lagoons
• Storm water or wastewater collection systems
• Flow-through process tanks
• Storage tanks located in an underground area such as a basement
• Liquid traps or associated gathering lines directly related to oil and gas production
and gathering.
Agency management must compare their tank operations with these descriptions of tank use to
determine the applicability of regulations to each facility.
9-1
-------
Tanks deferred from portions of the requirements include:
• Wastewater treatment tank systems
• USTs containing radioactive substances regulated by the Atomic Energy Act
• USTs that are part of an emergency generator system at facilities regulated by the
Nuclear Regulatory Commission
• Airport hydrant fuel distribution systems
• UST systems with field constructed tanks.
These deferred tanks are subject only to the corrective action provisions of the new regulations.
UST systems storing fuel solely for use by emergency power generators are subject to all
provisions of the regulations except release detection.
Regulatory Scope
UST regulations applicable to Federal facilities are found at 40 CFR Part 280. A brief
description of the requirements follows:
Program Scope (40 CFR Part 280.10) -- gives definitions for the UST program
and applicability of the regulations to each system.
• Tank Design, Construction and Installation (40 CFR Part 280.20) -- requires
cathodic protection and equipment to prevent spills and overfills; also requires
UST owners/operators to register each tank with the appropriate State agency.
General Operating Requirements (40 CFR Part 280.30) -- requires
owner/operator be present at all times when tank is filled and make regular
inspections of corrosion protection equipment.
Release Detection (40 CFR Pan 280.40) -- requires all new UST systems to be
installed with release detection systems. Special requirements for hazardous
substance USTs are outlined.
Release Reporting and Corrective Action (40 CFR Parts 280.50 and 280.60) --
requires notification of an oil spill in excess of 25 gallons in a 24-hour period or
hazardous substances exceeding reportable quantities.
• UST Closure (40 CFR Part 280.70) -- provides closure requirements, including
tank and site assessments.
State and Local Regulatory Authority
Several States have, or are developing, regulatory programs for underground storage
tanks. EPA has allowed, in some instances, interim approval for States to implement their own
UST programs. After a one to three-year grace period, however, State requirements must be
no less stringent than Federal requirements. It is often State personnel who request
information from tank owners, inspect and sample tanks, and monitor and test tanks under
enforcement of the new regulations.
9-2
-------
Selected Management Considerations
UST regulations apply to abandoned as well as presently used tanks. Because of the
expense of removing an UST, past practices frequently included capping and abandoning
leaking or obsolete tanks. Agency management may need to review installation records or
speak with retired employees to determine the location of abandoned USTs. Tanks taken
abandoned after January 1, 1974, are subject to the notification requirements.
Agency mangement is responsible for USTs on land controlled by the agency even if the
USTs were installed by a previous owner. This situation normally occurrs when an agency
takes contorl of land excessed through GSA by another agency. Although present GSA policy
requires certification of the land as being free of environmental contaminants such as from
leaking UST, this is relatively new requirement. When land was acquired in such a manner,
agency management is responsible for taking timely actions to identify USTs.
Agency Policy
Insert applicable agency policies here.
9-3
-------
AUDIT INFORMATION SOURCE LIST
Activity: Underground Storage Tanks
Records to Review:
• Results of all UST testing, sampling, monitoring, inspection, mainte-
nance, and repair work (for past 1 year)
• Notification records for all in-service, temporarily out-of-service, and
permanently closed tanks
• Records of all spills, leaks, and associated site assessment/cleanup activi-
ties (for past 3 years)
• Records for UST disposal, closure and removal activity and results of
excavation area assessment (for past 3 years)
• Official correspondence with State implementing agency.
Physical Features to Inspect:
• Underground storage tank and vicinity
• Venting
• Maintenance manhole
• Fill pipe
Tank gauge.
People to Interview:
• Facility manager (person responsible for the daily operation of the UST
system.)
• Tank installer
• Environmental Compliance Coordinator.
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9-4
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ing agency.
9-7
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-------
PAST DISPOSAL OF
HAZARDOUS MATERIALS
-------
CHAPTER 10. PAST DISPOSAL OF HAZARDOUS
MATERIALS
Federal Statutes
The Resource Conservation and Recovery Act (RCRA) and the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) both mandate
assessment of past practices related to the treatment, storage or disposal of hazardous waste.
While RCRA primarily deals with current and future waste handling, several sections
of the Act require discovery or identification:
• Every application submitted for a RCRA Part B permit must include "corrective
action for all releases of hazardous waste or constituents" from anywhere in the
facility, regardless of when the waste was placed there. The permit applicant
thus must provide full disclosure of all wastes within the facility's boundaries
since the site was originally opened, and must provide for action to abate any
damage that any release of this material has caused (Section 3005).
• Upon request from the State, facilities must compile, publish, and submit
information relating to on-site waste storage and disposal that has taken place
before permits were required. Specifically the amount, nature and toxicity of
such waste must be ascertained, and any resulting health or environmental
hazards must be assessed for these hazardous waste site inventory reporting
requirements (Section 3012).
• Federal agencies must submit to the EPA or State an inventory of hazardous
waste sites that Federal agencies own or operate, or have owned or operated in
the past (Section 3016).
Section 6003 of RCRA adds to these inventory requirements for Federal agencies by stating
that all Federal agencies must promptly make available upon request of the EPA
Administrator all information concerning past or present waste management practices.
CERCLA was enacted in 1980 to address problems posed by past uncontrolled
hazardous waste disposal practices. Section 120 of CERCLA, as amended, mandates that
Federal agencies must comply with the Act's requirements to the same extent as private
entities.
Various provisions in CERCLA provide for the discovery or identification of past
practices:
• Section 103(a) requires persons, which includes Federal agencies, to notify the
National Response Center (800-424-8802) of an off-site release of a reportable
quantity of a hazardous substance.
• Section 103 (c) required persons to notify the EPA by June 9, 1981, of known
or suspected hazardous waste sites. EPA has had minimal involvement with the
Federal agencies' attempts to identify potential sites.
10-1
-------
• Section 120(a) requires a Preliminary Assessment to be conducted at Federal
facilities listed on the Federal Agency Hazardous Waste Compliance Docket
(published at 53 FR 4280, February 12, 1988).
Section 120(h) outlines procedures for property transfer by Federal agencies.
Facilities must include in the transfer contract, information regarding the type
and quantity of hazardous substances stored for one year or more, or known to
have been released or disposed of on-site. The contract must include notice of
the time at which such storage, release or disposal took place. The report is to
be based on available data from agency files.
Each of these CERCLA provisions illustrate how Federal agencies must comply with the
act's requirements to the same extent as private entities.
Applicability
Federal agencies can be held responsible for toxic/hazardous materials left behind on
their properties. The following situations could prompt an investigation of past activities:
• Buying or selling land or buildings
• Applying for a RCRA Part B permit.
Past activities which lead to potential problems in buildings/structures or land areas include
the following:
• Industrial/commercial or agricultural land use
• Toxic material containing equipment, such as transformers
• Contamination sources off-site
• RCRA facilities with potential abandoned or uncontrolled hazardous waste on-
site.
Regulatory Scope
The following regulations implement the RCRA and CERCLA past practices
investigations:
• Hazardous Waste Permit Program (40 CFR Part 270) ~ provides general
RCRA Part B application requirements.
• National Contingency Plan (40 CFR Pan 300.68) -- sets requirements for
preliminary planning.
Proposed Rules (53 FR 850) - on January 13, 1988 EPA proposed a new rule,
40 CFR 373, which includes general requirements, applicability, and the
contents of the notice that Federal facilities must provide when transferring
facilities. The rule applies to transfer of property (including buildings) on
which a hazardous substance was stored for one year or more, or known to
have been released or disposed.
10-2
-------
State and Local Regulatory Authority
State Superfund laws concerning removal, remediation and enforcement apply to
CERCLA actions at Federal facilities when these facilities are not included on the National
Priorities List (NPL). All but nine States have a "superfund" used to clean up hazardous
waste.
Selected Management Considerations
Agency management is responsible for making every reasonable effort to comply with
the disclosure requirements described in this chapter. When the property has been used by
the Federal government or others prior to the present agency's control, a concerted effort to
determine previous disposal practices by others must be made. Actions that may be taken by
the present agency in their efforts to document past practices include:
• Conducting a real estate records search to determine past owners/land users.
• Interviewing senior personnel/long term area residents as to operations
conducted on the land.
• Requesting other Federal agencies to conduct record searches — to include
records sent to national records retention archives when necessary.
• Reviewing site maps and other documents to determine the types of operations
most probably conducted in existing/previously existing structures.
Agency management staff may not be able to satisfy the information requirements of
this chapter through a review of only their records maintained on-site.
Agency Policy
Insert applicable agency policy here.
10-3
-------
AUDIT INFORMATION SOURCE LIST
Activity: Past Disposal of Hazardous Materials
Records to Review:
• RCRA Pan B Permit
• National Response Center notification documentation
• Preliminary Assessment (CERCLA)
• Federal Agency property transfer contract.
Physical Features to Inspect:
• Disposal sites.
People to Interview:
• Senior Personnel
• National Response Center personnel.
mCfl
10-4
-------
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EMERGENCY PLANNING
COMMUNITY RiGHT-TO-KNOW
-------
CHAPTER 11. EMERGENCY PLANNING AND COMMUNITY
RIGHT-TO-KNOW
Federal Statutes
The Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA),
promulgated along with the Superfund Amendments and Reauthorization Act of 1986
(SARA), was designed to promote emergency planning efforts at State and local levels and
provide citizens and local governments with information concerning potential chemical
hazards in their communities. The Act, known as Title HI, imposes requirements for
facilities to provide emergency hazardous chemical release notification, chemical inventory
reporting and toxic chemical release reporting. State emergency response commissions and
local emergency planning committees have been appointed within each state to receive this
information and to use it for chemical emergency preparation and community awareness.
Applicability
Federal facilities are not required by statute to comply with the provisions of SARA
Title in because Federal agencies are not included in the definition of a "person" contained in
Section 329 (7) of the Act. Some Federal agencies, however, have instituted policies
requiring their facilities to comply with the intent of the law if it applies to their operations.
Contractor operations are not exempted by definition under the Act and are therefore subject
to the provisions of Title HI.
Regulatory Scope
The major provisions of Title HI include the following:
Emergency Planning (40 CFR Part 355.30) - establishes the State and local
structure to prepare for chemical emergencies. In addition, planning
requirements apply if the facility has an extremely hazardous substance on-site
which exceeds its threshold planning quantity (TPQ).
• Emergency Release Notification (40 CFR Part 355.40) ~ requires facilities to
notify the local emergency planning committee and State emergency response
commission immediately following an off-site release of a importable quantity of
extremely hazardous substance.
• Community Right-to-Know Reporting Requirements (40 CFR Part 370) -
establishes requirements for facilities to submit to State, local groups and the
local fire department information provided by a Material Safety Data Sheet
(MSDS) and Emergency and Hazardous Chemical Inventory (Tier 1 and 2).
• Toxic Chemical Release Reporting Emissions Inventory (40 CFR Part 372) -
establishes reporting system for notifying EPA of toxic chemical releases from
designated manufacturing facilities thresholds.
11-1
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State and Local Regulatory Authority
Title in gives States the authority to implement the law's requirements. It is the
responsibility of each State Governor to assign an agency within the State to be responsible
for receiving and compiling Title ffl information. Many States have enacted their own
community right-to-know laws that are separate from the Federal EPCRA. State community
right-to-know often have the same exemptions as EPCRA, however, the State provisions
should be investigated.
Selected Management Considerations
While Federal facilities may not be required to conform with Title in by statute or
agency policy, the following management recommendations are designed to facilitate quick
and effective emergency response:
• Compile and maintain an inventory of the hazardous chemical substances
present at the facility. The inventory could include reportable quantities and
threshold planning quantities (TPQs) of each of the hazardous substances listed.
This is a valuable aid for assessing the applicability of Title ffl regulations.
• Contact the local fire department and coordinate an exchange of information
about facility operations, chemical inventories and chemical locations.
• Designate a facility representative to participate in the local emergency planning
process if there are extremely hazardous substances on site.
Federal agencies may find that much of this information is being shared already with the local
community emergency services units as a commonsense approach to agency disaster
planning.
Agency Policy
Insert applicable agency policies here.
11-2
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AUDIT INFORMATION SOURCE LIST
Activity: Emergency Planning and Community
Right-to-Know
Records to Review:
• Policy establishing whether or not the agency will comply with all or
portions of Title III.
People to Interview:
• Headquarters Manager of Environmental Compliance Program
• Environmental Compliance Coordinator
(A checklist for Emergency Planning and Community Right-to-Know is
not provided because Federal facilities are not required by the statute to imple-
ment the provisions of Tide IE. Caution: obtain agency policy regarding Title
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11-3
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PCB MANAGEMENT
-------
CHAPTER 12. PCB MANAGEMENT
Description
The Toxic Substances Control Act (TSCA) of 1976 required EPA to regulate harmful
new chemicals entering commerce and control those toxic substances already in commercial
use. TSCA was enacted to reduce unreasonable risk to human health and the environment
from harmful chemicals. TSCA provides a means to regulate persons who manufacture,
process, distribute in commerce, use or dispose of toxic chemical substances or mixtures.
Specifically, Section 6 of TSCA addresses the need to regulate polychlorinated biphenyls
(PCBs). The subsequent regulations for the control of PCBs are codified in
40 CFR Part 761.
Applicability
TSCA primarily applies to manufacturers, distributors, processors and importers of
chemicals. All Federal facilities, however, who own or operate any PCB items are subject to
TSCA regulations. Any facility using PCBs in or for the following must be aware of the
applicable regulations:
Transformers
Railroad transformers
Heat transfer and hydraulic systems
Electromagnets, switches or voltage regulators
Circuit breakers, reclosers or cables
Capacitors
Pigments
Microscopy
Research and analysis.
All facilities distributing, processing, using, servicing, storing, disposing or formerly
manufacturing PCBs or PCB items are subject to the PCB regulations discussed in this
chapter.
Regulatory Scope
All regulations pursuant to TSCA controlling the use, processing, distribution, storage
and disposal of PCBs are codified in 40 CFR Part 761. The regulatory requirements are:
• Applicability (40 CFR Part 761.1) — describes the activities and substances
which are subject to PCB regulations.
• Definitions (40 CFR Pan 701.3) -- provides operable definitions for the PCB
regulations. Important definitions are included in this section; e.g., "PCB
Transformer means any transformer that contains 500 ppm PCB or greater."
Prohibitions (40 CFR Part 761.20) -- prohibits the use of any PCB or PCB
item other than in a totally enclosed manner. No person may manufacture
PCBs for use within the Unites States or manufacture PCBs for export without
an exemption.
12-1
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• Authorizations (40 CFR Part 761.30) -- authorizes certain uses, and defines use
conditions for PCBs and PCB equipment (e.g., transformers, capacitors).
• Marking (40 CFR Part 761.40) -- describes certain labeling requirements for
PCBs, PCB items, and doors or means of access to PCB transformers and
PCB storage for disposal areas.
Disposal (40 CFR Part 761.60) - lists the disposal requirements for PCBs,
PCB transformers and capacitors. Identifies incineration, high efficiency
boiler, and landfilling as options for disposal.
Storage for Disposal (40 CFR Part 761.65) -- lists the storage for disposal
requirements for certain PCBs and PCB items. These include container
options, marking, recordkeeping and storage facility requirements.
• Incinerators (40 CF^ Part 761.70) -- applies to facilities that operate
incinerators for the disposal of PCBs. Describes the permit, and incinerator
specifications required to be approved by EPA.
• Chemical Waste Landfills (40 CFR Part 761.75) - applies to facilities operating
landfills to dispose of PCBs.
• Decontamination (40 CFR Part 761.79) -- lists specific procedures for
decontaminating PCB containers and equipment.
PCB Spill Cleanup Policy (40 CFR Part 761.120) -- provides policy for
facilities that have encountered a spill of oil containing more than 50 ppm
PCBs. Spills are categorized into low and high concentration, and special
instructions are provided for the clean up, verification sampling and
recordkeeping.
• Recordkeeping (40 CFR Part 761.180) ~ requires facilities that use or store
more than 45 kg of PCBs, or one or more PCB transformers, or 50 or more
large PCB capacitors, to develop and maintain records on the disposition of
those items. Annual document and recordkeeping requirements are specified in
this section.
State and Local Regulatory Authority
Although States do not have the authority to administer TSCA regulations, some States
have declared PCB wastes a hazardous waste. These States (e.g., Rhode Island) have some
control over the management of PCB wastes. For example, they may impose a shorter
accumulation time and lower quantity limit on facilities storing PCBs for disposal.
