CHEMICAL
MANUFACTURERS
ASSOCIATION
           United States
           Environmental Protection
           Agency
           Office of Enforcement and
           Compliance Assurance
           (2221 A)
EPA-305-R-99-001
May 1999
EPA/CMA Root Cause
Analysis Pilot Project

An Industry Survey
             GOT  CAUSE

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DISCLAIMER
The information included in this document is a consolidation of the
EPA/CMA Root Cause Analysis Pilot Project survey responses and
ideas that may help address some environmental issues identified in
the survey  responses.   This  document is intended  to  assist
environmental managers, regulators, and other interested parties to
better understand the causes of noncompliance and to consider
recommendations and ideas that may help improve environmental
compliance and performance. While the categories of noncompliance
and root causes  discussed in this report  were  developed by the
project team, the characterization of particular noncompliance events
in terms of those categories was based entirely on individual survey
responses. It should be emphasized that EPA has neither reached any
conclusions nor made any decisions in response to  the findings,
recommendations, or ideas for compliance assistance; or EPA policy,
regulatory, or statutory changes included in this document.  This
document is not a substitute for complying with the regulations
themselves.   Neither CMA nor EPA makes any guarantees  or
assumes  any liability with respect to use  of any  information,
recommendations, or ideas contained in this document.

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ACKNOWLEDGMENTS
This document is the result of a partnership between the Chemical
Manufacturers Association (CMA) and the Environmental Protection
Agency (EPA). The background, experiences, and creativity of the
following people were essential in developing this document.

CMA
Jamie Conrad
Christina Franz

Industry Representatives
Dan Bennewitz, Olin Corporation
Richard DeSanti, Mobil Chemical Company,
  A Division of Mobil Corporation
Jim Doyle, Exxon Chemical Corporation
Ed Mongan, DuPont
George Woehr, Occidental Chemical Corporation

EPA, Office of Enforcement and Compliance Assurance
Tracy Back
Joanne Berman
Reggie Cheatham
Emily Chow
Walter Derieux
John Ellison
John Mason
Charles Perry
Sally Sasnett
Richard Satterfield

EPA, Region I
Gina Snyder

EPA, Region X
Jeff Kenknight

Through  a peer-review process,  the project team received and
incorporated valuable comments into the report. We appreciate the
time and effort of our peer reviewers.
                                                               OTC1

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EXECUTIVE SUMMARY
Purpose
The U.S. Environmental Protection Agency (EPA) and the regulated
community continually  seek  effective  and efficient  methods  of
improving compliance with environmental regulations.  From 1996
through 1998, EPA and the Chemical Manufacturers Association
(CMA) worked together to pilot an approach for identifying and
evaluating  the  root  causes   (that  is, underlying  causes)   of
noncompliance  with   regulatory  requirements,  to  identify
recommendations for improving compliance, and to provide insight
into  the effect of environmental management  systems  (EMS) on
compliance.   To obtain information from  certain CMA member
facilities, the project team developed a survey focused on the following
four questions:

  • What are the root causes of noncompliance?

  • How do facilities respond to noncompliance events and what are
    the lessons learned?

  • How have Responsible Care® and other management systems
    affected the overall environmental performance of facilities?

  • What changes on the part of the facility or the Agency will improve
    compliance and the efficiency of the compliance process?

This report summarizes survey responses to questions regarding the
root and contributing  causes  of noncompliance  and makes
recommendations,  for industry and  government, to  improve
compliance with environmental regulations.  The report should be of
value to the regulated community, state and federal regulators, and
other persons interested in the challenge of promoting regulatory
compliance.

A thorough examination of the  causes of noncompliance is a valuable
tool that can help improve compliance and minimize the occurrence of
noncompliance.  Any  root cause  analysis should focus on an
exhaustive  and  diligent  identification  of  all  causes  and  the
implementation of  corrective  measures  that may yield long-term
solutions.

Because of the limitations of the data on which this report is based
(addressed in more  detail on page 5) the results of this survey are
representative only of large CMA member facilities in the project's study
population. Beyond this study population, the project findings should
be considered largely as a guide to further root cause research.

Types of Noncompliance
The  four types of  noncompliances  identified most frequently by
survey respondents, in order, are:

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  • Report Submissions and Reporting:  Failure to submit required
    reports or the submittal of incomplete or inaccurate reports to
    the regulating agency

  • Exceedance: Failure to meet discharge limit(s), as defined in the
    facility's permit or by regulation

  • Operations and Maintenance: Noncompliance of an operations
    and maintenance  nature

  • Record Keeping: Failure to maintain operating records or files
    in accordance with  regulations

Root Causes
Multiple causes were identified for 94 percent of the noncompliance
events identified.

The six categories of root causes and the specific causes within each
category identified most frequently, in order, are:

  • Regulations and Permits - facility unaware of applicability of a
    regulation

  • Human Error - individual responsibility or professional judgment

  • Procedures  - operating procedure not followed

  • Equipment Problems - design or installation

  • External Circumstances - contracted services, such as haulers or
    handlers

  • Communications  Difficulties - between facility and regulatory
    agencies

Contributing Causes
The four categories of contributing  causes and the specific causes
within each category identified most frequently, in order, are:

  • Management - environmental  aspects  of facility process and
    operations not identified

  • Procedures  - reporting or notification procedures unclear

  • Regulations and Permits - contradictory interpretation of state or
    federal regulations

  • Compliance Monitoring - audit  program insufficient and routine
    site and equipment checks not conducted

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Responsible Care® and Other Environmental Management Systems
Survey responses indicate that there is a strong relationship between the
implementation of Responsible Care® or other  EMSs and compliance.
However, even a complete, well documented EMS does not, by itself,
ensure 100  percent  compliance  with environmental requirements.
Survey responses also indicate that facilities are modifying or clarifying
their EMSs to minimize the incidence of noncompliance events:

  • The  majority of  responses identified  environmental  audit
    programs; corporate policies, goals, targets, and guidelines; and
    Responsible Care® as management methods that have a strong
    influence on environmental performance.

  • Among the respondents, 78 percent had modified their EMSs in
    response to a noncompliance event.

  • Among the respondents, 41 percent stated that Responsible Care®
    or another EMS would have contributed to prevention of the
    noncompliance event.

  • The  project team considers  71  percent of the  actions taken in
    response to a noncompliance event relevant  to an EMS.

Respondents' Perspectives on Improving  Compliance
Respondents' perspectives on traditional and innovative approaches
to improving compliance include:

  • Respondents  identified   increased   employee  involvement,
    improvement of the facility's management system, more clearly
    defined commitment on the part of management, and improved
    understanding of regulations as the most effective actions industry
    could take to improve compliance.

  • Respondents identified tools developed by the facility,  facility
    employees and corporate staff, and trade associations as the most
    useful sources of compliance assistance, indicating the industry's
    historical reliance on in-house support.

  • Respondents recommended that government work with industry
    to provide  more technical assistance,   including  guidance,
    documents, self-audit check lists, logic or applicability flowcharts,
    and workshops—ideally for each new rule.

  • Respondents recommended a range of policy and regulatory changes,
    including the development of "plain language" rules, pilot testing of
    new rules, consolidation of overlapping regulatory requirements, and
    reduction of record keeping and reporting requirements.

  • Respondents suggested that self-audits, third-party audits, EMS audits,
    or other forms of self-monitoring, potentially coupled with penalty
    relief, be used as alternatives to traditional compliance inspections.

  • Respondents suggested that EPA reduce the frequency of compliance
    inspections for facilities that have good compliance records.

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Recommendations
Industry should consider the following actions to improve compliance:

  • Ensure that all EMS elements are in place and all employees
    understand that the elements are part of the facility's EMS.

  • Implement a program that promotes high levels of awareness of
    and commitment to the EMS among employees at all levels.

  • Increase awareness among management and employees of the
    central role that a comprehensive EMS can play in achieving and
    maintaining compliance.

  • Focus efforts on identifying more opportunities for rigorous
    implementation and evaluation of EMSs.

  • Establish  accurate, standard  operating  procedures that all
    affected employees can understand.

  • Train employees to ensure  that new  and modified operating
    procedures are implemented properly.

EPA should consider the following actions to promote compliance
with regulations:

  • Articulate new regulations more clearly.

  • Work  with state  agencies  to  ensure that regulations  are
    interpreted consistently.

  • Continue compliance assistance and outreach activities.

  • Consider the development of compliance assistance tools, such as
    plain-English guides for every new rule.

  • Provide more incentives for industry to disclose violations.

Individually, and working together, EPA and various industry sectors
should pursue additional root cause analyses of noncompliance to
better understand the findings and recommendations discussed in
this report. Such analyses might focus on:

  • Understanding why and in what situations violations occur at
    facilities with EMSs.

  • Looking more carefully at the "human error" category of causes
    used in this report.

  • Involving, at the design stage of the analysis, a statistician and
    social psychologist.

  • Studying noncompliance  at small (less than 100 employees)
    companies.

  • Conducting more  research through discussions between EPA
    and industry to more fully understand the relationship between
    particular violations and appropriate corrective actions.
                                                              T"

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TABLE OF CONTENTS
1.  INTRODUCTION	2
Creating the Partnership	3
What is the Chemical Manufacturers Association? 	3
Why the Partnership? 	3
Project Development 	4
Criteria for Selecting Recipients of the Survey	5
Application and Limitations of the Survey Responses	5
Structure of the Survey	5
Demographics of Responding Facilities	7
Applicability of Environmental Statutes	9

2.  NONCOMPLIANCE  AND ROOT CAUSES	10
Chapter Highlights	10
Discussion 	11
Noncompliance Events	13
Root and Contributing Causes	22

3.  ENVIRONMENTAL MANAGEMENT SYSTEMS AND COMPLIANCE ... 26
Chapter Highlights	26
Discussion 	27
Background	27
EMS Findings	28
Implementation Status 	29
Changes in Response to Noncompliance	31
Effect on Compliance	31

4.  RESPONDENTS' PERSPECTIVES ON IMPROVING COMPLIANCE .... 34
Chapter Highlights	34
Discussion 	35
Recommendations and Ideas for Compliance Assistance and Regulatory Change	35
Other Compliance and Enforcement Perspectives 	37

5.  RECOMMENDATIONS	42
Chapter Highlights	42
Discussion 	43
Strengthen Awareness and Implementation of EMSs 	43
Streamline Regulations and Create Compliance Assistance Tools	47
Statute-Specific Recommendations	48
Promote and Improve Self-Audit Incentives for Sustained Compliance	51

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APPENDIX A -  RESPONSES TO SURVEY QUESTIONS AND
             DATA LIMITATIONS
APPENDIX B -  DEFINITIONS OF NONCOMPLIANCE CATEGORIES
APPENDIX C -  ROOT AND CONTRIBUTING CAUSE CATEGORIES
             AND SPECIFIC CAUSES
APPENDIX D - STATUTES
APPENDIX E -  COMPARISON OF THREE EMS MODELS
APPENDIX F -  RESPONDENT RECOMMENDATIONS RELATED
             TO SPECIFIC STATUTES

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EPA/CMA ROOT CAUSE
ANALYSIS PILOT PROJECT

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_ Chapter 1
INTRODUCTION
The U.S. Environmental Protection Agency (EPA) and industry share a
vital interest in exploring new approaches for improving compliance
with environmental laws, reducing risk of environmental harm, and
raising awareness of environmental issues. One way to help improve
compliance and environmental performance is to understand why
there is difficulty complying with environmental laws—a question to
which the answer is not obvious. In short, regulators and industry
need to conduct root cause analyses.  The goal  of this root  cause
analysis  project is to improve environmental  performance by
understanding (1) the causes of noncompliance and (2) the impact of
environmental  management  systems (EMS) and  the  Chemical
Manufacturers Association's (CMA) Responsible Care® initiative on
compliance.

This report presents an overview of survey responses from industry
representatives   about the  root  and  contributing  causes  of
noncompliance events that were identified in federal civil judicial or
administrative actions.  It also offers suggestions for improving
compliance by minimizing the occurrence  of those causes.  As a
follow-up activity,  input from EPA personnel involved with these
federal judicial or administrative actions will be sought to obtain their
perspective on the causes of the noncompliance events.

Any industry sector can use the findings and recommendations in
this report in a variety of ways, depending on a facility's size and level
of sophistication.  For example, many suggestions in this report
include activities related to EMSs. Facilities presently implementing
an EMS can use the findings in this report to either reinforce the value
of their existing EMS or to encourage further evaluation of the EMS.
Facilities that do not  have EMS experience  can use the report as a
guide  regarding important  EMS elements  and implementation
considerations.  The information in this report can also be used by
federal and state regulators to improve new and existing rules and to
optimize their compliance assistance efforts. Working  together,
industry and regulators can use the findings of this project to fulfill
environmental goals and objectives through a better understanding
of the issues associated with regulatory compliance. Specifically, the
findings  and  recommendations  in  this  report may encourage
industry and regulatory agencies to consider the following activities:

  • Conduct additional root cause analyses

  • Use future root cause analysis results to validate and refine the
    results of this report

  • Modify environmental policy to incorporate changes based on the
    findings of root cause analyses

  • Encourage the support of management to bring about behavioral
    changes among employees that will promote compliance

  • Implement the recommendations discussed in Chapter 5 of this
    report

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Creating the Partnership
EPA's Office of Enforcement and Compliance Assurance (OECA),
CMA, and an ad hoc committee of CMA member companies created
a partnership to achieve the project goals. The partnership between
EPA and CMA represents the first time EPA and representatives of
the regulated community have worked together  to develop an
understanding of the root causes  of noncompliance and analyze
recommendations for improving environmental performance. The
partnership was documented in a Memorandum of Understanding
that identified the terms and conditions of the partnership and
established the project's framework. The parties called the effort the
EPA/CMA Root Cause Analysis Pilot Project.

What is the Chemical Manufacturers Association?
CMA represents chemical manufacturers that have operations in the
United States and internationally. Founded in 1872, CMA is one of
the  oldest manufacturing  trade  associations in  the Western
Hemisphere. CMA's member companies account for more than 90
percent of the productive capacity  for basic industrial chemicals in
the United States. Manufacturers of chemicals and allied products
provide more than one million jobs for American workers and are the
nation's leading exporters, with total exports in 1997 of $69.4 billion.

CMA brings together member company experts to  help resolve
industry  wide policy, technical, and scientific problems.  CMA
communicates and works with government and the public on vital
issues and administers research, studies, and tests on a wide range of
chemical products and practices.

Why the Partnership?
To understand why noncompliance occurs and how facilities respond
to  noncompliance events, EPA recognized the need to work with
industry.  CMA represents a sophisticated industry that conducts
a number of manufacturing processes that make the industry
subject  to most  federal environmental statutes.   The broad
applicability of environmental regulations to the chemical industry
provided  the opportunity to identify  and  assess the  causes of
noncompliance  with  a  wide  range   of regulatory  programs.
Working with CMA provided EPA the opportunity to understand
the chemical industry's perspective on the causes of noncompliance
with those  statutes and the industry's recommendations for
improving its environmental performance.

CMA participated in the project because  it offered  a unique
opportunity to work jointly with EPA to discover the root causes of
certain noncompliance events.  CMA actively seeks partnerships
with government to try to resolve the important environmental and
compliance issues that confront both industry and  government.

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CMA was particularly intrigued by EPA's interest in the views of
facility personnel about how and  why past noncompliance events
occurred and about ways in which compliance and regulations can
be  improved.   That  unique aspect  of  EPA's  proposed  project
represented a departure from the less  interactive approaches taken
under similar government-sponsored projects.

The information gathered and the lessons learned in this  project
provide EPA, CMA, and other industry groups new opportunities to
improve environmental compliance. EPA will be better able to further
its regulatory reinvention and compliance assistance activities, and
industry can incorporate the recommendations into daily operations
to effect behavioral change.  EPA and industry also can create
environmental  policy  that better  serves  the  needs of  industry,
government, and the  public.  EPA and  CMA believe that these
opportunities can be duplicated in future collaborative efforts, such as
additional   root  cause  analyses,  to   improve   compliance  and
environmental  performance.

Project Development
The project team developed a  survey to  gather information from
facility personnel that respondents could  complete with minimal
burden.  Once responses  were  received, EPA and CMA worked
jointly to analyze them. Important project events are highlighted in
the box below.
                                      The Project  Process

   •  Agreement on project goals and scope, August  1 996
   •  Negotiation of a Memorandum of Understanding between EPA and CMA, December 1 996
   •  Formulation of target questions and development of survey, January 1 997
   •  Identification of candidates to receive the survey, January to March 1 997
   •  Submittal of an information collection request  (ICR) to the U.S. Office of Management and Budget
      (OMB) (ICR No. 1 792.01, OMB Control No. 2020-0008), April 1 997 and two Federal
      Register (F.R.) notices in compliance with the Paperwork Reduction Act, 44 U.S.C. § 3501 et
      seq. (61 F.R. 41 605-41 606 and 62 F.R. 27599-27600)
   •  Distribution of survey, October 1 997
   •  Collection of responses, concluded in March  1 998
   •  Review of responses, January to June  1 998
   •  Assessment of representativeness of responses, October 1 998
   •  Production of draft report, June 1 998 to Decemberl 998
   •  Conduct peer review, January 1 999 to March 1 999
   •  Issuance of final report, May 1 999

   To preserve the anonymity of respondents, CMA distributed the survey and collected the responses.

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Criteria for Selecting Recipients of the Survey
Survey recipients were CMA member facilities that had been parties
to a federal civil judicial or administrative action that commenced and
concluded between 1990 and 1995. Applying this criteria, 50 facilities
that had been involved in 79 enforcement actions were identified. Of
those facilities,  27 facilities  involved in 47 enforcement actions
voluntarily completed and returned the survey.

Application and Limitations of the Survey Responses
Fifty CMA facilities met the criteria established for the pilot project.
Because these facilities were not randomly chosen, the findings of this
project do not have broader application to larger populations  with
statistical validity.  However, survey responses received from large
(more than 100 employees) CMA member facilities within Standard
Industrial Classification (SIC) code 2869 (Industrial Organic Chemicals,
Not Elsewhere Classified) were sufficiently numerous to adequately
represent all large CMA facilities in the study population. Additional
limitations of the  data  set are discussed in Appendix  A.  More
generally, the results of the survey can be viewed as an initial guide
to some frequent  causes of noncompliance, as  identified by 27
facilities that were  party to a total of 47 federal enforcement actions.
These findings also can serve as an excellent guide for conducting
additional root cause work to validate and refine the findings of this
survey of root causes of noncompliance.