Additionally, States may regulate materials containing PCBs in concentrations less than the
50 ppm limit imposed by TSCA regulations. The State of Washington regulates PCB wastes
containing PCBs in excess of 1 ppm.
It is essential that Federal facilities storing PCBs for disposal be familiar with the State
hazardous waste regulations and the restrictions they may impose on PCB waste handling
and disposal.
12-2
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Selected Management Considerations
Agency management is responsible for ensuring conformance with TSCA. The
following recommendations will further enhance the control of PCB-containing items and
waste:
• Verify whether electrical equipment (especially transformers and including
fluorescent lights) contains PCBs in excess of 50 ppra Verification should be
in the form of a gas chromatograph analysis. Maintain written verification at the
facility.
• Clean up spills of PCB materials with concentrations of less than 50 ppm to the
background levels required for higher concentration spills (40 CFR Part
761.125). Document spill cleanups.
• Document the intended reuse of PCBs stored for reuse on-site so auditors do
not mistake the material as PCBs stored for disposal. PCB items that are stored
for reuse are regulated much less stringently than those stored for disposal.
• Consider installing secondary containment for PCB-containing equipment
located in sensitive areas.
• Use PCB waste minimization programs to minimize disposal costs.
Agency Policy
Insert applicable agency policy here.
12-3
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AUDIT INFORMATION SOURCE LIST
Activity: PCB Management
Records to Review:
• Inspection, storage, maintenance and disposal records for PCBs/PCB items
PCB equipment inventory and sampling results
• Correspondence with regulatory agencies concerning PCB noncompliance
situations
• Annual documents.
Physical Features to Inspect:
• PCB storage areas
• Equipment, fluids and other items used or stored at the facility that
contain PCBs.
People to Interview:
• Environmental Compliance Coordinator
• Facilities Manager
• Electrical Maintenance Staff.
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local fire response personnel. (See Part 761.30)
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PESTICIDES
-------
CHAPTER 13. PESTICIDES
Federal Statutes
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) was enacted in 1947
and amended by the Federal Environmental Pesticide Control Act of 1972, which shifted the
emphasis of the legislation from safeguarding the consumer against fraudulent pesticide
products to the protection of public health and the environment. FIFRA was further amended
in 1975, 1978, and 1980 during reauthorization. Under FIFRA, EPA is responsible for the
registration of new pesticides and the reregistration of all existing pesticides to ensure that,
when used according to label directions, they will not present unreasonable risks to human
health or the environment. FIFRA regulations apply to persons who manufacture, market,
formulate, distribute, use or dispose of pesticides.
Applicability
All Federal government agencies are required to comply with the regulations specified
in FIFRA. Section 18, Exemption of Federal Agencies, states that the Administrator may
exempt any Federal or State agency from any provision of FIFRA if EPA determines that
existing emergency conditions warrant such an exemption. In addition, under Section 4, a
Federal agency, with EPA approval, may establish its own certification program for
applicators of restricted use pesticides to enable Federal employees to apply such pesticides.
Outside of these special circumstances, however, all Federal facilities formulating,
distributing, using, storing or disposing of pesticides are subject to FIFRA regulations.
Areas covered include:
• All Federal buildings and grounds
• Research stations
• National parks, wilderness areas, and other public land
• Areas in the vicinity of public roads, electric power lines, pipelines, and railway
rights-of-way
• Public health programs
• Pesticide demonstration and research programs
• Products developed by the Federal Government that contain FIFRA-regulated
materials.
Regulatory Scope
Pesticide regulations applicable to Federal facilities are found at 40 CFR Parts 150-180.
The following regulations require attention by a Federal facility:
• Good Laboratory Practices Standards (40 CFR Part 160) -- prescribes good
laboratory practices for conducting studies in support of applications for
13-1
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pesticide registration or experimental use permits. Outlines regulatory
requirements for organization and personnel, facilities, equipment, testing
facilities, operation, test and control substances, protocols and conduct, and
records and reports.
Disposal and Storage of Pesticides (40 CFR Part 165) -- specifies the
regulations and procedures for the disposal or storage of pesticides, pesticide
containers, and pesticide-related wastes, and for the acceptance for safe disposal
by EPA of pesticides whose registration has been cancelled.
• Exemption of Federal and State Agencies for Use of Pesticides Under
Emergency Conditions (40 CFR Part 166) -- describes four types of emergency
exemptions for Federal and State agencies which may be authorized by EPA:
specific, quarantine, public health, and crisis.
Worker Protection Standards for Agricultural Pesticides (40 CFR Part 170) -
specifies occupational safety and health standards ("reentry times") for all
persons performing hard labor operations in fields after ground (other than soil
incorporation), aerial, or other types of pesticide application. Authorizes State
regulatory agencies to set and enforce standards more restrictive than Federal
standards.
Certification of Pesticide Applicators (40 CFR Part 171)- outlines the
requirements for applicators of restricted use pesticides. Includes the
categorization of commercial applicators, standards for certification of
commercial and private applicators and supervision of noncertified applicators,
submission and approval of State plans for applicator certification programs,
maintenance of State plans, submission and approval of government agency
plans, certification of applicators oh Indian Reservations, and Federal
certification of applicators in States or on Indian Reservations without an
approved certification plan in effect. Deficiencies in application procedures or
applicator training programs may result in adverse effects on human health or
the environment.
• Experimental Use Permits (40 CFR Part 172) -- outlines the requirements for
Federal or State issuance of Experimental Use Permits (EUPs) to persons
wishing to accumulate data necessary to support the registration of either a new
pesticide or a particular use of a pesticide not previously approved in the
registration of that pesticide. Includes regulations governing authorization by
EPA of State EUP programs.
There are many pesticides or certain uses of particular pesticides for which registration
has been suspended or cancelled. The facility should refer to Suspended, Cancelled and
Restricted Pesticides, EPA, Office of Pesticides and Toxic Substances, January 1985, 3rd
Revision.
State and Local Regulatory Authority
The 1972 amendments to FEFRA authorized "cooperative enforcement agreements"
between EPA and the States. In the 1972 amendments, the States were given primary
enforcement responsibility for pesticide use violations, subject to oversight by EPA.
Through cooperative enforcement agreements, all States, with the exception of Nebraska and
Wyoming, have assumed primary enforcement responsibility. Restricted use pesticide
13-2
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applicator certification and training programs are also conducted by the States, except in
Colorado, which has a program only for commercial applicators, and in Nebraska, where
EPA conducts the certification program. The State agency with lead responsibility for
pesticides, generally the State Department of Agriculture, handles all reports of pesticide
misuse or accidents.
Selected Management Considerations
Federal agencies using pesticides should consider developing pesticide management
techniques that protect non-target species and their habitats, particularly endangered species.
Agency Policy
Insert applicable agency policies here.
13-3
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AUDIT INFORMATION SOURCE LiST
Activity: Pesticides
Records to Review:
• Records of pesticides purchased by the facility (purchase orders,
inventory)
• Pesticide application records
• Description of the facility's pest control program
• Certificates of applicators of restricted-use pesticides
• Facility applicator certification and training program, including
documentation of Federal approval of the program
• Pesticide disposal manifests
Pesticide experimental use permits (EUP) granted to the Federal agency
• Records of pesticide use under all EUP's, including statements of compliance
with Good Laboratory Practice Standards
• Any emergency exemption granted to the Federal agency by EPA.
Physical Features to Inspect:
• Pesticide storage areas, including storage containers
• Pesticide research facilities, including laboratories, greenhouses, and test plots.
Personnel to Interview:
• Pesticide applicators (certified and non-certified)
• Administrator of facility's pest control program.
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13-7
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RADIOACTIVE MATERIALS
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CHAPTER 14. RADIOACTIVE MATERIALS
Federal Statutes
The major laws pertaining to the use of radioactive materials include the Atomic Energy
Act, Uranium Mill Tailings Radiation Control Act, Low-Level Waste Policy Act and Nuclear
Waste Policy Act. A brief description of each act follows:
• The Atomic Energy Act (AEA) establishes a program of Federal regulation of
atomic energy and materials, including source, special nuclear and byproduct
material. (This protocol only addresses byproduct materials.) The Act includes
protection of the public from radiation exposure.
• The Uranium Mill Tailings Radiation Control Act (UMTRCA) requires proper
disposal of uranium mill tailings and uranium byproduct materials. It is an
amendment to the AEA.
• The Low-level Waste Policy Act (LLWPA) establishes the disposal of low-level
radioactive materials as a State responsibility and encourages the formation of
intrastate compacts to manage low-level waste on a regional basis.
• The Nuclear Waste Policy Act (NWPA) provides for the development of
repositories for the disposal of high-level radioactive waste (HLW) and spent
nuclear fuel, and establishes a program of research, development and
demonstration regarding the disposal of high-level waste and spent nuclear fuel.
In addition to those acts noted above, the Clean Air Act addresses airborne radionuclide
emissions, and the Safe Drinking Water Act limits radioactivity in community water systems.
Limits provided for in these acts are not restricted to byproduct materials.
Applicability
Regulations pursuant to the acts discussed above apply to many types of Federal
operations, such as:
• Uranium foundry and operations
• Nuclear weapons research and development
• Nuclear weapons activities
• Nuclear reactors for research or power generation
• Laboratory/research/field operations using byproduct radioactive sources,
standards or samples
• Radiographic operations
• Medical practices involving radiation.
14-1
-------
All Federal facilities using, storing or disposing of byproduct radioactive materials must be
aware of the applicable regulations and license provisions. Both specific and general license
for use of radioactive materials may be applicable to Federal agency operations.
Regulatory Scope
The following environment, health and safety regulations are promulgated pursuant to
theAEA:
• Notices, Instructions, and Reports to Workers (10 CFR Part 19) - establishes
requirements for handling radioactive material, including posting of notices to
workers, instructions to workers, and workers rights to the results of
monitoring data.
• Standards for Protection Against Radiation (10 CFR Part 20)-- establishes
permissible doses levels and concentrations of radiation, precautionary
procedures, and waste disposal procedures; also addresses licensed activities.
• General Requirements for Byproduct Materials (10 CFR Part 30) -- describes
general provisions, exemptions, and licenses for byproduct material.
• General Domestic Licenses for Byproduct Material (10 CFR 31) — authorizes
users to transfer, receive, acquire, own, possess and use byproduct material
incorporated into certain devices and equipment.
Waste classification (10 CFR Part 61.55) - establishes the classes used for
identifying and labelling radioactive waste.
• Packaging and Transportation of Radioactive Material (10 CFR 71) -- provides
general provisions applicable to individuals who package licensed byproduct
material and arrange for transport off-site.
• Environmental Radiation Protection Standards for Nuclear Power Operations
(40 CFR Part 190) --
• Environmental Radiation Protection Standards for Management and Disposal of
Spent Nuclear Fuel, High-level and Transuranic Radioactive Wastes (40 CFR
Part 191)
In addition, the UMTRCA is implemented by the health and environmental protection
standards for uranium mill tailings (40 CFR Part 192).
The EPA and the NRC have an on-going joint effort to regulate low-level radioactive
waste. The proposed regulation includes:
(48 FR 39563) ~ on August 31, 1983, EPA published its intent to develop
standards for low-level radioactive waste disposal, and to determine, if
possible, some limit of exposure from the disposal of radioactive waste below
which radiation-related regulation is not warranted.
(52 FR 11147) - on April 7, 1987, EPA and NRC provided guidance to NRC
licenses on the definition and identification of commercial mixed low-level
waste. This is defined as waste that:
14-2
-------
Satisfies the definition of low-level radioactive waste (LLW) in the
Low-Level Radioactive Waste Policy Amendments Act of 1985 (detailed
in 10 CFR Part 61.2), that is, radioactive waste not classified as HLW,
transuranic waste, spent nuclear fuel, or byproduct material as defined
in Section 1 l(e)(2) of the AEA (uranium or thorium tailings and waste;
and
Contains hazardous waste that is listed in RCRA regulation 40 CFR Part
261 Subpart D or exhibits a hazardous waste characteristic as described
in 40 CFR Part 261 Subpart C.
State and Local Regulatory Authority
The EPA established provisions for State regulatory authority over the commercial
uses, licensing, and disposal of byproduct radioactive materials. Sovereign immunity,
however, protects Federal facilities from State and local regulations. Therefore, State and
local requirements do not govern the management of nuclear material at Federal facilities.
Selected Management Considerations
Agency management is responsible for knowing and complying with the applicable
regulations for the radioactive materials it uses or the waste it generates. Since mixed-LLW
must currently be managed and disposed of in compliance with both EPA and NRC
regulations, there is a benefit for facilities to minimize the generation of mixed-LLW through
management practices such as waste segregation, materials substitution and materials
tracking.
Mixed-LLW temporarily stored to reduce the level of radioactivity prior to disposal or
treatment retains the mixed-LLW designation regardless of the levels of radioactivity; even if
below regulatory concern. A Federal facility should not exceed hazardous waste storage
time or quantity limits due to storing for the purpose of radioactivity reduction.
Agency Policy
Insert applicable agency policies here.
14-3
-------
AUDIT INFORMATION SOURCE LIST
Activity: Radioactive Materials
Records to Review:
• Equipment calibration inspection records
• Credentials of dosimetry processor
• Specific license and amendments
• General license reference
• Forms used to record rad dose
• Inventory of byproduct material
• Required postal documents
• Minutes of radiation safety committee
• Procedures for procurement of byproduct material
• NRC and State inspection records
Physical Features to Inspect:
• Restricted areas
• Radioisotope storage and disposal areas
• Laboratory equipment
People to Interview:
• Radiation Safety Officer
• Facilities Manager
• One or more of the authorized users.
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ENVIRONMENTAL NOISE
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CHAPTER 15. ENVIRONMENTAL NOISE
Federal Statutes
The Noise Control Act of 1972 established that Federal agencies, when engaged in an
activity resulting in the emission of noise, should comply with Federal, State, interstate, and
local requirements respecting control and abatement of environmental noise to the same extent
as private entities. Even though the primary operational interest of this legislation, as well as
of the Aviation Safety and Noise Abatement Act, is directed to aircraft and airports, the
principles involved are applicable to any Federal agency operating equipment which produces
noise sufficient to result in noncompatible land uses in the surrounding community. Thus,
for most Federal agencies, the primary regulations of interest are those promulgated by State
and local governments in whose jurisdiction the agency's facilities are located.
In the Noise Control Act of 1972, Congress noted:
• "...inadequately controlled noise presents a growing danger to the health and
welfare of the Nation's population, particularly in urban areas.
• "...the major sources of noise include transportation vehicles and equipment,
machinery, appliances, and other products in commerce.
• "...while primary responsibility for control of noise rests with state and local
governments, Federal action is essential to deal with major noise sources in
commerce control of which require national uniformity of treatment."
This Federal legislation primarily focuses on interstate conduct of commerce, such as:
• Noise producing products
• Aircraft noise and sonic booms
• Railroad and motor carrier noise
• Promotion of effective state and local noise control programs.
The Act exempts Federal agencies from following these "product" environmental noise
requirements for the following items:
• Military weapons or equipment designed for combat use
• Rockets or equipment designed for research, experimental, or developmental
work for the National Aeronautics and Space Administration
• Other machinery or equipment designed for use in experimental work done by
or for the Federal government.
Exemption from product labeling does not exempt the equipment from being operated in
conformance with State and local environmental noise requirements.
15-1
-------
The Aviation Safety and Noise Abatement Act is intended primarily to provide
assistance to airport operators to prepare and carry out noise compatibility programs. The Act
provides a mechanism for airport operators to develop a noise exposure map and
accompanying documentation relating noncompatible land uses, because of the environmental
noise impact of aircraft operations, to the area surrounding the airport. When approved by
the Secretary of Transportation and made available to the public, the map and documentation
provide a degree of protection from subsequent area land owners seeking damages for noise
attributable to the airport operations.
The map and documentation do not preclude claims for present damages. The Act does
provide, however, that the map and documentation cannot be used as evidence in a suit
seeking damages or other relief for noise that results from the operation of an airport.
Applicability
Federal agencies whose activities result in increased environmental noise in the
surrounding community are responsible for compliance with State and local environmental
noise regulations. Examples of these activities include:
• Aircraft operations related to agency test flights, airports and flight operation
sites
• Weapon, rocket and missile firing ranges
• Test tracks for vehicles
• Outdoor power generating equipment
• Demolition and explosive disposal sites.
The operating Federal agency is responsible for studies necessary to determine the impact of
environmental noise on the surrounding community and for making the community aware of
those impacts.
Regulatory Scope
Environmental noise legislation establishes State and local government as the primary
regulatory source. The Federal Aviation Agency is the primary program office of concern.
State and Local Regulatory Authority
State and local regulations on environmental noise vary too widely in scope and degree
for any generic use by Federal agencies in determining compliance for a specific operation at
a specific site. As a general rule, States tend to treat environmental noise as a source-specific
pollutant whose emission will be controlled depending on the community area specifically
affected.