Structure of the Survey
To  obtain information  from certain  CMA member facilities, the
project team developed a survey focused on the following four theme
questions:

  • What are the root causes of noncompliance?

  • How  do  facilities respond to noncompliance  events, and what
    are the lessons learned?

  • How have Responsible Care® and other management systems
    affected the  overall environmental performance of facilities?

  • What changes on the part of the facility or the Agency will improve
    compliance and the efficiency of the compliance process?

Generally, respondents were asked to:

  • Categorize noncompliance events described in federal complaints
    or settlement documents

  • Identify root and contributing causes of the noncompliance events

  • Identify any actions taken in response to noncompliance events

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  • Identify  how the facility verified that actions taken would
    promote compliance

  • Describe any lessons learned from the noncompliance events and
    actions taken

  • Describe the facility's EMS at the time of the noncompliance events
    and any changes made to the EMS since the noncompliance event
    to prevent its recurrence

  • Provide  their views about ways to improve  compliance with
    regulatory requirements and identify compliance assistance tools
    and activities they need

  • Provide their views about traditional and innovative compliance
    and enforcement activities

Appendix A presents the questions asked in the survey and quantifies
the number of responses to each question. Appendix A also discusses
the limitations of the survey.

Respondents characterized violation(s) identified in the complaint(s)
or settlement document(s) as noncompliance event(s), according to
15  categories  provided  and  the statute  under  which  the
noncompliance event occurred.  The 15 noncompliance categories
defined in the  survey are listed below.  Appendix  B presents
definitions of these categories.
                          Noncompliance Categories

    • Corrective Action Activities              "Record Keeping
    • Equipment/Unit DesiSn                 . Report Submissions and ReportinS
    • Exceedance                           . c -n  /D i
                                         • opills/Keleases
    • Failure to Respond
    • Labeling
    • LeSal ASreement                      * Trainins/Certification
    • Monitoring/Dectection/Control           • Unpermitted/Unauthorized Activity
    • Operations and Maintenance            • Waste Identification
Survey respondents were provided the following definitions of root
and  contributing causes.

  •  Root cause:  A primary factor that led to  the noncompliance
     event

  •  Contributing  cause:    A  secondary  factor that  led  to the
     noncompliance event

The  survey identified 12 general categories of causes. Each general
category was then subdivided into specific causes, a total of 74. An
"other" category also was provided for cases in which the predefined
categories did not describe the root or  contributing cause(s) of a

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                                   WWW Site
                  A copy of the EPA/CMA Root Cause Analysis
                  Pilot Project Survey is available at the following
                  Internet address:
                   
noncompliance  event  adequately.   Appendix  C  lists general
categories  of causes  and specific causes identified  in the survey.
Respondents were asked to select no more than three root causes from
among the 74 specific causes and to select any number of contributing
causes  to  characterize the  noncompliance  event.   To facilitate
completion of  the survey, respondents were directed to address
similar  noncompliance events as a single event.  For example, if a
facility had a number of noncompliance events related to reporting
requirements under the Clean Air Act (CAA), all such events were
identified  as  a  single noncompliance event.   Throughout  this
document, the  general categories of causes and specific  causes are
printed in bold italic type and italic type, respectively.

Demographics of Responding Facilities
The survey requested basic demographic information, including:

   • Primary SIC code of the facility

   • Number of employees located at the facility at the time of the
    noncompliance event (full-time employees and contractors)
                      Example  Category
                      of Cause and
                      Associated Specific
                      Causes
                      Category:
                      Human Error

                      Causes:
                      1. Individual
                       responsibility or
                       professional judgment

                      2. Fatigue, lack of
                       alertness, distraction

                      3. Inexperience, lack of
                       knowledge, lack of
                       technical expertise

                      4.Other (specify)
   • Description of the activities currently
    conducted at the facility

   • Number of years the facility has been
    in operation

   • Job responsibilities of the person(s)
    completing the survey1

The  demographic information provides
background  information  about  the
facilities at the time of the noncompliance
event, as well as at the time the survey was
completed.
          Profile of Typical
         Participating Facility

Primary SIC code 2869, Industrial Organic
Chemicals, Not  Elsewhere  Classified

More than  1 00 full-time employees

Conduct  of chemical production activities

In operation for more than  10 years
 1 In 13 responses, more than one person was identified as having helped
  to complete the survey.

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Of the 27 facilities that responded to the survey, almost half (48%)
identified their primary SIC code as 2869. The figure below presents
the SIC codes identified by the respondents.
                                                       Primary SIC Code of Facilities
A majority of respondents
(81%) stated  that  their
facilities employed more
than   101    full-time
employees and 0 to more
than   500    full-time
contractors at the time of
the noncompliance event.

A  majority   of  survey
respondents  (81%)  stated
that  chemical  production
activities   currently   are
conducted at  the  facility.
All   the   respondents
indicated that their facilities
had   been  operating  for
more than 10 years.

Facilities  located in EPA
regions 2, 3, 5, 6, and 9
responded to  the survey,
as the map below shows.

The  job responsibilities most commonly reported by the individuals
completing  the  survey  were compliance staff and environmental
engineer,  as the figure on the next page shows.
                                         2812-Alkalies and Chlorine
                                     2819 - Industrial Inorganic Chemicals,
                                            Not Elsewhere Classified
                                  2821 - Plastics Materials, Synthetic Resins,
                                        and Nonvulcanizable Elastomers
                                   2833 - Medicinal Chemicals and Botanical
                                                     Products
                              2843 - Surface Active Agents, Finishing Agents,
                                  Sulfonated Oils, and Cleaning Preparations

                                     2861 - Gum and Wood Chemicals

                                     2869 - Industrial Organic Chemicals,
                                            Not Elsewhere Classified

                                 2879 - Pesticides and Agricultural Chemicals,
                                            Not Elsewhere Classified

                                           2911 - Petroleum Refining

                                 5169 - Chemicals and Allied Products, Not
                                               Elsewhere Classified
                                                                       4     6      8    10
                                                                          Number of Facilities
12
14
                          Regional  Distribution of Facilities
                                Responding to Survey
                                                                          Region 2 -  9  Facilities
                                                                          Region 3 -  1  Facility
                                                                          Region 5 -  2  Facilities
                                                                          Region 6-14  Facilities
                                                                          Region 9 -  1  Facility

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                       Job Descriptions of Respondents
         Environmental
         Supervisor 2%
    Attorney 4%
   Site Environmental
   Coordinator 4%
                                                   Compliance
                                                   Staff 34%
           Corporate
           Manager 9%
                           Plant Manager 1 7%
Environmental
Engineer 30%
Applicability of Environmental Statutes
Responses to the survey associated noncompliance events with six federal
environmental statutes. Appendix D presents a more detailed discussion
of the responses,  organized according to statute.   The figure below
illustrates the distribution of noncompliance events  under the various
environmental statutes identified by respondents. Because the study only
covered federal enforcement actions, the data may disproportionally
identify noncompliances under statutes for which EPA, rather than states,
has primary enforcement authority. The relative ranking of noncompliance
events by environmental statute is similar to the relative  ranking of
violations by environmental statute identified in a study of the entire SIC
major group 28 (Chemicals  and Allied Products) universe for the time
period 1990 to 1994. Both studies identified RCRA, the CWA, and the CAA
as the statutes under which the largest numbers of noncompliance events
or violations occurred.  The Chemical Industry National  Environmental
Baseline Report 1990-1994 (EPA 305-R-96-002) provides more information on
the SIC code 28 universe and the compliance history of those facilities.
        Noncompliance Events Under Environmental Statutes
  TSCA12%
           CAA
           20%
                    Environmental Statutes
                    Identified in  Surveys*

                    • Clean Air Act (CAA)

                    • Comprehensive
                     Environmental Response,
                     Compensation, and
                     Liability Act (CERCLA)

                    • Clean Water Act
                     (CWA)

                    • Emergency  Planning  and
                     Community Right-To-
                     Know Act (EPCRA)

                    • Resource Conservation
                     and  Recovery Act
                     (RCRA)

                    • Toxic Substances
                     Control Act (TSCA)

                      No noncompliance
                     events related to the
                     Federal Insecticide,
                     Fungicide, and
                     Rodenticide Act
                     (FIFRA) were identified
                     by respondents.
                                                                  1

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    NONCOMPLIANCE AND ROOT CAUSES
     Chapter Highlights
     The four categories of noncompliance identified most frequently are:
       •  Report Submissions and Reporting
       •  Exceedance
       •  Operations and Maintenance
       •  Record Keeping
     The six  categories of causes and  specific  causes in each category
     identified most frequently as root causes are:
       •  Regulations and Permits - Facility unaware of applicability of a
         regulation
       •  Human Error  - Individual responsibility or professional judgment
       •  Procedures - Operating procedure not followed
       •  Equipment Problems - Design or installation
       •  External Circumstances - Contracted services, such as haulers or
         handlers
       •  Communications Difficulties - Between facility and regulatory
         agencies
     The  four  categories of  causes  identified  most  frequently  as
     contributing causes are:
       •  Management
       •  Procedures
       •  Regulations and Permits
       •  Compliance Monitoring
10

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 Discussion
 This chapter presents the survey findings about noncompliance events
 and their root causes. The first section organizes the findings according
 to the four most frequently reported categories of noncompliance:

   •   Report Submissions and Reporting
   •   Exceedance
   •   Operations and Maintenance
   •   Record Keeping
 The  second section organizes  the findings according to the six root
 cause categories of noncompliance events identified most frequently:

   •   Regulations and Permits
   •   Human Error
   •   Procedures
   •   Equipment Problems
   •   External  Circumstances
   •   Communications Difficulties
 Two  frequently  identified  contributing causes of noncompliance
 events  that   were  not  identified frequently  as  root  causes—
 management and compliance monitoring—also are  discussed.

 Respondents were asked to describe noncompliance events by categorizing
 each finding of noncompliance addressed in the complaint(s) or settlement
 document(s).2  The 27 respondents identified a total of 69 noncompliance
 events.  For the 15 categories provided, the figure below depicts the
 distribution of noncompliance categories reported by respondents.
                         Distribution of Noncompliance Categories
          Monitoring/Detection/ Control - 6%
                     Labeling - 3%

           Failure to Respond - 4%

       Equipment/Unit Design - 3%

    Corrective Action Activities - 1 %

        Report Submissions and
        Reporting29%  -
Spills/ Relelases - 6%

    /  Testing - 6%
        Unpermitted/ Unauthorized
        Activity - 6%

             Waste Identification 6%
               Record Keeping 10%
                                                                 Operations and
                                                                 Maintenance"! 0%
                                                            Exceedancel 0%
1 Two noncompliance categories, Legal Agreement and Training/Certification, were not identified by respondents.
                                                                                               11

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     Respondents also described the actions taken by the facility in
     response to noncompliance events.  The actions identified by the
     respondents were classified in one of seven categories.

               Categories of Actions Taken in Response to a Noncompliance Event
Category
Policies and
Procedures
Equipment
Training
Compliance Monitoring
and Auditing
Regulations and Permits
Management
Communication
Any addition to or clarification or modification of -
The philosophy of and overall approach to environmental management and
daily operations
Any machine, machine part, or other device used in a facility's process
Education programs for personnel (full-time employees and contractors)
related to environmental awareness, requirements, and procedures
Tracking and oversight of a facility's operations
A regulation or permit requirement
Supervisor's and planner's approach to ensuring that staffing of the facility
is appropriate and that daily operations proceed smoothly
Strategies for communication among facility managers, employees,
contractors, and regulators
     The following figure  illustrates the  actions  taken in response to
     noncompliance  events  in  the four categories  identified  most
     frequently.  Generally, facilities initiated a number of actions to
     address a single noncompliance event.   Most actions  taken were
     managerial  or  administrative in  nature—pertaining  to policy,
         Type of Action
       Equipment: Design,
         Operation and
          Maintenance
         Communications
                             Actions Taken in Response to Noncompliance
                                                   Noncompli,nce C.tegories

                                                   Exceedance


                                                   Operations and Maintenance


                                                   Record Keeping


                                                   Report Submissions and Reporting
                                      15      20      25
                                       Number of Actions
12

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procedures, reporting, or training. Actions characterized as policies
and procedures were initiated most frequently (44% of actions) in
response to noncompliance events.  Actions characterized as policies
and procedures were initiated in response to noncompliance events
related to all statutes identified by respondents.

Noncompliance Events
The four noncompliance categories identified most frequently, as well
as the  categories of  causes,  specific root  causes, and specific
contributing causes associated with them, are illustrated throughout
this section by graphics similar to the one below. Generally, facilities
identified a number of causes for a single noncompliance event.
                           Noncompliance
                               Category
               ting cause categories and spec/|/<| causes
                              Jill
                                                                                          13

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     Report Submissions and Reporting
     The noncompliance category respondents identified most frequently
     was report submissions and  reporting.   Noncompliance events
     related to reporting occurred at 56 percent of responding facilities.
     The relative frequency of reporting noncompliance events may be
     attributable to  the  inclusion of  reporting  requirements in  all
     environmental statutes.  Reporting is an integral component of the
     environmental regulations and enables EPA and the states to monitor
     facilities'  compliance  with  those  regulations.   EPA also  believes
     reporting requirements permit the regulating agency to evaluate the
     level of protection  provided to human  health,  welfare  and the
     environment.  Some statutes or portions of statutes, such as EPCRA
     and CERCLA section 302,  consist almost  exclusively of reporting
     requirements.

     Respondents identified noncompliance events related to reporting for
     all statutes; however, 65 percent of such noncompliance events were
     related to reporting requirements under  CERCLA, the CWA, or
     EPCRA.

     Respondents associated nine root causes with noncompliance events
     related to reporting; as the  figure to the right illustrates.  The root
     cause categories identified most frequently for noncompliance events
     related to reporting were regulations and permits (27%) and human
     error (35%). The specific causes associated with those root causes
     included:

       •  Human error:   Individual responsibility or professional judgment
         and inexperience, lack of knowledge, lack of technical expertise

       •  Regulations and permits:  Facility unaware of applicability of a
         regulation,  ambiguous federal  regulations,  and  inconsistent or
         contradictory interpretation of federal regulations

     The majority of facilities responding (81%) indicated that at least one
     action had been taken in response to the event.  More than one-third
     (38%) changed their internal processes or procedures to prevent the
     recurrence of  similar noncompliance events.
14

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                                                       Submissions
                                             and  Reporting
  expertise
Ability or     • ambiguous ^deregulations    • Policy - policy not followed
  'er>t         • inconsistertt^pr conlradict^ry      * Procedures - optertfting procedure not followed
               interpretation of federal
               regulations        '<
               facility unaware of Applicability
                   of technical
                                 of a regulation
and  operating procedure unclear or out of date
Training - emplo^eej not trained
Communicationsl- difficulties between
employees and difficulties between facility and
regulatory agencies
Process Upset or Failure - over pressure and
controlled releases to a control device (flare)
Compliance Monitoring - audit program
insufficient    >•"
External Circumstances - contracted services
such as haulers or handlers
Contributing Causes
• Human error - individual responsibility or professional judgment/  fatigue, lack of alertness, distract  n,- and   experience, lack of
  knowledge, lack  of technical expertise

' Procedures - record keeping procedures inadequate and reporting or notification procedures uncle  •

' Management - staffing — inappropriate level or expertise, environmental aspects of facility proces and op^ations not identified/
  oversight not provided,- and control and oversight of purchased materials, equipment,  and servif s not provided or inadequate

' Communications - difficulties between employees and difficulties between facility and regule jry agencies

' Emergency preparedness - emergency preparedness plan insufficient and emergency preparedness plan implementation issues

' Compliance Monitoring - audit program insufficient and no system to ensure timely submission of environmental reports to
  regulatory agency

' Regulations and permits -  ambiguous federal regulations/ contradiction between state and federal regulations/ inconsistent or
  contradictory interpretation of federal regulations/ contradictory interpretation by federal agency/ ineffective reporting structure/
  and Q&A on new regulation not sufficient

' External circumstances - contracted services such as haulers or handlers and external phenomenon (for example, weather, theft,
  flood, fire)

' Equipment problems - ordinary wear-and-tear
                                                                                                                15

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    Exceedance
    Every  noncompliance  event  respondents  identified  as  an
    exceedance involved discharge limits under the CWA.

    Exceedances  occurred  at 26  percent of  the  responding  facilities.
    Respondents associated seven root causes with exceedance noncompliance
    events; as the figure to the right illustrates. The root cause categories
    identified most frequently for exceedance noncompliance events were
    equipment problems (41%) and procedures (17%).  The specific causes
    associated with those root causes include:

      • Equipment problems: Equipment design or installation, equipment
        maintenance, ordinary wear-and-tear,  and transfer hoses

      • Procedures: No written operating procedures available and unclear or
        out-of-date  procedures

    Management was  a  significant  contributing  cause  to exceedance
    noncompliance events. When management was identified as a contributing
    cause, specific causes identified were environmental aspects of facility
    process,  and operations  not identified,  and  environmental planning  or
    budgeting not completed.

    All respondents said  that they took actions in response  to the
    exceedances.  A majority (86%) of the facilities added or modified
    equipment to prevent the  recurrence of similar noncompliance events.
    Many facilities (71%) changed internal procedures, operation manuals,
    or reporting activities, while 57 percent trained or retrained employees.
16

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                                    £xceedance
                         • operatinff\procedu(e unclear   • Human error -Ju^kperience, lack of
                                                          knowledge, lacfy of technical expertise
                                                        • Management  - environmental aspects
                                                          of facility procesf ^nd operations not
                                                          identified
                            or out of oate  -.''
                           'no written operating
                            procedures available,,
                                               11
                                               I
                                            i   i
                                               1'          • Process Upset p| Failure - startup of
                                                            new wastewater treatment facility
                                                          * Regulations and IPermits -  calculational
                                                            error by agencyff permit resulted in limit
                                                            set too low
                                                          * External Circumstances  - contracted
                                                            services such as haulers or handlers
Contributing Causes
• Human error - fatigue, lack of alertness, distraction and spills, specific cause not known
• Policies - environmental objectives and targets unclear and pollution control technologies or 'her tec  nical equipment
  needs not assessed
• Procedures - operating procedure not followed, no written operating procedures availabl/   and  definitions of roles and
  responsibilities unclear
• Management - no formal management structure to address noncompliance and follow trough, environmental aspects of
  facility process and operations not identified, and environmental planning or budgeting not completed
• Training - training materials unclear or outdated
• Compliance monitoring - audit follow-up procedures insufficient
• Regulations and permits - ambiguous state regulations, contradiction between state and federal regulations, inconsistent
  or contradictory interpretation of federal regulations, and permit parameter not measurable in real time
Equipment problems - design or installation and equipment maintenance
T
                                                                     ^
                                                                                                17

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Operations and Maintenance
Noncompliance  events  related  to  operations and maintenance
(O&M) were identified at 22 percent of the facilities responding. Such
noncompliance events were  identified  most frequently under the
CAA (57%).  Because the CAA regulations establish a number of
detailed operating procedures for end-of-pipe controls, as well as
work  practice  standards,   the  frequency  with  which  O&M
noncompliance  events  under  the CAA  were  identified  is not
surprising.

Respondents associated five root causes with O&M noncompliance
events; as the figure to the right illustrates. The root cause categories
identified most  frequently for O&M noncompliance events were
procedures (36%), human error (27%), and regulations and permits
(18%). The specific causes associated with those root causes include:

  • Procedures:  Operating procedure not followed and unavailability
    of written procedures

  • Human error: Individual responsibility or professional judgment

  • Regulations and permits: Facility unaware of the applicability of
    a regulation

The two primary contributing causes were compliance  monitoring
and management. When compliance monitoring was identified as a
contributing  cause, lack of or insufficient compliance checks or audits
was identified as a specific cause. When management was identified
as a  contributing cause, environmental aspects  of facility  process, and
operations not identified, and  staffing level or expertise inappropriate
were identified as specific causes.

All but one  respondent indicated that actions had  been taken in
response to an O&M noncompliance event. The actions taken varied
but included, in order of frequency:

  • Modification or  development of procedures

  • Redesign, replacement, or maintenance of equipment

  • Addition of auditing procedures  to check  open-ended lines
    for plugs

  • Provision of incentives for consistent compliance

-------
                                        Operations
                                          Maintenance
 ' operating procedure
  not followed
 'no written procedures
  available
' individual respor
-------
     Record Keeping
     Noncompliance events  related to record keeping  occurred at 19
     percent of facilities responding.  These noncompliance events were
     identified most frequently under the CAA (43%), but also occurred
     under the CWA, RCRA, and TSCA. Noncompliance events under the
     CAA  involved National Emissions  Standards for  Hazardous  Air
     Pollutants (NESHAP) regulations. Noncompliance events under the
     CWA involved requirements governing  the  preparation of spill
     prevention control  and  countermeasures (SPCC)  plans.   Record
     keeping is an integral component of  environmental  regulations  that
     enables EPA and the states to monitor facilities' compliance with those
     regulations.  EPA also believes record keeping requirements permit
     the agency to evaluate the level of protection provided to  human
     health, welfare and the  environment.

     Respondents  identified  four  root cause categories  associated with
     record keeping requirements:  human error, regulations and permits,
     procedures, and communications difficulties, as the figure to the right
     illustrates.  The root cause categories identified most frequently for
     record keeping noncompliance events were regulations and permits
     (38%) and human error  (38%).  The specific  causes  associated with
     those root causes include:

       •  Regulations and  permits:  Facility unaware  of the applicability
         of a  regulation  and inconsistent or  contradictory  interpretation
         of federal  regulations

       •  Human error:  Inexperience or lack of knowledge

     When regulations  and permits was identified as a root cause of
     noncompliance events related to record keeping, communications
     difficulties between facility and regulatory agencies also was identified
     as a root cause.

     Contributing  causes associated with record keeping noncompliance
     events include lack of employee training,  unclear  definitions of roles and
     responsibilities, unavailable written  procedures,  inappropriate  level of
     expertise, and  unidentified environmental  aspects  of the facility process.

     All but  one respondent  indicated that actions had been taken in
     response to noncompliance events related to record keeping. Most of
     the actions taken involved development or  revision of procedures
     (71%). Other actions involved the training or retraining of employees
     (29%).
20

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                                       Record  Keeping
 1 individual responsibility or
                                   1 facility unaware of applicability   • Procktiures - record keeping
 professional juagjnent              of a regulation
' inexperience,! lack of knowledge, 'inconsistent or contradictory
 lack of techni§a{ expertise          interpretation of federal
                                    regulations
                                                                       procedures inadequate
                                                                             I
                                                                       Communications -  difficulties
                                                                       between facility and regulatory
                                                                       agencies
Contributing Causes
• Human error - inexperience, lack of knowledge, lack of technical expertise

• Procedures - no written operating procedures available, definition of roles and responsibilities unclear, and reporting or
  notification procedures unclear

* Management - staffing—inappropriate level or expertise and environmental aspects of facility process and operations
  not identified

* Training - employee not trained

' Regulations and permits - ambiguous federal regulations, contradiction between state and federal regulations,
  inconsistent or contradictory interpretation of state regulations, and rule implementation time frames are too short
T
                                                                        .
                                                                                                   21

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    Root and Contributing Causes
    This discussion examines the six root causes of noncompliance
    events respondents identified most  frequently.   Root causes are
    discussed in the order of the frequency with which they were
    identified, from most to least often.

         • Regulations and Permits
         • Human Error
         • Procedures
         • Equipment Problems
         • External Circumstances
         • Communications Difficulties
    Two  contributing  cause  categories  that  were  not  identified
    frequently  as  root  causes—management  and   compliance
    monitoring—also are discussed.  The table  below provides an
    overview of the categories and the number of times respondents
    identified them.
Root and Contributins Causes
Cause Categories
Regulations and Permits
Procedures
Equipment Problems
External Circumstances
Process Upset or Failure
Training
Policies
Management
Other
Compliance Monitoring
Emergency Preparedness












	 '

^^

=3

E=i
— i

H























i













i




i

i

i

i

• Root C
• Contrlb

|


ause
utlns Cause


0 5 10 15 20 25 30
Number of Times Identified as a Root/Contributing Cause
    Regulations and Permits
    The  root   cause   categories  identified  most  frequently  for
    noncompliance events were regulations and permits and human
    error. Regulations and permits also was the third most frequently
    identified  category  of contributing causes.   Regulations and
    permits was identified as a root cause of noncompliance under all
    statutes except CERCLA.  The specific cause facility unaware of the
    applicability of a regulation was  identified only for noncompliance
    events under the CAA and TSCA. On the other hand, the specific
    cause ambiguous or  inconsistent federal regulations generally was
    identified for noncompliance events under EPCRA and RCRA.
Specific causes in the
Regulations and Permits
category that were identified
frequently include:

Facility unaware of applicability of
a regulation            52%

Inconsistent or contradictory
interpretation of federal
regulations             19%
Ambiguous federal
regulations
                                                                                         14%
22

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In cases in which facilities were unaware of the applicability of a
regulation, other root causes of the noncompliance identified were
human error  and procedures.   When ambiguous  or inconsistent
federal regulations was identified as a specific cause, communication
difficulties between facility and  regulatory agencies was the only
associated root cause identified.

Human Error
The category human error was identified as frequently as regulations
and permits as the root cause of noncompliance. Specific causes in the
human error  category were  identified by respondents as  either
individual responsibility or professional judgment  or inexperience,  lack of
knowledge, lack of technical expertise.  The human error category was
identified as a root cause of noncompliance under all statutes except
CERCLA.

In four cases, individual responsibility or professional judgment
was identified as the sole cause  of a noncompliance event.  That
cause was the  only one for which more than one respondent did not
identify  another root or contributing cause  for a noncompliance
event.    Although  individual  responsibility  or professional
judgment  was identified  in  those cases as the  sole cause of
noncompliance, three of the facilities  reported that  they  had
implemented changes in their procedures to prevent recurrence of
the noncompliance event.

When individual responsibility or  professional judgment  was
identified as a root cause, procedures frequently was identified as an
associated root or contributing cause.

Lack of training and  communication difficulties  seldom  were
identified as contributing causes  when human error or procedures
were identified as the root cause. That circumstance is surprising,
given  the  widely  held  opinion  that  training  and  improved
communication are effective ways to reduce human error.

Procedures
Procedures was identified  as a  root cause  of 17 percent of the
noncompliance events.  Specific  causes in the procedures category
identified most frequently were operating procedures not followed and
no written operating procedures available. The procedures category was
identified as a root cause of noncompliance under five environmental
statutes:   the CAA, CERCLA,  the CWA, RCRA, and TSCA.

Other root causes associated with the procedures category include
human error, regulations and permits, communications difficulties,
and procedures.

In cases  in which procedures  was  identified as a root cause,
procedures were also identified frequently as a contributing cause
as were compliance monitoring and management.
Specific causes in the
Human Error category
that were  identified
frequently  include:
Individual responsibility
or professional
judgment            67%
Inexperience, lack of
knowledge, lack of
technical expertise    3 3%
Specific causes in the
Procedures category that
were identified frequently
include:
Operating procedure
not followed        47%
No written operating
procedures available   29%
                                                                  Ti
                                                                 -
                                                                                          23

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     Equipment Problems
     Equipment problems was identified as a root cause of 10 percent of
     the  noncompliance events.  The specific causes identified in the
     equipment  problems  category  included  design  or  installation,
     equipment maintenance, and ordinary wear-and-tear.  For 50 percent
     of such noncompliance events, more than one equipment problem
     was identified.  The table below lists the specific types of equipment
     involved in noncompliance events.  Other  root causes associated
     with equipment problems included external circumstances and
     procedures.

     Only two environmental statutes, the CWA (70%) and RCRA (30%),
     were identified in connection with noncompliance events caused by
     equipment problems.

                      Specific Equipment Problems
Equipment Type
Wastewater treatment system
Tanks, vessels, and reactors
Curbing and dikes
Function Lost
Gross volume that provided equalization
Surge capacity (wastewater equalization)
Containment
Specific causes in the
Equipment Problems
category that were identified
frequently include:
Design or installation     40%
Equipment maintenance  20%
Ordinary wear-and-tear  20%
     External Circumstances
     External circumstances was identified as a root cause of 7 percent of the
     noncompliance events.  For 72 percent of such noncompliance events,
     contracted services such as haulers or handlers was identified as the specific
     cause. In those cases, procedures frequently was identified as a related
     root cause or contributing cause.

     Only three environmental statutes, the CWA (72%), the CAA (14%),
     and RCRA (14%), were identified in association with noncompliance
     events caused by external circumstances.

     Communications Difficulties
     Communications difficulties was  identified as a  root cause of 7
     percent of the noncompliance events. Specifically, difficulties between
     facility and regulatory  agency  was identified  frequently.   When
     difficulties between the facility and regulatory agencies was identified as
     a root cause, regulations and permits frequently was identified as an
     associated root cause.

     The category communications difficulties was identified as a root
     cause of  noncompliance under four environmental statutes, TSCA
     (57%), the CAA (14%), the CWA (14%), and RCRA (14%).
Specific causes in the
External Circumstances
category that were identified
frequently include:
Contracted services, such
as haulers or handlers  72%
External phenomenon  14%
Sitewide power failure 14%

Specific causes in the
Communications Difficulties
category that  were identified
frequently include:
Between facility and
regulatory agencies    57%
Between employees   29%
24

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Contributing Causes
Although rarely  identified  as root causes  of  noncompliance,
management and compliance monitoring were identified frequently
as contributing causes of noncompliance events (see the figure on
page 20). Management was identified most often as a contributing
cause in cases in which regulations and permits or procedures was
identified as a root cause of a noncompliance event.  Compliance
monitoring was  identified frequently as a contributing cause in
cases in which procedures was identified as a root cause.
                                                                                        25

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    ENVIRONMENTAL MANAGEMENT SYSTEMS

    AND COMPLIANCE

    Chapter Highlights
    Survey responses indicate that there is a strong relationship between
    the implementation of EMSs and compliance. Responses also suggest
    that comprehensive EMSs—with elements working together  and
    continually evaluated—should improve compliance.

      •  The  majority  of responses identified environmental audit
        programs; corporate policies, goals, targets, and guidelines; and
        Responsible Care® as management methods that have a strong
        influence on environmental performance.

      •  Among the respondents, 78 percent modified their  EMSs in
        response to noncompliance.

      •  Among the respondents, 41 percent stated that Responsible
        Care® or another EMS would have contributed to the prevention
        of the noncompliance.

      •  Among actions taken in response to noncompliance, 70 percent
        are considered by the project team to be relevant to an EMS.
26

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Management
Review
         Continual
        Improvement
Discussion
Increasingly, private- and public-
sector  organizations  are  using
EMSs to manage (to control and
minimize) the  environmental
effects of their activities. An EMS
is an organized process established
by policy to  integrate  planning,
implementation, corrective action,
and  management  review.   An
EMS  specifies  the   structure,
personnel, procedures, practices,
and resources that will play a role
in controlling and minimizing the
effects of a company's operations.
EMSs typically include continuous
improvement through a "plan-do-check-act" cycle, as the figure to
the right illustrates.

An important component of an EMS is to routinely evaluate and
improve the  entire EMS program, which, in doing so, requires
management  attention.  Because an EMS, by itself, cannot assure
compliance, management and employee awareness and participation
are crucial to help achieve and maintain compliance.

Survey recipients were not provided a definition of an EMS to use as
a guide in completing  the survey.  It is understood that different
organizations have diverse views about the definition and scope of
an EMS. This chapter presents the findings of the survey related to
EMSs.  In particular, this chapter illustrates the strong relationship
between EMSs and compliance.

Background
In 1988, CMA launched Responsible Care® in response  to public
concerns about the manufacture and use of chemicals.  Through
Responsible Care®, member companies  are committed  to  the
support of a continuing effort to improve the industry's responsible
management  of chemicals.  Responsible Care® is an obligation of
membership in CMA and requires member companies to:

  • Improve  performance in health,  safety,  and  environmental
    quality

  • Listen and respond to public concerns

  • Assist each other in achieving optimal performance

  • Report their progress to the public
Environmental
Policy.
          Planning
         Implementation
                                          27

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     The Guiding Principles—the philosophy of Responsible Care®—outline
     each member company's commitment to environmental, health, and
     safety responsibility in managing chemicals. Six Codes of Management
     Practices, which are the heart of Responsible Care®, outline practices that
     cover virtually every aspect of the manufacturing, transportation, and
     handling of chemicals. CMA subsequently developed the Responsible
     Care® Management System Verification concept, which organized the
     six codes into a single system.

     For its part, EPA is particularly interested in the extent to which EMSs
     contribute  to improved  compliance  and  pollution  prevention.3
     Specifically:

       •  EPA believes that implementation of an EMS has the potential to
         improve  an  organization's  environmental  performance  and
         compliance with regulatory requirements
       •  EPA encourages the use  of EMSs that  focus  on improved
         environmental  performance and compliance as well as  source
         reduction (pollution prevention) and system performance

     At the time of preparation  of this report,  EPA does not base any
     regulatory incentives solely on the use of EMSs or EMS certifications.

     Appendix E provides summary discussions of three EMS initiatives:
     Responsible  Care®, ISO 14001,  and  the  National Enforcement
     Investigations Center  (NEIC) EMS Criteria.

     EMS Findings
     The survey included several questions about EMSs. The questions
     addressed (1) the extent to which Responsible Care® or another EMS
     was in place before the noncompliance event and (2) whether  the
     system had been modified after the noncompliance event. The survey
     asked questions about discrete elements and characteristics of EMSs;
     however, determining  the  extent to which those elements  and
     characteristics are  integrated   and  linked  to  form  an   active,
     comprehensive EMS was outside the scope of the survey.
                                  EMS elements
      An EMS consists of elements and functions important to active environmental management.
      Although several EMS guidelines exist, most feature all or most of the following elements:

      •   Policy                         •   Monitoring and measurement
      •   Environmental aspects             •   Corrective and preventive action
      •  Audits                        •   Compliance requirements
      •  Management review              •   Objectives
      •   Documentation                  •   Training
      •   Emergency response              •   Communication
    3 On March 12, 1998, EPA published a notice in the federal Register (63 F.R. 12094-12097) to communicate its
      views about EMSs.
28

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EMS observations derived from the surveys are organized as follows:

  • Implementation status
  • Changes in response to noncompliance
  • Effect on compliance

Implementation Status
Rather than including a particular definition, the survey inquired
broadly about various programs or systems that would include a
number of EMS activities. All facilities that responded to the questions
employed more than one of the environmental management methods
described below.
     Use and Influence  of Various Environmental Management  Methods
Environmental
Management Method
Environmental Audit Program
Corporate Policies, Goals,
Targets, and Guidelines
Responsible Care®
Management System
Other EMS
Facilities Having Method in
Place for:1
> 5 years
78%
85%
66%
4%
< 5 years
7%
11%
26%
22%
Average Rank of Influence on
Environmental Performance2
2.2
2.5
2.9
4.4
 ' The term "years" refers to the number of years the environmental management method had been in place at the time of the survey.
 1 Numbers in this column are the average rankings on a scale of 1 to 8, with 1 indicating greatest influence and 8 indicating least influence.

 Respondents ranked environmental audit programs and corporate
 policies, goals, targets, and guidelines as having the greatest influence
 on environmental performance. The rankings may reflect the longer
 period of time during which a particular environmental management
 method had  been in place, compared with Responsible Care® or
 another EMS. Alternatively, the rankings may indicate the extent to
 which the various methods are directed toward  compliance (for
 example, audits), rather  than  broader measures of environmental
 performance  (for example, Responsible Care®).
The survey asked detailed questions about the status of the facility's
EMS  (Responsible  Care®  or  another  EMS)  at the  time  of
noncompliance and how the EMS may have been changed after the
noncompliance  event occurred.  Responses to  those  questions
generally indicated widespread implementation of EMS elements at
the time of noncompliance. For example, 15 percent of respondents
had implemented all elements identified in the survey, and 70 percent
of respondents had implemented at least 15 elements of an EMS (of the
25 described in the survey) at the time of noncompliance.