15-2
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The Minnesota Pollution Control Law provides an example of the state approach taken
to control environmental noise:
• Standards will be adopted "describing the maximum levels of noise in terms of
sound pressure level which may occur in the outdoor atmosphere, recognizing
that due to variable factors no single standard of sound pressure is applicable to
all areas of the State.
• "Such standards shall give due consideration to such factors as the intensity of
noises, the types of noises, the frequency with which noises recur, the time
period for which noises continue, the times of day during which noises occur,
and such other factors as could affect the extent to which noises may be
injurious to human health or welfare, animal or plant life, or property or could
interfere unreasonably with the enjoyment of life or property."
• Due recognition will be given to the fact that "the quantity or characteristics of
noise or die duration of its presence in the outdoor atmosphere, which may
cause noise pollution in one area of the state, may cause less or not cause any
noise pollution in another area of the state, and it shall take into consideration in
this connection such factors, including others which it may deem proper, as
existing physical conditions, zoning classifications, topography, meteorological
conditions and the fact that a standard which may be proper in an essentially
residential area of the state, may not be proper as to a highly developed
industrial area of the state.
• "Such noise standards shall be premised upon scientific knowledge as well as
effects based on technically substantiated criteria and commonly accepted
practices.
• "No local governing unit shall set standards describing the maximum levels of
sound pressure which are more stringent than those set by the pollution control
agency."
In this example, the scope of these criteria for developing environmental noise standards
establishes the need for Federal agencies to couple site-specific impacts of environmental
noise with State and local regulations to determine the compliance status of a facility.
Selected Management Considerations
It is the intent of the Noise Control Act of 1972 that Federal agencies consider the
impact of environmental noise on the surrounding community. The key concerns of a
Federal agency's response to noise are:
• To protect the safety and health of the local community
• To prevent degradation of the agency's capability to perform its mission
because of controversy and litigation over noise impacts.
The absence of state or local environmental noise regulations does not absolve an agency
from being aware of adverse impacts on the surrounding community.
15-3
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Unilateral implementation of an agency environmental noise compliance program may
elicit a variety of public responses, including:
• Praise for the agency's interest in community welfare
• Concerns that formal documentation of noise impacts on the community will
adversely affect property values, ability to obtain loans and financing within the
affected community and the ability to sell affected property
• Demands that the agency provide soundproofing to source or affected facilities
sufficient to reduce noise levels to those experienced in a neighborhood not
subject to that noise
* Demands that the agency curtail its environmental noise-producing activities
• Demands that the agency make up the difference between appraised value of a
property without regards to noise impact and the property's value realized upon
sale in the open market.
Minimization of adverse public responses to an agency program is often achieved by the
agency initiating a coordinated cooperative approach with the community, emphasizing
mutual problem solving together with local governmental agencies and community
organizations.
The degree and extent to which the surrounding community perceives the Federal
agency as being responsible for an adverse environmental noise impact can usually be
determined by review of an agency's community complaint logbook. Effective logbooks
include not only the complaint but also the agency operations and the atmospheric conditions
present at the time as well as the actions taken in response to the complaint The agency
public affairs official can be especially helpful in handling complaints and in advising the
community of actions being taken to minimize environmental noise impacts.
Compliance with Federal, State and local requirements is generally interpreted to mean
that Federal agencies will comply with the procedural as well as the substantive aspects of
environmental noise legislation. Obtaining permits for regulated functions would be an
example of procedural compliance.
Agency Policy
Insert applicable agency policy here.
15-4
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AUDIT INFORMATION SOURCE LIST
Activity: Environmental Noise
Records to Review:
• Facility Master Plan Document
• Complaint log from local community.
Physical Features to Inspect:
• Power generating or other noise
• Emergency generators
• Test tracks.
People to Interview:
• Facility Engineer
• Public Affairs Officer.
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If equipment of operations noise can be distinguished
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interstate and local requirements.
15-6
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NATURAL RESOURCES
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CHAPTER 16. NATURAL RESOURCES
Federal Statutes
Natural resources include fish and wildlife, and water and land. Several acts mandate
preservation requirements for these resources.
Requirements pertaining to fish and wildlife protection include the following:
• Executive Order 11987-Exotic Organisms ~ restricts the introduction of species
into areas where they do not normally occur.
• Endangered Species Act of 1973 and the Fish and Wildlife Coordination Act --
require Federal agencies to give consideration to wildlife conservation in the
actions they fund, authorize or carry out.
• Marine Mammal Protection Act of 1972 -- mandates a moratorium on the
killing, capturing, harming and importation of marine mammals and the
importation of marine mammal products.
Preservation of water and land resources is mandated in the following requirements:
• Executive Order 11990-Protection of Wetlands, and Executive Order 11988-
Floodplain Management - address the actions Federal agencies must take to
identify and protect wetlands and floodplains, minimize the risk of flood loss
and destruction of wetlands, and preserve and enhance the natural and beneficial
values of both floodplains and wetlands.
• Farmland Protection Policy Act of 1981 — minimizes the extent to which
Federal programs contribute to the unnecessary conversion of farmland to
nonagricultural uses.
• Wild and Scenic Rivers Act of 1968 - prohibits the use of Federal funds which
would have adverse effect on those characteristics which caused a river to be
classified as wild, scenic, or recreational.
• Coastal Zone Management Act of 1972 — requires Federally funded actions to
be preceded by a determination of consistency with a State's coastal zone
management plan.
• Deepwater Port Act of 1974 ~ provides for the protection of the marine and
coastal environment from adverse impacts associated with the development of
ports.
More information on these acts and their applications can be obtained from the implementing
agency.
16-1
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Applicability
A facility may need to consider natural resources preservation requirements if:
• Managing fish, wildlife, land or water.
• Located near a water body, especially a wild and scenic river or a coastal zone.
• Planning new construction in a floodplain or wetland.
• Planning improvement of an existing facility in a floodplain or wetland.
• Operating a deepwater port
• Selling or leasing right-of-way of owned property.
This list is not comprehensive; there are many special cases.
Regulatory Scope
Many regulations implement the acts requiring natural resource preservation. In
addition, some agency-specific regulations on environmental protection include requirements
for the preservation of natural resources.
Regulations pertaining to natural resources include the following:
Interagency Cooperation-Endangered Species Act of 1973, as amended (50
CFR Part 402) - interprets and implements section 7(a)-(d) of the Endangered
Species ACL
Endangered and Threatened Wildlife and Plants (50 CFR Part 17) -- implements
the Endangered Species Act.
• Regulations Governing Small Sites of Marine Mammals Incidental to Specified
Activities (50 CFR Part 228) — provides a mechanism for allowing the
incidental, but not intentional, killing or harming of non-depleted marine
mammals by U.S. citizens.
• Marine Mammals (50 CFR Part 18) — implements the Marine Mammal
Protection Act of 1972.
• Regulations Governing the Taking and Importing of Marine Mammals (50 CFR
Part 216) ~ implements the Marine Mammal Protection Act.
• Farmland Protection Policy Act (7 CFR Part 658) - sets out criteria for Federal
agencies to identify and take into account the adverse effects of their programs
on the preservation of farmland.
• Federal Consistency with Approved Coastal Management Programs (15 CFR
Part 930) ~ specifies requirements for agencies in complying with the Federal
consistency provision of the Coastal Zone Management Act.
16-2
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• Wild and Scenic Rivers (36 CFR Part 297) -- provides rules applying to Federal
assistance in the construction of water resources projects affecting wild and
scenic rivers or study rivers.
• Deepwater Ports (33 CFR Part 148) — prescribes regulations for the licensing,
construction design and equipment, and operation of deep water ports under the
Deepwater Port Act of 1974.
More comprehensive lists of regulations covering the specific acts may be obtained by
contacting the implementing agency or referring to the portions of the CFR for that agency.
State and Local Regulatory Authority
States and localities have many additional requirements in the natural resource
protection area. Some facts to consider include the following:
• State and local agencies must adopt minimum management strategies to avoid
future flood damage within their floodplain areas in order to receive National
Flood Insurance.
• Federal agencies are not required to afford local endangered species the same
level of protection as Federally listed species. The policy of some agencies,
however, is to cooperate with the states to the maximum extent possible.
• The Fish and Wildlife Conservation Act gives implementing authority to the
State.
• The Coastal Zone Management Act requires that the Federal facility be
consistent with the State's Coastal Zone Management Plan.
Requirements vary too widely to provide generic guidance applicable to a specific
Federal facility. Agencies should contact State and local agencies for site-specific guidance.
Selected Management Considerations
To aid in maintaining compliance with natural resources protection regulations, facilities
can take the following steps:
• Maintain a file of Federal regulations pertaining to natural resources
• Maintain a file of the latest agency regulations and policies dealing with natural
resources
• Designate and train a natural resources manager
• Keep a record of natural resources management activities.
These actions will increase awareness of natural resources and help the facilities to stay
in compliance with all protection requirements.
Agency Policy
Insert applicable agency policies here.
16-3
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AUDIT INFORMATION SOURCE LIST
Activity: Natural Resources
Records to Review:
• Permit for the taking of endangered species
• Notifications to the FWS of the taking of endangered species without a
permit
• Letter of Authorization for the incidental taking of marine mammals
• Permit for the taking of marine mammals
• Form AD 1006
• Environmental Impact Statement
State Coastal Zone Management Plan compliance statement
• License for ownership, construction or operation of a Deepwater Port.
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Physical Features to Inspect:
• Facilities constructed in the past 2 years
• Wildlife containment areas
• Wildlife habitat and land and water resources
• Equipment which could damage wildlife, its habitat, or land and water
resources.
People to Interview:
• Natural Resources Manager
• Environmental Coordinator/Officer
• Land Management Officer
• Grounds Maintenance Crew.
16-4
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CHAPTER 17. CULTURAL RESOURCES
Federal Statutes
Cultural resources include places of historic or archaeological interest. Several acts
specify requirements which Federal agencies must meet in order to protect these resources.
Requirements pertaining primarily to historic preservation include the following:
The National Historic Preservation Act of 1966 (NHPA) as amended 1980 --
establishes the National Register of Historic Places under the Department of
Interior. This register is designed to assist Federal and State agencies in
identifying those resources which must be considered before making
irrevocable decisions. Section 106 of the Act requires Federal agencies to
consider the effect of a funded, licensed, assisted or approved project on any
cultural resource listed, eligible or potentially eligible for listing in the National
Register and allows the Advisory Council on Historic Preservation opportunity
to comment on the undertaking.
• Section 110 of the NHPA -- requires Federal agencies to carry out their
programs in accordance with, and in furtherance of the NHPA; to designate
historic preservation officers to coordinate the agency's activities under the Act;
to identify and preserve historic properties under their ownership or control; and
make efforts to minimize harm to National Historic Landmarks.
• The Historic Sites Act of 1935 -- authorizes the establishment of National
Historic Sites and Landmarks and the preservation of properties of national
historical or archaeological significance.
Requirements pertaining primarily to protection of archaeological resources include the
following acts:
• The Archaeological Resources Protection Act of 1979 - provides protection for
archaeological resources found on public lands and Indian lands of the United
States and prohibits the removal of archaeological resources on public lands and
Indian lands without first obtaining a permit from the affected Federal land
managing agency or Indian tribe.
• The Reservoir Salvage Act of 1960 - provides for the recovery and
preservation of historical and archaeological data, including relics and
specimens that might be lost or destroyed as a result of the construction of
dams, reservoirs, and attendant facilities and activities.
• The Historic and Archaeological Data Preservation Act of 1974 ~ amends the
Reservoir Salvage Act of 1960 to extend its provisions beyond the construction
of dams to any alteration of the terrain caused as a result of any Federal
construction project or federally-licensed activity or program. Provides a
mechanism for funding the protection of historical and archaeological data, and
allows the use of a faster consultation process than Section 106 when an agency
discovers significant archaeological resources during construction.
17-1
-------
More information on these acts may be obtained through consultation with the Department of
Interior or other appropriate Federal agencies.
Applicability
Facilities may have to consider cultural resources requirements if:
• Management is planning construction, particularly excavation.
• Management is planning non-construction activities which could affect a cultural
resource.
• Facility is situated on historically or archaeologically significant land.
Facility or part of facility is considered an historical site.
• A cultural resources survey has determined that the facility is significant to a
cultural resource.
In addition, facilities for which a cultural resources survey has not been conducted as part of
an environmental assessment may be subject to these requirements (See Chapter 18,
Environmental Assessment.)
Regulatory Scope
A number of regulations have been promulgated to implement acts protecting cultural
resources. The acts stand alone in providing a great deal of procedural guidance. In
addition, Federal agencies have their own procedures that are often published in the Federal
Register. Individual agencies write their own regulations, particularly for implementing the
Archaeological Resources Protection Act and Section 110 of NHPA. Federal facilities must
comply with their agency-specific regulations.
General regulations significant in the preservation of cultural resources include the
following regulations:
• Protection of Historic and Cultural Properties (36 CFR Part 800) — implements
Section 106 of NHPA. Details the procedures for reports to the Council, the
roles and responsibilities of the Federal agency, the State Historic Preservation
Officer (SHPO), the ACHP and other interested parties.
• Assessing Affects (36 CFR Part 800.5) -- requires agency to consult with
interested parties; heads of local government; applicants for and holders of
grants, permits and licenses involved in the undertaking; and representatives of
Indian tribes, when an undertaking will affect Indian lands.
National Register of Historic Places (36 CFR Part 60) - defines the procedural
requirements for listing properties on the National Register under the National
Historic Preservation Act of 1966.
A more complete list of regulations covering a particular act may be found in the portions of
the CFR pertaining to the implementing agency. Land management facilities will often be
subject to additional regulations promulgated by their agencies.
17-2
-------
State and Local Regulatory Authority
The SHPO is responsible for implementation of the National Historic Preservation Act.
SHPO and staff must be consulted during all cultural resources planning.
Selected Management Considerations
The presence of historic or archaeological places of interest on a Federal facility obliges
agency management to preserve our nation's heritage while performing the agency mission.
Fulfilling this obligation and complying with cultural resources regulations can be made
easier by carrying out suggested procedures:
• Maintaining a file of Federal, State, local and agency regulations and policies
regarding cultural resources protection
• Designating and training a cultural resources preservation manager
• Keeping a record of facility cultural resources preservation activities.
In addition, historic or archaeological designation may restrict management's options for use,
repair, protection, modification, and maintenance of the place, structure or area. Procedures
are required to be in compliance with the law. It is sometimes the case that an agency is
preserving a cultural resource, but is not in compliance because consultation procedures are
not followed.
Agency Policy
Insert applicable agency regulation policies here.
17-3
-------
AUDIT INFORMATION SOURCE LIST
Activity: Cultural Resources
Records to Review:
• For construction activities: documentation of finding of no adverse effect,
or Memorandum of Agreement with the SHPO or requests for comment
when there is no agreement
• Notification of any conduction projects sent to Secretary of Interior.
Physical Features to Inspect:
• Construction sites
• Site or landmark of historic or archaeological interest.
People to Interview:
• Archaeologist/Historic Preservation Officer
• Grounds Maintenance Crew
• Land Management Officer.
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inventory, and nominate all properties under the
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ENVIRONMENTAL IMPACT
DOCUMENTATION
-------
CHAPTER 18. ENVIRONMENTAL IMPACT
DOCUMENTATION
Federal Statutes
The mandated requirement to assess the environmental effects of major Federal actions
is based in the National Environmental Policy Act of 1969 (NEPA), the basic national charter
for protection of the environment. NEPA does not mandate that decision-makers must avoid
all adverse environmental effects in proceeding with a Federal action, but does require that the
decision to proceed with such an action must be an informed and procedurally correct
decision.
NEPA establishes Federal environmental assessment policy, sets goals, and provides
means for carrying out the policy. The Act, as implemented by Executive Orders 11514 and
11991 and the Council on Environmental Quality (CEQ) Regulations, requires that Federal
agencies perform the following actions:
• Include in their decision-making processes appropriate and careful consideration
of all environmental effects of proposed actions
• Analyze potential environmental effects of proposed actions and their
alternatives for public understanding and scrutiny
• Avoid or minimize adverse effects of proposed actions
• Restore and enhance environmental quality as much as possible.
The requirement for environmental assessments is somewhat unique compared with other
environmental legislation in that:
• National security cannot be used as a reason for exempting a Federal action
from the provisions of NEPA.
• Each Federal agency is required to adopt procedures to supplement the CEQ
regulations and to publish those procedures in the Federal Register for public
comment.
• There are no provisions of law for the States to assume primacy for managing
the provisions of NEPA for all Federal agencies.