The figures that follow summarize the elements of an EMS that were
identified most and least frequently to have been in place at the time the
noncompliance  event occurred.   The elements  most frequently
       Environmental audit
      programs; corporate
policies, goals, targets,  and
guidelines; and Responsible
  Care® were identified as
  management methods  that
  have a strong influence on
environmental performance.
                                                                T"'


                                                                                         29

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      identified as in place were environmental reporting, compliance audits,
      communication, and emergency response procedures. The widespread
      implementation of environmental compliance audits at the  time of
      noncompliance  is consistent with responses that environmental audit
      programs had been in place at most facilities surveyed for more than five
      years and were perceived to have the greatest influence on the facilities'
      environmental performance. In contrast, the elements least frequently
      identified  as in  place  at  the time of  noncompliance  were EMS
      documentation, EMS audits, EMS record keeping, and EMS procedures.
       EMS Elements or Features Most Frequently in Place at Time of Noncompliance
  Percent of
Respondents1
       Reporting: "There is a system in place to ensure environmental reports required
       by federal and state regulations are prepared routinely and submitted on a
       timely basis."

       Environmental Compliance Audits:

           •  "...are conducted by persons independent of the facility unit that is
              the subject of the compliance audit."

           •  "...are conducted at least every 3 years."

           •  "...results are reported directly to facility management."

           •  "A formal review is in place for  follow-up of exceptions noted in
              inspections or  audits and supported by management review."

       Internal Communication:  "Staff are encouraged to communicate environmental
       issues and concerns directly with top management and/or environmental
       managers."

       Emergency Response:  "Procedures are established to identify the potential
       for and response to emergency situations."
    89%
    91%

    88%

    88%

    88%

    85%


    85%
       EMS Elements or Features Least Commonly in Place at Time of Noncompliance
 Percent of
Respondents1
       EMS Documentation:  "The facility has developed a written description of the
       facility EMS that describes its organization and functional structure and elements."

       EMS Audits:

           •  "The integrity and efficacy of the EMS are periodically reviewed and
              revisions are made based on this review."

           •  "Periodic EMS audits are conducted at the facility."

       EMS Record Keeping:  "The facility has designated a point of contact for
       records related to the EMS."

       Environmental Procedures:  "There  is a system  in  place to  review and update
       environmental procedures periodically."
   42%



   50%


   55%

   62%


   62%
      'Percent of respondents who indicated that the element was part of the facility's EMS at the time of noncompliance
30

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Changes in Response to Noncompliance
The survey asked respondents to identify EMS elements that were
clarified or added after the noncompliance event occurred. Twenty-one
(78%) facilities modified their EMSs in some manner. Most clarifications
and additions involved implementation, operation, or accountability.
Otherwise, there were no notable trends, with all other clarifications and
additions distributed broadly among the elements listed in the survey.
Clarifications and additions were made to Responsible Care® and other
EMSs with approximately the same frequency.  The frequency  with
which modifications were made to EMSs may have occurred because
Responsible Care® and other EMSs were evolving during the period in
which the noncompliance events occurred.  Elements of an EMS may
have been in place at a respondent's facility, but not understood by
employees to be part of an EMS. The frequency of modification indicates
a trend of modifying EMSs to minimize the recurrence of noncompliance
events.
          The majority of
     respondents modified
    their EMS in response
       to noncompliance.

Survey responses indicate  a
strong relationship between
     the implementation of
    EMSs and compliance.
  Environmental Impact Inventories . . .
  An impact inventory is an assessment of how an organization's activities (aspects) interact with the
  environment. An impact inventory generally is regarded as a crucial element of most EMS planning
  activities.  Most respondents (63%) that had conducted impact inventories stated that the
  inventory had a positive effect on compliance.
Changes made in an EMS after a noncompliance event occurred also
were evaluated in light of the specific actions taken in response to the
noncompliance event.  The project team classified each of the seven
categories of actions taken, described in Chapter 2, as relevant or not
relevant to EMS activities or elements. For example, if a facility revised
a training program in response to a noncompliance event, that action
was considered relevant to the EMS because training is  a key element
of an EMS.  The project team considered all actions taken, except for
those categorized as equipment design, operation and maintenance,
and regulations and permits, to be relevant to an EMS.  The majority
(71%) of the actions taken in response to noncompliance were deemed
relevant to an EMS. The figure on the next page shows the distribution
of the actions relevant to an EMS and other actions taken in response to
noncompliance.

Effect on Compliance
Although implementation and maintenance of a fully functional EMS
does not guarantee 100 percent compliance  with environmental
requirements, an  EMS  can  provide  approaches,  context,  and
structure to facilitate identifying problems and potential problems
and addressing  them in a timely  manner.  Several survey findings
indicate that respondents consider the EMS such a tool.  First, the
majority of responses  identified environmental  audit  programs,
corporate policies, goals, targets,  and guidelines,  and Responsible
    While an EMS plays a
    large role in preventing
          noncompliance,
       implementation and
     maintenance of a fully
  functional EMS does not
    guarantee 1 00 percent
          compliance with
environmental requirements.
 Facilities may benefit from
  exploring the relationship
between the root causes of
          noncompliance
    and the facility's EMS.
                                                                 ?'

                                                                                           31

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                        Distribution of Actions Relevant to and
                             Not Relevant an EMS
          Actions Not
          Relevant to an EMS
                     Management
                       4%
 Compliance
Monitoring and   Training
 Auditing     12%
   9%
Actions Relevant to
       an EMS
                                                                         The majority (71 %) of
                                                                                actions taken in
                                                                                   response to
                                                                             noncompliance are
                                                                          considered relevant to
                                                                                     an EMS
     Care® as management methods that have a strong influence  on
     environmental performance. Second, 71 percent of respondents took
     EMS-related actions to prevent recurrence of noncompliance.  For
     example, the most common actions taken—changes in procedures and
     policies—are viewed almost universally as integral parts of any EMS.
     Finally, several of the types of causes identified by respondents suggest
     a strong relationship between compliance and the existence of an EMS.
     For example, the root (human error and procedures) and contributing
     (management,  procedures, and compliance monitoring)  causes for
     noncompliance events identified by most respondents are linked
     directly to fundamental concepts of an EMS, such as commitment on
     the part of management, clearly  communicated  procedures, and
     auditing.

     The  important  relationship  between EMSs and compliance  is
     supported further by the finding that 41 percent of the respondents
     stated that Responsible  Care®  or another  EMS  would have
     contributed to  the  prevention  of the  noncompliance.    Those
     respondents typically had implemented EMS activities, such  as
     employee  training,  clarification  of  facility  procedures,  and
     modification   of  facility  auditing  practices,  in   response  to
     noncompliances events.   Although the remaining  59 percent of
     respondents stated that Responsible Care® or another EMS would
     not have contributed to the prevention  of the noncompliance, 79
     percent of these respondents also identified actions intended to
     prevent recurrence of the noncompliance that are relevant to  an
     EMS.  The responses  suggest  that EMSs may play a larger role in
     preventing noncompliance than some respondents indicated.
                                         Among respondents,
                                        41 percent stated that
                                        Responsible Care® or
                                          another EMS would
                                       have contributed to the
                                            prevention of the
                                             noncompliance.
32

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Would Responsible Care® or another EMS—if implemented before the occurrence of the
noncompliance—have contributed to prevention of the incident?

Some respondents  stated:

"A review of cause of exceedances would have given  a  better understanding and possible
quicker solution to identify remedies."

"The existence of an EMS would have made facility personnel aware of the program
requirements and the incident  would not have occurred."

"The formal structure of the management systems implemented to meet Responsible Care®
commitments would have increased the probability of clear communication of requirements, and
the likelihood that internal compliance reviews would have identified remaining weaknesses for
self-correction prior to the EPA inspection."

"A better system would have been in place to assure compliance with  all permitting requirements
rather than relying on one person."

                                                                                                     33

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    RESPONDENTS' PERSPECTIVES ON	

    IMPROVING COMPLIANCE

    Chapter Highlights
    Respondents perspectives on traditional and innovative approaches
    to improving compliance include:

      • Respondents  identified  increased  employee  involvement,
        improvement of the facility's management system, more clearly
        defined commitment on the part of management, and improved
        understanding  of regulations as the most  effective actions
        industry could take to improve compliance.

      • Respondents identified tools developed by the facility, facility
        employees and corporate staff, and trade associations as the most
        useful sources of compliance assistance, indicating the industry's
        historical reliance on in-house support.

      • Respondents  recommended  that  government  work  with
        industry  to provide  more  technical assistance,  including
        guidance, documents, self-audit check lists, logic or applicability
        flowcharts, and workshops—ideally for each new rule.

      • Respondents recommended a range of policy and regulatory
        changes, including the  development of "plain language" rules,
        pilot  testing of new  rules, consolidation  of  overlapping
        regulatory requirements, and  reduction of record keeping and
        reporting requirements.

      • Respondents suggested that self-audits, third-party audits, EMS
        audits, or other forms of self-monitoring, potentially coupled
        with penalty relief, be  used  as  alternatives to traditional
        compliance inspections.

      • Among the respondents, 50 percent suggested that EPA reduce
        the frequency of compliance inspections for facilities that have
        good compliance records.

      • Among the respondents, 66 percent participate in federal or state
        voluntary programs; respondents believe that these programs
        primarily focus on pollution prevention and that participation in
        them does not necessarily improve compliance.
34

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Discussion
The  survey  asked questions about  traditional  and  innovative
approaches to improve compliance.  The first section below focuses
on respondents' perspectives on compliance assistance activities and
regulatory changes that could improve compliance. The majority of
those responses focus on EPA-related  activities. This chapter also
includes additional ideas about improving environmental compliance
identified by individual members of the project team.  The second
section summarizes respondents' views on a range of topics related
to compliance and enforcement activities, including:

  •  Industry actions for improving  compliance
  •  Compliance assistance sources
  •  Alternatives to traditional compliance inspections
  •  Incentives that reward compliance
  •  Effect of voluntary programs on improving compliance

Recommendations  and  Ideas for  Compliance Assistance  and
Regulatory Change
The   respondents'  recommendations  were  grouped   in  four
categories, according to the subject of  the change recommended:

  •  Compliance assistance activities
  •  Changes in EPA policy
  •  Regulatory changes
  •  Statutory changes
The  categories were divided further  according to the applicable
statute.    The respondents' recommendations  and project  team
members' ideas that can be applied under any statute are provided
below.    Appendix  F presents  respondents'  recommendations
relevant to specific statutes.

Compliance  Assistance Activities
Respondents suggested that EPA undertake the following compliance
assistance activities for all applicable environmental statutes:

  •  Provide  technical assistance  in meeting  the requirements  of
    existing and new regulations.  Specific examples  of  technical
    assistance suggested  include  guidance documents, regulation-
    specific  self-audit check  lists, logic guides, applicability flow
    charts,  seminars  or  workshops,  and on-site  compliance  or
    technical assistance.

In addition,  individual members of  the project team presented the
following ideas:

  •  Develop industry-sponsored training on "how chemical plants
                                                                                     35

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         work" for staff of regulatory agencies (for example, rule writers
         and inspectors).
      •  Develop an industry-EPA personnel exchange program.
      •  Develop an inspection program under which technical assistance
         inspections  are  conducted routinely  in advance of  traditional
         enforcement inspections, particularly in the case of new rules.

     Changes in EPA Policy
     Respondents suggested the following changes in EPA policy:

      •  Issue compliance assistance tools with each new final rule.
      •  Modify EPA's audit policy to provide for immunity from penalties,
         rather than mitigation, for disclosures of noncompliance.
      •  Allow facilities  a  "grace period"  for  complying  with new
         regulations.
      •  Designate a  single EPA contact  to work with each facility to
         coordinate EPA regulatory activities and provide assistance.
      •  Allow and encourage EPA inspectors to (1) provide technical
         assistance and (2) mitigate or omit penalties for noncompliance
         events that are addressed in a timely manner.
      •  Draft clear, "plain-English" rules and, as needed, include logic
         diagrams.
      •  Emphasize the collection of required information rather than
         enforcement activities in cases in which  noncompliance events
         related to submittal of reports are discovered.
      •  Redirect inspectors from a focus on individual noncompliance
         events to a more comprehensive evaluation of the effectiveness of
         a facility's systems for protecting the environment.
      •  Improve coordination between EPA and states, particularly with
         regard to the interpretation of regulatory requirements.
      •  Increase the use of compliance assistance programs to help the
         regulated community understand  and implement  regulatory
         requirements.
      •  Create focus groups representing all stakeholders during early
         stages of revision of rules.
     In addition, individual members of the project team presented the
     following ideas:

      •  Pilot-test a program similar  to  the  Occupational Safety and
         Health  Administration's  (OSHA)  "Nationwide  Quick-Fix
         Program" (OSHA Instruction CPL 2.112, August 2,1996), which
         offers reductions of  penalties  to employers that  immediately
         abate hazards identified during an OSHA inspection.
36

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  • Provide compliance assistance to the regulated community and
    target  compliance inspections on those  facilities that do not
    request or participate in compliance assistance activities.
  • Request that rule writers, rather than enforcement and compliance
    assistance staff, interpret rules.

Regulatory Changes
Respondents suggested the following changes in federal environmental
regulations:

  • Request that rules focus on performance rather than prescribed
    steps  (that  is,  establish  performance  standards and allow
    industry the  opportunity  to  meet  the standards  through
    adoption of those alternatives it chooses).
  • Work with industry to pilot-test the feasibility of new rules before
    they are promulgated.
  • Consolidate overlapping regulatory requirements.
  • Reduce record keeping and reporting requirements.
In addition, individual members of the project team presented the
following ideas:

  • Incorporate  all requirements in a single rule to minimize cross-
    referencing of requirements among rules
  • Change permit  modification  procedures under the  various
    federal environmental regulations so that the correction of errors
    in calculation is a minor modification (like the correction of
    typographical errors), rather than a major modification.

Other Compliance and Enforcement Perspectives
Respondents provided their views on a range of topics related to
traditional and innovative compliance and enforcement activities.

Industry Actions for Improving Compliance
The survey asked respondents to rate 13 general actions industry could
take according to their helpfulness in improving compliance. The four
actions that were identified as most helpful to industry in improving
compliance are:

  • Increasing employee involvement
  • Improving facility EMS
  • More clearly defining management commitment
  • Improving the understanding of regulations
These actions  address functions important to EMS  elements and
validate industry's perspectives  on the importance of EMSs.  The
"helpfulness scores"  suggest that industry can improve compliance
by strengthening, integrating, and linking EMS elements.
                                                                                       37

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     The table below presents "helpfulness scores" for all areas evaluated
     by the respondents.
Actions That Improve Compliance
Increased employee involvement
Improved facility management system
More clearly defined management commitment
Improved understanding of the regulations
Improved tracking system
Increased facility management involvement
Improved intrafacility communication
Improved record keeping procedures
More clearly defined responsibilities
Improved corporate/facility communication
More modern equipment
Increased number of employees
Improved access to EPA technical experts
Helpfulness Score1
Scale: 1 0 = Most Helpful
1 = Least Helpful
7.3
7.2
6.9
6.8
6.7
6.4
6.3
6.2
6.2
5.3
5.3
4.9
4.7
      1 Average helpfulness score

     Compliance Assistance Sources
     The survey asked respondents to rate for usefulness, on a scale 1 to 5,
     15  types of compliance assistance sources that the facility has used.
     The three sources most frequently identified are:

      • Tools developed by the facility

      • Facility employees (including corporate staff)

      • Trade  associations

     The identification of the above sources indicates that facilities favor
     materials developed by industry.   This finding is supported  by
     responses that stated that lessons learned from noncompliance events
     typically are shared with sister facilities, corporate offices, and trade
     associations,  thereby  enabling  those  organizations to  provide
     effective compliance assistance to one another.

     The least useful sources identified by respondents were universities
     and vendors, perhaps  because such organizations typically do not
     provide compliance assistance to large facilities. Industry uses those
     resources for other purposes, such as obtaining information about
     pollution  prevention.    Assistance  from  federal  employees also
     received relatively low scores for usefulness.   The desire to protect
          Respondents
       identified tools
developed  by industry as
 the most  useful sources
of compliance assistance.
38

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anonymity may  limit industry's  reliance on  EPA for  compliance
assistance. The low rating of EPA also may reflect the relatively short
time that EPA has been  providing active  compliance  assistance.
Similarly, the relatively low  ratings assigned to  state  compliance
assistance organizations and the Internet may derive in part from the
relative novelty  of  those  sources.  In  addition,  state  compliance
assistance programs tend to  focus on  small businesses, while 81
percent of the facilities participating in the project have more than 100
employees.

The  table below  summarizes the ratings respondents assigned to
various compliance  assistance sources.
Source of Compliance Assistance
Tools developed by the facility
Facility employees (including corporate staff)
Trade associations
Other facilities
Conferences
Consultants
Agency hotlines
Federal publications
State publications2
Internet
State employees
State compliance assistance organizations
Federal employees2
Vendors and suppliers2
Universities2
Usefulness Score1
Scale: 5 = Very Useful
1 = Not Very Useful
4.1
4.0
3.8
3.6
3.6
3.6
3.4
3.4
3.4
3.3
3.2
3.0
2.8
2.6
2.2
  ' Average usefulness score
  2 Fewer than 20 respondents scored this source

Alternatives to Traditional Compliance Inspections
The survey asked what industry evaluation methods could be used as
substitutes for traditional compliance inspections. Approximately 60
percent of respondents answered the question. Almost all suggested
alternatives involving self-audits, third-party audits, EMS audits, or
other forms of self-monitoring to verify compliance.  The relative
uniformity of the responses may have been a result of the wording of
the survey question, which offered "compliance or EMS audits" as
examples. Nevertheless, many respondents qualified their answers.
One respondent suggested that  EPA inspectors visit the facility
              Respondents
   suggested that self-audits,
     third-party audits, EMS
audits, or other forms of self-
      monitoring be used as
     alternatives to traditional
     compliance inspections.
                                                                  £3^^^»fes»^^
                                                                                           39

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    within a reasonable time after the self-audit report is submitted to verify
    that any deficiencies have  been  corrected.    Another respondent
    suggested  that  companies that have  third-party  audit  programs
    undergo formal inspection by EPA less frequently than those that do not
    have such programs. Three respondents stated that recognition by EPA
    of auditing programs should be accompanied by elimination of penalties
    for  identified  and  corrected  violations;  two  stated  further  that
    corrections should be made within a reasonable period of time or "grace
    period."  Those responses, and similar responses to other  questions,
    suggest a view that EPA's current audit policy does not grant adequate
    relief from penalties.