• Contractors chosen by an agency to prepare an environmental impact statement
(EIS) must execute a disclosure statement specifying that they have no financial
or other interest in the outcome of the project
In effect, NEPA requires that environmental concerns be given equal consideration with
economic and technical considerations of decision-makers.
18-1
-------
Executive Order 12114, Environmental Effects of Major Federal Actions Abroad,
establishes internal procedures for Federal agencies to consider the significant effects of their
actions on the environment outside the United States, its territories and possessions.
Environment is defined for this Order as the natural and physical environment and excludes
social, economic and other environments. Federal agencies are required to establish
procedures for actions significantly affecting:
• The environment of the global commons outside the jurisdiction of any nation
(e.g., the oceans or Antarctica)
• The environment of a foreign nation
• Natural or ecological resources of global importance designated for protection.
Specific exemptions are provided for in this Order.
Applicability
The environmental impact analysis process is applicable to proposed major Federal
actions such as:
• Construction — Examples include both new and modifications to existing
buildings, roads, pipelines, airfields, transmission towers, fences, dams, and
pathways into remote areas.
• Equipment development ~ The environmental effects of mission equipment
such as missile systems, aircraft, vehicles, incinerators, waste treatment
devices, satellites, laser/microwave communication systems, and transportation
systems may require assessment
• New/changed mission programs - Environmental assessments may be required
for decisions on implementing new/changed programs such as genetic
engineering, changes in public land use, biochemical defense, space stations,
and opening or closing installations/facilities.
NEPA provides that the environmental assessment process is applicable when Federal
funding is used by non-Federal agencies to accomplish an action which may have significant
environmental effects. This condition is likely to exist in grant programs where Federal
funding is used to support actions taken by States under the provisions of Federal
environmental legislation.
Regulatory Scope
The basic working reference document for Federal environmental assessment programs
is the "CEQ Regulations on Implementing National Environmental Policy Act Procedures",
which is codified as 40 CFR Part 1500. The regulations implement section 102(2)(c) of
NEPA, which contains the provision for preparing environmental documentation to ensure
that Federal agencies act according to the letter and spirit of the ACL
18-2
-------
The CEQ regulations provide for Federal agencies to adopt procedures to supplement
the CEQ Regulations, to consult with the Council, and to publish the procedures in the
Federal Register for public comment These agency-specific procedures are subject to
Council review. Federal agency procedures are required to include specific criteria for and
identification of those typical classes of action that:
• Require EIS
• Do not require either an EIS or an environmental assessment (categorical
exclusions)
• Require environmental assessments but not necessarily EISs.
Since agency-written procedures rather than the CEQ Regulations are normally available to
operating personnel, consistency, completeness and currency are imperative for compliance
with NEPA. Failure to include CEQ requirements in agency procedures does not relieve the
agency of responsibility for compliance.
Functional examples that can result in a noncompliance condition or trigger revalidation
of documented environmental effects include the following conditions:
• Mitigation — Environmental documentation used by decision makers frequently
contains actions to be taken during implementation of an action to mitigate
undesirable environmental effects. When the Record of Decision (ROD)
contains these mitigation actions for the selected alternative, the actions must be
followed in completing the action. Failure to translate mitigation in the ROD
into project actions could result in a noncompliance condition.
• Tiering ~ For multiphase major actions an initial programmatic EIS is
frequently used as a base on which to build later action decisions.
Noncompliance can occur when supplements are not prepared before specific
subsequent phase implementing decisions are made.
• Project changes - Substantive changes to a project; i.e., substantively different
from the statement of the proposed action in the environmental documentation,
require documentation of the reconsideration of the environmental effects of the
project. Changes which can trigger a need for reconsideration include, but are
not limited to, siting of a project, installation of more or different equipment into
a proposed facility, different construction techniques, different equipment
serviced in facilities or airfields, introduction of hazardous or toxic wastes, and
scope of the action.
• Environmental setting — Modification of surrounding land use, discovery of a
previously unknown endangered species or archaeological site, and population
shifts are examples of uncontrollable factors which may require
changes/additions to environmental documentation during the implementation
phase of a Federal action.
Project changes do not necessarily require preparation of new environmental impact
statements or even environmental assessments; however, agency management does need to
determine the impact of the changes and to document management's decision on the need, or
lack thereof, for additional environmental documentation.
18-3
-------
State and Local Regulatory Authority
More than half of the States have implemented environmental assessments within their
environmental programs. NEPA has multiple provisions with regards to State involvement in
the Federal environmental assessment process but generally does not provide for the States
assuming primacy for the Federal program. State and local regulatory authorities have the
power to do the following:
• Comment on proposed Federal actions when those authorities are authorized to
develop and enforce environmental standards
• Request a Federal agency to set time limits for the NEPA process
• Participate in the scoping process
• Act with a Federal agency as joint lead agencies to prepare an environmental
impact statement
• Choose to use the system of clearinghouses established by Office of
Management and Budget Circular A-95 (Revised) for securing the views of
state and local environmental agencies regarding environmental documentation
for Federal actions
• Have their EIS requirements, which are in addition to but not in conflict with
Federal requirements, included in the preparation of a Federal environmental
impact statement
• Become a cooperating agency for a Federal action.
NEPA does provide that states and units of general local government and Indian tribes may
assume NEPA responsibilities for actions taken under section 104(h) of the Housing and
Community Development Act of 1974.
Selected Management Considerations
NEPA is a "cradle to grave" operational requirement for Federal decision-makers and
project personnel, i.e., the signing of a Record of Decision for an EIS does not ensure NEPA
compliance. As changes in the action become necessary for previously unforeseen reasons or
when the environmental setting for an action changes, decision-makers need to revalidate
their decision on the action.
The penalty for failure to follow the environmental impact assessment process has been
for a court to enjoin the proponent Federal agency from proceeding with the project. This
injunction normally lasts until the agency has complied with NEPA, has better documented
the action and environmental effects, or has improved the analysis of the environmental
documentation.
Agency Policy
Insert applicable agency regulations and policies here.
18-4
-------
AUDIT INFORMATION SOURCE LIST
Activity: Environmental Impact Documentation
Records to Review:
• Environmental Assessment
• Environmental Impact Statement
• Record of Decision
• Finding of No Significant Impact
• List of any facilities constructed since 1970.
Physical Features to Inspect:
• Mitigation features.
People to Interview:
• Facilities Manager
• General Services Administration
• NEPA Program Office staff.
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18-5
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ENVIRONMENTAL MANAGEMENT
SYSTEMS
-------
CHAPTER 19. ENVIRONMENTAL
MANAGEMENT
SYSTEMS
Purpose
The previous chapters aid an audit team in assessing a facility's environmental
management system on an issue-by-issue basis. An agency may use the opportunity of
onsite visits to collect information on the overall environmental compliance management
program. The questionnaire in Exhibit 19-1 can be used for identifying the strengths and
weaknesses of an existing environmental compliance program or may help determine a model
compliance program for an agency. It addresses management processes, procedures and
responsibilities that will enhance compliance with environrrental requirements addressed
previously. The questionnaire is equally valuable to facilir, personnel assessing their own
environmental compliance program. The facility manager generally completes the
questionnaire.
19-1
-------
EXHIBIT 19-1
Environmental Compliance Program Questionnaire
Facility Name:.
Facility Manager
Major Activity of Facility :
A. Current Environmental Compliance Program Description
1. Considering your mission, facilities and operations, how applicable is an Environmental
Compliance Program (ECP) to your program?
12345
(little) (very)
2. What are the basic goals and objectives for your ECP?
3. How are these goals and objectives, and responsibilities for implementation conveyed to your
personnel? (Check all appropriate blanks)
Policy statement(s)
Environmental management committee
Standard operating procedures
Training
Other formal guidance
If any of the above documentation exists, please append copies.
4. What is the basis for your ECP? Please fill-in tide/brief description
Policy Statements
Guidance from line management
Self-generated guidance
Direction from regulators
Other (briefly describe)
19-2
-------
5. Please attach an organizational chart detailing the reporting chain between you and the
environmental compliance coordinator(s).
Does your environmental compliance coordinator (ECC) report directly to you?
Are you comfortable with the reporting chain between you and your ECC?
If not, please briefly describe the problem.
6. How often do you meet with the ECC?
7. What is the critical job element weight allotted for the area of environmental compliance?
Do you have performance standards in the area of environmental compliance for your
subordinates?
B.
1.
Implementation of the ECP
Please rate the resources you have provided for the ECP.
2 3
Personnel 1
(understaffed)
Training
(minimal)
1
Equipment 1
(minimal)
Facilities 1
(inadequate)
4 5
(fully staffed)
4 5
(fully trained)
4 5
(meets requirements)
4 5
(meets requirements)
Please complete the following chart showing personnel allocation.
Number of
Personnel
Total
Hrs/wk
Environmental Compliance
Coordinators)
Hazardous Waste Disposal
Officer(s)
What are the dollar resources provided for the ECP?
Is it enough?
Hrs/wk Required
for Fully-
Effective Program
19-3
-------
2. Are you provided with sufficient funding for training in the area of environmental
compliance?
Please describe your needs in this area:
3. Do you have authority to delegate monetary resources and personnel to the area of
environmental compliance? -
4. Please describe the mechanisms you use to communicate environmental compliance
initiatives from upper management to facility staff (i.e., briefings, staff meetings,
informal conversation):
... the mechanisms upper management uses to communicate environmental compliance
initiatives to you:
5. How comfortable are you with the authority you have been delegated to allocate
resources in the area of environmental compliance?
12345
(not comfortable) (very comfortable)
6. Have you been provided with management indicators and personnel performance
standards related to environmental compliance for incorporation into your own
performance standards?
If not, have you developed your own?
7. In either case, have you provided environmental compliance performance standards to
subordinate personnel?
8. What type of appropriated funds are you getting to support environmental compliance
activities?
9. Who do you turn to for advice for environmental compliance programs? Are you satisfied
with the advice?
19-4
-------
C. Program Evaluation
1. Are you comfortable with your facility's compliance with environmental regulations?
12345
(not comfortable) (very comfortable)
How are you informed of compliance status?
2. Are you the responsible official for initiating corrective actions? If not, who is?
Are existing resources a restraint in implementing corrective actions? (Please be specific)
3. Overall, do you think your ECP is effective?
4. What is your biggest ECP management problem?
5. Please briefly describe the greatest assets and deficiencies of your ECP?
6. Describe your perception of the appropriate role for your agencies environmental staff at
the headquarters.
7. Describe your perception of the appropriate role for line personnel in the ECP.
Name of person completing this form:.
Signature: Date:.
19-5
-------
APPENDICES
-------
APPENDIX A
EPA'S ENVIRONMENTAL AUDITING
POLICY STATEMENT
-------
25004
Federal Register / Vol. 51. No. 131 / Wednesday. July 9. 1966 / Notices
ENVIRONMENTAL PROTECTION
AGENCY
IOPP6-FRL-3046-6I
Environment*) Auditing Policy
Statement
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final policy statement.
SUMMARY: It is EPA policy to encourage
the use of environmental auditing by
regulated entities to help achieve and
maintain compliance with
environmental laws and regulations, as
w ell as to help identify and correct
unregulated environmental hazards.
EPA first published this policy as
interim guidance on November 8.1985
(50 PR 46504). Based on comments
received regarding the interim guidance.
the Agency is issuing today's final
policy statement with only minor
chdnges.
This final policy statement
specifically:
• Encourages regulated entities to
develop, implement and upgrade
environmental auditing programs;
• Discusses when the Agency may or
may not request audit reports:
• Explains how EPA's inspection and
enforcement activities may respond to
regulated entities' efforts to assure
compliance through auditing:
• Endorses environmental auditing at
federal facilities:
• Encourages state and local
environmental auditing initiatives; and
• Outlines elements of effective audit
programs.
Environmental auditing includes a
variety of compliance assessment
techniques which go beyond those
legally required and are used to identify
actual and potential environmental
problems. Effective environmental
auditing can lead to higher levels of
overall compliance and reduced risk to
human health and the environment. EPA
endorses the practice of environmental
auditing and supports its accelerated
use by regulated entities to help meet
the goals of federal, state and local
environmental requirements. However.
the existence of an auditing program
does not create any defense to, or
otherwise limit, the responsibility of any
regulated entity to comply with
applicable regulatory requirements.
States are encouraged to adopt these
or similar and equally effective policies
in order to advance the use of
environmental auditing on a consistent,
nationwide basis.
DATES: This final policy statement is
effective July 9.1986.
FOR FURTHER INFORMATION CONTACT
Leonard Fleckenstein. Office of Policy.
Planning and Evaluation. (202) 382-
2728;
or
Cheryl Wasserman. Office of
Enforcement and Compliance
Monitoring. (202j 382-7550.
SUPPLEMENTARY INFORMATION:
ENVIRONMENTAL AUDITING
POLICY STATEMENT
I. Preamble
On November 8.1985 EPA published
an Environmental Auditing Policy
Statement, effective as interim guidance.
and solicited written comments until.
January 7.1988.
Thirteen commenters submitted
written comments. Eight were from
private industry. Two commenters
represented industry trade associations.
One federal agency, one consulting firm
and one law firm also submitted
comments.
Twelve commenters addressed EPA
requests for audit reports. Three
comments per subject were received
regarding inspections, enforcement
response and elements of effective
environmental auditing. One commenter
addressed audit provisions as remedies
in enforcement actions, one addressed
environmental auditing at federal
facilities, and one addressed the
relationship of the policy statement to
state or local regulatory agencies.
Comments generally supported both the
concept of a policy statement and the
interim guidance, but raised specific
concerns with respect to particular
language and policy issues in sections of
the guidance.
General Comments
Three commenters found the interim
guidance to be constructive, balanced
and effective at encouraging more and
better environmental auditing.
Another commenter, while
considering the policy on the whole to
be constructive, felt that new and
identifiable auditing "incentives" should
be offered by EPA. Based on earlier
comments received from industry. EPA
believes most companies would not
support or participate in an "incentives-
based" environmental auditing program
with EPA. Moreover, general promises
to forgo inspections or reduce
enforcement responses in exchange for
companies' adoption of environmental
auditing programs—the "incentives"
most frequently mentioned in this
context—are fraught with legal and
policy obstacles.
Several commenters expressed
concern that states or localities might
use the interim guidance to require
auditing. The Agency disagrees that the
policy statement opens the way for
states and localities to require auditing.
No EPA policy can grant states or
• localities any more (or less) authority
than they already possess. EPA believes
that the interim guidance effectively
encourages voluntary auditing. In fact.
Section II.B. of the policy states:
"because audit quality depends to a
large degree on genuine management
commitment to the program and its
objectives, auditing should remain a
voluntary program."
Another commenter suggested that
EPA should not expect an audit to
identify all potential problem areas or
conclude that a problem identified in an
audit reflects normal operations and
procedures. EPA agrees that an audit
'report should clearly reflect these
realities and should be written to point
out the audit's limitations. However.
since EPA will not routinely request
audit reports, the Agency does not
believe these concerns raise issues
which need to be addressed in the
policy statement.
A second concern expressed by the
same commenter was that EPA should
acknowledge that environmental audits
are only part of a successful
environmental management program
and thus should not be expected to
cover every environmental .ssue or
solve all problems. EPA agrees and
accordingly has amended the statement
of purpose which appears at the end of
this preamble.
Yet another commenter thought EPA
should focus on environmental
performance results (compliance or non-
compliance), not on the processes or
vehicles used to achieve those results. In
general. EPA agrees with this statement
and will continue to focus on
environmental results. However. EPA
also believes that such results can be
improved through Agency efforts to
identify and encourage effective
environmental management practices.
and will continue to encourage such
practices in non-regulatory ways.
A final genera! comment
recommended that EPA should sponsor
seminars for small businesses on how to
start auditing programs. EPA agrees that
such seminars would be useful.
However, since audit seminars already
are available from several private sector
organizations, EPA does not believe it
should intervene in that market, with the
possible exception of seminars for
government agencies, especially federal
agencies, for which EPA has a broad
mandate under Executive Order 12088 to
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provide technical assistance for
environmental compliance.
Requests for Reports
EPA received 12 comments regarding
Agency requests for environmental audit
reports, far more than on any other topic
in the policy statement. One commenter
felt that EPA struck an appropriate
balance between respecting the need for
self-evaluation with some measure of
privacy, and allowing the Agency
enough flexibility of inquiry to
accomplish future statutory missions.
However, most commenten expressed
concern that the interim guidance did
not go far enough to assuage corporate
tears that EPA will use audit reports for
environmental compliance "witch
hunts." Several commenters suggested
additional specific assurances regarding
the circumstances under which EPA will
request such reports.
One commenter recommended that
EPA request audit reports only "when
the Agency can show the information it
needs to perform its statutory mission
cannot be obtained from the monitoring,
compliance or other data that is
otherwise reportable and/or accessible
to EPA. or where the Government deems
an audit report material to a criminal
investigation." EPA accepts this
recommendation in part The Agency
believes it would not be in the best
interest of human health and the
environment to commit to making a
"showing" of a compelling information
need before ever requesting an audit
report. While EPA may normally be
willing to do so, the Agency cannot rule
out in advar ce ail circumstances in
which such a showing may not be
possible. However, it would be helpful
to further clarify that a request for an
audit report or a portion of a report
normally will be made when needed
information is not available by
alternative means. Therefore. EPA has
revised Section III.A.. paragraph two
and added the phrase: "and usually
made where the information needed
cannot be obtained from monitoring.
reporting or other data otherwise
available to the Agency."
Another commenter suggested that
(except in the case of criminal
investigations) EPA should limit
requests for audit documents to specific
questions. By including the phrase "or
relevant portions of a report" in Section
III.A., EPA meant to emphasize it would
not request an entire audit document
when only a relevant portion would
suffice. Likewise. EPA fully intends not
to request even a portion of a report if
needed information or data can be
otherwise obtained. To further clarify
this point EPA has added the phrase.
"most likely focused on particular
information needs rather than the entire
report." to the second sentence of
paragraph two. Section III.A.
Incorporating the two comments above,
the first two sentences in paragraph two
of final Section I11.A. now read: "EPA's
authority to request an audit report, or
relevant portions thereof, will be
exercised on a case-by-case basis where
the Agency determines it is needed to
accomplish a statutory mission or the
Government deems it to be material to a
criminal investigation. EPA expects such
requests to be limited, most likely
focused on particular information needs
rather than the entire report, and usually
made where the information needed
cannot be obtained from monitoring.
reporting or other data otherwise
available to the Agency."
Other commenters recommended that
EPA not request audit reports under any
circumstances, that requests be
"restricted »-> only those legally
required." that requests be limited to
criminal investigations, or that requests
be made only when EPA has reason to
believe "that the audit programs or
reports are being used to conceal
evidence of environmental non-
compliance or otherwise being used in
bad faith." EPA appreciates concerns
underlying all of these comments and
has considered each carefully. However,
the Agency believes that these
recommendations do not strike the
appropriate balance between retaining
the flexibility to accomplish EPA's
statutory missions in future, unforeseen
circumstances, and acknowledging
regulated entities' need to self-evaluate
environmental performance with some
measure of privacy. Indeed, based on
prime informal comments, the small
number of formal comments received.
and the even smaller number of adverse
comments, EPA believes the final policy
statement should remain largely
unchanged from the interim version.
Elements of Effective Environmental
Auditing
Three commenters expressed
concerns regarding the seven general
elements EPA outlined in the Appendix
to the interim guidance.
One commenter noted that were EPA
to further expand or more fully detail
such elements, programs not specifically
fulfilling each element would then be
judged inadequate. EPA agrees that
presenting highly specific and
prescriptive auditing elements could be
counter-productive by not taking into
account numerous factors which vary
extensively from one organization to
another, but which may still result in
effective auditing programs.
Accordingly. EPA does not plan to
expand or more fully detail these
auditing elements.
Another commenter asserted that
states and localities should be cautioned
not to consider EPA's auditing elements
as mandatory steps. The Agency is fully
aware of this concern and in the interim
guidance noted its strong opinion that
"regulatory agencies should not attempt
to prescribe the precise form and
structure of regulated entities
environmental management or auditing
programs." While EPA cannot require
state or local regulators to adopt this or
similar policies, the Agency does
strongly encourage them to do so. both
in the interim and final policies.
A final commenter thought the
Appendix too specifically prescribed
what should and what should not be
included in an auditing program. Other
commenters. on the other hand, viewed
the elements described as very general
in nature. EPA agrees with these other
commenters. The elements are in no
way binding. Moreover. EPA believes
that most mature, effective
environmental auditing programs do
incorporate each of these general
elements in some form, and considers
them useful yardsticks for those
considering adopting or upgrading audit
programs. For these reasons EPA has
not revised the Appendix in today's
final policy statement
Other Comments
Other significant comments addressed
EPA inspection priorities for. and
enforcement responses to, organizations
with environmental auditing programs.
One commenter. stressing that audit
programs are internal management
tools, took exception to the phrase in the
second paragraph of section I1I.B.1. of
the interim guidance which states that
environmental audits can 'complement'
regulatory oversight. By using the word
'complement' in this context. EPA does
not intend to imply that audit reports
must be obtained by the Agency in order
to supplement regulatory inspections.
'Complement' is used in a broad sense
of being in addition to inspections and
providing something (i.e., self-
assessment) which otherwise would be
lacking. To clarify this point EPA has
added the phrase "by providing self-
assessment to assure compliance" after
"environmental audits may complement
inspections" in this paragraph.
The same commenter also expressed
concern that as EPA sets inspection
priorities, a company having an audit
program could appear to be a 'poor
performer* due to complete and accurst.
reporting when measured against a
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company which rrports something less
than required by law. EPA agrees that it
is important to communicate this fact to
Agency and state personnel, and wilt do
so. However, the Agency does not
believe a change in the policy statement
is necessary.
A further comment suggested EPA
should commit to take auditing
programs into account when assessing
all enforcement actions. However, in
order to maintain enforcement flexibility
under varied circumstances, the Agency
cannot promise reduced enforcement
responses to violations at all audited
facilities when other factors may be
overriding. Therefore the policy
statement continues to state that EPA
nirt> exercise its decretion to consider
auuiting programs as evidence of honest
and genuine efforts to assure
compliance, which would then be taken
into account in fashioning enforcement
responses to violations.
A final commenter suggested the
phrast expeditiously correct
environmental problems" not be used in
the enforcement context since it implied
EPA would use an entity's record of
correcting nonregulated matters when
evaluating regulatory violations. EPA
did not intend for such an inference to
be made. EPA intended the term
"environmental problems" to refer to the
underlying circumstances which
eventually lead up to the violations. To
clarify this point. EPA is revising the
first two sentences of the paragraph to
which this comment refers by changing
"environmental problems" to "violations
and underlying environmental
problems" in the first sentence and to
"underlying environmental problems" in
the second sentence.
In a separate development EPA is
preparing an update of its January 1964
Federal Facilities Compliance Strategy.
which is referenced in section III. C. of
the auditing policy. The Strategy should
'be completed and available on request
from EPA's Office of Federal Activities
later this year.
EPA thanks all commenters for
responding to the November 8.1985
publication. Today's notice is being
issued to inform regulated entities and
the public of EPA's final policy toward
environmental auditing. This policy was
developed to help (a) encourage
regulated entities to institutionalize
effective audit practices as one means of
improving compliance and sound
environmental management, and (b)
guide internal EPA actions directly
related to regulated entities'
environmental auditing programs.
EPA will evaluate implementation of
this final policy to ensure it meets the
above goals and continues to encourage
better environmental management.
while strengthening the Agency's own
efforts to monitor and enforce
compliance with environmental
requirements.
II. General EPA Policy on
Environmental Auditing
A. Introduction
Environmental auditing is a
systematic, documented, periodic and
objective review by regulated entities '
of facility operations and practices
related to meeting environmental
requirements. Audits can be designed to
accomplish any or all of the following:
verify compliance with environmental
requirements: evaluate the effectiveness
of environmental management systems
already in place: or assess risks from
regulated and unregulated materials and
practices.
Auditing serves as a quality assurance
check to help improve the effectiveness
of basic environmental management by
verifying that management practices are
in place, functioning and adequate.
Environmental audits evaluate, and are
not a substitute for, direct compliance
activities such as obtaining permits.
installing controls, monitoring
compliance, reporting violations, and
keeping records. Environmental auditing
may verify but does not include
activities required by law, regulation or
permit (e.g.. continuous emissions
monitoring, composite correction plans
at wastewater treatment plants, etc.).
Audits do not in any way replace
regulatory agency inspections. However.
environmental audits can improve
compliance by complementing
conventional federal, state and local
oversight.
The appendix to this policy statement
outlines some basic elements of
environmental auditing (e.g., auditor
independence and top management
support] for use by those considering
implementation of effective auditing
programs to help achieve and maintain
compliance. Additional information on
environmental auditing practices can be
found in various published materials.*
1 'Regulated entitle*" include private firm* and
public agencies with facilititi subject to
environmental regulation. Public agencies can
include federal, stale or local agenciei a* well aa
special-purpose organizations such ai regional
sewage commissions.
1 See. e g.. Current Practice! in Environmental
Auditing.' EPA Report No EPA-230-09-8J-OOB.
February 19M. "Annotated Bibliography on
Environmental Auditing.' Fifth Edition. September
19K5 both available from. ReguUlory Reform Suff.
PM-223. EPA. 401 M Street SW. Washington. DC
Environmental auditing has developed
for sound business reasons, particularly
as a means of helping regulated entities
manage pollution control affirmatively
over time instead of reacting to crises.
Auditing can result in improved facility
environmental performance, help
communicate effective solutions to
common environmental problems, focus
facility managers' attention on current
and upcoming regulatory requirements,
and generate protocols and checklists
which help facilities better manage
themselves. Auditing also can result in
better-integrated management of
environmental hazards, since auditors
frequently identify environmental
liabilities which go beyond regulatory
compliance. Companies, public entities
and federal facilities have employed a
variety of environmental auditing
practices in recent years. Several
hundred major firms in diverse
industries now have environmental
auditing programs, although they often
are known by other names such as
assessment, survey, surveillance, review
or appraisal.
While auditing has demonstrated its
usefulness to those with audit programs.
many others still do not audit.
Clarification of EPA's position regarding
auditing may help encourage regulated
entities to establish audit programs or
upgrade systems already in place.
B. EPA Encourages the Use of
Environmental Auditing
EPA encourages regulated entities to
adopt sound environmental
management practices to improve
environmental performance. In
particular. EPA encourages regulated
entities subject to environmental
regulations to institute environmental
auditing programs to help ensure the
adequacy of internal systems to achieve.
maintain and monitor compliance.
Implementation of environmental
auditing programs can result in better
identification, resolution and avoidance
of environmental problems, as well as
improvements to management practices
Audits can be conducted effectively by
independent internal or third party
auditors. Larger organizations generally
have greater resources to devote to an
internal audit team, while smaller
entities might be more likely to use
outside auditors.
Regulated entities are responsible for
taking all necessary steps to ensure
compliance with environmental
requirements, whether or not they adopt
audit programs. Although environmental
laws do not require a regulated facility
to have an auditing program, ultimate
responsibility for the environmental
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25007
performance of the facility lies with top
management, which therefore has a
strong incentive to use reasonable
means, such as environmental auditing.
to secure reliable information of facility
compliance status.
EPA does not intend to dictate or
interfere with the environmental
management practices of private or
public organizations. Nor does EPA
intend to mandate auditing (though in
certain instances EPA may seek to
include provisions for environmental
auditing as part of settlement
agreements, as noted below). Because
environmental auditing systems have
been widely adopted on a voluntary
basis in the past, and because audit
qua! ty depends to a large degree upon
genuine management commitment to the
program and its objectives, auditing
should remain a voluntary activity.
lit. EPA Policy on Specific
Environmental Auditing Issues
A. J_'r -y Requests for Audit Reports
EPA has broad statutory authority to
request relevant information on the
environmental compliance status of
regulated entities. However. EPA
believes routine Agency requests for
audit reports 3 could inhibit auditing in
the long run. decreasing both the
quantity and quality of audits
conducted. Therefore, as a matter of
policy. EPA will not routinely request
environmental audit reports.
EPA's authority to request an audit
report, or relevant portions thereof, will
be exercised on a case-by-case basis
where the Agency determines it is
needed to accomplish a statutory
mission, or where the Government
deems it to be material to a criminal
investigation. EPA expects such
requests to be limited, most likely
focused on particular information needs
rather than the entire report, and usually
made where the information needed
cannot be obtained from monitoring.
reporting or other data otherwise
available to the Agency. Examples
would likely include situations where:
audits are conducted under consent
decrees or other settlement agreements:
a company has placed its management
practices at issue by raising them as a
defense: or state of mind or intent are a
relevant element of inquiry, such as
during a criminal investigation. This list
' An "environmental tudil report" la a written
report which candidly and thoroughly pretenti
finding! from t review, conducted ai part of an
environmental audit at described In Mction H.A.. of
Ucihly environmental performance and practice*.
An audit report la not a lubitnule for compliance
monitoring report! or other report! or record! which
mjy be required by EPA or other regulatory
is illustrative rather than exhaustive.
since there doubtless will be other
situations, not subject to prediction, in
which audit reports rather than
information may be required.
EPA acknowledges regulated entities
need to self-evaluate environmental
performance with some measure of
pnvacy and encourages such activity.
However, audit reports may not shield
monitoring, compliance, or other
information that would otherwise be
reportable and/or accessible to EPA.
even if there is no explicit 'requirement'
to generate that data.4 Thus, this policy
does not alter regulated entities' existing
or future obligations to monitor, record
or report information required under
environmental statutes, regulations or
permits, or to allow EPA access to that
information. Nor does this policy alter
EPA's authority to request and receive
any relevant information—including tha't
contained in audit reports—under
various environmental statutes (e.g..
Clean Water Act section 308. Clean Air
Act sections 114 and 208) or in other
administrative or judicial proceedings.
Regulated entities also should be
aware that certain audit findings may by
law have to be reported to government
agencies. However, in addition to any
such requirements. EPA encourages
regulated entities to notify appropriate
State or Federal officials of findings
which suggest significant environmental
or public health risks, even when not
specifically required to do so.
B. EPA Response to Environmental
Auditing
1. General Policy
EPA will not promise to forgo
inspections, reduce enforcement
responses, or offer other such incentives
in exchange for implementation of
environmental auditing or other sound
environmental management practices.
Indeed, a credible enforcement program
provides a strong incentive for regulated
entities to audit.
Regulatory agencies have an
obligation to assess source compliance
status independently and cannot
eliminate inspections for particular firms
or classes of firms. Although
environmental audits may complement
inspections by providing self-
assessment to assure compliance, they
are in no way a substitute for regulatory
oversight. Moreover, certain statutes
(e g. RCRA) and Agency policies
establish minimum facility inspection
frequencies to which EPA will adherJ
However. EPA will continue to
address environmental problems on a
priority basis and will consequently
inspect facilities with poor
environmental records and practices
more frequently. Since effective
environmental auditing helps
management identify and promptly
correct actual or potential problems,
audited facilities' environmental
performance should improve. Thus.
while EPA inspections of self-audited
facilities will continue, to the extent that
compliance performance is considered
in setting inspection priorities, facilities
with a good compliance history may be
subject to fewer inspections.
In fashioning enforcement responses
to violations. EPA policy is to take into
account, on a case-by-case basis, the
honest and genuine efforts of regulated
entities to avoid and promptly correct
violations and underlying environmental
problems. When regulated entities take
reasonable precautions to avoid
noncompliance. expeditioasly correct
underlying environmental problems
discovered through audits or other
means, and implement measures to
prevent their recurrence. EPA may
exercise its discretion to consider sue
actions as honest and genuine efforts
assure compliance. Such consideration
applies particularly when a regulated
entity promptly reports violations or
compliance data which otherwise were
not required to be recorded or reported
to EPA.
2. Audit Provisions as Remedies in
Enforcement Actions
EPA may propose environmental
auditing provisions in consent decrees
and in other settlement negotiations
where auditing could provide a remedy
for identified problems and reduce the
likelihood of similar problems recurring
in the future.5 Environmental auditing
provisions are most likely to be
proposed in settlement negotiations
where:
• A pattern of violations can be
attributed, at least in part, to the
absence or poor functioning of an
environmental management system: or
• The type or nature of violations
indicates a likelihood that similar
noncompliance problems may exist or
occur elsewhere in the facility or at
other facilities operated by the regulated
entity.
4 See. for example. "Oulie! to Report or OiscloM
Information on the Environmental AlpectI of
Buiineii Activiliei." Environmental Law Inititute
report to EPA. final report. September 19SS.
* EPA ii developing guidance for u«e by Agency
negotiator! in ilructurmg appropriate environmental
audit provnioni for conaent decrees and other
lettlement negotiations.
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Through this consent decree approach
und other means. EPA may consider
how to encourage effective auditing by
publicly owned sewage treatment works
(t'OTVVs). POTWs often have
compliance problems related to
operation and maintenance procedures
which can be addressed effectively
through tho use of environmental
auditing. Under its National Municipal
Policy EPA already is requiring many
POTWs to develop composite correction
plans to identify and correct compliance
probl-'-ms.
C. Envirumnentjl Auditing at Federal
Fit :/iL,es
EPA encourages all federal agencies
subiect to environmental laws and
regulations to institute environmental
audit'ng systems to help ensure the
jdeu.-:acy of internal systems to achieve,
maintain and monitor compliance.