    Incentives That Reward Compliance
    The survey  asked what incentives EPA could use to acknowledge or
    reward sustained compliance.  No detailed responses were provided.
    However, respondents suggested four categories of incentives:

      •  Reduce the frequency of inspections

      •  Reduce or eliminate penalties for deficiencies identified during self-
         audits

      •  Provide public recognition

      •  Pursue  "fast track" environmental permitting

    Approximately 50 percent of respondents suggested that EPA reduce
    the frequency of compliance inspections  for facilities that have good
    compliance  records.

    Effect  of Voluntary Programs on Improving Compliance
    The survey asked whether a  facility was participating in  a state or
    federal voluntary program.    If so,  the respondent was  asked to
    characterize the program's  effect on compliance. Two-thirds (66%) of
    respondents stated that their facilities were involved in federal or state
    voluntary  programs.    Examples  of federal  voluntary  programs
    mentioned  by  respondents are EPA's  33/50  Program, Project  XL,
    Climate Wise, and Green Lights. Examples of state voluntary programs
    are the Louisiana Environmental Leadership Program and Clean Texas
    2000.  Respondents representing facilities involved in such a program
    generally said the program had no  effect  on compliance or did not
    comment on the  program's effect.  Two  notable exceptions were the
    OSHA Star program, which was commended by one respondent for its
    positive  effect  on compliance.  A second comment concerned the
    Consolidated Fugitive Monitoring Rule  established by the Louisiana
    Department  of   Environmental Quality  and  EPA Region  6;  the
    respondent  stated, "With multiple fugitive monitoring regulations to
    comply with, this program allows the  facility to  comply with the
    reporting and record keeping requirements of the most stringent fugitive
    monitoring  programs."
       Respondents
      participating in
     federal or state
  voluntary programs
  do not believe that
participation in those
  programs improves
        compliance.
40

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One reason some respondents believe that voluntary programs do
not help improve  compliance is  that most voluntary programs
focus on pollution prevention, rather than specific compliance
issues.  Participation in such a  program does not  necessarily
change a facility's  compliance obligations, although it could (for
example, in a case  in which a facility reduced its use or emissions
of a substance to  the  point that it fell  below the applicability
threshold of a rule). Many respondents representing facilities that
were  not involved in  voluntary  programs stated that all their
limited  environmental management  resources are required  to
attain and maintain compliance.
                                         WWW Site

                      More information about EPA's voluntary programs is
                                  available on the Internet at:

                           
                                                                                        41

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       Chapter 5
    RECOMMENDATIONS
    Chapter Highlights
    Industry  should consider the following actions  to  improve  compliance
    through enhancements of EMSs:
      •  Ensure that all EMS elements are in place and all employees understand
        that the elements are part of the facility's EMS.
      •  Implement a program that promotes high levels of awareness of and
        commitment to the EMS among employees at all levels.
      •  Increase awareness among management and employees of the central role that
        a comprehensive EMS can play in achieving and maintaining compliance.
      •  Focus  efforts  on  identifying  more  opportunities   for  rigorous
        implementation and evaluation of EMSs.
      •  Establish  accurate,  standard operating procedures that all  affected
        employees can understand.
      •  Train employees to ensure that new and modified operating procedures
        are implemented properly.
      •  Conduct root cause analyses focused on an exhaustive and diligent identification
        of all causes of noncompliance to properly identify long-term solutions.
      EPA should consider the following actions to promote compliance with regulations:
      •  Articulate new regulations more clearly.
      •  Work with  state agencies to  ensure  that regulations are interpreted
        consistently.
      •  Continue compliance assistance and outreach activities.
      •  Consider the development of compliance assistance tools, such as plain-
        English guides for every new rule.
      •  Provide more incentives for industry to disclose violations.
    Individually, and working together, EPA and various industry sectors should pursue
    additional root cause analyses of noncompliance to better understand the findings and
    recommendations discussed in this report.  Such analyses might focus on:
      •  Understanding why and in what situations violations occur at  facilities
        with EMSs.
      •  Looking more  carefully at the "human error" category of causes used in
        this report.
      •  Involving, at the  design stage of the analysis,  a statistician and social
        psychologist.
      •  Studying noncompliance at small (less than 100 employees) companies.
      •  Conducting  more research  through  discussions between EPA and
        industry to more fully  understand the  relationship between particular
        violations and  appropriate corrective actions.
42

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Discussion
This chapter presents recommendations for EPA and industry to
consider that may lead to improved compliance with environmental
regulations.  The recommendations are based on: (1) observations
about root causes and actions taken in response to noncompliance
events,  as presented in Chapter 2;  (2) trends in noncompliance
related to specific statutes, as described in Appendix D; (3) industry
perspectives on improving compliance, as presented in Chapter 4;
(4) observations regarding EMS related actions taken to return to
compliance, as presented in Chapter 3; and (5) survey responses
related to beneficial effects of the establishment and maintenance of
EMSs on environmental performance, as presented in Chapter 3.

Recommendations  included in the  first  section of this  chapter
generally focus on EMS improvements. Recommendations for EPA
and  industry  to promote compliance, both generally  and  in
connection with particular statutes, also are provided.

Strengthen Awareness and Implementation of EMSs
Recommendations  provided in this  chapter are based on survey
findings indicating that  EMSs play a larger  role in improving
compliance than often is recognized.  Survey responses also indicate
that further integration of EMS elements into an EMS framework
should result in improved compliance. For example, one respondent
stated:   "The  formal  structure of  the  management  systems
implemented to meet Responsible Care® commitments would have
increased the probability of clear communication of requirements,
and the likelihood that internal compliance reviews would have
identified remaining weaknesses for self-correction prior to the EPA
inspection."    Recognizing that  EMSs  are a  tool  to  improve
compliance  is   a   first  step toward  improving  compliance.
Development  and  maintenance  of  a  comprehensive,  well-
integrated  and  clearly  articulated system  should  contribute
significantly to improvements in compliance as sought by industry
and regulators.

A key method of ensuring that an EMS is viewed consistently and
integrated into the  daily operation of the facility is to encourage a
high degree of awareness of it and commitment to it among all
employees. Awareness and commitment can be achieved, in part,
by clearly conveying top management commitment to environmental
performance including compliance, by improving communication
between management  and  employees  and by  appropriately
dividing responsibility among environmental professionals and
those  with  day-to-day  operating   responsibilities.    Although
maintaining  effective  communication  and  identifying clearly
defined responsibilities can be challenging, a fully functional EMS
appears to be an effective way to facilitate long-term compliance.
All employees should
     be aware of and
          committed
 to the facility's EMS.
Increased awareness of
      the relationship
  between compliance
       and the EMS
  will fortify efforts to
           sustain a
      comprehensive,
     integrated EMS.
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     Increased awareness of the relationships between compliance and
     the EMS will fortify efforts to sustain a  comprehensive, integrated
     EMS.   To promote  long-term  compliance, industry should  focus
     efforts on identifying opportunities for more rigorous implementation
     and evaluation of EMSs.

     Considering the findings of the survey related to  EMSs, further
     inquiry into the benefits of implementing EMSs is warranted.  One
     possible follow-up investigation could focus on the 41  percent  of
     respondents who stated that an EMS would have helped prevent the
     noncompliance event. Those respondents could be asked to provide
     additional information about how their facilities' EMSs help maintain
     compliance.  Certain EMSs also  could be used as case studies to help
     those facilities that do not have a fully functional integrated EMS.

     Improve or Create Procedures Reinforced by Training
     Human error and procedures were frequently identified as root causes.  In
     many cases, both causes were identified for individual noncompliance
     events.   Specifically,  respondents identified failure to  follow  operating
     procedures as a root cause of many noncompliance events, especially
     those occurring under the  CAA, CERCLA, the CWA,  and RCRA.
     Human error and procedures often were identified as the root  causes of
     noncompliance events related to reporting, operation and maintenance,
     and record keeping.  Reporting, operation and maintenance, and record
     keeping typically are process-oriented activities that require step-by-step
     instructions or clearly articulated procedures.  Therefore, establishing
     accurate, standard operating procedures that can be easily understood
     by employees may  help  reduce  the frequency of  occurrence  of
     noncompliance events caused by human error or procedures.

     Changes in procedures alone, however,  may not fully address the
     causes  of noncompliance.   The  actions  taken in response  to
     noncompliance  identified  in  survey  responses   indicate the
     importance of training for properly implementing new or modified
     procedures.  Training  was identified as the third most frequently
     taken action (12%) in response  to noncompliance events.

     Employee training, awareness, and competency are important  elements
     of any EMS.  Because training was not identified frequently as a root or
     contributing cause, respondents may not have considered their training
     program a problem related to their EMSs. Facilities should reconsider the
     extent to which training is integrated into their EMSs. Doing so involves
     two steps.  First,  everyone  in an organization should be trained  in
     environmental responsibilities, tailored to the nature and extent  of the
     potential environmental impacts of the employee's job.  Second, the
     organization should document that all employees have received the type
     and level of environmental training appropriate for their jobs.  The
     knowledge, skills, and abilities (competencies) needed to understand
     environmental impacts and regulatory requirements must be identified
     and developed. Finally, facilities should  work with contractors who
     share their commitment to fully functional EMSs.
      Employees should
    be trained to ensure
  that new and modified
 operating procedures are
  properly implemented.
   Operating procedures
  that can be understood
by all affected employees
   should be established.
44

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Promote and Encourage Root Cause Analyses
The information and ideas gained from the partnership between EPA
and industry to study the effect of root cause analysis on compliance
provide new opportunities to improve compliance.  Through such
efforts, EPA and industry have acquired unique perspectives on how
environmental  regulations are understood  and  implemented at
individual  facilities.   Equipped with  such  knowledge,  EPA  can
continue to improve the effectiveness of its regulatory programs and
compliance assistance efforts.  Industry, for its part, can review its
resource allocations to address root causes of noncompliance, thereby
improving  return on environmental spending.  Working together,
EPA and industry can pursue additional root cause  analyses of
noncompliance to  support improved  environmental performance,
including compliance with environmental requirements.

An important consideration in using root cause analyses to improve
compliance  is  to  identify all  causes related  to  an  incident of
noncompliance.  Identifying a single cause without evaluating all
potential causes of the noncompliance may lead a facility to adopt an
ineffective  solution.   In most  (94%)  cases,  several causes were
identified for an incident of noncompliance.   For example, when
regulations  and  permits  was  identified as  a  root  cause of
noncompliance, it typically was associated with other causes such as
human error, management, and procedures.  The likelihood is great
that any given noncompliance event has more than one cause.  The
accurate identification of all causes of noncompliance is essential to
identifying and implementing long-term corrective measures.

When conducting root cause analyses, it is important to distinguish
between what first may  appear to be the cause of noncompliance
from the true root  cause(s) of the noncompliance.  For example, 71
percent of the survey respondents that identified human error as a root
cause of a noncompliance event implemented  modifications of their
existing procedures to prevent recurrence of the noncompliance.
However, 90 percent of these respondents did not identify procedures
as a root cause of the  noncompliance  event.  This survey finding
indicates that unclear or outdated procedures,  rather than human
error, may  have been a root cause.  (Alternatively, the facility may
have revised the relevant procedures  simply  for lack of  any other
concrete action to take, to avoid the appearance of not taking any
action.) Addressing  an apparent cause of noncompliance may not
provide long-term  solutions to noncompliance.  Any application of
root cause  analysis  should focus  on  an exhaustive and diligent
identification of the true  causal factors that should yield  long-term
solutions.
          Root cause
   analyses should focus
  on an exhaustive and
diligent identification of
 all causal factors to pro-
    perly identify long-
       term solutions.
                                                                                       45

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                               Outreach Through the Internet
           ChemAlliance
           EPA has funded a compliance assistance center for the chemical industry called
           ChemAlliance. The goal of ChemAlliance is to provide industry with easy access
           to EPA's regulatory  information  and  a  compliance assistance  network.
           ChemAlliance promotes the exchange of information and technology transfer
           among its users. Available through ChemAlliance are examples of EPA's efforts
           to improve compliance and environmental performance, including:
         • Compliance Improvement Tool (CIT):  This tool provides an annotated list of
           compliance assistance resources applicable to the chemical industry sector.
         • Inspection Tool for  the  Hazardous  Organic NESHAP  (RON):   Volume I -
           Overview of Emission Points, Control Technology and HON Provision: This tool
           identifies sources of hazardous organic emissions regulated under the Clean Air
           Act  (CAA) NESHAP requirements.
         • Process-Based Self Assessment Tool for the Organic Chemical Industry: This tool
           provides guidance on performing multi-statute  self-assessments to detect and
           correct noncompliances.
         • Unified Air Toxics Website (UATW):  EPA Rules  & Implementation Information
           Pages:  More than a hundred different air toxics  related rule information pages
           have been developed.
       ChemAlliance provides information through the World  Wide Web site:
                        
       CMA Outreach
       In  September  1995,  CMA instituted  a  compliance  assistance
       program to develop tools to assist its members in complying with
       federal regulations. Each compliance package includes a guidance
       document, training materials, and a self-assessment check list. Other
       trade associations may collaborate  on the tools.  The  relevant
       regulatory agency typically reviews the tools in draft, and in some cases has co-issued
       them. Under the program, compliance packages have been developed on such rules as:

         • Resource Conservation and Recovery Act (RCRA) Subpart CC
         • CAA 112(r) Risk Management Plan
         • The  Hazardous Organic NESHAP (HON)
         • Industrial Process Refrigeration Leak Repair
         • U.S. Department of Transportation's  (DOT) Pipeline Rules
         • Occupational Safety and Health Administration's Respiratory Protection Standard
       Weekly  compliance alerts  on final agency actions and a quarterly  calendar of
       compliance deadlines also  are available through a subscription service called the
       Regulatory Monitoring Service. Other services include a monthly poster series and
       periodic  workshops.

       More information is available from CMA's Web site at:

                    
COMPLIANCE
ASSISTANCE
TOOLS
46

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 EPA and industry may consider focusing future root cause analyses on:

   • Understanding why violations occur at facilities with EMSs.
   • Looking more carefully at the "human error" category of causes,
     as defined in this report, to distinguish between the causes within
     the  human  error  category and  other causes that may better
     address why the noncompliance occurred.
   • Involving, at  the design stage  of the analyses, a statistician and social
     psychologist to address group factors, norms, and cultures in the analyses.
   • Studying noncompliance at small (less than 100 employees) companies
     to better provide compliance assistance to small companies.
   • Conducting more research through focus groups, or on a disclosed basis,
     so that EPA and industry can more fully understand the relationship
     between particular violations and appropriate corrective actions.

 Streamline Regulations and Create Compliance Assistance Tools
 Respondents frequently identified lack of facility awareness of regulation
 applicability and inconsistent, contradictory, or ambiguous federal and state
 regulations as root causes. The frequent identification of these causes, all
 categorized as regulations and permits, was  echoed by respondents'
 recommendations  about regulatory changes  that would improve
 compliance (see Chapter 4).  Those recommendations were based on
 respondents'  experiences  trying to comply  with federal and state
 requirements.  This  finding suggests  two  things.   First, that new
 regulations should be articulated more clearly and that federal and state
 agencies should interpret regulations consistently. Second, federal and
 state agencies  should continue developing easily understood assistance
 tools that will help the regulated community. As discussed in Chapter 4,
 a compliance assistance idea and policy change respondents frequently
 identified was the need for technical assistance in complying with new
 and existing regulations, as well as publication of these tools with every
 new rule. Specific compliance assistance tools suggested by respondents
 include  guidance  and self-assessment documents, logic  guides,
 applicability notices, and seminars and workshops.

 EPA can enhance outreach activities related to the applicability  of new
 regulations, in concert with industry and trade associations. Suggestions for
 improving compliance and environmental performance activities include:
   • Continue developing standard federal and state interpretations
     of regulations.
   • Continue developing plain-language guides.4
   • Continue developing compliance assistance tools in cooperation
     with trade associations.
   • Continue working with industry in developing new regulations
     and in improving existing regulations.
On June 1, 1 998, President Clinton signeda memorandum directing all federal agencies to writeregulationsandotherpublic communications
inplain language. In responseto this memorandum, EPA will writeallproposedandfinal rules inplain language. Existingrules will be
rewritteninplainlangiiageasEPAhas''theopportunityandresourcestodoso."
EPA should articulate new
  regulations more clearly.
    EPA should continue
 compliance assistance and
       outreach activities.
                                                                    _
                                                                     ' •''

                                                                                              47

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       •  Improve notifications and outreach through Internet mailing lists or other
         communication  channels  to  inform  industry  about the  available
         compliance assistance tools.