Environmental auditing at federal
facilities can be an effective supplement
to EPA and state inspections. Such
federal facility environmental audit
programs should be structured to
promptly identify environmental
p;oblems and expenditiously develop
schedules for remedial action.
To the extent feasible, EPA will
provide technical assistance to help
federal agen^es design and initiate
kaudit programs. Where appropriate. EPA
ill enter into agreements with other
gencies to clarify the respective roles,
responsibilities and commitments of
each a«enc> m conducting and
responding to federal facility
environmental audits.
With respect to inspections of self-
audited facilities (see section III.B.I
above) and requests for audit reports
(see section IL'.A above). EPA generally
will respond to environmental audits by
federal facilities in the same manner as
it does for other regulated entities, in
keeping with the spirit and intent of
Executive Order 12088 and the EPA
Federal Facilities Compliance Strategy
(January 1984. update forthcoming in
late 1986). Federal agencies should,
however, be aware that the Freedom of
Information Act will govern any
disclosure of audit reports or audit-
generated information requested from
federal agencies by the public.
When federal agencies discover
significant violations through an
environmental audit. EPA encourages
them to submit the related audit findings
and remedial action plans expediriously
to the applicable EPA regional office
(and responsible state agencies, where
appropriate) even when not specifically
uired to do so. EPA will review the
^ dit findings and action plans and
either provide written approval or
negotiate a Federal Facilities
Compliance Agreement. EPA will utilize
the escalation procedures provided in
Executive Order 12088 and the EPA
Federal Facilities Compliance Strategy
only when agreement between agencies
cannot be reached. In any event, federal
agencies are expected to report pollution
abatement projects involving costs
(necessary to correct problems
discovered through the audit) to EPA in
accordance with OMB Circular A-106.
Upon request, and in appropriate
circumstances, EPA will assist affected
federal agencies through coordination of
any public release of audit findings with
approved action plans once agreement
has been reached.
IV. Relationship to State or Local
Regulatory Agencies
State and local regulatory agencies
have independent jurisdiction over
regulated entities. EPA encourages them
to adopt these or similar policies, in
order to advance the use of effective
environmental auditing in a consistent
manner.
EPA recognizes that some states have
already undertaken environmental
auditing initiatives which differ
somewhat from this policy. Other states
also may want to develop auditing
policies which accommodate their
particular needs or circumstances.
Nothing in this policy statement is
intended to preempt or preclude states
from developing other approaches to
environmental auditing. EPA encourages
state and local authorities to consider
the basic principles which guided the
Agency in developing this policy:
• Regulated entities must continue to
report or record compliance information
required under existing statutes or
regulations, regardless of whether such
information is generated by an
environmental audit or contained in an
audit report. Required Information
cannot be withheld merely because it is
generated by an audit rather than by
some other means.
• Regulatory agencies cannot make
promises to forgo or limit enforcement
action against a particular facility or
class of facilities in exchange for the use
of environmental auditing systems.
However, such agencies may use their
discretion to adjust enforcement actions
on a case-by-case basis in response to
honest and genuine efforts by regulated
entities to assure environmental
compliance.
• When setting inspection priorities
regulatory agencies should focus to the
extent possible on compliance
performance and environmental results.
• Regulatory agencies must continue
to meet minimum program requirements
(e.g.. minimum inspection requirements.
etc.).
• Regulatory agencies should not
attempt to prescribe the precise form
and structure of regulated entities'
environmental management or auditing
programs.
An effective state/federal partnership
is needed to accomplish the mutual goal
of achieving and maintaining high levels
of compliance with environmental laws
and regulations. The greater the
consistency between state or local
policies and this federal response to
environmental auditing, the greater the
degree to which sound auditing
practices might be adopted and
compliance levels improve.
Dated: June 28. 1986.
Lee M. Thomai.
Administrator.
Appendix—Elements of Effective
Environmental Auditing Programs
Introduction: Environmental auditing
is a systematic, documented, periodic
and objective review by a regulated
entity of facility operations and
practices related to meeting
environmental requirements.
Private sector environmental audits of
facilities have been conducted for
several years and have taken a variety
of forms, in part to accommodate unique
organizational structures and
circumstances. Nevertheless, effective
environmental audits appear to have
certain discernible elements in common
with other kinds of audits. Standards for
internal audits have been documented
extensively. The elements outlined
below draw heavily on two of these
documents: "Compendium of Audit
Standards" (*1983. Walter Wiilborn.
American Society for Quality Control)
and "Standards for the Professional
Practice of Internal Auditing" (*1981,
The Institute of Internal Auditor*. Lnc ).
They also reflect Agency analyses
conducted over the last several years.
Performance-oriented auditing
elements are outlined here to help
accomplish several objectives. A general
description of features of effective.
mature audit programs can help those
starting audit programs, especially
federal agencies and smaller businesses.
These elements also indicate the
attributes of auditing EPA generally
considers important to ensure program
effectiveness. Regulatory agencies may
use these elements in negotiating
environmental auditing provisions for
consent decrees. Finally, these elements
can help guide states and localities
considering auditing initiatives.
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25009
An effective environmental auditing
system will likely include the following
general elements:
I. Explicit top management support for
environmental auditing and
commitment to follow-up on audit
findings. Management support may be
demonstrated by a written policy
articulating upper management support
for the auditing program, and for
compliance with all pertinent
requirements, including corporate
policies and permit requirements as well
as federal, state and local statutes and
regulations.
Management support for the auditing
program also should be demonstrated
by an explicit written commitment to
follow-up on audit findings to correct
identified problems and prevent their
recurrence.
II. An environmental auditing function
independent of audited activities. The
status or organizational locus of
environmental auditors should be
sufficient to ensure objective and
unobstructed inquiry, observation and
testing. Auditor objectivity should not
be impaired by personal relationships.
financial or other conflicts of interest.
interference with free inquiry or
judgment, or fear of potential
retribution.
III. Adequate team staffing and
auditor training. Environmental auditors
should possess or have ready access to
the knowledge, skills, and disciplines
needed to accomplish audit objectives.
Each individual auditor should comply
with the company's professional
standards of conduct. Auditors, whether
full-time or part-time, should maintain
their technical and analytical
competence through continuing
education and training.
IV Explicit audit program objectives.
scope, resources and frequency. At a
minimum, audit objectives should
include assessing compliance with
applicable environmental laws and
evaluating the adequacy of internal
compliance policies, procedures and
personnel training programs to ensure
continued compliance.
Audits should be based on a process
which provides auditors: all corporate
policies, permits, and federal, state, and
local regulations pertinent to the facility:
and checklists or protocols addressing
specific features that should be
evaluated by auditors.
Explicit written audit procedures
generally should be used for planning
audits, establishing audit scope.
examining and evaluating audit findings.
communicating audit results, and
fotlowing-up.
V A process which collects, analyzes.
interprets and documents information
sufficient to achieve audit objectives.
Information should be collected before
and during an onsite visit regarding
environmental compliance}.!).
environmental management
effectiveness(^). and other matters (3)
related to audit objectives and scope.
This information should be sufficien;.
reliable, relevant and useful to provide a
sound basis for audit findings and
recommendations.
a. Sufficient information is factual.
adequate and convincing so that a
prudent, informed person would be
likely to reach the same conclusions as
the auditor.
b. Reliable information is the best
attainable through use of appropriate
audit techniques.
c. Relevant information supports audit
findings and recommendations and is
consistent with the objectives for the
audit.
d. Useful information helps the
organization meet its goals.
The audit process should include a
periodic review of the reliability and
integrity of this information and the
means used to identify, measure.
classify and report it. Audit procedures.
including the testing and sampling
techniques employed, should be selected
in advance, to the extent practical, and
expanded or altered if circumstances
warrant. The process of collecting.
analyzing, interpreting, and
documenting information should provide
reasonable assurance that audit
objectivity is maintained and audit goals
are met.
VI. A process which includes specific
procedures to promptly prepare candid.
clear and appropriate written reports on
audit.fmrtings. corrective actions, and
schedules for implementation.
Procedures should be in place to ensure
that such information is communicated
to managers, including facility and
corporate management, who can
evaluate the information and ensure
correction of identified problems.
Procedures also should be in place for
determining what internal findings are
reportable to state or federal agencies.
uity
ante
VII. A process which includes quality^
assurance procedures to assure the
accuracy and thoroughness of
environmental audits. Quality assuran
may be accomplished through
supervision, independent internal
reviews, external reviews, or a
combination of these approaches.
Footnotes to Appendix
{!} A comprehensive assessment of
compliance with federal environmental
regulations requires an analysis of facility
performance against numerous
environmental statutes and implementing
regulations. These statutes include:
Resource Conservation and Recovery Act
Federal Water Pollution Control Act
Clean Air Act
Hazardous Materials Transportation Act
Toxic Substances Control Act
Comprehensive Environmental Response.
Compensation and Liability Act
Safe Drinking Water Act
Federal Insecticide. Fungicide and
Rodenticide Act
Marine Protection. Research and Sanctuaries
Act
Uranium Mill Tailings Radiation Control Act
In addition, state and local government are
likely to have their own environmental laws
Many states have been delegated authontv. 10
administer federal programs. Many local
governments' building, fire, safety and health
codes also have environmental requiremei]
relevant to an audit evaluation.
{2} An environmental audit could go well
beyond the type of compliance assessment
normally conducted during regulatory
inspections, for example, by evaluating
policies and practices, regardless of whether
they are part of the environmental system or
the operating and maintenance procedures
Specifically, audits can evaluate the extent to
which systems or procedures:
1. Develop organizational environmental
policies which: a. implement regulatory
requirement*, b. provide management
guidance for environmental hazards net
specifically addressed in regulations
2 Train and motivate facility personnel to
work in an environmentally-acceptable
manner and to understand and comp!> with
government regulations and the entity s
environmental policy:
3 Communicate relevant environmental
developments expeditiousiy to facility and
other personnel;
4 Communicate effectively with
government and the public regarding serious
environmental incidents:
5 Require third parties working for. with or
on behalf of the organization to follow its
environmental procedures:
A-6
-------
Federal Register / Vol. 51. No. 131 / Wednesday, July 9. 1966 / Noticei
25010
8. Make proficient personnel^available at
kail times to carry out enviroiMtMRhl
'(especially emergency) procedures;
7. Incorporate environmental protection
into written operating procedures:
8. Apply best management practices and
operating procedures, including "good
housekeeping" techniques:
9. Institute preventive and corrective
maintenance systems to minimize actual and
potential environmental harm:
10. Utilize best available process and
control technologies:
11. Use most-effective sampling and
monitoring techniques, test methods.
recordkeeping systems or reporting protocols
(beyond minimum legal requirements):
12. Evaluate causes behind ary serious
environmental incidents and establish
procedures to avoid recurrence:
13. Exploit source reduction, recycle and
reuse potential wherever practical: and
14 Substitute materials or processes to
allow use of the least-hazardous substances
feasible.
(J) Auditors could alto assess
environmental risks and uncertainties.
|FR Doc. 86-15423 Filed 7-8-86 8:45 am]
BILLING COOt DS40-W-U
A-7
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APPENDIX B
LIST OF STATE AGENCIES AND ADDRESSES
ALABAMA
Department of Environmental Management
Land Division—Solid/Hazardous Waste
1751 Federal Drive
Montgomery, AL 36130
205/271-7761/271-7735
Department of Environmental Management
Water Division—Water Quality Planning
1751 Federal Drive
Montgomery, AL 36130
205/271-7825
Air
Department of Environmental Management
Air Division
1751 Federal Drive
Montgomery, AL 36130
205/271-7861
Air Pollution Control Board
645 South McDonough Street
Montgomery, AL 36130
205/834-6570
ALASKA
We
Department of Environmental Conservation
Environmental Quality Management Section
Solid Waste Management Section
Pouch 0
Juneau, Alaska 99811
907/465-2667
Water
Department of Environmental Conservation
Division of Environmental Quality Management
Pouch 0
Juneau, Alaska 99811
907/465-2640
B-1
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Air
Department of Environmental Conservation
Pouch 0
Juneau, Alaska 99811
907/465-2666
ARIZONA
Waste
Department of Health Services
Office of Waste and Water Quality Management
2005 North Central Avenue
Phoenix, AZ 85004
602/257-2235
water
Department of Health Services
Office of Waste and Water Quality Management
2005 N. Central Avenue
Phoenix, AZ 85007
602/257-2305
Air
Department of Health Services
Office of Air Quality Control
2005 N. Central Avenue
Phoenix, AZ 85004
602/257-2308
Noise
Department of Health Sciences
1740 West Adams Street
Phoenix, AZ 85007
ARKANSAS
waste
Department of Pollution Control and Ecology
Solid Waste Division
P.O. Box 9583
Little Rock, AR 72219
916/562-7444
Water
Department of Pollution Control and Ecology
Water Division, 208 Planning Section
8001 National Drive
Little Rock, AR 72209
501/562-7444
B-2
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Air
Department of Pollution Control and Ecology
Air Division
8001 National Drive
Little Rock, AR 72209
501/562-7444
Motor Vehicle Division
Department of Finance and Administration
7th and Wolf Streets
Little Rock, AR 72201
CALIFORNIA
Waste
Solid Waste Management Board
1020 9th Street, Suite 300
Sacramento, CA 95814
916/322-3330
Water Resources Control Board
P.O. Box 100
901 P Street
Sacramento, CA 95801
Air
Air Resources Board
P.O. Box 2815
1102 Q Street
Sacramento, CA 95812
916/322-2990
Noise
Highway Patrol
P.O. Box 898
2555 First Avenue
Sacramento, CA 95818
COLORADO
Department of Health
Hazardous Materials and Waste Management Division
4210 East llth Avenue
Denver, CO 80220
303/331-4830
B-3
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Water
Department of Health
Water Quality Control Division
4210 East llth Avenue
Denver, CO 80220
303/320-8333
Air
Department of Health
Air Pollution Control Division/Commission
4210 East llth Avenue
Denver, CO 80220
303/331-8500
Noise
Department of Health
4210 East llth Avenue
Denver, CO 80220
CONNECTICUT
Waste
Department of Environmental Protection
Division of Environmental Quality
Solid Waste Management Unit
State Office Building
165 Capitol Avenue
Hartford, CT 06115
203/566-4869
Water
Department of Environmental Protection
Water Compliance and Hazardous Substances
122 Washington Street
Hartford, CT 06106
203/566-3245
Air
Department of Environmental Protection
Air Compliance Unit
State Office Building
165 Capitol Avenue
Hartford, CT 06106
203/566-4030
Noise
Department of Motor Vehicles
60 State Street
Wethersfield, CT 06109
B-4
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DELAWARE
Department of Natural Resources and Environmental Control
Division of Environmental Control
Solid Waste/Hazardous Waste Section
Edward Tatnall Building, P.O. Box 1401
Dover, DE 19901
302/736-4781
Department of Natural Resources and Environment Control
Division of Water Resources
89 Kings Highway
P.O. Box 1401
Dover, DE 19903
302/736-4761
Air
Department of Natural
Air Resources Section
P.O. Box 1401
89 Kings Highway
Dover, DE 19903
302/736-4791
Resources and Environmental Control
DISTRICT OF COLUMBIA
Public Space Maintenance Administration
Bureau of Sanitation Services
Solid Waste Disposal Division
4701 Shepherd PKWY., SW
Washington, D.C. 20032
202/767-8512
Department of
Environmental
5010 Overlook
Washington, D,
202/767-7370
Air
Department of
Environmental
5010 Overlook
Washington, D.
202/767-7370
Consumer and Regulatory Affairs
Control Division
Avenue, SW
C. 20032
Consumer and Regulatory Affairs
Control Division
Avenue, SW
C. 20032
B-5
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FLORIDA
Department of Environmental Regulation
Division of Environmental Programs
2600 Blairstone Road
Tallahassee, FL 32301
904/487-1855
Water
Department of Environmental Regulation
Division of Environmental Programs
Water Quality Planning Section
2600 Blair Stone Road, Suite 531
Twin Towers Office Bldg.
Tallahassee, FL 32301
904/488-0780
Air
Department of Environmental Regulation
Air Quality Management Bureau
Twin Towers Office Bldg.
2600 Blair Stone Road
Tallahassee, FL 32399-2400
904/488-1344
GEORGIA
Waste
Department of Natural Resources
Environmental Protection Division
Land Protection Branch
270 Washington Street, SW
Atlanta, GA 30334
404/656-2833
Water
Department of Natural Resources
Environmental Protection Division, Water Protection Branch
270 Washington Street, SW, Room 702
Atlanta, GA 30334
404/656-4887
Air
Department of Natural Resources
Environmental Protection Division, Air Protection Branch
270 Washington Street, SW, Room 816
Atlanta, GA 30334
404/656-6900
B-6
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HAWAII
Department of Health
Pollution Investigation and Enforcement Division
P.O. Box 3378
Honolulu, HI 96801
808/548-6355
Water
Department of Health
Pollution Investigation and Enforcement Division
P.O. Box 3378
Honolulu, HI 96801
808/548-6505
Air
Department of Health
Pollution Investigation and Enforcement Division
P.O. Box 3378
Honolulu, HI 96801
808/548-6505
IDAHO
Department of Health and Welfare
Division of Environment
Bureau of Hazardous Materials
450 w. State Street
Boise, ID 83720
208/334-5879
Department of Health and Welfare
Bureau of Water Quality
State House
Boise, ID 83720
208/334-5867
Air
Department of Health and Welfare
Division of Environment
Bureau of Air Quality
450 W. State Street
State House
Boise, ID 83720
208/334-5898
B-7
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ILLINOIS
Environmental Protection Agency
Land Pollution Control Division
2200 Churchill Road
P.O. Box 19276
Springfield, IL 62794-9276
217/782-6762
Water
Environmental Protection Agency
Division of Water Pollution Control
2200 Churchill Road
P.O. Box 19276
Springfield, IL 62794-9276
217/782-1654
Air
Environmental Protection Agency
Division of Air Pollution Control
2200 Churchill, IL 62794-9276 62706
217/782-7326/7327
Noise
Pollution Control Board
309 W. Washington Street, Suite 300
Chicago, IL 60606
INDIANA
Waste
Office of Solid and Hazardous Waste Management
105 South Meridian Street
P.O. Box 6015
Indianapolis, IN 46206-6015
317/232-3210
Water
Office of Water Management
105 South Meridian Street
P.O. Box 6015
Indianapolis, IN 46206-6015
317/232-8488
Air
Office of Air Management
105 South Meridian Street
P.O. Box 6015
Indianapolis, IN 46206-6015
317/232-8221
Noise ^^
Environmental Management Board
1330 W. Michigan Street
Indianapolis, IN 46206
B-8
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IOWA
Department of Natural Resources
Environmental Protection Division
Air Quality and Solid Waste Protection Bureau
Wallace State Office Building
900 East Grand Avenue
Des Moines, IA 50319
515/281-8690
Department of Natural Resources
Surface and Ground Water Protection
Wallace State Office Building
900 East Grand Avenue
Des Moines, IA 50319
515/281-8690
Air
Department of Natural Resources
Environmental Protection Division
Air Quality and Solid Waste Protection Bureau
Wallace State Office Building
900 East Grand Avenue
Des Moines, IA 50319
515/281-8690
KANSAS
Waste
Department of Health and Environment
Solid Waste Management Division
740 Forbes Building
Topeka, KS 66620
913/862-9360
Water
Department of Health and Environment
Division of Environment
Bureau of Water Quality
Forbes AFB Building No. 740
Topeka, KS 66620
913/862-9360, x257
Air
Department of Health and Environment
Division of Environment
Air Quality and Radiation Control
Forbes AFB Building No. 740
Topeka, KS 66620
913/296-1500
B-9
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Noise.
Department of Transportation
Engineering Services
State Office Building
Topeka, KS 66612
KENTUCKY
Natural Resources and Environmental Protection Cabinet
Division of Waste Management
18 Reilly Road, Ft. Boone Plaza
Frankfort, KY 40601
502/564-6716
Water
Natural Resources and Environmental Protection Cabinet
Division of Water
18 Reilly Road, Ft. Boone Plaza
Frankfort, KY 40601
502/564-3410
Natural Resources and Environmental Protection Cabinet
Division for Air Quality
18 Reilly Road, Ft. Boone Plaza
Frankfort, KY 40601
502/564-3382
Noise
Department For Environmental Protection
Natural Resources and Environmental Protection Cabinet
18 Reilly Road, Ft. Boone Plaza
Frankfort, KY 40601
502/564-5576
LOUISIANA
Department of Environmental Quality
Office of Solid and Hazardous Waste
Solid Waste Division
P.O. Box 44307
Baton Rouge, LA 70804
504/342-4677
Water
Department of Health and Human Resources
Office of Preventive and Public Health Services
Safe Drinking Water Program
P.O. Box 60630
New Orleans, LA 70160
504/568-5101
B-10
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Air
Department of Environmental Quality
Air Quality Division
P.O. Box 44096
Baton Rouge. LA 70804
504/342-1206
MAINE
Waste
Department of Environmental Protection
Bureau of Oil & Hazardous Materials Control
State House Station 17
Augusta, ME 04333
207/289-2631
Department of Environmental Protection
Bureau of Water Quality Control
State House, Station 17
Augusta, ME 04333
207/289-3355
Air
Department of Environmental Protection
Bureau of Air Quality Control
State House, Station 17
Augusta, ME 04333
207/289-2437
MARYLAND
Department of the Environment
Hazardous and Solid Waste Management Administration
201 West Preston Street
Baltimore, MD 21201
301/225-5647
Department of Natural Resources
Water Resources Administration
Tawes State Office Building
Annapolis, MD 21401
301/974-3846
Department of the Environment
Water Management Administration
201 West Preston Street
Baltimore, MD 21201
301/225-6300
B-11
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Air
Department of the Environment
Air Management Administration
Bureau of Air Quality Control
201 West Preston Street
Baltimore, MD 21201
301/225-5235
MASSACHUSETTS
Waste
Executive Office of Environmental Affairs
Department of Environmental Quality Engineering
Solid and Hazardous Waste Division
1 Winter Street
Boston, MA 02108
617/292-5589
Water
Department of Environmental Quality Engineering
Division of Water Pollution Control
1 Winter Street
Boston, MA 02108
617/292-5673
Department of Environmental Quality Engineering
Division of Water Supply
1 Winter Street
Boston, MA 02108
617/292-5770
Air
Department of Environmental Quality Engineering
Division of Air & Hazardous Materials
1 Winter Street
Boston, MA 02108
617/292-5630
Noise
Division of Air Quality Control
Department of Environmental Quality Engineering
1 Winter Street
Boston, MA 02108
617/292-5630
MICHIGAN
Waste
Department of Natural Resources
Ground Water Quality Division - Solid Waste
P.O. Box 30028
Lansing, MI 48909
517/373-2794
B-12
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We
Department of Natural Resources
Water Resources Commission
Surface Water Quality Division
P.O. Box 30028
Lansing, MI 48909
517/373-1949
Air
Department of Natural Resources
Air Quality Division
P.O. Box 30028
Lansing, MI 48909
517/373-7023
Department of Transportation
425 West Ottawa
P.O. Box 30050
Lansing, MI 48909
517/373-2090
MINNESOTA
Minnesota Pollution Control Agency
Solid and Hazardous Waste Division
520 Lafayette Road North
St. Paul, MN 55155
612/296-7340
Wa t e r
Minnesota Pollution Control Agency
Division of Water Pollution Control
520 Lafayette Road North
St. Paul, MN 55155
612/296-7202
Minnesota Pollution Control Agency
Division of Air Quality
520 Lafayette Road North
St. Paul, MN 55155
612/296-7331
Noise Pollution Control Section
Pollution Control Agency
1935 West County Road B-2
Roseville, MN 55113
B-13
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MISSISSIPPI
Department of Natural Resources
Bureau of Pollution Control
P.O. Box 10385
Jackson, MS 39209
601/961-5063
Department of Natural Resources
Bureau of Pollution Control
P.O. Box 10385, Southport Mall
Jackson, MS 39209
601/961-5171
Air
Department of Natural Resources
Bureau of Pollution Control
P.O. Box 10385, Southport Mall
Jackson, MS 39209
601/961-5171
Noise
Department of Natural Resources
Bureau of Pollution Control
P.O. Box 10385, Southport Mall
Jackson, MS 39209
601/961-5171
MISSOURI
Waste
Department of Natural Resources
Division of Environmental Quality
Waste Management Program
Jefferson State Office Bldg.,
205 Jefferson Street
P.O. Box 176
Missouri Boulevard
Jefferson City, MO 65102
314/751-3176
Water
Department of Natural Resources
Water Quality Program
Division of Environmental Quality
Jefferson State Office Bldg.,
101 Jefferson Street
Jefferson City, MO 65102
314/751-1300 ^
B-14
-------
Air
Department of Natural Resources
Division of Environmental Quality
Air Pollution Control Program
Jefferson State Office Bldg.,
205 Jefferson Street
P.O. Box 176
Missouri Boulevard
Jefferson City, MO 65102
314/751-4817
Noise
Highway and Transportation Division
P.O. Box 270
Jefferson City, MO 65102
314/751-2551
MONTANA
Department of Health and Environmental Sciences
Environmental Sciences Division
Solid Waste Management Bureau
Cogswell Building
Helena, MT 59620
406/444-2821
Water
Department of Health and Environmental Sciences
Division of Environmental Sciences
Water Quality Bureau
Cogswell Bldg. Room A206
Helena, MT 59620
406/444-2406
Air
Department of Health and Environmental Sciences
Division of Environmental Sciences
Air Quality Bureau
Cogswell Bldg. Room A116
Helena, MT 59620
406/444-3454
NEBRASKA
Department of Environmental Control
P.O. Box 94877
State Office Building
Lincoln, NE 68509
402/471-2186
B-15
-------
Water
Department of Environmental Control
Water Pollution Control Division
P.O. Box 94877
301 Centennial Mall
Lincoln, NE 68509
402/471-2186
Ait
Department of Environmental Control
Air Pollution Division
P.O. Box 94877
301 Centennial Mall
Lincoln, NE 68509
402/471-2186
Noise
Air Pollution Control Division
Department of Environmental Control
Box 94877, State House Station
Lincoln, NE 68509
NEVADA
Waste
Department of Conservation and Natural Resources
Division of Environmental Protection
201 South Fall Street, Capitol Complex
Carson City, NV 89710
702/885-4670
Water
Department of Conservation and Natural Resources
Water Resources Division
201 South Fall Street, Capitol Complex, Nye Bldg
Carson City, NV 89710
702/885-4380
Air
Department of Conservation and Natural Resources
Air Quality Office
Capitol Complex
201 South Fall Street
Carson City, NV 89710
702/885-4670
No ise
Department of Motor Vehicles
555 Wrightway
Carson City, NV 89701
B-16
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NEW HAMPSHIRE
Waste
Department of Health and Human Services
Bureau of Solid Waste Management/Hazardous Waste Management
6 Hazen Drive
Concord, NH 03301
603/271-2900
Water
Water Supply and Pollution Control Commission
Health and Human Services Bldg.
6 Hazen Drive
P.O. Box 95
Concord, NH 03301
603/271-3504
Air
Air Resources Agency
64 N. Main Street
Concord, NH 03301
603/271-4582
NEW JERSEY
Department of Environmental Protection
Solid Waste Division/Hazardous Waste Bureau
401 East State Street
CN 402
Trenton, NJ 08625
609/292-9120/292-9877
Water
Department of Environmental Protection
Division of Water Resources
401 East State Street
P.O. Box CN029
Trenton, NJ 08625
609/292-1638
Department of Environmental Protection
Division of Environmental Quality
Bureau of Air Pollution Control
401 East State Street
Trenton, NJ 08625
609/292-5450
Office of Noise Control
65 Prospect Avenue
Trenton, NJ 08618
B-17
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NEW MEXICO
Waste
Health and Environment Department
Environment Improvement Division
Harold Runnels State Office Bldg.
1190 St. Francis Drive
P.O. Box 968
Santa Fe, NM 87504
505/827-2779; 827-2929
Water
Health and Environment Department
Environment Improvement Division
Surface Water Quality
Harold Runnels State Office Bldg.
1190 St. Francis Drive
P.O. Box 968
Santa Fe, NM 87504-0968
505/827-2918
Air
Health and Environment Department
Environment Improvement Division
Air Quality Bureau
Harold Runnels State Office Bldg.
1190 St. Francis Drive
P.O. Box 968
Santa Fe, NM 87504-0968
505/827-0070
Transportation Department
Motor Vehicle Division
Manual Lujan Sr. Building
St. Francis and Luisa Streets
Santa Fe, NM 87503
NEW YORK
Waste
Department of Environmental Conservation
Solid Waste Management Division/Bureau of Hazardous Waste
50 Wolf Road
Albany, NY 12233
518/457-5861/457-3254
Water
Department of Environmental Conservation
Division of Waters
50 Wolf Road
Albany, NY 12233
518/457-6674
B-18
-------
Air
Department of Environmental Conservation
Division of Air Resources
50 Wolf Road
Albany, NY 12233
518/457-7230
Department of Environmental Conservation
Division of Solid Waste
Bureau of Hazardous Waste Technology
50 Wolf Road
Albany, NY 12233-0001
NORTH CAROLINA
Department of Human Resources
Division of Health Services
Solid and Hazardous Waste Management Branch
P.O. Box 2091
225 North McDowell Street
Raleigh, NC 27602
919/733-2178
Water
Department of Human Resources and Community Development
Division of Environmental Management
Water Quality Section
P.O. Box 27687
Raleigh, NC 27611
919/733-5083
Air
Department of Natural Resources and Community Development
Division of Environmental Management
Air Quality Section
P.O. Box 27687
Raleigh, NC 27611
919/733-6126
Noise Control Program
Air Quality Section
Division of Environmental Management
Department of Natural Resources and Community Development
P.O. Box 27687
Raleigh, NC 27611
B-19
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NORTH DAKOTA
Waste
Health Department
Environmental and Waste Management Research
Division
1200 Missouri Avenue
Bismarck, ND 58505
701/224-2382
Water
Department of Health
Division of Water Supply and Pollution Control
1200 Missouri Avenue, Room 203
Bismarck, ND 58505
701/224-2354
Air
Department of Health
Division of Environmental Engineering
1200 Missouri Avenue, Room 304
Bismarck, ND 58505
701/224-2348
OHIO
Waste
Environmental Protection Agency
Office of Land Pollution Control
361 East Broad Street
P.O. Box 1049
Columbus, OH 43216
614/466-7220
Water
Environmental Protection Agency
Waste Water Pollution Control
361 East Broad Street
P.O. Box 1049
Columbus, OH 43215
614/466-7427
Air
Environmental Protection Agency
Office of Air Pollution Control
361 East Broad Street
P.O. Box 1049
Columbus, OH 43215
614/466-6116
B-20
-------
Noise
Bureau of Motor Vehicles
240 Parsons Avenue
P.O. Box 7167
Columbus, OH 43295
614/466-2550
OKLAHOMA
Waste
Health Department
Environmental Health Services
Industrial and Solid Waste Service
1000 NE 10th Street
Oklahoma City, OK 73152
405/271-5338
Department of Pollution Control
P.O. Box 53504
1000 N.E. 10th Street
Oklahoma City, OK 73152
405/271-4677
Air
Department of Health
Environmental Health Services
Air Quality Service
1000 N.E. 10th Street, P.O. Box 53551
Oklahoma City, OK 73152
405/271-5220
Department of Health
1000 N.E. 10th Street, P.O. Box 53551
Oklahoma City, OK 73152
OREGON
Waste
Department of Environmental Quality
Solid Waste Division
Executive Building
811 SW Sixth Avenue
Portland, OR 97204
503/229-5356
Water
Department of Environmental Quality
Water Quality Division
Executive Building
811 SW Sixth Avenue
Portland, OR 97204
503/229-5324
B-21
-------
Air
Department of Environmental Quality
Air Quality Division
Executive Building
811 SW Sixth Avenue
Portland, OR 97204
503/229-5397
Noise
Air Quality Control Division
Department of Environmental Quality
P.O. Box 1760
522 S.W. Fifth
Portland, OR 97207
PENNSYLVANIA
Waste
Department of Environmental Resources
Office of Environmental Protection
Bureau of Solid Waste Management
Fulton Building, P.O. Box 2063
Harrisburg, PA 17120
717/787-9870
Water
Department of Environmental Resources
Bureau of Water Quality Management
P.O. Box 2063 — llth Floor/Fulton Bldg
200 N. 3rd Street
Harrisburg, PA 17120
717/787-2666
Air
Department of Environmental Resources
Bureau of Air Quality Control
P.O. Box 2063 - 18th Floor/Fulton Bldg.