     Statute-Specific Recommendations
     The project team identified patterns of noncompliance under specific statutes
     and, in some cases, under several statutes. The table below identifies categories
     of noncompliance associated with the statute(s) and ways in which industry
     and EPA might help improve compliance and environmental performance.
     Many of the following recommendations can be integrated into an EMS to
     address the noncompliance categories identified.   (Appendix F  presents
     recommendations related to specific statutes provided by respondents, but not
     necessarily related to their noncompliance events.)
Statute
CAA
Frequently
Identified
Noncompliance
Categories
Operations and
Maintenance
Monitoring/
Detection/
Control
Record Keeping
Report
Submissions and
Reporting
Ideas for Improving Compliance
Develop technical guides for operation and
maintenance of equipment and training for operation
of equipment and update them regularly.
Work with vendors to operate new equipment
properly at startup.
Designate facility staff who routinely review and
assess the applicability of all new rules.
Provide training for employees and contractors in
meeting record-keeping requirements.
Develop written procedures for record keeping and
submittal of reports and update them regularly.
Develop plain-language electronic guidance and
compliance tools for meeting reporting requirements.
Such tools could include on-line decision trees (the
user enters process, units, and chemicals used) to
guide users through determination of the
applicability of regulations and their associated
compliance deadlines and reporting requirements.
The guidance would assist the user in completing
the applicable reporting form(s) electronically once
the decision tree has been completed.1
Develop tools to better explain the applicability of
rules and identify upcoming compliance dates
(reminders of compliance deadlines).
Lead
Responsibility
Industry
Industry
Industry
Industry
Industry
EPA and/or CMA
EPA
      OSHA has developed several interactive expert systems that could be used as models for such tools.
48

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Statute
CWA
Frequently
Identified
Noncompliance
Categories
Exceed a nee
Ideas for Improving Compliance
Develop new or modify existing procedures for the
operation and maintenance and testing of new or
modified equipment and update those procedures
regularly.
Train employees and contractors in how to
implement new or modified procedures.
Implement procedures that direct managers to spot-
check operators' implementation of procedures.
Conduct periodic testing of equipment to evaluate
the remaining lifetime of equipment and to maintain
its proper functioning and performance (ensure that
permit limits are being met). When issues related
to permit limits arise, determine the appropriate
limit and work with the regulatory agency to
establish permit modifications.
Train employees and contractors on reporting and
notification requirements.
Develop training and written procedures for
meeting record-keeping requirements.
Improve procedures for use of contractors and
purchase of materials, equipment, and other
services.
Develop a computerized alert or "tickler" system for
reporting and notification.
Develop self-audit check lists or plain-language
guidance for all requirements that govern categorical
dischargers, including those for permitting, limits on
effluents, and those governing application of best
control technology (BCT) and best available
technology (BAT) for wastewater treatment.
Lead
Responsibility
Industry
Industry
Industry
Industry
Industry
Industry
Industry
EPA and/or CMA
EPA and/or CMA
49

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Statute
RCRA
EPCRA
TSCA
CERCLA
Frequently
Identified
Noncompliance
Categories
Waste
Identification
Record Keeping
Testing
Unpermitted/
Unauthorized
Activity
Report
Submissions and
Reporting
Ideas for Improving Compliance
Provide training for employees and contractors in
management of underground storage tanks (LIST) and
aboveground storage tanks (AST).
Improve procedures for use and purchase of
materials, equipment, and services.
Provide training for employees and contractors in
meeting record-keeping requirements.
Develop plain-language electronic guidance and
compliance tools for meeting reporting requirements.
Such tools could include on-line decision trees (the
user enters waste-type or facility specific information)
to guide users through determination of the
applicability of regulations and their associated
compliance deadlines and reporting requirements.
The guidance would assist the user in completing the
applicable reporting form(s) electronically once the
decision tree has been completed.
Develop self-audit check lists for management of
ASTs and USTs under 40 CFR 280, 265, and
264 subpart J.
Provide written procedures and training for
emergency reporting and notification requirements
and update the procedures regularly.
Develop plain-language electronic guidance and
compliance tools for meeting reporting requirements.
Such tools could include on-line decision trees (the
user enters chemical and facility specific information)
to guide users through determination of the
applicability of regulations and their associated
compliance deadlines and reporting requirements.
The guidance would assist the user in completing the
applicable reporting form(s) electronically once the
decision tree has been completed.
Lead
Responsibility
Industry
Industry
Industry
EPA and/or CMA
EPA and/or CMA
Industry
EPA and/or CMA
50

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Promote  and  Improve  Self-Audit  Incentives  for  Sustained
Compliance
The option to conduct self-audits and report the results to EPA and
state agencies may be a powerful incentive for facilities to demonstrate
sustained compliance. Respondents expressed considerable interest in
self-audits, both as an alternative to traditional compliance inspections
and  as  a  "reward" for sustained compliance.   Some  respondents'
primary concern related to self-audits is whether penalties will be
imposed for self-reported deficiencies.
 EPA should provide more
    incentives for industry
    to  disclose violations.

EPA continues to explore
  programs for recognizing
    companies or facilities
  that have strong histories
          of compliance.
                              Self-Reporting Incentives

    OECA's Audit Policy
    EPA addresses industry self-audits and disclosure in its policy statement Incentives
    for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations (60
    F.R.  66705-66712, December  22, 1995).  The  policy  reduces or, in some cases,
    eliminates penalties for companies that voluntarily discover, promptly disclose, and
    expeditiously correct violations. Under  EPA's audit policy, through March 1998,274
    companies had submitted audit policy disclosures for more than 966 facilities. The
    gravity-based penalty was mitigated for disclosures submitted by 105 companies for
    452 facilities. Action on disclosures submitted by 116 companies for 451 facilities
    currently  is unresolved.   EPA encourages facilities to  self-audit and disclose
    findings. EPA also continues to evaluate the effectiveness of its audit policy.

    More information about the audit policy is available at:

                         

    Small Business  Policy
    EPA's Small Business Policy was developed to help small businesses that have 100
    or fewer employees achieve  environmental compliance by creating benefits  for
    businesses that make a good faith effort to comply with environmental regulations
    before a government agency discovers a violation or otherwise takes an enforcement
    action.

    The  policy provides incentives, such  as waivers or  reductions of penalties, for
    businesses that participate  in on-site compliance assistance  programs  or conduct
    environmental audits to discover, disclose, and correct violations.

    More information about the small business policy is available at:

                         
                                                                                           51

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         APPENDIX A
RESPONSES TO SURVEY QUESTIONS
    AND DATA LIMITATIONS

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       RESPONSES TO SURVEY QUESTIONS AND _

       DATA LIMITATIONS

       This appendix is made up of five sections, corresponding to the following
       sections of the Root Cause Analysis Pilot Project survey:

           Section I   -  Demographic Information
           Section II   -  Underlying and Contributing Causes
           Section III  -  Response to the Noncompliance
           Section IV  -  Environmental Management System  Elements
           Section V   -  Compliance and Enforcement Activities

       Each question in the survey is reproduced here, and the  number of responses
       received is presented below the appropriate question. When necessary, the type
       of response also is characterized (for example, the number of multiple answers
       provided  by a single respondent).  In total, 27 surveys  were completed  and
       returned.

       In any survey, there are potential errors due to sampling and errors due to
       nonresponse.  Since the study design used here is a  census, there is no
       sampling  error associated with the results. Since 23 of the 50 facilities in the
       study population did not respond, the potential for nonresponse error is large,
       especially so because, as noted above, the respondent facilities are clearly not
       representative of all 50.  Let us illustrate these concepts with an example.  Of
       the  69 noncompliance  events in the sample, 7  (10%), were classified as
       exceedance, all of which involved discharge limits under  the Clean Water Act.
       But  there is no way of knowing what percentage of noncompliance events
       among the nonrespondents would  be classified as exceedances, or  under
       what statute they would be identified:  it could be 0%, 10%, 50%, or any other
       percentage.  Thus, one cannot say that 10% of noncompliance events in the
       whole study  population are classified as exceedance, nor can one specify a
       meaningful  range (confidence  interval) for the percentage of  exceedance
       noncompliance  events in the  study population.

       Of the sixteen facilities with SIC code 2869 in the study  population, fourteen
       were large (100 or more employees) and thirteen of these responded. Since this
       is essentially full response,  the results of analysis for these facilities are
       representative for this study group. However, all of these facilities are in EPA
       Regions 2 and 6, so without further studies, one cannot conclude that these
       results extend beyond the study population.

       Completed surveys were received in two forms: electronic and paper.  All the
       paper surveys were converted to electronic format, so that the data could be
       analyzed. The electronic format of the survey limited respondents (in the case
       of certain  questions) to specific responses; while  the paper survey did not limit
       respondents.  Therefore, when some paper surveys were transcribed into the
       electronic format, they were altered slightly. The intent of the respondent was
       retained as much as possible  during that process.

       For example,  in Section III, question 4 asked whether the facility had made an
       inventory of past, current, or potential  environmental impacts associated with
       its operations, services, and products.  The respondent was asked to check either
       Yes or No, and, if Yes, to identify which (past, current, or potential) inventory
       they had  conducted.  The electronic survey allowed the respondent only to
       specify one type of inventory, while the paper version allowed the respondent to
       specify as many as three.

       To reduce the burden on respondents, noncompliance categories were created
       to allow  respondents  to consolidate  similar  noncompliance events  and
       answer questions about the types, rather than specific noncompliance events.
       This approach did not allow  the direct correlation of responses to different
       portions of the survey.  Specifically, responses to Section IV (changes in EMSs)
       could not be  linked to responses to sections II and III (root and contributing
       causes of noncompliance and actions taken).
A-2

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            SURVEY FOR THE
  ROOT CAUSE ANALYSIS PILOT PROJECT

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                AND THE
     CHEMICAL MANUFACTURERS ASSOCIATION
                                          A-3

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      Section I

      1.  Please provide the remaining numbers of the primary four-digit SIC code of the facility.
          All 27 respondents answered.  One respondent provided two primary SIC codes, and another
          respondent listed a primary SIC code outside the 28 group.
      2.  How many employees were located at the facility at the time of the noncompliance?
          (Please check one box each for A and B.)
          A.  Full-time employees
              D 0-9   D 10-49    D 50-100   D 101-500  D More than 500
          B. Full-time contractors
              D 0-9   D 10-49    D 50-100   D 101-500  D More than 500
          All 27 respondents answered both parts of this question.


      3.  What are the job responsibilities of the person(s) completing this survey?
          (Check all  that apply.)
          n Compliance Staff               fj Operator            fj Environmental Engineer
          n Corporate Management         FJ Plant Management   FJ Engineer  (non-environmental)
          n  Other   (specify)  	

          All 27 respondents answered this question.  The number of responses per survey varied; 14 surveys
          listed  only 1 job responsibility, 8 surveys listed 2 job responsibilities, 3 surveys listed 3 job
          responsibilities, and 2 surveys listed 4 job responsibilities.
      4.  Identify the activities currently performed at the facility (for example, production, packaging, storage, and
          research and development).
          All 27 respondents answered this question.
      5.  How many years has the facility been in operation (as of today)?
          D 1-5     D 6-10     D More than 10
          All 27 respondents answered this question.
A-4

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Section I

6.   Use a check (/) in the correct column to indicate how long each EMS or policy has been in place at your facility.
    Of those checked, rank each based on the influence they have had on your overall environmental performance
    (1 = greatest, 8 = least).
Environmental Management System
Responsible Care® Management Systems (check all that apply)
Policy and Leadership
Planning
Implementation, Operation, and Accountability
Performance Measurement and Corrective Action
Management Review and Reporting
Length of Time in Place (3)
Less than 1-5
1 year years

More than
5 years

25
24
25
25
25
Rank

23
22
23
23
23
Corporate Policies, Goals, Targets, or Guidelines — for example, corporate audits (describe)
Description
26
24

Other EMSs — for example, ISO1 4001, GEMI (describe)
Description
7
7

Environmental Audit Program (describe)
Description
23
22
    The number in each column indicates the number of respondents who indicated that element.
                                                                                                    A-5

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       Section II
       List the two-character noncompliance code(s) identified for your facility. List all that apply.
          All 27 surveys identified noncompliance codes.  The number of noncompliance codes per survey
          varied:
                          10    surveys identified only 1 noncompliance code
                           7    surveys identified 2 noncompliance codes
                           4    surveys identified 3 noncompliance codes
                           3    surveys identified 4 noncompliance codes
                           2    surveys identified 6 noncompliance codes
                           1    survey identified 9 noncompliance codes
          for a total of  69    noncompliance codes
                    Categories And Items
  Underlying Cause
 Contributing Cause
         Human Error
         Policies
         Procedures
         Management
         Training
         Communications — Difficulties Between
         Emergency Preparedness
         Process Upset or Failure as a result of Compliance Monitoring
         Regulations and Permits
         External Circumstances
         Equipment Problems
         Other Categories or Items (specify)
  97 underlying, or root
causes were identified by
      respondents.
127contributing causes
   were identified by
     respondents.
          A complete listing of specific items is included in Appendix C.
                Complete the following ONLY if you identified equipment problems as a cause.
           Check (^) the appropriate box in the left column to indicate the type of equipmnet involved and then
                  draw a line to the item(s) in the right column that indicates the function(s) that was lost.
           Type of Equipment:

           Q   Piping	•
           Q   Tanks, vessels, reactors	•
           Q   Pumps, compressors, blowers, turbines (rotating
               equipment)	•
           Q   Motors 	•
           Q   Heat exchangers	•
           Q   Control valves 	
           Q   Solids handling	•
           Q   Instrumentation	•
           Q   Other (specify) 	•
     Equipment function that was  lost:
         Containment
         Process control
         Active mitigation
         Passive mitigation
         Material transport
         Other (specify)
          All 9 respondents who identified equipment problems as a cause responded to the equipment
          problems question above.
A-6

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Section III

1.  For each action taken, complete all columns.
    List all actions the facility took to
        prevent recurrence of the
        noncompliance,  including
    development or enhancements of
                EMSs.
   List the
  associated
 two-character
noncompliance
   codes.
Was the
 action
 taken?
 (Check
  one)
ST
LT
How did the facility verify that the
    action taken would ensure
 compliance?  (For example, was
 the action verified through a self-
   assessment audit, root cause
    analysis, or EMS audit?)
 Describe any lessons learned and
  with whom the facility shared
those lessons—for example, sister
  facilities or trade associations.
      a.
                 127
     62
   125
                  117
                                              70
    26 respondents completed to this section; the 1 who that did not respond stated that the question was not applicable to the noncompliance
    in question, because the noncompliance occurred during closure, after all manufacturing operations had ceased.  Respondents described
    a total of 127 actions for 62 of the 69 noncompliance codes identified in Section II.  The number in each column indicates the number of
    responses to that element.

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       Section III
       2.   Which facility life cycle step(s) was the focus of re-engineering to reduce or eliminate the possibility of similar
           future incidents of noncompliance? Check the appropriate box in the left column to indicate the life cycle step
           and then draw a line to the item(s) in the right column that indicate the aspect(s) of the EMS that was (were)
           modified to avoid similar incidents.
                               Life Cycle Steps
                  Research and Development ..................
                  Design
                  Process Hazards Analysis
                  Fabrication
                  Emergency Planning and Response
                  Pre-Startup Review
                  Startup
                  Operation
                  Inspection and Testing
                  Maintenance
                  Other (specify)
           Aspects of the EMS
Operational Discipline
    •   Procedures
    •   Training
    •   Demonstration of Performance
    •   Documentation
    •   Other  (specify) 	
Checks and Balances
    •   Quality Assurance/Quality Control
    •   Handling of Deviations
    •   Mangement of Change
    •   Other  (specify) 	
Feedback
        Incident Reports
        Audits
        Performance Data (people, chemical process, or
        equipment)
        Other  (specify)	
           22 respondents answered this  question.

       3.   Would Responsible Care® or another EMS—if implemented before the occurrence of the noncompliance—
           have contributed to prevention of the incident?
           n YES      n NO       Please comment on your answer.
           26 respondents answered this question; 23 of the 26 provided comments.
       4.   Has the facility made an inventory of past, current, or potential environmental impacts associated with its
           operations, services, and products?
           DNO       DYES      If YES, which?          DPast
                                                          n Current
                                                          D Potential
           If yes,  how has an inventory of environmental impacts  affected the facility's ability to manage compliance
           with environmental regulations?
           22 respondents answered this question; all those who responded YES  provided comments.
A-8

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 Section IV
 To complete this section:
If more than one facility case-specific profile was provided, complete this section based on the status of your EMS at the time
of the most recent enforcement action, as indicated by the "Commenced Date" on the facility case-specific profiles.
 COLUMN
 A  Was the element part of the facility's EMS at the time of the noncompliance? Check the appropriate YES or NO column for each element.
 B   Is the element currently part of the facility's EMS? Check the appropriate YES or NO column for each element.
 C  Does the facility consider the element part of Responsible Care® or another EMS to which the facility subscribes?  Check the appropriate column for each
     element and indicate whether the element has been clarified  (C), added (A), or not changed (NC) to prevent recurrence of the noncompliance.

     26 respondents completed this section; the 1 who did not respond stated that the question was not applicable to the noncompliance in question,
     because the noncompliance occurred during closure, after all manufacturing operations had ceased. The number in each row indicates the number
     of responses to that element.
                                                           A. Part of the facility's
                                                           EMS at the time of the
                                                               noncompliance?
                                                              YES
                                             NO
B.  Presently part
 of the facility's
     EMS?
YES
          NO
                                                                                       C. Element is part of ...
                                                                          n       i i   r   r^ r  /\
                                                                          Kesponsible Lare® (y )
                                               Another EMS
                                                    . /N
                                                    (y )
  To prevent recurrence of the noncompliance,
              this element was...
C = Clarified   A=Added   NC = Not Changed
1 .  Policy and Leadership
A.  The facility's goals and objectives statement includes an environmental
    policy statement.
                                                   24
                                         22
B .   Top management defines environmental policy and sets goals and
    expectations regarding environmental performance.
                                                   26
                                         24
C.  The philosophy of continuous improvement is integrated into the
    environmental policy.
                                                   24
                                         22
D.  The environmental policy contains an explicit written commitment to
    regulatory compliance and pollution prevention.
                                                   25
                                         23

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Section IV

2. Planning
A. Environmental planning is part of the budget and business development
process.
B . The planning process includes setting specific objectives and targets
with time frames.
3. Implementation, Operation, and Accountability
A. Formal lines of authority and responsibility and accountability for
environmental management have been established.
B . Environmental managers have organizational stature, independence, and
authority to implement environmental programs and to make decisions
relating to environmental protection.
C. Responsibility for environmental management is incorporated into
personnel evaluations, rewards, and incentives.
D. There is a system in place to review and update environmental
procedures periodically.
E. There is a system in place for tracking and interpreting new and/or
changes to Federal, state, and local regulations and updating facility
policies and directives for the organization's response.
F. Responsibility and accountability for environmental performance are
shared between staff employees and managers at all levels.
A. Part of the facility's B. Presently part
EMS at the time of the of the facility's
noncompliance? EMS?
YES NO YES NO
(/) (/) (/) (/)

24
24

25
26
23
26
26
24
C. Element is part of ...
D -i i r /» / /\ Another EMS
Kesponsible Lare® (•/ ) . ..
To prevent recurrence of the noncompliance,
this element was...
C=Clarified A=Added NC = Not Changed

22
22

23
23
21
24
24
22

-------
Section IV
3. Implementation, Operation, and Accountability (continued)
G . Staff are encouraged to communicate environmental issues and concerns
directly with top management and/or environmental managers.
H. There is a system in place to ensure that personnel with environmental
responsibilities have the relevant background and training to carry out
their responsibilities.
1 . There is a system in place to ensure that environmental reports required
by Federal and state regulations are prepared routinely and submitted
on a timely basis.
J . Procedures are established to identify the potential for and response to
emergency situations.
4. Performance Measurement and Corrective Action
A. The facility has developed and implemented a preventive maintenance
program to ensure proper operation of pollution control equipment.
B . Environmental compliance audits are conducted at least every three
years.
C. Audits are conducted by persons independent of the facility unit which
is the subject of the compliance audit.
D. Compliance audit results are reported directly to facility management.
A. Part of the facility's B. Presently part
EMS at the time of the of the facility's
noncompliance? EMS?
YES NO YES NO
(/) (/) (/) (/)

26
26
26
26

24
25
23
26
C. Element is part of ...
D -i i r /» / /\ Another EMS
Kesponsible Lare® (/; ....
(y)
To prevent recurrence of the noncompliance,
this element was...
C=Clarified A=Added NC = Not Changed

24
24
23
24

22
23
22
23

-------
    Section IV
                                                                  A. Part of the facility's
                                                                  EMS at the time of the
                                                                      noncompliance?
                                                                     YES
NO
            B.  Presently part
             of the facility's
                  EMS?
YES
NO
                                  C.  Element is part of ...
                    Responsible
                                                    Another EMS
   To prevent recurrence of the noncompliance,
                this element was...
C = Clarified    A=Added    NC = Not Changed
4. Performance Measurement and Corrective Action (continued)
E.   A formal system is in place for follow-up of exceptions noted in
    inspections or audits and supported by management review.
      24
                                             22
F.   Periodic environmental management system audits are conducted at the
    facility.
      22
                                             20
G.  The integrity and efficacy of the EMS are periodically reviewed and
    revisions are made based on the results of this review.
      16
                                             16
H.  The facility has developed a written description of the facility EMS
    that describes its organizational and functional structure and elements.
      19
                                             18
I.   The facility has designated a point-of-contact for records relating to the
    EMS.
      21
                                             20

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Section V

1.  When an underlying cause(s) or contributing cause(s) was identified under Regulations and Permits in Section
   II, identify the specific regulatory provision or language pertinent to the noncompliance and the associated two-
   character noncompliance code.  Please identify compliance assistance tools or regulatory reforms that would
   help your facility comply with the regulatory provision or language.
       Regulatory  Provision or Language
                      35
Compliance Assistance Tools or Regulatory
                 Reforms
                   29
   41 responses to this question were expected (because regulations and permits was identified as a
   root or contributing cause 41 times, by 20 respondents, in Section II).  35 of those responses were
   addressed by 19 respondents. However, several respondents identified more than one compliance
   assistance tool or regulatory reform for a noncompliance code:

     1  respondent provided 3 responses for 1 noncompliance code
     1  respondent provided 2 responses for 1 noncompliance code
   24  respondents provided 1 response for 1 noncompliance code

   In  some cases, respondents indicated  the  same noncompliance code more than  once under
   Regulations and Permits in Section II:

     3  respondents indicated the same noncompliance code 2 times
     1  respondent indicated the same noncompliance code  3 times
     1  respondent indicated the same noncompliance code  5 times

   In each case listed above, the respondent provided 1 response to this question.