200 N. 3rd Street
Harrisburg, PA 17120
717/787-9702
Noise
Department of Environmental Resources
P.O. Box 2062
Fulton Bank Building
Harrisburg, PA 17120
B-22
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PUERTO RICO
Environmental Quality Board
Solid and hazardous Waste Bureau
P.O. Box 11488
Santurce, PR 00910
809/725-5140
Environmental Quality Board
Division of Water/Water Resources
P.O. Box 11488
Santurce, PR 00910
809/725-5140
Air
Environmental Quality Board
Air Quality Bureau
P.O. Box 11488
Santurce, PR 00910
809/725-5140
RHODE ISLAND
Waste
Department of Environmental Management
Division of Land Resources
75 Davis Street
Providence, RI 02908
401/277-2787
Water
Department of Environmental Management
Division of Water Resources
75 Davis Street, 209 Canon Bldg.
Providence, RI 02908
401/277-2734
Air
Department of Environmental Management
Division of Air and Hazardous Materials
75 Davis Street
Providence, RI 02908
401/277-2808
B-23
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SOUTH CAROLINA
Waste
Board of Health and Environmental Control
Bureau of Solid and Hazardous Waste
2600 Bull Street
Columbia, SC 29201
803/734-5200
Water
Department of Health and Environmental Control
Environmental Quality Control
2600 Bull Street
Columbia, SC 29201
803/734-5300
Air
Department of Health and Environmental Control
Bureau of Air Quality Control
2600 Bull Street
Columbia, SC 29201
803/734-4750
SOUTH DAKOTA
Waste
Department of Water and Natural Resources
Environmental Health Division
Joe Foss Building
Pierre, SD 57501
605/773-3329
Water
Department of Water and Natural Resources
Office of Drinking Water
Joe Foss Bldg., Room 209
120 E. Capitol
Pierre, SD 57501
605/773-3351
Air
Department of Water and Natural Resources
Office of Air Quality & Solid Waste
Joe Foss Bldg., 120 E. Capitol, Rm. 217
Pierre, SD 57501
605/773-3329
B-24
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TENNESSEE
Waste
Department of Public Health
Bureau of Environmental Health Services
Solid Waste Management Division
Cordell Hull Building
Nashville, TN 37129
615/741-3424
Department of Public Health
Bureau of Environmental Health
Water Quality Control Division
344 Cordell Hull Bldg.
Nashville, TN 37219
615/741-3111
Air
Department of Public Health
Bureau of Environmental Health Services
Air Pollution Control Division
150 9th Ave. N.
Nashville, TN 37203
615/741-3931
TEXAS
Texas Water Commission
P.O. Box 13087
Capitol Station
Austin, TX 78711
512/463-7760
Water
Texas Water Commission
P.O. Box 13087
Capitol Station
Austin, TX 78711
512/463-8069
Air
Air Control Board
6330 Highway 290 East
Austin, TX 78723
512/451-5711
B-25
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Noise
Department of Health
Division of Occupational Health & Radiation Control
Occupational Health Branch
1100 W. 49th Street
Austin, TX 78756
512/458-7111
UTAH
Waste
Department of Health
Division of Environmental Health
Bureau of Solid Waste Management
150 West North Temple Street
P.O. Box 2500
Salt Lake City, UT 84110
801/533-4145
Water
Division of Environmental Health
Bureau of Water Pollution Control
P.O. 2500
150 West North Temple Street
Salt Lake City, UT 84013
801/533-6146
Air
State Department of Health
Bureau of Air Quality
150 West North Temple Street
P.O. Box 2500
Salt Lake City, UT 84110
801/533-6111
Noise
Department of Transportation
4501 South 27th West Street
Salt Lake City, UT 84119
801/965-4266
VERMONT
Waste
Environmental Conservation Agency
Waste Management Division
West Office Building
103 S. Main Steet
Waterbury, VT 05676
802/244-8702
B-26
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Water
Water Quality
Department of Water Resources
103 South Main Street
Room 10 North
Waterbury, Vermont 05676
802/244-5638
Air
Agency of Environmental Conservation
Air Pollution Control
Bldg. 3 South
103 S. Main Steet
Waterbury, VT 05676
802/244-8731
Agency of Transportation
Division of Engineering and Construction
133 State Street
Montpelier, VT 05602
VIRGINIA
Department of Waste Management
101 North Fourteenth Street
llth Floor, Monroe Building
Richmond, VA 23219
804/225-2667
State Water Control Board
P.O. Box 11143
Richmond, VA 23230
804/257-0056
Air
State Air Pollution Control Board
P.O. Box 10089
Richmond, VA 23240
804/786-2378
Noise
Virginia Department of Highways and Transportation
1404 E. Broad Street
Richmond, Virginia 23219
804/786-4304
B-27
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WASHINGTON
Waste
Department of Ecology
Hazardous Waste Program
Mail Stop PV-11
Olympia, WA 98501-8711
206/459-6000
Water
Department of Ecology
Office of Water Programs
Mail Stop PV-11
Olympia, WA 98504-8711
206/459-6000
Air
Department of Ecology
Office of Air Programs
Mail Stop PV-11
Olympia, WA 98504-8711
206/459-6000
WEST VIRGINIA
Waste
Department of Natural Resources
1201 Greenbriar St.
Charleston, WV 25311
304/348-5935
Water
Department of Natural Resources
Division of Water Resources
1800 E. Washington Street
Charleston, WV 25305
304/348-2107
Air
Air Pollution Control Commission
1558 Washington Street, East
Charleston, WV 25311
304/348-2275
WISCONSIN
Waste
Department of Natural Resources
Bureau of Solid Waste Management
101 South Webster Street
Madison, Wisconsin 53707
608/266-1327
B-28
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Wai
Department of Natural Resources
Division of Environmental Standards
Bureau of Water Resources & Mgt.
P.O. Box 7921
Madison, WI 53707
608/266-2121
Air
Department of Natural Resources
Division of Environmental Standards
Air Pollution Control Section
P.O. Box 7921
Madison, WI 53707
608/266-2121
Wisconsin Department of Natural Resources
Box 7921
Madison, WI 53707
WYOMING
Department of Environmental Quality
Solid Waste Management Program
122 West 25th Street
Cheyenne, WY 82002
307/777-7752
Department of Environmental Quality
Water Quality Division
122 West 25th Street
Cheyenne, WY 82002
307/777-7781
Air
Department of Environmental Quality
Air Quality Division
122 West 25th St.
Cheyenne, WY 82002
307/777-7391
B-29
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APPENDIX C
PRE-AUDIT ENVIRONMENTAL MANAGEMENT
QUESTIONNAIRE
This prc-audit environmental management questionnaire is used by the U.S. EPA's
environmental compliance program. It is intended to elicit background information from EPA
operating facilities pertaining to their environmental pollution control activities. This
background information assists EPA or their representatives in the planning and conducting of
facility audits. Accurate and timely completion is requested.
NO N/A UNK
Air Pollution Control
Does the facility:
a. Have air emission permits or registrations?
b. Conduct air emission monitoring?
c. Conduct performance tests of air pollution
control systems?
d. Emit any of the following air contaminants:
Beryllium?
Asbestos?
Mercury?
Vinyl Chloride?
Benzene?
Volatile Organic Compounds?
Arsenic?
Radionuclides?
e. Dispense any fuels to trucks, automobiles
or other vehicles?
f. Have an Air Episode Plan?
g. Perform maintenance on air cleaning devices,
dispose of filters?
C-1
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2. Water Pollution Control
Does the facility:
a. Discharge wastewater to:
Navigable Waters?
A Publicly-Owned Treatment Facility?
A Privately-Owned Treatment Facility?
A Deep Well by Injection?
A Septic System?
b. Have permits for these discharges?
c. Make use of any on-site wastewater pretreatment
or treatment?
d. Monitor its wastewater discharges?
e. Discharge any detectable amounts of the following:
Aldrin/Dieldrin?
DDT/DDD/DDE?
Endrin?
Toxaphene?
Benzene?
PCBs?
Metals?
Corrosives?
VOCs?
3. Safe Drinking Water
Does the facility:
a. Obtain any portion of its drinking water from
on-site wells or surface water sources?
b. Monitor its drinking water?
C-2
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YES NO N/A UNK
4. SPCC plan for oil in UST or
above ground tank, or PCBs in
temporary storage for disposal.
Does the facility:
a. Have a Spill Prevention Control and
Countermeasure Plan?
b. Conduct spill prevention training?
c. Have a spill response team?
5. Solid and Hazardous Waste Management
Does the facility:
a. Have buried storage tanks containing oil
or hazardous substances?
b. Generate hazardous waste in amounts:
Less than 100 kg/mo?
Between 100 - 1000 kg/mo?
In excess of 1000 kg/mo?
c. Generate acutely hazardous waste?
In excess of 1 kg/mo?
d. Generate hazardous waste classified as:
Listed Wastes?
Ignitable?
Corrosive?
Reactive?
EP Toxic?
e. Have an EPA ID number?
f. Store wastes for longer than 90 days?
For longer than 180 days?
For longer than 270 days?
C-3
-------
YES NO N/A UNK
g. Treat or dispose of hazardous wastes on-site
using the following?
Incineration?
Other Thermal Treatment?
Landfill?
Land Treatment?
Physical/Chemical Treatment?
Biological Treatment?
Underground Injection?
Elementary Neutralization Unit?
h. Have a written analysis plan?
i. Have a closure or post-closure plan?
j. Have a contingency plan?
k. Have a preparedness and prevention plan?
1. Transport its own wastes off-site?
6. PCB Management
Does the facility:
a. Have in use or storage (for reuse or disposal)
any PCBs or PCB contaminated:
Transformers?
Capacitors?
Electromagnets?
Hydraulic Systems?
Lab Samples?
Laboratory Standards?
Other?
Specify
C-4
-------
YES NO N/A UNK
7. Past Disposal Practices/Reporting of Releases
Does the facility:
a. Have a list of all potentially reportable hazardous
substances on-site, with their locations and
quantities?
b. Have a spill reporting procedure?
8. Environmental Assessment/Impact Statements
Does the facility:
a. Possess completed environmental impact
statements or FNSIs for projects
initiated within the last two years?
9. Radioactive Waste Management
Does the facility:
a. Have a Nuclear Regulatory Commission (NRC)
License?
b. Generate radioactive waste from any of the
following activities:
Tracers used for laboratory analysis?
Radioactive samples?
Other?
c. Generate mixed low level radioactive wastes?
10. Pesticide Control
Does the facility:
a. Generate any pesticide wastes?
b. Store pesticides for use as standards?
c. Engage in the application of pesticides?
C-5
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11. The matrix below is designed to determine what regulatory areas
apply to your facility, what regulatory agency administers
applicable regulations (Federal/State/local government), and if
your facility is required to have permits in any of these areas.
Please check the appropriate boxes below.
Applicable Federal State Local Permit
Air -
Water
Sewer Discharge
Surface; Water
Discharge
Drinking Water
Non-Hazardous
Waste
Hazardous Waste/
RCRA
• Full Generator
.• 100-1000 kg/
month
• Conditionally
Exempt SQG
Underground Storage
Tanks
Pesticide Control
PCBs:
• Research
Activities
• Contaminated
Equipment
Radioactive Materials
C-6
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APPENDIX D
CLEAN AIR ACT: NEW STATIONARY
SOURCES FOR AIR POLLUTION
40 CFR PART 60
SOURCE CATEGORY
Fossil fuel-fired steam generators (Subpart D)
Electric utility steam generating units (Subpart Da)
Industrial-Commercial-Institutional *
steam generating units (Subpart Db)
Incinerators (Subpart E)
Portland cement plants (Subpart F)
Nitric acid plants (Subpart G)
Sulfuric acid plants (Subpart H)
Asphalt concrete plants (Subpart I)
Petroleum refineries (Subpart J)
Storage vessels for petroleum liquids-for
construction, reconstruction, or modifica-
tion commenced after June 11,1973 and prior
to May 19, 1978 (Subpart K)
Storage vessels for petroleum liquids-for
construction, reconstruction, or modifica-
tion, commended after May 18,1978, and prior
to July 23,1984 (Subpart Ka)
Volatile Organic Liquid Storage Vessels
(including petroleum liquid storage vessesl)
for which construction, reconstruction, or
modification commenced after July 23,1984
(Subpart Kb)
Secondary lead smelters (Subpart L)
Secondary brass and bronze production (Subpart M)
plants
Iron and steel plants (primary emissions from
basic oxygen furnaces constructed after
June 11, 1973) (Subpart N)
PROPOSAL DATE
"
August 17, 1971 ' ---:
September 18, 1973 y-
',(•'
June 19, 1984
August 17, 1971-'. ,' '
, • '•
August 17, 1971 ,
August 17, 197,1
August 17, 1971
June 11, 1973
June 11, 1973
June 11, 1973
May 18, 1978
-July 12-;3984""'rv.
July 11, 1973
June 11, 1973
June 11, 1973
D-1
-------
T* T . , ,*"
URGE CATEGORY
PROPOSAL DATE
Iron and steel plants (secondary emissions from
basic oxygen furnaces constructed after
January 20,1983) (Subpart Na)
Sdwage^re&frnerit plants (Subpart O) -""• -
Primary smelters: Copper, Zinc, Lead (Subparts P-R)
Primary aluminum reduction plants (Subpart S)
Phosphate fertilizer industry: Wet process
phosphoric acid plants; Superphosphoric
acid plants; Tfiple superphosphate plants; : ':
Granular triple superphosphate storage facilities
(Subparts T-X)
Coal preparation plants (Subpart Y)
Ferroalloy production facilities (Subpart Z)
Steel Plants: Eletric arc furnaces; Electric
arc furnaces aTictArgon-Oxygen decarburization
vessels constructed after August 17,1983
(Subpart AAX - -r'-
Kraftpulp mills (Subpart BB)
Glass manufacturing plants (Subpart CC)
Grain elevators (Subpart DD) -H. -
Surface-coatings?metal furniture (Subpart EE) ' '
Stati6riarfgas:tui!b'ines (Subpart GG) - -
Lime martufa^EtMn^ plants (Subpart HH) ; V
Lead-acid battery manufacturing plants (Subpart KK)
Metallic mineral processing plants (Subpart LL)
Automobile and light-duty truck surface coating
(Subpart MM)
Phosphate rock plants (Subpart NN)
r, <•• * ,>,.•!.;!. •;-. •/. -J.
Ammonium sulfate manufacture plants (Subpart PP)
Graphic Arts Industry: Publication rotogravure
printing (Subpart QQ)
January 20, 1983
June 11, 1973
October 16, 1974
October 23, 1974
October 22, 1974
October 24, 1974
October 21, 1974
August 17, 1983
September 24, 1976
''June 15, 1979
-January 13, 1977
"-November 28, 1980
"October3, 1977
"May 3, 1977
January 14, 1980
August 24, 1982
October 5, 1979
'.!,>;* .-:./ '
September 21, 1979
v"jif>-.- ;
"n-'April 10, 1980
October 28, 1980
D-2
-------
SOURCE CATEGORY
PROPOSAL DATE
Pressure sensitive tape and label surface V.;
coating operations (Subpart RR)
Industrial surface coating: large appliances
(Subpart SS)
Metal coil surface coating (Subpart TT)
Asphalt processing and asphalt roofing
manufacture (Subpart UU) _ - :
Equipment leaks of VOC in the synthetic organic
manufacturing industry (Subpan W) , ., _._
Beverage can surface coating industry (Subpart WW)
Bulk gasoline terminals (Subpan XX)
New residential wood heaters (Subpart AAA)
Vi "'"*"',' J
Rubber tire manufacturing industry (Subpart BBB) ,., ~,
Flexible vinyl and urethane coating and
printing (Subpan FFF)
Equipment leaks of VOC in petroleum
refineries (Subpart GGG) - ; :/ ,,
S ynthetic fiber production facilities (S ubpan HHH)
Petroleum dry cleaners (Subpan JJJ) .. .-
Onshore natural gas processing plants (Subpan KKIQ :
Onshore natural gas processing: SO2 Emissions; - ,
(Subpart LLL)
Nonmetalh'c mineral processing plants (Subpart OOO)
Wool Fiberglass Insulation Manufacturing Plants
(Subpart PPP) •. ,.
Magent tape coating facilities (Subpart SSS)
,-*'/
Industrial surface coating: Plastic parts for
business machines (Subpart TIT) ; .,.,•,,-*
. December 30,
f ' 1 ' f~r , ^
, December^ 198.Q
January" 5","l981* " '
"^November 18, 1980
.- -May 2^, 1^>§,1: u c!
-:-: January 5, 1§81, -.;£
November 26, 1980
, i; • T-- - - -. u -">,
December 17, 1980
'February 18," 1987
', .':..-;. -T £,/-..'.>;
January %),
January,!8,4
October 11, 1983
January 4, 1983
-Ju.ly 1^.1983, r.rr.u
^December, 14, 4
.,
August 31, 1983
February 7, 1984
-; "• . r^r^ ~', O;..T ,/u/
-
January 22, 1986
January 8, 1986 •'
D-3
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U.S. Environmental Protection Agency
Region 5, Library (PL-12J)
77 West Jackson Boulevard, 12th Roar
Chicago, IL 60604-3590
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