   The number in each box indicates the number of responses to that element.
                                                                                             A-13

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      Section V

      2.  List three other regulations for which compliance assistance could improve facility compliance. Identify the
          three regulations (not identified in your facility case-specific documents) and the noncompliance categories
          with which compliance is  most difficult.   Identify compliance assistance tools or regulatory reforms that
          would help your facility comply with the regulatory provision or language.
             Regulatory  Provision or Language
Compliance Assistance Tools or
      Regulatory Reforms
                             22
              22
             11      respondents answered this question.

              5      respondents provided 3 responses; 3 of those respondents specified 3 noncompliance
                     codes, 1 of those respondents specified 2 noncompliance codes and did NOT specify a
                     noncompliance code for one answer, and 1 of those respondents did NOT specify a
                     noncompliance code for any answer

              1      respondent provided 1 response; the respondent specified 1 noncompliance code and
                     did NOT specify a noncompliance code for one answer

              5      respondents provided 1 response and specified 1 noncompliance code
      3.  Describe any other regulatory reform initiatives or opportunities that would enable the facility to comply more
          efficiently with environmental requirements.
          14 respondents answered this question.
      4.  What  industry evaluation methods (for  example, compliance audits or EMS audits) could be used  as
          substitutes for traditional compliance inspection, and how could facilities or government demonstrate the
          credibility of such evaluation methods to the public?
          16 respondents answered this question.
      5.  What incentives could EPA use to acknowledge or reward sustained compliance?
          21 respondents answered this question.
A-14

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Section  V

6.   If a government compliance inspector provided compliance assistance, was that assistance effective?

    DYES     QNO

    If YES, what did the inspector do and how was that assistance useful?


    If NO, how can EPA improve its efforts to provide such assistance?


    27 respondents answered this question; 15 of the 27 provided comments.
7.   For  the concluded  action(s) summarized  in the facility  case-specific  profile(s),  could  Supplemental
    Environmental Projects have been incorporated to provide more environmentally beneficial settlements? If so,
    please provide specific examples.


    17 respondents answered this question.
                                                                                                       A-15

-------
      Section V

      8.   Check the appropriate YES or NO column to indicate the compliance assistance sources the facility has used.
          Indicate how useful you found each source by circling the appropriate number.  If you did not use a source,
          indicate how useful you think it would be.
YES
(/)
















NO
(/)
















Compliance Assistance Sources
Agency hotlines
Conferences
Consultants
Federal employees
State employees
Your facility's employees
Internet
Other facilities
Federal publications
State publications
State compliance assistance organizations
Tools developed by the facility
Trade associations
Universities
Vendors and suppliers
Other (specify)
Not Very Useful Very Useful
23
26
26
25
26
25
23
26
25
24
29
24
25
20
22
4
          26 respondents answered this question; the 1 who did not respond stated that the facility was closed
          and that the question was not applicable. The number of responses concerning the usefulness of each
          item varied; the number in each row indicates the number of responses to that element.
A-16

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Section V

9.   Does your facility participate in any state or Federal voluntary programs?

    DYES     QNO

    If YES, please identify the program(s) and explain its effect on compliance.

    If NO, please explain why.


    27 respondents  answered this question; 25 of the 27 provided comments.



10.  On a scale of 1 to  10 (with 10 being the most assistance), rate each of the following areas for its helpfulness to
    your facility in improving compliance.

       25     More clearly  defined management commitment

       23     Increased number of employees

       26     Increased employee involvement

       26     Increased facility management  involvement

       25     Improved access to EPA technical experts

       25     Improved corporate/facility communication

       24     Improved facility management  system

       25     Improved intra-facility communication

       26     Improved record-keeping procedures

       26     Improved tracking system

       26     Improved understanding of the regulations

       26     More clearly  defined responsibilities

       24     More modern equipment

       0	 Other (specify)	
    26 respondents answered this question; the 1 who did not respond stated that the facility was
    closed and that the question was not applicable.  The number in each row indicates the number
    of responses to  that element.
                                                                                                    A-17

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             APPENDIX B
DEFINITIONS OF NONCOMPLIANCE CATEGORIES

-------
      DEFINITIONS OF NONCOMPLIANCE CATEGORIES
      Corrective Action Activities
      Although not necessarily a noncompliance with the regulations, this category
      addresses corrective action activities imposed by a legal agreement such as a
      § 3008(h) or § 3013 order.

      Equipment/Unit Design
      Noncompliance resulting from design deficiencies for structures, systems, or
      resources.
      Exceedance
      Failure to  meet discharge limit(s) as defined in the  facility permit or by
      regulation.

      Failure to  Respond
      Failure to respond to an information request.

      Labeling
      General noncompliance with regulations requiring labeling and placarding.

      Legal Agreement
      Failure to correct a noncompliance in accordance with any agreement or to
      achieve a milestone per any agreement requirements.

      Monitoring/Detection/Control
      Failure to comply with monitoring, detection, or control requirements.

      Operations and Maintenance
      General noncompliance of an operational and maintenance nature such as:  the
      use of defective containers; failure to close hazardous waste containers; lack of
      aisle  space in storage areas; or  failure to perform required  equipment
      inspections, calibrations, and maintenance.

      Record Keeping (incomplete or late)
      Noncompliance  concerning operating records  or  files,  not  maintained in
      accordance with regulations. This includes failure to maintain training records
      as required by  regulation, and  failure to file complete/accurate  manifest
      reports.

      Report Submissions and Reporting
      General failures to submit required reports, or the submittal of incomplete/
      inaccurate  reports, to the  regulating agencies.  Includes the failure  to report
      spills or releases to the regulating agencies in a timely  manner as defined by
      regulation.
B-2

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Spills/Releases
Noncompliance  relating to spills or releases.

Testing
Failure to perform  sampling  or analysis  in  accordance with prescribed
procedures or permit criteria.

Training/Certification
Failure to train environmental personnel in the performance of their duties as
specified  by regulation (includes  inadequate  training, failure to conduct
refresher training). This includes lack  of training/certification records and
failure to have certification training.

Unpermitted/Unauthorized Activity
Noncompliance  resulting from unpermitted or  unauthorized  activities  or
equipment.  Includes noncompliance with permit  requirements and failure to
obtain a permit/authorization.

Waste Identification
Failure to identify/characterize waste as required by regulation.
                                                                                                      B-3

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        APPENDIX C
ROOT AND CONTRIBUTING CAUSE
CATEGORIES AND SPECIFIC CAUSES

-------
      ROOT AND CONTRIBUTING CAUSE

      CATEGORIES AND  SPECIFIC CAUSES
      Human Error
        1.  Individual responsibility or professional judgment
        2.  Fatigue, lack of alertness, distraction
        3.  Inexperience, lack of knowledge, lack of technical expertise
        4.  Other (specify)	
      Policies
        5.  Unavailable policy
        6.  Unclear policy
        7.  Environmental objectives and targets unclear
        8.  Policy not followed
        9.  Pollution control technologies or other technical equipment needs not assessed
        10. Other (specify)	

      Procedures
        11. Operating procedure not followed
        12. Operating procedure unclear or out of date
        13. Difficult to relate operating procedures to actual facility operations and products
        14. No written operating procedures available
        15. Record  keeping procedures inadequate
        16. Definition of roles and responsibilities unclear
        17. Reporting or notification procedures unclear
        18. Pre-startup review not conducted or inadequate
        19. Other (specify)	

      Management
        20. No formal management structure to address noncompliance and follow-through
        21. Management organization undefined
        22. Management support or guidance not  provided
        23. Staffing — inappropriate level or expertise
        24. Environmental aspects of facility process and operations not identified
        25. Control and oversight of purchased materials, equipment, and services not provided or inadequate
        26. Environmental planning or budgeting  not completed
        27. Result of economic competition
        28. Other (specify)	
C-2

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Training
  29.  Employee not trained
  30.  Training materials unclear or outdated
  31.  Training not available
  32.  Training requirements unclear
  33.  Other (specify)	
Communications — difficulties between
  34.  Employees
  35.  Management and employee
  36.  Facility and regulatory agencies
  37.  Other (specify)	
Emergency  Preparedness
  38.  Emergency Preparedness Plan unavailable
  39.  Emergency Preparedness Plan insufficient
  40.  Emergency Preparedness Plan implementation issues
  41.  Other (specify)	
Process Upset or Failure as a  result of
  42.  Over pressure
  43.  Over temperature
  44.  Runaway reaction
  45.  Raw material
  46.  Other (specify)	
Compliance Monitoring
  47.  Audit program insufficient
  48.  Audit follow-up procedures insufficient
  49.  Routine site and equipment compliance checks not conducted
  50.  No system to ensure timely submission of environmental reports to regulatory agency
  51.  Insufficient environmental data
  52.  Other (specify)	
                                                                                                   C-3

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       Regulations and  Permits
         53. Conflicting  permit conditions
         54. Ambiguous Federal regulations
         55. Ambiguous state regulations
         56. Regulatory change not communicated by regulatory agency
         57. Contradiction between state and Federal regulations
         58. Inconsistent or contradictory Federal regulations
         59. Inconsistent or contradictory state regulations
         60. Inconsistent or contradictory interpretation of Federal regulations
         61. Inconsistent or contradictory interpretation of state regulations
         62. Facility unaware of applicability of a regulation
         63. Rule implementation time frames are too short
         64. Other (specify)	

       External  Circumstances
         65. An act outside the control of the individuals who operate the process
         66. External phenomenon (for example, weather, theft, flood, fire)
         67. Contracted services such as haulers or handlers
         68. Other (specify)	

       Equipment  Problems
         69. Design or installation
         70. Equipment  maintenance
         71. Ordinary wear-and-tear
         72. Site and equipment inspections not conducted
         73. Exceptions noted in inspections were not followed up
         74. Other (specify)	
       Other Categories or Items (specify)
         75.	
         76.	
         77.   	        	    	
C-4

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APPENDIX D
  STATUTES

-------
       STATUTES
      This appendix presents survey findings related to specific statutes.  The
      relationships among individual statutes and noncompliance categories and
      the root and  contributing causes are  discussed below.  In addition, the
      actions taken  to address noncompliance events as they are related to each
      statute are discussed.

      Noncompliance Events and  Statutes
      Most (72%) noncompliance events occurred under the Clean Water Act (CWA),
      the Resource Conservation and Recovery Act (RCRA), and the Clean Air Act
      (CAA). For each statute, the type of noncompliance events most frequently
      identified for each statute was:

         •  CWA - Exceedance

         •  RCRA - Unpermitted/unauthorized activity

         •  CAA - Operations and maintenance

         •  Toxic Substances Control Act (TSCA), the Comprehensive Environmental
           Response,  Compensation,  and  Liability  Act  (CERCLA),   and  the
           Emergency Planning and Community Right-to-Know Act (EPCRA)  -
           Report submissions and  reporting

      Most noncompliance events  were associated with  the  CWA and RCRA;
      specifically, the CWA and RCRA were  associated with 29% and 23%,
      respectively, of all types of noncompliance events.

      Causes and Statutes
      For  each statute,  the  cause  of a  noncompliance event most  frequently
      identified, characterized as a root or a contributing cause, was:

         •  CWA - Regulations and permits and procedures, each identified with the
           same frequency

         •  RCRA and CERCLA - Human error

         •  CAA and EPCRA - Regulations and permits

         •  TSCA - Management

      Actions Taken
      For each environmental statute, actions taken in response to noncompliance
      events were reviewed.  (Respondents had described the actions taken by the
      facility in response to noncompliance events.) For all statutes except the CWA,
      most actions taken in response to noncompliance events were management or
      administrative in nature—that is, they pertained to policy, procedures, reporting,
      or training. In contrast, most actions taken in response to noncompliance events
      under  the CWA were technical—for example, upgrades of treatment systems,
      modification or installation of equipment, or source reduction.

      The following  sections  present  the   noncompliance   events,  root  and
      contributing causes, and actions taken in response to noncompliance events for
      each statute.   For each statute, two figures are presented.  The first figure
      presents the  noncompliance  categories most frequently identified for the
      statute.  The second figure presents the root and contributing causes most
      frequently identified.
D-2.

-------
Clean Water Act
The  largest  number  of  noncompliance  events  for  the  CWA involved
exceedances and  events related to requirements for report submissions and
reporting.

Respondents  identified  the  root  and   contributing  causes  of  each
noncompliance event.   Under the  CWA,  the root causes most frequently
identified were equipment problems, external circumstances, and human error.
Specific causes associated with the root causes included:

  •  Equipment problems: design or installation, equipment maintenance, ordinary
     wear-and-tear, and premature failure of equipment operating within its design life

  •  External circumstances: external phenomenon (for example, weather or fire),
     contracted services, and site-wide power failure

  •  Human error:   individual responsibility  or professional judgment  and
     inexperience,  lack of knowledge, lack of technical  expertise

The  contributing causes most frequently identified  were procedures  and
regulations and permits.

In contrast to all other statutes, most actions taken in response to noncompliance
events under the CWA were technical in nature, and many of those actions were
related to storm-water issues.  Specific examples include: improvement  of
sewer integrity, source reduction of pollutants discharged to wastewater
treatment, expansion or upgrades of wastewater treatment systems, design
standards, installation of equipment, and  changes in equipment design. Two
facilities that  had  had CWA noncompliance  events related  to reporting
instituted procedures  involving  outside  laboratories:   one established
requirements that the laboratory  provide early test results by facsimile and
telephone for any results exceeding permit conditions; the other required that
the laboratory perform monitoring.

Management or  administrative actions  associated  with  technical  actions
addressed  training of  employees, analytical  testing  procedures,  and
monitoring procedures.

More than in the  case of any other statute, noncompliance events under the
CWA were  associated with exceedances  and  reporting.  This finding  is
consistent with the nature of regulations under the CWA, which focus on end-
of-pipe  discharge  limits and reporting  mechanisms  for  verifying  that
discharge limits are met. While most root  causes identified for noncompliance
events associated  with the CWA were either technical (equipment problems) or
accidental (human  error and  external circumstances), the procedures and
regulations  and permits categories  stood  out as the  primary contributing
causes.  This finding is particularly noteworthy in light of actions taken  in
response to  noncompliance  events.   Most actions taken addressed technical
aspects  of noncompliance (for example, equipment changes and operational
refinements); however, relatively few actions taken addressed contributing
causes  that  involved  procedure  failure  or   lack  of  understanding  of
regulations.  Such contributing causes could be corrected by implementation
of a formal  environmental  management  system  (EMS)  that includes
preventive  actions and  training to improve  compliance, as well  as by
clarification  of interpretation  of regulations.
                                                                                                     D-3.

-------
             Noncompliance Type

                      Exceedance
                     Monitoring/
                Detection/Control
                  Operations and
                     Maintenance
                  Record Keeping
               Report Submissions
                    and Reporting
               Waste Identification
                                                            CAA Noncompliance  Events
                                              type of noncoi ipliance was not identified by
                                                          2345
                                                               Number of Noncompliance Events
               Noncompliance Type

                       Exceedance
                       Monitoring/
                  Detection/Control
                   Operations and
                      Maintenance
                    Record Keeping
                 Report Submissions
                     and Reporting I
                Waste Identification
                                                            CERCLA Noncompliance Events
                                           Thi-
                                               type of nonconpliance was m
This
    type of nonconpliance was net identified by
Thi«
This
    ype of noncon
    type of noncon
                             t identified by respondents under CERCLA.
                         'espondents un
ipliance was net identified by
ipliance was nc t identified by
                                                      Jer CERCLA,
espondents un<
                                                      Jer CERCLA.
espondents unJer CERCLA.
                                           TTiis
                                               type of noncon
                 ipliance was nc
             t identified by
respondents un
                                                                                                 Jer CERCLA.
                                                          2345
                                                                Number of Noncompliance Events
                Noncompliance Type

                        Exceedance
                        Monitoring/
                   Detection/Control
                     Operations and
                       Maintenance
                     Record Keeping
                  Report Submissions
                      and Reporting
                 Waste Identification
                                                             CWA Noncompliance Events
     type of nonconpliance was not identified by respondents ur
                                               type of noncoi ipliance was not identified by respondents ur
                                                           2345
                                                               Number of Noncompliance Events
D-4

-------
Noncompliance Type

        Exceedance
       Monitoring/
  Detection/Control
    Operations and
       Maintenance
     Record Keeping
  Report Submissions
     and Reporting
  Waste Identification
                                           EPCRA Noncompliance Events
                           This type of noncom
Thist
     ype of noncom
Thist
                 fiance was not identified by r spondents unc
                 aliance was not
     ype of noncom
This Vpe of noncom ilia nee was not
                 iliance was nol
identified by rapondents uncer EPCRA
                                                                                er EPCRA.
identified by r tspondents unc er EPCRA
identified by respondents under EPCRA.
                           Tliist
                               ype of noncom
                                            iliance was not
                              identified by rrspondents uncer EPCRA.
                                           23456
                                                Number of Noncompliance Events
Noncompliance Type

        Exceeda nee
        Monitoring/
   Detection/Control
    Operations and
       Maintenance
     Record Keeping



  Report Submissions
      and Reporting


  Waste Identification
                                            RCRA Noncompliance Events
 Noncompliance Type

         Exceedance
         Monitoring/
    Detection/Control
      Operations and
        Maintenance
      Record Keeping
   Report Submissions
       and Reporting
  Waste Identification
                                             TSCA Noncompliance Events
                                           2345
                                                Number of Noncompliance Events
                                                                                                                                                     D-5.

-------
       Resource Conservation and  Recovery Act
       Most noncompliance events under RCRA involved waste identification and
       record keeping.

       The root causes most frequently identified were human error, procedures, and
       regulations andpermits. Specific causes associated with the root causes included:

         •  Human error: individual responsibility or professional judgment

         •  Procedures:  operating procedure not followed and management of change
            inadequate

         •  Regulations andpermits: ambiguous federal regulations and inconsistent or
            contradictory interpretation of federal regulations

       Contributing  causes  included  compliance monitoring,  human  error,
       procedures, management, and regulations and permits.

       Actions taken were primarily management or administrative in nature—that is,
       they involved changes in waste management procedures and plans, audits and
       startup reviews, training, and waste identification. One technical action that
       involved removal of an underground pipeline was identified.

       RCRA identifies  solid and hazardous  waste management practices  that
       generators of such wastes must follow.  Consequently, noncompliance events
       under RCRA primarily involved management practices and procedures, such
       as waste identification unique to RCRA.  Findings of the survey indicate that
       there is a natural connection between noncompliance events under RCRA
       and failure to  implement required practices through human error and faulty
       procedures.  Those  root causes likewise  are related to one another, in that
       human error can lead to failures of procedures and poor procedures can create
       conditions under which human error is likely to occur.  The complexity of
       RCRA regulations likely  contributed to the identification of regulations and
       permits as the third most frequently occurring root cause category. Actions
       taken in response to noncompliance events for the most part were consistent
       with the root cause—that is, most actions focused on updating of plans and
       procedures and training of staff.

       Clean Air Act
       Noncompliance events under the CAA were distributed almost equally among
       operations and maintenance, monitoring/detection/control, record keeping,
       and reporting.

       The root causes most frequently identified were regulations andpermits, human
       error, and procedures.  Specific causes associated with the root causes included:

         •  Regulations and permits: facility unaware of applicability of the regulations

         •  Human  error:   individual responsibility  or  professional judgment;  and
            inexperience, lack of knowledge, lack of technical  expertise

         •  Procedures:  operating procedures not followed, record keeping procedures
            inadequate, and no written operating procedures available

       Contributing causes included compliance monitoring and regulations and
       permits.

       Almost all specific actions  taken were  administrative or management in
       nature—that is, the actions  involved audits, employee training,  regulatory
D-6.

-------
changes, modifications of reporting and other procedures. A few actions were
technical in nature; they included:

  •  A performance test was conducted

  •  Distillation columns were brought into compliance.

One facility that had had a noncompliance event under the CAA took action by
working with CMA and EPA to modify the NESHAP regulations.

The most common root and contributing causes of noncompliance under the
CAA involved misinterpretation or lack of awareness of applicable regulations
and permit conditions. The frequency with which this cause was identified for
noncompliance events under the CAA,  compared  with the frequency of its
identification under  other statutes, suggests that  both  EPA and industry
should consider efforts to clarify, communicate, and understand regulatory
obligations under the CAA.

Comprehensive Environmental Response, Compensation,  and Liability Act
The noncompliance event identified most frequently under CERCLA involved
report submissions and  reporting.

The root causes most frequently identified were human error and procedures.
Specific causes associated with the root causes included:

  •  Human  error:   individual  responsibility or professional  judgment  and
     inexperience, lack of knowledge, lack of technical expertise

  •  Procedures: operating procedures not followed and operating procedures unclear
     or out of date

Contributing causes included human error,  communications difficulties,
compliance monitoring, external circumstances, and equipment problems.

All actions taken in response to  CERCLA violations were  administrative or
management in nature, and most pertained to reporting procedures. Only one
technical action  was identified—the elimination of underground pipelines
containing hazardous material.

Toxic Substances Control Act
Noncompliance events under TSCA were related to report submissions and
reporting, record keeping, and operations and maintenance.

The  root  causes most  frequently  identified included communication
difficulties and regulations and permits. Specific causes associated with the
root causes included:

  •  Communication  difficulties:   between employees,  between facility and
     regulatory agencies, and between customers

  •  Regulations and permits: facility unaware of applicability of a regulation

Contributing causes involved management and procedures.

Actions taken  in  response  to noncompliance events under TSCA  were
management or administrative in nature, for example:

  •  Reporting - sending notification of PCB activity

  •  Record keeping - documented all inspections performed
                                                                                                    D-7.

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                                                       CAA Root and  Contributing Causes

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                                                                                                                                                        D-9.

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         •  Employee training - providing training to relevant employees

         •  Sampling procedures - sampling all material for PCBs prior to storage so
           that a PCB storage facility would not be required on site

      One facility that had  had a reporting  noncompliance event under  TSCA,
      removed PCBs from the facility, so that it would no longer be required to report.

      Most noncompliance events under TSCA involved administrative violations
      (labeling, record keeping, and reporting)  associated  with management of
      PCBs.  Actions taken  generally appeared  consistent  with the  root  causes
      identified—that is, actions involved employee training and clarifications of
      procedures. The frequency with which two contributing causes, management
      and procedures were identified, raises questions about the efficacy of an EMS
      at the facilities that had had TSCA violations. In fact, one respondent stated
      that an  "EMS program with a TSCA  portion  may  have prevented"  the
      noncompliance event.

      Emergency Planning and Community Right-to-Know Act
      Report submissions and reporting was the sole type of noncompliance event
      under EPCRA identified by  respondents.

      The root causes most  frequently identified noncompliance events  under
      EPCRA include regulations and permits and compliance monitoring. Specific
      causes associated with  the root causes included:

         •  Regulations and permits: ambiguous federal regulations, and inconsistent or
           contradictory interpretation of federal regulations

         •  Compliance monitoring: audit program insufficient

      Contributing causes included human error and regulations and permits.

      All actions taken involved reporting procedures. This finding is consistent with
      the nature of EPCRA requirements, which  are reporting and administrative
      in nature.

      Half the noncompliance events were attributed to ambiguous, inconsistent, or
      contradictory federal regulations or interpretations of those  regulations. That
      finding suggests that there is great need for clarification of the EPCRA program.
      The natures of root and contributing causes of noncompliance events under
      EPCRA and of actions taken  also  suggest that ongoing training is necessary to
      help employees better understand requirements of EPCRA, so that systems and
      procedures can be developed to support  the preparation  of complete and
      accurate EPCRA reports.
D-10.

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          APPENDIX E
COMPARISON OF THREE EMS MODELS

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     COMPARISON OF THREE EMS MODELS
     This appendix provides a comparison of three environmental management
     system (EMS) models.  In the descriptions, references (in parenthesis) are
     made to sections or criteria in each EMS model. A source from which one can
     obtain more information or a copy of the EMS model document also is
     provided.
E-2

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                                                                         EMS Framework Comparison
                            Responsible Care®
                                                                 ISO 14001
                                                                      NEIC EMS Criteria
Developer
Chemical Manufacturers Association (CMA)
International Standards Organization (ISO)
EPA National Enforcement Investigations Center (NEIC)
Description
CMA member  companies  are required to commit
to (in writing) and implement the six codes of
management practices of Responsible Care®:
•  Community  Awareness and
    Emergency Response
•  Pollution Prevention
•  Process Safety
•  Distribution
•  Employee Health and Safety
•  Product Stewardship

The integration  of these codes into a management
system is achieved in part through  a Management
Systems Verification process, which is also part of
Responsible Care®.

CMA members are required to implement
Responsible Care®  in a manner that
accommodates the facilities'  operating practices.
The ISO EMS standard (1 4001)  provides an
organized framework for an EMS that is based on
five components:
•  Policy
•  Planning
•  Implementation and Operation
•  Checking and  Corrective Action
•  Management Review

These components are deployed  through 1 7 key
elements.  The standard provides the overall
structure of the  EMS; however, the content and
level of detail are  left to the company
implementing the EMS.   Philosophically, the
standard borrows  many concepts  from quality
management  systems, including continuous
improvement through a "plan-do-check-act" cycle.
While it clearly emphasizes continuous
improvement, the  standard does not define specific
levels of environmental performance.

Using the basic EMS  structure, companies  develop
the specific details, terms, and conditions for
developing and  implementing  an  EMS.
Through numerous  multimedia compliance  investigations,  EPA
(NEIC) observed that noncompliance most often was caused by
dysfunctional  EMSs.  Drawing on that experience, EPA developed
a EMS  focused on compliance to identify pertinent environmental
requirements and translate them into sustainable compliance
activities.  The compliance-based  EMS contains the following 1 2
elements:
•  Management Policies and Procedures
•  Organization,  Personnel,  and  Oversight of EMS
•  Accountability and Responsibility
•  Environmental  Requirements
•  Assessment, Prevention,  and  Control
•  Environmental  Incident and Noncompliance
   Investigations
•  Environmental  Training, Awareness, and  Competence
•  Planning for Environmental Matters
•  Maintenance of Records  and  Documentation
•  Pollution  Prevention Program
•  Continuing Program Evaluation and Improvement
•  Public Involvement and Community Outreach

The guidance also provides information about how the criteria can
be incorporated into  a settlement document.

To date, the EMS model has been included  in several EPA
settlement agreements when both parties  have agreed that
improvements in the facility's  EMS were warranted.

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                                                                           EMS Framework Comparison
                                    Responsible Care®
                                                                        ISO  14001
                                                                       NEIC EMS Criteria
Policy and Leadership
Guiding Principles; policy attributes are defined by the
Management Systems Verification protocol  (A.1  to
A.7)
Environmental Policy (4.1)
Management  Policies and Procedures (1)
Planning
Planning attributes are defined by  the Management
Systems Verification protocol (B.1 to B.7) and
include:
•  Identifying relevant regulations and standards
•  Evaluating product, process, and  distribution risks
•  Identifying employee and community concerns
•  Setting priorities and  goals
Environmental Planning (4.2)
•  Environmental Aspects
•  Legal and Other Requirements
•  Objectives and Targets
•  Environmental  Management Program(s)
Organization, Personnel, and Oversight of  EMS (2)
Accountability and Responsibility (3)
Environmental Requirements (4)
Planning for  Environmental  Matters (8)
Implementation,
Operation, and
Accountability
Implementation attributes are defined by  the
Management Systems Verification protocol (C.1  to
C.11) and include:
•  Roles and responsibilities for achieving goals
•  Communication
•  Procedures
•  Employee training
•  Documentation
•  Pollution prevention
Implementation and Operation  (4.3)
•  Structure and Responsibility
•  Training, Awareness, and Competence
•  Communication
•  EMS Documentation
•  Document Control
•  Operation Control
•  Emergency Preparedness and  Response
Assessment, Prevention,  and Control  (5)
Environmental Training, Awareness, and Competence (7)
Maintenance of Records and Documentation (9)
Pollution Prevention Program (10)
Public  Involvement/Community  Outreach (12)
Performance
Measurement and
Corrective Action
Performance measurement and corrective action
attributes are defined by the Management Systems
Verification protocol (D.1  to D.6) and include:
•  Performance data tracking
•  Accident investigation
•  Record  keeping
•  Audits
•  Program effectiveness  measurement
Checking and Corrective Action (4.4)
•  Monitoring and Measurement
•  Nonconformance and  Corrective  and
   Preventive Action
•  Records
•  EMS Audit
Environmental Incident and  Noncompliance
Investigations (6)
Management  Review
and Reporting
Management review attributes are defined by the
Management Systems Verification protocol  (E.1  to
E.4).
Management Review  (4.5)
Continuing Program  Evaluation  (11)

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                                                                        EMS Framework Comparison
                                  Responsible
                                                                     ISO 14001
                                                                   NEIC EMS Criteria
Source of More
Information
CMA's Responsible Care® department is a valuable
resource for CMA's members and partners.  Those
seeking more detailed  information about Responsible
Care® or  the Partner  Program should call
(703) 741-5303.  Those companies that may not
be interested in CMA membership or participation in
the  Partner Program, but that find themselves struggling
and needing assistance in implementing an  EMS,
should contact their state chemical industry council.
In October, 1997, EPA published the ISO 14000
Resource Directory (EPA/625/R-97/003).  The goal
of the document is to inform readers about the  ISO
1 4000 standards and activities. The document can be
accessed through:

 
The NEIC guidance document, Compliance-Focused
Environmental  Management System-Enforcement
Agreement Guidance (EPA 330/9-97-002) can be
accessed through:

   

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        APPENDIX F
RESPONDENT RECOMMENDATIONS
 RELATED TO SPECIFIC STATUTES

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      RESPONDENT RECOMMENDATIONS  	

      RELATED TO SPECIFIC STATUTES

      Respondents to the Root Cause Analysis Pilot Project survey offered many
      recommendations related to specific statutes.  These recommendations were
      categorized in four categories:  compliance assistance recommendations,
      changes  in EPA policy, regulatory changes, and statutory changes.  The
      recommendations  are identified by statute in  the following  tables.  No
      recommendations  related to the Comprehensive Environmental Response,
      Compensation, and Liability Act (CERCLA) were provided.

      Clean Air Act
      Individual  respondents suggested that  EPA  implement the following
      initiatives under the Clean Air Act  (CAA).

      Compliance  Assistance Recommendations —
      New Source Performance Standards (NSPS)  rules:

        •  Publish  notices in the Federal Register that provide reminders  of
          compliance deadlines

        •  Provide reminders of deadlines under specific rules through list serves
          on the Internet

      National Emission Standard for Hazardous  Air Pollutants (NESHAP)—for
      vinyl chloride

        •  Exclude releases to flares from reporting requirements

      Allow reduced frequency of monitoring in light of a facility's leak history (40
      Code of Federal Regulations [CFR]  part 63 subpart F)

      Changes in EPA, Policy —
      Make  the  1992  "draft"  control technique  guidelines  for industrial
      wastewater systems final

      NSPS rules:

        •  Allow enforcement discretion for facilities  that meet the intent of the
          regulations and rules, but do  not meet the prescriptive record keeping
          and reporting requirements

        •  Extend the time allowed to come into compliance with new rules

      Regulatory Changes —
      Consolidate fugitive emissions rules into one set of requirements

      NSPS rules:

        •  Extend the compliance date for existing rules

      NESHAP for asbestos:

        •  Regulate waste manifest requirements under the Resource Conservation
          and Recovery Act (RCRA) or state solid waste rules, rather than under the
          CAA
F-2

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Allow  reduced frequency  of  monitoring  under the  Hazardous  Organic
NESHAP in light of a facility's leak history (40 CFR part 63 subpart F)

Statutory Changes —
NSPS rules:

  •  Modify the effective date for new sources, making it the date the rule
     actually becomes final

Implement a 10-year moratorium on all new CAA rules so facilities can achieve
compliance with existing rules

Clean Water Act
Individual  respondents  suggested  that  EPA  implement  the following
initiatives under the Clean Water Act (CWA).

Regulatory Changes —
Allow the use of chemical oxygen demand (COD) to screen  for compliance
with the requirements governing biochemical  oxygen demand (BOD)

Emergency  Planning and Community Right-to-Know Act
Individual  respondents  suggested  that  EPA  implement  the following
initiatives under the  Emergency  Planning  and Community  Right-to-Know
Act (EPCRA).

Compliance  Assistance Recommendations —
Clarify the instructions and  guidance for completing Form R

Provide better outreach on instructions for completing Form R

Changes in EPA  Policy —
Provide revised reporting forms to industry well in advance of compliance
deadlines

Change the instructions for Form R  to indicate that  transitory, nonisolated
intermediates are not "manufactured" and therefore such materials should not
be subject to threshold determinations for Form R reporting

Regulatory Changes —
Raise reportable quantities for reporting of releases

Address the applicability of reporting requirements to transitory nonisolated
intermediates through rule making

Simplify the rules for  completing Form R

Statutory Changes —
Develop a more reasonable small  source exemption
                                                                                                 F-3

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       Resource Conservation and  Recovery Act
       Individual respondents  suggested that EPA  implement  the following
       initiatives under the Resource Conservation and Recovery Act (RCRA).

       Compliance Assistance Recommendations —
       Develop plain-language guidance for compiling all requirements pertaining
       to satellite accumulation

       Develop a subpart CC self-audit check list

       Develop plain-language guidance for the boiler and industrial furnace (BIF)
       rule

       Regulatory Changes —
       Relax monitoring requirements for  BIFs

       Revise 40 CFR section 264/65.193  (e)(l)(iii), containment and detection of
       releases, to consist entirely of a performance standard

       Eliminate in-process materials from the definition of solid waste

       Allow as many as 55 gallons of each  waste code in satellite accumulation areas

       Toxic Substances Control  Act
       Individual respondents suggested  that the EPA implement  the following
       initiatives under the Toxic Substances Control Act (TSCA).

       Regulatory Changes —
       Narrow the scope of reporting  requirements under section 8(e)

       Statutory Changes —
       Eliminate reporting for exports that contain chemicals listed in section 12(b)
F-4

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F-5

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